                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 19 2012

                                                                          MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                          FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30378

              Plaintiff - Appellee,              D.C. No. 3:10-cr-05332-RBL-1

  v.
                                                 MEMORANDUM*
SEONG UG SIN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted October 3, 2012
                              Spokane, Washington

Before:       KOZINSKI, Chief Judge, CHRISTEN and WATFORD, Circuit
              Judges.

       1. The district judge didn’t abuse his discretion by denying Sin’s motion to

exclude the breathalyzer evidence. “[T]he method by which a breathalyzer works”

wasn’t challenged on appeal, and allegations of procedural error in the way the



          *
             This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
                                                                               page 2
tests were administered go to reliability rather than admissibility. United States v.

Brannon, 146 F.3d 1194, 1196–97 (9th Cir. 1998).


      2. The government’s late production of the Coast Guard cell phone

recordings doesn’t come close to violating due process. See United States v.

Cuellar, 96 F.3d 1179, 1182 (9th Cir. 1996). And it didn’t prejudice Sin because

he received the recordings in time to make use of them during the Daubert hearing

and at trial. See United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009); United

States v. Ross, 372 F.3d 1097, 1110 (9th Cir. 2004).


      3. Sin cited no on-point authority supporting his argument that a three-day

travel delay violated his Sixth Amendment rights. He also failed to show

“demonstrable prejudice, or substantial threat thereof,” arose from the delay. See

United States v. Morrison, 449 U.S. 361, 365 (1981).


      4. The trial court didn’t err by declining to read Sin’s requested “theory of

defense” jury instruction, as the instruction was intended “to compel a certain

resolution to a disputed question of fact.” United States v. Sarno, 73 F.3d 1470,

1485 (9th Cir. 1995).
                                                                                 page 3
      5. Viewing the evidence from the breathalyzer tests and the testimony

presented at trial “in the light most favorable to the prosecution,” a rational jury

“could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Rocha,

598 F.3d 1144, 1153 (9th Cir. 2010).


      AFFIRMED.
