                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 28 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50405

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00307-LAB

  v.
                                                 MEMORANDUM*
CARLOS VALENCIA-MACIAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                      Argued and Submitted March 4, 2014
                              Pasadena, California

Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.

       Carlos Valencia-Macias appeals his conviction for conspiracy to distribute

marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. We have jurisdiction under

28 U.S.C. § 1291. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err under Federal Rules of Evidence 702 or 403 by

permitting the government’s expert to testify regarding the typical structure of

maritime drug smuggling operations involving panga boats. See United States v.

Valencia-Amezcua, 278 F.3d 901, 908–09 (9th Cir. 2002) (discussing admissibility

of “structure” testimony). The court’s pretrial order established appropriate limits

for this expert testimony.

      At trial, in response to a question by Valencia-Macias’ co-defendant’s

counsel, the expert opined that when law enforcement arrived on the beach in this

case, “everybody went every which direction except for the poor two guys that

actually got stuck with their hands in the cookie jar.” Neither defense attorney

objected.

      Valencia-Macias’ pretrial motion in limine to preclude the expert’s

testimony in its entirety did not preserve Valencia-Macias’ objection to the “cookie

jar” comment under Federal Rule of Evidence 704(b). The motion in limine did

not raise a Rule 704(b) objection, and the district court premised its pretrial ruling

on the government’s representation that the expert would offer no opinion about

the defendants’ guilt in this case. Because there was no objection to the expert’s

“cookie jar” comment at trial, we review for plain error. See United States v.

Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990); see also Fed. R. Crim. P. 52(b).


                                           2
      Under the plain error standard of review, Valencia-Macias “has the burden

to show that (1) there was an error; (2) the error was plain, i.e. clear or obvious; (3)

the error affected his substantial rights, meaning that it ‘affected the outcome of the

district court proceedings’; and (4) the error ‘seriously affects the fairness, integrity

or public reputation of judicial proceedings.’” United States v. Anguiano-Morfin,

713 F.3d 1208, 1210–11 (9th Cir. 2013) (quoting Puckett v. United States, 556

U.S. 129, 135 (2009)), cert. denied, 134 S. Ct. 543 (2013). In this case, even

assuming it was plain error to allow the expert’s “cookie jar” comment to stand

without correction, the error did not affect Valencia-Macias’ substantial rights.

The jury could have fully credited the expert’s “cookie jar” comment and also fully

credited Valencia-Macias’ defense theory: that the government arrested him on a

case of mistaken identity.

      AFFIRMED.




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