                     UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT                           FILED
                                                                              FEB 13 2012
UNITED STATES OF AMERICA,                        No. 10-10310
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

              Plaintiff - Appellee,              D.C. No. 3:06-cr-00710-WHA-2
                                                 Northern District of California,
  v.                                             San Francisco

LUIS ALBERTO GONZALEZ,
                                                 ORDER
              Defendant - Appellant.



Before: HAWKINS and M. SMITH, Circuit Judges, and DUFFY, District Judge.*

       The Memorandum disposition, filed December 22, 2011, is amended as

follows:

       On page 4, the paragraph beginning “Finally, even assuming the court” and

ending “See United States v. Warr, 530 F.3d 1152, 1163 (9th Cir. 2008).” is deleted,

and the following is substituted in its place:

             Finally, the court did not violate Federal Rule of Criminal

       Procedure 32 by failing to inform Gonzalez of its ex parte hearing with

       Paiz’s counsel in which counsel indicated she did not plan to call



       *
       The Honorable Kevin Thomas Duffy, District Judge for the U.S. District Court
for Southern New York, sitting by designation.
Gonzalez because she did not think he could credibly exonerate Paiz.

This was not factual information relayed to the court about Gonzalez, but

the opinion of counsel whether Gonzalez would aid her client’s case;

indeed, the focus of the hearing is not on any specific misrepresentation

by Gonzalez but on Paiz’s counsel’s own shortcomings by failing to “do

her homework” and obtain a more detailed proffer from Gonzalez as to

what his testimony would actually entail. Moreover, even assuming it

were a violation of Rule 32, any technical procedural error was harmless

as counsel’s opinion was cumulative of the public and obvious

credibility problems Gonzalez had, which were expressly noted by the

district court.   See Fed. R. Crim. P. 52(a) (“Any error, defect,

irregularity, or variance that does not affect substantial rights must be

disregarded.”); see United States v. Soltero, 510 F.3d 858, 863-64 (9th

Cir. 2007) (harmless error analysis of Rule 32 violation appropriate if it

is clear that no prejudice resulted); cf. United States v. Warr, 530 F.3d

1152, 1163 (9th Cir. 2008) (no prejudice where court relied on

undisclosed study for “well-known, common sense proposition”).




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      The panel has voted to deny Appellant’s petition for rehearing. Judges

Hawkins and Duffy have recommended denying the petition for rehearing en banc and

Judge Smith has voted to deny the en banc petition.

      The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P.

35.

      The petition for panel rehearing and petition for rehearing en banc are

DENIED.

      No further petitions for rehearing or petitions for rehearing en banc will be

entertained.




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