                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 08 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-50281

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00491-BTM-1

  v.
                                                 MEMORANDUM*
MANUEL A. MARTINEZ-
COVARRUBIAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                           Submitted February 8, 2011**
                              Pasadena, California

Before: REINHARDT, RAWLINSON, and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Neither of Martinez-Covarrubias’s prosecutorial misconduct claims merits

reversal of his conviction.1 The first–that the prosecutor questioned a witness

regarding Martinez-Covarrubias’s use of a false name in violation of a prior

evidentiary ruling by the district court–has no basis in fact: the district court’s in

limine evidentiary ruling admitted testimony on the subject, and was retracted by

the district court only after the testimony had been elicited by the prosecutor. The

second–that the prosecutor repeatedly elicited inadmissible testimony regarding the

IAFIS computer system, requiring the defense to object five times–fails because

even had the prosecution’s actions constituted misconduct, the evidence of

Martinez-Covarrubias’s guilt was overwhelming. See United States v. Wright, 625

F.3d 583, 613 (9th Cir. 2010).

      Martinez-Covarrubias challenges the district court’s decision to recognize as

an expert an ICE agent who testified as to the 2001 street value of the seized

methamphetamine. Even assuming that the district court erred, Martinez-

Covarrubias was not prejudiced by the ICE agent’s testimony. The prosecution



      1
        The government’s motion to strike appellant’s opening brief is denied. The
brief does not “exhibit[] a complete disregard for the requirements of the appellate
rules respecting citations to the record,” Han v. Stanford University, 210 F.3d
1038, 1040 (9th Cir. 2000), and thus falls within this court’s practice of tolerating
“minor breaches of one rule or another.” N/S/ Corp. v. Liberty Mut. Ins. Co., 127
F.3d 1145, 1146 (9th Cir. 1997).

                                            2
introduced evidence that the amount of methamphetamine found in Martinez-

Covarrubias’s truck was 12,000 times greater than one would carry for personal

use. Thus, “it is more probable than not that the error did not materially affect the

verdict.” See United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).

      The district court did not err in admitting the lab test results of the seized

methamphetamine over Martinez-Covarrubias’s chain of custody objections. The

government presented testimony that the substance was sealed in a barrel at the

time it was seized, that the seal was still intact at the time the barrel was delivered

to the lab, and that the numbered label on the barrel corresponded to forms filled

out by field agents at the time of the seizure. Therefore, “sufficient proof [was]

introduced so that a reasonable juror could find in favor of authenticity or

authentication.” United States v. Matta-Ballesteros, 71 F.3d 754, 768 (9th Cir.

1995) (interpreting Fed. R. Evid. 901(a)).

      The district court did not err in denying Martinez-Covarrubias’s Motion for

a Judgment of Acquittal under Fed. R. Crim. P. 29. The prosecution’s evidence of

guilt, including that the seized methamphetamine was found in a vehicle that was

owned by Martinez-Covarrubias and driven by a man bearing his identification

papers, was such that “a rational trier of fact could have found the essential




                                           3
elements of the crime beyond a reasonable doubt.” United States v. Lazarenko,

564 F.3d 1026, 1035 (9th Cir. 2009).

      Finally, the record is insufficient to review Martinez-Covarrubias’s

ineffective assistance claim on direct appeal. We therefore dismiss the ineffective

assistance claims, noting that Martinez-Covarrubias may bring them in a future

habeas proceeding should he so choose. United States v. Benford, 574 F.3d 1228,

1231 (9th Cir. 2009)

      AFFIRMED.




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