                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 16 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50540

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00606-JAH-2

  v.                                             MEMORANDUM *

ADAN MORAN-ELIAS,

              Defendant - Appellant.




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

                     Argued and Submitted November 7, 2012
                              Pasadena, California

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

       Adan Moran-Elias appeals his jury conviction for several offenses related to

smuggling an undocumented alien, Martin Duarte-Saucedo, into the United States.

We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Customs and Border Patrol (CBP) agents had probable cause to arrest

Moran-Elias under the “totality of the circumstances,” United States v. Lopez, 482

F.3d 1067, 1077–78 (9th Cir. 2007). The CBP’s observations that Duarte-Saucedo

crossed the border using false documentation, proceeded to an apparently pre-

planned meeting with Jamah Briggs, accompanied Briggs to another apparently

pre-planned meeting with Moran-Elias, and then accompanied Moran-Elias to

Nelida Dimas’s waiting car, created a “fair probability” that Moran-Elias was part

of an “ongoing criminal operation” to smuggle Duarte-Saucedo into the United

States. See United States v. Rodriguez, 869 F.2d 479, 483 (9th Cir. 1989).

      As the government concedes, Duarte-Saucedo’s videotaped deposition was

admitted in error. In light of the record as a whole, including Moran-Elias’s

confession, Dimas’s testimony regarding her instructions to pick up and transport

an undocumented alien, and the CBP’s observation that Duarte-Saucedo presented

false identification at the border, we are convinced that this error was harmless

beyond a reasonable doubt. See United States v. Pena-Gutierrez, 222 F.3d 1080,

1089–90 (9th Cir. 2000).

      The district court did not err in admitting Dimas’s testimony regarding

smuggling activity that occurred before the Duarte-Saucedo incident. There was

ample evidence of a long-standing smuggling conspiracy involving Moran-Elias,


                                          2
Dimas, and others, and thus the testimony was “‘directly related to, or inextricably

intertwined with, the crime charged in the indictment.’” United States v. Rizk, 660

F.3d 1125, 1131 (9th Cir. 2011) (quoting United States v. Lillard, 354 F.3d 850,

854 (9th Cir. 2003)).

      Because Briggs’s post-arrest statement was exculpatory and did not

implicate Moran-Elias, the district court did not err in refusing to give a limiting

instruction under Richardson v. Marsh, 481 U.S. 200, 211 (1987). Finally, there

was no cumulative error.

      AFFIRMED.




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