                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 14 2012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. 11-30174

              Plaintiff - Appellee,              D.C. No. 3:09-cr-05601-BHS-3

  v.
                                                 MEMORANDUM *
JOSE AHUMADA-RODRIGUEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                       Argued and Submitted August 6, 2012
                               Seattle, Washington

Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.

       Defendant Jose Ahumada-Rodriguez appeals his jury conviction of

possession of heroin (one kilogram or more) with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A). We affirm.

       1. Defendant first argues that insufficient evidence supported his conviction.

Reviewing de novo and "assess[ing] the evidence in the light most favorable to the


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
prosecution," we hold that a "rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." United States v. Stewart, 420

F.3d 1007, 1014–15 (9th Cir. 2005) (internal quotation marks omitted). The

government introduced evidence from which a reasonable juror could conclude, at

a minimum, that Defendant aided and abetted the commission of the crime.

      2. The district court properly denied Defendant’s motion to suppress the

evidence found during the search of the house. Reviewing de novo, United States

v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007), we hold that the affidavit

supporting the warrant contained sufficient indicia of the confidential informant’s

reliability. See United States v. Rowland, 464 F.3d 899, 907–08 (9th Cir. 2006)

(discussing indicia of reliability for confidential informants). Even if the warrant

were unsupported by probable cause, the good faith exception would apply.

United States v. Leon, 468 U.S. 897, 922–23 (1984). Finally, the warrant

authorized a search of the residence, so officers did not exceed the scope of the

warrant.

      3. The district court did not err in admitting Defendant’s statement about

cocaine or evidence of the cocaine. We review for abuse of discretion the decision

to admit evidence, United States v. Santini, 656 F.3d 1075, 1077 (9th Cir. 2011)

(per curiam), and we review de novo whether evidence falls within the scope of


                                           2
Rule 404(b) of the Federal Rules of Evidence, United States v. DeGeorge, 380

F.3d 1203, 1219 (9th Cir. 2004). The statement is not an "other act" under Rule

404(b), and the evidence was admissible because it was intertwined with the

evidence of the charged (heroin distribution) crime.

      4. The district court did not abuse its discretion, Earp v. Cullen, 623 F.3d

1065, 1075 (9th Cir. 2010), cert. denied, 131 S. Ct. 2966 (2011), by admitting

expert testimony about drug distribution. The expert testimony was relevant and

helpful to the jury, and the expert did not try to impute to Defendant knowledge of

"how the entire [drug] organization operated," United States v. Vallejo, 237 F.3d

1008, 1017 (9th Cir.), amended by 246 F.3d 1150 (9th Cir. 2001), or "attempt[] to

connect him to an international drug conspiracy," United States v. Pineda-Torres,

287 F.3d 860, 865 (9th Cir. 2002).

      5. Finally, Defendant argues that the prosecutor committed misconduct

during her closing argument. "[W]e review a district court’s determination that

there was no prosecutorial misconduct for abuse of discretion, and we apply

harmless error analysis." United States v. Del Toro-Barboza, 673 F.3d 1136, 1150

(9th Cir. 2012). Here, the prosecutor did not misstate the law. Even if she did, the

misconduct did not materially affect the fairness of the trial. See id. ("A criminal




                                          3
conviction will not be overturned on the basis of a prosecutor's comments unless in

context they affected the fundamental fairness of the trial.").

      AFFIRMED.




                                           4
                                                                              FILED
United States v. Ahumada-Rodriguez, No. 11-30174                               SEP 14 2012

                                                                           MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting:                                          U .S. C O U R T OF APPE ALS




         The heart of the government’s position appears to be that the defendant was

the closest to the door when the police broke in. Proximity to the door at that

moment proves nothing as to the author of the locking of the door. It’s a guess,

even a good guess, but not proof of any kind.

         I see no other evidence that the defendant took steps to aid and abet and, in

particular, no evidence of his intent to distribute heroin. Presence in the stash

house is suspicious. It fails to establish criminal activity beyond a reasonable

doubt.
