                                                                             FILED
                           NOT FOR PUBLICATION                                JAN 29 2010

                                                                       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. 08-50508

             Plaintiff - Appellee,               D.C. No. 3:07-cr-02138-IEG-1

  v.
                                                 MEMORANDUM *
OSCAR JAVIER BELTRAN-LASTRA,

             Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                      Argued and Submitted January 14, 2010
                               Pasadena, California

Before: SCHROEDER, CANBY and McKEOWN, Circuit Judges.

       Oscar Beltran-Lastra appeals his jury conviction and sentence for

importation of marijuana in violation of 21 U.S.C. §§ 952 and 960, and possession

with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      With respect to Beltran-Lastra’s challenge to the admission of other acts

evidence under Federal Rules of Evidence 403 and 404(b), the government has

made strong arguments as to the materiality of Beltran-Lastra’s prior border

crossings, in conjunction with the evidence of his demeanor. Judge Gonzales

appropriately admitted this evidence. Yet even assuming that the court erred in

admitting this evidence, this error was harmless in light of the other evidence of

Beltran-Lastra’s culpability. See United States v. Romero, 282 F.3d 683, 688 (9th

Cir. 2002).

      Because Beltran-Lastra failed to preserve a number of his objections in

district court, we review them for plain error. United States v. Crawford, 239 F.3d

1086, 1091 (9th Cir. 2001). The admission of Officer Aguilar’s testimony as to

Beltran-Lastra’s demeanor and prior statements did not constitute plain error

because it did not cause prejudice to Beltran-Lastra’s substantial rights. See

United States v. Perez, 116 F.3d 840, 846 (9th Cir. 1997) (en banc).

      Nor did the district court abuse its discretion in admitting Officer Taylor’s

testimony regarding the condition of Beltran-Lastra’s bus as the lack of disclosure

under Federal Rule of Criminal Procedure 16(a)(1)(G) caused Beltran-Lastra no

prejudice. See United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir.

1997). Contrary to the argument in the opening brief, Officer Taylor did not testify


                                          2
to Beltran-Lastra’s mental state in violation of Federal Rule of Evidence 704 or as

an expert with regard to the condition of the bus and the suitability of the bus for

commercial use.

      Beltran-Lastra also challenges Judge Burns’ instructions to the grand jury.

Indeed, improper characterization and praise of the U.S. Attorney can result in

reversible error. We caution against the court’s placing a stamp of approval on the

prosecutor, such as the court’s statement here that “my experience is that the

prosecutors don’t play hide-the-ball.” Although the court may have been

somewhat overzealous in its praise of the government, the district court’s

instructions regarding the U.S. Attorney’s duty to present exculpatory evidence did

not rise to the level of structural error. See United States v. Isgro, 974 F.2d 1091,

1094 (9th Cir. 1992). Nor do all of the alleged errors, taken together, amount to

reversible cumulative error.

      Finally, the district court did not commit clear error in denying Beltran-

Lastra’s request for a minor role adjustment under U.S.S.G. § 3B1.2 where

Beltran-Lastra was the sole driver and occupant of a vehicle containing a large

quantity of drugs. See United States v. Rosales-Rodriguez, 289 F.3d 1106, 1112

(9th Cir. 2002).

      AFFIRMED.


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