                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                              FOR THE NINTH CIRCUIT                            JUN 23 2014

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

UNITED STATES OF AMERICA,                        No. 12-10578

                Plaintiff - Appellee,            D.C. No. 2:11-cr-01974-NVW-1

  v.
                                                 MEMORANDUM*
JONATHAN VIEYRA HERRERA,

                Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                       Neil V. Wake, District Judge, Presiding

                         Argued and Submitted June 11, 2014
                              San Francisco, California

Before: O’SCANNLAIN and BEA, Circuit Judges, and HAYES, District Judge.**

       A jury convicted Jonathan Vieyra Herrera of five counts of making a False

Statement in Connection with the Acquisition of a Firearm, 18 U.S.C. §

924(a)(1)(A).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Herrera was convicted following his purchase of five guns from October

26–27, 2010. Herrera’s associate Charles Fuller, who drove him to a series of gun

dealers, immediately took possession of the guns that Herrera purchased, and paid

Herrera a markup.

      At trial, over Herrera’s objection that the testimony was hearsay, the district

court allowed testimony from an ATF agent that the agent and a confidential

informant had a standing order with Fuller for certain types of guns. The court

overruled the objection, finding that the testimony was not hearsay.

      This court reviews de novo whether the district court correctly construed the

hearsay rule, and reviews the decision to admit evidence as non-hearsay for abuse

of discretion. United States v. Washington, 462 F.3d 1124, 1135 (9th Cir. 2006).

Where hearsay is admitted in error, it is subject to harmless error review and this

court will reverse only if there is grave doubt whether the erroneously admitted

evidence substantially affected the verdict. United States v. Alvarez, 358 F.3d

1194, 1214 (9th Cir. 2004).

      The district court erroneously admitted the out-of-court statements. The out-

of-court statements were relevant to prove that Fuller sought to obtain specific

guns, which Herrera bought on Fuller’s behalf, and were hearsay. Fed. R. Evid.

801(c), 802. However, the error was harmless. The jury heard evidence that Fuller


                                          2
was with Herrera when Herrera made each purchase and that Fuller immediately

purchased the guns from Herrera. During Herrera’s interview with the ATF,

Herrera told agents that Fuller bought from Herrera to avoid paperwork. These

statements support the inference that Herrera purchased the guns on Fuller’s

behalf. The jury also heard evidence that Herrera had recently lost a job and was

having “monetary issues,” as well as his testimony that he was carrying $2,000

cash with which to purchase guns because he was paid monthly. The jury also

heard testimony about the significant markup Fuller gave Herrera on each firearm.

Against the weight of the evidence, the erroneously admitted hearsay did not

substantially affect the verdict, and the error was harmless. Alvarez, 358 F.3d at

1214. Because the admission of hearsay for all purposes was harmless, the district

court’s failure to give a limiting instruction was also harmless.

      Herrera also argues that the district court erred when it gave a supplemental

jury instruction that “a person is not the ‘actual transferee/buyer’ of the firearm if

at the time of purchasing the firearm the person has a present intention to sell the

firearm to a specific person.”

      An error is considered invited error and is waived if the defendant has

invited the error and relinquished a known right. United States v. Perez, 116 F.3d

840, 845 (9th Cir. 1997) (en banc). The doctrine does not apply where defense


                                           3
counsel and district court were operating under a misapprehension of applicable

law. United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006).

      Here, through counsel, Herrera initially objected to the instruction. Then,

after Herrera and counsel conferred, Herrera withdrew his objection. This is record

evidence that Herrera considered the objection “but then, for some tactical or other

reason, rejected the idea.” Perez, 116 F.3d at 845. Herrera invited the claimed

error, and the panel will not review Herrera’s claim that the district court erred.

Therefore, the district court is affirmed.

      AFFIRMED.




                                             4
