                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                              FILED
                             FOR THE NINTH CIRCUIT
                                                                               NOV 04 2015
                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                          No. 14-50383

              Plaintiff - Appellee,                D.C. No. 3:13-cr-03517-JLS-1

       v.
                                                   MEMORANDUM*
LIZBETH GUTIERREZ,

              Defendant - Appellant.

                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                      Argued and Submitted September 3, 2015
                               Pasadena, California

Before: O’SCANNLAIN, FISHER and BYBEE, Circuit Judges.

      Lizbeth Gutierrez appeals her conviction for importing methamphetamine

and the district court’s denial of her post trial motions for an acquittal or new trial.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. The government’s disclosure of impeachment evidence regarding its

expert witness Goldberg did not violate Brady v. Maryland, 373 U.S. 83 (1963).


       *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Although the evidence was not disclosed until trial, Gutierrez was able to impeach

Goldberg during cross-examination, highlight the evidence in her closing argument

and recall Goldberg for further cross-examination. See United States v. Vgeri, 51

F.3d 876, 880 (9th Cir. 1995) (holding the disclosure of evidence during trial did

not violate Brady because the defendant could – and did – use the evidence on

cross-examination); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988)

(holding the disclosure of documents during trial did not violate Brady, in part,

because the defendant could “recall [the relevant witness] and reexamine him about

the documents”). Gutierrez has not persuasively shown any prejudice from the late

disclosure.

      2. The district court did not err in permitting Goldberg’s testimony to stand.

Striking the testimony would have been inappropriate because the government’s

untimely disclosure was merely an inadvertent mistake, resulting from an oversight

of Gutierrez’s withdrawal of her stipulation. See United States v. Finley, 301 F.3d

1000, 1018 (9th Cir. 2002) (holding a court should strike testimony only when the

violation is “willful and motivated by a desire to obtain a tactical advantage”

(quoting Taylor v. Illinois, 484 U.S. 400, 415 (1988))).

      3. The government was not required to prove Gutierrez knew the imported

substance was methamphetamine. Each of the arguments Gutierrez raises is


                                          2
foreclosed by United States v. Jefferson, 791 F.3d 1013, 1017-19 (9th Cir. 2015),

which held “a defendant’s knowledge of the type and quantity of the controlled

substance he imports is not . . . an element of the offense.” Id. at 1016; see also id.

at 1017-19.

      4. Gutierrez failed to raise in the district court her argument that the jury

instructions were impermissibly vague because they used the words “some other

prohibited drug” instead of “controlled substance.” The argument is therefore

waived. See Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015). Regardless, any

error in the jury instructions was harmless because no reasonable juror could have

found Gutierrez knew the imported substance was a “prohibited drug” generally

but not a “controlled substance” specifically.

      5. Because the district court did not err in admitting Goldberg’s testimony,

rejecting Gutierrez’s proposed jury instruction and finding there was no Brady

violation, Gutierrez’s remaining challenges necessarily fail.

      AFFIRMED.




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