                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 29 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 11-50383

              Plaintiff - Appellee,             D.C. No. 2:10-cr-01106-JFW-3

       v.
                                                MEMORANDUM*
HARRY HUMPHRIES,

              Defendant - Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                        Argued and Submitted May 8, 2013
                              Pasadena, California

Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, District
        Judge.**

      Harry Humphries appeals his conviction for one count of illegally storing

hazardous waste without a permit in violation of the Resource Conservation and




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
          The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.
Recovery Act, 42 U.S.C. 6928(d)(2). For the reasons stated below and in a

concurrently filed opinion, we affirm the conviction.

      1.     The district court did not abuse its discretion under Federal Rule of

Evidence 701 by allowing lay witness Ernest Reguly to testify that he observed

“waste” at Humphries’ company. Moreover, even if the district court improperly

admitted the evidence, any error was harmless in light of Humphries’ own

testimony that the chemicals were considered “waste” during the same time period.

Trial Tr. at 159-60, 178, 184.

      2.     The district court did not plainly err by failing to sua sponte exclude

Reguly’s testimony referring to tests that had been conducted to determine that the

used chemicals were waste. Although Humphries contends that Reguly’s

testimony constituted improper vouching, he cites no authority applying this

concept when a witness, without being solicited to do so by the prosecutor, refers

to information that was not presented to the jury in an effort to buttress his own

opinion testimony. Even if it was error to allow the testimony, any error was

harmless.

      3.     The district court did not abuse its discretion by excluding certain

aspects of the testimony of Humphries’ proposed expert, John Matthews. The




                                          2
topics to which Humphries argues his expert should have been able to testify were

irrelevant, cumulative or would have confused the jury.

      4.     The district court did not abuse its discretion by admitting evidence

under Federal Rule of Evidence Rule 404(b). The evidence of Humphries’ 1992

hazardous waste violation was probative of Humphries’ knowledge, not too remote

in time and sufficiently similar to the violations charged in the current prosecution.

      AFFIRMED.




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