                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10123

              Plaintiff - Appellee,              D.C. No. 4:14-cr-00507-RCC-
                                                 DTF-1
 v.

FRANCISCO GARCIA-GASTELUM,                       MEMORANDUM*
AKA Francisco Garcia,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                             Submitted May 10, 2016**
                              San Francisco, California

Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.

      Francisco Garcia-Gastelum appeals his conviction for illegal reentry by

challenging the trial judge’s decision, over objection, to permit the prosecution to

ask three questions to law enforcement witnesses on direct examination which

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Garcia-Gastelum argues were impermissible leading questions. We have

jurisdiction over an appeal from the district court’s entry of final judgment against

Garcia-Gastelum pursuant to 28 U.S.C. § 1291 and we AFFIRM.

      We review a district court’s decision to allow a leading question for abuse of

discretion. United States v. Castro-Romero, 964 F.2d 942, 943 (9th Cir. 1992) (per

curiam). Federal Rule of Evidence 611 regulates the use of leading questions in

federal court. The rule states that “leading questions should not be used on direct

examination except as necessary to develop the witness’s testimony.” Fed. R. Evid.

611(c). The district court is afforded broad discretion under this rule to permit the

use of leading questions on direct examination. Miller, 885 F.2d at 514. Courts

have recognized the appropriateness of allowing leading questions on direct

examination to establish “undisputed preliminary matters” or to elicit information

that does not substantially expand or alter earlier testimony elicited through non-

leading questions. Fed. R. Evid. 611, Advisory Committee Notes (1972); Miller,

885 F.2d at 515. Reversal on the basis of improper leading questions is only

appropriate if the district court’s ruling “amounted to, or contributed to, the denial

of a fair trial.” Miller v. Fairchild Indus. Inc., 885 F.2d 498, 514 (9th Cir. 1989) (as

amended) (quoting Cleary, ed., McCormick on Evidence at 12).




                                           2
      Even assuming the three questions Garcia-Gastelum challenges were leading

questions—and it is disputable whether Question 1 and Question 3 was

leading—none of the challenged questions were improper. Use of these questions

did not prejudice proceedings to the extent that the defendant did not receive a fair

trial. Questions 1 and 3 established an undisputed preliminary matter, and Question

2 elicited information that related to an undisputed matter previously explored in

detail on cross examination. It was not an abuse of discretion by the district court

to permit the prosecution to ask these three questions on direct examination.

Rather, it was within the sound discretion of the district court to allow these

questions as necessary to develop the witnesses’ testimony.

      AFFIRMED.




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