                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 05 2013

                                                                        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. 12-50195

              Plaintiff - Appellee,              D.C. No. 3:11-cr-02084-AJB-1

  v.
                                                 MEMORANDUM *
ISRAEL NAVA-ARELLANO,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                              Submitted June 3, 2013 **
                                Pasadena, California

Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.

       Israel Nava-Arellano appeals his conviction and sentence imposed for felony

illegal entry following a prior illegal entry in violation of 8 U.S.C. § 1325. He

appeals his conviction and sentence. We have jurisdiction under 18 U.S.C. § 3742


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the

facts of this case, we need not recount them here.

                                          I

      The district court did not abuse its discretion by excluding Nava-Arellano’s

proffered documents under Federal Rule of Evidence 403. First, the district court

did not legally err by failing to expressly acknowledge that evidence is excluded

under Rule 403 only if the dangers “substantially outweigh” the probative value of

the evidence. United States v. Daly, 974 F.2d 1215, 1217 (9th Cir. 1992) (“The

district court need not recite the Rule 403 test when balancing the probative value

of evidence.”).

      Second, the record supports the district court’s determination that the

probative value of the proffered evidence was substantially outweighed by the

potential for confusion and undue delay. The documents—eight pages of website

printouts concerning the U.S. government’s general capability to conduct

surveillance of the U.S.-Mexico border using unmanned aircraft—had almost no

probative value with regard to whether a surveillance aircraft actually observed

Nava-Arellano continuously from the moment he crossed the border until the

moment he was apprehended. Where evidence has marginal probative value, even

a modest risk of undue delay or confusion will justify excluding the evidence under


                                         -2-
Rule 403. United States v. Espinoza-Baza, 647 F.3d 1182, 1190 (9th Cir. 2011).

The district court’s decision to exclude the website printouts was not “beyond the

pale of reasonable justification under the circumstances.” Id. at 1189.

      Nor did the exclusion amount to a violation of Nava-Arellano’s fundamental

right to present a defense. In fact, the district court expressly left the door open for

Nava-Arellano to present other evidence to justify an official restraint jury

instruction, and it even encouraged the government to ask its witnesses whether

Nava-Arellano had been observed by unmanned aircraft or other surveillance

assets. See United States v. Castellanos-Garcia, 270 F.3d 773, 777 (9th Cir. 2001)

(finding that the district court did not preclude the defendant from presenting

evidence to support official restraint when the district suggested that the defendant

“ask some other agent” about the government’s use of other surveillance assets).

                                           II

      The district court did not abuse its discretion in refusing to give an official

restraint jury instruction. There was no evidence from which the jury could

rationally infer that Nava-Arellano was under constant surveillance from the time

he crossed the border to the time he was apprehended. The National Guardsmen

who first spotted him testified that they did not see him cross the border, and that

they lost his thermal image when thick fog rolled in. The Border Patrol agent who


                                           -3-
apprehended Nava-Arellano testified that if surveillance drones or other advanced

assets had been used, he would have noted them in his field report, which he did

not. Therefore, during the thirty or forty minutes it took Border Patrol agents to

locate and apprehend him, Nava-Arellano was outside the detection of government

authorities. Nava-Arellano’s speculation that there could have been surveillance

by unmanned aircraft or other assets is not evidence. Castellanos-Garcia, 270

F.3d at 776.

                                          III

      The district court did not abuse its discretion by admitting, without Nava-

Arellano’s proposed limiting instructions, redacted documents showing his

alienage, past removal, and prior convictions for illegal entry. The documents

contained only the information necessary to establish the essential elements of the

offense under 8 U.S.C. § 1325, so the proposed limiting instructions were neither

necessary nor appropriate. Any prejudice resulting from the admission of evidence

that Nava-Arellano had two prior illegal entry convictions, rather than just one,

was not reversible error because it did not likely affect the jury’s verdict. United

States v. Hinkson, 585 F.3d 1247, 1282 (9th Cir. 2009) (en banc).




                                          -4-
                                        IV

      The district court did not abuse its discretion by sentencing Nava-Arellano to

the low end of the U.S. Sentencing Guidelines range and imposing one year of

supervised release as an added deterrent. United States v. Valdavinos-Torres, 704

F.3d 679, 693 (9th Cir. 2012).




      AFFIRMED.




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