                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 20 2012

                                                                        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. 10-50515
             Plaintiff-Appellee,
                                                D.C. No. 3:10-cr-01580-LAB-1
      v.
                                                      MEMORANDUM *
ADALID RODRIGUEZ CARDENAS,

             Defendant-Appellant.




                      Appeal from United States District Court
                       for the Southern District of California
                      Larry A. Burns, District Judge, Presiding

                           Submitted November 9, 2012 **
                               Pasadena, California

Before: D.W. NELSON and O’SCANNLAIN, Circuit Judges, and Singleton,***
Senior District Judge.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
      ***
          Honorable James K. Singleton, Senior District Judge, District of Alaska,
sitting by designation.
      A jury convicted Adalid Rodriguez Cardenas (“Cardenas”) of importation of

methamphetamine (21 U.S.C. §§ 952, 960) and possession of methamphetamine

with the intent to distribute (21 U.S.C. § 841(a)). The District Court sentenced

Cardenas to a prison term of ten years.

      On appeal, Cardenas contends that the District Court erred in: (1) admitting

into evidence a cell phone; (2) refusing to strike irrelevant testimony of a

government witness concerning the witness’s “diligence”; (3) allowing into

evidence irrelevant testimony that Cardenas’s mother’s phone number was

conveyed to defense counsel; (4) permitting the jury to view a post-arrest video

recording of the questioning of Cardenas; (5) allowing the custodian of records to

testify concerning the reason that a cell phone would continue to record incoming

and outgoing calls after its seizure; (6) giving the Ninth Circuit model jury

instruction on circumstantial evidence over the objection of the defendant; (7) not

correcting the prosecution’s misstatement of the burden of proof; and (8) not

concluding that cumulative error requires reversal.

      We review evidentiary rulings of a district court for an abuse of discretion.

General Electric Co. v. Joiner, 522 U.S. 136, 141 (1997); United States v. Stinson,

647 F.3d 1196, 1210 (9th Cir. 2011). “We also review the district court’s handling

of closing arguments for an abuse of discretion.” Wagner v. Cnty. of Maricopa,



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673 F.3d 977, 984 (9th Cir. 2012) (citing United States v. Lazarenko, 564 F.3d

1026, 1043 (9th Cir. 2009)). “When a defendant has objected to a jury instruction

at trial, we review for an abuse of discretion.” United States v. Johnson, 610 F.3d

1138, 1148 (9th Cir. 2010).

      Admission of Cell Phone

      Cardenas correctly argues that there was no direct evidence introduced at

trial linking Cardenas to the cell phone, i.e., no evidence that the cell phone was in

his possession, actual or constructive, at the time it was seized, that it was

registered in his name, or that he gave the number of the cell phone as his

telephone number. The necessary connection between Cardenas and the cell

phone, however, can be established by either direct or circumstantial evidence.

United States v. Matta-Ballesteros, 71 F.3d 754, 768 (9th Cir. 1995), as amended,

98 F.3d 1100 (9th Cir. 1996). The circumstantial evidence concerning the location

of the calls made on March 11 and early on the morning of March 12 is sufficient

to establish a connection between the cell phone and Cardenas, and thus the

District Court did not err in admitting the evidence of the cell phone.

      Agent’s Testimony re: “Due Diligence” and Mother’s Telephone Number

      Cardenas’s contention that the District Court erred in refusing to strike

irrelevant testimony elicited from the investigating agent concerning her telephone



                                            3
contacts with his mother, son, two daughters, and the person believed to be

Cardenas’s wife is meritless. Absent some demonstrated prejudicial effect, i.e.,

that the admission of the evidence affected the jury’s verdict, the admission of

irrelevant evidence does not require reversal. See United States v. Tran, 568 F.3d

1156, 1162 (9th Cir. 2009). Cardenas’s argument concerning how the jury might

have considered the challenged testimony is based upon supposition and

conjecture.

      Likewise, the District Court did not err in admitting the agent’s testimony

that she provided Cardenas’s mother’s telephone number to defense counsel.

Cardenas fails to show any prejudice resulting from the admission of this

testimony.

      Introduction of the Post-arrest Interrogation Video

      We reject the argument that because the evidence could have been

introduced by less prejudicial means, other than the video, the District Court

abused its discretion. Cardenas’s reliance on United States v. Hernandez, 109 F.3d

1450, 1452 (9th Cir. 1997), is misplaced. Other than the fact that the jury viewed

the excerpts on three occasions, Cardenas presents no argument as to how the use

of the video was unfairly prejudicial. We do not manufacture legal arguments in




                                          4
support of an appellant’s claims. See W. Radio Servs. v. Qwest Corp., 678 F.3d

970, 979 (9th Cir. 2012).

      Testimony concerning Post-arrest use of the Cell Phone

      Cardenas’s contention that the testimony of the Sprint custodian of records

constituted “expert” testimony is similarly unsupported. Cardenas does not explain

how the custodian’s answers were not meaningful. Nor does Cardenas explain

how this made cross-examination ineffective. We agree with the Government that

any concern about the custodian’s knowledge goes to the weight of the testimony

and not its admissibility. Cf. United States v. Garcia, 7 F.3d 885, 890 (9th Cir.

1993) (“Ms. Clashin’s lack of particularized expertise goes to the weight accorded

her testimony, not to the admissibility of her opinion as an expert.” (citing United

States v. Little, 753 F.2d 1420, 1445 (9th Cir. 1984))).

      Circumstantial Evidence Instruction

      Cardenas’s argument that the District Court should have instructed the jury

using the California state instruction instead of the Ninth Circuit model jury

instruction is meritless. See United States v. Orozco-Acosta, 607 F.3d 1156, 1165-

66 (9th Cir. 2010), cert. denied, 131 S. Ct. 946 (2011).




                                          5
      Failure to Correct Prosecutor’s Misstatement of Burden of Proof

      Taken in the context of the court’s instructions and the prosecutor’s

arguments as a whole, the prosecutor made clear that the burden of proof was

beyond a reasonable doubt. Thus, Cardenas’s argument on this point fails.

      Cumulative Error

      Because the District Court committed no error, Cardenas is not entitled to

relief. See United States v. Romo-Chavez, 681 F.3d 955, 962 (9th Cir. 2012)

(citing United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007)).

      Accordingly, the decision of the district court is affirmed.

      AFFIRMED.




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