                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              SEP 15 2010

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

UNITED STATES OF AMERICA,                        No. 09-50463

              Plaintiff - Appellee,              D.C. No. 3:08-cr-00546-BEN-2

  v.
                                                 MEMORANDUM*
ARTURO MORENO, Jr.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted August 31, 2010
                              Pasadena, California

Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.

       Arturo Moreno, Jr., appeals his jury convictions for bringing illegal aliens to

the United States for private financial gain, and for aiding and abetting the same.

See 8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 2. He also appeals his jury

convictions for transporting illegal aliens within the United States, for aiding and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
abetting the same, and for conspiracy to bring illegal aliens to the United States for

private financial gain. See 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II),

(a)(2)(B)(ii); 18 U.S.C. § 371. We have jurisdiction under 28 U.S.C. § 1291.

Because the facts are known to the parties, we repeat them here only as necessary.

      Moreno argues that the district court erred by not dismissing the indictment

because of two alleged Speedy Trial Act violations. See 18 U.S.C. §§ 3161–3174.

We conclude that no violation occurred. “A charge contained in a superseding

indictment which was not included in the original complaint does not violate the

Speedy Trial Act.” United States v. Gastelum-Almeida, 298 F.3d 1167, 1173 (9th

Cir. 2002). Moreno’s reliance on Palomba is unpersuasive because the charged

offenses are punishable under different statutes. See United States v. Palomba, 31

F.3d 1456, 1464 (9th Cir. 1994). Furthermore, Moreno is bound by the April 18

motion requested by co-defendant Ortiz in which Moreno expressly joined, thereby

tolling the clock. The district court’s decision not to dismiss the indictment was

not error.

      Moreno also contends that the grand jury was improperly instructed not to

consider punishment when determining whether to indict and that the district court

erred in failing to dismiss the indictment. This issue is moot because the




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indictment in question was dismissed and Moreno was convicted on the basis of a

superseding indictment. See Gastelum-Almeida, 298 F.3d at 1173.

      Moreno next argues that the district court erred by failing to order that a

psychiatric report be disclosed to him in its entirety. This decision was not clear

error. See United States v. Shryock, 342 F.3d 948, 983 (9th Cir. 2003). We have

reviewed the psychiatric report and we conclude that the undisclosed portions were

not relevant exculpatory or impeachment material and were not otherwise

favorable to Moreno.

      Moreno finally argues that the district court erred when it denied his motion

for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. We

disagree. Viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      AFFIRMED.




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