                                                                           FILED
                           NOT FOR PUBLICATION                              APR 28 2010

                                                                        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. 08-50577

              Plaintiff - Appellee,              D.C. No. 8:05-cr-00290-JVS-3

  v.
                                                 MEMORANDUM *
ANDRES ZARATE-MORALES, AKA
Seal C, AKA Acapulco,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-50221

              Plaintiff - Appellee,              D.C. No. 8:05-cr-00290-JVS-6

  v.

AUGUSTIN OSUNA-RUELAS, AKA
Seal F, AKA Tin,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted January 15, 2010
                                Pasadena, California

Before: GOODWIN, SCHROEDER, and FISHER, Circuit Judges.

      Defendants Andres Zarate-Morales and Augustino Osuna-Ruelas

(collectively “Defendants”) appeal from their convictions for conspiracy to

transport and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(i).

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

      At trial, the Government called ICE Special Agent Gregory Barr to testify as

an expert witness. Agent Barr’s qualifications include twenty-one years with ICE

(formerly INS) as a special agent and three years with the U.S. Border Patrol as a

special agent. He testified that his opinions were based on his experiences, as well

as information obtained from two confidential informants. The confidential

informants provided information regarding one of the leaders of the smuggling

organization, but the information “had nothing to do with either of the

[D]efendants.” Agent Barr further testified that he was able to separate the

knowledge he acquired from the confidential informants from his other knowledge,

and his testimony and opinions would not change if he disregarded the information

from the confidential informants. Agent Barr refused to disclose the identities of

the confidential informants out of fear for their safety, and the district court did not



                                            2
order disclosure. However, the district court did allow defense counsel to cross-

examine Agent Barr about the confidential informants and elicit that one

confidential informant had a felony alien smuggling conviction, the other had a

misdemeanor battery conviction, and that both confidential informants provided

information in order to benefit themselves regarding their own possible

prosecutions.

      Defendants first argue that the district court violated their Confrontation

Clause rights and abused its discretion under Federal Rule of Evidence 705 by

allowing Agent Barr to testify based on confidential informant information without

ordering disclosure of the confidential informants’ identities. Such errors are

reviewed under the harmless error standard. See United States v. Larson, 495 F.3d

1094, 1107 (9th Cir. 2007). Assuming, arguendo, that an error occurred, it was

harmless because Agent Barr testified that his testimony would not change even if

he disregarded the information from the confidential informants.

      Defendants next argue that the district court abused its discretion by

allowing Agent Barr’s expert testimony because he repeated hearsay without

applying any expertise. An expert may be used to testify to matters outside the

expected knowledge of the average juror. Fed. R. Evid. 702; United States v.

Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). Expert witnesses may rely on


                                          3
inadmissible hearsay in forming their opinions, so long as it is of a type reasonably

relied upon by experts in their field. Fed. R. Evid. 703; Hankey, 203 F.3d at 1169.

For example, law enforcement agents testifying as experts may rely on

inadmissible hearsay in describing the structure and operations of a criminal

organization. Id.

      Here, Agent Barr testified that scouts often observe remote areas for law

enforcement activity before a crossing, family members in the United States

typically pay the smuggling fee after the alien arrives, Western Union is often used

for payment, and exchanges usually happen in large and busy parking lots. He

further testified as to the amount of a typical fee and why smugglers prefer smaller

airports. Thus, Agent Barr used his knowledge as a law enforcement official to

explain matters outside the expected knowledge of the average juror, and his

testimony was properly admitted.

      Finally, Defendants argue that the district court violated their due process

rights by not ordering disclosure of the confidential informants’ identities or, at a

minimum, holding an in camera hearing on the issue. The burden of proving a

need for disclosure is on the defendant, and it is not satisfied if the defendant raises

a mere suspicion that the identities might be helpful. United States v. Kim, 577

F.2d 473, 478–79 (9th Cir. 1978).


                                           4
      Here, Defendants raise no more than a speculative argument that the

confidential informants could know that Defendants were not members of the

conspiracy. Moreover, even this speculative argument was not raised to the district

court. Therefore, the district court did not err by declining to hold an in camera

hearing or ordering disclosure of the confidential informants’ identities.

AFFIRMED.




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