                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                              FILED
                            FOR THE NINTH CIRCUIT                               MAY 25 2011

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

UNITED STATES OF AMERICA,                        No. 10-50173

              Plaintiff - Appellee,              D.C. No. 3:09-cr-02487-MMA-1

  v.
                                                 MEMORANDUM*
ANTONIO REYES,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                        Argued and Submitted May 4, 2011
                              Pasadena, California

Before: PREGERSON, FISHER, and BERZON, Circuit Judges.

       Antonio Reyes appeals his conviction in federal district court for importation

of marijuana under 21 U.S.C. §§ 952 and 960. We affirm.

       The district court properly excluded the case agent’s reference to the

“federal game” as irrelevant when read in context. See Fed. R. Evid. 402. The



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court also properly excluded Reyes’s statement to the case agent

concerning a culpable third party as self-serving hearsay. See United States v.

Mitchell, 502 F.3d 931, 964-65 (9th Cir. 2007). Because the district court correctly

applied the Federal Rules of Evidence, Reyes cannot raise a constitutional claim by

arguing that these exclusions violated his right to present a defense. See United

States v. Waters, 627 F.3d 345, 352-53 (9th Cir. 2010). Moreover, the record does

not support Reyes’s contention that the district court otherwise limited his cross-

examination of the case agent.

      The government’s use at trial of Reyes’s cell site location information raises

important and troublesome privacy questions not yet addressed by this court. But

the issue is not properly before us. Under Federal Rule of Criminal Procedure 12,

any ground to suppress evidence not expressly raised in a pre-trial motion is

waived. See United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). Reyes

never raised a Fourth Amendment objection before trial. Reyes’s filings indicated

an intent to research possible Fourth Amendment claims, but he did not actually

raise a Fourth Amendment claim when he moved to suppress the cell site location

data. Although we may consider an issue otherwise waived under Rule 12 for

cause shown, see id., Reyes has given no reason for his failure to raise a Fourth

Amendment objection before the district court. Thus, “we will not now consider


                                          2
this argument.” Id.

      Reyes did not object at trial to the testimony of his cellular telephone service

provider’s custodian of records, and thus we review only for plain error. See

United States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir. 1999). We conclude

that any error in the admission of the custodian’s testimony did not affect Reyes’s

substantial rights. The 170 pounds of marijuana hidden in the vehicle Reyes drove

across the border was “independent, overwhelming physical evidence” of his guilt.

United States v. Whitehead, 200 F.3d 634, 639 (9th Cir. 2000) (affirming

conviction on plain error review because the evidence of 55 pounds of marijuana

concealed in defendant’s car “was virtually conclusive of guilt”).

      The district court did not abuse its discretion in allowing the government to

admit evidence produced six days before trial. Reyes points to no authority

indicating that six days is insufficient time under the discovery requirements of

Federal Rule of Criminal Procedure 16. Moreover, the district court offered Reyes

a continuance to prepare a defense to the new evidence, which Reyes’s attorney

declined.

      AFFIRMED.




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