                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50382

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-01804-LAB-1
 v.

JAIME MONZON-SILVA,                             MEMORANDUM*

                Defendant-Appellant.

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

                           Submitted January 22, 2020**
                              Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

      On January 16, 2018, and while driving northbound, Monzon-Silva was

ordered to proceed through secondary inspection at the San Clemente Border Patrol

checkpoint. As an agent began the inspection, a transmission on the agent’s radio

audibly reported that Monzon-Silva was a “wanted fugitive.” Immediately after that


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
transmission aired, Monzon-Silva fled the checkpoint. After a jury trial, he was

convicted of high-speed flight from an immigration checkpoint, 18 U.S.C. § 758,

which resulted in a sentence of five years of probation. We affirm.

      1.     The district court did not err in allowing the radio transmission into

evidence. The radio transmission was at the very least relevant to Monzon-Silva’s

motive for fleeing the checkpoint. See Fed. R. Evid. 401; United States v. Bradshaw,

690 F.2d 704, 708 (9th Cir. 1982). We reject Monzon-Silva’s argument that the

probative value of the radio transmission was “substantially outweighed” by its

“unfair prejudice.” Fed. R. Evid. 403. Exclusion of otherwise relevant evidence

under Rule 403 is “an extraordinary remedy to be used sparingly,” United States v.

Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (quotation omitted), and we review the

district court’s evidentiary ruling for abuse of discretion, United States v. Lindsay,

931 F.3d 852, 859 (9th Cir. 2019). Any potential prejudice here was effectively

mitigated by the parties’ stipulation on the record that Monzon-Silva was not, in fact,

a wanted fugitive, testimony from two witnesses indicating the same, and the district

court’s limiting instruction that the transmission was relevant only for assessing

motive. Moreover, given the ample evidence showing that Monzon-Silva fled the

checkpoint at a speed in excess of the legal speed limit—the only contested issue at

trial—any error would have been harmless. See, e.g., United States v. Gonzalez-

Flores, 418 F.3d 1093, 1099 (9th Cir. 2005).


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      2.     Monzon-Silva next argues that the district court erred in denying his

motion for mistrial after one officer briefly testified that the radio transmission

suggested Monzon-Silva had “some criminal history.” We review a district court’s

denial of a motion for mistrial for abuse of discretion. See United States v. Audette,

923 F.3d 1227, 1241 (9th Cir. 2019). When Monzon-Silva’s counsel objected to the

testimony, the court sustained the objection, struck the testimony, promptly

instructed the jurors to disregard it, confirmed with the jurors that they would do so,

and repeated the admonition during the final instructions.               Under these

circumstances, the district court did not abuse its discretion in denying Monzon-

Silva’s motion for mistrial.

      3.     Because we do not find any error in the district court’s rulings, we must

reject Monzon-Silva’s argument that the district court’s alleged cumulative errors

deprived him of a fair trial. United States v. Martinez-Martinez, 369 F.3d 1076,

1090 (9th Cir. 2004) (“[T]he ‘cumulative error’ analysis is inapposite to this case.

Defendant has failed to demonstrate any erroneous decisions by the trial court.”).

      AFFIRMED.




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