                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 02 2012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. 10-50554

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00410-JAH-1

  v.
                                                 MEMORANDUM *
CESAR MASCORRO,

              Defendant - Appellant.



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

                      Argued and Submitted January 10, 2012
                               Pasadena, California


Before:       KOZINSKI, Chief Judge, REINHARDT and W. FLETCHER,
              Circuit Judges.

       1. Mascorro’s own admission of his prior bad act provides sufficient proof

under Huddleston v. United States, 485 U.S. 681, 690 (1988), for admission of the

prior bad act into evidence. Admitting the evidence didn’t violate Federal Rule of

Evidence 404(b) because the prior bad act indicated both Mascorro’s knowledge

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                   page 2

that his passengers were in the United States unlawfully and his purpose to help

them remain. See United States v. Longoria, 624 F.2d 66, 69 (9th Cir. 1980). The

district court didn’t abuse its discretion in finding that the prejudicial effect of

admitting the prior bad act didn’t substantially outweigh its probative value. See

United States v. Ramirez-Jiminez, 967 F.2d 1321, 1327 (9th Cir. 1992).


      2. The grand jury instructions Mascorro challenges are indistinguishable

from those we’ve previously held not to be constitutionally defective. See United

States v. Caruto, 663 F.3d 394, 398–99 (9th Cir. 2011); United States v. Cortez-

Rivera, 454 F.3d 1038, 1040–41 (9th Cir. 2006); United States v. Navarro-Vargas,

408 F.3d 1184, 1187 (9th Cir. 2005) (en banc).


      AFFIRMED.
