                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                                 SEP 24 2013

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

UNITED STATES OF AMERICA,                        No. 12-10186

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01428-FJM-1

  v.
                                                 MEMORANDUM*
JOSE ROSENDO SEGUNDO-
ORELLANA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                     Argued and Submitted September 9, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BATTAGLIA, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
      Defendant Jose Segundo-Orellana was convicted of possession of cocaine

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(ii)(II). Segundo asserts six bases for reversal of his conviction on appeal:

(1) an alleged violation of Federal Rule of Criminal Procedure 16(a)(1)(G); (2) the

decision to allow certain expert testimony at trial; (3) the decision to give a

deliberate ignorance instruction; (4) various instances of alleged prosecutorial

misconduct; (5) the denial of Segundo’s motion to suppress; and (6) the denial of

Segundo’s request for an evidentiary hearing on his motion to suppress. For the

reasons that follow, we affirm.

1.    Federal Rule of Criminal Procedure 16(a)(1)(G)

      We review discovery rulings under Rule 16 for abuse of discretion. See

United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir. 2003). “To reverse a

conviction for a discovery violation, [the court] must find not only that the district

court abused its discretion, but that the error resulted in prejudice to substantial

rights.” United States v. Baker, 10 F.3d 1374, 1398 (9th Cir. 1993), overruled on

other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). “The

prejudice that must be shown to justify reversal for a discovery violation is a

likelihood that the verdict would have been different had the government complied

with the discovery rules, not had the evidence been suppressed.” Id. at 1398 n.8.


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      Even assuming, arguendo, that the government failed to disclose its experts

opinions and the bases and reasons for those opinions, as required by Rule 16

(a)(1)(G), Segundo has not shown the requisite degree of prejudice. Segundo was

on notice of the potential use and content of blind mule testimony, and he did not

object to the drug front testimony at trial. Therefore, Segundo cannot show a

likelihood that the verdict would have been different had the government complied

with Rule 16 (a)(1)(G).

2.    Expert testimony

      A district court’s decision to admit expert or lay opinion testimony is

reviewed for an abuse of discretion and will be reversed only if manifestly

erroneous. United States v. Gonzalez, 307 F.3d 906, 909 (9th Cir. 2002).

      Agent Gorgue was qualified to testify as an expert on trucking based on his

experience as a Border Patrol agent. See Fed. R. Evid. 702. When Agent Gorgue

testified at trial, he had been a Border Patrol agent for over six years and had talked

with hundreds, if not thousands, of truckers as part of his job. Moreover, Agent

Gorgue sufficiently explained how his experience had led to the conclusions he

reached. Furthermore, some of the testimony to which Segundo now objects was

not expert testimony at all, including Agent Gorgue’s testimony regarding the

existence of lumber mills in Gadsen.


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      DEA Agent Michael Boyne was qualified to testify as an expert on drug

trafficking organizations (“DTOs”) based on his experience, too. See id. When

Agent Boyne testified at trial, he had been a DEA agent for fifteen months; he had

completed a nineteen-week program at the DEA Training Academy that included

courses on the characteristics of the modern-day drug trafficker; and he had been a

“part of” eight investigations and had “assist[ed]” on twenty to thirty

investigations. This experience was sufficient under Rule 702, and any weaknesses

in Agent Boyne’s experience were properly addressed through cross-examination

and limiting instructions to the jury. And as with Agent Gorgue, Agent Boyne’s

remaining testimony was not expert in nature. Accordingly, the district court did

not abuse its discretion by allowing Agents Gorgue and Boyne to testify as experts.

3.    Deliberate ignorance instruction

      A district court’s decision to give a deliberate ignorance instruction is

reviewed for abuse of discretion. See United States v. Heredia, 483 F.3d 913, 921

(9th Cir. 2007) (en banc). If the district court decides to give a deliberate ignorance

instruction in addition to an actual knowledge instruction, it must find that “the

jury could rationally find willful blindness even though it has rejected the

government's evidence of actual knowledge.” Id. at 922.




                                           4
      The government adduced more than sufficient evidence at trial to support a

deliberate ignorance instruction. This evidence included Segundo’s admission that

the circumstances surrounding his trip seemed odd to him, his suspicious answers

and outright lies to the Border Patrol agents, and his “deer in the headlight look”

when the agents requested his assistance. Therefore, viewing the evidence in the

light most favorable to the government, see id., the district court did not abuse its

discretion by giving a deliberate ignorance instruction here.

4.    Prosecutorial Misconduct

      Because Segundo failed to object at trial, we review his claims of

prosecutorial misconduct for plain error. See United States v. Moreland, 622 F.3d

1147, 1158 (9th Cir. 2010). “Under the plain error standard, relief is not warranted

unless there has been: (1) ‘error,’ (2) that was ‘plain,’ (3) that affected ‘substantial

rights,’ and (4) that ‘seriously affected the fairness, integrity, or public reputation

of the judicial proceedings.’” Id. (quoting United States v. Recio, 371 F.3d 1093,

1100 (9th Cir. 2004)).

      Segundo cannot satisfy his burden under the plain error standard. The

prosecutor’s cross-examination of the defense expert regarding his testimony in a

prior lawsuit was probative of the expert’s character for truthfulness and thus

appropriate under Federal Rule of Evidence 608(b). Moreover, the prosecutor’s


                                            5
statement that Segundo was not a willing cooperator and that Segundo knew there

was no dispatch to call for a delivery address were “reasonable inferences based on

the evidence,” not prosecutorial misconduct. United States v. Molina, 934 F.2d

1440, 1445 (9th Cir. 1991). Similarly, the prosecutor’s comments regarding the

burden of proof and the defense’s “hammer[ing] of the prosecution” were well

within the reasonable latitude afforded to prosecutors in fashioning closing

arguments. See id. As a result, there was no error that might warrant reversal.

5.    Motion to suppress

      “We review the district court’s denial of [a] motion to suppress de novo and

the district court’s underlying factual findings for clear error.” United States v.

Giberson, 527 F.3d 882, 886 (9th Cir. 2008). A stop at a permanent Border Patrol

checkpoint “is reasonable per se, so long as the scope of detention remains

confined to a few brief questions, the possible production of a document indicating

the detainee’s lawful presence in the United States, and a ‘visual inspection of the

vehicle . . . limited to what can be seen without a search.’” United States v. Taylor,

934 F.2d 218, 220 (9th Cir. 1991) (quoting United States v. Martinez-Fuerte, 428

U.S. 543, 558 (1976)).

      Agent Siddens limited his detention of Segundo to a few brief questions

before referring the truck for a secondary inspection. Agent Siddens did not need


                                           6
individualized suspicion, see United States v. Wilson, 7 F.3d 828, 833 (9th Cir.

1993), and even if he had needed it, Segundo’s suspicious answers and his

passenger’s nervous conduct would have provided it. Agent Gorgue likewise

limited his detention of Segundo to a few brief questions before obtaining consent

to search the truck. Agent Gorgue did not need articulable suspicion to ask

Segundo a few brief questions, and Segundo’s responses to these initial questions

then provided the articulable suspicion required to further extend the stop. At that

point, Segundo voluntarily consented to the search of his truck. As a result, neither

agent violated Segundo’s Fourth Amendment rights, and the district court correctly

denied Segundo’s motion to suppress.

6.     Evidentiary hearing

       A district court’s decision not to conduct an evidentiary hearing on a motion

to suppress is reviewed for abuse of discretion. United States v. Howell, 231 F.3d

615, 620 (9th Cir. 2000). “An evidentiary hearing on a motion to suppress need be

held only when the moving papers allege facts with sufficient definiteness, clarity,

and specificity to enable the trial court to conclude that contested issues of fact

exist.” Id.




                                           7
      Because the facts essential to the district court’s analysis were uncontested,

the district court did not abuse its discretion by deciding not to conduct an

evidentiary hearing on Segundo’s motion to suppress.

      AFFIRMED.




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