                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            AUG 22 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   16-50074

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-01793-LAB-1
 v.

JUAN MANUEL CASTRO,                              MEMORANDUM*

              Defendant-Appellant.


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

                       Argued and Submitted August 8, 2017
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.

      1. The district court did not abuse its discretion by allowing the government

to reopen. See United States v. McQuisten, 795 F.2d 858, 863 (9th Cir. 1986). The

district court recognized that “reopening a case for the purpose of introducing

overlooked evidence must be done with extreme reluctance,” United States v.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Hernandez-Meza, 720 F.3d 760, 764 (9th Cir. 2013) (quoting Eason v. United

States, 281 F.2d 818, 822 (9th Cir. 1960)), and a “judge has to give reasons for

allowing the reopening” that are supported by the record.

      The district court correctly found that this case is distinct from

Hernandez-Meza. The district court allowed the government to reopen because the

government relied on the court’s potentially erroneous ruling on Castro’s chain-of-

custody objection. The timing weighed in favor of reopening because Castro had

not yet indicated whether he intended to put on a defense. “One purpose of Rule

29 motions is to alert the court to omitted proof so that, if it so chooses, it can

allow the government to submit additional evidence.” United States v.

Suarez-Rosario, 237 F.3d 1164, 1167 (9th Cir. 2001). Castro’s Rule 29 motion

served exactly this purpose.

      2. Any Confrontation Clause error in admitting the custody receipt and

DEA-7 form in this case was harmless beyond a reasonable doubt because there

was sufficient evidence of the chain of custody without these documents. See

United States v. Bustamante, 687 F.3d 1190, 1195 (9th Cir. 2012). In the

government’s initial case-in-chief, Customs and Border Protection Officer Olsen

testified that his canine alerted to Castro’s truck, and Officer Nacpil explained that

he removed twenty bricks of suspected drugs, individually wrapped in plastic


                                            2
tupperware containers, from the truck’s seat. The government introduced

photographs of the suspected drugs that Officer Nacpil took at the time of seizure.

The photographs show the relative size and color of the tupperware containers and

reveal that at least two of the containers had black writing on them.

      Although Officer Nacpil did not testify about what he did with the suspected

drugs after photographing them, Drug Enforcement Administration Forensic

Chemist Tarin-Brousseau explained the procedures used to transport suspected

drugs to the lab. Castro did not object when Tarin-Brousseau testified that she

tested the drugs in his case. The government introduced photographs that

Tarin-Brousseau took before conducting testing, which show tupperware

containers of the same approximate size and color as those Officer Nacpil seized.

The photographs also show that at least two of the bricks had black writing on

them. Castro did not introduce any evidence contradicting Tarin-Brousseau’s

testimony or suggesting that any agents listed on the chain-of-custody forms

actually mishandled the drugs.

      3. Finally, the district court did not abuse its discretion by overruling

Castro’s hearsay objection to the custody receipt and DEA-7 form. Officer

Nacpil’s photographs documenting the seizure and Tarin-Brousseau’s photographs

documenting the appearance of the drugs before testing show strong physical


                                          3
similarities. Castro did not offer any evidence contradicting the chain of custody

memorialized in the custody receipt and DEA-7 form. Therefore, Castro did not

meet his burden to show that the records are untrustworthy under Federal Rules of

Evidence 803(6) and (8). See United States v. Fryberg, 854 F.3d 1126, 1133 (9th

Cir. 2017).

      AFFIRMED.




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