                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 17 2011

                                                                        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. 09-50394

                Plaintiff - Appellee,            D.C. No. 2:08-cr-00461-JFW-2

  v.
                                                 MEMORANDUM *
ZHI YONG GUO, aka Jackson,

                Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                      John F. Walter, District Judge, Presiding

                       Argued and Submitted November 1, 2010
                                Pasadena, California

Before: PREGERSON, RIPPLE,** and GRABER, Circuit Judges.

       A jury convicted Defendant Zhi Yong Guo of knowingly and willfully

conspiring to export, and attempting to export, ten export-controlled thermal

imaging cameras to China without a license. In an opinion published this date, we

uphold against a vagueness challenge the constitutionality of the statute of

            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
       **
             The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
conviction. In this disposition, we consider Defendant’s remaining claims, none of

which persuades us to reverse his conviction.

      1. The district court properly overruled Defendant’s objection under Batson

v. Kentucky, 476 U.S. 79 (1986). The court correctly engaged in the three-step

process for determining whether the government had challenged the juror because

of her race. See id. at 96-98. The government offered two race-neutral reasons for

its challenge, which Defendant did not rebut. No retained juror possessed the same

characteristics as the challenged juror, and the government did not challenge two

other jurors of Chinese descent. Accordingly, the court permissibly ruled that

Defendant had failed to prove a discriminatory purpose.

      2. The district court properly denied Defendant’s motion to excuse a juror

for cause. The juror’s part-time work as a deputy sheriff, by itself, did not imply

bias as a matter of law. United States v. Le Pera, 443 F.2d 810, 812 (9th Cir.

1971). The juror unequivocally swore that he could make a judgment based on the

evidence, rather than on his general views of law enforcement witnesses and

defense lawyers. The district court did not abuse its discretion by relying on the

juror’s unequivocal answers. United States v. Alexander, 48 F.3d 1477, 1484 (9th

Cir. 1995).




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      3. The district court permissibly overruled Defendant’s objection to

evidence of his relationship with Evan Zhang. This evidence fell within the

exception to the bar on "other acts" evidence in Federal Rule of Evidence 404(b)

and was corroborated. United States v. Hollis, 490 F.3d 1149, 1152–53 (9th Cir.

2007). The district court did not abuse its discretion in ruling that the risk of

confusion did not outweigh the high probative value of the evidence. United States

v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc).

      4. The district court permissibly overruled Defendant’s objection to Zhang’s

testimony regarding statements allegedly made by Chen and Zhu. A

preponderance of the evidence supported the district court’s conclusion that those

statements qualified as statements of co-conspirators made during, and in

furtherance of, a single conspiracy under Federal Rule of Evidence 801(d)(2)(E).

For this reason, we reject Defendant’s Confrontation Clause challenge. United

States v. Bridgeforth, 441 F.3d 864, 868–69 (9th Cir. 2006).

      5. The district court properly allowed evidence establishing the

government’s reasons for regulating the export of thermal imaging cameras. The

evidence regarding the control reasons was relevant to whether the cameras in

Defendant’s possession at the time of his arrest fell within the export-control

regulations.


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      The district court erred, however, by allowing prejudicial testimony relating

to potentially dangerous applications of the technology. In addition to having little

or no probative value, this testimony was highly prejudicial and did not show

anything about what Defendant or the intended recipients planned to do with the

technology. Nonetheless, because Defendant failed to object, we review only for

plain error, United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987), and find

none. See United States v. Bracy, 67 F.3d 1421, 1433 (9th Cir. 1995) (holding that

the trial court did not plainly err by allowing improper character evidence because

"[t]here was plenty of other evidence connecting the defendants" to the crime).

      6. The district court permissibly excluded Defendant’s proposed expert

testimony. Defendant failed to show that the expert had used reliable methods and

that those methods had been applied to the facts in this case. See United States v.

Curtin, 588 F.3d 993, 997–98 (9th Cir. 2009).

      7. There being only one arguable error, Defendant’s argument that

cumulative error requires reversal has no purchase.

      AFFIRMED.




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