                                                                              FILED
                             NOT FOR PUBLICATION                              APR 22 2013

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50206

                Plaintiff - Appellee,            D.C. No. 3:11-cr-03698-JLS-1

  v.
                                                 MEMORANDUM*
SERGIO TELLO-CARRILLO,

                Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                        Argued and Submitted April 11, 2013
                                Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and ZOUHARY, District
Judge.**


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.




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      Sergio Tello-Carrillo (“Tello”) appeals his conviction of 8 U.S.C.

§ 1324(a)(2)(B)(ii) (Bringing in Illegal Aliens for Financial Gain) & 18 U.S.C. § 2

(Aiding and Abetting). Tello raises four challenges to his conviction. We reject

each challenge and affirm.

      1. Tello contends that the testimony of the Border Patrol agents raised the

inference that he was identified as a foot guide on the day of the incident because

he was already on a list of suspected foot guides. This inference, Tello argues,

violated the district court’s pre-trial ruling and thus constituted prosecutorial

misconduct. Tello argues further that this inference violated his Confrontation

Clause rights.

      Tello’s challenge fails for three reasons. First, the record does not support

Tello’s contention. Based on the totality of the agents’ testimony, a juror was just

as likely, if not more likely, to believe that Tello was identified as a foot guide on

the day of the incident because of his conduct that day, not because he was on a list

of suspected foot guides. Second, Tello has failed to identify a viable legal basis

for relief. The district court found that the government properly followed its pre-

trial ruling, thus foreclosing Tello’s theory of prosecutorial misconduct.

Additionally, the alleged inference is neither a testimonial statement nor hearsay,

and thus raises no Confrontation Clause concerns. Cf. Crawford v. Washington,


                                           2
541 U.S. 36, 59 & n.9 (2004). Finally, even if the inference were legally improper,

it was not sufficiently prejudicial to warrant a mistrial.

      2. Tello’s challenge to the admissibility of the rebuttal testimony of Agent

Acevedo is without merit. Because Acevedo’s testimony was based on his personal

experience and was relevant to assessing the plausibility of Tello’s defense theory,

it was admissible as lay testimony under Federal Rule of Evidence 701.

      3. Tello’s fair trial challenge based on the presence of Border Patrol agents

in the courtroom during closing argument is foreclosed by Holbrook v. Flynn, 475

U.S. 560 (1986), in which the Supreme Court held that the presence of uniformed

law enforcement officers was not “so inherently prejudicial as to pose an

unacceptable threat to defendant’s right to a fair trial.” Id. at 572. Here, the Border

Patrol agents were not even uniformed.

      4. Tello’s sufficiency of evidence challenge is likewise without merit. The

testimony of Leonila Gatica-Analco, when viewed “in the light most favorable to

the prosecution,” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en

banc), was adequate to allow “any rational trier of fact [to find] the essential

elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

      AFFIRMED.


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