                                                                             FILED
                            NOT FOR PUBLICATION                                 JUL 02 2012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. 09-50574

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00578-JFW-3

  v.
                                                 MEMORANDUM *
HORACIO YEPIZ, AKA Little Horse,
AKA Alberto Rodriguez, AKA Seal C,

              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 16, 2011
                               Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior
District Judge.**

       Appellant Horacio Yepiz (Yepiz) challenges his convictions for

racketeering, violence in aid of a racketeering enterprise, and conspiracy to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Mills, Senior U.S. District Judge for the
Central District of Illinois, sitting by designation.
distribute cocaine. Yepiz maintains that the district court erred in excluding the

testimony of Yepiz’s mental health expert, and in admitting, as a prior consistent

statement, the testimony of the murder victim’s mother that she was told that Yepiz

committed the murder. Yepiz also asserts that there was insufficient evidence to

support his conviction for conspiracy to distribute cocaine, as the government

failed to sufficiently prove the single conspiracy alleged in the indictment. We

have jurisdiction and affirm the convictions.1




1.    The district court did not abuse its discretion in excluding Yepiz’s proffered

expert testimony because Yepiz “did not sufficiently show how [the expert’s]

testimony would have applied to the facts of his case. . . .” United States v.

Redlightning, 624 F.3d 1090, 1111 (9th Cir. 2010); see also United States v.

Scholl, 166 F.3d 964, 971 (9th Cir. 1999), as amended. In any event, even if the

district court erred in excluding the expert’s testimony, “it is more probable than

not that the error did not materially affect the verdict” in light of the strong

evidence against Yepiz. United States v. Laurienti, 611 F.3d 530, 549 (9th Cir.

2010) (citation omitted).



      1
         Yepiz’s challenge to the jury selection process is addressed in an opinion
filed contemporaneously with this disposition.

                                            2
      Alternatively, the district court properly held that the expert’s testimony was

excludable because its probative value was “outweighed by a danger of . . . unfair

prejudice, confusion of the issues, [or] misleading the jury . . .” Fed. R. Evid. 403;

see also United States v. Ramirez-Robles, 386 F.3d 1234, 1245 (9th Cir. 2004).




2.    The district court did not plainly err in permitting a witness to testify

regarding the prior consistent statement of a cooperating witness who had been

impeached based on his plea agreement and cooperation with the government. See

United States v. Washington, 462 F.3d 1124, 1135 (9th Cir. 2006).

      In any event, any error was harmless as the prior consistent statement had

already been mentioned to the jury prior to the testimony at issue, and the

statement was cumulative of another witness’ testimony. See United States v.

Beltran, 165 F.3d 1266, 1270 (9th Cir. 1999), as amended (holding that “even if

the admission of the prior consistent statements was error, considering that at least

one of the statements was already mentioned in front of the jury by Appellant’s

counsel, the error was harmless.”).




3.    There was sufficient evidence to support Yepiz’s conviction for the single

narcotics conspiracy alleged in the indictment, as the government sufficiently


                                           3
demonstrated that Yepiz “was involved in a broad project to distribute cocaine and

that his benefit depended on the success of the operation.” United States v.

Shabani, 48 F.3d 401, 403 (9th Cir. 1995), as amended (citation omitted).




4.     The district court did not plainly err in failing to provide a multiple

conspiracies instruction as the government sufficiently demonstrated that Yepiz

was involved in the single conspiracy alleged in the indictment. See United States

v. Mincoff, 574 F.3d 1186, 1196 (9th Cir. 2009).




5.     Yepiz waived any challenge to a statute of limitations instruction under the

invited error doctrine by informing the district court that, for strategic reasons, the

instruction was not required. See Laurienti, 611 F.3d at 544-45.




6.     Yepiz waived any challenge to the sufficiency of the evidence premised on

the statute of limitations by failing to raise a statute of limitations defense during

his trial. See United States v. Hickey, 580 F.3d 922, 928 n.1 (9th Cir. 2009) (“The

statute of limitations is an affirmative defense that is waived if it is not raised at

trial, so [Yepiz] forfeited this argument.”) (citation omitted). In any event, the




                                            4
government sufficiently demonstrated that Yepiz was involved in narcotics

trafficking within the statute of limitations period.

      AFFIRMED.




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