                                                                              FILED
                           NOT FOR PUBLICATION                                APR 09 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10060

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00773-GMS-1

  v.
                                                 MEMORANDUM*
MIGUEL QUINTERO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    G. Murray Snow, District Judge, Presiding

                             Submitted April 7, 2014**
                             San Francisco, California

Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.



       Miguel Quintero appeals his convictions for importing heroin in violation of

21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1)(A), and for possession with intent to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i). We have

jurisdiction under 28 U.S.C. § 1291. Because Quintero failed to raise any relevant

objections below,1 we review for plain error. See United States v. Sherwood, 98

F.3d 402, 408 (9th Cir. 1996). We affirm.



      First, the district court did not commit plain error by allowing Agent Evans

to testify about the structure and modus operandi of drug trafficking organizations.

Quintero did not object to any of this testimony and the testimony was relevant to

the defendant’s knowledge of the drugs found within his car, see United States v.

Sepulveda-Barraza, 645 F.3d 1066, 1072–73 (9th Cir. 2011). We need not decide

whether admitting the testimony over objection would have been erroneous. Error,

if any, was not “plain.” Nor could the district court have discerned whether

Quintero had some tactical reason for not objecting.

      1
         Quintero does assign error to the district court’s admission of Agent
Sandor’s testimony that he would not expect drug couriers to leave fingerprints.
While Quintero did object to this testimony for lack of foundation, he makes no
argument for why the district court’s decision to overrule that objection was
incorrect or why it was an abuse of discretion. Nor does he cite any authority in the
section of his brief addressing this issue. See Fed. R. App. P. 28(a)(8)(A) (The
opening brief must contain “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.”)
(emphasis added). Thus, this argument is waived. See Ind. Towers of Washington
v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any
claims that were not actually argued in appellant’s opening brief.”).

                                          2
      Quintero’s argument that the district court failed to conduct Rule 403

balancing also fails because Quintero did not make a Rule 403 objection to Agent

Evans’s testimony. Our decisions in Vallejo and McGowan do not control because

Agent Evans’s testimony was “probative of a matter properly before the court,”

namely, whether Quintero had knowledge of the heroin concealed within the drive

shaft of his car. See United States v. McGowan, 274 F.3d 1251, 1254 (9th Cir.

2001) (quoting United States v. Vallejo, 237 F.3d 1008, 1012 (9th Cir. 2001)).



      Quintero also argues that Agent Evans’s testimony that drug trafficking

organizations do not use blind mules violated Rule 704(b), which prohibits an

expert witness from offering an “opinion about whether the defendant did or did

not have a mental state or condition that constitutes an element of the crime

charged or of a defense.” Assuming that Agent Evans qualifies as an expert witness

within the scope of Rule 704(b), the district court did not commit plain error by

admitting this testimony. See United States v. Gomez, 725 F.3d 1121, 1128 (9th

Cir. 2013).




                                         3
      Next, the district court did not commit plain error in allowing the

government’s expert to relay the content of out-of-court statements of drug

informants made during the course of unrelated investigations. An expert witness

may form his or her opinion on the basis of inadmissible evidence and may

sometimes disclose that evidence to the jury. Fed. R. Evid. 703. Here, the

statements were not made in connection with Quintero’s prosecution, so it is far

from clear that they implicate the Confrontation Clause at all. See Crawford v.

Washington, 541 U.S. 36, 51 (2004) (The Confrontation Clause “applies to

‘witnesses’ against the accused[.]”) (emphasis added). Even if the Confrontation

Clause is implicated here, we cannot say that this testimony was “so clearly in

violation of the Confrontation Clause that the district court should have recognized

the violation sua sponte.” Gomez, 725 F.3d at 1130. Allowing this testimony was

not plain error. See id. at 1129–31.



      We have considered Quintero’s remaining contentions, including his

constitutional arguments related to the admission of the fingerprint testimony, and

conclude that they are without merit. Because the district court did not err,

Quintero’s cumulative error argument necessarily fails as well. United States v.

Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007).


                                          4
AFFIRMED.




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