United States v. Marco Caballero-Perez , 637 F. App'x 313 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10489
Plaintiff - Appellee, D.C. No. 2:13-CR-00085-JAD-
PAL-2
v.
MARCO ANTONIO CABALLERO- MEMORANDUM*
PEREZ, AKA Antonio Caballero-Perez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted February 9, 2016**
San Francisco, California
Before: HAWKINS, W. FLETCHER, and MURGUIA, Circuit Judges.
Appellant Marco Caballero-Perez (“Caballero”) appeals his jury trial conviction
for distribution of methamphetamine. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Caballero did not object at trial to the jury instructions for the count of
conviction1 and thus the instruction is reviewed for plain error. United States v. Doe,
705 F.3d 1134, 1143 (9th Cir. 2013). Caballero bears the burden of establishing that
an obvious or plain error affected his substantial rights and seriously affects the
fairness, integrity or public reputation of the judicial proceedings. United States v.
Olano, 507 U.S. 725, 732-35 (1993).
The district court gave the Ninth Circuit Model Jury Instructions for distribution
of methamphetamine and knowledge, and these instructions correctly stated the law.
See United States v. Houston, 406 F.3d 1121, 1122 (9th Cir. 2005). Caballero cites
no authority to support his contention that either of these instructions were erroneous
or that they somehow permitted the jury to convict based on “mere presence” and
without intent. Indeed, the jury was specifically instructed that presence at the scene
of a crime was insufficient. The jury was not required to find “intent to distribute,”
as it was in the other charged counts, because the count of which Caballero was
convicted alleged an actual distribution occurred. There was no plain error.
1
Indeed, Caballero’s counsel orally ratified the proposed “joint instructions,”
and thus may have waived the issue entirely. United States v. Cain, 130 F.3d 381,
383-84 (9th Cir. 1997). We need not decide this issue because we conclude that, even
assuming the objection was not waived, there was no plain error.
2
Nor did the district court abuse its discretion by admitting evidence of
Caballero’s prior conviction. The prior conviction was very similar to two charged
counts because methamphetamine was found in a hidden compartment of a vehicle.
This was relevant to rebut Caballero’s defense that he had no knowledge of the
concealed narcotics and was merely present in the vehicle. See United States v.
Banks, 514 F.3d 959, 976 (9th Cir. 2008) (prior bad act evidence admissible if not
overly remote, tends to prove a material point, shares similarities to the charged
offense, and is based on sufficient evidence). The district court provided a proper
limiting instruction to that end. In any event, even if the court erred, any error in
admitting the evidence was harmless because the jury did not convict Caballero of one
of the counts involving the concealed methamphetamine, and thus admission of the
evidence did not prejudicially impact the outcome. See United States v. Ramirez-
Robles, 386 F.3d 1234, 1244 (9th Cir. 2004).
AFFIRMED.
3