United States v. Elba Soto ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50079
Plaintiff-Appellee, D.C. No.
5:16-cr-00111-MWF-1
v.
ELBA SOTO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted November 7, 2018**
Pasadena, California
Before: WARDLAW, RAWLINSON, and HURWITZ, Circuit Judges.
Elba Soto appeals her conviction under 18 U.S.C. § 1001(a)(2) for making a
false statement to a government agency. Soto argues that the district court abused
its discretion by admitting the lay opinion testimony of a Deputy U.S. Marshal who
identified an individual in an August 18, 2016 border-crossing photo as Soto’s
*
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).
fugitive husband, Jose Guadalupe Vega-Zúñiga. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
The district court properly denied Soto’s motion in limine because the lay
opinion testimony was “(a) rationally based on the witness’s perception” and “(b)
helpful to . . . determining a fact at issue,” and the third requirement of Federal
Rule of Evidence 701 was undisputedly satisfied. Fed. R. Evid. 701. First, Deputy
U.S. Marshal Eugene Hibbard’s testimony met Rule 701(a)’s personal knowledge
requirement,1 as he observed and interacted with Vega-Zúñiga on three occasions
for a total of several hours while transporting him to and from court appearances or
meetings. See United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005) (holding
that “a lay witness’s testimony is rationally based within the meaning of Rule 701
where it is ‘based upon personal observation and recollection of concrete facts’”
(citation omitted)). While Soto contends that these interactions were minimal, “the
extent of a witness’s opportunity to observe the defendant goes to the weight of the
testimony, not to its admissibility.” Id. (citations omitted).
Second, Hibbard’s testimony fulfilled Rule 701(b)’s “helpfulness”
requirement. See id. Because the jury could not observe Vega-Zúñiga in court
itself, Hibbard’s testimony comparing his personal observations of Vega-Zúñiga
1
“The advisory committee notes to Rule 701 clarify that 701(a) is ‘the familiar
requirement of first-hand knowledge or observation’ . . . .” United States v. Lopez,
762 F.3d 852, 864 (9th Cir. 2014) (citation omitted).
2
with the border-crossing photograph was helpful to determining whether Soto
made a false statement regarding who was in the vehicle that day. Hibbard’s
testimony thus offered the jury “a perspective it could not acquire.” Id. (internal
quotation marks and citation omitted); cf. United States v. Henderson, 68 F.3d 323,
326 (9th Cir. 1995) (observing that “lay witness identifications are particularly
valuable when the witness has specialized knowledge of the defendant’s
appearance unavailable to the jury” (citation omitted)).
AFFIRMED.2
2
Appellant’s motion to take judicial notice (ECF No. 22) is DENIED.
3