United States v. Antonio Reyes , 435 F. App'x 596 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 25 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50173
Plaintiff - Appellee, D.C. No. 3:09-cr-02487-MMA-1
v.
MEMORANDUM*
ANTONIO REYES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted May 4, 2011
Pasadena, California
Before: PREGERSON, FISHER, and BERZON, Circuit Judges.
Antonio Reyes appeals his conviction in federal district court for importation
of marijuana under 21 U.S.C. §§ 952 and 960. We affirm.
The district court properly excluded the case agent’s reference to the
“federal game” as irrelevant when read in context. See Fed. R. Evid. 402. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court also properly excluded Reyes’s statement to the case agent
concerning a culpable third party as self-serving hearsay. See United States v.
Mitchell, 502 F.3d 931, 964-65 (9th Cir. 2007). Because the district court correctly
applied the Federal Rules of Evidence, Reyes cannot raise a constitutional claim by
arguing that these exclusions violated his right to present a defense. See United
States v. Waters, 627 F.3d 345, 352-53 (9th Cir. 2010). Moreover, the record does
not support Reyes’s contention that the district court otherwise limited his cross-
examination of the case agent.
The government’s use at trial of Reyes’s cell site location information raises
important and troublesome privacy questions not yet addressed by this court. But
the issue is not properly before us. Under Federal Rule of Criminal Procedure 12,
any ground to suppress evidence not expressly raised in a pre-trial motion is
waived. See United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). Reyes
never raised a Fourth Amendment objection before trial. Reyes’s filings indicated
an intent to research possible Fourth Amendment claims, but he did not actually
raise a Fourth Amendment claim when he moved to suppress the cell site location
data. Although we may consider an issue otherwise waived under Rule 12 for
cause shown, see id., Reyes has given no reason for his failure to raise a Fourth
Amendment objection before the district court. Thus, “we will not now consider
2
this argument.” Id.Reyes did not object at trial to the testimony of his cellular telephone service
provider’s custodian of records, and thus we review only for plain error. See
United States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir. 1999). We conclude
that any error in the admission of the custodian’s testimony did not affect Reyes’s
substantial rights. The 170 pounds of marijuana hidden in the vehicle Reyes drove
across the border was “independent, overwhelming physical evidence” of his guilt.
United States v. Whitehead, 200 F.3d 634, 639 (9th Cir. 2000) (affirming
conviction on plain error review because the evidence of 55 pounds of marijuana
concealed in defendant’s car “was virtually conclusive of guilt”).
The district court did not abuse its discretion in allowing the government to
admit evidence produced six days before trial. Reyes points to no authority
indicating that six days is insufficient time under the discovery requirements of
Federal Rule of Criminal Procedure 16. Moreover, the district court offered Reyes
a continuance to prepare a defense to the new evidence, which Reyes’s attorney
declined.
AFFIRMED.
3