United States v. Adalid Cardenas , 502 F. App'x 686 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 20 2012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. 10-50515
Plaintiff-Appellee,
D.C. No. 3:10-cr-01580-LAB-1
v.
MEMORANDUM *
ADALID RODRIGUEZ CARDENAS,
Defendant-Appellant.
Appeal from United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 9, 2012 **
Pasadena, California
Before: D.W. NELSON and O’SCANNLAIN, Circuit Judges, and Singleton,***
Senior District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
Honorable James K. Singleton, Senior District Judge, District of Alaska,
sitting by designation.
A jury convicted Adalid Rodriguez Cardenas (“Cardenas”) of importation of
methamphetamine (21 U.S.C. §§ 952, 960) and possession of methamphetamine
with the intent to distribute (21 U.S.C. § 841(a)). The District Court sentenced
Cardenas to a prison term of ten years.
On appeal, Cardenas contends that the District Court erred in: (1) admitting
into evidence a cell phone; (2) refusing to strike irrelevant testimony of a
government witness concerning the witness’s “diligence”; (3) allowing into
evidence irrelevant testimony that Cardenas’s mother’s phone number was
conveyed to defense counsel; (4) permitting the jury to view a post-arrest video
recording of the questioning of Cardenas; (5) allowing the custodian of records to
testify concerning the reason that a cell phone would continue to record incoming
and outgoing calls after its seizure; (6) giving the Ninth Circuit model jury
instruction on circumstantial evidence over the objection of the defendant; (7) not
correcting the prosecution’s misstatement of the burden of proof; and (8) not
concluding that cumulative error requires reversal.
We review evidentiary rulings of a district court for an abuse of discretion.
General Electric Co. v. Joiner, 522 U.S. 136, 141 (1997); United States v. Stinson,
647 F.3d 1196, 1210 (9th Cir. 2011). “We also review the district court’s handling
of closing arguments for an abuse of discretion.” Wagner v. Cnty. of Maricopa,
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673 F.3d 977, 984 (9th Cir. 2012) (citing United States v. Lazarenko, 564 F.3d
1026, 1043 (9th Cir. 2009)). “When a defendant has objected to a jury instruction
at trial, we review for an abuse of discretion.” United States v. Johnson, 610 F.3d
1138, 1148 (9th Cir. 2010).
Admission of Cell Phone
Cardenas correctly argues that there was no direct evidence introduced at
trial linking Cardenas to the cell phone, i.e., no evidence that the cell phone was in
his possession, actual or constructive, at the time it was seized, that it was
registered in his name, or that he gave the number of the cell phone as his
telephone number. The necessary connection between Cardenas and the cell
phone, however, can be established by either direct or circumstantial evidence.
United States v. Matta-Ballesteros, 71 F.3d 754, 768 (9th Cir. 1995), as amended,
98 F.3d 1100 (9th Cir. 1996). The circumstantial evidence concerning the location
of the calls made on March 11 and early on the morning of March 12 is sufficient
to establish a connection between the cell phone and Cardenas, and thus the
District Court did not err in admitting the evidence of the cell phone.
Agent’s Testimony re: “Due Diligence” and Mother’s Telephone Number
Cardenas’s contention that the District Court erred in refusing to strike
irrelevant testimony elicited from the investigating agent concerning her telephone
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contacts with his mother, son, two daughters, and the person believed to be
Cardenas’s wife is meritless. Absent some demonstrated prejudicial effect, i.e.,
that the admission of the evidence affected the jury’s verdict, the admission of
irrelevant evidence does not require reversal. See United States v. Tran, 568 F.3d
1156, 1162 (9th Cir. 2009). Cardenas’s argument concerning how the jury might
have considered the challenged testimony is based upon supposition and
conjecture.
Likewise, the District Court did not err in admitting the agent’s testimony
that she provided Cardenas’s mother’s telephone number to defense counsel.
Cardenas fails to show any prejudice resulting from the admission of this
testimony.
Introduction of the Post-arrest Interrogation Video
We reject the argument that because the evidence could have been
introduced by less prejudicial means, other than the video, the District Court
abused its discretion. Cardenas’s reliance on United States v. Hernandez, 109 F.3d
1450, 1452 (9th Cir. 1997), is misplaced. Other than the fact that the jury viewed
the excerpts on three occasions, Cardenas presents no argument as to how the use
of the video was unfairly prejudicial. We do not manufacture legal arguments in
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support of an appellant’s claims. See W. Radio Servs. v. Qwest Corp., 678 F.3d
970, 979 (9th Cir. 2012).
Testimony concerning Post-arrest use of the Cell Phone
Cardenas’s contention that the testimony of the Sprint custodian of records
constituted “expert” testimony is similarly unsupported. Cardenas does not explain
how the custodian’s answers were not meaningful. Nor does Cardenas explain
how this made cross-examination ineffective. We agree with the Government that
any concern about the custodian’s knowledge goes to the weight of the testimony
and not its admissibility. Cf. United States v. Garcia, 7 F.3d 885, 890 (9th Cir.
1993) (“Ms. Clashin’s lack of particularized expertise goes to the weight accorded
her testimony, not to the admissibility of her opinion as an expert.” (citing United
States v. Little, 753 F.2d 1420, 1445 (9th Cir. 1984))).
Circumstantial Evidence Instruction
Cardenas’s argument that the District Court should have instructed the jury
using the California state instruction instead of the Ninth Circuit model jury
instruction is meritless. See United States v. Orozco-Acosta, 607 F.3d 1156, 1165-
66 (9th Cir. 2010), cert. denied, 131 S. Ct. 946 (2011).
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Failure to Correct Prosecutor’s Misstatement of Burden of Proof
Taken in the context of the court’s instructions and the prosecutor’s
arguments as a whole, the prosecutor made clear that the burden of proof was
beyond a reasonable doubt. Thus, Cardenas’s argument on this point fails.
Cumulative Error
Because the District Court committed no error, Cardenas is not entitled to
relief. See United States v. Romo-Chavez, 681 F.3d 955, 962 (9th Cir. 2012)
(citing United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007)).
Accordingly, the decision of the district court is affirmed.
AFFIRMED.
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