United States v. Jose Pita-Mota , 472 F. App'x 756 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 10-10514 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 2:09-cr-01114-GMS-1
v.
MEMORANDUM*
JOSE LUIS PITA-MOTA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted April 19, 2012
San Francisco, California
Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.
Defendant Jose Luis Pita-Mota appeals his conviction and resulting sentence
for conspiracy to distribute and possess with intent to distribute methamphetamine,
in violation of 21 U.S.C. § 846; distribution and possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841; being a felon in possession of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
firearm, in violation of 18 U.S.C. §§ 922(g), 924(a); and illegal reentry after
removal, in violation of 8 U.S.C. § 1326(a). We affirm.
1. We assume, without deciding, that in the circumstances of this case, the
district court erred by failing to apply mitigating procedures to the dual fact-and-
expert testimony of some of the government’s witnesses, and that this error was
plain. See United States v. Freeman, 498 F.3d 893, 903–04 (9th Cir. 2007)
(describing the dangers of dual testimony). The assumed error did not affect
Defendant’s substantial rights, however, because he has not shown "a reasonable
probability that, but for the error claimed, the result of the proceeding would have
been different." United States v. Dominguez Benitez, 542 U.S. 74, 81–82 (2004)
(internal quotation marks and brackets omitted). The evidence of Defendant’s guilt
was overwhelming, and the allegedly impermissible expert testimony affected only
minor topics.
We carefully have considered Defendant’s other arguments concerning other
alleged plain errors by the district court concerning expert testimony, and we find
no reversible error.
2. The district court did not err under Bruton v. United States, 391 U.S. 123(1968), by admitting the statement by a co-defendant, because the statement did
not "facially, expressly, or powerfully implicate[]" Defendant. United States v.
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Hernandez-Orellana, 539 F.3d 994, 1001 (9th Cir. 2008) (internal quotation marks
omitted). Additionally, even assuming that the admission of the statement violated
Crawford v. Washington, 541 U.S. 36 (2004), see United States v. Tuyet Thi-Bach
Nguyen, 565 F.3d 668, 674–75 (9th Cir. 2009) (interpreting Crawford broadly),
any such error was harmless. The statement’s implication of Defendant was not
great and, as noted above, the evidence against Defendant was overwhelming.
3. The district court did not err—let alone plainly err—by admitting the
"prior acts" evidence relevant to two co-defendants. The district court gave a
limiting instruction, and Defendant cites no support for his argument that the
district court sua sponte must deny admission of relevant evidence simply because
it may have some small prejudicial effect on a co-defendant.
4. The district court did not abuse its discretion in permitting lay testimony
identifying Defendant’s voice. See United States v. Alvarez, 358 F.3d 1194, 1205
(9th Cir. 2004) (stating the standard of review). Federal Rule of Evidence 901
contemplates this type of testimony, and Federal Rule of Evidence 701 is not to the
contrary. The district court did not abuse its "wide discretion" in admitting this
evidence. Alvarez, 358 F.3d at 1205.
5. The district court did not err at sentencing. The district court’s
determination not to grant a two-level adjustment for acceptance of responsibility
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was not clearly erroneous, particularly in light of the "great deference" that we owe
to the court’s decision. United States v. Martinez-Martinez, 369 F.3d 1076,
1088–89 (9th Cir. 2004). The imposition of a sentence at the low end of the
Guidelines range was not unreasonable.
AFFIRMED.
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