United States v. Francisco Kelly-Palmer , 360 F. App'x 941 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 04 2010
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. 08-50554
Plaintiff - Appellee, D.C. No. 3:08-cr-00283-IEG-1
v.
MEMORANDUM *
FRANCISCO KELLY-PALMER, AKA
Enrique Ayon-Cortez,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted December 8, 2009
Pasadena, California
Before: PREGERSON, NOONAN and PAEZ, Circuit Judges.
Francisco Kelly-Palmer (“Kelly-Palmer”) appeals his conviction under 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
whether there has been a violation of a Defendant’s Sixth Amendment right to
present a defense and Fifth Amendment right to due process. United States v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Bahamonde, 445 F.3d 1225, 1228 (9th Cir. 2006). We state the facts only as
necessary to explain our decision and we affirm.
First, the district court did not violate Kelly-Palmer’s constitutional rights
by precluding Kelly-Palmer from testifying about what his grandfather told him
about his place of birth. We review a district court’s decision not to admit
evidence under a hearsay exception for abuse of discretion . United States v. Yida,
498 F.3d 945, 949 (9th Cir. 2007). The district court did not abuse its discretion
when it found that such testimony by Kelly-Palmer was inadmissible hearsay
which did not fall under any of the exceptions to the hearsay rule. United States v.
Rahm, 993 F.2d 1405, 1410 (9th Cir. 2003). Moreover, the exclusion of this
hearsay testimony did not violate Kelly-Palmer’s due process rights, because the
testimony did not bear “persuasive assurances of trustworthiness.” Chia v.
Cambra, 360 F.3d 997, 1003 (9th Cir. 2004); see also Chambers v. Mississippi,
410 U.S. 284 (1973).
Second, the district court did not violate Kelly-Palmer’s constitutional rights
when it excluded Kelly-Palmer’s expert witness testimony. We review a district
court’s decision to admit expert testimony for abuse of discretion. United States v.
Bahena-Cardenas, 411 F.3d 1067, 1078 (9th Cir. 2005). Expert evidence must be
both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
-2-
597 (1993). The district court did not abuse its discretion in finding the expert
testimony unreliable.
Ultimately, the district court’s two evidentiary rulings did not violate Kelly-
Palmer’s constitutional rights because they did not prevent Kelly-Palmer from
presenting his affirmative defense that he is a U.S. citizen. United States v.
Scheffer, 523 U.S. 303, 317 (1998); United States v. Kincaid-Chauncey, 556 F.3d
923, 935 (9th Cir. 2009). We therefore affirm.
AFFIRMED.
-3-