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 2012-08

United States v. Edward Valenzuela , 492 F. App'x 765 ( 2012 )


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  •                                                                               FILED
NOT FOR PUBLICATION                                 AUG 30 2012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. 10-50545
Plaintiff - Appellee,              D.C. No. 2:09-cr-01108-RGK-1
v.
MEMORANDUM *
EDWARD VALENZUELA, AKA Juan
Moiena Sandoval, AKA Edward
Valenzuela Soto,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted March 9, 2012
Pasadena, California
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
Edward Valenzuela appeals his conviction in trial by jury of making a false
statement in a passport application in violation of 18 U.S.C. § 1542, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). We have
jurisdiction under 28 U.S.C. § 1291, and affirm.
The district court did not abuse its discretion by admitting certified copies of
FBI fingerprint cards. The fingerprint cards were admissible under the public
records exception to the hearsay rule. Fed. R. Evid. 803(8); United States v.
Weiland,
    420 F.3d 1062
    , 1074 (9th Cir. 2005). The names and notations about
Valenzuela’s prior removals on the cards fell within the public records exception
because they are routine, objective matters.
    Weiland, 420 F.3d at 1075
    ; United
States v. Gilbert,
    774 F.2d 962
    , 965 (9th Cir. 1985) (per curiam). Because the
fingerprint cards were admissible under the public records exception, their
admission under the business records exception was not reversible error.
    Weiland, 420 F.3d at 1074
    ; United States v. Loyola-Dominguez,
    125 F.3d 1315
    , 1318 (9th
Cir. 1997).
The district court also did not abuse its discretion by admitting Special
Agent Matthew Ciesla’s testimony about the fingerprint cards. Ciesla’s testimony
about his agency’s “routine practice” of recording information on fingerprint cards
was admissible under Federal Rule of Evidence 406. That Ciesla testified about
fingerprint cards from 1974 but did not begin working for the agency until 1996
goes to the weight of Ciesla’s testimony, not its admissibility. Defense counsel
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highlighted this fact at trial, and the jury was able to weigh the testimony
accordingly.
The prosecutor’s implicit assertion during closing argument that a father’s
U.S. citizenship passes “automatically” to his children was a misstatement of the
law. See 8 U.S.C. § 1409(a). This misstatement, however, did not constitute plain
error. The misstatement was isolated, the prosecutor did not misstate the law
governing the charged crimes, and the district court instructed the jury that the
prosecutor’s statements during closing argument were not evidence. See United
States v. Moreland,
    622 F.3d 1147
    , 1162–63 (9th Cir. 2010).
The district court did not abuse its discretion by denying Valenzuela’s
motion for a mistrial based on Special Agent Robert Baggett’s improper reference
to illegal entry and alien smuggling. Although referring to illegal entry and alien
smuggling was potentially prejudicial, it was not an explicit statement that
Valenzuela had been suspected of or charged with illegal entry or alien smuggling.
See United States v. Frederick,
    78 F.3d 1370
    , 1376 (9th Cir. 1996). More
importantly, the district court immediately struck Baggett’s improper statement and
instructed the jury not to consider it. The district court declined to find that the
statement was intentional misconduct, and at the close of the evidence gave a
second curative instruction that the stricken testimony was not evidence and must
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not be considered. Because we presume that jurors follow instructions, we
conclude that the district court’s instructions were sufficient to cure any prejudice
to Valenzuela. See Richardson v. Marsh,
    481 U.S. 200
    , 206 (1987); United States
v. Parks,
    285 F.3d 1133
    , 1141 (9th Cir. 2002); United States v. Escalante,
    637 F.2d 1197
    , 1202–03 (9th Cir. 1980).
Finally, there was no cumulative error warranting reversal. See United
States v. Karterman,
    60 F.3d 576
    , 579–80 (9th Cir. 1995).
AFFIRMED.
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