NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 7 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-374 D.C. No. Plaintiff - Appellee, 3:19-cr-03622-JLB-CAB-1 v.

MEMORANDUM*

MARTIN VERA-RIVAS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted November 4, 2024** Pasadena, California

Before: WARDLAW, HURWITZ, and DESAI, Circuit Judges.

Martin Vera-Rivas (“Vera”) appeals his conviction for misdemeanor

attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1). Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. The district court did not abuse its discretion by admitting photographs of

Vera despite the fact that a testifying Border Patrol agent used labels indicating

Vera’s identity to lay the foundation for admission. The labels were arguably hearsay

because they were offered for their truth—that the person in the photo was Vera and

was arrested for illegal reentry. See United States v. May, 622 F.2d 1000, 1007 (9th

Cir. 1980). However, the labels were not themselves admitted into evidence but were

simply relied upon by the Border Patrol agent who laid the foundation for admission

of the photographs. And, in deciding whether evidence is admissible, a “court is not

bound by evidence rules, except those on privilege.” Fed. R. Evid. 104(a). Therefore,

a court may consider hearsay when determining whether an appropriate foundation

has been laid to admit evidence. See Bourjaily v. United States, 483 U.S. 171, 178–

79 (1987).

In any event, “it is more probable than not that [any] error did not materially

affect the verdict.” United States v. Torres, 794 F.3d 1053, 1056 (9th Cir. 2015)

(cleaned up). As the district court noted, another Border Patrol agent, testifying from

his own memory, identified Vera as the person he interviewed at the Forest Gate

Processing Center on May 15, 2019, and it is undisputed that Vera was photographed

at the processing center after his arrest. There was also other evidence that the two

agents were testifying about the same man. For example, the first agent “observed

five subjects jumping from the brush,” and Vera stated in his later interview that he

2 23-374 was in a group of five people who hid in the brush and ran upon seeing a Border

Patrol vehicle.

2. We review de novo the sufficiency of the evidence. See United States v.

Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010). There was sufficient evidence to

corroborate Vera’s confessions under the corpus delicti doctrine. “[C]orpus delicti

does not impose a high bar for the government to clear, and it does not require

evidence that would be independently sufficient to convict the defendant.” United

States v. Gonzalez-Godinez, 89 F.4th 1205, 1210 (9th Cir. 2024) (cleaned up). The

trial court found adequate corroboration of Vera’s confessions because (1) Vera was

arrested near the border, (2) he was far from a port of entry, (3) he was hiding in the

brush with a group of other people, (4) he emerged and ran toward the unmarked

Customs and Border Patrol (“CBP”) vehicle, (5) the CBP agent found the group in

response to a radio communication, and (6) the arrest area was on a known

smuggling route. Vera attacks the last three and argues that the remaining three do

not suffice to corroborate his confessions.

We find no error in the district court’s consideration of the three challenged

factors. This was a bench trial, and the district court admitted the radio

communication solely for its effect on the listening arresting agent. The court’s

conclusion that Vera’s group ran toward the unmarked CBP vehicle was based on

details in the arrest report and “supported by a chain of logic, rather than mere

3 23-374 speculation dressed up in the guise of evidence.” United States v. Katakis, 800 F.3d

1017, 1024 (9th Cir. 2015) (cleaned up). And even assuming that the CBP agent’s

observations about the area in which Vera was arrested was unnoticed expert

testimony, the agent was clearly qualified as an expert on that topic, and “any alleged

error by the trial judge in admitting the evidence under the lay opinion rule was

harmless.” United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997)

(cleaned up).

Moreover, the unchallenged evidence provides sufficient corroboration of the

confessions. See, e.g., Gonzalez-Godinez, 89 F.4th at 1210 (finding corroboration

where defendant “was either sliding away from a partially deconstructed border

fence or hiding in the nearby brush” and was “in a remote, easy-to-cross area”);

United States v. Garcia-Villegas, 575 F.3d 949, 951 (9th Cir. 2009) (finding

corroboration where defendant was found “with torn clothes and bloody hands,

hiding in a bush on the American side” of the border).

AFFIRMED.

4 23-374