FILED

NOT FOR PUBLICATION

AUG 16 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50433

Plaintiff-Appellee, D.C. No. 3:17-cr-01550-LAB-2 v.

FRANKIE OVIES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

UNITED STATES OF AMERICA, No. 18-50049

Plaintiff-Appellee, D.C. No. 3:14-cr-00530-CAB-1 v.

FRANKIE THOMAS OVIES,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Cathy Ann Bencivengo, District Judge, Presiding

Submitted August 14, 2019** Pasadena, California

Before: CALLAHAN, CHRISTEN, and R. NELSON, Circuit Judges.

Defendant-Appellant Frankie Ovies appeals his conviction for aiding and

abetting the transportation of illegal aliens in violation of 8 U.S.C. § 1324 and the

related revocation of his supervised release based on the new violation. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the facts, we recite only those necessary to resolve the issues on

appeal.

1. The district court did not abuse its discretion by permitting Agent

Gutierrez’s expert testimony about the modus operandi of alien smuggling

organizations. Ovies argues that the testimony was irrelevant and unduly

prejudicial; he does not dispute Agent Gutierrez’s qualifications to serve as an

expert witness. We have approved the use of expert testimony about general

criminal practices to establish modus operandi, see United States v. Johnson, 735

F.2d 1200, 1202 (9th Cir. 1984), including in the context of alien smuggling

organizations, see, e.g., United States v. Mejia-Luna, 562 F.3d 1215, 1219 (9th Cir.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 2009). There was sufficient circumstantial evidence presented at trial to establish

Ovies’s involvement with a broader organization: Ovies’s communication with

Madrigal, with whom he had no prior relationship, through a rapid series of calls

and text messages all correlated with Madrigal picking up Camacho at the border;

Madrigal’s contact with “El Cholo,” who Camacho had paid to help smuggle him

over the border; the contents of the text messages, calls, and in-person exchanges

between Ovies and Madrigal, including Ovies’s statement that “the road was clean,

that there [were] no checkpoints”; and Ovies’s actions guiding Madrigal north

from the border toward Los Angeles. Agent Gutierrez’s testimony helped the jury

understand how these “combinations of seemingly innocuous events may indicate

criminal behavior,” Johnson, 735 F.2d at 1202, and thus was relevant testimony.

We further conclude that Ovies’s challenge to Agent Gutierrez’s testimony

pursuant to Federal Rule of Evidence 403 was unpreserved for appeal. Although

he asserted that the modus operandi testimony should be excluded under Rule 403

in his motion in limine, Ovies neither argued nor objected on Rule 403 grounds at

either the pretrial hearing or at trial, and the court never made an explicit or

definite ruling on the objection. See United States v. Archdale, 229 F.3d 861, 864

(9th Cir. 2000) (“Absent a thorough examination of the objection raised in the

motion in limine and an explicit and definitive ruling by the district court that the

3 evidence is admissible, a party does not preserve the issue of admissibility for

appeal absent a contemporaneous objection.”). Even if the objection had been

preserved, the district court did not abuse its discretion by declining to exclude

Agent Gutierrez’s testimony under Rule 403.

2. The district court did not abuse its discretion by allowing Agent Ambrose

to testify about using Cellebrite to extract data from Ovies’s cell phone without

first qualifying him as an expert witness under Federal Rule of Evidence 702.

Agent Ambrose testified only about the steps he took using the Cellebrite program;

he did not opine as to the reliability or any other aspect of the Cellebrite

technology and his testimony was not based on technical or specialized knowledge.

On this record, without additional evidence of how Cellebrite works, we decline to

reach the question whether the introduction of Cellebrite evidence requires expert

testimony. Ovies was not prejudiced by Agent Ambrose’s testimony because

Madrigal testified independently about the contents of his text messages and phone

calls with Ovies.

3. Ovies challenges two types of alleged prosecutorial misconduct during

the government’s closing argument: improper vouching and disparaging defense

counsel. Even if the prosecutor’s repeated statements that the case had “been

proven beyond any possible doubt, let alone a reasonable one,” crossed the line

4 into misconduct, see, e.g., United States v. Ruiz, 710 F.3d 1077, 1085–86 (9th Cir.

2013), those statements did not “result[] in substantial prejudice” because they

constituted only a small portion of the argument and the evidence against Ovies

was otherwise strong. Id. at 1084, 1087.

Nor did the district court abuse its discretion when it overruled Ovies’s

objection to the prosecutor’s comment during rebuttal about defense counsel’s

attempts to play on the jury’s sympathies. “Criticism of defense theories and

tactics is a proper subject of closing argument.” United States v. Sayetsitty, 107

F.3d 1405, 1409 (9th Cir. 1997). Moreover, any potential error was harmless

because Ovies has not demonstrated that it was “more probable than not that” the

single, isolated comment in the context of the entire trial “materially affected the

verdict.” United States v. Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999) (quoting

United States v. Peterson, 140 F.3d 819, 821 (9th Cir. 1998)).

4. The district court had broad discretion to revoke Ovies’s supervised

release following his new violation. 18 U.S.C. § 3583(e)(3); U.S.S.G.

§§ 7B1.3(a)(1), 7B1.1(a)(2). Because we affirm Ovies’s conviction, we also affirm

the district court’s decision to revoke his supervised release because of that

conviction.

AFFIRMED.

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