NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 4 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30012

Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-3 v.

BALTAZAR REYES GARCIA, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 18-30013

Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-9 v.

ANGEL SERRANO CARRENO,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 18-30014

Plaintiff-Appellee, D.C. No. 2:16-cr-00287-JLR-4 v.

HECTOR CONTRERAS IBARRA,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted October 21, 2019 Seattle, Washington

Before: IKUTA and BENNETT, Circuit Judges, and DORSEY,** District Judge.

In these consolidated appeals, Baltazar Reyes-Garcia, Hector Contreras-

Ibarra, and Angel Serrano-Carreno (“Defendants”) appeal their jury convictions for

conspiracy to distribute controlled substances and other crimes. They claim that

evidentiary and procedural errors, individually and cumulatively, require reversal.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because the facts are familiar to the parties, we do not recite them here

except as necessary.

1. The district court did not fail to protect Reyes-Garcia’s and Contreras-

Ibarra’s Confrontation Clause rights when it instructed the jury to disregard

portions of two police officers’ testimony in which they repeated statements made

to them by an informant (referred to as “CS3” in the record).

The district court’s instruction was clear, and “[w]e normally presume that a

** The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation.

2 jury will follow an instruction to disregard inadmissible evidence inadvertently

presented to it, unless there is an ‘overwhelming probability’ that the jury will be

unable to follow the court’s instructions, and a strong likelihood that the effect of

the evidence would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S.

756, 766 n.8 (1987) (citation omitted). Here, the record does not show an

“overwhelming probability” that the jury was unable to follow the instruction, and

the testimony that the jury was instructed to disregard was not the strongest

evidence against Defendants.

And we are not persuaded by Reyes-Garcia’s and Contreras-Ibarra’s

argument that Bruton v. United States, 391 U.S. 123 (1968), applies. The

circumstances underlying the Court’s holding in Bruton are not present here. CS3

was not a codefendant who made a “powerfully incriminating” confession, and the

district court instructed the jury to disregard all of the testimony repeating CS3’s

statements to the officers. Cf. id. at 131, 135–36. Thus, Bruton is inapplicable.

We also conclude that the government, during closing, did not improperly

reference the testimony that the jury was instructed to disregard. Read in context,

the prosecutor’s challenged statement referred to portions of the officers’

testimony that the jury was not instructed to disregard. Therefore, the district court

did not err, let alone plainly err, by allowing the prosecution to reference the

December 2015 controlled buy.

3 2. We review de novo whether the district court properly found that evidence

was not “other crimes” evidence under Federal Rule of Evidence (“Rule”) 404(b).

See United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987). Evidence that is

inextricably intertwined with the charged offense is not “other crimes” evidence.

See United States v. Loftis, 843 F.3d 1173, 1177 (9th Cir. 2016).

Contreras-Ibarra argues that the district court erred by admitting evidence of

an uncharged December 2015 drug transaction at a Yakima, Washington home.

The same Yakima home was also involved in one of the charged transactions. The

December 2015 transaction showed why the evidence related to the charged

transaction proved that the items loaded into a vehicle at the Yakima home and

later delivered to an undercover agent were illegal drugs. Thus, the district court

did not err by admitting evidence of the December 2015 drug transaction because

that evidence was inextricably intertwined with the charged offenses.

Contreras-Ibarra also argues that, under Rule 403, it was error to admit

evidence of the December 2015 transaction because it lacked any probative value.

His argument is unavailing because the evidence tended to prove that the items

loaded into the car at the Yakima home during the course of the charged

transaction were methamphetamines.

3. Assuming without deciding that the district court erred by allowing an

informant (referred to as “CS1” in the record) to testify about statements made by

4 coconspirators pursuant to Rule 801(d)(2)(E), any error was harmless. See United

States v. Foster, 711 F.2d 871, 880–81 (9th Cir. 1983). The evidence against

Reyes-Garcia was significant, and the challenged statements made by CS1 were

not the most compelling pieces of evidence offered by the government. Thus, we

conclude that any “error was more probably harmless than not.” United States v.

Freeman, 498 F.3d 893, 905 (9th Cir. 2007).

4. We review the district court’s admission of the two challenged wiretap

conversations for plain error because Reyes-Garcia did not object to their

admission. The wiretap conversation about threats that Reyes-Garcia made to a

coconspirator related to a debt owed to Reyes-Garcia was properly admitted

because it was made in furtherance of the conspiracy. See Fed. R. Evid.

801(d)(2)(E); see also United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir.

1988). As for the second wiretap conversation, even if we viewed it as an attempt

to thwart Reyes-Garcia’s collection efforts and assumed that it was improperly

admitted because it did not further the conspiracy, Reyes-Garcia fails to show that

the error was prejudicial. See United States v. Olano, 507 U.S. 725, 734–35

(1993). Thus, the district court did not plainly err by admitting the second wiretap

conversation.

5. Reyes-Garcia argues that several statements made by Agent Weathers were

inadmissible hearsay. He made a hearsay objection to only one statement—that

5 the FBI received information from the DEA that Reyes-Garcia was working with

another drug trafficker. We review the admission of that statement for abuse of

discretion. See United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992). If the

statement was inadmissible hearsay, then “the government must show that the

prejudice resulting from the error was more probably harmless than not.”

Freeman, 498 F.3d at 905. We review the admission of Agent Weathers’s other

alleged hearsay statements for plain error.

Assuming without deciding that the district court erred by admitting Agent

Weathers’s statement that the FBI received information from the DEA that Reyes-

Garcia was working with another drug trafficker, the error was more probably

harmless than not. There was significant other evidence showing that Reyes-

Garcia was working with the drug trafficker.

As for the three remaining alleged hearsay statements, Reyes-Garcia fails to

show that the district court plainly erred by admitting them because he fails to

explain how he was prejudiced by their admission. See Olano, 507 U.S. at 734.

6. The district court did not plainly err by admitting Agent Weathers’s

testimony about Reyes-Garcia’s prior use of false identification. Reyes-Garcia

concedes that the error (assuming there was one) does not rise to the level of plain

error.

7. The district court did not err, let alone plainly err, by allowing officers to

6 offer lay testimony describing Reyes-Garcia’s conduct as counter-surveillance

activities. The vast majority of the officers’ testimony was about the suspicious

behavior that they observed. And the officers opined, in cursory fashion, that the

behavior was consistent with counter-surveillance activities. Thus, the district

court did not err by treating the testimony as lay testimony.

And the cases that Reyes-Garcia cites do not show that the court erred in

admitting the challenged statements, given the context in which they were made.

Because the district court did not err, Reyes-Garcia’s other arguments, which rest

on the premise that the district court should have treated the testimony as expert

testimony—that the district court should have given a dual role instruction at the

time of the testimony and that the testimony lacked the proper foundation for

expert testimony—necessarily fail.

8. Serrano-Carreno argues that the district court failed to properly consider

whether evidence about his prior drug related activity was unfairly prejudicial or

needlessly cumulative under Rule 403. We review the district court’s application

of Rule 403 for abuse of discretion. United States v. Curtin, 489 F.3d 935, 943

(9th Cir. 2007). If the district court abused its discretion, we then consider

“whether the government successfully bore its burden of proof that the error in

admitting the evidence was harmless.” United States v. McElmurry, 776 F.3d

1061, 1070 (9th Cir. 2015).

7 Assuming without deciding that the district court erred by failing to conduct

a proper Rule 403 balancing analysis, any error was harmless. The evidence

against Serrano-Carreno was overwhelming.

9. Defendants fail to show that the district court abused its discretion when it

determined that no further inquiry was necessary after it received a note from a

juror inquiring who had knowledge about the juror’s information. Defendants

argue that, under United States v. Simtob, 485 F.3d 1058 (9th Cir. 2007), the

district court was required to conduct an inquiry because the note raised a concern

about potential bias. Simtob is not applicable because the note here, unlike the

circumstances in Simtob, did not present a “colorable claim of juror bias” based on

a report of indirect coercive contact towards the juror. Id. at 1064 (quoting Dyer v.

Calderon, 151 F.3d 970, 974 (9th Cir. 1998)).

10. The district court did not plainly err by allowing the prosecution to make

certain statements about “toxic” drugs being “pour[ed]” into the “community.” In

context, it was not obvious that the statements asked the jury to convict Defendants

in order to protect the community from drugs. Rather, it would have been

reasonable for the district court to interpret the statements as asking the jury to

make reasonable inferences based on the evidence. See United States v. Atcheson,

94 F.3d 1237, 1244–45 (9th Cir. 1996). Indeed, defense counsel elicited testimony

from an expert in which the expert stated that “every ingredient in

8 methamphetamine is toxic to the human body.”

Defendants also argue that they were denied their right to a fair trial because

the prosecution improperly disparaged defense counsel. We review this claim for

abuse of discretion and harmless error because Defendants made this objection

below. See United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001); United States

v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013). “Under harmless error review,

claims of prosecutorial misconduct are ‘viewed in the entire context of the trial,’

and reversal ‘is justified only if it appears more probable than not that prosecutorial

misconduct materially affected the fairness of the trial.’” Ruiz, 710 F.3d at 1082

(quoting United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005)).

Assuming without deciding that it was error to allow the prosecution to

make the statements referencing defense counsel, any error was harmless. Given

the substantial evidence against Defendants, we conclude that they have failed to

show that the prosecutor’s statements referencing defense counsel more probably

than not materially affected the fairness of the trial.

11. Defendants argue that the district court erred by identifying certain exhibit

numbers for the jury without informing the jury to not give the exhibits undue

weight. We review this claim for plain error because Defendants did not make this

specific objection below. See United States v. Stinson, 647 F.3d 1196, 1217 (9th

Cir. 2011).

9 None of the cases that Defendants rely on clearly establish that a court errs

by identifying specific exhibit numbers for the jury without informing the jury to

not give the exhibits undue weight. Thus, we conclude that Defendants have failed

to show that the district court committed plain error.

12. All Defendants assert a cumulative error claim. “In reviewing for

cumulative error, the court must review all errors preserved for appeal and all plain

errors.” United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993). Our

cumulative error analysis also considers errors not rising to the level of plain error.

United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th Cir. 2004). We affirm if

“it is more probable than not that, taken together,” the cumulative effect of the

errors “did not materially affect the verdict.” Id. at 1257.

In light of our conclusions above, we consider these possible errors in our

cumulative error analysis for Reyes-Garcia: (1) the admission of CS1’s testimony

about statements made by coconspirators; (2) the admission of one challenged

wiretap conversation; (3) the admission of Agent Weathers’s four statements that

Reyes-Garcia challenges as inadmissible hearsay; (4) the admission of Agent

Weathers’s testimony about Reyes-Garcia’s prior use of false identification; (5) the

admission of the prosecution’s statements regarding toxic drugs and defense

counsel; and (6) the district court’s decision to identify exhibit numbers for the jury

without informing the jury to not give the exhibits undue weight. Given the

10 significant amount of evidence against Reyes-Garcia, we conclude that it is more

probable than not that the cumulative effect of these claimed errors did not

materially affect the verdict.

We consider these possible errors in our cumulative error analysis for

Contreras-Ibarra: (1) the admission of the prosecution’s statements regarding toxic

drugs and defense counsel; and (2) the district court’s decision to identify exhibit

numbers for the jury without informing the jury to not give the exhibits undue

weight. Given the significant amount of evidence against Contreras-Ibarra, we

conclude that it is more probable than not that the cumulative effect of these

claimed errors did not materially affect the verdict.

Finally, we consider these possible errors in our cumulative error analysis

for Serrano-Carreno: (1) the district court’s failure to conduct a proper Rule 403

balancing analysis about his prior drug related activity; (2) the admission of the

prosecution’s statements regarding toxic drugs and defense counsel; and (3) the

district court’s decision to identify exhibit numbers for the jury without informing

the jury to not give the exhibits undue weight. Given the overwhelming evidence

against Serrano-Carreno, we conclude that it is more probable than not that the

cumulative effect of these claimed errors did not materially affect the verdict.

AFFIRMED.

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