United States v. Brian Fierro

MEMORANDUM

Brian Fierro appeals his jury trial conviction of one count of interference with commerce by robbery ( 18 U.S.C. § 1951 ), one count of discharging a firearm during a crime of violence ( 18 U.S.C. § 924 (c)), and two counts of being a felon in possession of a firearm ( 18 U.S.C. § 922 (g)). We affirm in part and vacate and remand in part. Because the parties are familiar with the history of the case, we need not recount it here.

I

The district court did not plainly err by admitting the evidence Fierro challenges on appeal. The district court did not plainly err when it admitted the evidence that Fierro now challenges under Fed. R.Evid. 403. District judges are not obligated to exclude evidence under Rule 403 sua sponte. See Wright & Graham, Federal Practice & Procedure § 5224 (1978). Nor are they required to explicitly describe their balancing determinations on the record when a 403 objection is raised. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1090-91 (9th Cir.2000). The evidence that Fierro now challenges was mentioned only briefly at trial, was “not an integral part of the government’s case,” and thus its admission did not reach the level of plain error.…