United States v. Usbaldo Padilla

MEMORANDUM

Usbaldo Padilla appeals his convictions for conspiring to distribute heroin, in viola tion of 21 U.S.C. § 846 , and for possessing heroin with the intent to distribute it, in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The district court did not err by admitting recorded telephone calls at trial without requiring the speakers to be available for cross-examination because the recordings consisted of co-conspirators’ statements made in furtherance of a conspiracy. Such statements are not “testimonial” and are therefore not subject to the requirements of the Confrontation Clause. United States v. Allen, 425 F.3d 1231, 1235 (9th Cir.2005); see also Crawford v. Washington, 541 U.S. 36, 51-52 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). Although Padilla failed to properly raise the remainder of his claims, we may address them because the government provided briefing on their merits and thus was not prejudiced by Padilla’s failure. United States v. Ullah, 976 F.2d 509, 515 (9th Cir.1992).

Although the district court erred by failing to correct for the “blurred distinction” between Detective Lopez’s expert testimony and his…