Chavarria

MEMORANDUM **

Karla Chavarria appeals her jury conviction of one count of importation of methamphetamine and one count of possession with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1), 952, and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand for proceedings consistent with this disposition.

I. Appellant’s Trial Date

Appellant charges as error the acceleration of her trial date. The district court accelerated the government’s casein-chief by six days, but gave the defense the option of waiting until the previously scheduled date for trial; in essence, Appellant was given the opportunity for a continuance. The district court did not clearly abuse its discretion. United States v. Gonzalez-Rincon, 36 F.Sd 859, 865 (9th Cir.1994).

II. The District Court’s “Statement Against Interest” Ruling

Appellant argues that precluding Chavez’s testimony that Balente Rubio said, “Look, she didn’t know,” was an abuse of discretion, see United States v. Weiland, 420 F.3d 1062 , 1074 n. 9 (9th Cir.2005), as Rubio was unavailable and the statement does tend to inculpate him. As the district court noted, there is no way that Rubio could have known…

dissenting.

I respectfully dissent.

I agree the district court did not abuse its discretion by its handling of the defense request for a continuance and did not err in excluding Chavez’s testimony that the defendant did not know about the narcotics in the vehicle. I also agree with the conclusion that the district court properly admitted expert testimony regarding an “unknowing drug courier.” However, I disagree with the majority’s conclusion that the district court committed plain error by driving Rubio from the witness stand.

This case does not resemble those cases where a trial judge was found to have actively and improperly encouraged or “badgered” a witness not to testify. See, e.g., Webb v. Texas, 409 U.S. 95, 96-97 , 93 S.Ct. 351 , 34 L.Ed.2d 330 (1972). 1 In Webb , the trial judge admonished an alibi witness that he would personally prompt an indictment for perjury if the witness lied. The trial judge had warned that “the Court will personally see that your case goes to the grand jury and you will be indicted for perjury....” Id. at 96 , 93 S.Ct. 351 . The Supreme Court held that “the unnecessarily strong terms used by the judge could well have exerted such duress on…