United States v. De Martinez

MEMORANDUM *

Maria Irma Rico De Martinez appeals her conviction on two counts of alien smuggling: (1) bringing in an illegal alien for financial gain in violation of 18 U.S.C. § 1324 (a)(2)(B)(ii), and aiding and abetting in violation of 18 U.S.C. § 2 ; and (2) bringing in an illegal alien without presentation in violation of 18 U.S.C. § 1324 (a)(2)(B)(iii), and aiding and abetting in violation of 18 U.S.C. § 2 . Because each of Martinez’s six claims are without merit or are not properly before this court, we affirm.

First, Martinez argues that the district court violated Federal Rule of Evidence 403 in allowing the government to elicit testimony that Gomez-Diaz was “hot and sweaty” in the dashboard compartment in which she was concealed during the smuggling attempt. The evidence was not irrelevant, since it helped to establish Martinez’s awareness that Gomez-Diaz was hidden behind the dashboard. Moreover, in light of the evidence supporting Martinez’s guilt, any alleged error does not rise to the requisite “plain error” standard. See United, States v. Bear, 439 F.3d 565, 568 (9th Cir.2006) (noting that to reverse under the plain error standard, there must be (1) an error, (2)…