Perez

MEMORANDUM *

Juan Alfredo Perez challenges his conviction and sentence for the transportation of illegal aliens in violation of 8 U.S.C. §§ 1324 (a)(l)(A)(ii) and (a)(l)(B)(iii). We reverse because the district court erred by *611 admitting prejudicial expert testimony on alien smuggling organizations, and the error was not harmless. See United States v. Pineda-Torres, 287 F.3d 860, 864-65 (9th Cir.2002); United States v. Vallejo, 237 F.3d 1008, 1012 (9th Cir.2001), amended by 246 F.3d 1150 (9th Cir.2001).

We review a district court’s evidentiary rulings for abuse of discretion and review de novo alleged violations of the Confrontation Clause. United States v. Cruz-Escoto, 476 F.3d 1081, 1085 (9th Cir.2007); United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir.2002). Perez challenges the admission of a material witness deposition transcript, which, because of a videotape malfunction, was read into evidence, and not shown to the jury on a videotape. The admission of the transcript did not violate the Confrontation Clause. The parties waived the . actual presence of the material witness, who was unavailable at the time of trial, and Perez had the opportunity to, and did,…

concurring in part and dissenting in part:

I agree there was no error in' admission of the unsigned transcript of the sworn testimony of the material witness when it was later discovered that the video recorder had malfunctioned. The admission of expert testimony relating to the organization of alien smuggling operations was harmless error. See United States v. Mejia-Pimental, 477 F.3d 1100, 1109 (9th Cir.2007). On cross-examination, Agent McHugh admitted that there was no evidence connecting Perez to a large-scale alien smuggling operation. This concession eliminated any prejudicial effect his testimony may have had on the jury.

The defense was that Perez was just a good Samaritan who offered lost and hungry aliens a ride to civilization. But the jury heard powerful evidence that instead of yielding to their lights and siren, Perez fled from Border Patrol agents at times reaching speeds of between 80 to 85 miles an hour. When the vehicle became disabled, Perez continued his flight on foot, leading a Boi’der Patrol agent over two barbed wire fences, across an interstate highway, and over an eight-foot chain linked fence before he was captured.

In both United States v.…