Ruiz-Rojo

MEMORANDUM **

Cesario Ruiz-Rojo appeals his jury conviction for harboring undocumented immigrants, in violation of 8 U.S.C. § 1324 (a)(1)(A)(iii) and (a)(l)(B)(i). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we affirm the conviction.

Ruiz-Rojo first contends that the district court erred by permitting a witness to testify that she planned to pay her smuggling fee “with her body.” We find that the district court abused its discretion by admitting this testimony. See United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir.1995) (applying abuse of discretion standard to decisions to admit testimony). Without any evidence that Ruiz-Rojo was privy to, or would benefit from, the witness’s payment arrangement with a third party, the probative value of the evidence was low and its admission was highly prejudicial. See Fed.R.Evid. 403; United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.2005).

However, given the amount of evidence elicited at trial that supports the jury’s guilty verdict, we conclude that there is a “fair assurance” that the admission of the testimony was harmless and that “it is more probable than not that the error did not…