United States v. Mascorro, 467 Fed. Appx. 714 (9th Cir. 2012) [2012 BL 25275]
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Robert Steven Huie, Bruce R. Castetter, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Steven Francis Hubachek, Esquire, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, John A. Houston, District Judge, Presiding. D.C. No. 3:10-cr-00410-JAH-1.
Before: KOZINSKI, Chief Judge, REINHARDT and W. FLETCHER, Circuit Judges.
[fn*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1. Mascorro's own admission of his prior bad act provides sufficient proof under Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), for admission of the prior bad act into evidence. Admitting the evidence didn't violate Federal Rule of Evidence 404(b) because the prior bad act indicated both Mascorro's knowledge that his passengers were in the United States unlawfully and his purpose to help them remain. See United States v. Longoria, 624 F.2d 66, 69 (9th Cir. 1980). The district court didn't abuse its discretion in finding that the prejudicial effect of admitting the prior bad act didn't substantially outweigh its probative value. See United States v. Ramirez-Jiminez, 967 F.2d 1321, 1327 (9th Cir. 1992).
2. The grand jury instructions Mascorro challenges are indistinguishable from those we've previously held not to be constitutionally defective. See United States v. Caruto, 663 F.3d 394, 398-99 (9th Cir. 2011); United States v. Cortez-Rivera, 454 F.3d 1038, 1040-41 (9th Cir. 2006); United States v. Navarro-Vargas, 408 F.3d 1184, 1187 (9th Cir. 2005) (en banc).