United States of America v. Jorge De Jesus-Casteneda

The Honorable Jane A. Restani, Judge for the U.S. Court of *
International Trade, sitting by designation.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE DE JESUS-CASTENEDA,
Defendant-Appellant.
No. 11-10397
D.C. No.
2:10-cr-00322-
JAT-2
ORDER
Filed March 29, 2013
Before: J. Clifford Wallace and Carlos T. Bea,
Circuit Judges, and Jane A. Restani, Judge.*
ORDER
Judge Bea has voted to deny the petition for rehearing en
banc, and Judges Wallace and Restani so recommend. The
full court has been advised of the petition and no judge has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35. The petition for rehearing en banc is
denied. No subsequent petitions for panel rehearing or
rehearing en banc may be filed. The opinion for United States
v. Jesus-Casteneda, 705 F.3d 1117 (9th Cir. 2013), filed on
January 30, 2013, is amended as follows:

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UNITED STATES V. JESUS-CASTENEDA 2
On page 1120, eliminate words starting from <Namely>
to immediately before <Id. at 505.> Insert in its place the
following sentence: <Namely, a disguise should be permitted
only when necessary to further an important state interest and
when the reliability of the testimony is otherwise assured.>
On page 1120, eliminate words starting from <Applying>
to immediately before <The government>. Insert in its place
the following sentence: <Applying that rule here, the CI’s
disguise in the form of a wig and mustache was necessary to
further an important state interest, namely a witness’s safety,
given that the safety concern was so high and the disguise so
minimal.>
On page 1121, immediately after <safety was at risk)>,
insert the following: <The court made a case-specific finding
that the disguise was necessary. The government told the
court the disguise was needed, given that the CI was
“continuing to operate [in a] confidential informant capacity,”
and because “the evidence has demonstrated [that this case]
involves high-level members of a particular cartel in Sinaloa
who, in fact, traffics very heavily through the Arizona
corridor. [The CI] has been acting and interacting with very
high levels within that organization who [sic] has been
demonstrated to be quite dangerous . . .” The trial court ruled
that the need for the disguise was “obvious,” “not even a
close question,” and that when weighed against the “risks that
have been presented,” the proposed disguise was a “very
small impingement . . . on the ability of the [jury] to judge
[the CI’s] credibility.”>

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