United States of America v. Francisco Beas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO BEAS,
Defendant - Appellant.
No. 14-50078
D.C. No. 3:13-cr-01004-WQH-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted September 3, 2015**
Pasadena, California
Before: O’SCANNLAIN, FISHER and BYBEE, Circuit Judges.
Francisco Beas appeals his conviction for importing methamphetamine in
violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
FILED
SEP 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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1. The district court did not abuse its discretion in admitting portions of
Officer Banks’ testimony over Beas’ objections. Banks’ impression that Beas was
nervous and posed a potential safety risk was permissible lay opinion under
Federal Rule of Evidence 701 and tended to prove an essential element of the
offense: that Beas knew he was importing a controlled substance. Any prejudice
caused by the testimony was outweighed by its relevance. See Fed. R . Evid. 403.
Furthermore, Banks’ testimony explaining why he referred Beas to the secondary
inspection area was relevant as circumstantial evidence of Beas’ state of mind and
to provide context for the jury. See United States v. Munoz, 412 F.3d 1043, 1050
(9th Cir. 2005); United States v. Gutierrez-Espinosa, 516 F.2d 249, 250 (9th Cir.
1975).
The remaining statements to which Beas objects constituted permissible
opinion testimony. Banks’ observation that Beas appeared to be looking for exits
was premised on Banks’ own observations and perceptions and, as discussed
above, was relevant and not unduly prejudicial in suggesting Beas knew he was
carrying contraband. Banks’ interpretation of Beas’ statement he was going to San
Diego to “help” his grandmother was permissible, as “help” is subject to many
meanings. Even if Beas’ statement was clear, however, Banks’ understanding was
incidental to the issue at hand and its admission is therefore harmless when viewed
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in the context of his other testimony and the evidence in the record. See United
States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007).
2. As Beas concedes in his supplemental briefing, his argument that the
government was required to prove he knew the type of drug he was transporting is
foreclosed by United States v. Jefferson, 791 F.3d 1013 (9th Cir. 2015). “[O]nly
. . . the essential elements of [a] crime must be demonstrated at trial,” and any
language in a charging document that goes beyond those elements “is mere
surplusage that need not be proved” unless omitting it prejudices the defendant.
United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986); see also United
States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004) (applying Jenkins to
surplusage in an information). Here, Beas’ argument that the language in the
superseding information deprived him of due process fails because he has not
shown prejudice.
Even assuming Beas was operating under the mistaken belief 21 U.S.C.
§ 960 required the government to prove knowledge of drug type, Beas’ entire
defense responded to what the essential element of the charge actually was:
whether Beas knew he was transporting any controlled substance,
methamphetamine or otherwise. At trial, Beas consistently argued he was unaware
the truck he was driving contained any controlled substance whatsoever. Rather
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than being “ambushed or misled in any way by the extraneous language in the
information,” see Pang, 362 F.3d at 1194, Beas put on a well-supported defense
that held the government to the burden of proving the essential elements of a
charge under § 960. He has not shown he was prejudiced by the surplus language
in the information.
AFFIRMED.
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