United States of America v. JORGE LUIS NUNEZ, AKA Jorge L. Nunez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE LUIS NUNEZ, AKA Jorge L.
Nunez,
Defendant-Appellant.
No. 17-50115
D.C. No.
5:16-cr-00120-JFW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 6, 2019
Pasadena, California
Before: WARDLAW and BEA, Circuit Judges, and MURPHY,** District Judge.
Jorge Luis Nuñez appeals the district court’s denial of an evidentiary hearing
on the reliability of a canine alert that identified a bag in Nuñez’s possession
containing approximately 1648 grams of methamphetamine. We have jurisdiction
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
FILED
FEB 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. § 1291. We affirm.
1. Nuñez contends that the district court’s denial of an evidentiary
hearing violated the Supreme Court’s holding in Florida v. Harris, 568 U.S. 237
(2013), that “[a] defendant . . . must have an opportunity to challenge . . . evidence
of a dog’s reliability, whether by cross-examining the testifying officer or by
introducing his own fact or expert witnesses.” Id. at 247. Here, however, Nuñez
failed to identify a factual dispute as to the reliability of the canine’s alert in his
moving papers. See United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000)
(“An evidentiary hearing on a motion to suppress need be held only when the
moving papers allege facts with sufficient definiteness, clarity, and specificity to
enable the trial court to conclude that contested issues of fact exist.”); see also
Harris, 568 U.S at 247 (“The court should allow the parties to make their best
case, consistent with the usual rules of criminal procedure.”). Because Nuñez
failed to identify a factual dispute as to the canine’s reliability in his moving
papers, the district court did not abuse its discretion in denying him an evidentiary
hearing on the reliability of the canine’s alert.1
1 Although Nuñez argues that he challenged the reliability of the canine’s alert in
his initial motion to suppress, Nuñez does not argue on appeal that this motion
identified a factual dispute warranting an evidentiary hearing. Moreover, on
appeal Nuñez abandoned the argument made in his reply to the government’s
opposition that the canine’s alert at the driver’s side door created a factual dispute
as to the alert’s reliability. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

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2. Nuñez further contends that he has demonstrated good cause for
presenting a late defense, objection, or request under Federal Rule of Criminal
Procedure 12(c)(3). But Nuñez failed to move for leave to file an untimely motion
to suppress under Federal Rule of Criminal Procedure 12(c)(3). Because Nuñez
failed to seek this relief before the district court, it cannot form the basis for relief
on appeal. See United States v. Belden, 957 F.2d 671, 674–75 (9th Cir. 1992)
(arguments not made to the district court are not preserved for appellate review).
AFFIRMED.
1999) (“[O]n appeal, arguments not raised by a party in its opening brief are
deemed waived.”).

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