United States of America v. USBALDO PADILLA, AKA Peanut

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
USBALDO PADILLA, AKA Peanut,
Defendant - Appellant.
No. 11-50391
D.C. No. 2:10-cr-00241-RGK-3
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted January 7, 2013
Pasadena, California
Before: CANBY, REINHARDT, and WARDLAW, Circuit Judges.
Usbaldo Padilla appeals his convictions for conspiring to distribute heroin,
in violation of 21 U.S.C. § 846, and for possessing heroin with the intent to
distribute it, in violation of 21 U.S.C. §841 (a)(1). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
FILED
JAN 30 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The district court did not err by admitting recorded telephone calls at trial
without requiring the speakers to be available for cross-examination because the
recordings consisted of co-conspirators’ statements made in furtherance of a
conspiracy. Such statements are not “testimonial” and are therefore not subject to
the requirements of the Confrontation Clause. United States v. Allen, 425 F.3d
1231, 1235 (9th Cir. 2005); see also Crawford v. Washington, 541 U.S. 36, 51-52
(2004). Although Padilla failed to properly raise the remainder of his claims, we
may address them because the government provided briefing on their merits and
thus was not prejudiced by Padilla’s failure. United States v. Ullah, 976 F.2d 509,
515 (9th Cir. 1992).
Although the district court erred by failing to correct for the “blurred
distinction” between Detective Lopez’s expert testimony and his testimony as a
percipient witness, Padilla failed to object. We therefore review for plain error.
Puckett v. United States, 556 U.S. 129, 143 (2009). We may reverse if there is
error that is “plain,” “affects substantial rights,” and “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
marks omitted). Here, Lopez testified as an expert when he interpreted jargon,
cracked codes, and discussed narcotics trafficking techniques. While discussing
the same recorded conversations, he testified as a percipient witness by interpreting

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ambiguous conversations using his direct knowledge of the investigation. The
district court erred by neither alerting the jury to Lopez’s dual role nor taking any
other measure to correct for the confusion potentially caused by his intermingled
testimony. See United States v. Anchrum, 590 F.3d 795, 803 (9th Cir. 2009);
United States v. Freeman, 498 F.3d 893, 897 (2007). Nonetheless, “the distinction
between lay and expert testimony in this context is a fine one.” Freeman, 598 F.3d
at 904. We thus conclude that this error was not “plain” because it was not “clear
or obvious.” Puckett, 556 U.S. at 143.
The remainder of Padilla’s claims of error lack merit. The district court did
not abuse its discretion by admitting Lopez’s voice identification of Padilla,
because Lopez was “minimally familiar” with Padilla’s voice. United States v.
Plunk, 153 F.3d 1011 (9th Cir. 1998). Nor did the district court abuse its discretion
by ruling that a question during cross-examination was “argumentative” or that the
existence of a “sound spectrograph” was a fact not in evidence. Finally, none of
the district court’s rulings deprived Padilla of his constitutionally protected right to
present a defense, because they did not “significantly undermine[ ] fundamental
elements of [his] defense.” United States v. Scheffer, 523 U.S. 303, 315 (1998).
AFFIRMED.

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