United States of America v. ANDRES ZARATE-MORALES, AKA Seal C, AKA Acapulco

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NOT FOR PUBLICATION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.
ANDRES ZARATE-MORALES, AKA
Seal C, AKA Acapulco,
Defendant - Appellant.
No. 08-50577
D.C. No. 8:05-cr-00290-JVS-3
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AUGUSTIN OSUNA-RUELAS, AKA
Seal F, AKA Tin,
Defendant - Appellant.
No. 09-50221
D.C. No. 8:05-cr-00290-JVS-6
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
FILED
APR 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 5 --

2
Argued and Submitted January 15, 2010
Pasadena, California
Before: GOODWIN, SCHROEDER, and FISHER, Circuit Judges.
Defendants Andres Zarate-Morales and Augustino Osuna-Ruelas
(collectively “Defendants”) appeal from their convictions for conspiracy to
transport and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(i).
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
At trial, the Government called ICE Special Agent Gregory Barr to testify as
an expert witness. Agent Barr’s qualifications include twenty-one years with ICE
(formerly INS) as a special agent and three years with the U.S. Border Patrol as a
special agent. He testified that his opinions were based on his experiences, as well
as information obtained from two confidential informants. The confidential
informants provided information regarding one of the leaders of the smuggling
organization, but the information “had nothing to do with either of the
[D]efendants.” Agent Barr further testified that he was able to separate the
knowledge he acquired from the confidential informants from his other knowledge,
and his testimony and opinions would not change if he disregarded the information
from the confidential informants. Agent Barr refused to disclose the identities of
the confidential informants out of fear for their safety, and the district court did not

-- 2 of 5 --

3
order disclosure. However, the district court did allow defense counsel to cross-
examine Agent Barr about the confidential informants and elicit that one
confidential informant had a felony alien smuggling conviction, the other had a
misdemeanor battery conviction, and that both confidential informants provided
information in order to benefit themselves regarding their own possible
prosecutions.
Defendants first argue that the district court violated their Confrontation
Clause rights and abused its discretion under Federal Rule of Evidence 705 by
allowing Agent Barr to testify based on confidential informant information without
ordering disclosure of the confidential informants’ identities. Such errors are
reviewed under the harmless error standard. See United States v. Larson, 495 F.3d
1094, 1107 (9th Cir. 2007). Assuming, arguendo, that an error occurred, it was
harmless because Agent Barr testified that his testimony would not change even if
he disregarded the information from the confidential informants.
Defendants next argue that the district court abused its discretion by
allowing Agent Barr’s expert testimony because he repeated hearsay without
applying any expertise. An expert may be used to testify to matters outside the
expected knowledge of the average juror. Fed. R. Evid. 702; United States v.
Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). Expert witnesses may rely on

-- 3 of 5 --

4
inadmissible hearsay in forming their opinions, so long as it is of a type reasonably
relied upon by experts in their field. Fed. R. Evid. 703; Hankey, 203 F.3d at 1169.
For example, law enforcement agents testifying as experts may rely on
inadmissible hearsay in describing the structure and operations of a criminal
organization. Id.
Here, Agent Barr testified that scouts often observe remote areas for law
enforcement activity before a crossing, family members in the United States
typically pay the smuggling fee after the alien arrives, Western Union is often used
for payment, and exchanges usually happen in large and busy parking lots. He
further testified as to the amount of a typical fee and why smugglers prefer smaller
airports. Thus, Agent Barr used his knowledge as a law enforcement official to
explain matters outside the expected knowledge of the average juror, and his
testimony was properly admitted.
Finally, Defendants argue that the district court violated their due process
rights by not ordering disclosure of the confidential informants’ identities or, at a
minimum, holding an in camera hearing on the issue. The burden of proving a
need for disclosure is on the defendant, and it is not satisfied if the defendant raises
a mere suspicion that the identities might be helpful. United States v. Kim, 577
F.2d 473, 478–79 (9th Cir. 1978).

-- 4 of 5 --

5
Here, Defendants raise no more than a speculative argument that the
confidential informants could know that Defendants were not members of the
conspiracy. Moreover, even this speculative argument was not raised to the district
court. Therefore, the district court did not err by declining to hold an in camera
hearing or ordering disclosure of the confidential informants’ identities.
AFFIRMED.

-- 5 of 5 --