Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

MEMORANDUM^* 

Appellant-defendant Daniel Carreon ("Carreon") appeals his jury conviction of one count of harboring two aliens unlawfully present in the United States, in violation of 8 U.S.C. § 1324(a) (1) (C) (1988). On appeal, Carreon asserts the trial court admitted unfairly prejudicial evidence concerning the physical conditions of Carreon's property where legal and undocumented aliens were staying. Additionally, Carreon contends the harboring instruction misstated the elements of the offense and his theory of defense. We affirm.

DISCUSSION

Carreon contends the district court allowed unfairly prejudicial evidence before the jury, in violation of Fed.R.Evid. 403, by admitting testimonial evidence and photographic exhibits concerning the physical conditions on Carreon's property where some undocumented aliens were found to be staying.

The physical conditions evidence was relevant to the harboring offense element of intent. This circumstantial evidence tended to show Carreon's knowledge that he was substantially assisting in the harboring of aliens unlawfully present in the United States. See, e.g., United States v. Rubio-Gonzalez, 674 F.2d 1067, 1071-72 (5th Cir. 1982). Thus, the evidence of the squalid conditions in Carreon's backyard--in contrast with the ordinary appearance of the front of the house--was probative on whether Carreon was creating a place for undocumented aliens to remain and be concealed. This evidence also tended to show that absent the undocumented status of the aliens, it was doubtful they would otherwise inhabit a place with such undesirable conditions.

Further, the district court's determination that this relevant evidence was not substantially outweighed by unfair prejudice has not been shown to be an abuse of discretion. United States v. Layton, 855 F.2d 1388, 1402 (9th Cir. 1988) (noting considerable deference afforded to district court on Rule 403 determinations), cert. denied, 109 S. Ct. 1178 (1989); United States v. Bailleaux, 685 F.2d 1105, 1111 & n. 2 (9th Cir. 1982) (prejudice alone is insufficient; unfair prejudice is required).

We review de novo Carreon's instruction challenge. United States v. Mason, Nos. 88-5478, 5481, slip op. 4591, 4600 (9th Cir. May 10, 1990) (theory of defense); United States v. Douglass, 780 F.2d 1472, 1475 (9th Cir. 1986) (elements of offense). After reviewing the transcript of the trial and the hearing on the motion to correct the record pursuant to Fed. R. App. P. 10(e), we conclude Carreon failed to object properly to the instruction as required by Fed. R. Crim. P. 30. Therefore, this issue is governed by the plain error standard. See generally United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989).

Plain error on an instruction will be found only in exceptional circumstances, where the alleged error is highly prejudicial and there is a high probability it materially affected the verdict. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1573 (9th Cir. 1989). Although the disputed instruction added an element to the offense, Carreon has not shown he was sufficiently prejudiced. Once the physical conditions evidence was properly admitted, as we have determined, the Government had a sufficient basis to argue the conditions in which undocumented aliens were living. Therefore, Carreon has not established the harboring instruction was plain error.

AFFIRMED.