Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^* 

Defendant Luis Alberto Ortiz-Aispuro appeals his conviction for importation of marijuana and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 952, 960 and 841(a) (1), respectively. He contends that the district court improperly denied his motion for a continuance to examine a worksheet used by a government chemist in preparing his official report identifying the substance as marijuana. Because we conclude that the district court's denial of a continuance, even if error, was harmless, we affirm. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1051 (9th Cir. 1990).

Ortiz-Aispuro contends that the chemist's report did not include the methods used to test the substance. He was entitled to a continuance, he argues, to examine the chemist's accompanying worksheet and consult treatises and experts in preparation for his defense that the government could not prove that the marijuana he possessed was "Cannabis sativa-L," the sub-species prohibited by 21 U.S.C. § 802(16).

Assuming, without deciding, that the district court's denial of a continuance was an abuse of discretion, we hold that the error was harmless. See United States v. Barrett, 703 F.2d 1076, 1081 (1983). Under the nonconstitutional harmless error standard, we will not reverse a trial court's decision if the prejudice resulting from the error was more probably than not harmless. See id. at 1082.

After waiving his Miranda rights, Ortiz-Aispuro confessed that the marijuana was his. In addition, the government introduced evidence of its visual and nostril inspection of the substance found in the defendant's trunk, as well as the fact that a narcotics dog had responded to the rear seat and trunk area of the car. The government chemist's report confirmed that the substance was marijuana. There was thus substantial evidence that defendant committed an illegal act.

Although defendant claims that he was deprived of the opportunity to examine the government's methods for identifying the substance, he has made no showing that a brief recess would have produced any probative evidence that the government's methods were faulty. As we stated in United States v. Hernandez, 608 F.2d 741, 746 (9th Cir. 1979), "What might have been discovered had a continuance been granted is inadequate to establish prejudice." We thus conclude that the denial of a continuance, even if error, was more probably than not harmless. See Barrett, 703 F.2d at 1082 (failure to grant a continuance harmless where evidence of guilt was substantial); United States v. Burke, 506 F.2d 1165, 1170 (9th Cir. 1974) (erroneous admission of photographic expert's testimony harmless in view of other overwhelming evidence).

AFFIRMED.