Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

No. 90-10268.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and RYMER, Circuit Judges, and McDONALD, District Judge^* 

MEMORANDUM^** 

Jose Banda-Morantes appeals from his conviction following a jury trial for transporting and harboring illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B) & (C). He challenges his conviction on the grounds that the district court improperly admitted evidence of a Western Union money order telegram. He also appeals his sentence claiming that the application of U.S.S.G. Sec. 2L1.1 to increase his offense level results in impermissible double counting of a prior conviction. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Banda first contends that the district court erred in admitting Western Union documentation of a money transfer of $1000 from Ana Diaz-Rivas to a Jose Banda. In essence, Banda claims that the documents were not properly authenticated because the government failed to provide evidence that Banda actually picked up the money and therefore did not meet its burden of showing a sufficient connection between Banda and the documents. We disagree and hold that the district court did not abuse its discretion in admitting the evidence.

Fed.R.Evid. 901(a) provides that evidence is authenticated when there is "evidence sufficient to support a finding that the matter in question is what its proponent claims." The government has satisfied this requirement when it makes "a prima facie showing of authenticity ' "so that a reasonable juror could find in favor of authenticity or identification." ' " United States v. Blackwood, 878 F.2d 1200, 1202 (9th Cir. 1989) (per curiam) (quoting United States v. Black, 767 F.2d 1334, 1342 (9th Cir.), cert. denied, 474 U.S. 1022, 106 S. Ct. 574, 88 L. Ed. 2d 557 (1985)).

The government presented ample evidence showing that Banda was connected to the Western Union transaction.¹  Ana Diaz-Rivas, identified on the documents as the sender, testified that a man identifying himself as Jose Banda instructed her to send $1000 for her cousin Gladis Gevarra-Rivas via Western Union. Ms. Diaz further testified that she was told to send the money in the name of Jose Banda, and that after she did send the money, she was called back to the office to correct the last name of the recipient from "Panda" to "Banda." Ms. Gevarra, who identified Banda in court, testified that Banda told her that Ana had sent the money and that the last name was mistaken. She further stated that after she was arrested, Banda offered her $100 and to "send the money back to Ana" if she would say that she did not know him. The government also introduced testimony from Ms. Swanson, a Western Union employee, that the money order control number for the transaction was the same on all the documents and on the money transfer. The district court did not err in admitting the evidence.

Banda also claims that the application of U.S.S.G. Sec. 2L1.1(b) (2) impermissibly double counts his prior conviction for smuggling illegal aliens. Because he did not raise this as an objection to the presentence report, nor otherwise object to this adjustment in the district court, Banda has waived his right to challenge the increase on appeal. United States v. Visman, 919 F.2d 1390, 1393-94 (9th Cir. 1990); United States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990).

AFFIRMED.