Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^** 

Asuncion Pena-Fernandez appeals his conviction for possession with intent to distribute heroin. We affirm.

DISCUSSION

Pena-Fernandez claims the district court abused its discretion by admitting a videotaped reenactment of his crime. The government explained that Pena-Fernandez testified that there was a slope in the terrain that might have made it seem like he was running toward Mexico, when actually he was going toward the border patrol vehicle. The reenactment illustrated the agents' testimony that the terrain was such that Pena-Fernandez' claim was unlikely. We find this explanation satisfactory. Although Pena-Fernandez claims that the videotape reenactment was not an accurate depiction of what happened, he fails to specify the alleged prejudicial inaccuracies (apparently some of the admitted nonprejudicial inaccuracies were explained to the jury). It is impossible to address such a generalized claim. Thus, while this type of demonstrative evidence can be prejudicial and we caution the government in its use of such evidence, we do not find prejudice in this case. The district court therefore did not abuse its discretion in admitting the tape.

Pena-Fernandez claims the district court abused its discretion by allowing an expert to testify that " [s]omebody that's transporting pound quantities [of heroin] ... usually has been involved with the organization for a long time." He argues that this is an implicit assertion that he had previously behaved criminally. We disagree. The expert testified generally to the routine practice of drug organizations. He was specifically cross-examined about his knowledge of the defendant's background. He had none. Moreover, even if this type of expert testimony is unnecessary, Pena-Fernandez has not demonstrated prejudicial error. Thus, the district court did not abuse its discretion by allowing the testimony.

Pena-Fernandez' final claim is that the two-level increase for obstruction of justice was erroneous. He attempted to escape while in custody pending sentencing. The most recent edition of the Sentencing Guidelines clearly indicates that the intent has always been that this type of behavior warrants the two-level increase. The commentary to Sec. 3C1.1 states, " [t]he following is a non-exhaustive list of examples of the types of conduct to which this enhancement applies: ... (e) escaping or attempting to escape from custody before trial or sentencing .... United States Sentencing Commission, Guidelines Manual, Sec. 3C1.1, comment. (n.3) (Nov. 1990). The district court therefore properly applied the two-level increase.

The conviction of Pena-Fernandez is therefore AFFIRMED.