USA V. SERGIO TELLO-CARRILLO, No. 12-50206 (9th Cir. 2013)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 22 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 12-50206 UNITED STATES OF AMERICA, D.C. No. 3:11-cr-03698-JLS-1 Plaintiff - Appellee, v. MEMORANDUM* SERGIO TELLO-CARRILLO, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Argued and Submitted April 11, 2013 Pasadena, California Before: REINHARDT and MURGUIA, Circuit Judges, and ZOUHARY, District Judge.** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. 1 Sergio Tello-Carrillo ( Tello ) appeals his conviction of 8 U.S.C. § 1324(a)(2)(B)(ii) (Bringing in Illegal Aliens for Financial Gain) & 18 U.S.C. § 2 (Aiding and Abetting). Tello raises four challenges to his conviction. We reject each challenge and affirm. 1. Tello contends that the testimony of the Border Patrol agents raised the inference that he was identified as a foot guide on the day of the incident because he was already on a list of suspected foot guides. This inference, Tello argues, violated the district court s pre-trial ruling and thus constituted prosecutorial misconduct. Tello argues further that this inference violated his Confrontation Clause rights. Tello s challenge fails for three reasons. First, the record does not support Tello s contention. Based on the totality of the agents testimony, a juror was just as likely, if not more likely, to believe that Tello was identified as a foot guide on the day of the incident because of his conduct that day, not because he was on a list of suspected foot guides. Second, Tello has failed to identify a viable legal basis for relief. The district court found that the government properly followed its pretrial ruling, thus foreclosing Tello s theory of prosecutorial misconduct. Additionally, the alleged inference is neither a testimonial statement nor hearsay, and thus raises no Confrontation Clause concerns. Cf. Crawford v. Washington, 2 541 U.S. 36, 59 & n.9 (2004). Finally, even if the inference were legally improper, it was not sufficiently prejudicial to warrant a mistrial. 2. Tello s challenge to the admissibility of the rebuttal testimony of Agent Acevedo is without merit. Because Acevedo s testimony was based on his personal experience and was relevant to assessing the plausibility of Tello s defense theory, it was admissible as lay testimony under Federal Rule of Evidence 701. 3. Tello s fair trial challenge based on the presence of Border Patrol agents in the courtroom during closing argument is foreclosed by Holbrook v. Flynn, 475 U.S. 560 (1986), in which the Supreme Court held that the presence of uniformed law enforcement officers was not so inherently prejudicial as to pose an unacceptable threat to defendant s right to a fair trial. Id. at 572. Here, the Border Patrol agents were not even uniformed. 4. Tello s sufficiency of evidence challenge is likewise without merit. The testimony of Leonila Gatica-Analco, when viewed in the light most favorable to the prosecution, United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc), was adequate to allow any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). AFFIRMED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
