USA V. LIZBETH GUTIERREZ, No. 14-50383 (9th Cir. 2015)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 17 2015 MOLLY C. DWYER, CLERK UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 14-50383 U.S. COURT OF APPEALS D.C. No. 3:13-cr-03517-JLS-1 v. MEMORANDUM* LIZBETH GUTIERREZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Argued and Submitted September 3, 2015 Pasadena, California Before: O’SCANNLAIN, FISHER and BYBEE, Circuit Judges. Lizbeth Gutierrez appeals her conviction for importing methamphetamine and the district court’s denial of her post trial motions for an acquittal or new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1. The government’s disclosure of impeachment evidence regarding its expert witness Goldberg did not violate Brady v. Maryland, 373 U.S. 83 (1963). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Although the evidence was not disclosed until trial, Gutierrez was able to impeach Goldberg during cross-examination, highlight the evidence in her closing argument and recall Goldberg for further cross-examination. See United States v. Vgeri, 51 F.3d 876, 880 (9th Cir. 1995) (holding the disclosure of evidence during trial did not violate Brady because the defendant could – and did – use the evidence on cross-examination); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (holding the disclosure of documents during trial did not violate Brady, in part, because the defendant could “recall [the relevant witness] and reexamine him about the documents”). Gutierrez has not persuasively shown any prejudice from the late disclosure. 2. The district court did not err in permitting Goldberg’s testimony to stand. Striking the testimony would have been inappropriate because the government’s untimely disclosure was merely an inadvertent mistake, resulting from an oversight of Gutierrez’s withdrawal of her stipulation. See United States v. Finley, 301 F.3d 1000, 1018 (9th Cir. 2002) (holding a court should strike testimony only when the violation is “willful and motivated by a desire to obtain a tactical advantage” (quoting Taylor v. Illinois, 484 U.S. 400, 415 (1988))). 3. The government was not required to prove Gutierrez knew the imported substance was methamphetamine. Each of the arguments Gutierrez raises is 2 foreclosed by United States v. Jefferson, 791 F.3d 1013, 1017-19 (9th Cir. 2015), which held “a defendant’s knowledge of the type and quantity of the controlled substance he imports is not . . . an element of the offense.” Id. at 1016; see also id. at 1017-19. 4. Gutierrez failed to raise in the district court her argument that the jury instructions were impermissibly vague because they used the words “some other prohibited drug” instead of “controlled substance.” The argument is therefore waived. See Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015). 5. Because the district court did not err in admitting Goldberg’s testimony, rejecting Gutierrez’s proposed jury instruction and finding there was no Brady violation, Gutierrez’s remaining challenges necessarily fail. AFFIRMED. 3
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