United States v. Ramon Palacios

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 10 2024
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    22-50263

                Plaintiff-Appellee,             D.C. No.
                                                3:20-cr-01434-LAB-1
 v.

RAMON HUMBERTO PALACIOS,                        MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                       Argued and Submitted May 10, 2024
                              Pasadena, California

Before: WARDLAW, CHRISTEN, and BENNETT, Circuit Judges.

      Ramon Palacios appeals his convictions for importing THC, conspiracy to

import THC, and smuggling goods into the United States. Because the parties are

familiar with the facts, we do not recount them here. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      We review Palacios’s Confrontation Clause challenge for plain error because



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
he did not object to the challenged testimony on Confrontation Clause grounds.

See United States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012). “Relief for plain

error is available if there has been (1) error; (2) that was plain; (3) that affected

substantial rights; and (4) that seriously affected the fairness, integrity, or public

reputation of the judicial proceedings.” United States v. Cannel, 517 F.3d 1172,

1176 (9th Cir. 2008).

      The district court plainly erred when it permitted Special Agent Pham to

paraphrase to the jury the contents of the certification Special Agent Paynter

completed to authenticate cellphone records pursuant to Federal Rule of Evidence

902(14). The statements in Special Agent Paynter’s certification, as relayed to the

jury by Special Agent Pham, were testimonial under Supreme Court precedent.

See Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011) (“A document created

solely for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks

as testimonial.” (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311

(2009))). The statements served the evidentiary purposes of documenting the

forensic process Paynter used to extract the cellphone records, establishing

Paynter’s training in that process, confirming the reliability of the process, and

connecting the cellphone records to a cellphone owned by Palacios. See Melendez-

Diaz, 557 U.S. at 311 (holding that certificates of analysis reporting the results of

forensic drug tests were testimonial statements); Bullcoming, 564 U.S. at 652


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(holding that the Confrontation Clause forbids the state from introducing a

certification “through the in-court testimony of a[nother] scientist who did not sign

the certification or perform or observe the [blood alcohol] test reported in the

certification”); United States v. Brooks, 772 F.3d 1161, 1167–70 (9th Cir. 2014)

(concluding that it is inconsistent with the Confrontation Clause for a witness to

relay to the jury an absent witness’s testimonial statements to connect the

defendant to another piece of evidence). The “narrow exception” to the

Confrontation Clause for a clerk’s certificate of authenticity is inapplicable here

because that exception is limited to authentication of an existing “official record—

or a copy thereof—for use as evidence.” Melendez-Diaz, 557 U.S. at 322. “[T]he

admission of the [challenged testimony] was clear or obvious error” under

established precedent and thus “constitutes plain error.” United States v. Macias,

789 F.3d 1011, 1019 (9th Cir. 2015).

      However, the district court’s error did not affect Palacios’s substantial rights

because the introduction of Special Agent Paynter’s statements did not “affect[] the

outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,

734 (1993). Palacios argues that, absent the challenged testimony, the jury would

not have had a basis to tie the cellphone records to him, but some of those records

included Palacios’s name and photograph. And, aside from the cellphone records,

the Government introduced other evidence, including expert testimony, to show


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that Palacios knew that there were drugs hidden in his gas tank. Palacios has not

shown that the result of his trial would have been different absent the challenged

testimony. See id.

      We do not address the remaining issues Palacios raises on appeal. The

parties agree that Palacios’s sentencing-phase claims are moot because he has been

released from the Bureau of Prisons, and Palacios conceded in his opening brief

that his Speedy Trial Act challenge fails in light of our decision in United States v.

Orozco-Barron, 72 F.4th 945 (9th Cir. 2023), cert. denied, 144 S. Ct. 1373 (2024).

      AFFIRMED.




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