UNITED STATES of America, Plaintiff-Appellee, v. Jose Jorge ZAMORA-HERNANDEZ, Defendant-Appellant, 222 F.3d 1046

Opinion by Judge BEEZER; Dissent by Judge D.W. NELSON. BEEZER, Circuit Judge: Jose Jorge Zamora-Hernandez appeals his jury conviction and sentence for transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(l)(A)(ii). He contends that the district court erred in denying his motion to continue his retrial so that he could obtain a transcript of his first trial. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I On March 23, 1998, on Interstate Eight outside of San Diego, two Border Patrol Agents pursued a U-Haul-franchised moving van (“rental truck”) that the agents believed contained illegal aliens. Agents Kartchner and Martinez pulled alongside the vehicle for approximately 30 seconds, and during that time they observed two occupants in the front passenger

section of the rental truck. When the truck eventually stopped, three people exited from the front passenger side of the vehicle and ran away from the agents. Two of the three occupants were apprehended. The agents identified one of them, Zamora-Hernandez, as the driver of the rental truck which also was found to contain 38 illegal aliens. Zamora-Hernandez was subsequently indicted on two counts of transporting illegal aliens in violation of

section 1324(a) (1) (A) (ii). On July 21, 1998, Zamora-Hernandez’ first jury trial commenced. Agent Kartch-ner, the driver of the border patrol vehicle, identified Zamora-Hernandez as the driver of the rental truck. Agent Kartchner testified that he intermittently studied the profiles of the driver and passenger for approximately 30 seconds, while traveling 55 to 60 miles per hour alongside the rental truck, so that he would be able to identify the occupants when the truck was pulled over. Agent Kartchner recalled that the driver and passenger were wearing jackets.

Agent Kartchner stated that once the rental truck had stopped, three passengers exited from the passenger-side door; he recognized only the first and last, both of whom were wearing jackets. He identified Zamora-Hernandez as the third person to exit the truck and the first one that he apprehended. According to Agent Kartchner’s testimony, Zamora-Hernandez’ clothes were cleaner and drier than the clothes of the passengers in the back of the truck.

On redirect, Agent Kartch-ner distinguished Zamora-Hernandez from the other recognized front-seat passenger by noting that Zamora-Hernandez “had probably three or four days worth of beard growth. The other individual did not. The other individual also had a flat top style haircut.” Agent Martinez, the passenger in the border patrol vehicle, also identified Zamora-Hernandez as the driver of the rental truck based on observations during the approximately 30-second period in which the two vehicles were traveling side by side.

Agent Martinez testified that he also saw the driver through the rearview mirror of the truck “flagging his hands around.” Agent Martinez corroborated the following facts: 1) the driver and passenger were wearing jackets; 2) three people exited the rental truck from the passenger-side door; 3) the first person to exit was the previously observed passenger and the third person was the driver; and 4) he identified the driver as Zamora-Hernandez.

Agent Martinez testified that he focused predominately on the hair and the eyes of the two men in making his identification and he was able to distinguish the passenger and the driver because the former’s “hair was slightly lighter and he was younger.” As compared to the aliens in the back of the truck, Agent Martinez stated that the driver and passenger “were clean. Their clothes were clean and their pants were still dry. No dirt on their shoes and no mud, very neat and ke[m]pt appearances.” Zamora-Hernandez denied driving the truck and testified that he did not know how to drive.

In his defense, Zamora-Hernandez testified that he was himself an illegal alien and not an alien smuggler. He stated that he was one of 39 illegal aliens who walked eight to ten hours through muddy hills over the border. Once across, the group waited for a rental truck to transport them further into the United States. When the vehicle arrived, the aliens were directed to climb into the back of the truck. Zamora-Hernandez attempted to get into the rear of the truck, but was pulled down by his backpack and instructed to enter the cabin of the rental truck. Inside the front

section of the truck, he was joined by the driver and another passenger. Zamora-Hernandez was instructed to lie down on the floor of the vehicle so that only the driver and other passenger would be visible to onlookers. When the border patrol pulled over the rental truck, Zamora-Hernandez followed the other passenger out of the truck and fled with him before being apprehended by Agent Kartchner. At the close of the two-day trial, the case was submitted to the jury. The jury deadlocked, and at 4:15 p.m. on Wednesday, July 22, 1998, the court declared a mistrial. Retrial was set for the following day.

That evening, Zamora-Hernandez’ counsel contacted the government to inform them that he would be seeking a continuance for the purpose of obtaining a transcript of the mistrial. Defense counsel also dispatched a runner to deliver the motion to the court. The next morning the court denied the motion. The second trial commenced immediately thereafter, as scheduled. The government presented its entire case that Thursday. Agent Kartchner testified much as he had two days prior, identifying Zamora-Hernandez as the driver of the rental truck. He was then excused.

Agent Martinez also repeated his identification of Zamora-Hernandez as the driver. On cross-examination, Agent Martinez recalled his observation of Zamora-Hernandez through the rearview mirror of the rental truck. He stated that Zamora-Hernandez was “motioning with his hands” by waving one hand at a time. The defense called two witnesses, including Zamora-Hernandez, that Thursday after which the court continued the case until Tuesday morning to enable Zamora-Hernandez’ aunt to travel to court to testify as a character witness.

Prior to recess, the court instructed the jury, as it had at the outset of the trial, not to “discuss the case among yourselves or anyone else and [not to] form or reach an opinion regarding the case until it’s finally submitted to you.” On Friday, Zamora-Hernandez subpoenaed Agent Martinez to return to court on Tuesday. On Monday, defense counsel obtained the agent’s testimony from the first trial, as well as his testimony in the second trial. On Tuesday, the second day of trial, Zamora-Hernandez recalled Agent Martinez to the stand to highlight inconsistencies in the agent’s testimony between the two trials.

First, Agent Martinez acknowledged that he had previously testified that the shoes Zamora-Hernandez wore when he was arrested were not dirty or muddy. When presented with the shoes on Tuesday, he noted that they had dirt on them. Second, the agent recalled testifying during the second trial that Zamora-Hernandez had waved one hand at a time while driving the rental truck. Defense counsel attempted to impeach Agent Martinez with his testimony from the first trial that the driver “started flagging his hands around” and “was waving his hands around.” (emphasis added).

The jury convicted Zamora-Hernandez of transporting illegal aliens. On December 14, 1998, the court sentenced him to 15 months in prison and three years supervised release. Zamora-Hernandez timely appealed. II The principal issue on appeal is whether Zamora-Hernandez was prejudiced by the district court’s denial of a continuance. We review the district court’s decision for an abuse of discretion. See United States v. Garrett, 179 F.3d 1143, 114445 (9th Cir.1999) (en banc).

Four factors guide our case-specific review: 1) Zamora-Hernandez’ diligence in preparing his defense prior to the trial date; 2) whether the continuance would have satisfied his needs; 3) the inconvenience a continuance would have caused the court and the government; and 4) “the extent to which [Zamora-Hernandez] might have suffered harm as a result of the district court’s denial.” United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.), amended by 764 F.2d 675 (9th Cir.1985). The fourth factor is most critical. See United States v. Mejia, 69 F.3d 309, 316 (9th Cir.1995).

Assuming without deciding that the other three factors weigh in Zamora-Hernandez’ favor, to prevail he must still demonstrate “at a minimum that he has suffered prejudice as a result of the denial of his request.” Flynt, 756 F.2d at 1359. Zamora-Hernandez fails to make such a showing. In drawing this conclusion, we focus on “the extent to which [Zamora-Hernandez’] right to present his defense has been affected.” Mejia, 69 F.3d at 318 n.ll. The district court’s denial of the continuance prevented Zamora-Hernandez from obtaining a complete transcript of his first trial prior to the commencement of his second trial.

At oral argument, Zamora-Hernandez conceded that a subsequent review of the entire transcript indicated that only Agent Martinez’ testimony had changed between the two trials. Zamora-Hernandez was able to secure this testimony by Monday, however, and used it to impeach Agent Martinez on the second day of the retrial.

Zamora-Hernandez argues that the delay in obtaining Agent Martinez’ testimony prejudiced him because: 1) it prevented his counsel from adequately preparing to cross-examine Agent Martinez on the first day of the retrial; and 2) it provided the jury with five days to consider Agent Martinez’ insufficiently challenged testimony. Neither of these arguments establish that Zamora-Hernandez’ right to present his defense was adversely affected. Zamora-Hernandez was able to remedy any deficiency in Agent Martinez’ cross-examination when he recalled the agent on the second day of trial.

Indeed, the delay possibly aided Zamora-Hernandez because he was able to compare written transcripts of Agent Martinez’ testimony from both trials before questioning him on Tuesday. Any inconsistencies in Agent Martinez’ testimony between the two trials would presumably be clearer after comparing the written transcripts from both proceedings than after comparing the written transcript of the first trial with the agent’s live testimony in the second.

Zamora-Hernandez’ second argument, that the jury was permitted to consider Agent Martinez’ insufficiently challenged testimony for five days, is similarly without merit. It is not uncommon for the trial court to recess before cross-examination is completed or before one side has presented any evidence. In such circumstances, the jury is reminded to keep an open mind and to refrain from evaluating the evidence or credibility of the witnesses until the case is finally submitted. The jury in this case was specifically instructed to this effect, and we presume that the jurors followed the court’s instructions.

See Zafiro v. United, States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). The delay in receiving the transcript of Agent Martinez’ testimony in the first trial did not prevent Zamora-Hernandez from presenting any evidence in his defense. See Mejia, 69 F.3d at 317. Only the timing was affected. Before recess on Thursday, the court specifically instructed the jury to refrain from forming any opinion on the case. Zamora-Hernandez cannot demonstrate any prejudice from the denial of his request for a continuance. The district court did not abuse its discretion in denying the continuance. AFFIRMED. .

The dissent notes that Agent Kartchner’s report does not mention that the driver and passenger were wearing jackets. The dissent also highlights that the report indicates that the agents traveled alongside the rental truck for 300 yards, rather than the approximately 800 yards suggested by Agent Kartchner’s testimony.

These facts were brought out on cross-examination and are irrelevant to the issue on appeal. .Following Agent Kartchner's testimony on redirect, the following exchange occurred: The Court: "Can this witness be excused?” Defense Counsel: "Yes, your Honor.” Government Counsel: "Yes, your Honor.” The Court: "You [Agent Kartchner] are excused.” Reporter's Transcript, vol. II, p. 89. That defense counsel later questioned whether Agent Kartchner had been excused is irrelevant. In any event, the record is void of evidence that Zamora-Hernandez' counsel ever sought to recall the agent.

At oral argument, counsel expressly stated that he found Agent Kartchner’s testimony to be consistent between the two trials and that the transcript of his testimony was not at issue on appeal. . Zamora-Hernandez' aunt was unable to testify on Tuesday because she and her child were ill. The parties stipulated that had she been present she would have testified that Zamora-Hernandez has a reputation of being a good person and that he has never driven a car and does not know how to drive. .

Although Zamora-Hernandez' counsel had ordered the complete transcript on Thursday, time constraints on the court reporter limited what counsel was able to obtain. Following Agent Martinez' testimony on Thursday, defense counsel specifically requested Agent Martinez' testimony from the first trial. . Zamora-Hernandez does not argue that an incomplete transcript prevented him from using Agent Kartchner’s testimony from the first trial to impeach that of Agent Martinez in the second trial.

Nor does Zamora-Hernandez contend that the lack of the complete transcript interfered with the preparation of his own testimony for the second trial. Zamora-Hernandez' testimony was consistent from the first to the second trial; the dissent’s suggestion that he would have appeared more credible during retrial had he been able to review his prior testimony is purely speculative.