US v. Gonzalez-Flores
No. 03-10656 (8-12-05). Defendant was convicted of alien smuggling. At trial, overthis objection, the court permitted testimony as to the injuries suffered by two of the aliens: two young girls who suffered heat stroke and came close to dying. The 9th held that such evidence should have been precluded under FRE 403 because it added little to the charge (were aliens smuggled in) and added a lot to the sympathy and plight of the aliens at the hands of the defendant. the district court's decision to give the gov't some latitude to set the context and explain why the defendant went for water (because he was responsible) was error. Although the gov't did not argue harmlessness if there was error, the 9th nonetheless discusses whether the court of appeals sua sponte can find harmlessness. It decides it could because the record was slight, the evidence overwhelming and the context of the error would not result in unfairness. the 9th also held that the defendant didn't waive a Booker challenge, error wasn't invited by arguing that certain evidence wasn't in the elements, and so the case is remanded in light of Ameline.