                               NOT FOR PUBLICATION                         FILED
                                                                            JULY 7 2014
                       UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 12-50280

                 Plaintiff - Appellee,             D.C. No. 10CR4400-MMA

     v.
                                                   MEMORANDUM*
JOSE ANGEL SERRANO, Jr.,

                 Defendant - Appellant.


                       Appeal from the United States District Court
                          for the Southern District of California
                       Michael M. Anello, District Judge, Presiding

                         Argued and Submitted February 4, 2014
                                  Pasadena, California

Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief District
Judge.**

          Jose Angel Serrano, Jr. appeals his conviction and sentence for conspiracy to

distribute and possession with intent to distribute MDMA (“ecstasy”) in violation

of 21 U.S.C. §§ 841 and 846. We affirm.
 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
       The Honorable Carol Bagley Amon, Chief District Judge for the United
States District Court for the Eastern District of New York, sitting by designation.

                                            1
     I.   Serrano contends that the district court’s rulings deprived him of his right

to present his entrapment defense to the jury. We review a district court’s non-

constitutional evidentiary rulings for abuse of discretion and “reversal is

appropriate only if the error more likely than not affected the verdict.” United

States v. Ajoku, 718 F.3d 882, 890 (9th Cir. 2013) (internal quotation marks

omitted), vacated, --- U.S. ----, 134 S. Ct. 1872, 188 L. Ed. 2d 905 (2014). If the

ruling precluded the presentation of a defense, our review of the ruling is de novo.

United States v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006) (en banc).

      We do not find the district court’s rulings regarding pretrial discovery and

access to the government informant to be erroneous. Nor do we find that the

district court abused its discretion in declining to give a missing witness instruction

as to the informant, as Serrano did not demonstrate that the informant was

“peculiarly within the power” of the government. See United States v. Noah, 475

F.2d 688, 691-92 (9th Cir. 1973).

      The exclusion of two witnesses’ testimony, which Serrano argues would

have corroborated his defense that he was coerced into committing the charged

crimes, does not constitute reversible error. The district court did not abuse its

discretion in excluding Huerta’s testimony. Although evidence that the informant

intimidated Huerta into participating in a narcotics offense may have been relevant,

the district court made a determination under Federal Rule of Evidence 403 that

                                          2
Huerta’s testimony had limited probative value.         Huerta’s relationship to the

informant was different from Serrano’s and any probative value was outweighed

by the risk of potential prejudice. Because defense counsel did not proffer what

the substance of Dino’s testimony would have been, we cannot say that the district

court’s exclusion of her testimony was reversible error. See United States v.

Morlan, 756 F.2d 1442, 1447 (9th Cir. 1985) (“Rule 103 of the Federal Rules of

Evidence prohibits this court from overturning the district court where the

substance of the evidence was not made known to the court by offer or was not

apparent from the context within which the questions were asked.”), cert. denied,

474 U.S. 837 (1985).

      We also reject Serrano’s contention that the district court improperly limited

defense counsel’s examination of witnesses at trial. The district court’s rulings

regarding the examination of Agent Swisher and Cruz-Navarro were not erroneous.

Even if the district court erred in sustaining some of the prosecutor’s hearsay

objections as to Serrano’s testimony, Serrano was nevertheless able to testify as to

the informant’s alleged inducement and so was not deprived of the opportunity to

present his defense to the jury. Nor do we find that the cumulative effect of the

district court’s rulings was to preclude Serrano from presenting his entrapment

defense.

   II.     Serrano challenges his conviction on the grounds that the evidence at trial

                                           3
established entrapment as a matter of law. We will not disturb the jury’s verdict

unless Serrano can point to “undisputed evidence making it patently clear” that he

was induced to commit the crimes with which he was charged. United States v.

Hart, 963 F.2d 1278, 1283 (9th Cir. 1992). The government introduced evidence

inconsistent with inducement, including Cruz-Navarro’s testimony that Serrano

was interested in finding other buyers, and that Serrano himself obtained the very

large quantity of ecstasy. The government also introduced evidence from which

the jury could conclude that Serrano’s testimony as to inducement was not

credible, including Cruz-Navarro’s testimony, corroborated by government

surveillance, that Serrano’s version of the last, large transaction was not true, and

Cruz-Navarro’s testimony that Serrano did not speak to Cruz-Navarro about the

informant’s purported threats until they were in jail. The jury could have

concluded that the claimed threats were merely part of a post arrest ploy to absolve

himself of liability which included bribing Cruz-Navarro to take the blame for the

drug transactions. Serrano has therefore not demonstrated that no reasonable jury

could have found in favor of the government as to inducement. See United States

v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000).

  III.   Serrano also appeals his 92-month sentence, arguing that the district

court failed to consider his arguments for a reduction based on sentencing

entrapment and that, as a result, his sentence is substantively unreasonable.

                                         4
Serrano’s contention is without merit. The record reflects that the district court in

fact considered Serrano’s arguments regarding sentencing entrapment and then

imposed a sentence significantly below the applicable guideline range.

      Further, we deny Serrano’s request for judicial notice of the transcript of the

informant’s sentencing. The representations made by the informant’s counsel at

his sentencing are not facts to which this Court may appropriately take notice. See

Harris v. Cnty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). To the extent

that Serrano requests this Court to consider the transcript for facts to which judicial

notice may properly be taken, Serrano has not demonstrated these facts to be

relevant to the issues raised on appeal.

      AFFIRMED.




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