NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ALEXANDRO NECOCHEA-VARELA, 

Defendant-Appellant.

No. 16-50173 

D.C. No. 

3:15-cr-02508-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted July 14, 2017

Pasadena, California

Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN,

** District 

Judge.

Appellant Alexandro Necochea-Varela appeals the district court’s judgment 

and sentence finding him guilty of alien smuggling in violation of 8 U.S.C. 

1324(a)(1)(A)(ii) and sentencing him to 37-months incarceration. Appellant 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Edward M. Chen, United States District Judge for the 

Northern District of California, sitting by designation.

FILED

JUL 28 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-50173 

appeals on several grounds. First, he contends that the government engaged in 

vindictive prosecution by filing additional charges relating to prior smuggling 

events in 2011 and 2012; these charges were added on the eve of trial after 

Appellant had turned down a plea offer. Second, the district court failed to treat 

Appellant’s statement on March 27, 2012 (that he was smuggling people into the 

United States and was arrested 10 days before for smuggling) under Federal Rule 

of Evidence 404(b) and instead impermissibly treated the statement as a 

confession. Third, there was insufficient evidence that Appellant knowingly 

transported the illegal alien Rodrigo Arenas-Ventura in order to help him remain in 

the United States. Fourth, the cumulative errors warrant reversal of Appellant’s 

conviction. We affirm.

1. There is no presumption of vindictiveness because added charges 

were the subject of a pre-trial plea bargain. See United States v. Goodwin, 457 

U.S. 368, 381 (1982); United States v. Kent, 649 F.3d 906, 914 (9th Cir. 2011). 

The charges were added before plea negotiations ended. Even if such a 

presumption obtained, the district court’s finding of no actual vindictiveness was 

not “clear error.” See United States v. Torlai, 728 F.3d 932, 937 (9th Cir. 2013). 

There was a factual basis for the district court’s finding: the prosecutor stated that 

she was not aware of Appellant’s prior arrest in 2012 until, when during 

preparation for trial, agents handed over the reports related thereto. The prosecutor 
3 16-50173 

immediately notified Appellant and continued plea negotiations prior to bringing 

the charges. 

2. The district court did not admit the March 27 statement solely under 

Rule 404(b). The government never sought to admit the statement under Rule 

404(b). It indicated early on that it intended to use the statement as a confession. 

The court admitted the statement not as evidence of other crimes but as direct 

evidence of the charged crime (an admission either specifically of the March 15 

conduct or that Appellant was engaged in alien smuggling during the relevant time 

period).

Thus, the district court did not err by failing to instruct the jury to limit its 

consideration of the March 27 statement to Rule 404(b) or by failing to re-weigh 

the risk of prejudice under Rule 403. Nor did the prosecutor commit misconduct 

by treating the statement as a confession. Moreover, the district court was not 

required to hold a hearing under Rule 104(c)(1) to admit the March 27 statement as 

a confession in the absence of Appellant’s request. See Notes of Committee on the 

Judiciary, House Report No. 93–650.

In any event, any error by the district court is subject to plain error review as 

Appellant did not object to admission of the statement or request at trial a limiting 

instruction. Under plain error review, none of the errors Appellant raises on appeal 

affected Appellant’s substantial rights. See United States v. Banks, 514 F.3d 959, 
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974, 976 (9th Cir. 2008). Even if the March 27 statement were admitted only 

under 404(b) to prove knowledge, that knowledge was powerful evidence of 

Appellant’s guilt as it was the element of the charge primarily in dispute. 

Moreover, other evidence against Appellant was strong for the reasons outlined

below. 

3. Sufficient evidence existed to support a guilty verdict under Section 

1324(a)(1)(A)(ii), which requires a showing that Arenas was not lawfully in the 

United States, that Appellant knew or recklessly disregarded the fact that Arenas 

was not lawfully in the United States, and that Appellant knowingly transported 

Arenas in order to help him remain in the United States. See United States v. 

Angwin, 271 F.3d 786, 806 (9th Cir. 2001); 9th Cir. Model Jury Instruction 9.2 

(2010). First, Appellant does not contest the sufficiency of the first element. 

Second, in addition to the confession of his involvement in alien smuggling, the 

circumstances in which Appellant was observed and then arrested strongly 

indicated Appellant knew of Arenas’s illegal status. Third, Appellant provided 

“transportation for one leg of illegal aliens’ migration to locations within the 

United States” by taking Arenas from the desolate highway near the border to the 

town of El Centro on Arena’s trek to Bakersfield, which demonstrates that 

Appellant intended to help Arenas remain in the United States illegally. United 

States v. Hernandez-Guardado, 228 F.3d 1017, 1023-24 (9th Cir. 2000). 
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4. There is no error to aggregate. Even if there were, given the strong 

evidence of guilt, no cumulative error would warrant reversal.

We therefore affirm the district court’s judgment and sentence. 

AFFIRMED.