NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-50137 Plaintiff-Appellee, D.C. No. 3:19-cr-05151-AJB-1 v. DAVID RIVERA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding Argued and Submitted June 8, 2023 Pasadena, California Before: M. SMITH and DESAI, Circuit Judges, and AMON,** District Judge. David Rivera appeals his conviction for unlawful attempted entry by an alien in violation of 8 U.S.C. § 1325(a)(1), and unlawful attempted reentry by an alien in violation of 8 U.S.C. § 1326. The parties’ familiarity with the briefing and record is assumed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. 1. The timing of the superseding indictment, which added the § 1325 charge and mooted a recently filed Speedy Trial Act motion, did not raise a presumption of prosecutorial vindictiveness. See United States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007) (district court’s vindictive prosecution decision reviewed de novo). Routine trial preparation commenced following Rivera’s arrest and continued for less than three months until grand juries shut down due to COVID-19. Following the hiatus, the government obtained the superseding indictment at the earliest possible opportunity. The district court properly acknowledged that the government’s charges “frequently” evolve pretrial and that “[t]he pandemic . . . also played into the lack of an earlier indictment.” These circumstances pose no “realistic likelihood of ‘vindictiveness.’” United States v. Goodwin, 457 U.S. 368, 381, 384 (1982) (citation omitted) (cautioning against finding a presumption of vindictiveness pretrial when “the prosecutor’s assessment of the proper extent of prosecution may not have crystallized”); United States v. Kent, 649 F.3d 906, 913 (9th Cir. 2011).1 2. Assuming arguendo that the district court abused its discretion under Federal Rule of Evidence 403 by excluding from evidence a June 2004 form from Rivera’s A-File (the “Form”), such error was harmless. The Form contained a note 1 Rivera’s motion for this Court to take judicial notice of certain facts that the government provided to the district court in a separate case, Dkt. 21, is denied as moot. Even were we to consider those facts, our conclusion that Rivera failed to raise a presumption of vindictiveness is unchanged. 2 from an immigration officer that read: “1) nationality of alien’s parents? please determine if any possible claim to derivative cit before removing.” Under Rule of Evidence 403, relevant evidence may be excluded on the grounds that it would mislead the jury, confuse the issues, result in unfair prejudice, or lead to undue delay. See United States v. Espinoza-Baza, 647 F.3d 1182, 1189–91 (9th Cir. 2011) (stating that “[w]e afford a district …
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