FILED
                           NOT FOR PUBLICATION                              JAN 04 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50554

             Plaintiff - Appellee,               D.C. No. 3:08-cr-00283-IEG-1

  v.
                                                 MEMORANDUM *
FRANCISCO KELLY-PALMER, AKA
Enrique Ayon-Cortez,

             Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                     Argued and Submitted December 8, 2009
                              Pasadena, California

Before: PREGERSON, NOONAN and PAEZ, Circuit Judges.

       Francisco Kelly-Palmer (“Kelly-Palmer”) appeals his conviction under 8

U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

whether there has been a violation of a Defendant’s Sixth Amendment right to

present a defense and Fifth Amendment right to due process. United States v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Bahamonde, 

, 1228 (9th Cir. 2006). We state the facts only as

necessary to explain our decision and we affirm.

      First, the district court did not violate Kelly-Palmer’s constitutional rights

by precluding Kelly-Palmer from testifying about what his grandfather told him

about his place of birth. We review a district court’s decision not to admit

evidence under a hearsay exception for abuse of discretion . United States v. Yida,

, 949 (9th Cir. 2007). The district court did not abuse its discretion

when it found that such testimony by Kelly-Palmer was inadmissible hearsay

which did not fall under any of the exceptions to the hearsay rule. United States v.

Rahm, 

, 1410 (9th Cir. 2003). Moreover, the exclusion of this

hearsay testimony did not violate Kelly-Palmer’s due process rights, because the

testimony did not bear “persuasive assurances of trustworthiness.” Chia v.

Cambra, 

, 1003 (9th Cir. 2004); see also Chambers v. Mississippi,

(1973).

      Second, the district court did not violate Kelly-Palmer’s constitutional rights

when it excluded Kelly-Palmer’s expert witness testimony. We review a district

court’s decision to admit expert testimony for abuse of discretion. United States v.

Bahena-Cardenas, 

, 1078 (9th Cir. 2005). Expert evidence must be

both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 

,


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597 (1993). The district court did not abuse its discretion in finding the expert

testimony unreliable.

      Ultimately, the district court’s two evidentiary rulings did not violate Kelly-

Palmer’s constitutional rights because they did not prevent Kelly-Palmer from

presenting his affirmative defense that he is a U.S. citizen. United States v.

Scheffer, 

, 317 (1998); United States v. Kincaid-Chauncey, 

, 935 (9th Cir. 2009). We therefore affirm.

AFFIRMED.




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