United States v. Citlalli Flores

B APPENDIX in the Depicted

Batmobile Motion Picture Replica

Towle America,

UNITED STATES Plaintiff-Appellee, FLORES, Defendant-Appellant. Citlalli No. 14-50027. Appeals, Court of Ninth Circuit.

Argued and Dec. 2014. Submitted Sept. Filed Laura (argued), L. Michelle Wasserman Castetter, Duffy, E. and Bruce R. Office of Diego, Attorney, San the United States CA, Plaintiff-Appellee. PREGERSON, KIM

Before: HARRY WARDLAW, and MARSHA S. McLANE BERZON, Judges. Circuit OPINION WARDLAW, Judge: Circuit her conviction and appeals Citlalli Flores marijuana in importation for of sentence §§ 952 and 960. Al- violation of U.S.C. though we find merit in her claims of misconduct, the misconduct prosecutorial plain level of error. does not rise to the claims of error lack remaining Accordingly, we affirm her convic- merit. tion and sentence. AND

I. FACTUAL PROCEDURAL

BACKGROUND 21, 2012, evening On the of June Flores and Border Pro- stopped Customs (“CBP”) Benjamin Officer Brown tection following as she entered Tijuana, day trip Mexico. When license, her driver’s Flores handed Brown shaking, and she looked her hands were passenger-side back towards the rear car times. Brown became sus- her several car, inspected that area of the picious, turned out packages found of what several then marijuana. to be CBP officers car, where the rest of Flores’s searched (36.24 kilograms they discovered 16.44 marijuana. pounds) of (argued), Morgan D. Stewart Federal of im- was indicted on one count Inc., Flores Diego, Diego, Defenders of San San marijuana in violation of CA, portation Defendant-Appellant. §§ 952 and U.S.C. 960.1 Flores’s proof first trial as that she drugs knew were hidden hung jury. retrial, in a Upon resulted in her car. The also intro- guilty rendered a verdict. dis- jail-recorded duced two phone calls Flores judge imposed trict a two-level enhance- made after her arrest. The first evidenced justice, ment for obstruction of but then concern that her actions had hurt her fam- substantially reduced light her sentence in ily and the other was a request that her § of U.S.S.G. 5K2.0 and the 18 U.S.C. cousin delete “whatever [he] fe[lt] need[ed] 3553(a) factors, § ultimately imposing a to be taken off’ of page. Flores’s Facebook term of 12 incarceration months and one The latter call prompted day in prison.2 her search Facebook account for incrim- inating search, turn, evidence. This led Flores’s defense rested on her lack of to two messages Facebook Flores had sent knowledge that her car was with loaded on June- 21 referencing “carrying” her or marijuana as she entered the United “bringing” marijuana, which were intro- States. She testified while she inwas duced objections over Flores’s and follow- Tijuana 21, 2012, on June gave she her car ing the denial of her suppression motion. to a mechanic Juan named could he so repair her air conditioning more cheaply testified that the postings indicat- than she could have it done in the United ed that she marijuana carried on June She suggested States. that Juan hid- had 21 from the Mexico, United States into marijuana den in the quarter panels of that she was about smuggle marijuana car while it inwas shop. mechanic from Mexico into the United States. Competing experts automotive testified appeal, this argues govern- (1) about whether air conditioning ment committed misconduct by distorting (2) 21; fact working June her testimony in closing. For example, have felt the weight could and noise-damp- prosecutor her, asked “so undisput- it’s ening effect marijuana while she ed that on the day arrest, of your you (3) drove; repairs and car cheaper were in definitely brought drugs between the Unit- Mexico. ed and States Mexico” and “across the government

The noted Flores’s international failure border?”3 prosecutor The provide corroborating evidence also that the asked Flores if it “illegal” repair work was done or that bring marijuana Juan even into misleading Mexico—a existed, and offered evidence of her question given behav- was on trial for ior at the border and following her arrest importation, exportation.4 And, after 952(a) provides: 1. Section "It shall be unlaw- example, prosecutor For your asked: "So import ... ful into United States from testimony you brought drugs from the Unit- any place any outside ... thereof controlled ed States to Mexico but not from Mexico into II,” substance in including schedule I or mar- States?”; you United "Do have an esti- ijuana. you brought mate drugs of when from the Mexico?”; United States into and "You had 2. The explained district adding court drugs again driven once from the United sentence, day the extra to Flores's she would States to Mexico.” eligible be for a reduction in the custodial portion of her sentence. 4.Technically, the answer to the is, "Yes,” prosecutor question § 3. The as 21 also asked Flores U.S.C. 953 crimi- how often brings "pot exportation nalizes the between the United of a controlled sub- Mexico,” specifying without stance. But Flores was direction indicted of travel. points, prosecutor At knowingly intentionally other importing mari- accurately testimony. juana, characterized Flores’s §§ in violation of 952 and 960. - Ruiz, 1077, v. 710 F.3d admitted to See United States that Flores emphasizing (9th Cir.2013). prosecutor argued “smuggling drugs,” that Flores lied when she closing during Misstating A. the Law and Facts to ex- messages referred

testified that marijuana. importation portation —of —not government Flores contends that Further, acknowledging that Flores after by erroneously tell committed misconduct only, to Mexico brought drugs claimed she ing that it could convict her based “[tjhat’s asserted, still the prosecutor carrying marijuana to on her admission to crime that drugs” supposed smuggling —a on the date of her arrest. We Mexico final line to the charged. was not agree government that the misstated emphasized: “She jury, the prosecutor v. jury. law to the See United States on June smuggling drugs knows she was Cir.1980) (“A (9th Berry, 627 21st, say heard her that re- 2012. You the law in prosecutor should not misstate why guilty be- and that’s she’s peatedly closing argument.”). The also yond a reasonable doubt.” testimony, thereby Flores’s misstated making unsupported an factual claim. See claiming govern- In addition to misconduct, Kojayan, States v. 8 F.3d engaged prosecutorial ment (9th (1) Cir.1993); see also the dis- argues appeal on Mageno, 762 F.3d Cir. denying her motion to trict court erred 2014), grounds, (2) vacated on other its suppress; the district court abused (9th Cir.2015). object Flores did not by admitting Facebook mes- discretion below, however, to this misconduct so we unduly prejudicial evi- sages and other plain error. conclude that use; review for We marijuana referencing dence substantially (3) the misstatements did not procedurally the district court her, prejudice and so do not warrant re justice applying erred in an obstruction Ruiz, versal. See sentencing. enhancement at We address in turn. arguments Impermissible 1. The Prosecution’s Statements II. PROSECUTORIAL MISCONDUCT any crossed the line review de novo whether We permissible commentary between prosecutorial misconduct occurred. See Weatherspoon, testimony v. 410 F.3d Flores’s about her Facebook (9th Cir.2005); 1142, messages long 1145-46 United and that which we have (9th Ross, In a dat impermissible. message 1187 deemed States Cir.1997). 21, 2012, of ed Flores’s friend asked if We then consider the effect June any pot,” to determine re she “carried some to which Flores misconduct whether Weatherspoon, responded, “yes.”5 pair warranted. a second of versal is See says messages, 410 at 1150-51. June 21 Flores to a differ F.3d Where ob friend, trial, jected at we review for harmless ent “come over and have smoke” error; not, bringing.”6 we under “of what I’m Flores testified where she did review messages that these meant that she was plain the more deferential error standard. Spanish, postings are in 6. Flores also translates this conversation dif- 5. The Facebook government jury. asserting which the translated for the ferently, that the invitation was to differently, Flores translates the conversation you what I have.” "come so can smoke out of was, asserting question you "Did take weed.” bringing marijuana to Mexico argued and tually referenced exportation rather than they prove that imported did that she importation, but the evidence adequately marijuana charged. as The government supported the government’s characteriza- these messages differently: characterized tion of them. Even if we accept were to You heard about posts some on that those messages conveyed a desire to Facebook [Flores’s] from account June marijuana smoke in Mexico, nothing in 21st 2012 when she said carry- she was them rules out the possibility that Flores ing marijuana bringing marijuana. was offering her friends an opportunity to You know what she carrying on smoke some of the more than pounds of June 21st 2012. She carrying and marijuana picked she up in Mexico before bringing marijuana from into Mexico the she carried it back to the United States. United her car. She tried to The latter possibility is all the plausi- more you. convince She explain tried to this ble because arrested, when Flores was said, away. She No. No. What I ivas was not carrying any marijuana other than doing ivas bringing marijuana from that found hidden in her car. This evi- United States America into Mexico. supports dence the permissible inference argument This reflects government asked the jury to draw— apparent strategy for using the Facebook namely, that the Facebook messages refer- messages to convince jury that Flores marijuana enced the very found in Flores’s (1) carrying admitted to drugs across the car. border, (2) U.S.-Mexico was lying prosecutorial This argument also accu- about the direction she drugs. carried the rately characterized Flores’s insistence Both parts of strategy this are that she drugs carried to Mexico but not to permissible. Prosecutors are free in ar the United long States. So govern- as gument suggest that draw ment accurately recounted what Flores n reasonable inferences from the evidence said—and in above, the statement quoted presented at trial. United Say States v. it did—the was free to ask the (9th etsitty, Cir.1997); jury to Further, disbelieve Flores. see 943; also Mageno, 762 F.3d at argument accurately states the law ex- Molina, States v. plaining because, that Flores guilty re- Cir.1991) (holding prosecutors may gardless of her Facebook postings and argue that Here, a defendant is lying). what them, she testified about there was more than enough evidence to brought drugs into the United States. support a reasonable inference However, Facebook messages meant actually strayed also Flores was carrying drugs beyond into the Unit the boundaries permissible States, ed rather than to Mexico as she questioning argument. prosecu- was, fact, testified. She carrying more tor repeatedly asserted that Flores had than pounds marijuana in her car as “drug admitted to smuggling.” a legal As she entered the United on very the matter, but irrelevant Flores did admit to day she sent those messages. She then drug smuggling, § see 2T just U.S.C. 960— attempted to postings delete on her Face- not drug the kind of smuggling with book jail from account the after border which she charged, prose- was which the patrol the marijuana discovered in her cutor had to Labeling know. Flores an car. “admitted drug smuggler” actu- when she course,

Of the jury ally was exportation free to believe admitted to required the explanation messages that government the ac- very walk a to fine line. It this admission doubt based on reasonable prosecu- for the “definitely improper” was sup- to adequate only exportation if were to Flores admitted that suggest to tor Because Flores was a conviction. port prosecutor when the smuggling” “drug however, ar- the importation, trial for on importa- for synonym a the term as used mari- knowingly exporting that gument testi- that misstated because tion guilty a support to juana was sufficient Kojayan, United States mony. See the law. misstated verdict 1321; Mageno, 762 F.3d see also time, loosely when At the same at 943. invited improperly also prosecutor The to encom- “drug smuggling” referencing expor- based on jury the to convict Flores could, the pass exportation, during importation than tation rather testimony, assert misstating without admitted After Flores cross-examination. smuggling. drug to admitted Mexico, prose- the carrying drugs into to “ad- However, to use the improper it was asked, it?” illegal, “That wasn’t cutor in this smuggling” lingo drug mission to ac- Similarly, closing, prosecutor the that such suggesting loose manner when she had “claimed knowledged a to warrant sufficient an admission was the States to smuggled drugs from Doing charged. “[tjhat’s for the crime asserted, conviction Mexico,” still then law, Flores was the because so misstates are drugs.” These statements smuggling exportation charged untrue, with exportation not technically as not —the ac- to which she drug smuggling By specifi- form of smuggling illegal. and is drug tually exporta- admitted. . illegality the cally emphasizing however, tion, government suggested the the improperly used prosecutor The that Flores jury if the believed that even synonym a for smuggling” as “drug phrase ille- drugs, she “still” acted only exported opening from her importation frequently, so, over- doing prosecutor In gally. closing line to last through statement her improperly by inviting jury to stepped arguments jury. The exportation. Flores based convict smuggling at drug to that Flores admitted this worse prosecutor The if out- made misleading, trial were therefore minimizing blurring and purposefully became right false. These misstatements importation and ex- between distinction coup prosecutor’s with the flat falsehoods cross-examination, the During portation. smuggling knows she grace: de “She Flores carried asked whether prosecutor 21st, You heard her drugs on June drugs “between” the why that’s she’s say repeatedly border, without and “across” the Mexico The doubt.” guilty beyond a reasonable closing, a specifying direction. case, importation an jurors knew this was dispute prosecutor then characterized only way Flores’s admission so the traveled drugs over which direction be basis “drug smuggling” would ],” sig- “quibble[ minimizing a mere as beyond a reasonable finding guilty fact. These disputed nificance of that importa- is if she had admitted doubt statements, an not untrue as again while such an she never made tion. Because matter, mis- furthered the legal abstract trial, falsely statement admission at this convict could impression that testimony. characterized Flores’s exportation. Flores based on Moreover, prose- to the extent been should have misrepresent Flores’s testi- cutor did not brandishing Flores ad- much more cautious mony, misstated the law. label of “admitted misleading exportation. potentially trial She mitted at the beyond drug smuggler.” Had guilty found therefore could be carefully term, and accurately used the it Despite prosecutor’s the efforts, best it may have been to avoid misstating able the unlikely was that the jury actually was law or the facts. But the was confused Flores’s testimony about or the so, unable to in any do event should elements of the charge of importation. On “push have tried to the envelope” in multiple occasions, during both cross-ex- Ruiz, (Pre- this manner. 710 F.3d at 1087 amination closing arguments, gov- the J., gerson, concurring). As the Supreme ernment did accurately, directly, and ex- said, Court has “[t]he United States Attor- plicitly re-state Flores’s testimony.7 The ney representative is the not of an ordi- defense accurately also reiterated Flores’s nary party controversy, to a but of sover- testimony in closing.8 The chorus of accu- eignty whose ... ... interest a criminal rate characterizations of Flores’s testimo- prosecution case, is not that it shall win a ny likely drowned out the government’s justice but that shall be done.” Berger v. infrequent, indirect, and implicit misstate- States, 78, 88, United 295 U.S. 55 S.Ct. ments of that testimony. Moreover, (1935). 629, 79 L.Ed. 1314 Flores’s testimony simple, was unambigu- ous, and unmistakable.9 Jury confusion 2. Plain Error was therefore unlikely. object Flores failed to any to It is unlikely also prosecution’s the statements, these improper and must misstatements of the law confused the therefore show that the ac about the elements of the charged offense. Ruiz, tions plain amounted to error. See did, The prosecution occasions, on multiple 710 F.3d at Although there was clearly and directly state importation error, and it plain, was Flores fails to required support to a conviction. In prosecutor’s demonstrate the improper closing, prosecutor the correctly also stat- statements affected her rights substantial ed: fairness, or the integrity, public or reputa You down, tion of have to the don’t write proceedings. See this two Puckett v. States, 129, 135, United 556 U.S. elements. Defendant brought knew she S.Ct. (2009); marijuana place from a L.Ed.2d also outside into a see Olano, 725, 734, place United States v. inside the United U.S. States and sec- (1993). ond, 113 S.Ct. 123 L.Ed.2d 508 she knew the substance she was In trial, the context of the prosecu bringing entire the into the States United tion’s likely marijuana misconduct was not to have or some prohibited other jury’s affected the ability to weigh drug. Basically, the States has United fairly. See United prove States v. San to you or has proven you chez, Cir.2011). beyond a reasonable doubt Ms. cross-examination, example, during 7.For 8. Defense counsel conceded that Flores prosecutor your you asked: "So testimony bring "would marijuana sometimes to Mexico brought drugs from United States Mexi- to smoke with her cousin.” co but not from Mexico into the United closing, States?” prosecutor noted "[Ojn prosecutor 9. The day asked Flores: "quibbled that Flores with the arrest, direction” your you marijuana bringing were government argued which the drugs trav- between the United States and Mexico?” Similarly, prosecutor eled. reminded responded: pros- “Into Mexico.” said, jury that bringing she "was mari- ecutor definitely brought then asked: "[Y]ou juana from the United States of into drugs America between Mexi- Mexico,” smuggled and "claimed she had again responded: co?” Flores "Not between. drugs from the United States to Mexico.” Into Mexico.” Flores marijuana. with car was loaded knowingly wasn’t Flores [acted] —she border, drawing at the border, suspiciously nobody acted over dragged drugs. attention to the Officer Brown’s She vol- over the border. dragged her jail played call from car from Mexico into phone a recorded untarily her drove regret, not frus- jury, expressed Flores States. the United confusion, expect if as one would or tration argued closing, prosecutor During in car drugs planted had Juan brought that Flores times least sixteen further im- knowledge.11 She without In other drugs into the United States.10 by asking Manuel to herself Jose plicated ar- built its entire words, destroy from Facebook—evi- statement of a correct gument around incriminating apparently that was so dence repeatedly informed law and very simple it to delete that Flores asked someone Flores had to in direction jury which being knew her call was though even she guilty. Accord- drugs to be found carry recorded.12 that a rational unlikely it is ingly, concluded, based on a few mis- have would the mechan- story about Juan law, that it could convict statements for the explanation ic—the innocent of which direction she regardless Flores entirely drugs found in Flores’s car—was drugs. carried suspect, as the highly uncorroborated and jury. out to the government pointed Further, against Flores the evidence her visit to the derma- Berry, F.2d at Flores mentioned See overwhelming. was border, Brown at the tologist than 36 to Officer found with more 201. Flores was trial to a host of evidence at govern- presented car. The drugs in her pounds trip to Mex- aspect corroborate that of her ways various which explained ment inter- she failed to mention her aware that her ico.13 Yet would have become smuggled drugs drugs into the brought cause she knew she prosecutor said: "she 10.The " States;” "[she], in; drugs completely smuggled surrounded into was United "[s]he " States; coming marijuEuia into the United drug smuggler is a "[s]he the United " States; smuggled drugs knew she had "[s]he put drugs] [the [her who had someone car] ” States; "[djefendant knew into the United bring drugs into the for her so she could place brought marijuana from a outside States.” " States; place "[w]e into a inside the United proven you beyond a reasonable have to also . call, boyfriend: said to her 11. In this drugs in her car knew there were doubt she around, prov- you keep fucking that's not "If States;]” entering was the United [as she ing anything you want be with to me. Do to bringing marijuana carrying "[s]he fucking you change? I me? Do want to States in her from Mexico into the United stepped myself, foot in here and I asked what car;” "[y]ou the direction she was know Why my family? the fuck? would I do this to drugs. smuggling smuggling She was those going fucking in here ... set foot I’m " States; Mexico into the United them from again.” nervous ... because she sur- "[s]he was by marijuana smuggling into she was rounded Manuel, call, " her cous- In this Flores asked States; anyone did what "[s]he the United account, in, login to Flores's Facebook they are nervous because of would do when ” password, whatever change the and "take off States; smuggling drugs the United into you taken off.” Flores also feel needs to be drugs smuggling!] into knew she was ”[s]he ” being call was re- warned Manuel that the States; ... was] arrested "[she the United corded. drugs smuggling! into the United ] after " States; bring drugs was] hire[d] "[she dermatologist States;" as Dr. 13. Flores identified her knew she “[s]he into the United States;" produced picture Najera, Juan R. Martinez smuggled drugs into the United office, prescriptions and introduced jail call of his ashamed ... in that be- "[s]he was action with Juan to Officer Brown the Further mitigating the risk of prejudice, prove border and offered no evidence to jury correctly stating the law instructions car, any repair that Juan work on did her shortly were read after closing arguments, or that he even existed.14 govern- The and thus shortly after the government’s expert ment’s also testified that the air key misstatements. As to the elements of conditioner in Flores’s car was not work- charge, the the district court correctly in- ing obviously in June of suggesting structed: repaired by that it had not been Juan In order for the defendant to be found Tijuana.15 Further, Flores’s in Ti- cousin ..., guilty the prove must juana, day whom Flores visited on the each of the following beyond elements arrest, supposedly was friends with reasonable doubt: presumably provided Juan and could have First, the defendant knowingly details about Juan to corroborate Flores’s United, into the brought marijuana testimony. present- No such evidence was States from a place outside the United ed. Nor attempt explain did Flores States; and why she had not taken even basic steps to Second, the defendant knew the sub- locate or story Juan corroborate her after stance into the United bringing she was having gone lengths to such to confirm her States was marijuana.... All trip dermatologist. the of these This instruction prosecution’s mirrored the facts are inconsistent with story earlier correct statement of the law and planted drugs Juan the mechanic again importance made the importation car knowledge, without her and no abundantly clear. The other instructions explanation innocent was for also offered they reiterated “the defendant got charged how there. Flores is correct that is in the indictment with unlawful importa- knowledge the evidence of her circum- was stantial, but that circumstantial tion of a controlled If substance.” the overwhelming.16 was jury at all by prosecution’s misled the by written evaluating strength Dr. Martinez for Flores on June 16.In of the evidence her, against jury Flores notes that the in her first trial could not reach unanimous ver- name, provide phone 14. Flores did not a last jury's inability dict. But a to reach a verdict number, address, or business name Juan for many could be attributed to factors other than dermatologist, the mechanic. Unlike particu- the closeness of the evidence. That is arrange did not call Juan in advance to for cases, this, larly so in like where the defen- repair work to be done on her car. Flores sympathetic dant seems and lacked the $40, paid testified that she Juan but she did given drug quan- wherewithal to act alone receipt any repair not have a work done tity transport, charge and means of and the did, however, Tijuana. Juan in She have legalized involves a substance that has been multiple body shop invoices from an auto only specu- in some states. Because we can Grove, located in Garden California. trial, why jury hung late about at the first government's expert 15. explained that place weight jury's we little on the first inabil- compressor in Flores’s car—an essential ity evaluating to reach a verdict. component conditioning system— of an air evidence, strength of the we look first and inoperable inspected when he it. He itself, foremost to the evidence rather than to explained compressor further that if the had jury’s the first reaction to that evidence. For been functional when Flores's car was im- reason, place the same we little stock in the pounded, it would have remained functional jury guilty fact that the second returned a through inspection, the date as com- shortly began. verdict after deliberations pressors just sitting” do not “fail from in an impound lot. vouching; how much the doubtful, the form of statements, the court’s which prosecutor has vouching implies that the likely put back very instructions knowledge capaci- of or the extra-record jury followed presume the on course. We truthfulness; ty to monitor the witness’s determining instructions when these is monitor- any inference that the court guilty charged. as Flores was whether degree of veracity; the ing the witness’s 225, 234, 528 U.S. Angelone, v. See Weeks asserted; timing the of personal opinion (2000). 727, L.Ed.2d 727 145 120 S.Ct. to which the vouching; the the extent sum, misrepre- government while the attacked; credibility the witness’s testimony and misstated Flores’s sented a in- timing of curative specificity occasions, in the con- multiple law on the struction; the wit- importance the of whole, unlikely it trial as a is text of the to the testimony vouching and the ness’s the law or jury was misled about that the case overall. F.2d at 200. Berry, 627 the facts. See 1085; v. at see also United States Id. Flores was over- against evidence (9th 1061, Williams, Cir. 201, jury was at and the whelming, see id. 1993). factors, con Considering these we Accordingly, Flores correctly instructed. vouching did government’s clude that the government’s the miscon- cannot show that substantially prejudice Flores. not plain the level of error. See duct rose to where we have found Unlike cases Sanchez, at 1257. 659 F.3d vouching here vouching prejudicial, case. government’s was not crucial to the Vouching B. multi- (citing F.2d at 1052-54 See Kerr 981 of vouching consists “Improper vouching explaining ple instances prestige government placing the vouched-for wit- testimony assur through personal a witness behind was crucial to the nesses veracity, suggest or ances of the witness’s case). jury if the de- Even believed to the presented information not ing that that Flores’s air expert’s testimony fense testimony.” jury supports the witness’s working on June conditioner was Ruiz, 710 F.3d at 1085. The little to bolster Flores’s sto- this would do its improperly that it vouched for concedes That an air ry about Juan the mechanic. witness, Butler, expert Russ automotive day says particular works on a conditioner stated, I prosecutor “I submit when the it, where it was nothing about who fixed my car Butler to work on would hire Russ fixed, whether it was broken the first' or ex [Flores’s rather than Forrest Folck place.

pert]. experienced.” Russ is See Moreover, attack on Folck’s credibil (9th Kerr, 1050, 1053 v. 981 F.2d single im ity was minimal and involved Cir.1992). Kojayan, F.3d at But see statement. See United States v. proper “I phrase sub (explaining (9th 1179, 1190 Cir. Younger, 398 F.3d jury to signaled request mit” for the 2005) improper (holding single that a inference). did draw a reasonable materially not affect the ver statement did trial, object to this misconduct at so we dict). vouching imply extra- Nor did the Ruiz, 710 plain error.17 See review knowledge ability or the to monitor record Ruiz, determine whether F.3d at 1082. To the witness’s truthfulness. See prejudice, vouching substantial we did not vouching caused F.3d at 1085. And the assur- government-backed function as a consider: ciding clear or obvious for rely Kojayan that the error was government does not 17. The plain analysis. purposes our error We without de- and concedes error. assume worst, guilt. anee of At times that it bore the burden of proving vouching simply primary reiterated the in- guilty beyond a reasonable doubt. ference the jury Highlighting asked the defense, of a weakness characterizing draw all it along incredible, as story about noting —that Juan the defendant’s produce mechanic was not failure to credible. See Williams, is not improper, particularly 1072 (“[Vjouching where the government correctly here mainly functioned as states the rhetorical em- burden of Ruiz, proof. (re phasis for See 710 F.3d at prosecutor the inferences the 1086-87 ferring to the defense urging as to draw rather “smoke and mir than a rors” permissible); meaningful personal assurance that the de- Tucker, 1120-21 guilty.”). fendants were Cir. 2011) (highlighting flaws in the defense is Because of the “substantial evidence permissible); Necoechea, United States v. supporting jury’s the verdict” and the mi- Cir.1993) 986 F.2d (noting nor vouching played role prosecu- the the defense’s present failure to evidence in case, id., tor’s Flores fails to show that the support theory permissible); of its is Moli vouching caused “substantial prejudice,” na, 934 F.2d at 1445 (arguing that the Ruiz, 710 F.8d 1084-85. a permissible). defendant is liar is Shifting C. Undermining D. The Government’s Statements the Burden Proof about Flores Flores next that contends the govern testified, Flores Because the prosecu- (1) ment improperly shifted the burden of tor’s comments her were per- demeanor proof by pointing out that she failed to missible.18 See Allen v. Woodford, 395 produce to corroborate story her (9th Cir.2005) (“The prosecu- (2) about Juan the mechanic and under tor’s comments regarding [the defendant’s] mined the proof by burden of asking the courtroom demeanor were permissible be- jury to evaluate the “very cause [the testify.”); defendant] to chose reasonable” story and Flores’s “preposter Schuler, v. States 813 F.2d story ous” “in way.” same the See United (9th Cir.1987). n. 3 Evanston, 1080, 1091-92 651 F.3d argues Flores also government that the (9th Cir.2011) (“It beyond is that comment impermissibly called drug a smug- government the prov bears the burden of liar, gler, a and “not abiding.” law Howev- ing the guilt beyond defendant’s a reason er, prosecutor when the called Flores a trial.”). able doubt at These statements drug liar, smuggler and a she was not improper. were not making impermissible propensity argu- n While Flores is correct that Instead, ments. she arguing that government theory referred to its “very as when admitted smuggling drugs reasonable” and Flores’s defense “cra as 21, 2012, on June she admitted to the zy” and “preposterous,” government instant and that lying offense she was argued conclusions, never that these or when claimed she took drugs to Flores’s failure to corroborate story Mexico. permissible Such statements are Juan, about alone were sufficient sup .to to the they extent that not were misstate- port a conviction. And the Molina, ments of fact or law. See explicitly stated more than a half dozen F.2d at (holding prosecution that the closing, prosecutor jury: said Her weren’t shaking hands' while she was sitting "You saw her there the entire trial. there.” errors, if cumulative effect of the if that is one er the a liar

may call the defendant However, object to any. Flores did not by the evi supported the inferences (hold that we any prosecution’s conduct at 1409 dence); Sayetsitty, plain review for er- improper, find so we may jury ask the ing prosecution that the ror, inferences); suggests. harmless error as Flores Necoe reasonable to draw chea, (noting at 1282 of the trial as a In the context may argue that a defendant whole, jury unlikely to misunder dealing “dope is a deal drug charged with law, testimony or the and it stand Flores’s er”). unlikely jury’s deliberations prosecutor’s affected submis assertion were prosecutor’s

And Butler rath that she would hire Russ law-abiding was sion Flores was not Considering the er than Forrest Folck. closing ar rebuttal to permissible change together nothing does attorney attempted to errors gument. to Butler’s Adding conclusions. effort to delete her these why Flores’s explain have increased the necessarily credibility would not messages was not Facebook misunderstood the counsel told the likelihood guilt. Defense sign testimony, just as misun at law or Flores’s story which he jury a childhood testimony derstanding the law or Flores’s potentially sug tempted to hide evidence jury’s assess even would not have altered the he cheated on test gesting that credibility. experts’ The like actually cheated. The ment though he had not jurors’ affected the not lihood that the errors argument that Flores was prosecutor’s simply was too low to consti distinguish the deliberations law-abiding offered to was Further, plain tute error. because from Flores’s. attorney’s situation defense overwhelming, against evidence Flores was asked Manuel to Flores admitted that she likely prejudiced by the effect she was less she feared there delete content because v. of cumulative errors. See United States marijuana. smoking of her picture was (9th Wallace, 1464, F.2d 1475-76 Cir. 848 attorney de While evidence Flores’s 1988). Thus, individually whether viewed stroyed entirely a child was innocent as cumulatively, prosecution’s improp or (and him), the evi might have exonerated not warrant reversal. er statements do destroy her cousin to dence Flores asked undoubtedly indicative of criminal ac was III. EVIDENTIARY CLAIMS only question was which crime tivity—the court argues that the district trying up, simple pos to cover Flores was motion to session, denying suppress erred her importation. or exportation, that, her ac- out un evidence obtained from Facebook merely pointed that district trying argues to count. She further attorney, Flores was like her by admitting Placed in court abused its discretion wrongdoing. of hide evidence drug use at trial. context, proper personal re evidence of her argument this was disagree. We buttal. A. Denial of Flores’s Motion Error

E. Cumulative Suppress Facebook that, prose Flores contends because Evidence errors, we multiple cution committed balkanized, the denial of a motion issue-by- “a We review should not conduct novo and the district court’s suppress review.” United de issue harmless error (9th Frederick, 1370, 1381 fact for clear error. United findings of v. 78 F.3d Cir.1996). Camacho, 1182, F.3d 1183 v. 368 agree that we must consid- States We

1043 Cir.2004). (9th probable Flores contends er cause when the warrant issued (1) later, court erred because the war- more than three months district on October Grant, 2, (ex- 2012. See account rant to search Facebook 682 F.3d at 835 supported probable plaining cause that an otherwise sufficient war- (2) stale; overbroad; rant application may the warrant was become stale absent (3) exceeded the “a scope continuing pattern the search or good other rea- reject argument each suggesting warrant. We sons” that evidence remains in searched); turn. the location to be United States Gann, v. (9th Cir.1984). 714, 732 F.2d 722 1. Probable and Staleness Cause Contrary argument, to Flores’s there are many reasons to believe that there re- Probable cause is established if mained a “fair probability” finding evi- presents probability” an affidavit a “fair dence of drug smuggling in her account activity that evidence of criminal will be when the warrant issued. Illinois in the place found be searched. Gates,

v. 213, 238, 2317, 462 U.S. 103 S.Ct. The mere passage “of substantial (1983). “give[ ‘great 76 L.Ed.2d 527 ] We amounts of time controlling is not in a issuing judge’s finding deference’ to an question of staleness.” United States v. probable supports cause the warrant” Dozier, (9th Cir.1988). 701, error. United States for clear review particularly That true with electronic Grant, (9th Cir.2012). v. evidence. long memory “Thanks to the We will not find a search warrant invalid computers, any of a evidence crime was long issuing judge so as the had a substan certainly almost still on [the defendant’s] tial concluding support basis for computer, even he had tried to delete the if ing affidavit probable established cause. Gourde, images.” United States v. Crews, F.3d (9th Cir.2006) (en banc) Cir.2007). added). (emphasis any Because

Special Agent might that have been in Enriquez’s affidavit Flores’s account 21, may the warrant on June 2012 supporting proba established have been delet likely ble cause to search ed and Flores’s Facebook ac could have been recovered count, time, period deleted, at least for some of if even it had been there remained considering probability Flores called Jose Manuel a fair that Flores’s account jail from and asked him to purge drug smuggling her would contain evidence of request, 2, account. That along with Flores’s on October 2012.

warning that the call being recorded by noting gov- Flores counters that proximity and the call close to her sought ernment to file the warrant under arrest, supported proba more than a “fair anyone precisely seal because with even' bility” agents that would find evidence of computer permanently basic skills could drug smuggling smuggling conspiracy or a argument delete Facebook content. This Id. in Flores’s account. that, 27, disregards August the fact however,

Flores argues, Special Agent Enriquez that even if a submitted 21, 2012, probable preservation there was cause on request June to Facebook Manuel, account,19 after long- she called there was no which proved effective.20 Agent Enriquez pres- subject 19. computers did not mention the exists on to the control of” did, request ervation in his affidavit. He Facebook. however, data,” refer to "recovered and he “very likely preservation request mentioned that it was ... that In addition to the investigation difficulty irretrievably deleting evidence of the crimes under the inherent of Shi, genuine States v. Lei Further, asserting that there is United (9th Cir.2008). 731-32 might permanently- be risk that evidence future, did in Enriquez in the as deleted clearly suggest two factors The first warrant, request of his seal support The war- the warrant was not overbroad. conceding that there is not the same as is rant allowed the to search that the evi- longer probability a fair no only the Faeebook account associated with recoverable). (or is See still exists dence address, name and email and au- Gourde, 1071. Probable thorized the seize evi- “commonsense, are cause determinations § of violations of 18 U.S.C. dence probabili- a “fair questions, and practical” §§ and 960 (Conspiracy) and U.S.C. preponderance than a of ty” is less even Substance).21 (Importation of a Controlled day at 1069. In this the evidence. Id. established “Procedures The warrant also technologi- with minimal age, persons even Information,” Electronically For Stored frequently that data savvy cal are aware providing executing officers with sufficient and recovered after deletion preserved “objective segregating standards” for re- device, particularly from an electronic material from the rest of Flores’s sponsive is in- party when a third like Faeebook account. See Lei 525 F.3d at 731-32. Shi Therefore, at 1071.' even volved. See id. Citing Comprehensive States v. likely if agents were less find Inc., 621 F.3d 1162 Drug Testing, in drug smuggling Flores’s account curiam) (“CDT Cir.2010) (en banc) ”), (per June, a fair probability than in October argues objective that the standards remained when the finding such evidence used here were unconstitutional. At bot- issued. warrant tom, govern- complains ment, including investigative team it- 2. Overbreadth self, was authorized to seize and search all argues Flores next 11,000 pages of data in Flores’s account consider warrant was overbroad. We when, out, only approximately as it turned analyzing of a three factors breadth pages truly responsive were to the warrant: Adjani warrant. we

(1) probable whether cause existed to rejected argument gov- a similar category seize all items of a described in ernment should have its search narrowed (2) warrant; whether the warrant account. defendant’s e-mail See objective (9th Cir.2006) (“To set forth standards which 1140, F.3d 1149-50 re- executing search, officers could differentiate a quire pinpointed computer such subject items to seizure from those restricting program the search to an email (3) not; terms, the likely which were whether specific or to search would government could have sufficiently described have failed to cast a wide "net particularly light sought.”). items more in to capture “Over- in seizing” accepted reality information available.... is an electronic data, setting argues digital security a also 21. Flores that the warrant authorized Faeebook ensured that the contents of Flores’s account agents to search for and seize evidence tend- Anyone logging remained accessible. in to ing prove conspiracy any to a to commit computer account from an unknown Flores's warrant, crime. She misreads the which ex- password had to enter a that was sent to "tending tended to content to show nar- phone. phone cell had Flores’s confiscated, Flores's been trafficking.” cotics login so Manuel was unable to Flores’s account.

1045 searching way because is no “[t]here be account contained activity dating back to exactly sure what an electronic file con- when she 17 or years old, 18 and she tains without somehow examining its con- committed the offense of conviction shortly CDT, 1176, tents.” 621 F.3d at after years turning old.23 Seizing five said, years’ or six

That we worth recognized may have a of data number. have been excessive, significant of limitations to prevent though neces- Agent Enriquez’s affida- sary “over-seizing” turning from into a certainly vit established probable cause general dragnet. Adjani, In explained we search account for some be- time specify warrants must the particular fore her arrest. crime for which sought. evidence is Ultimately, we need not decide F.3d at 1148-50. alsoWe cautioned in whether the warrant was overbroad for CDT against retaining unresponsive data lack temporal of a limit because even if it doctrine, “plain based on the view” was, suppression of the evidence used at recognized importance of protecting trial was required. not We have “em parties’ third rights. 621 1169-71. braced the severance, doctrine of which guidance, Consistent with this the warrant allows us to strike from a warrant those here a specified suspect, crime and a portions that are preserve invalid and seized was not used for any data broader those portions that satisfy the Fourth Facebook, investigative purposes, Only Amendment. those articles government rather than seized agents, segregat- pursuant to the portions ed invalid protect Flores’s account to be par- third need rights.22 suppressed.” ties’ United States v. Gomez- Soto, (9th Cir.1984). No Flores claims that the third Lei Shi evidence was introduced at trial factor —whether could should suppressed have been under this placed greater have limits on the warrant’s standard, of regardless po warrant’s scope light information, of available Indeed, tential overbreadth. the two F.3d at 732—‘cuts in sets finding favor of of Facebook messages particular, warrant overbroad. introduced at trial notes the warrant were sent on temporal day contained no of Flores’s arrest and out, limit. As it turns Flores’s Facebook thus fell well-within even the of narrowest recognize 22. We that the warrant authorized the rest of Flores’s account. See id. at retention of Flores's full (Majority Op.). account authenti prohibit CDT did not purposes, process cation disapproved investigative a we participating teams from in data Tamura, matter, however, segregation general as a 1982). presented very Cir. Tamura and instead faulted dif for mis- concerns, however, leadingly suggesting ferent the docu in the because warrant ments retained in team would company’s that case were a not be involved. Id. at 1172. physical CDT “master thus as a volumes” rather than serves reminder not to mislead warrant, magistrates copy digital Nevertheless, scope data. or exceed the CDT reaf of (or prohibition importance segrega- as a returning firmed the blanket data de by investigative tion stroying) copies digital teams. data. See 621 F.3d 1170; (Kozinski, C.J., id. at 1179 concur ring). But CDT limine, allowed for retention with 23. In her in exaggerat- motion authorization,” "specific judicial which scope the problem. ed the of the She claimed warrant here included. See id. We also note government that the as'early seized data from "any testified, however, that agent” authorized federal was al as 2000. Flores lowed to joined search within Flores's account for when she was 17 or 18 years Facebook old, responsive Ideally, data. the prior which means no data existed to investigative team given would not have been in 2006 or that Flores was in born segregating volved responsive in data from 1989. messages were Therefore, troduce at trial. Those though even limits. temporal limit, warrant. temporal scope no the the of the warrant had well-within the denying not err in Thus, court did if evidence that was not district even other See Gomez- suppress. motion to exceeded might introduced at trial have Soto, 723 F.2d at 654.24 scope the there is no rea- warrant’s —and it did—the district son to believe Executing the Warrant 3. denying Flores’s mo- court did not err argues that the Facebook Flores further suppress. to tion have at trial should presented evidence Admissibility Evidence B. government the suppressed because

been Facebook 11,000 from scope by seizing its all exceeded in Flores’s account. Pursu- pages of data court denied Flores’s After the district however, warrant, of the ant to the terms suppress, motion to Flores moved limine provide agents authorized to Facebook was any referring to her to exclude of the entire contents of copy with a use, arguing that references personal drug Agents segregated account. then drug use were inadmissible personal to material from the pages responsive under Federal Rule of propensity evidence separate account into a within entire file 404(b) unfairly prejudicial Evidence 90-day period authorized the war- the court denied under Rule 403. district warrant, Again pursuant rant.25 to and overruled her Rule 403 and her motion copy of Flores’s account was original objections at trial. We review the bag sealed in an evidence and is inaccessi- rejection denial of Flores’s motion and the short, In ble absent a new warrant.26 objections for of discretion. of her abuse exactly government executed the warrant Curtin, v. See United States as it was written. (9th Cir.2007) (en banc). need not determine whether the 100 We that the two Fa- Flores contends segregated data exceeded the pages messages government cebook intro warrant, claims, as Flores scope improperly propensity duced used for were messages were admitted because two unfairly prejudicial— purposes and were Crozier, into evidence. improperly com concerns which were “[o]nly held that those items which fall we pounded by of evidence that admission scope of the warrant need be outside marijuana during pre Flores also used suppressed.” trial Flores is correct that period. release Cir.1985). Accordingly, the district court simple possession cannot be drug use and only the Facebook properly considered in- that a defendant con- messages government planned to introduced to show thoroughly affidavit 24. Because we conclude that the evidence this task and because the pursuant seized to the valid explained why used at trial was Facebook could not be as portion of the warrant and that the motion to signed responsive in Flores's to find materials denied, properly suppress was therefore we CDT, 1170-71; account. See 621 F.3d at Ta government's need not address the additional mura, 694 F.2d at 595. argument "good exception faith” exclusionary applies. rule copy the sealed retained for 26.In addition to purposes, government authentication also claims that the ex- working copies made three of Flores’s ac- scope by refusing ceeded the of the warrant defense, gave copy count and one to the one segregation. in this data enlist Facebook agent. prosecution, and to the case to the one Flores’s claim fails because the warrant ex- copies destroyed. The latter two have been plicitly perform authorized the

1047 spired smuggle drugs. See Allowing to use the Vizcarra-Martinez, 1006, States v. messages for non-propensity impeachment (9th Cir.1995) (noting possession 1015 purposes' i.e., to show that Flores was — of use amounts of a personal drug does not lying about what she wanted her cousin to conspiracy to evidence manufacture that delete from Facebook—was not an abuse Mehrmanesh, drug); United States v. 689 of discretion. The same is true of the (9th 822, Cir.1982) F.2d 831-32 (rejecting government’s reference to pre- Flores’s the argument jury that a can impor- infer use, drug trial which was introduced to use). tation drug from She is incorrect show that Flores had lied to a federal inadmissible, that the evidence was howev- judge and thus was untrustworthy, rather er, because the used the evi- than to show propensity to com- different, permissible dence for purposes. mit drug Moreover, crimes. the court ex- supported evidence a reason plicitly jury instructed the that it could not able inference that the Facebook messages consider evidence of Flores’s other wrong- very drugs referred to the Flores was ful acts “as guilt evidence of of the crime Thus, arrested for transporting. the mes for which the defendant is now on trial.” sages were least arguably tantamount Because the was used permis- evidence charged. admissions to the crime Ac purposes only, sible the district court did 404(b) cordingly, inapplicable Rule is be not abuse its in denying discretion cause the evidence did not refer to other motion in limine or overruling objec- all; bad acts at it referred the bad act tions. Castillo, See United States v. 181 Rizk, at issue. See United v. 660 States 1129, (9th Cir.1999) (“[Ujnless F.3d (9th 1125, Cir.2011). Indeed, F.3d it the evidence of only other acts tends to would have been illogical govern for the admissible.”). prove propensity, it is ment to use the messages for propensity purposes, as would have bolstered IV. SENTENCING Flores’s claim that messages referred We review district court’s con uncharged acts, to other bad whereas the struction and interpretation of the Sen government’s argument depended in part novo, tencing Guidelines its factual de find convincing messages ings for error, clear importation application referred to the its with which charged. Thus, Flores was the district the Guidelines to facts for abuse of court’s decision to admit evidence as discretion. United States v. Taylor, 749 potential admission not an abuse (9th Cir.2014); F.3d discretion because the government’s char (9th Cir.2014). Popov, v. messages acterization of the sup argues Flores proce the district court ported by may “inferences that be drawn durally by erred applying a 2-level ob from facts the record.” United States v. justice struction of enhancement under Redlightning, 624 F.3d § U.S.S.G. making req 3C1.1 without Cir.2010). That presented a com uisite materiality willfulness and findings. peting plausible characterization of the Fa- 4(D). § See U.S.S.G. 3C1.1 cmt. We dis cebook messages goes weight to the agree. evidence, not its admissibility. Nor did correct that the en the district court its abuse discretion un hancement can be based on willful der Rule 403 because prejudice creat admission, efforts to delete severe, ed an that are while material is not conviction,” unfair. See United to “the instant Hankey, offense (9th Cir.2000). 1160, 1172 added) § (emphasis U.S.S.G. 3C1.1 —im- knowledge cutors to assume that she had marijuana. of See United States portation (9th Cir.1993) Gardner, drugs simply in car] her because [of curiam). claim, Contrary to (per marijuana she had smoked in the herself however, Flores district court found Thus, past.” affirmatively Flores stated Facebook con asked her cousin to delete sentencing attempted at that she to delete that, believed, to influ “if would tend tent purpose content from Facebook for the of it importation charge affect” the ence or hindering investigation prosecu- (defining § cmt. n.6 self. U.S.S.G. 3C1.1 of tion of “the instant offense conviction.” Indeed, materiality). .the district court al 3C1.1; Gardner, § see U.S.S.G. to introduce this lowed (“[A] at 83-84 section 3C1.1 enhancement objections evidence at trial over Flores’s premised must be on willful conduct that that, the court concluded precisely because justice.”). purpose obstructing has the char jury if the believed the Accordingly, imposition the district court’s evidence, it would di acterization of the of the enhancement on Flores’s “ef- based rectly prove Flores knew there was mari forts to have her cousin delete certain juana in her car as she entered the United her Facebook account” and postings from evidentiary ruling The court’s States. stated,” a finding “for the reasons requisite mate encompasses therefore the essential elements of obstruction under riality finding. United States v. Arm Cf. Gardner, § 3C1.1. 988 F.2d at 83-84 (9th Cir.2010) strong, 620 F.3d (“[T]he specify district court need not it for the court to (“Although preferable finding reasons for its factual of obstruc- ..., separate finding make a and clear justice.”). tion of unnecessary court doing so is where the of an obstruction of makes determination testimony Flores’s own establishes that justice encompasses that all enhancement finding this factual Flores asked —that predicates of the factual for a find [such] Manuel to delete content from Facebook ing....”). purpose eliminating for the that to might prove tend the crime sentencing that

Flores also asserted charged clearly erroneous. she asked Manuel to delete Facebook con- —was Therefore, affirm prose- tent because didn’t want the we her sentence. “[s]he drugs were car Flores had stated this fear earlier hidden her as she testimony, why as well. When asked entered the United States. While Flores's wanted Manuel to delete references to her might evi- concerns warrant exclusion of this Facebook, said, marijuana use from importation dence in an case under Federal long smoking, peo- "For however I had been 404(b) Rules of Evidence a defen- ple they just pass judgment immediately. I dant cannot avoid an obstruction enhance- know, guess they badly don't I think of some- by claiming ment that the evidence she tried body marijuana.... who smokes I knew that destroy might to have been inadmissible—that something get that was I could in trouble is not' a defendant’s decision to make. Ob- cross-examination, for.” On she confirmed enhancements are struction not reserved for that she wanted the evidence deleted because the willful destruction of admissible evidence judgment anyone people pass of "the event, only, any and in the evidence Flores marijuana,” who smokes and because "I attempted destroy to was admissible for non- want it to be used as evidence in [a] didn’t propensity purposes. importantly, More Essentially, case it was irrelevant to.” testimony confirms that when she marijuana was worried evidence of her asked Manuel to delete content from Face- (1) might support use a character inference book, against she knew it could be used her in that in turn would cause the importation, (and convict) prosecution and she at- prosecute her for (2) importation, suggest tempted destroy that she knew it for that reason.

V. CONCLUSION again, an

Once Assistant United States

Attorney for the Southern District of Cali- overstepped per-

fornia the boundaries of questioning argument.

missible We

reluctantly affirm Flores’s un- conviction high plain

der the bar of the error stan-

dard.

AFFIRMED.

PREGERSON, Judge, Circuit

dissenting: respectfully

I dissent. The Assistant Attorney

U.S. violated the permis- rules questioning argument;

sible forgot our “in interest a crimi- ...,

nal prosecution is not that it shall win justice done,”

but that Berger shall be v. States, 78, 88, 295 U.S. 55 S.Ct. (1935) (Sutherland, J.); 79 L.Ed. 1314 ignored Justice admoni- Sutherland’s prosecutor

tion that a “may strike hard

blows, but not foul ones.” Id.

These serious violations do not warrant plain

invocation of the error rule. O’BANNON, Jr.,

Edward C. On Behalf Similarly Himself and All Others

Situated, Plaintiff-Appellee,

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, NCAA, aka The

Defendant-Appellant. 14-16601,

Nos. 14-17068.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 2015. Sept.

Filed

Case Details

Case Name: United States v. Citlalli Flores

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 23, 2015

Citation: 802 F.3d 1028

Docket Number: 14-50027

Court Abbreviation: 9th Cir.