United States v. Flores

• Decision Date: 23 September 2015
• Docket Number: No. 14–50027.,14–50027.
• Citation: 802 F.3d 1028
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Citlalli FLORES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

802 F.3d 1028

UNITED STATES of America, Plaintiff–Appellee

v.Citlalli FLORES, Defendant–Appellant.

No. 14–50027.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 2014.

Filed Sept. 23, 2015.

Morgan D. Stewart (argued), Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Michelle L. Wasserman (argued), Laura E. Duffy, and Bruce R. Castetter, Office of the United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Michael M. Anello, District Judge, Presiding. D.C. No. 3:12–cr–03054–MMA–1.

Before: HARRY PREGERSON, KIM McLANE WARDLAW, and MARSHA S. BERZON, Circuit Judges.

OPINION

WARDLAW, Circuit Judge:

Citlalli Flores appeals her conviction and sentence for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. Although we find merit in her claims of prosecutorial misconduct, the misconduct does not rise to the level of plain error. Flores's remaining claims of error lack merit. Accordingly, we affirm her conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of June 21, 2012, Flores was stopped by Customs and Border Protection (“CBP”) Officer Benjamin Brown as she entered the United States following a day trip to Tijuana, Mexico. When Flores handed Brown her driver's license, her hands were shaking, and she looked back towards the rear passenger-side of her car several times. Brown became suspicious, inspected that area of the car, and found several packages of what turned out to be marijuana. CBP officers then searched the rest of Flores's car, where they discovered 16.44 kilograms (36.24 pounds) of marijuana.

Flores was indicted on one count of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960.¹ Flores's first trial resulted in a hung jury. Upon retrial, a jury rendered a guilty verdict. The district judge imposed a two-level enhancement for obstruction of justice, but then substantially reduced her sentence in light of U.S.S.G. § 5K2.0 and the 18 U.S.C. § 3553(a) factors, ultimately imposing a term of incarceration of 12 months and one day in prison.²

Flores's defense rested on her lack of knowledge that her car was loaded with marijuana as she entered the United States. She testified that while she was in Tijuana on June 21, 2012, she gave her car to a mechanic named Juan so that he could repair her air conditioning more cheaply than she could have it done in the United States. She suggested that Juan had hidden the marijuana in the quarter panels of her car while it was in the mechanic shop. Competing automotive experts testified about whether (1) Flores's air conditioning was in fact working on June 21; (2) Flores could have felt the weight and noise-dampening effect of the marijuana while she drove; and (3) car repairs were cheaper in Mexico.

The government noted Flores's failure to provide corroborating evidence that the repair work was done or that Juan even existed, and offered evidence of her behavior at the border and following her arrest as proof that she knew drugs were hidden in her car. The government also introduced two jail-recorded phone calls Flores made after her arrest. The first evidenced concern that her actions had hurt her family and the other was a request that her cousin delete “whatever [he] fe[lt] need[ed] to be taken off” of Flores's Facebook page. The latter call prompted the government to search her Facebook account for incriminating evidence. This search, in turn, led to two Facebook messages Flores had sent on June 21 referencing her “carrying” or “bringing” marijuana, which were introduced over Flores's objections and following the denial of her suppression motion.

Flores testified that the postings indicated only that she carried marijuana on June 21 from the United States into Mexico, not that she was about to smuggle marijuana from Mexico into the United States. In this appeal, she argues that the government committed misconduct by distorting her testimony in closing. For example, the prosecutor asked her, “so it's undisputed that on the day of your arrest, you definitely brought drugs between the United States and Mexico” and “across the international border?”³ The prosecutor also asked Flores if it was “illegal” to bring marijuana into Mexico—a misleading question given that Flores was on trial for importation, not exportation.⁴ And, after emphasizing that Flores admitted to “smuggling drugs,” the prosecutor argued during closing that Flores lied when she testified that the messages referred to exportation—not importation—of marijuana. Further, after acknowledging that Flores claimed she brought drugs to Mexico only, the prosecutor asserted, “[t]hat's still smuggling drugs”—a supposed crime that was not charged. In her final line to the jury, the prosecutor emphasized: “She knows she was smuggling drugs on June 21st, 2012. You heard her say that repeatedly and that's why she's guilty beyond a reasonable doubt.”

In addition to claiming that the government engaged in prosecutorial misconduct, Flores argues on appeal that (1) the district court erred in denying her motion to suppress; (2) the district court abused its discretion by admitting Facebook messages and other unduly prejudicial evidence referencing Flores's marijuana use; and (3) the district court procedurally erred in applying an obstruction of justice enhancement at sentencing. We address Flores's arguments in turn.

II. PROSECUTORIAL MISCONDUCT

We review de novo whether any prosecutorial misconduct occurred. See United States v. Weatherspoon, 410 F.3d 1142, 1145–46 (9th Cir.2005) ; United States v. Ross, 123 F.3d 1181, 1187 (9th Cir.1997). We then consider the effect of any misconduct to determine whether reversal is warranted. See Weatherspoon, 410 F.3d at 1150–51. Where Flores objected at trial, we review for harmless error; where she did not, we review under the more deferential plain error standard. See United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir.2013).

A. Misstating the Law and Facts

Flores contends that the government committed misconduct by erroneously telling the jury that it could convict her based on her admission to carrying marijuana to Mexico on the date of her arrest. We agree that the government misstated the law to the jury. See United States v. Berry, 627 F.2d 193, 200 (9th Cir.1980) (“A prosecutor should not misstate the law in closing argument.”). The government also misstated Flores's testimony, thereby making an unsupported factual claim. See United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir.1993) ; see also United States v. Mageno, 762 F.3d 933, 943 (9th Cir.2014), vacated on other grounds, 786 F.3d 768 (9th Cir.2015). Flores did not object to this misconduct below, however, so we review for plain error. We conclude that the misstatements did not substantially prejudice her, and so do not warrant reversal. See Ruiz, 710 F.3d at 1082.

1. The Prosecution's Impermissible Statements

The government crossed the line between permissible commentary on Flores's testimony about her Facebook messages and that which we have long deemed impermissible. In a message dated June 21, 2012, Flores's friend asked if she “carried some pot,” to which Flores responded, “yes.”⁵ In a second pair of June 21 messages, Flores says to a different friend, “come over and have a smoke” “of what I'm bringing.”⁶ Flores testified that these messages meant that she was bringing marijuana to Mexico and argued that they did not prove that she imported marijuana as charged. The government characterized these messages differently:

You heard about some posts on [Flores's] Facebook account from June 21st 2012 when she said she was carrying marijuana and bringing marijuana. You know what she was carrying on June 21st 2012. She was carrying and bringing marijuana from Mexico into the United States in her car. She tried to convince you. She tried to explain this away. She said, No. No. What I was doing was bringing marijuana from the United States of America into Mexico.

This argument reflects the government's apparent strategy for using the Facebook messages to convince the jury that Flores (1) admitted to carrying drugs across the U.S.-Mexico border, and (2) was lying about the direction she carried the drugs.

Both parts of this strategy are permissible. Prosecutors are free in argument to suggest that the jury draw reasonable inferences from the evidence presented at trial. United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir.1997) ; see also Mageno, 762 F.3d at 943 ; United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.1991) (holding that prosecutors may argue that a defendant is lying). Here, there was more than enough evidence to support a reasonable inference that the Facebook messages actually meant that Flores was carrying drugs into the United States, rather than to Mexico as she testified. She was, in fact, carrying more than 36 pounds of marijuana in her car as she entered the United States on the very day she sent those messages. She then attempted to delete postings on her Facebook account from jail after the border patrol discovered the marijuana in her car.

Of course, the jury was free to believe Flores's explanation that the messages actually referenced exportation rather than importation, but the evidence adequately supported the government's characterization of them. Even if we were to accept that those messages conveyed a desire to smoke marijuana in Mexico, nothing in them rules out the possibility that Flores was offering her friends an opportunity to smoke some of the more than 36 pounds of marijuana she picked up in Mexico before she carried it back to the United States. The latter possibility is all the more plausible because when Flores was arrested, she was not carrying any marijuana other than that found hidden in her car. This evidence supports the permissible inference the government asked the jury to draw—namely, that...