United States v. Velazquez, No. 19-50099

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PAEZ, Circuit Judge
• Citation: 1 F.4th 1132
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred VELAZQUEZ, Defendant-Appellant.
• Docket Number: No. 19-50099
• Decision Date: 23 June 2021

1 F.4th 1132

UNITED STATES of America, Plaintiff-Appellee,
v.
Alfred VELAZQUEZ, Defendant-Appellant.

No. 19-50099

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 2020 Pasadena, California
Filed June 23, 2021

Carlton F. Gunn (argued), Pasadena, California, for Defendant-Appellant.

Benjamin Holley (argued) and Nicole Ries Fox, Assistant United States Attorneys; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Richard A. Paez and Bridget S. Bade, Circuit Judges, and Eric F. Melgren,^* District Judge.

Dissent by Judge Bade

PAEZ, Circuit Judge:

1 F.4th 1134

A jury convicted Alfred Velazquez of importing controlled substances into the United States, in violation of 21 U.S.C. § 960. At trial, Velazquez took the stand and testified he did not know the car he was driving contained drugs—what is sometimes referred to as the "blind mule" defense.

Velazquez asserts multiple errors at trial, but we need focus only on one. During closing argument, the government compared the reasonable doubt standard to the confidence one needs to "hav[e] a meal" or "travel to ... court"—without worrying about the "possib[ility]" that one will get sick or end up in an accident. Velazquez claims that this improper argument, and the district court's failure to cure it, caused him prejudice. We agree. We have jurisdiction under 28 U.S.C. § 1291. We vacate Velazquez's conviction and remand for a new trial.

I.

In July 2017, Velazquez was driving from Mexico into the United States when he encountered Customs and Border Protection Officer Sean Hanlon at the Otay Mesa Port of Entry. Velazquez provided his temporary driver's license and told the officer he was going to the Department of Motor Vehicles (DMV) to obtain permanent identification. The officer asked Velazquez who owned the car, and Velazquez said the car belonged to his cousin.

Velazquez was sent to secondary inspection. As the officer took Velazquez to secondary inspection, he understood Velazquez to say: "I don't know why you're searching me or bothering me. I'm just going to meet up with my mom." The officer asked Velazquez about his earlier statement about going to the DMV. Velazquez explained that "he was going to pick up his mom and then going to go to the DMV to hang out."

The officer searched the car in secondary inspection. The officer opened the hood and saw that the engine "was heavily tampered." Velazquez gave the officer permission to open the intake manifold, where the officer found two packages. Later testing revealed the packages contained over 2,000 grams of a mixture and substance containing fentanyl and heroin, which was worth almost $150,000.

Velazquez was arrested, and Department of Homeland Security Agent Kevin Day interrogated him. Velazquez denied knowing about the drugs.

A. The Trial

Velazquez was indicted for importation of fentanyl and importation of heroin. Velazquez pled not guilty and proceeded to trial.

1. The Government's Case-in-Chief

At trial, the government presented two main witnesses, Officer Hanlon and Agent Day. Officer Hanlon—the officer who first encountered Velazquez at the port of entry—testified about his initial observations of Velazquez. He testified that Velazquez "couldn't maintain eye contact, ... was continuously readjusting in his seat, and ... his hands were shaking when he would hand me documents or his ID." He also testified that the car was very clean and had little "personalization." On cross-examination, however, the officer acknowledged that there were several personal items in the car, such as a CD and "some other personal items" in the glove box, a can on the floor, a personal jacket or checkered top, a sun visor block in the back of the car, and a "shirt or some such thing that[ was] kind of strewn" in the back.

1 F.4th 1135

Agent Day—the interviewing agent—also testified. He testified about various documents, including registration papers showing that the car Velazquez was driving had been purchased for $300 two months before he was stopped at the border, from a seller identified as "Operadora de Autos." Agent Day also testified about various records showing Velazquez had crossed the border over sixty times, with about half of the entries resulting in secondary inspections.

Defense counsel asked Agent Day whether he was aware of the concept of "blind mules." Agent Day explained he had heard of blind mules with "magnet loads of marijuana," but "[had] not heard of any hard narcotic blind mules, and I've not heard of any where the drugs are concealed inside the engine." Agent Day provided additional testimony on redirect examination, explaining that blind mules typically involve marijuana, usually hidden underneath a vehicle in a way that is easily accessible, usually with a GPS monitor attached.

2. Velazquez's Testimony

After the government rested its case-in-chief, Velazquez testified in his defense. He testified that he had been living with his girlfriend, Bella, in Tijuana, Mexico, but would frequently travel to the United States to help at his parents’ nursery and with sales at swap meets. He met Bella through her uncle, Juan, who worked at a car wash Velazquez used in Tijuana. He also testified that a man named Rayo lived across the street from Juan and Bella and identified all their residences in photographs.

Velazquez also testified that Bella became distant shortly before his arrest and began seeing her former boyfriend Emmanuel, whose father was involved "big time" in drugs and controlled a large area in Tijuana. Velazquez also heard rumors that Juan and Rayo were mixed up in drugs. Bella's father had been the victim of a drug-related murder.

Velazquez also testified about the car he was driving when he was arrested. He said he purchased it for $1,500 from a man he met through Juan. He testified that he parked the car in a parking lot Juan had told him about, and both Juan and Rayo knew Velazquez parked the car there. When Velazquez helped his parents in the United States, he parked the car at their nursery and used their truck for deliveries and other business. Bella knew where the nursery was located because she had asked Velazquez to send her a photograph of the car at the nursery, and the photograph had a "pin location" that provided its geographic location.

Velazquez also testified about the events leading up to his arrest. He said that the night before the arrest, he had had a fight with Bella, but she later met him at Juan's house to make up. Velazquez spent the night at Juan's house. The next day, Velazquez drove his car to the border to "take care of [ ] things" at the DMV and then head over to his parents’ house. He clarified that what he meant when he told Officer Hanlon about going to the DMV and hanging out with his mother was that he was going to the DMV and then going to see his mother. He admitted that he lied when he said the car belonged to his cousin, but that he did so because border officers had confiscated a car his brother had given him just two weeks earlier.¹ He denied knowing anything about the drugs.

1 F.4th 1136

3. Jury Instruction and Closing Argument

Just before closing argument, the court instructed the jury on reasonable doubt. The court stated:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt. A reasonable doubt is a doubt based on reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence or from a lack of evidence. If after a careful and impartial consideration of all the evidence you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty.

The prosecutor then began his closing argument and described the reasonable doubt standard: "Reasonable doubt is something that you make decisions about every single day." Defense counsel objected. The district court did not sustain or overrule the objection, but it did instruct the jury to follow its instruction on reasonable doubt and "not as to what any attorney says the standard of reasonable doubt is." The prosecutor then gave more examples of reasonable doubt:

It is something that you do every single day. So things like getting up, having a meal. You're firmly convinced that the meal you're going to have is not going to make you sick. But it is possible that it might not—that it might actually make you sick.

You got in your car or you travel to the court today. It is possible that you may have gotten in an accident, but you are firmly convinced that—the likelihood that you'll be able to get to court safely.

During rebuttal, the prosecutor again told the jury that reasonable doubt "is something that you use every single day in your life." Defense counsel objected that the prosecutor's...