United States v. Alfred Velazquez ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50099
Plaintiff-Appellee,
D.C. No.
v. 3:17-cr-03707-
BAS-1
ALFRED VELAZQUEZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted July 8, 2020
Pasadena, California
Filed June 23, 2021
Before: Richard A. Paez and Bridget S. Bade, Circuit
Judges, and Eric F. Melgren, * District Judge.
Opinion by Judge Paez;
Dissent by Judge Bade
*
The Honorable Eric F. Melgren, United States District Judge for
the District of Kansas, sitting by designation.
2 UNITED STATES V. VELAZQUEZ
SUMMARY **
Criminal Law
The panel vacated a conviction for importing controlled
substances into the United States, and remanded for a new
trial, in a case in which the defendant testified he did not
know the car he was driving contained drugs.
During closing argument, the prosecutor 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. The panel held that the prosecutor engaged in
misconduct by trivializing the reasonable doubt standard
and, as a result, caused the defendant substantial prejudice.
The panel wrote that the prosecutor’s comments regarding
the government’s burden of proof diverged significantly
from what is required at trial, and was troubled by the
suggestion that reasonable doubt can be compared to an
“everyday” experience. The panel was not convinced that
the district court’s providing the correct instruction and
admonishing the jury earlier during closing argument
sufficiently neutralized the prejudice. The panel did not
believe that the evidence demonstrating the defendant’s
knowledge of the drugs was so overwhelming that the
prosecutor’s misstatements were harmless.
Dissenting, Judge Bade agreed that the prosecutor’s
comments were at best unhelpful, and potentially
misleading, but wrote that the record overwhelmingly
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. VELAZQUEZ 3
establishes that the comments did not affect the verdict and,
thus, the defendant’s due process rights were not violated.
COUNSEL
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.
4 UNITED STATES V. VELAZQUEZ
OPINION
PAEZ, Circuit Judge:
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
UNITED STATES V. VELAZQUEZ 5
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
6 UNITED STATES V. VELAZQUEZ
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.
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
UNITED STATES V. VELAZQUEZ 7
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
8 UNITED STATES V. VELAZQUEZ
two weeks earlier. 1 He denied knowing anything about the
drugs.
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.”
1
Agent Day testified he was “familiar” with this seizure. Velazquez
gave Agent Day the same reason for lying about the car’s ownership
during his post-arrest statement, but the district court excluded that
testimony as hearsay when defense counsel proffered it.
UNITED STATES V. VELAZQUEZ 9
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
argument “diminishes the burden of proof.” This time, the
district court overruled the objection and did not admonish
the jury.
4. Verdict and Judgment
The jury returned a guilty verdict. The court
subsequently sentenced Velazquez to 151 months in prison.
Velazquez timely appealed.
II.
Velazquez contends that, despite the court’s instruction
regarding reasonable doubt, the prosecutor trivialized the
standard during closing argument and substantially
prejudiced him. We agree.
10 UNITED STATES V. VELAZQUEZ
A prosecutor’s misstatements of law during closing
argument provide grounds for reversal. United States v.
Segna, 555 F.2d 226, 230–32 (9th Cir. 1977). We will not
reverse a conviction, however, unless the prosecutor’s
statements during closing argument “are so gross as
probably to prejudice the defendant, and the prejudice has
not been neutralized by the trial judge.” United States v.
Birges, 723 F.2d 666, 672 (9th Cir. 1984) (quoting United
States v. Parker, 549 F.2d 1217, 1222 (9th Cir. 1977)). To
show prejudice, “[t]he defendant must show that it is more
probable than not that the misconduct materially affected the
verdict.” United States v. Tucker, 641 F.3d 1110, 1120 (9th
Cir. 2011) (quoting United States v. Tam, 240 F.3d 797, 802
(9th Cir. 2001)); Segna, 555 F.2d at 232. In close cases,
however, we will not hesitate to reverse a conviction on the
basis of a prosecutor’s misstatement of the law, even when
reviewing for plain error. See Segna, 555 F.2d at 230–32.
On multiple occasions, we have reviewed de novo
whether a challenged prosecutorial comment infringes on a
defendant’s Fifth Amendment rights. United States v.
Mikhel, 889 F.3d 1003, 1060 (9th Cir. 2018) (reviewing de
novo prosecutor’s comment on defendant’s failure to
testify); United States v. Inzunza, 638 F.3d 1006, 1023 (9th
Cir. 2011) (reviewing de novo prosecutor’s comment on
failure to call witness); United States v. Reyes, 660 F.3d 454,
461 (9th Cir. 2011); United States v. Perlaza, 439 F.3d 1149,
1169 n.22 (9th Cir. 2006). We recently acknowledged,
however, potential intra-circuit conflict on the standard of
review for challenges to prosecutorial comments, suggesting
that we might instead review the court’s overruling of an
objection to such comments “for abuse of discretion.”
United States v. Wijegoonaratna, 922 F.3d 983, 989 (9th Cir.
2019) (quoting United States v. Santiago, 46 F.3d 885, 892
(9th Cir. 1995)). Nonetheless, even if an intra-circuit
UNITED STATES V. VELAZQUEZ 11
conflict exists, “we are not prompted to call for our court to
revisit the broader issue en banc” because we reach the same
conclusion under either standard of review. Id. (citation and
brackets omitted); see also Segna, 555 F.2d at 230–32
(reversing conviction, even on plain error review, in a close
case involving a prosecutor’s misstatement of the law).
Here, we conclude the prosecutor engaged in misconduct by
trivializing the reasonable doubt standard and, as a result,
caused Velazquez substantial prejudice. We further
conclude that the court failed to neutralize the prejudice.
In a criminal trial, “no person shall be made to suffer the
onus of a criminal conviction except upon sufficient proof—
defined as evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence of every element
of the offense.” Jackson v. Virginia, 443 U.S. 307, 316
(1979). This standard of proof is “indispensable” to our
criminal justice system and preserves three distinct interests.
In re Winship, 397 U.S. 358, 364 (1970). First, it protects
the defendant’s interest in being free from unjustified loss of
liberty and the stigmatization that results from conviction.
Id. at 363. Second, it engenders community confidence in
the administration of justice by giving “concrete substance”
to the presumption of innocence. Id. at 363–64. Third, it
ensures “that the moral force of the criminal law [is not]
diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned.” Id. at 364.
Thus, for a jury to convict a defendant under this high burden
of proof, the jury must “reach a subjective state of near
certitude of the guilt of the accused.” Jackson, 443 U.S. at
315 (emphasis added).
In the final moments of a trial, the government’s
principal purpose is to persuade the jury it has met its burden
to show guilt beyond a reasonable doubt. Even against this
12 UNITED STATES V. VELAZQUEZ
high burden, however, a prosecutor, as a representative of
the government, wields considerable influence over a jury.
See Berger v. United States, 295 U.S. 78, 88 (1935). With
this power, a prosecutor can easily mislead the average juror
into adopting his or her personal view of the law, even when
that view diverges from the court’s own instruction. See id.;
see also United States v. Parr-Pla, 549 F.2d 660, 662 (9th
Cir. 1977) (per curiam) (“It is the duty of the court, not
counsel, to advise the jury as to the law . . . .”). Because
jurors can be swayed by such mischaracterizations, a
prosecutor must be especially wary of making any comments
that could, in effect, reduce its burden of proof.
The prosecutor’s comments here regarding the
government’s burden of proof diverged significantly from
what we require in a criminal trial. The prosecutor compared
the reasonable doubt standard to making decisions like going
for a drive or eating a meal—with the confidence that things
will not go awry. Such decisions involve a kind of casual
judgment that is so ordinary and so mundane that it hardly
matches our demand for “near certitude” of guilt before
attaching criminal culpability. See Jackson, 443 U.S. at 315.
These decisions do not typically even involve an objective
calculation of risk, but rather rest on the fallacious comfort
that because these activities did not result in chaos yesterday,
they will not today. Such examples are highly inappropriate
and misleading. See People v. Nguyen, 46 Cal. Rptr. 2d 840,
844–45 (Ct. App. 1995) (holding that prosecutor’s
statements equating reasonable doubt with decisions like
getting married or changing lanes while driving were
improper).
We are also troubled by the suggestion that reasonable
doubt can be compared to an “everyday” experience. The
process of adjudicating guilt is a major and meticulous
UNITED STATES V. VELAZQUEZ 13
undertaking. People do not, “every single day,” bear the
solemn task of examining evidence and determining an
accused’s guilt. The comparison—to reflexive, quotidian
decisions like “getting up,” “having a meal,” and “travel[ing]
to . . . court”—is flagrant and seriously distorts the
standard. 2 The government’s analogies reflect an effort—
even if unintentional—to “reduce [its] burden of proof.” See
United States v. Henry, 545 F.3d 367, 383 (6th Cir. 2008)
(holding that prosecutor’s suggestion to the jurors that the
decision of whether to convict the defendant was the same
as deciding whether to recommend their child to take a job
2
The examples deployed here are worse and involve less
deliberation, scrutiny, and advice-seeking than those that have already
been heavily criticized, such as “choosing a spouse, a job, a place to live,
and the like.” Victor v. Nebraska, 511 U.S. 1, 24 (1994) (Ginsburg, J.,
concurring) (quoting Fed. Jud. Ctr. Pattern Crim. Jury Instr. No. 21
(1987)). A committee of distinguished federal judges, reporting to the
Judicial Conference of the United States, had criticized formulations
containing such examples because they “generally involve a very heavy
element of uncertainty and risk-taking” and are thus “wholly unlike the
decisions jurors ought to make in criminal cases.” Id. Justice Ginsburg
echoed these concerns, calling such examples “unhelpful.” Id. So have
we, describing the concerns as “well stated.” United States v. Jaramillo-
Suarez, 950 F.2d 1378, 1386 (9th Cir. 1991), as amended on denial of
reh’g (Dec. 16, 1991). State courts are also in accord with this view.
See, e.g., Nguyen, 46 Cal. Rptr. 2d at 844–45; Holmes v. State, 972 P.2d
337, 343 (Nev. 1998) (“[P]rosecutorial commentary analogizing
reasonable doubt with major life decisions such as buying a house or
changing jobs is improper because these decisions involve elements of
uncertainty and risk-taking and are wholly unlike the kinds of decisions
that jurors must make in criminal trials.”). Commentators, too. See, e.g.,
Michael D. Cicchini, Instructing Jurors on Reasonable Doubt: It’s All
Relative, 8 Cal. L. Rev. Online 72, 74–75 (2017).
14 UNITED STATES V. VELAZQUEZ
with him was improper). District courts in this circuit have
rightfully admonished such analogies. 3
The government acknowledges, in a footnote, that courts
have warned against such analogies to everyday decisions
because they are “easily susceptible to erroneous
interpretation.” Gov’t Br. at 57 n.3 (quoting Escobar v.
Williams, 774 F. App’x 403, 403–04 (9th Cir. 2019)). It
nonetheless argues that, in context, the prosecutor did not err
because he also quoted language directly from the court’s
instruction on the reasonable doubt standard, an instruction
Velazquez does not contest. That instruction stated, in part,
that “[p]roof beyond a reasonable doubt is proof that leaves
you firmly convinced the defendant is guilty.” To be sure,
the prosecutor tracked some of this language and projected
the instruction on a screen during his closing argument. But
he also mischaracterized the court’s directive to be “firmly
convinced” by analogizing it to everyday judgment and
scrutiny. By doing so, the prosecutor’s comments provided
the only concrete examples of the cryptic phrase “firm
conviction,” and, as a result, diluted its meaning. In other
words, the phrase has less significance when it is equated to
3
See, e.g., United States v. Ramos, No. 13-cr-00403, 2016 WL
844789, at *7–9 (C.D. Cal. Feb. 29, 2016), aff’d in part, vacated in part,
717 F. App’x 693, 695 (9th Cir. 2017); Horton v. McWean, No. 10-cv-
6428, 2012 WL 6110488, at *23 (C.D. Cal. Nov. 5, 2012) (“[The
prosecutor’s] comparison of the reasonable doubt standard to everyday
decisions made while crossing a street or stopping at a red light arguably
trivialized the standard.”), report and recommendation adopted, No. 10-
cv-6428, 2012 WL 6131200 (C.D. Cal. Dec. 10, 2012); Suy v. Pliler, No.
02-cv-2765, 2007 WL 4200451, at *5 (E.D. Cal. Nov. 21, 2007) (“[T]he
prosecutor’s reference to everyday decisions, such as what grade to give
a school assignment or whether a motorist is guilty of a traffic violation
if he exceeds the speed limit, come close to improperly trivializing the
reasonable doubt standard.”), report and recommendation adopted, No.
02-cv-02765, 2008 WL 496432 (E.D. Cal. Feb. 21, 2008).
UNITED STATES V. VELAZQUEZ 15
the “everyday” confidence one possesses when deciding to
drive, get up, or eat a meal. If anything, a reasonable juror
could read the instruction and believe it was entirely
compatible with the prosecutor’s characterization of the
reasonable doubt standard. 4 See Segna, 555 F.2d at 230–32
(holding that, although “some of the prosecutor’s
comments” correctly stated the law, the prosecutor’s
erroneous statements of law constituted plain error).
Next, the government argues that even if the prosecutor’s
statements trivialized the standard, the error was harmless
because the court clarified for the jury that it was to follow
the court’s instruction “and not as to what any attorney says
the standard of reasonable doubt is.” Because the court
provided the correct instruction and admonished the jury
earlier during closing argument, the government argues,
Velazquez suffered no prejudice. 5 We are not convinced
4
The dissent argues that defense counsel’s discussion of the
reasonable doubt standard invited the prosecutor’s comment during
rebuttal argument. But the invited response doctrine is not implicated
here because the prosecutor’s initial improper statements preceded
defense counsel’s argument. See United States v. Weatherspoon,
410 F.3d 1142, 1150 (9th Cir. 2005). Perhaps for that reason, the
government elected not to raise such an argument in its answering brief.
Nonetheless, “even if any defense statements were somehow viewed as
opening the door to a prosecutorial response,” the prosecutor’s comment
“would still be inappropriate because ‘the prosecution is not allowed to
use improper tactics even in response to similar tactics by the defense.’”
Id. (quoting United States v. Sarkisian, 197 F.3d 966, 990 (9th Cir.
1999)). “Prosecutors must understand the different—and special—place
that they occupy in the criminal justice system,” which, “as
representative of the United States[,] . . . demands the exercise of far
better restraint and better judgment than was exhibited here.” Id.
5The dissent argues in part that the district court neutralized the
prosecutor’s improper statements by reminding the jury that the lawyers’
arguments are not evidence. Our concern, however, is not with the
16 UNITED STATES V. VELAZQUEZ
that the court sufficiently “neutralized” the prejudice. See
Birges, 723 F.2d at 672; United States v. Weatherspoon,
410 F.3d 1142, 1151 (9th Cir. 2005) (explaining
prosecutor’s improper statements were prejudicial because
“the trial was doubly flawed: Objections were [] made by
defense counsel, and whatever curative statements were
provided by the district judge were inadequate”). Although
the district court initially instructed 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 provided numerous improper examples that
served to reduce the government’s burden of proof—all
without further admonishment. And the district court
overruled defense counsel’s second objection after the
prosecutor, during his rebuttal, rehashed an identical
argument that reasonable doubt was something the jurors
used “every single day.” See Weatherspoon, 410 F.3d
at 1151. By overruling the objection, the court naturally left
the jurors with the impression that the prosecutor’s
comparison of the reasonable doubt standard to an
“everyday” judgment, and that the specific examples the
prosecutor furnished, were proper. Moreover, the
prosecutor’s distortion of the standard was among the last
things the jury heard before they began deliberations, further
exacerbating our concerns. 6 The risk that the jury believed
that convicting a defendant was akin to, in the prosecutor’s
words, “getting up,” “having a meal,” or “travel[ing] to . . .
prosecutor’s characterization of trial evidence, but with his trivialization
of the reasonable doubt standard.
6
For this reason, the government’s citation to United States v. Flores
is not persuasive, as the district court here did not read the correct
statement of law “shortly after closing arguments.” See 802 F.3d 1028,
1039 (9th Cir. 2015).
UNITED STATES V. VELAZQUEZ 17
court,” was therefore high. 7 See id. at 1145–51 (holding that
the prosecutor’s improper vouching and other statements
during closing argument constituted plain error).
Last, we do not believe that the evidence demonstrating
Velazquez’s knowledge of the drugs was so overwhelming
that the prosecutor’s misstatements were harmless. The
government’s case relied exclusively on circumstantial
evidence, such as the value, type, and amount of drugs in the
car; Velazquez’s purported nervousness when he was
stopped and the inconsistency about where he was headed;
the lack of personalization in his car; and Velazquez’s
apparent attempt to distance himself from owning the car.
None of these facts were uncontroverted or otherwise so
damning that we are convinced the error was harmless.
To begin, the argument that the value, type, or amount of
drugs found in Velazquez’s car would not have been stored
there without his knowledge is, at best, speculative and has
no support in the record. The only evidence potentially
7
The regular presumption that the jury accepts the law as stated by
the court, not as stated by counsel, is not determinative here because the
likely prejudicial effect of the prosecutor’s trivialization of the
reasonable doubt standard is high. See United States v. Medina
Casteneda, 511 F.3d 1246, 1250 (9th Cir. 2008) (explaining on plain
error review that the presumption was not overcome because the “jury
never sought clarification of the standard, and the likely prejudicial
effects of this misstatement of the law on the defendant in the context of
the extensive closing arguments by both sides and proper jury
instructions is very low”). The totality of the closing arguments likely
left the jury with the impression that the prosecutor’s improper
explanations of the reasonable doubt standard were consistent with the
court’s instructions. This is particularly true where the court’s final word
on the issue was to overrule defense counsel’s objection. Further, as
explained below, the government’s evidence was not so overwhelming
as to render the error harmless.
18 UNITED STATES V. VELAZQUEZ
supporting this view is Agent Day’s testimony about the
characteristics of blind mules generally, but he had no
personal knowledge of whether those attributes applied to
Velazquez’s case in particular.
Further, as we have recognized, evidence about a
defendant’s nervousness provides limited objective value
and does not even create reasonable suspicion to detain a
person, let alone affirm a conviction. See United States v.
Chavez-Valenzuela, 268 F.3d 719, 726 (9th Cir. 2001)
(“Encounters with police officers are necessarily stressful
for law-abiders and criminals alike.”), amended, 279 F.3d
1062 (9th Cir. 2002), overruled on other grounds by
Muehler v. Mena, 544 U.S. 93 (2005); see also United States
v. Wald, 216 F.3d 1222, 1227 (10th Cir. 2000) (stating
evidence of nervousness “is of limited significance” (citation
omitted)). In a similar vein, the fact that Velazquez initially
told Officer Hanlon he was going to the DMV, and later told
him that he was on his way to see his mother, is not an
inconsistency that necessarily indicates a guilty conscience.
Additionally, Officer Hanlon’s testimony about the car’s
lack of personalization was, as discussed above, undercut on
cross-examination, as Velazquez’s car did contain several
items that did indicate personalization, 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, and a “shirt or some such thing that[ was] kind
of strewn” in the back.
Finally, although Velazquez’s initial decision to lie
about his cousin owning the car could, on the one hand,
indicate consciousness of guilt, it was equally consistent
with his testimony that he was afraid his car would again be
impounded, just as his other car had been two weeks prior.
UNITED STATES V. VELAZQUEZ 19
To be sure, we do not suggest the government had no
case against Velazquez or that the evidence demonstrating
his knowledge of the drugs was wholly lacking. But our job
is not to demonstrate Velazquez’s innocence or eliminate
any inkling of guilt. Indeed, even if the government has
presented a “strong circumstantial web of evidence against
[Velazquez], it was also a case in which, absent the
constitutionally forbidden comments, honest, fair-minded
jurors might very well have brought in not-guilty verdicts.”
Chapman v. California, 386 U.S. 18, 25–26 (1967) (citation
and internal quotation marks omitted); see also Segna,
555 F.2d at 230–32 (“Although the evidence was sufficient
for us to sustain a finding of sanity by the jury, an objective
review of the record, that is, one that does not view the
evidence only in the light most favorable to the government
as the prevailing party, reveals that the issue was extremely
close.”).
In sum, the ultimate issue at trial boiled down to whether
the government proved that Velazquez knew about the drugs
in his car beyond a reasonable doubt. Reasonable doubt was
the central theme of his defense. The prosecutor’s
comments, however, created an unacceptable risk that an
honest, fair-minded juror would succumb to the prosecutor’s
personal—rather than constitutional—view of the
government’s burden of proof to obtain a conviction and
therefore overlook his or her reasonable doubts. Because the
evidence demonstrating Velazquez’s knowledge was not
overwhelming, and the district court failed to neutralize the
prejudice, we conclude “that it is more probable than not that
the misconduct materially affected the verdict.” Tucker,
641 F.3d at 1120 (citation omitted).
20 UNITED STATES V. VELAZQUEZ
For the above reasons, we vacate Velazquez’s conviction
and remand for a new trial. 8
VACATED and REMANDED.
BADE, Circuit Judge, dissenting:
Alfred Velazquez was arrested at a port of entry as he
attempted to enter the United States from Mexico with
nearly four-and-a-half pounds of a mixture or substance
containing fentanyl and heroin, worth nearly $150,000, in
two packages concealed in the intake manifold of his car’s
engine. He was indicted on one count of importing
controlled substances into the United States, in violation of
21 U.S.C. §§ 952 and 960. Velazquez presented a “blind
mule” defense at trial and testified that he did not know the
drugs were hidden in his car. After a two-day trial, the jury
returned a guilty verdict in approximately three hours.
Velazquez argues that his conviction must be vacated
because the prosecutor violated his due process rights by
trivializing the reasonable doubt standard during closing
argument. The majority agrees and concludes that the
prosecutor’s comments in closing argument were improper
and caused Velazquez substantial prejudice that the district
court failed to neutralize. I agree that the prosecutor’s
comments were, at best, “unhelpful,” Maj. Op. 13 n.2
(quoting Victor v. Nebraska, 511 U.S. 1, 24 (1994)
(Ginsburg, J., concurring)), and potentially misleading. But
“it ‘is not enough that the prosecutors’ remarks were
8
In light of our disposition, we need not address Velazquez’s
remaining arguments.
UNITED STATES V. VELAZQUEZ 21
undesirable or even universally condemned.’ The relevant
question is whether the prosecutors’ comments ‘so infected
the trial with unfairness as to make the resulting conviction
a denial of due process.’” Darden v. Wainwright, 477 U.S.
168, 181 (1986) (citations omitted). Here, the record
overwhelmingly establishes that the prosecutor’s comments
did not affect the verdict and, thus, Velazquez’s due process
rights were not violated.
The majority vacates Velazquez’s conviction, but in
doing so it overlooks almost the entire trial record and
erroneously fails to consider the prosecutor’s comments in
context. See United States v. Young, 470 U.S. 1, 11 (1985)
(“[A] criminal conviction is not to be lightly overturned on
the basis of a prosecutor’s comments standing alone, for the
statements or conduct must be viewed in context; only by so
doing can it be determined whether the prosecutor’s conduct
affected the fairness of the trial.”); see also Boyde v.
California, 494 U.S. 370, 385 (1990) (“[T]he arguments of
counsel, like the instructions of the court, must be judged in
the context in which they are made.” (citations omitted)).
Instead, the majority considers only isolated comments
in the prosecutor’s closing and rebuttal arguments, and it
presents these comments in a confusing and inaccurate
manner. 1 The majority disregards defense counsel’s failure
1
The majority’s failure to consider the prosecutor’s comments in
context results in a confusing and inaccurate presentation of what
occurred at trial. As described in detail below, there are three comments
at issue. Nonetheless, I identify these three comments at the outset to
clarify the discussion. First, in his closing argument, the prosecutor
commented that “[r]easonable doubt is something that you make
decisions about every single day”; defense counsel objected, and the
court admonished the jury to follow the instructions on the standard of
proof, not the attorneys’ arguments. The majority does not suggest that
22 UNITED STATES V. VELAZQUEZ
to object to the comment that it appears to find most
objectionable and repeatedly quotes in its opinion
(specifically, the prosecutor’s second comment in his
closing argument in which he compared being “firmly
convinced,” the level of certitude needed to convict, to
routine decisions involving getting up, having a meal, and
driving). The majority also fails to consider the prosecutor’s
comments in context with the jury instructions, the court’s
repeated admonitions to the jury to ignore counsels’
arguments interpreting the reasonable doubt standard and to
rely only on the court’s instructions, and defense counsel’s
closing argument.
When properly considered in context, the record readily
establishes that the prosecutor’s comments did not affect the
verdict. See United States v. Tucker, 641 F.3d 1110, 1120
(9th Cir. 2011) (explaining that the defendant must “show
the court’s admonition failed to mitigate any prejudice from this
comment. Second, immediately after the court’s admonition in response
to the first comment, the prosecutor suggested that the jurors engage in
daily activities—such as getting out of bed, eating, and driving—“firmly
convinced” that they can perform each task safely. Defense counsel did
not object to these comments. Third, in his rebuttal argument, the
prosecutor commented that the reasonable doubt standard “is something
that you use every single day in your life”; defense counsel objected, and
the court overruled the objection. Significantly, the majority brushes
aside Velazquez’s failure to object to the second comment and any
import that may have on the standard of review. United States v. Tam,
240 F.3d 797, 802 (9th Cir. 2001) (“We review claims of prosecutorial
misconduct for plain error when the defendant did not object at trial, and
for abuse of discretion when the district court denied an objection to
closing argument.” (citation omitted)); see also United States v. Tucker,
641 F.3d 1110, 1120 (9th Cir. 2011) (same). Even assuming Velazquez
properly preserved review of each comment, his claim still fails because
he cannot show that “it is more probable than not that the misconduct
materially affected the verdict.” Tam, 240 F.3d at 802 (internal quotation
marks and citation omitted).
UNITED STATES V. VELAZQUEZ 23
that it is more probable than not that the misconduct
materially affected the verdict” (citation omitted)). And the
record shows that the district court appropriately neutralized
any potential prejudice. Id. at 1122; see also United States
v. Birges, 723 F.2d 666, 672 (9th Cir. 1984) (“Improprieties
in counsel’s arguments to the jury do not constitute
reversible error unless they are so gross as probably to
prejudice the defendant, and the prejudice has not been
neutralized by the trial judge.” (internal quotation marks and
citations omitted)). Thus, the majority’s conclusions cannot
withstand a proper review of the record. I respectfully
dissent.
I.
When reviewing a claim that improper argument
violated a defendant’s due process rights, the “remarks must
be examined within the context of the trial to determine
whether the prosecutor’s behavior amounted to prejudicial
error. In other words, the [c]ourt must consider the probable
effect the prosecutor’s [comments] would have on the jury’s
ability to judge the evidence fairly.” Young, 470 U.S. at 12.
We have identified several relevant factors to consider “[i]n
determining whether a comment rendered a trial
constitutionally unfair.” Hein v. Sullivan, 601 F.3d 897,
912–13 (9th Cir. 2010). These factors include “whether the
comment misstated the evidence, whether the judge
admonished the jury to disregard the comment, whether the
comment was invited by defense counsel in its summation,
whether defense counsel had an adequate opportunity to
rebut the comment, the prominence of the comment in the
context of the entire trial and the weight of the evidence.”
Id. (citing Darden, 477 U.S. at 182). Here, applying these
factors and examining the prosecutor’s comments in the
24 UNITED STATES V. VELAZQUEZ
context of the trial readily establishes that Velazquez was not
prejudiced by these comments.
A.
As an initial matter, the majority acknowledges that the
district court properly instructed the jury on the reasonable
doubt standard, but it ignores the rest of the court’s
instructions. This is a crucial omission because we
“assume[] that the jury listened to and followed the trial
judge’s instructions.” United States v. Wells, 879 F.3d 900,
937 (9th Cir. 2018) (citations omitted). And “[t]he jury is
regularly presumed to accept the law as stated by the court,
not as stated by counsel.” United States v. Medina
Casteneda, 511 F.3d 1246, 1250 (9th Cir. 2008) (citation
omitted). Therefore, we cannot conclude that the
prosecutor’s statements were prejudicial without
considering the district court’s instructions to the jury.
During the preliminary instructions, the district court
repeatedly stated that the government must prove its case
beyond a reasonable doubt and explained to the jury that
“statements and arguments of the attorneys” are not
evidence. Defense counsel then reiterated these points for
the jury in his opening statement; he told the jurors
repeatedly that the government must prove Velazquez’s guilt
beyond a reasonable doubt, and defined reasonable doubt by
stating: “In other words, the prosecutor has to eliminate all
reasonable or logical possibilities that Mr. Velazquez is
innocent. That’s the burden of proof.”
Before counsel’s closing arguments, the district court
again instructed the jurors and told them: “You will have as
many copies as you want of these instructions back in your
jury room . . . . You’ll each have a chance to take a look at
them back in the jury room if you need to go back and
UNITED STATES V. VELAZQUEZ 25
consult anything.” The court repeatedly stated that the
government had the burden of proof to establish Velazquez’s
guilt beyond a reasonable doubt, and accurately defined the
reasonable doubt standard, stating in part:
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.
The court again instructed the jury that “statements,
objections, and arguments by the lawyers are not evidence,”
and reiterated that “what the lawyers have said in their
opening statements, will say in their closing arguments, and
at other times is to help you interpret the evidence, but it is
not evidence.”
After closing arguments, the court gave the jurors final
instructions before excusing them to deliberate, and in those
instructions, it again stated that the government must prove
its case beyond a reasonable doubt, that the verdict must be
based “only on the evidence received in this case and on
these instructions,” and again told the jurors that it would
send the written instructions to the jury room. Thus, the
record demonstrates that the district court appropriately
instructed the jury, the district court admonished the jury not
to consider the attorneys’ arguments as evidence, and further
explained that the verdict could only be based on the
evidence and the instructions.
26 UNITED STATES V. VELAZQUEZ
B.
The majority omits and mischaracterizes crucial details
from the record that make it difficult, if not impossible, to
properly gauge the prejudicial effect of the prosecutor’s
comments. Reviewing the prosecutor’s comments, defense
counsel’s comments, the objections to those comments, and
how the court responded in the context of the entirety of
closing arguments makes it abundantly clear that it is not
“more probable than not” that the prosecutor’s comments
“materially affected the verdict.” See Tucker, 641 F.3d at
1120, 1122 (citation omitted).
During the prosecutor’s closing argument, he stated once
that the jurors applied the concept of reasonable doubt as part
of “everyday” decision-making. The prosecutor stated that
“[r]easonable doubt is something that you make decisions
about every single day.” Defense counsel objected, stating:
“That misstates the standard of reasonable doubt. Improper
argument.” In response, the court admonished the jurors,
stating: “[Y]ou will follow my instruction as to reasonable
doubt and not as to what any attorney says the standard of
reasonable doubt is. I instructed you on what the standard
for reasonable doubt is, and you should follow that
instruction.”
The prosecutor then continued his explanation of
reasonable doubt, suggesting that the jurors engage in daily
activities—such as getting out of bed, eating, and driving—
“firmly convinced” that they can perform each task safely.
The majority quotes this portion of the prosecutor’s
argument in its opinion, and it appears that it is this portion
the majority finds most prejudicial. But the majority fails to
UNITED STATES V. VELAZQUEZ 27
place this comment in context and omits that defense counsel
did not object to this comment. 2
The prosecutor concluded his discussion of reasonable
doubt by stating: “The idea here is that it’s all about
reasonable doubt. Not proof beyond all possible doubt.”
The prosecutor’s comments on the reasonable doubt
standard, in their entirety including the objection, the court’s
response, and the comparison to daily activities, comprised
one minute at the beginning of his thirty-five-minute closing
argument. For the next thirty-two minutes, the prosecutor
summarized and argued the evidence.
The majority concludes that the district court’s
admonition in response to the objection to the prosecutor’s
description of reasonable doubt did not “sufficiently
‘neutralize[]’ the prejudice,” Maj. Op. 15–16 (quoting
Birges, 723 F.2d at 672; United States v. Weatherspoon,
2
Without distinguishing the comments to which defense counsel
objected from comments to which he did not object, the majority
suggests that there may be an intra-circuit conflict on the appropriate
standard of review: de novo or abuse of discretion. But the majority
concludes the result is the same under either standard and so it does not
resolve this issue. However, the case that the majority cites to suggest
that such a conflict exists, United States v. Wijegoonaratna, states that
“[w]e usually review for abuse of discretion a district court’s overruling
of an objection to prosecutorial misconduct.” 922 F.3d 983, 989 (9th
Cir. 2019) (citations omitted). There, the court noted that the defendant
suggested de novo review might apply and cited United States v. Perlaza,
439 F.3d 1149, 1169 n.22 (9th Cir. 2006), where the court reviewed de
novo whether a closing argument constituted prosecutorial misconduct.
Wijegoonaratna, 922 F.3d at 988–89. But the court concluded that
“Perlaza appears to have mistaken the standard of review” because it
cited United States v. Santiago, 46 F.3d 885, 892 (9th Cir. 1995), “where
we reviewed ‘the court’s overruling of the objection’ to the prosecutor’s
comments at trial ‘for abuse of discretion.’” Wijegoonaratna, 922 F.3d
at 989.
28 UNITED STATES V. VELAZQUEZ
410 F.3d 1142, 1151 (9th Cir. 2005)), because the prosecutor
“provided numerous improper examples” that reduced the
government’s burden of proof, “all without further
admonishment.” Maj. Op. 16. But this description of the
court’s response to the closing argument distorts what
occurred. As set forth above, defense counsel did not object
to the prosecutor’s comment giving examples—getting out
of bed, eating, and driving—which the prosecutor listed
immediately after the court’s admonition that the jury should
follow its instructions and not follow “what any attorney
says the standard of reasonable doubt is.”
Apparently, the majority is suggesting that the district
court should have sua sponte admonished the jury again—a
few moments after its previous admonition—that it should
not follow the attorneys’ arguments on reasonable doubt.
This is an absurd and legally unsupported standard to
determine whether a district court’s admonitions neutralized
any prejudice from improper arguments. Instead, under
Hein, the district court’s admonition should be considered as
a factor that mitigated any prejudice from the prosecutor’s
comment because “the judge admonished the jury to
disregard the comment.” 601 F.3d at 912.
Moreover, “prosecutorial misrepresentations . . . are not
to be judged as having the same force as an instruction from
the court.” Boyde, 494 U.S. at 384–85. Therefore,
“[o]rdinarily, a cautionary instruction is presumed to have
cured prejudicial impact.” Dubria v. Smith, 224 F.3d 995,
1002 (9th Cir. 2000) (en banc) (citation omitted); see United
States v. Davis, 932 F.2d 752, 761 (9th Cir. 1991). In
response to the only objection in this one-minute segment of
the prosecutor’s closing argument, the district court properly
admonished the jury and reminded the jurors of the
instructions on the reasonable doubt standard, which they
UNITED STATES V. VELAZQUEZ 29
had heard multiple times and which they would take with
them in written form into the jury room. Thus, the record
establishes that the district court appropriately neutralized
any prejudice from the prosecutor’s comment and did not err
by not sua sponte offering a second admonition a few
seconds later.
Defense counsel also addressed the reasonable doubt
standard in his closing argument. But unlike the
prosecutor’s argument, which addressed the reasonable
doubt standard for one minute, defense counsel devoted
about twenty minutes, of his forty-six minute closing
argument, to his explanation of the reasonable doubt
standard. Thus, defense counsel’s lengthy argument on the
reasonable doubt standard is another factor that mitigates
any prejudice from the prosecutor’s comment because
“defense counsel had an adequate opportunity to rebut the
comment.” Hein, 601 F.3d at 912 (citation omitted).
In his closing argument, defense counsel stated that
when the reasonable doubt instruction states that the
government is not required to prove guilt “beyond all
possible doubt,” that means “they don’t need to prove
beyond any imaginary doubt or any fantasy.” He also stated
that if the jurors, “using reason or logic could believe that
reasonable doubt might be true, that equals reasonable
doubt.” The prosecutor objected to both statements. The
district court did not rule on the first objection, but instead
again admonished the jurors that they should not follow the
attorneys’ interpretations of the reasonable doubt standard.
The district court stated: “[A]s I cautioned you before, the
lawyers will have argument as to how you should interpret
this, but the law that I gave you is the law that you should
follow and not what the attorneys argue it to be.” The district
court overruled the second objection, stating: “It’s
30 UNITED STATES V. VELAZQUEZ
argument. The attorneys are simply arguing how you should
interpret the law, but you should follow the law as I instruct
you.”
Two minutes later, defense counsel reiterated his
interpretation of reasonable doubt, again telling the jurors
that “when we’re talking about beyond all reasonable doubt,
we’re not talking about fantasy. We’re not talking about
fanciful doubt.” The prosecutor did not object, and the
district court did not sua sponte admonish the jurors to
follow its instructions on reasonable doubt, just as it did not
sua sponte admonish the jurors after unobjected-to
comments in the prosecutor’s closing argument.
The defense attorney also described at length an incident
from the 1980s in which someone tampered with Tylenol by
putting cyanide in the pill bottles, which resulted in the
deaths of several people. He further stated that the
manufacturer recalled the pills and created a tamper-evident
seal “to eliminate any and all reasons that we would have to
doubt the safety of their product.” Defense counsel then
compared the government’s case to the 1980s Tylenol bottle
(without the tamper-evident seal) and told the jury: “If
you’re going to hesitate to take one of those pills, you have
reasonable doubt.” Thus, defense counsel likened the
reasonable doubt standard to the absolute certainty of safety
a person would need to have before ingesting a pill possibly
containing a deadly poison. But the prosecutor did not
object, and again, the district court did not sua sponte
admonish the jurors to follow the court’s instructions, not the
attorneys’ arguments.
At the beginning of his fourteen-minute rebuttal
argument, after defense counsel’s argument, the prosecutor
stated that reasonable doubt is “not proof beyond all possible
doubt,” and reiterated—without example or elaboration—
UNITED STATES V. VELAZQUEZ 31
that each juror uses the reasonable doubt standard “every
single day in your life.” Defense counsel objected that the
statement “diminishes the burden of proof. It’s improper
government argument.” But this time the court simply
responded, “Overruled.” The prosecutor went on to argue
the evidence for the next twelve minutes.
The prosecutor’s comment in rebuttal appears to have
been prompted by Velazquez’s closing argument, which
further reduces the likelihood that the comment had a
prejudicial effect. “[T]he propriety of the prosecutor’s
remarks must be judged in relation to what would constitute
a fair response to the remarks of defense counsel.” United
States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992)
(citation omitted); see Darden, 477 U.S. at 182–83.
Therefore, the prosecutor’s comment in rebuttal must be
viewed in context with defense counsel’s poisoned pill
illustration and suggestion that a juror’s hesitation to convict
equates to reasonable doubt.
Immediately after the court overruled defense counsel’s
objection, the prosecutor stated that “[i]t is not to be based
purely on speculation. The pills, the bottle, all of that, has
nothing to do with the [c]ourt’s instruction to you regarding
the standard for reasonable doubt.” And both immediately
before and after the comment that the jurors apply
reasonable doubt “every single day,” the prosecutor argued
that defense counsel was trying to define reasonable doubt
“where it becomes impossible for the United States to
reach,” and to “[r]aise it so high that the United States can’t
meet it.” Thus, it appears that the prosecutor’s comment was
intended to refute defense counsel’s suggestion that
hesitation alone, or lack of absolute certainty, is sufficient to
support a not guilty verdict. Therefore, the record
demonstrates that the prosecutor’s comment in rebuttal was
32 UNITED STATES V. VELAZQUEZ
a fair response to defense counsel’s argument, which
mitigates any potential prejudice from the prosecutor’s
comment. 3 Hein, 601 F.3d at 912 (explaining that “whether
the comment was invited by defense counsel in its
summation” is a factor in determining whether a comment
resulted in a denial of due process).
The majority nevertheless concludes that “[b]y
overruling [defendant’s] objection” to the prosecutor’s
comment in his rebuttal argument that jurors apply
reasonable doubt every day, the district court conveyed to
the jury that “the prosecutor’s comparison of the reasonable
doubt standard to an ‘everyday’ judgment, and . . . the
specific examples the prosecutor furnished, were proper.”
Maj. Op. 16. Of course, the first problem with this
conclusion is that the prosecutor did not furnish any specific
examples in his rebuttal argument and so the district court
was not overruling an objection to the prosecutor giving
specific examples. Therefore, it is difficult to see how the
court’s response to this objection would leave “the jurors
with the impression” that specific examples—that were
stated without objection nearly an hour-and-forty minutes
3
The majority appears to suggest that defense counsel’s comments
are not relevant to our analysis because the prosecutor made an improper
comment before defense counsel’s closing argument. But the majority
does not limit its prejudice analysis to the prosecutor’s initial comments;
instead, the majority’s analysis relies heavily on the prosecutor’s
comment in his rebuttal argument, which of course responded to defense
counsel’s closing argument. Moreover, in Weatherspoon, the case the
majority cites to suggest we should not consider defense counsel’s
comments, we explained that we must “undertake a contextual review of
prosecutorial misconduct” in light of “the entire trial.” 410 F.3d at 1150–
51 (citing Young, 470 U.S. at 12, 16).
UNITED STATES V. VELAZQUEZ 33
earlier during the prosecutor’s closing argument—were
proper.
The majority further confuses the record by asserting that
“the prosecutor’s distortion of the standard was among the
last things the jury heard before they began deliberations,
further exacerbating our concerns. The risk that the jury
believed that convicting a defendant was akin to, in the
prosecutor’s words, ‘getting up,’ ‘having a meal,’ or
‘travel[ing] to . . . court,’ was therefore high.” Maj. Op. 16–
17 (alteration in original) (footnote omitted). But the
prosecutor’s comment in which he gave the everyday
examples that the majority references was not “among the
last things the jury heard before they began deliberations.”
Maj. Op. 16. Rather, the prosecutor offered these examples
at the beginning of his closing argument, before defense
counsel’s closing argument, before his rebuttal argument,
and before the court’s final instructions—two hours before
the court excused the jury to deliberate.
And the prosecutor’s comment in rebuttal, suggesting
that the standard for “firmly convinced” is something the
jurors use every day, was also not “among the last things the
jury heard before they began deliberations.” Maj. Op. 16.
Instead, the jurors heard an additional twelve minutes of
rebuttal argument and six minutes of final instructions, and
therefore the jurors heard this comment nearly twenty
minutes before they were excused to begin deliberations.
Moreover, in the final instructions, which were the last
thing the jurors heard before deliberations, the court again
reminded the jurors that they “must base [their] verdict only
on the evidence received in this case and on these
34 UNITED STATES V. VELAZQUEZ
instructions.” 4 Thus, the majority’s inaccurate recitation of
the record is a fundamental flaw in its analysis, as these
inaccuracies obfuscate what effect—if any—the
prosecutor’s statements had on the jury.
C.
Beyond these misstatements of the record, the majority
also ignores the district court’s treatment of objections
throughout both attorneys’ closing arguments and the
different weight given to the court’s instructions and the
attorneys’ arguments. See Boyde, 494 U.S. at 384(“[A]rguments of counsel generally carry less weight with a
jury than do instructions from the court. The former are
usually billed in advance to the jury as matters of argument,
not evidence, and are likely viewed as the statements of
advocates; the latter, we have often recognized, are viewed
as definitive and binding statements of the law.” (citations
omitted)).
4
The majority suggests that my reference to the district court’s
instruction that the lawyers’ arguments are not evidence is misguided
because the “concern” here “is not with the prosecutor’s characterization
of trial evidence, but with his trivialization of the reasonable doubt
standard.” Maj. Op. 15 n.5. Although that instruction is relevant to the
prejudice analysis, it is not the only (or even the primary) reason I
conclude that the district court properly neutralized any prejudice. See
United States v. Koon, 34 F.3d 1416, 1445 (9th Cir. 1994) (stating that
instructing jury “to rely only on the evidence introduced at trial” and that
“argument is not evidence . . . dilute[s] the potential prejudice arising
from improper statements” (citations omitted)), rev’d in part on other
grounds, 518 U.S. 81 (1996). Instead, as described throughout this
dissent, I conclude that the district court neutralized any prejudice arising
from the prosecutor’s comments by properly instructing the jury on the
reasonable doubt standard and by repeatedly admonishing the jury that
it must apply the court’s instructions on the reasonable doubt standard,
not counsel’s arguments.
UNITED STATES V. VELAZQUEZ 35
A complete review of the district court’s responses to the
objections conclusively establishes that the jurors would not
have concluded that, because the court overruled an
objection, the prosecutor’s comment in his rebuttal argument
was proper. Instead, the record establishes that the district
court responded to objections by repeatedly admonishing the
jurors that the attorneys were making arguments, but the
jurors should follow the court’s instructions and their
recollection of the evidence. 5
During the prosecutor’s closing argument, after
objecting to the prosecutor’s comment on the reasonable
doubt standard, defense counsel made two additional
objections. In each objection, defense counsel asserted that
the prosecutor’s arguments assumed facts that were not in
evidence. The district court sustained the first objection, but
did not rule on the second objection and instead reminded
the jurors that they were “the judge of what the testimony
was and the attorneys’ statements are not evidence.”
The prosecutor also made objections to defense
counsel’s closing argument, beyond his two objections to
defense counsel’s statements defining reasonable doubt.
The prosecutor objected twice that defense counsel’s
argument misstated testimony. The court overruled both
objections and admonished the jurors, stating: “I will remind
you again that the evidence is as you remember it to be, not
5
Defense counsel objected three times in the prosecutor’s closing
argument, the prosecutor objected six times in defense counsel’s closing
argument, and defense counsel objected twice in the prosecutor’s
rebuttal argument. In response, the district court sustained only one
objection, admonished the jurors to follow the instructions and their
recollection of the evidence but did not otherwise rule on three
objections, overruled three objections and admonished the jury to follow
the instructions, and finally, overruled four objections without comment.
36 UNITED STATES V. VELAZQUEZ
as the lawyers represent it to be,” and “you’ll rely on the
evidence as you remember it.”
The prosecutor also objected, without stating a basis, to
defense counsel’s argument that the government presented
testimony about the dangerousness of fentanyl “to persuade
[the jury], to prejudice [the jury], to convict Mr. Velazquez
from an emotional point of view.” The district court
overruled the objection without comment. The prosecutor
also objected that defense counsel misstated the law by
arguing that the prosecutor had the power to file an
indictment and was the most powerful person in the room.
Again, the district court overruled the objection without
comment. Given the court’s many admonishments about the
nature of the attorneys’ arguments, it would be absurd to
suggest that, by overruling these objections, the district court
was conveying to the jurors that the government was trying
to convince them to return a guilty verdict based on their
emotions, rather than the evidence, or that the court agreed
that the prosecutor was the most powerful person in the
room.
During the prosecutor’s rebuttal argument, in addition to
objecting to the prosecutor’s comment on reasonable doubt,
defense counsel objected that the prosecutor’s argument
assumed facts not in evidence. The court overruled the
objection without comment. Again, given the court’s
repeated admonitions in response to earlier objections, it
would be unreasonable to conclude that, by overruling the
objection, the court was suggesting that the jury should
accept the prosecutor’s characterization of the facts.
The record conclusively establishes that the district court
appropriately instructed the jury and reinforced those
instructions with repeated admonitions that the jurors should
follow the court’s instructions and their recollection of the
UNITED STATES V. VELAZQUEZ 37
evidence, not the attorneys’ arguments. When the objections
and the court’s responses are considered in context, the
record unambiguously refutes the majority’s conclusion that
the district court failed to neutralize any prejudice from the
prosecutor’s comment in rebuttal by overruling an objection.
D.
Given that both sides made arguably hyperbolic and
inaccurate statements about the standard of proof and that
the court repeatedly admonished the jury to follow only its
instruction, not the attorneys’ arguments, it is highly unlikely
that the prosecutor’s and defense counsel’s comments on the
reasonable doubt standard influenced the jurors’ review of
the evidence. See Lopez-Alvarez, 970 F.2d at 598(concluding that “any prejudice which might have resulted
from the [prosecutor’s] comments was ‘neutralized by the
trial judge’ when he instructed the jury that ‘[t]he lawyers’
statements are not evidence’” (second alteration in original)
(citation omitted)).
Critically, the majority fails to consider the prosecutor’s
comments in the context of the entire trial, including the
district court’s repeated admonitions to the jury to follow its
instructions on the reasonable doubt standard. The majority
does not explain how Velazquez overcame the presumption
that the jury followed these admonitions. See Medina
Casteneda, 511 F.3d at 1250. Instead, it cites Weatherspoon
to support its assertion that “whatever curative statements
were provided by the district judge were inadequate.” Maj.
Op. 16 (quoting 410 F.3d at 1151). But Weatherspoon
provides scant support for the majority’s argument.
In that case, the prosecutor repeatedly vouched for
government witnesses and encouraged the jury to convict the
defendant to protect the community. See Weatherspoon,
38 UNITED STATES V. VELAZQUEZ
410 F.3d at 1146. However, the description of the
proceedings does not state that the district court ever
admonished the jury to ignore the prosecutor’s comments.
See id. at 1151; see also id. at 1155–70 (Trott, J., concurring
in part and dissenting in part) (describing relevant portions
of each side’s closing arguments and the court’s rulings on
objections). By contrast, here, the court explicitly and
repeatedly admonished the jury to follow its instructions on
the reasonable doubt standard, not counsels’ arguments.
We must presume that the jury followed the court’s
instructions and admonitions as there is no evidence that it
did not. See United States v. Flores, 802 F.3d 1028, 1040
(9th Cir. 2015) (stating that the court presumes the jury
followed the instructions when determining whether the
defendant was guilty); Medina Casteneda, 511 F.3d at 1250(“The jury is regularly presumed to accept the law as stated
by the court, not as stated by counsel.” (citation omitted)).
As we explained in Medina Casteneda, the presumption that
the jury followed the court’s instructions is not overcome
when “there is no evidence that the jury was confused by the
proof beyond a reasonable doubt standard” and it “never
sought clarification of the standard” and, therefore, “the
likely prejudicial effects of [a] misstatement of the law on
the defendant in the context of the extensive closing
arguments by both sides and proper jury instructions is very
low.” Id. Because Velazquez has not rebutted this
presumption, he has not shown that it is “more probable than
not that the misconduct materially affected the verdict.”
Tucker, 641 F.3d at 1120 (quoting Tam, 240 F.3d at 802).
II.
To determine whether the prosecutor’s comments
“infected the trial with unfairness,” we may also consider
“the prominence of the comment in the context of the entire
UNITED STATES V. VELAZQUEZ 39
trial and the weight of the evidence.” Hein, 601 F.3d at 912–
13 (citation omitted). Here, the prosecutor’s comments
comprised about ninety seconds of the hour-and-forty
minutes of closing arguments from both attorneys. These
arguments followed a two-day trial, during which five
witnesses testified, including Velazquez, and forty-two
exhibits were admitted into evidence. Thus, the prosecutor’s
comments were not prominent in the context of the entire
trial and were not likely to have affected the jury’s ability to
weigh the evidence fairly.
Moreover, the evidence against Velazquez was
overwhelming. There is no dispute that Velazquez was
attempting to enter the United States with a large amount of
fentanyl and heroin concealed in the engine of his car. He
did not challenge these facts. Instead, Velazquez presented
a “blind mule” defense at trial and testified that he did not
know the drugs were hidden in his car. Specifically,
Velazquez testified about his girlfriend Bella, who lived in
Tijuana, her uncle Juan, her neighbor Rayo, and her ex-
boyfriend Emmanuel, and that he had heard rumors that they
were involved in drugs. He also testified that Bella, Juan,
Rayo, and Emmanuel knew where he parked his car in
Tijuana, and Bella knew where he parked his car in the
United States.
But Velazquez’s testimony was uncorroborated. He did
not provide the last names, addresses, or telephone numbers
of Bella, Juan, Rayo, or Emmanuel, and as the prosecutor
argued to the jury, “[t]he only evidence that these people
exist came from the defendant.” The prosecutor further
argued that the defendant was not credible, in part, because
he did not present any evidence to support his blind mule
defense until he testified. The prosecutor stated: “The
defendant on the day of arrest said nothing to [the agents].
40 UNITED STATES V. VELAZQUEZ
He admits that. All these people involved in narcotics
trafficking surrounding the defendant. He says nothing.”
In a similar case in which the defendant was
apprehended crossing the border with drugs in her car and
claimed that they were planted without her knowledge, we
described the evidence of the defendant’s guilt as
“overwhelming,” Flores, 802 F.3d at 1038, and
characterized the uncorroborated blind mule defense as
“highly suspect,” id. at 1039. Indeed, while the defendant in
Flores presented a theory at trial on how she believed the
drugs were planted, we emphasized that the defendant failed
to mention any of the details behind her theory to agents and
that she failed to “take[] even basic steps to . . . corroborate
her story,” just as Velazquez failed to do here. Id. at 1038–
39. As in Flores, in this case “the government was free to
ask the jury to disbelieve” the defendant. See id. at 1035.
The majority, however, does “not believe that the
evidence demonstrating Velazquez’s knowledge of the
drugs was so overwhelming that the prosecutor’s
misstatements were harmless.” Maj. Op. 17. The majority
then asserts that “[t]he government’s case relied exclusively
on circumstantial evidence,” including the value, type, and
amount of drugs in Velazquez’s car, his nervousness, his
inconsistent statements about his destination, the lack of
personalization in his car, and his false statements to agents
about the ownership of the car. Maj. Op. 17. But the
majority’s characterization of the strength of the evidence
overlooks the most critical evidence at the trial: Velazquez’s
testimony.
As the majority states, “the ultimate issue at trial boiled
down to whether the government proved that Velazquez
knew about the drugs in his car beyond a reasonable doubt.”
Maj. Op. 19. And Velazquez made his credibility the central
UNITED STATES V. VELAZQUEZ 41
issue in the trial. The district court instructed the jury on the
factors it could consider when deciding which witness
testimony to believe or not believe, and Velazquez has not
argued that there were any errors in those instructions. The
court instructed the jury that it could consider, among other
factors, “the witness’ interest in the outcome of the case,”
“the witness’ bias or prejudice, if any,” and “the
reasonableness of the witness’ testimony in light of all the
evidence.” See Flores, 802 F.3d at 1038–39.
At the end of his direct examination, defense counsel
elicited the following testimony from Velazquez:
Q. Okay. Alfred, did anybody pay you to
move a load of drugs across the border
that day?
A. No, sir.
Q. Okay. Did you have any idea that
somebody had put drugs in that car?
A. No, sir.
Q. If you had known that there [were] drugs
in that car, would you have crossed it?
A. I wouldn’t do that.
Q. And are you telling us the absolute truth
today?
A. Yes, sir.
If the jury had accepted this testimony, it would have found
him not guilty and rejected the government’s arguments to
the contrary. Velazquez declared unequivocally that he did
42 UNITED STATES V. VELAZQUEZ
not know that drugs were in his car and that he was telling
the “absolute truth.” If the jury had accepted this testimony,
regardless of any circumstantial evidence the government
presented about whether the defendant appeared nervous, or
his statements about his destination or the car ownership, it
would have acquitted him.
But from the guilty verdict, we must conclude that the
jury did not find Velazquez credible, and it rejected his
testimony. There is nothing in the record that suggests that
the jury did not understand its task in evaluating the
credibility of testimony or the court’s instructions. Thus, it
is very unlikely that the attorneys’ conflicting arguments on
the reasonable doubt standard, including the prosecutor’s
comments, had any effect on whether the jury believed
Velazquez. Therefore, the record supports only one
conclusion—it is not likely that the prosecutor’s comments
affected the verdict.
III.
The majority opinion erroneously concludes that the
prosecutor’s isolated comments on the reasonable doubt
standard during his closing and rebuttal arguments
prejudiced Velazquez. But the majority fails to consider
these statements in context, including the district court’s
instructions, its repeated admonitions that the jury must
follow the instructions—not the attorneys’ arguments,
defense counsel’s arguments on reasonable doubt, and the
overwhelming evidence of defendant’s guilt. Instead, the
majority’s conclusions are based on an inaccurate and
incomplete statement of the record.
Nothing in the record suggests that the jurors ignored the
district court’s repeated admonitions to follow its
instructions on reasonable doubt, and in the absence of
UNITED STATES V. VELAZQUEZ 43
evidence to the contrary, we must presume that they
followed the court’s instructions. And nothing in the record
suggests that the prosecutor’s statements affected the
verdict. Therefore, I cannot conclude that the trial was so
unfair that Velazquez’s due process rights were violated. I
respectfully dissent.