United States v. Lili Tydingco ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10210
Plaintiff-Appellee, D.C. No. 1:15-cr-00018-1
v.
MEMORANDUM*
LILI ZHANG TYDINGCO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted January 21, 2022
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Following a jury trial, Lili Tydingco was convicted on one count of alien
harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). After we reversed her
conviction because of instructional error, United States v. Tydingco, 909 F.3d 297(9th Cir. 2018), Tydingco was retried and again convicted; she again appeals. We
have jurisdiction under 28 U.S.C. § 1291, see 48 U.S.C. § 1824(b), and we reverse
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and remand.
1. The district court did not err in instructing the jury. As Tydingco
concedes, the instructions complied with the statement of law in our prior decision
in Tydingco, 909 F.3d at 302–04.
2. Sufficient evidence supports Tydingco’s conviction. At the second
trial, the government presented the same evidence that we previously found
sufficient. See Tydingco, 909 F.3d at 301–02 & n.1.
3. We review the district court’s admission of evidence for an abuse of
discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en
banc). For evidentiary errors, reversal is required “unless there is a ‘fair assurance’
of harmlessness or, stated otherwise, unless it is more probable than not that the
error did not materially affect the verdict.” United States v. Bailey, 696 F.3d 794,
803 (9th Cir. 2012) (quoting United States v. Morales, 108 F.3d 1031, 1040 (9th
Cir. 1997) (en banc)). “[I]n cases of ‘equipoise,’ we reverse.” United States v.
Liera, 585 F.3d 1237, 1244 (9th Cir. 2009) (quoting United States v.
Seschillie, 310 F.3d 1208, 1215 (9th Cir. 2002)).
The district court abused its discretion in admitting Rebecca Castro’s sham-
marriage and witness-tampering testimony. Federal Rule of Evidence 404(b)
prohibits the admission of otherwise relevant evidence of prior acts unless the
evidence is used for a non-propensity purpose “such as proving . . . knowledge.”
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Fed. R. Evid. 404(b)(2). When Rule 404(b) evidence is offered to prove
knowledge, the prior act must be sufficiently similar to the charged act as “to make
the existence of the defendant’s knowledge more probable than it would be without
the evidence.” United States v. Rodriguez, 880 F.3d 1151, 1167 (9th Cir. 2018)
(quoting United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014)).
The government reasons that the prior act and the charged offense both
involved Tydingco’s “agreeing to help Chinese citizens circumvent U.S.
immigration laws for her own financial benefit.” That rationale is devoid of record
support: There was no evidence that Tydingco received, or expected to receive,
any financial benefit for her role in the sham-marriage proposal. Further, Castro’s
testimony does not tend to make it more probable that Tydingco knew that X.N.,
the alien she was charged with harboring, was in the United States illegally. The
evidence may have demonstrated that Tydingco knew that marriage is one pathway
to citizenship, but that knowledge has no logical connection to whether she knew
that X.N., a minor student, was not authorized to remain in the United States.
The district court also abused its discretion in admitting Castro’s testimony
that Tydingco encouraged her to leave the jurisdiction so that she would be unable
to testify. The relevance of this testimony came from the fact that it suggested
consciousness of guilt. But that theory of relevance depends on the underlying
sham-marriage testimony, which, as we have explained, should not have been
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admitted.
The admission of Castro’s testimony was not harmless. As we observed
when we reversed Tydingco’s conviction after her first trial, “substantial evidence
emerged from which a reasonable jury could infer that [Tydingco]—despite
knowing of facts from which a reasonable person would infer the risk of X.N.’s
presence being unlawful—did not actually draw that inference herself.” 909 F.3d
at 305. Tydingco’s defense theory was plausible, and Castro’s inadmissible
propensity testimony directly undermined that defense.
The limiting instructions did not cure the error. The court told the jury that it
could give Castro’s testimony “such weight as [the jury] fe[lt] it deserve[d]” for the
purpose of proving Tydingco’s knowledge and consciousness of guilt. But because
the testimony was not relevant to those issues, the jury should not have been able
to give it any weight. By telling the jury that it could consider the evidence—which
was relevant only for its forbidden propensity inference—the court wrongly invited
the jury to rely on prejudicial evidence that it should not have heard in the first
place. See United States v. Santini, 656 F.3d 1075, 1079 (9th Cir. 2011) (per
curiam). Because the limiting instructions were ineffective, and the evidence went
to the heart of Tydingco’s defense, the government has not established that “it is
more probable than not that the error did not materially affect the verdict.” Bailey,
696 F.3d at 803 (quoting Morales, 108 F.3d at 1040).
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4. The district court did not prejudicially err in admitting the testimony
of Customs and Border Patrol Officer Ronald Muna. At trial, Officer Muna
discussed translations of statements made in Chinese by Tydingco at her border
interview that an interpreter had orally translated for her. Tydingco argues that
these statements are inadmissible testimonial hearsay. But translated statements are
admissible under the Federal Rules of Evidence and the Confrontation Clause if
they “fairly should be considered the statements of the speaker.” United States v.
Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) (quoting United States v.
Nazemian, 948 F.2d 522, 527 (9th Cir. 1991)). In assessing such statements, the
court “must consider all relevant factors.” Id. The dispositive factor here is
Tydingco’s English fluency. Tydingco understands English, was present when the
interpreter relayed her statements to Officer Muna, and never corrected the
translation or expressed any confusion about it. Therefore, the translated
statements may fairly be considered Tydingco’s own statements for the purposes of
hearsay analysis and the Confrontation Clause. See Fed. R. Evid. 801(d)(2)(B).
The government also elicited testimony from Officer Muna about the
relevant parole program. Tydingco argues that this was improper expert testimony
from a lay witness. We conclude that any error in permitting Officer Muna to
testify about the parole program was harmless. The testimony was brief and was
not referred to in closing argument. It was also irrelevant to the jury’s
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determination because Tydingco never argued that she had applied for or received
an extension of X.N.’s parole.
REVERSED and REMANDED.
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