United States v. Angel Rios-Edeza ( 2023 )


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  •                             NOT FOR PUBLICATION                          FILED
    UNITED STATES COURT OF APPEALS                       APR 28 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,
    No.    20-50292
    Plaintiff-Appellee,
    D.C. No. 3:19-cr-01997-WQH-1
    v.                                             MEMORANDUM*
    ANGEL RIOS-EDEZA,
    Defendant-Appellant.
    Appeal from the United States District Court
    For the Southern District of California
    William Q. Hayes, District Court Judge, Presiding
    Submitted April 21, 2023**
    Pasadena, California
    Before: WARDLAW and KOH, Circuit Judges, and McMAHON, *** District
    Judge.
    Angel Rios-Edeza (“Rios”) was convicted of knowing importation of heroin
    in violation of 
    21 U.S.C. § 952
     and § 960. Alleging various errors at trial, he
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Colleen McMahon, United States District Judge for the
    Southern District of New York, sitting by designation.
    timely appealed. We have jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.1
    1. The district court did not plainly err in allowing the prosecution to
    introduce evidence of the retail price of heroin. The parties agree that there was no
    objection to the admission of the retail price of heroin below, so we can reverse
    only if “there is (1) error that is (2) plain, (3) affects substantial rights, and (4),
    ‘seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.’” United States v. Rizk, 
    660 F.3d 1125
    , 1132 (9th Cir. 2011) (quoting
    United States v. Cruz, 
    554 F.3d 840
    , 845 (9th Cir. 2009)).
    Even assuming the district court erred, the error was not plain. “An error is
    plain if it is clear or obvious under current law. An error cannot be plain where
    there is no controlling authority on point and where the most closely analogous
    precedent leads to conflicting results.” United States v. Gonzalez Becerra, 
    784 F.3d 514
    , 518 (9th Cir. 2015) (quoting United States v. De La Fuente, 
    353 F.3d 766
    , 769 (9th Cir. 2003)). Rios admits that “[t]here is no case on all fours” with
    this one. Moreover, Rios’s proposed holding conflicts with precedent that
    indicates that the price of illicit drug, including the retail price, is generally
    admissible. See, e.g., United States v. Sanchez-Lopez, 
    879 F.2d 541
    , 555 (9th Cir.
    1989) (collecting cases showing that “the price, quantity and quality of the . . .
    1
    The parties are familiar with the facts of this case, so we include them only
    as necessary to resolve the appeal.
    2
    heroin was highly relevant” to the drug charges); United States v. Ogbuehi, 
    18 F.3d 807
    , 812 (9th Cir. 1994) (holding that the use of retail, rather than wholesale, value
    in closing argument of drug courier case was not plain error). Therefore, we
    cannot find plain error.
    2. Further, reviewing the prosecutor’s conduct under plain error review, we
    hold that he did not engage in improper vouching in closing argument or rebuttal.
    “As a general rule, a prosecutor may not express his opinion of the defendant’s
    guilt . . . .” United States v. Williams, 
    989 F.2d 1061
    , 1071 (9th Cir. 1993). Under
    that rule, it is well-established that “[a] prosecutor ‘has no business telling the jury
    his individual impression of the evidence.’” United States v. Ruiz, 
    710 F.3d 1077
    ,
    1085 (9th Cir. 2013) (quoting United States v. Kerr, 
    981 F.2d 1050
    , 1053 (9th Cir.
    1992)). Rios alleges the prosecutor vouched when, at the start of closing
    argument, he said: “Ladies and gentleman, at the start of this trial I told you that
    that this would not be a difficult case, and it is not.” But this statement was
    followed by a detailed list of evidence to substantiate the prosecutor’s claim. See
    United States v. Young, 
    470 U.S. 1
    , 18–19 (1985) (evaluating improper vouching
    in the context of statements referencing specific evidence in the record). Thus,
    read in context, it is clear the prosecutor was not improperly evaluating the case
    based on undisclosed evidence or his own authority, but, instead, “ask[ing] the jury
    to exercise its own judgment and determine the plausibility of the defense’s
    3
    explanation [for the crime] in light of the” relevant evidence. United States v.
    Doss, 
    630 F.3d 1181
    , 1195 (9th Cir. 2011).
    Rios also argues that the prosecutor improperly vouched in rebuttal, in a
    section where the prosecutor used the phrase “lightning striking twice” to describe
    the sequence of coincidences necessary to accept Rios’s explanation for his
    conduct. These comments were responses to the defense’s argument throughout
    closing argument that there were other plausible explanations for the events in this
    case. See Doss, 
    630 F.3d at
    1194–95 (finding no misconduct when the
    government’s rebuttal comments served to respond “to the defense’s allegations
    that the government had ‘cooked’ the case in order to win”). Because “[t]he
    prosecutor’s comments were directed to ‘the strength of the defense on the
    merits,’” not the prosecutor’s own knowledge or position, the prosecutor did not
    engage in vouching under the plain error standard. Ruiz, 
    710 F.3d at 1086
     (quoting
    United States v. Nobari, 
    574 F.3d 1065
    , 1079 (9th Cir. 2009)).
    3. Moreover, the prosecutor did not tell the jury not to deliberate and thus
    did not commit misconduct under either de novo review or an abuse of discretion
    standard. Rios argues that his Sixth Amendment rights were undercut when,
    during rebuttal argument, the prosecutor said:
    If you are thinking to yourself — if you are back there trying to find some
    way that this all can make sense, all this evidence tied together could
    somehow make sense, I submit to you that your job is done, because we
    4
    don’t need to prove this beyond a fanciful doubt or Hollywood fictional
    doubt. It needs to be reasonable doubt.
    Read in context, it is clear that the prosecutor was merely highlighting the well-
    recognized distinction between reasonable and unreasonable doubt. See, e.g.,
    Victor v. Nebraska, 
    511 U.S. 1
    , 17 (1994) (“A fanciful doubt is not a reasonable
    doubt.”). That does not constitute misconduct.
    4. Finally, the prosecutor did not shift the burden of proof, and thus we find
    no plain error. At the start of rebuttal, the prosecutor asked a series of rhetorical
    questions that used the phrase: “How do you explain . . . ?” Soon after, the court
    called the parties to a sidebar and emphasized to the prosecutor that the defendant
    had “no burden . . . to explain anything.” Back before the jury, the prosecutor
    stated:
    Ladies and gentlemen, let me be clear, the defendant does not have any
    obligation to put on any proof. He has no obligation to explain everything.
    The burden of proof is on the government. It has been on the government
    since the start of this trial. He’s an innocent man until we prove beyond a
    reasonable doubt his guilt.
    Even assuming the prosecutor’s statements were ambiguous when viewed in
    isolation, he was clear throughout his closing and rebuttal arguments that the
    government needed to prove guilt beyond a reasonable doubt. Thus, read in
    context, his statements do not constitute misconduct. See United States v. Flores,
    
    802 F.3d 1028
    , 1041 (9th Cir. 2015) (finding no misconduct when the government
    5
    repeatedly stated the correct burden); United States v. Tucker, 
    641 F.3d 1110
    , 1122
    (9th Cir. 2011) (same).
    5. Having found no trial errors, we need not “consider the cumulative effect
    of non-errors.” Staten v. Davis, 
    962 F.3d 487
    , 499 (9th Cir. 2020).
    AFFIRMED.
    6