United States v. Maria Valdez-Araiza ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10022
Plaintiff-Appellee, D.C. No.
4:16-cr-01057-JGZ-LCK-1
v.
MARIA MARGARITA VALDEZ- MEMORANDUM*
ARAIZA, AKA Maria Margarita Valdez,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted June 14, 2019
San Francisco, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District
Judge.
Maria Margarita Valdez-Araiza appeals her conviction for knowingly
making a false statement in a passport application, in violation of 18 U.S.C.
§ 1542. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Valdez applied for a U.S. passport under the name “Maria Margarita
Valdez,” with a date of birth in 1956 and a place of birth in Nogales, Arizona. In
signing the application, Valdez “declare[d] under penalty of perjury” that she was
“a citizen or non-citizen national of the United States.” At the time she applied for
the passport, Valdez possessed a Mexican birth record, which stated that she was
born in 1957 in Mexico. This document was not included with her passport
application. After obtaining a U.S. passport, Valdez applied for a delayed birth
certificate from the State of Arizona, which denied the application after becoming
aware of Valdez’s Mexican birth record. The government subsequently revoked
Valdez’s passport, due to its discovery of the birth record.
After a grand jury indicted Valdez for violating § 1542, a first trial ended in
a hung jury and mistrial, and Valdez retained new counsel before retrial.
Following a four-day trial, the jury entered a guilty verdict.
1. As an initial matter, the parties dispute the proper standard of review for
Valdez’s expert testimony challenges. Federal Rule of Evidence 103 requires that
“if the opposing party violates the terms of [an] initial ruling, objection must be
made when the evidence is offered to preserve the claim of error for appeal.” Fed.
R. Evid. 103 advisory committee’s note to 2000 amendment. Because Valdez
failed to object during her second trial when the government introduced evidence
in violation of the district court’s in limine ruling from the first trial, her objections
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were not preserved, and so we will review them for plain error.
2. The district court erroneously admitted certain evidence in Valdez’s second
trial. Anthony Jackson, an adjudications officer with U.S. Citizenship and
Immigration Services, testified that if he were presented with a hypothetical
individual with circumstances identical to Valdez’s, “[i]t would tell me that they
weren’t a U.S. citizen and that they were an alien.” Given that the jury was tasked
with determining whether Valdez was a U.S. citizen, Jackson was not permitted to
opine on this ultimate legal issue. See United States v. Morales, 108 F.3d 1031,
1038 (9th Cir. 1997) (en banc) (noting that an expert may not “draw the ultimate
inference or conclusion for the jury and the ultimate inference or conclusion [may]
not necessarily follow from the testimony”). That the question was couched as a
hypothetical does not change our conclusion. See United States v. Dela Cruz, 358
F.3d 623, 626 (9th Cir. 2004).
Similarly, Debbie Merced, a fraud prevention manager with the State
Department’s Western Passport Center, impermissibly offered opinion testimony
given that she was a fact witness and not noticed as an expert, see United States v.
Lloyd, 807 F.3d 1128, 1153–54 (9th Cir. 2015), and Robin Rodriguez, the
operations office chief and fraud manager of the Arizona Department of Health
Services, offered testimony regarding Valdez’s use of the passport that was
potentially prejudicial and of limited probative value, see Fed. R. Evid. 403;
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United States v. Wells, 879 F.3d 900, 928–29 (9th Cir. 2018).
We conclude, however, that these errors did not “affect[] the outcome of the
district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). The
jury was instructed that it was free to accept or reject the experts’ opinion
testimonies, it heard other testimony that nonimmigrant visas of the sort Jackson
described are reserved for non-U.S. citizens, and Valdez’s Mexican birth record
was admitted as evidence, thus creating a reasonable foundation from which to
conclude that she was born in Mexico and not in the United States. Significantly,
Valdez herself chose to testify in her defense, offering evasive and confusing
responses to questions and, when asked by a juror if her father lied to procure her
Mexican birth record given her insistence that she was born in the United States,
replying, “No. He had no reason to lie.” See United States v. Kenny, 645 F.2d
1323, 1346 (9th Cir. 1981) (“When the defendant elects to testify, he runs the risk
that if disbelieved, the trier of fact may conclude that the opposite of his testimony
is the truth.”). Given the evidence presented at trial, Valdez’s own testimony in
particular, we conclude that improper admission of these testimonies did not
change the outcome of the trial.
3. The district court’s jury instructions did not improperly relieve the
government of its burden of proving that Valdez was not a U.S. citizen. Analyzing
the instructions as a whole, and considering the clarification provided by counsel in
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their closing arguments, we conclude that the jury was sufficiently informed of the
proper burden and the availability of Valdez’s defense. See United States v.
Joetzki, 952 F.2d 1090, 1095 (9th Cir. 1991).
4. The district court did not abuse its discretion when it denied Valdez’s
motion for a mistrial. Although two of the government’s witnesses made passing
references to an “encounter” with an immigration agent and “immigration
apprehensions,” the district court reasonably determined, given that “[t]he
prejudicial value of the testimony was low” and “the reference was fleeting and the
context vague,” that the testimony did not “preclude[] the jury from impartially
reaching a verdict.” Additionally, although language in the district court’s order
indicates that the court might have articulated the wrong legal standard for
Valdez’s motion under Federal Rule of Criminal Procedure 29(c), any error was
harmless given that the court properly “weigh[ed] the evidence and in so doing
evaluate[d] for itself the credibility of the witnesses.” United States v. A. Lanoy
Alston, D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir. 1992) (quoting United States
v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).
5. We decline to address Valdez’s ineffective assistance of counsel arguments
on direct appeal. We lack a sufficiently developed record, and while Valdez has
clearly demonstrated her disagreement with defense counsel, and noted that
counsel in her first trial made different decisions, she has not pointed to any
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“extraordinary circumstances” justifying review on direct appeal. United States v.
Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004).
6. Finally, although we have identified multiple errors in Valdez’s second trial,
we conclude, after “analyzing the overall effect of the errors in the context of the
evidence introduced at trial against the defendant,” United States v. Frederick, 78
F.3d 1370, 1381 (9th Cir. 1996), that the cumulative effect of these errors did not
deprive Valdez of a fair trial.
AFFIRMED.
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