United States v. Citlalli Flores ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50027
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-03054-MMA-1
CITLALLI FLORES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
December 8, 2014—Pasadena, California
Filed September 23, 2015
Before: Harry Pregerson, Kim McLane Wardlaw,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Wardlaw
Dissent by Judge Pregerson
2 UNITED STATES V. FLORES
SUMMARY*
Criminal Law
Affirming a conviction and sentence for importation of
marijuana, the panel found merit in the defendant’s claims of
prosecutorial misconduct, but held that the misconduct does
not rise to the level of plain error.
The panel held that the government misstated the law by
telling the jury it could convict the defendant based on her
admission to carrying marijuana to Mexico on the date of
her arrest, and misstated the defendant’s testimony thereby
making an unsupported factual claim, but that the
misstatements did not substantially prejudice her. The panel
held that the government’s improper vouching for a witness
did not substantially prejudice the defendant. The panel
rejected the defendant’s contentions that the government
improperly shifted and undermined the burden of proof. The
panel rejected the defendant’s arguments that the prosecutor’s
statements about the defendant were improper. Reviewing
for plain error, the panel concluded that the prosecution’s
improper statements, whether viewed individually or
cumulatively, do not warrant reversal.
The panel rejected the defendant’s arguments that the
district court erred in denying her motion to suppress
evidence obtained from her Facebook account and that the
district court abused its discretion by admitting evidence of
her personal drug use at trial.
*
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. FLORES 3
The panel held that the district court did not err in
applying an obstruction of justice enhancement pursuant to
U.S.S.G. § 3C1.1 based on the defendant’s efforts to have
content from her Facebook account deleted.
Dissenting, Judge Pregerson wrote that the Assistant U.S.
Attorney’s serious violations of the rules of permissible
questioning and argument do not warrant invocation of the
plain error rule.
COUNSEL
Morgan D. Stewart (argued), Federal Defenders of San
Diego, Inc., San Diego, California, for Defendant-Appellant.
Michelle L. Wasserman (argued), Laura E. Duffy, and Bruce
R. Castetter, Office of the United States Attorney, San Diego,
California, for Plaintiff-Appellee.
OPINION
WARDLAW, Circuit Judge:
Citlalli Flores appeals her conviction and sentence for
importation of marijuana in violation of 21 U.S.C. §§ 952 and
960. Although we find merit in her claims of prosecutorial
misconduct, the misconduct does not rise to the level of plain
error. Flores’s remaining claims of error lack merit.
Accordingly, we affirm her conviction and sentence.
4 UNITED STATES V. FLORES
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of June 21, 2012, Flores was stopped by
Customs and Border Protection (“CBP”) Officer Benjamin
Brown as she entered the United States following a day trip
to Tijuana, Mexico. When Flores handed Brown her driver’s
license, her hands were shaking, and she looked back towards
the rear passenger-side of her car several times. Brown
became suspicious, inspected that area of the car, and found
several packages of what turned out to be marijuana. CBP
officers then searched the rest of Flores’s car, where they
discovered 16.44 kilograms (36.24 pounds) of marijuana.
Flores was indicted on one count of importation of
marijuana in violation of 21 U.S.C. §§ 952 and 960.1 Flores’s
first trial resulted in a hung jury. Upon retrial, a jury
rendered a guilty verdict. The district judge imposed a two-
level enhancement for obstruction of justice, but then
substantially reduced her sentence in light of U.S.S.G.
§ 5K2.0 and the 18 U.S.C. § 3553(a) factors, ultimately
imposing a term of incarceration of 12 months and one day in
prison.2
Flores’s defense rested on her lack of knowledge that her
car was loaded with marijuana as she entered the United
States. She testified that while she was in Tijuana on June 21,
1
Section 952(a) provides: “It shall be unlawful . . . to import into the
United States from any place outside thereof . . . any controlled substance
in schedule I or II,” including marijuana.
2
The district court explained that by adding the extra day to Flores’s
sentence, she would be eligible for a reduction in the custodial portion of
her sentence.
UNITED STATES V. FLORES 5
2012, she gave her car to a mechanic named Juan so that he
could repair her air conditioning more cheaply than she could
have it done in the United States. She suggested that Juan
had hidden the marijuana in the quarter panels of her car
while it was in the mechanic shop. Competing automotive
experts testified about whether (1) Flores’s air conditioning
was in fact working on June 21; (2) Flores could have felt the
weight and noise-dampening effect of the marijuana while
she drove; and (3) car repairs were cheaper in Mexico.
The government noted Flores’s failure to provide
corroborating evidence that the repair work was done or that
Juan even existed, and offered evidence of her behavior at the
border and following her arrest as proof that she knew drugs
were hidden in her car. The government also introduced two
jail-recorded phone calls Flores made after her arrest. The
first evidenced concern that her actions had hurt her family
and the other was a request that her cousin delete “whatever
[he] fe[lt] need[ed] to be taken off” of Flores’s Facebook
page. The latter call prompted the government to search her
Facebook account for incriminating evidence. This search, in
turn, led to two Facebook messages Flores had sent on June
21 referencing her “carrying” or “bringing” marijuana, which
were introduced over Flores’s objections and following the
denial of her suppression motion.
Flores testified that the postings indicated only that she
carried marijuana on June 21 from the United States into
Mexico, not that she was about to smuggle marijuana from
Mexico into the United States. In this appeal, she argues that
the government committed misconduct by distorting her
testimony in closing. For example, the prosecutor asked her,
“so it’s undisputed that on the day of your arrest, you
definitely brought drugs between the United States and
6 UNITED STATES V. FLORES
Mexico” and “across the international border?”3 The
prosecutor also asked Flores if it was “illegal” to bring
marijuana into Mexico—a misleading question given that
Flores was on trial for importation, not exportation.4 And,
after emphasizing that Flores admitted to “smuggling drugs,”
the prosecutor argued during closing that Flores lied when
she testified that the messages referred to exportation—not
importation—of marijuana. Further, after acknowledging that
Flores claimed she brought drugs to Mexico only, the
prosecutor asserted, “[t]hat’s still smuggling drugs”—a
supposed crime that was not charged. In her final line to the
jury, the prosecutor emphasized: “She knows she was
smuggling drugs on June 21st, 2012. You heard her say that
repeatedly and that’s why she’s guilty beyond a reasonable
doubt.”
In addition to claiming that the government engaged in
prosecutorial misconduct, Flores argues on appeal that (1) the
district court erred in denying her motion to suppress; (2) the
district court abused its discretion by admitting Facebook
messages and other unduly prejudicial evidence referencing
Flores’s marijuana use; and (3) the district court procedurally
3
The prosecutor also asked Flores how often she brings “pot between
the United States and Mexico,” without specifying a direction of travel.
At other points, the prosecutor accurately characterized Flores’s
testimony. For example, the prosecutor asked: “So your testimony is you
brought drugs from the United States to Mexico but not from Mexico into
the United States?”; “Do you have an estimate of when you brought drugs
from the United States into Mexico?”; and “You had driven drugs once
again from the United States to Mexico.”
4
Technically, the answer to the government’s question is, “Yes,” as
21 U.S.C. § 953 criminalizes the exportation of a controlled substance.
But Flores was indicted only for knowingly and intentionally importing
marijuana, in violation of §§ 952 and 960.
UNITED STATES V. FLORES 7
erred in applying an obstruction of justice enhancement at
sentencing. We address Flores’s arguments in turn.
II. PROSECUTORIAL MISCONDUCT
We review de novo whether any prosecutorial misconduct
occurred. See United States v. Weatherspoon, 410 F.3d 1142,
1145–46 (9th Cir. 2005); United States v. Ross, 123 F.3d
1181, 1187 (9th Cir. 1997). We then consider the effect of
any misconduct to determine whether reversal is warranted.
See Weatherspoon, 410 F.3d at 1150–51. Where Flores
objected at trial, we review for harmless error; where she did
not, we review under the more deferential plain error
standard. See United States v. Ruiz, 710 F.3d 1077, 1082 (9th
Cir. 2013).
A. Misstating the Law and Facts
Flores contends that the government committed
misconduct by erroneously telling the jury that it could
convict her based on her admission to carrying marijuana to
Mexico on the date of her arrest. We agree that the
government misstated the law to the jury. See United States
v. Berry, 627 F.2d 193, 200 (9th Cir. 1980) (“A prosecutor
should not misstate the law in closing argument.”). The
government also misstated Flores’s testimony, thereby
making an unsupported factual claim. See United States v.
Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993); see also United
States v. Mageno, 762 F.3d 933, 943 (9th Cir. 2014), vacated
on other grounds, 786 F.3d 768 (9th Cir. 2015). Flores did
not object to this misconduct below, however, so we review
for plain error. We conclude that the misstatements did not
substantially prejudice her, and so do not warrant reversal.
See Ruiz, 710 F.3d at 1082.
8 UNITED STATES V. FLORES
1. The Prosecution’s Impermissible Statements
The government crossed the line between permissible
commentary on Flores’s testimony about her Facebook
messages and that which we have long deemed
impermissible. In a message dated June 21, 2012, Flores’s
friend asked if she “carried some pot,” to which Flores
responded, “yes.”5 In a second pair of June 21 messages,
Flores says to a different friend, “come over and have a
smoke” “of what I’m bringing.”6 Flores testified that these
messages meant that she was bringing marijuana to Mexico
and argued that they did not prove that she imported
marijuana as charged. The government characterized these
messages differently:
You heard about some posts on [Flores’s]
Facebook account from June 21st 2012 when
she said she was carrying marijuana and
bringing marijuana. You know what she was
carrying on June 21st 2012. She was carrying
and bringing marijuana from Mexico into the
United States in her car. She tried to convince
you. She tried to explain this away. She said,
No. No. What I was doing was bringing
marijuana from the United States of America
into Mexico.
5
The Facebook postings are in Spanish, which the government
translated for the jury. Flores translates the conversation differently,
asserting that the question was, “Did you take weed.”
6
Flores also translates this conversation differently, asserting that the
invitation was to “come so you can smoke out of what I have.”
UNITED STATES V. FLORES 9
This argument reflects the government’s apparent strategy for
using the Facebook messages to convince the jury that Flores
(1) admitted to carrying drugs across the U.S.-Mexico border,
and (2) was lying about the direction she carried the drugs.
Both parts of this strategy are permissible. Prosecutors
are free in argument to suggest that the jury draw reasonable
inferences from the evidence presented at trial. United States
v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997); see also
Mageno, 762 F.3d at 943; United States v. Molina, 934 F.2d
1440, 1445 (9th Cir. 1991) (holding that prosecutors may
argue that a defendant is lying). Here, there was more than
enough evidence to support a reasonable inference that the
Facebook messages actually meant that Flores was carrying
drugs into the United States, rather than to Mexico as she
testified. She was, in fact, carrying more than 36 pounds of
marijuana in her car as she entered the United States on the
very day she sent those messages. She then attempted to
delete postings on her Facebook account from jail after the
border patrol discovered the marijuana in her car.
Of course, the jury was free to believe Flores’s
explanation that the messages actually referenced exportation
rather than importation, but the evidence adequately
supported the government’s characterization of them. Even
if we were to accept that those messages conveyed a desire to
smoke marijuana in Mexico, nothing in them rules out the
possibility that Flores was offering her friends an opportunity
to smoke some of the more than 36 pounds of marijuana she
picked up in Mexico before she carried it back to the United
States. The latter possibility is all the more plausible because
when Flores was arrested, she was not carrying any marijuana
other than that found hidden in her car. This evidence
supports the permissible inference the government asked the
10 UNITED STATES V. FLORES
jury to draw—namely, that the Facebook messages
referenced the very marijuana found in Flores’s car.
This prosecutorial argument also accurately characterized
Flores’s insistence that she carried drugs to Mexico but not to
the United States. So long as the government accurately
recounted what Flores said—and in the statement quoted
above, it did—the government was free to ask the jury to
disbelieve Flores. Further, the argument accurately states the
law by explaining that Flores is guilty because, regardless of
her Facebook postings and what she testified about them,
Flores brought drugs into the United States.
However, the government also strayed beyond the
boundaries of permissible questioning and argument. The
prosecutor repeatedly asserted that Flores had admitted to
“drug smuggling.” As a legal but irrelevant matter, Flores did
admit to drug smuggling, see 21 U.S.C. § 960—just not the
kind of drug smuggling with which she was charged, which
the prosecutor had to know. Labeling Flores an “admitted
drug smuggler” when she actually admitted to exportation
required the government to walk a very fine line. It was
“definitely improper” for the prosecutor to suggest that Flores
admitted to “drug smuggling” when the prosecutor used the
term as a synonym for importation because that misstated
Flores’s testimony. See United States v. Kojayan, 8 F.3d at
1321; see also Mageno, 762 F.3d at 943. At the same time,
when loosely referencing “drug smuggling” to encompass
exportation, the government could, without misstating
testimony, assert that Flores admitted to drug smuggling.
However, it was improper to use the “admission to drug
smuggling” lingo in this loose manner when suggesting that
such an admission was sufficient to warrant a conviction for
the crime charged. Doing so misstates the law, because
UNITED STATES V. FLORES 11
Flores was not charged with exportation—the only form of
drug smuggling to which she actually admitted.
The prosecutor improperly used the phrase “drug
smuggling” as a synonym for importation frequently, from
her opening statement through her last closing line to the jury.
The government’s arguments that Flores admitted to drug
smuggling at trial were therefore misleading, if not outright
false. These misstatements became flat falsehoods with the
prosecutor’s coup de grace: “She knows she was smuggling
drugs on June 21st, 2012. You heard her say that repeatedly
and that’s why she’s guilty beyond a reasonable doubt.” The
jurors knew this was an importation case, so the only way
Flores’s admission to “drug smuggling” would be a basis for
finding her guilty beyond a reasonable doubt is if she had
admitted to importation. Because she never made such an
admission at trial, this statement falsely characterized
Flores’s testimony.
Moreover, to the extent that the prosecutor did not
misrepresent Flores’s testimony, she misstated the law.
Flores admitted at trial to exportation. She therefore could be
found guilty beyond a reasonable doubt based on this
admission only if exportation were adequate to support a
conviction. Because Flores was on trial for importation,
however, the argument that knowingly exporting marijuana
was sufficient to support a guilty verdict misstated the law.
The prosecutor also improperly invited the jury to convict
Flores based on exportation rather than importation during
cross-examination. After Flores admitted to carrying drugs
into Mexico, the prosecutor asked, “That was illegal, wasn’t
it?” Similarly, in closing, the prosecutor acknowledged that
Flores “claimed she had smuggled drugs from the United
12 UNITED STATES V. FLORES
States to Mexico,” then asserted, “[t]hat’s still smuggling
drugs.” These statements are not technically untrue, as
exportation is drug smuggling and is illegal. By specifically
emphasizing the illegality of exportation, however, the
government suggested that even if the jury believed that
Flores only exported drugs, she “still” acted illegally. In
doing so, the prosecutor overstepped by inviting the jury to
improperly convict Flores based on exportation.
The prosecutor made this worse by purposefully blurring
and minimizing the distinction between importation and
exportation. During cross-examination, the prosecutor asked
whether Flores carried drugs “between” the United States and
Mexico and “across” the border, without specifying a
direction. In closing, the prosecutor then characterized a
dispute over which direction the drugs traveled as a mere
“quibble[],” minimizing the significance of that disputed fact.
These statements, while again not untrue as an abstract legal
matter, furthered the misimpression that the jury could
convict Flores based on exportation.
The government should have been much more cautious in
brandishing the potentially misleading label of “admitted
drug smuggler.” Had the government carefully and
accurately used the term, it may have been able to avoid
misstating the law or the facts. But the government was
unable to do so, and in any event should not have tried to
“push the envelope” in this manner. Ruiz, 710 F.3d at 1087
(Pregerson, J., concurring). As the Supreme Court has said,
“[t]he United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
. . . interest . . . in a criminal prosecution is not that it shall
win a case, but that justice shall be done.” Berger v. United
States, 295 U.S. 78, 88 (1935).
UNITED STATES V. FLORES 13
2. Plain Error
Flores failed to object to any of these improper
statements, and must therefore show that the government’s
actions amounted to plain error. See Ruiz, 710 F.3d at 1082.
Although there was error, and it was plain, Flores fails to
demonstrate the prosecutor’s improper statements affected
her substantial rights or the fairness, integrity, or public
reputation of the proceedings. See Puckett v. United States,
556 U.S. 129, 135 (2009); see also United States v. Olano,
507 U.S. 725, 734 (1993). In the context of the entire trial,
the prosecution’s misconduct was not likely to have affected
the jury’s ability to weigh the evidence fairly. See United
States v. Sanchez, 659 F.3d 1252, 1257 (9th Cir. 2011).
Despite the prosecutor’s best efforts, it was unlikely that
the jury was actually confused about Flores’s testimony or the
elements of the charge of importation. On multiple
occasions, during both cross-examination and closing
arguments, the government did accurately, directly, and
explicitly re-state Flores’s testimony.7 The defense also
accurately reiterated Flores’s testimony in closing.8 The
chorus of accurate characterizations of Flores’s testimony
7
For example, during cross-examination, the prosecutor asked: “So your
testimony is you brought drugs from the United States to Mexico but not
from Mexico into the United States?” In closing, the prosecutor noted that
Flores “quibbled with the direction” in which the government argued the
drugs traveled. Similarly, the prosecutor reminded the jury that Flores
said, she “was bringing marijuana from the United States of America into
Mexico,” and “claimed she had smuggled drugs from the United States to
Mexico.”
8
Defense counsel conceded that Flores “would sometimes bring
marijuana to Mexico to smoke with her cousin.”
14 UNITED STATES V. FLORES
likely drowned out the government’s infrequent, indirect, and
implicit misstatements of that testimony. Moreover, Flores’s
testimony was simple, unambiguous, and unmistakable.9 Jury
confusion was therefore unlikely.
It is also unlikely that the prosecution’s misstatements of
the law confused the jury about the elements of the charged
offense. The prosecution did, on multiple occasions, clearly
and directly state that importation was required to support a
conviction. In closing, the prosecutor also correctly stated:
You don’t have to write this down, two
elements. Defendant knew she brought
marijuana from a place outside into a place
inside the United States and second, she knew
the substance she was bringing into the United
States was marijuana or some other prohibited
drug. Basically, the United States has to
prove to you or has proven to you beyond a
reasonable doubt that Ms. Flores [acted]
knowingly—she wasn’t dragged over the
border, nobody dragged her over the border.
She voluntarily drove her car from Mexico
into the United States.
9
The prosecutor asked Flores: “[O]n the day of your arrest, you were
bringing marijuana between the United States and Mexico?” Flores
responded: “Into Mexico.” The prosecutor then asked: “[Y]ou definitely
brought drugs between the United States and Mexico?” Flores again
responded: “Not between. Into Mexico.”
UNITED STATES V. FLORES 15
During closing, the prosecutor argued at least sixteen times
that Flores brought drugs into the United States.10 In other
words, the government built its entire argument around a
correct statement of a very simple law and repeatedly
informed the jury in which direction Flores had to carry drugs
to be found guilty. Accordingly, it is unlikely that a rational
jury would have concluded, based on a few misstatements of
the law, that it could convict Flores regardless of which
direction she carried drugs.
Further, the evidence against Flores was overwhelming.
See Berry, 627 F.2d at 201. Flores was found with more than
36 pounds of drugs in her car. The government explained
various ways in which Flores would have become aware that
her car was loaded with marijuana. Flores acted suspiciously
at the border, drawing Officer Brown’s attention to the drugs.
10
The prosecutor said: “she brought drugs in;” “[s]he was completely
surrounded by marijuana and coming into the United States;” “[s]he knew
she had smuggled drugs into the United States;” “[d]efendant knew she
brought marijuana from a place outside into a place inside the United
States;” “[w]e also have proven to you beyond a reasonable doubt she
knew there were drugs in her car [as she was entering the United States;]”
“[s]he was carrying and bringing marijuana from Mexico into the United
States in her car;” “[y]ou know the direction she was smuggling those
drugs. She was smuggling them from Mexico into the United States;”
“[s]he was nervous . . . because she was surrounded by marijuana she was
smuggling into the United States;” “[s]he did what anyone would do when
they are nervous because of smuggling drugs into the United States;”
“[s]he knew she was smuggling[] drugs into the United States;” “[she was]
arrested . . . after smuggling[] drugs into the United States;” “[she was]
hire[d] to bring the drugs into the United States;” “[s]he knew she
smuggled drugs into the United States;” “[s]he was ashamed . . . in that
jail call because she knew she smuggled drugs into the United States;”
“[she] smuggled drugs into the United States;” “[s]he is a drug smuggler
who had someone put [the drugs] in [her car] for her so she could bring
drugs into the United States.”
16 UNITED STATES V. FLORES
In a recorded phone call from jail played for the jury, Flores
expressed regret, not frustration or confusion, as one would
expect if Juan had planted the drugs in Flores’s car without
her knowledge.11 She further implicated herself by asking
Jose Manuel to destroy evidence from Facebook—evidence
that was apparently so incriminating that Flores asked
someone to delete it even though she knew her call was being
recorded.12
Flores’s story about Juan the mechanic—the only
innocent explanation for the drugs found in Flores’s car—was
entirely uncorroborated and highly suspect, as the
government pointed out to the jury. Flores mentioned her
visit to the dermatologist to Officer Brown at the border, and
presented a host of evidence at trial to corroborate that aspect
of her trip to Mexico.13 Yet she failed to mention her
interaction with Juan to Officer Brown at the border and
offered no evidence to prove that Juan did any repair work on
11
In this call, Flores said to her boyfriend: “If you keep fucking around,
that’s not proving anything to me. Do you want to be with me? Do you
want to change? I fucking stepped foot in here and I asked myself, what
the fuck? Why would I do this to my family? . . . I’m not going to fucking
set foot in here again.”
12
In this call, Flores asked Manuel, her cousin, to login to Flores’s
Facebook account, change the password, and “take off whatever you feel
needs to be taken off.” Flores also warned Manuel that the call was being
recorded.
13
Flores identified her dermatologist as Dr. Juan R. Martinez Najera,
produced a picture of his office, and introduced prescriptions written by
Dr. Martinez for Flores on June 21, 2012.
UNITED STATES V. FLORES 17
her car, or that he even existed.14 The government’s expert
also testified that the air conditioner in Flores’s car was not
working in June of 2012, obviously suggesting that it had not
been repaired by Juan in Tijuana.15 Further, Flores’s cousin
in Tijuana, whom Flores visited on the day of her arrest, was
supposedly friends with Juan and presumably could have
provided details about Juan to corroborate Flores’s testimony.
No such evidence was presented. Nor did Flores attempt to
explain why she had not taken even basic steps to locate Juan
or corroborate her story after having gone to such lengths to
confirm her trip to the dermatologist. All of these facts are
inconsistent with Flores’s story that Juan the mechanic
planted drugs in Flores’s car without her knowledge, and no
other innocent explanation was offered for how they got
there. Flores is correct that the evidence of her knowledge
was circumstantial, but that circumstantial evidence was
overwhelming.16
14
Flores did not provide a last name, phone number, address, or business
name for Juan the mechanic. Unlike the dermatologist, she did not call
Juan in advance to arrange for the repair work to be done on her car.
Flores testified that she paid Juan $40, but she did not have a receipt for
any repair work done by Juan in Tijuana. She did, however, have multiple
invoices from an auto body shop located in Garden Grove, California.
15
The government’s expert explained that the compressor in Flores’s
car—an essential component of an air conditioning system—was
inoperable when he inspected it. He further explained that if the
compressor had been functional when Flores’s car was impounded, it
would have remained functional through the date of the inspection, as
compressors do not “fail from just sitting” in an impound lot.
16
In evaluating the strength of the evidence against her, Flores notes that
the jury in her first trial could not reach a unanimous verdict. But a jury’s
inability to reach a verdict could be attributed to many factors other than
the closeness of the evidence. That is particularly so in cases, like this,
18 UNITED STATES V. FLORES
Further mitigating the risk of prejudice, jury instructions
correctly stating the law were read shortly after closing
arguments, and thus shortly after the government’s key
misstatements. As to the elements of the charge, the district
court correctly instructed:
In order for the defendant to be found guilty
. . . , the government must prove each of the
following elements beyond a reasonable
doubt:
First, the defendant knowingly brought
marijuana into the United States from a place
outside the United States; and
Second, the defendant knew the substance she
was bringing into the United States was
marijuana . . . .
This instruction mirrored the prosecution’s earlier correct
statement of the law and again made the importance of
importation abundantly clear. The instructions also reiterated
that “the defendant is charged in the indictment with unlawful
importation of a controlled substance.” If the jury was at all
misled by the prosecution’s statements, which is doubtful, the
where the defendant seems sympathetic and lacked the wherewithal to act
alone given the drug quantity and means of transport, and the charge
involves a substance that has been legalized in some states. Because we
can only speculate about why the jury hung at the first trial, we place little
weight on the first jury’s inability to reach a verdict. In evaluating the
strength of the evidence, we look first and foremost to the evidence itself,
rather than to the first jury’s reaction to that evidence. For the same
reason, we place little stock in the fact that the second jury returned a
guilty verdict shortly after deliberations began.
UNITED STATES V. FLORES 19
court’s instructions very likely put the jury back on course.
We presume the jury followed these instructions when
determining whether Flores was guilty as charged. See Weeks
v. Angelone, 528 U.S. 225, 234 (2000).
In sum, while the government misrepresented Flores’s
testimony and misstated the law on multiple occasions, in the
context of the trial as a whole, it is unlikely that the jury was
misled about the law or the facts. See Berry, 627 F.2d at 200.
The evidence against Flores was overwhelming, see id. at
201, and the jury was correctly instructed. Accordingly,
Flores cannot show that the government’s misconduct rose to
the level of plain error. See Sanchez, 659 F.3d at 1257.
B. Vouching
“Improper vouching consists of placing the prestige of the
government behind a witness through personal assurances of
the witness’s veracity, or suggesting that information not
presented to the jury supports the witness’s testimony.” Ruiz,
710 F.3d at 1085. The government concedes that it
improperly vouched for its automotive expert witness, Russ
Butler, when the prosecutor stated, “I submit I would hire
Russ Butler to work on my car rather than Forrest Folck
[Flores’s expert]. Russ is experienced.” See United States v.
Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992). But see Kojayan,
8 F.3d at 1321 (explaining that the phrase “I submit” signaled
a request for the jury to draw a reasonable inference). Flores
did not object to this misconduct at trial, so we review for
20 UNITED STATES V. FLORES
plain error.17 See Ruiz, 710 F.3d at 1082. To determine
whether vouching caused substantial prejudice, we consider:
the form of vouching; how much the vouching
implies that the prosecutor has extra-record
knowledge of or the capacity to monitor the
witness’s truthfulness; any inference that the
court is monitoring the witness’s veracity; the
degree of personal opinion asserted; the
timing of the vouching; the extent to which
the witness’s credibility was attacked; the
specificity and timing of a curative
instruction; the importance of the witness’s
testimony and the vouching to the case
overall.
Id. at 1085; see also United States v. Williams, 989 F.2d
1061, 1072 (9th Cir. 1993). Considering these factors, we
conclude that the government’s vouching did not
substantially prejudice Flores.
Unlike in cases where we have found vouching
prejudicial, the vouching here was not crucial to the
government’s case. See Kerr 981 F.2d at 1052–54 (citing
multiple instances of vouching and explaining that the
testimony of the vouched-for witnesses was crucial to the
government’s case). Even if the jury believed the defense
expert’s testimony that Flores’s air conditioner was working
on June 21, 2012, this would do little to bolster Flores’s story
about Juan the mechanic. That an air conditioner works on a
17
The government does not rely on Kojayan and concedes error. We
assume without deciding that the error was clear or obvious for purposes
of our plain error analysis.
UNITED STATES V. FLORES 21
particular day says nothing about who fixed it, where it was
fixed, or whether it was broken in the first place.
Moreover, the attack on Folck’s credibility was minimal
and involved a single improper statement. See United States
v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005) (holding that
a single improper statement did not materially affect the
verdict). Nor did the vouching imply extra-record knowledge
or the ability to monitor the witness’s truthfulness. See Ruiz,
710 F.3d at 1085. And the vouching did not function as a
government-backed assurance of Flores’s guilt. At worst, the
vouching simply reiterated the primary inference the
government asked the jury to draw all along—that Flores’s
story about Juan the mechanic was not credible. See
Williams, 989 F.2d at 1072 (“[V]ouching here functioned
mainly as rhetorical emphasis for the inferences the
prosecutor was urging the jury to draw rather than a
meaningful personal assurance that the defendants were
guilty.”).
Because of the “substantial evidence supporting the jury’s
verdict” and the minor role vouching played in the
prosecutor’s case, id., Flores fails to show that the vouching
caused “substantial prejudice,” Ruiz, 710 F.3d at 1084–85.
C. Shifting and Undermining the Burden of Proof
Flores next contends that the government improperly
(1) shifted the burden of proof by pointing out that she failed
to produce evidence to corroborate her story about Juan the
mechanic and (2) undermined the burden of proof by asking
the jury to evaluate the government’s “very reasonable” story
and Flores’s “preposterous” story “in the same way.” See
United States v. Evanston, 651 F.3d 1080, 1091–92 (9th Cir.
22 UNITED STATES V. FLORES
2011) (“It is beyond comment that the government bears the
burden of proving the defendant’s guilt beyond a reasonable
doubt at trial.”). These statements were not improper.
While Flores is correct that the government referred to its
theory as “very reasonable” and Flores’s defense as “crazy”
and “preposterous,” the government never argued that these
conclusions, or Flores’s failure to corroborate her story about
Juan, alone were sufficient to support a conviction. And the
government explicitly stated more than a half dozen times
that it bore the burden of proving Flores guilty beyond a
reasonable doubt. Highlighting the weakness of a defense,
characterizing it as incredible, and noting the defendant’s
failure to produce evidence is not improper, particularly
where the government correctly states the burden of proof.
See Ruiz, 710 F.3d at 1086–87 (referring to the defense as
“smoke and mirrors” is permissible); United States v. Tucker,
641 F.3d 1110, 1120–21 (9th Cir. 2011) (highlighting flaws
in the defense is permissible); United States v. Necoechea,
986 F.2d 1273, 1282 (9th Cir. 1993) (noting the defense’s
failure to present evidence in support of its theory is
permissible); Molina, 934 F.2d at 1445 (arguing that the
defendant is a liar is permissible).
D. The Government’s Statements about Flores
Because Flores testified, the prosecutor’s comments on
her demeanor were permissible.18 See Allen v. Woodford,
395 F.3d 979, 997 (9th Cir. 2005) (“The prosecutor’s
comments regarding [the defendant’s] courtroom demeanor
were permissible because [the defendant] chose to testify.”);
18
In closing, the prosecutor said to the jury: “You saw her sitting there
the entire trial. Her hands weren’t shaking while she was there.”
UNITED STATES V. FLORES 23
United States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir.
1987).
Flores also argues that the government impermissibly
called Flores a drug smuggler, a liar, and “not law abiding.”
However, when the prosecutor called Flores a drug smuggler
and a liar, she was not making impermissible propensity
arguments. Instead, she was arguing that when Flores
admitted to smuggling drugs on June 21, 2012, she admitted
to the instant offense and that she was lying when she
claimed she only took drugs to Mexico. Such statements are
permissible to the extent that they were not misstatements of
fact or law. See Molina, 934 F.2d at 1445 (holding that the
prosecution may call the defendant a liar if that is one of the
inferences supported by the evidence); Sayetsitty, 107 F.3d at
1409 (holding that the prosecution may ask the jury to draw
reasonable inferences); Necoechea, 986 F.2d at 1282 (noting
that the government may argue that a defendant charged with
drug dealing is a “dope dealer”).
And the prosecutor’s assertion that Flores was not law-
abiding was a permissible rebuttal to Flores’s closing
argument. Flores’s attorney attempted to explain why
Flores’s effort to delete her Facebook messages was not
necessarily a sign of guilt. Defense counsel told the jury a
childhood story in which he attempted to hide evidence
potentially suggesting that he cheated on a test even though
he had not actually cheated. The prosecutor’s argument that
Flores was not law-abiding was offered to distinguish the
defense attorney’s situation from Flores’s. Flores admitted
that she asked Manuel to delete content because she feared
there was a picture of her smoking marijuana. While the
evidence Flores’s attorney destroyed as a child was entirely
innocent (and might have exonerated him), the evidence
24 UNITED STATES V. FLORES
Flores asked her cousin to destroy was undoubtedly indicative
of criminal activity—the only question was which crime
Flores was trying to cover up, simple possession, exportation,
or importation. The government merely pointed out that,
unlike her attorney, Flores was trying to hide evidence of
wrongdoing. Placed in this context, the argument was proper
rebuttal.
E. Cumulative Error
Flores contends that, because the prosecution committed
multiple errors, we should not conduct “a balkanized, issue-
by-issue harmless error review.” United States v. Frederick,
78 F.3d 1370, 1381 (9th Cir. 1996). We agree that we must
consider the cumulative effect of the errors, if any. However,
Flores did not object to any of the prosecution’s conduct that
we find improper, so we review for plain error, not harmless
error as Flores suggests.
In the context of the trial as a whole, the jury was unlikely
to misunderstand Flores’s testimony or the law, and it is
unlikely that the jury’s deliberations were affected by the
prosecutor’s submission that she would hire Russ Butler
rather than Forrest Folck. Considering the errors together
does nothing to change these conclusions. Adding to Butler’s
credibility would not have increased the likelihood that the
jury misunderstood the law or Flores’s testimony, just as
misunderstanding the law or Flores’s testimony would not
have altered the jury’s assessment of the experts’ credibility.
The likelihood that the errors affected the jurors’
deliberations was simply too low to constitute plain error.
Further, because the evidence against Flores was
overwhelming, she was less likely prejudiced by the effect of
cumulative errors. See United States v. Wallace, 848 F.2d
UNITED STATES V. FLORES 25
1464, 1475–76 (9th Cir. 1988). Thus, whether viewed
individually or cumulatively, the prosecution’s improper
statements do not warrant reversal.
III. EVIDENTIARY CLAIMS
Flores argues that the district court erred in denying her
motion to suppress evidence obtained from her Facebook
account. She further argues that the district court abused its
discretion by admitting evidence of her personal drug use at
trial. We disagree.
A. Denial of Flores’s Motion to Suppress Facebook
Evidence
We review the denial of a motion to suppress de novo and
the district court’s findings of fact for clear error. United
States v. Camacho, 368 F.3d 1182, 1183 (9th Cir. 2004).
Flores contends that the district court erred because (1) the
warrant to search her Facebook account was not supported by
probable cause and was stale; (2) the warrant was overbroad;
and (3) the search exceeded the scope of the warrant. We
reject each argument in turn.
1. Probable Cause and Staleness
Probable cause is established if an affidavit presents a
“fair probability” that evidence of criminal activity will be
found in the place to be searched. Illinois v. Gates, 462 U.S.
213, 238 (1983). We “give[] ‘great deference’ to an issuing
judge’s finding that probable cause supports the warrant” and
review for clear error. United States v. Grant, 682 F.3d 827,
832 (9th Cir. 2012). We will not find a search warrant invalid
so long as the issuing judge had a substantial basis for
26 UNITED STATES V. FLORES
concluding that the supporting affidavit established probable
cause. United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.
2007).
Special Agent Enriquez’s affidavit supporting the warrant
established probable cause to search Flores’s Facebook
account, at least for some period of time, considering Flores
called Jose Manuel from jail and asked him to purge her
account. That request, along with Flores’s warning that the
call was being recorded and the close proximity of the call to
her arrest, supported more than a “fair probability” that
agents would find evidence of drug smuggling or a smuggling
conspiracy in Flores’s account. Id.Flores argues, however, that even if there was probable
cause on June 21, 2012, after she called Manuel, there was no
longer probable cause when the warrant issued more than
three months later, on October 2, 2012. See Grant, 682 F.3d
at 835 (explaining that an otherwise sufficient warrant
application may become stale absent “a continuing pattern or
other good reasons” suggesting that evidence remains in the
location to be searched); United States v. Gann, 732 F.2d 714,
722 (9th Cir. 1984). Contrary to Flores’s argument, there are
many reasons to believe that there remained a “fair
probability” of finding evidence of drug smuggling in her
account when the warrant issued.
The mere passage “of substantial amounts of time is not
controlling in a question of staleness.” United States v.
Dozier, 844 F.2d 701, 707 (9th Cir. 1988). That is
particularly true with electronic evidence. “Thanks to the
long memory of computers, any evidence of a crime was
almost certainly still on [the defendant’s] computer, even if he
had tried to delete the images.” United States v. Gourde, 440
UNITED STATES V. FLORES 27
F.3d 1065, 1071 (9th Cir. 2006) (en banc) (emphasis added).
Because any evidence that might have been in Flores’s
account on June 21, 2012 may not have been deleted and
likely could have been recovered even if it had been deleted,
there remained a fair probability that Flores’s account would
contain evidence of drug smuggling on October 2, 2012.
Flores counters by noting that the government sought to
file the warrant under seal precisely because anyone with
even basic computer skills could permanently delete
Facebook content. This argument disregards the fact that, on
August 27, 2012, Special Agent Enriquez submitted a
preservation request to Facebook for Flores’s account,19
which proved effective.20 Further, asserting that there is a
genuine risk that evidence might be permanently deleted in
the future, as Enriquez did in support of his request to seal the
warrant, is not the same as conceding that there is no longer
a fair probability that the evidence still exists (or is
recoverable). See Gourde, 440 F.3d at 1065, 1071. Probable
cause determinations are “commonsense, practical”
questions, and a “fair probability” is less even than a
preponderance of the evidence. Id. at 1069. In this day and
age, even persons with minimal technological savvy are
19
Agent Enriquez did not mention the preservation request in his
affidavit. He did, however, refer to “recovered data,” and he mentioned
that it was “very likely . . . that evidence of the crimes under investigation
exists on computers subject to the control of” Facebook.
20
In addition to the preservation request and the inherent difficulty of
irretrievably deleting digital data, a Facebook security setting also ensured
that the contents of Flores’s account remained accessible. Anyone logging
in to Flores’s account from an unknown computer had to enter a password
that was sent to Flores’s cell phone. Flores’s phone had been confiscated,
so Manuel was unable to login to Flores’s account.
28 UNITED STATES V. FLORES
aware that data is frequently preserved and recovered after
deletion from an electronic device, particularly when a third
party like Facebook is involved. See id. at 1071. Therefore,
even if agents were less likely to find evidence of drug
smuggling in Flores’s account in October than in June, a fair
probability of finding such evidence remained when the
warrant issued.
2. Overbreadth
Flores next argues that the warrant was overbroad. We
consider three factors in analyzing the breadth of a warrant:
(1) whether probable cause existed to seize all
items of a category described in the warrant;
(2) whether the warrant set forth objective
standards by which executing officers could
differentiate items subject to seizure from
those which were not; and (3) whether the
government could have described the items
more particularly in light of the information
available . . . .
United States v. Lei Shi, 525 F.3d 709, 731–32 (9th Cir.
2008).
The first two factors clearly suggest that the warrant was
not overbroad. The warrant allowed the government to
search only the Facebook account associated with Flores’s
name and email address, and authorized the government to
seize only evidence of violations of 18 U.S.C. § 371(Conspiracy) and 21 U.S.C. §§ 952 and 960 (Importation of
UNITED STATES V. FLORES 29
a Controlled Substance).21 The warrant also established
“Procedures For Electronically Stored Information,”
providing executing officers with sufficient “objective
standards” for segregating responsive material from the rest
of Flores’s account. See Lei Shi, 525 F.3d at 731–32.
Citing United States v. Comprehensive Drug Testing, Inc.,
621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam)
(“CDT”), Flores argues that the objective standards used here
were unconstitutional. At bottom, Flores complains that the
government, including the investigative team itself, was
authorized to seize and search all 11,000 pages of data in
Flores’s account when, as it turned out, only approximately
100 pages were truly responsive to the warrant. In United
States v. Adjani, we rejected a similar argument that the
government should have narrowed its search of a defendant’s
e-mail account. See 452 F.3d 1140, 1149–50 (9th Cir. 2006)
(“To require such a pinpointed computer search, restricting
the search to an email program or to specific search terms,
would likely have failed to cast a sufficiently wide net to
capture the evidence sought.”). “Over-seizing” is an accepted
reality in electronic searching because “[t]here is no way to
be sure exactly what an electronic file contains without
somehow examining its contents.” CDT, 621 F.3d at 1176,
1177.
That said, we have recognized a number of significant
limitations to prevent necessary “over-seizing” from turning
into a general dragnet. In Adjani, we explained that warrants
21
Flores argues that the warrant authorized agents to search for and seize
evidence tending to prove a conspiracy to commit any crime. She
misreads the warrant, which extended only to content “tending to show
narcotics trafficking.”
30 UNITED STATES V. FLORES
must specify the particular crime for which evidence is
sought. 452 F.3d at 1148–50. We also cautioned in CDT
against retaining unresponsive data based on the “plain view”
doctrine, and recognized the importance of protecting third
parties’ rights. 621 F.3d at 1169–71. Consistent with this
guidance, the warrant here specified a crime and a suspect,
the seized data was not used for any broader investigative
purposes, and Facebook, rather than government agents,
segregated Flores’s account to protect third parties’ rights.22
Flores claims that the third Lei Shi factor—whether the
government could have placed greater limits on the warrant’s
scope in light of available information, 525 F.3d at 732—cuts
in favor of finding the warrant overbroad. In particular, she
notes the warrant contained no temporal limit. As it turns
out, Flores’s Facebook account contained activity dating back
to when she was 17 or 18 years old, and she committed the
22
We recognize that the warrant authorized retention of Flores’s full
account for authentication purposes, a process we disapproved in United
States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982). Tamura presented
very different concerns, however, because the documents retained in that
case were a company’s physical “master volumes” rather than a copy of
digital data. Nevertheless, CDT reaffirmed the importance of returning (or
destroying) copies of digital data. See 621 F.3d at 1170; id. at 1179(Kozinski, C.J., concurring). But CDT allowed for retention with
“specific judicial authorization,” which the warrant here included. See id.We also note that “any authorized federal agent” was allowed to search
within Flores’s account for responsive data. Ideally, the government’s
investigative team would not have been involved in segregating
responsive data from the rest of Flores’s account. See id. at 1168, 1172(Majority Op.). CDT did not prohibit investigative teams from
participating in data segregation as a general matter, however, and instead
faulted the government for misleadingly suggesting in the warrant that the
team would not be involved. Id. at 1172. CDT thus serves as a reminder
not to mislead magistrates or exceed the scope of a warrant, not as a
blanket prohibition on data segregation by investigative teams.
UNITED STATES V. FLORES 31
offense of conviction shortly after turning 23 years old.23
Seizing five or six years’ worth of data may have been
excessive, though Agent Enriquez’s affidavit certainly
established probable cause to search Flores’s account for
some time before her arrest.
Ultimately, we need not decide whether the warrant was
overbroad for lack of a temporal limit because even if it was,
suppression of the evidence used at trial was not required.
We have “embraced the doctrine of severance, which allows
us to strike from a warrant those portions that are invalid and
preserve those portions that satisfy the Fourth Amendment.
Only those articles seized pursuant to the invalid portions
need be suppressed.” United States v. Gomez-Soto, 723 F.2d
649, 654 (9th Cir. 1984). No evidence was introduced at trial
that should have been suppressed under this standard,
regardless of the warrant’s potential overbreadth. Indeed, the
two sets of Facebook messages introduced at trial were sent
on the day of Flores’s arrest and thus fell well-within even the
narrowest of temporal limits. Therefore, even though the
warrant had no temporal limit, the district court did not err in
denying Flores’s motion to suppress. See Gomez-Soto,
723 F.2d at 654.24
23
In her motion in limine, Flores exaggerated the scope of the problem.
She claimed that the government seized data from as early as 2000. Flores
testified, however, that she joined Facebook when she was 17 or 18 years
old, which means that no data existed prior to 2006 or 2007, given that
Flores was born in 1989.
24
Because we conclude that the evidence used at trial was seized
pursuant to the valid portion of the warrant and that the motion to suppress
was therefore properly denied, we need not address the government’s
additional argument that the “good faith” exception to the exclusionary
rule applies.
32 UNITED STATES V. FLORES
3. Executing the Warrant
Flores further argues that the Facebook evidence
presented at trial should have been suppressed because the
government exceeded its scope by seizing all 11,000 pages of
data in Flores’s account. Pursuant to the terms of the warrant,
however, Facebook was authorized to provide agents with a
copy of the entire contents of Flores’s account. Agents then
segregated 100 pages of responsive material from the entire
account into a separate file within the 90-day period
authorized by the warrant.25 Again pursuant to the warrant,
the original copy of Flores’s account was sealed in an
evidence bag and is inaccessible absent a new warrant.26 In
short, the government executed the warrant exactly as it was
written.
We need not determine whether the 100 pages of
segregated data exceeded the scope of the warrant, as Flores
claims, because only two messages were admitted into
evidence. In United States v. Crozier, we held that “[o]nly
those items which fall outside the scope of the warrant need
be suppressed.” 777 F.2d 1376, 1381 (9th Cir. 1985).
Accordingly, the district court properly considered only the
25
Flores also claims that the government exceeded the scope of the
warrant by refusing to enlist Facebook in this data segregation. Flores’s
claim fails because the warrant explicitly authorized the government to
perform this task and because the affidavit thoroughly explained why
Facebook could not be assigned to find responsive materials in Flores’s
account. See CDT, 621 F.3d at 1170–71; Tamura, 694 F.2d at 595.
26
In addition to the sealed copy retained for authentication purposes, the
government made three working copies of Flores’s account and gave one
copy to the defense, one to the prosecution, and one to the case agent. The
latter two copies have been destroyed.
UNITED STATES V. FLORES 33
Facebook messages the government planned to introduce at
trial. Those messages were well-within the scope of the
warrant. Thus, even if other evidence that was not introduced
at trial might have exceeded the warrant’s scope—and there
is no reason to believe that it did—the district court did not
err in denying Flores’s motion to suppress.
B. Admissibility of Evidence from Facebook
After the district court denied Flores’s motion to suppress,
Flores moved in limine to exclude any evidence referring to
her personal drug use, arguing that references to personal
drug use were inadmissible propensity evidence under
Federal Rule of Evidence 404(b) and unfairly prejudicial
under Rule 403. The district court denied her motion and
overruled her Rule 403 and 404 objections at trial. We
review the denial of Flores’s motion and the rejection of her
objections for abuse of discretion. See United States v.
Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en banc).
Flores contends that the two Facebook messages the
government introduced were improperly used for propensity
purposes and were unfairly prejudicial—concerns which were
improperly compounded by the admission of evidence that
Flores also used marijuana during her pretrial release period.
Flores is correct that drug use and simple possession cannot
be introduced to show that a defendant conspired to smuggle
drugs. See United States v. Vizcarra-Martinez, 66 F.3d 1006,
1015 (9th Cir. 1995) (noting that possession of personal use
amounts of a drug does not evidence conspiracy to
manufacture that drug); United States v. Mehrmanesh,
689 F.2d 822, 831–32 (9th Cir. 1982) (rejecting the argument
that a jury can infer importation from drug use). She is
incorrect that the evidence was inadmissible, however,
34 UNITED STATES V. FLORES
because the government used the evidence for different,
permissible purposes.
The evidence supported a reasonable inference that the
Facebook messages referred to the very drugs Flores was
arrested for transporting. Thus, the messages were at least
arguably tantamount to admissions to the crime charged.
Accordingly, Rule 404(b) is inapplicable because the
evidence did not refer to other bad acts at all; it referred to the
bad act at issue. See United States v. Rizk, 660 F.3d 1125,
1131 (9th Cir. 2011). Indeed, it would have been illogical for
the government to use the messages for propensity purposes,
as that would have bolstered Flores’s claim that the messages
referred to other uncharged bad acts, whereas the
government’s argument depended in part on convincing the
jury that the messages referred to the importation with which
Flores was charged. Thus, the district court’s decision to
admit the evidence as a potential admission was not an abuse
of discretion because the government’s characterization of the
messages was supported by “inferences that may be drawn
from facts in the record.” Redlightning, 624 F.3d at 1110.
That Flores presented a competing plausible characterization
of the Facebook messages goes to the weight of the evidence,
not its admissibility. Nor did the district court abuse its
discretion under Rule 403 because the prejudice created by an
admission, while severe, is not unfair. See United States v.
Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000).
Allowing the government to use the messages for non-
propensity impeachment purposes—i.e., to show that Flores
was lying about what she wanted her cousin to delete from
Facebook—was not an abuse of discretion. The same is true
of the government’s reference to Flores’s pre-trial drug use,
which was introduced to show that Flores had lied to a federal
UNITED STATES V. FLORES 35
judge and thus was untrustworthy, rather than to show
Flores’s propensity to commit drug crimes. Moreover, the
court explicitly instructed the jury that it could not consider
evidence of Flores’s other wrongful acts “as evidence of guilt
of the crime for which the defendant is now on trial.”
Because the evidence was used for permissible purposes only,
the district court did not abuse its discretion in denying
Flores’s motion in limine or overruling her objections. See
United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999)
(“[U]nless the evidence of other acts only tends to prove
propensity, it is admissible.”).
IV. SENTENCING
We review a district court’s construction and
interpretation of the Sentencing Guidelines de novo, its
factual findings for clear error, and its application of the
Guidelines to the facts for abuse of discretion. United States
v. Taylor, 749 F.3d 842, 845 (9th Cir. 2014); United States v.
Popov, 742 F.3d 911, 914 (9th Cir. 2014). Flores argues that
the district court procedurally erred by applying a 2-level
obstruction of justice enhancement under U.S.S.G. § 3C1.1
without making the requisite willfulness and materiality
findings. See U.S.S.G. § 3C1.1 cmt. 4(D). We disagree.
Flores is correct that the enhancement can be based only
on willful efforts to delete evidence that are material to “the
instant offense of conviction,” U.S.S.G. § 3C1.1 (emphasis
added)—importation of marijuana. See United States v.
Gardner, 988 F.2d 82, 83 (9th Cir. 1993) (per curiam).
Contrary to Flores’s claim, however, the district court found
Flores asked her cousin to delete Facebook content that, “if
believed, would tend to influence or affect” the importation
charge itself. U.S.S.G. § 3C1.1 cmt. n.6 (defining
36 UNITED STATES V. FLORES
materiality). Indeed, the district court allowed the
government to introduce this evidence at trial over Flores’s
objections precisely because the court concluded that, if the
jury believed the government’s characterization of the
evidence, it would directly prove Flores knew there was
marijuana in her car as she entered the United States. The
court’s evidentiary ruling therefore encompasses the requisite
materiality finding. Cf. United States v. Armstrong, 620 F.3d
1172, 1176 (9th Cir. 2010) (“Although it is preferable for the
court to make a separate and clear finding . . . , doing so is
unnecessary where the court makes a determination of an
obstruction of justice enhancement that encompasses all of
the factual predicates for [such] a finding . . . .”).
Flores also asserted at sentencing that she asked Manuel
to delete Facebook content because “[s]he didn’t want the
prosecutors to assume that she had knowledge [of the drugs
in her car] simply because she herself had smoked marijuana
in the past.”27 Thus, Flores affirmatively stated at sentencing
27
Flores had stated this fear earlier in her testimony, as well. When
asked why she wanted Manuel to delete references to her marijuana use
from Facebook, Flores said, “For however long I had been smoking,
people they just pass judgment immediately. I don’t know, I guess they
think badly of somebody who smokes marijuana . . . . I knew that that
was something I could get in trouble for.” On cross-examination, she
confirmed that she wanted the evidence deleted because of “the judgment
that people pass on anyone who smokes marijuana,” and because “I didn’t
want it to be used as evidence in [a] case it was irrelevant to.” Essentially,
Flores was worried that evidence of her marijuana use might (1) support
a character inference that in turn would cause the government to prosecute
(and the jury to convict) her for importation, and (2) suggest that she knew
that drugs were hidden in her car as she entered the United States. While
Flores’s concerns might warrant exclusion of this evidence in an
importation case under Federal Rules of Evidence 404(b) and 403, a
defendant cannot avoid an obstruction enhancement by claiming that the
UNITED STATES V. FLORES 37
that she attempted to delete content from Facebook for the
purpose of hindering the investigation and prosecution of “the
instant offense of conviction.” U.S.S.G. § 3C1.1; see
Gardner, 988 F.2d at 83–84 (“[A] section 3C1.1 enhancement
must be premised on willful conduct that has the purpose of
obstructing justice.”). Accordingly, the district court’s
imposition of the enhancement based on Flores’s “efforts to
have her cousin delete certain postings from her Facebook
account” and “for the reasons stated,” was a finding of the
essential elements of obstruction under § 3C1.1. Gardner,
988 F.2d at 83–84 (“[T]he district court need not specify the
reasons for its factual finding of obstruction of justice.”).
Flores’s own testimony establishes that this factual
finding—that Flores asked Manuel to delete content from
Facebook for the purpose of eliminating evidence that might
tend to prove the crime charged—was not clearly erroneous.
Therefore, we affirm her sentence.
V. CONCLUSION
Once again, an Assistant United States Attorney for the
Southern District of California overstepped the boundaries of
permissible questioning and argument. We reluctantly affirm
evidence she tried to destroy might have been inadmissible—that is not a
defendant’s decision to make. Obstruction enhancements are not reserved
for the willful destruction of admissible evidence only, and in any event,
the evidence Flores attempted to destroy was admissible for non-
propensity purposes. More importantly, Flores’s testimony confirms that
when she asked Manuel to delete content from Facebook, she knew it
could be used against her in a prosecution for importation, and she
attempted to destroy it for that reason.
38 UNITED STATES V. FLORES
Flores’s conviction under the high bar of the plain error
standard.
AFFIRMED.
PREGERSON, Circuit Judge, dissenting:
I respectfully dissent. The Assistant U.S. Attorney
violated the rules of permissible questioning and argument;
forgot that our government’s interest “in a criminal
prosecution is not that it shall win . . . , but that justice shall
be done,” Berger v. United States, 295 U.S. 78, 88 (1935)
(Sutherland, J.); and ignored Justice Sutherland’s admonition
that a prosecutor “may strike hard blows, but not foul ones.”
Id.These serious violations do not warrant invocation of the
plain error rule.