United States v. Flora Espino ( 2018 )

FILED
NOT FOR PUBLICATION
JUN 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50344
Plaintiff-Appellee, D.C. No.
3:11-cr-03486-JAH-6
v.
FLORA ESPINO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted February 7, 2018
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,** District
Judge.
Defendant Flora Espino (hereinafter referred to as “Espino”) appeals her
conviction for lying to a grand jury in violation of 18 U.S.C. § 1623. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the rulings by the district
court.1
1. Objections to evidentiary rulings are reviewed for abuse of discretion as
are Fed. R. Evid. 404(b) objections. See, e.g., United States v. Alvarez, 358 F.3d
1194, 1205 (9th Cir. 2004); United States v. Hardrick, 766 F.3d 1051, 1055 (9th
Cir. 2014). An abuse of discretion occurs only if the district court’s ruling is
“illogical, implausible, or without support in inferences that may be drawn from
the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.
2009). The district court did not err or abuse its discretion by allowing the
government to introduce a copy of the 2007 refinance letter under Federal Rule of
Evidence 403 (as substantial evidence of guilt) or under Federal Rule of Evidence
404(b) (as evidence of lack of mistake or accident). Similarly, the district court did
not err in admitting, pursuant to Rule 404(b), the letters of Marina Carmelo and
Jose Sanchez. Further, there was a sufficient foundation for admitting Sean
Desmond’s loan application into evidence.
2. The district court’s decision to admit coconspirator statements is
reviewed for abuse of discretion. United States v. Gil, 58 F.3d 1414, 1419 (9th Cir.
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The issue concerning the verdict form used in this case is addressed
in a separate opinion filed concurrently with this memorandum disposition.
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1995). We review the conclusion that a challenged statement was made in the
course of and in furtherance of a conspiracy for clear error. See United States v.
Pena-Espinoza, 47 F.3d 356, 360-61 (9th Cir. 1995). Under this “significantly
deferential” standard, courts can reverse only if there is a single permissible view
of the evidence, and that view is contrary to the district court’s findings. United
States v. Bragg, 582 F.3d 965, 972 (9th Cir. 2009). Generally, we review de novo
the district court’s interpretation of the hearsay rule. United States v. Oretga, 203
F.3d 675, 682 (9th Cir. 2000). A decision to exclude evidence is generally
reviewed under the abuse of discretion standard, including hearsay rulings. United
States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011). Applying these standards,
we conclude the district court did not err in allowing the admission of co-
conspirator emails into evidence. There existed sufficient evidence of a
conspiracy, and the emails in question supported the existence of the same.
3. The district court did not err in allowing Sean Desmond’s Internal
Revenue Service transcripts into evidence. The transcripts are admissible as public
records. Fed. R. Evid. 803(8). “[T]his circuit as well as other circuits have held
that official IRS documents, even if generated by a computer, are admissible as
public records.” Hughes v. United States, 953 F.2d 531, 540 (9th Cir. 1992); see
also United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir. 2005) (“[W]e
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conclude that a routine certification by the custodian of a domestic public record,
such as that provided by Greene, and a routine attestation to authority and
signature, such as that provided by the Secretary of State in this case, are not
testimonial in nature.”).
4. The district court did not err in refusing to allow Espino’s email into
evidence. This is not an issue of completeness. See United States v. Vallejos, 742
F.3d 902, 905 (9th Cir. 2014) (“[I]t is often perfectly proper to admit segments of
prior testimony without including everything, and adverse parties are not entitled
to offer additional segments just because they are there and the proponent has not
offered them.”) (citation omitted)). In addition, the district court did not preclude
admission of the document; it simply determined that Espino could not use a
government witness to get this evidence before the jury.
5. We review de novo the district court’s denial of Espino’s Rule 29 motion
for a judgment of acquittal. United States v. Aubrey, 800 F.3d 1115, 1124 (9th Cir.
2015); Fed. R. Crim. P. 29. We employ a two-step process. United States v.
Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010). First, the evidence is considered in
the most favorable light to the prosecution. Id. Second, we must determine if the
evidence “is adequate to allow ‘any rational trier of fact [to find] the essential
elements of the crime beyond a reasonable doubt.’” Id. (internal citation omitted).
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“[A] jury's verdict is not to be disturbed lightly.” United States v. Begay, 673 F.3d
1038, 1043 (9th Cir. 2011). Here, there is substantial documentary
evidence—mostly uncontested—showing Espino’s statements were false. There is
sufficient evidence of guilt. The district court did not err in denying Espino’s
judgment for acquittal, as substantial evidence existed to support the verdict.
Espino’s conviction is AFFIRMED.
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