United States v. Sayda Orellana ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50140
Plaintiff-Appellee, D.C. No.
8:17-cr-00010-CJC-2
v.
SAYDA POWERY ORELLANA, AKA MEMORANDUM*
Adina Ponce, AKA Adina Salas, AKA Saida
Salas, AKA Sayda Ivonne Salas, AKA
Adina Zaida,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-50141
Plaintiff-Appellee, D.C. No.
8:17-cr-00010-CJC-1
v.
MANUEL PORRAS SALAS, AKA Manuel
Sala-Porras, AKA Manny Salas,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted October 16, 2020
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pasadena, California
Before: MURGUIA and LEE, Circuit Judges, and KORMAN,** District Judge.
Sayda Orellana and Manuel Salas appeal from the district court’s judgment
and sentence following a trial, where the jury convicted them on eight counts
pertaining to a conspiracy to commit drug trafficking and money laundering. As the
parties are familiar with the facts, we do not recount them here. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. Orellana and Salas argue that the district court erred when it permitted
expert testimony from co-case agent Jose Gonzalez, a criminal investigator with the
Internal Revenue Service. We review for abuse of discretion the district court’s
decision whether to exclude expert testimony. United States v. Morales, 108 F.3d
1031, 1035 (9th Cir. 1997) (en banc). “A district court abuses its discretion when it
bases its decision on an erroneous view of the law or a clearly erroneous assessment
of the facts.” Id. (citation omitted). Although “matters of law” are generally
inappropriate subjects for expert testimony, see, e.g., Aguilar v. Int’l
Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th Cir. 1992), there may
be “instances in rare, highly complex and technical matters where a trial judge,
utilizing limited and controlled mechanisms, and as a matter of trial management,
**
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
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permits some testimony seemingly at variance with the general rule,” Flores v.
Arizona, 516 F.3d 1140, 1166 (9th Cir. 2008), rev’d on other grounds, Horne v.
Flores, 557 U.S. 433 (2009) (citation omitted).
The district court did not abuse its discretion when it permitted Agent
Gonzalez’s testimony, because it determined that the applicable criminal law was
complex, and that Gonzalez’s testimony would be helpful to the juryAs a “dual-
purpose witness,” Gonzalez did not opine on whether the defendants engaged in
money laundering, but generally explained concepts related to money laundering
and provided illustrative examples. What is more, the court instructed the jury “to
apply the law as I give it to you,” that Gonzalez’s opinion testimony “should be
judged like any other testimony,” and that the jury was free to “accept . . . none of
it.” Accordingly, Gonzalez’s testimony did not invade the province of the court to
determine the applicable law and to instruct the jury as to that law. Hangarter v.
Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004)
(“[I]nstructing the jury as to the applicable law is the distinct and exclusive province
of the court.”) (internal citations and quotation marks omitted).
2. Orellana and Salas argue that the district court abused its discretion when
it denied Salas’s motion for a mistrial. We review the denial of a motion for a
mistrial for abuse of discretion. United States v. Lemus, 847 F.3d 1016, 1024 (9th
Cir. 2016). “A cautionary instruction from the judge is generally sufficient to cure
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any prejudice from the introduction of inadmissible evidence, and ‘is the preferred
alternative to declaring mistrial when a witness makes inappropriate or prejudicial
remarks; mistrial is appropriate only where there has been so much prejudice that an
instruction is unlikely to cure it.’” Id. (quoting United States v. Escalante, 637 F.2d
1197, 1202–03 (9th Cir. 1980)). A decision to not declare a mistrial will be reversed
only if “the improper comment, viewed in the context of the entire trial, more likely
than not materially affected the verdict.” Id.
During the government’s presentation of evidence regarding Salas’s false
statements charge, the government’s witness, Thomas Skinner, an agent within the
Office of Internal Affairs of Customs and Border Protection, referred to “another
investigation” in which he had interviewed Salas. The court ordered the phrase
“relating to another investigation” stricken from his testimony. After the
government’s direct examination of Skinner, Salas moved for a mistrial based on
Skinner’s reference to “another investigation” and the court’s repetition of the
reference when striking the testimony. The court denied the motion but offered to
provide an additional limiting instruction. Salas did not request such an instruction.
Because: (1) the reference to “another investigation” appears innocent and
devoid of any detail associating Salas with criminality; (2) the district court struck
the reference from Skinner’s answer immediately after Salas moved to strike; and (3)
the court instructed the jury that “[i]n reaching your verdict, you may consider only
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the testimony . . . in evidence” and that “any testimony that I have excluded,
stricken, or instructed you to disregard is not evidence,” the court did not abuse its
discretion in denying Salas’s motion.
3. Nor is Orellana’s and Salas’s challenge to the jointly proposed jury
instructions persuasive. “A defendant’s right to challenge a jury instruction is
waived if the defendant considered the controlling law and ‘in spite of being aware
of the applicable law, proposed or accepted a flawed instruction.’” United States v.
Burt, 143 F.3d 1215, 1217 (9th Cir. 1998) (quoting United States v. Perez, 116 F.3d
840, 845 (9th Cir. 1997) (en banc)). Because Orellana’s and Salas’s defense counsel
approved the jointly proposed jury instructions, their argument is waived. See Perez,
116 F.3d at 845 n.7 (“We have long held that jury instructions may be waived by a
defendant’s attorney.”).
4. We also reject Orellana’s and Salas’s argument that the government
committed prejudicial misconduct during its rebuttal argument. We review for plain
error because no objection was raised at trial. United States v. Begay, 673 F.3d 1038,
1046 (9th Cir. 2011) (en banc). To establish plain error, defendants must show that
“(1) there was an error, (2) the error is clear or obvious, (3) the error affected [their]
substantial rights, and (4) the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Johnson, 963 F.3d 847, 850
(9th Cir. 2020).
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Even if the government’s rebuttal argument misstated the law, the error was
not clear or obvious, but was “subject to reasonable dispute.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (citing United States v. Olano, 507 U.S. 725, 734
(1993)). The government’s statement to the jury that it should not “speculate” about
cooperating witness Jose Soberano’s sentence cannot be said to obviously mean that
the jury should not consider the extent to which or whether his testimony may have
been influenced by the prospect of favorable consideration from the government. A
reasonable observer could understand the government’s statement to mean that the
jury should not assume Soberano would receive any particular sentence. This
interpretation is reasonable in view of the government’s immediately subsequent
statement—that no promises were made to Soberano with respect to his sentence—
as well as its reference to the court’s instruction that the jury must evaluate
Soberano’s testimony with caution.
Nor could it be said that the government’s statement “affected the outcome of
the district court proceedings.” Olano, 507 U.S. at 734 (citations omitted). In
determining the prejudicial effect of the statement, this Court “consider[s] the
misstatement in context.” Begay, 673 F.3d at 1046. The district court correctly
instructed the jury how to evaluate Soberano’s credibility and made clear that the
jury could properly consider a witness’s bias and that statements of counsel are not
evidence and may not be considered in reaching a verdict. The government similarly
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urged the jury to heed the court’s instruction regarding Soberano’s testimony. We
cannot conclude that the government’s alleged misstatement was plain error. See
Begay, 673 F.3d at 1046–47.
5. Orellana and Salas also argue that the cumulative prejudicial effect of the
issues they raise on appeal warrant reversal. We disagree, as we are not persuaded
that the district court committed any error, let alone multiple errors that warrant
reversal. Cf. United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)
(“[A]lthough no single trial error examined in isolation is sufficiently prejudicial to
warrant reversal, the cumulative effect of multiple errors may still prejudice a
defendant.”) (citation omitted).
6. Finally, we reject Orellana’s and Salas’s claim that the district court erred
in applying a two-level “organizer” sentencing enhancement under § 3B1.1 of the
Sentencing Guidelines. We review the district court’s identification of the correct
legal standard de novo, its application of the Guidelines to the facts for abuse of
discretion, and its factual findings for clear error. United States v. Gasca-Ruiz, 852
F.3d 1167, 1170 (9th Cir. 2017) (en banc).
The Sentencing Guidelines allow for a two-level “organizer” enhancement
“[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal
activity” involving fewer than five “participants,” provided that the criminal activity
was not “extensive.” U.S. Sentencing Guidelines Manual § 3B1.1(c) (U.S.
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Sentencing Comm’n 1993). In order to impose the enhancement, there must be a
“showing that the defendant had control over other[]” participants or “organiz[ed]
other[] [participants] for the purpose of carrying out” the charged crimes. United
States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) (internal quotation marks and
citations omitted). A single incident of persons acting under a defendant’s direction
is sufficient evidence to support a two-level role enhancement. See, e.g., United
States v. Beltran, 165 F.3d 1266, 1271 (9th Cir. 1999).
The record is clear that both Orellana and Salas exercised substantial control
over Soberano and that they were not “co-equal” conspirators in their criminal
enterprise. Cf. United States v. Holden, 908 F.3d 395, 402–03 (9th Cir. 2018).
Orellana directed Soberano where to leave his trailer so that it could be loaded with
drugs and notified Soberano once the trailer was loaded, determined where in the
truck the drugs would be placed, directed Soberano how to deposit the drug proceeds
into specific accounts, and instructed him to structure the deposits by making
deposits into difference accounts at different banks. Likewise, Salas directed
Soberano to deposit drug proceeds in a particular bank account, had over 100
telephone contacts with him regarding drug transportation and money laundering,
and coached Soberano when he sought to stop transporting drugs. The district court
did not err in applying a two-level “organizer” sentencing enhancement as to either
Orellana or Salas under § 3B1.1.
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AFFIRMED.
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