United States v. Samantha Nuss ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 1 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10221
Plaintiff-Appellee, D.C. No.
4:19-cr-00179-JAS-EJM-2
v.
SAMANTHA BELLE NUSS, AKA MEMORANDUM*
Samantha Nuss,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted November 20, 2020**
Phoenix, Arizona
Before: BYBEE, MURGUIA, and BADE, Circuit Judges.
Samantha Belle Nuss appeals her conviction and sentence for transporting
illegal aliens for profit and conspiracy to transport illegal aliens for profit in
violation of 8 U.S.C. § 1324. We have jurisdiction pursuant to 28 U.S.C. § 1291.
*
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).
We affirm Nuss’s conviction and remand to the district court to conform the
written judgment to the orally imposed sentence.1
1. Nuss challenges several of the district court’s evidentiary rulings.
First, one of the aliens found in Nuss’s van testified that Farzana
Washington, Nuss’s coconspirator, did not seem “surprised” when the aliens
entered the van “because [Washington] already knew that she was going to pick
[them] up.” Nuss argues that the district court erred in admitting this testimony
because the witness had no foundation to testify whether Washington knew she
was going to pick up the aliens. Because Nuss preserved this challenge, we review
for abuse of discretion. United States v. Gadson, 763 F.3d 1189, 1199 (9th Cir.
2014).
We agree that the district court erred by admitting the alien’s testimony
because there is no indication that he had any observations or experience on which
to base a statement about Washington’s knowledge. See Fed. R. Evid. 602. The
error, however, was harmless. It was an isolated remark about Washington, not
Nuss, and overwhelming evidence supported the jury’s finding that Nuss knew
about the scheme to transport illegal aliens: for example, one of the women
signaled for the group to crouch down in the van; Nuss received a text message
1
The parties are familiar with the factual and procedural background of this
matter. Therefore, we recite only those facts necessary for this disposition.
2
advising her of a checkpoint and referencing “refugees”; and the women sped off
and led Border Patrol on a high-speed chase.
Second, Nuss asserts that the district court improperly excluded her
explanation of alleged coconspirator Mo Shellouff’s text message warning her
about a checkpoint. She argues that this ruling was inconsistent with the district
court’s admission of the alien’s testimony about whether Washington “knew” they
were picking up the aliens. But she provides no analysis of this issue. The district
court did not abuse its discretion by excluding this testimony. See Gadson, 763
F.3d at 1199.
Third, Nuss argues that the district court erred by allowing the government
to introduce testimony that one of the aliens in her van was a minor. Because she
failed to object at trial, we review for plain error, United States v. Torralba-
Mendia, 784 F.3d 652, 658 (9th Cir. 2015), and we find no error. Contrary to
Nuss’s assertion, the government violated neither the district court’s in limine
order nor the parties’ pretrial agreement by failing to redact an unsolicited, offhand
remark that one alien was a minor. Moreover, apart from a passing reference to
“media coverage . . . about the separation of children from their parents at the
border,” Nuss fails to explain why this evidence would have been inflammatory or
confusing to a jury.
Fourth, Nuss argues that the district court erred by admitting a text message
3
from Shellouff reading, “Morning sweetheart sorry I was busy,” because the
message was irrelevant, hearsay, and unduly prejudicial. Because Nuss preserved
this challenge, we review for abuse of discretion, Gadson, 763 F.3d at 1199, and
find no error. The message was relevant as evidence of the close relationship
between Nuss and a coconspirator. It was not hearsay because it “was not admitted
for the truth of the matter asserted”—that Nuss and her coconspirator were in fact
“sweethearts.” See, e.g., United States v. Candoli, 870 F.2d 496, 508 (9th Cir.
1989). Finally, Nuss offers no reason to conclude that the single use of the
nickname “sweetheart” carried prejudicial sexual undertones or would have caused
the jury to fixate on a potential romance as opposed to viewing the text message as
evidence of a relationship between two coconspirators.
Fifth, Nuss argues that the district court improperly admitted evidence that
Shellouff failed to respond to investigative subpoenas because the evidence “said
nothing about [her] own behavior.” Because she makes this argument for the first
time on appeal, we review for plain error. Torralba-Mendia, 784 F.3d at 658.
Because Nuss cites no authority supporting her assertion that it is “improper” to
bring up a “third party’s failure/inability/refusal to produce subpoenaed records,”
she has not shown error, let alone plain error. United States v. Thompson, 82 F.3d
849, 856 (9th Cir. 1996).
Sixth, Nuss argues for the first time on appeal that the district court
4
“permitted the government to improperly sexualize [her] and Washington
throughout the trial.” We review for plain error, Torralba-Mendia, 784 F.3d at
658, and find no error. Although several witnesses mentioned the women’s attire
when explaining why the women raised their suspicion or how they identified the
women, these brief descriptions are not the “snowballing sexualization” that Nuss
describes. Nuss also argues that the government improperly admitted evidence
that she worked at an adult entertainment establishment. The government,
however, redacted the testimony stating that Nuss worked there as an “exotic
dancer,” and her place of employment was relevant because it contradicted Nuss’s
trial testimony about how she knew Washington.2
2. Next, Nuss argues that the district court erred by imposing a
warrantless and suspicionless search condition of supervised release. Because
Nuss did not preserve this issue, we review for plain error. United States v. Vega,
545 F.3d 743, 747 (9th Cir. 2008). Relying on United States v. Cervantes, 859
F.3d 1175 (9th Cir. 2017), Nuss argues that she “comes nowhere close to the
Cervantes standard” to justify imposing such a condition. But nothing in
Cervantes suggests that a minimum criminal history is required to justify the
search condition, id. at 1184, and we have affirmed a similar condition even when
2
We do not reach Nuss’s cumulative error argument because the district
court did not commit multiple errors. United States v. Lindsay, 931 F.3d 852, 869
(9th Cir. 2019).
5
a defendant had no prior convictions, see United States v. Betts, 511 F.3d 872, 876
(9th Cir. 2007). Considering the nature of Nuss’s crimes and her significant
criminal history involving drugs, the district court did not plainly err in imposing
this condition.
3. Finally, Nuss argues that the district court’s written judgment differed
from its orally imposed sentence in two respects. First, Nuss argues that the
district court orally imposed a supervised release condition forbidding her “from
consuming any alcohol or alcoholic beverages . . . while she’s on supervised
release,” but stated in its written judgment, “You must not use or possess alcohol
or alcoholic beverages” (emphasis added). The government concedes the two
conditions differ.
Second, Nuss argues that the district court imposed materially different
versions of a supervised release condition requiring disclosure of financial
information. At the sentencing hearing, the district court stated that it would
“order [Nuss] to provide the probation department with any financial information
that is requested and to sign, if appropriate, authorizations for release of financial
information.” The written judgment, in contrast, reads: “You must provide the
probation officer with access to any requested financial information and authorize
the release of any financial information. The probation office may share financial
information with the U.S. Attorney’s Office [USAO]” (emphasis added).
6
The government argues that the additional provision in the written judgment
does not add to Nuss’s obligations; it simply notifies her that the probation office
may share information with the USAO. We disagree. Although there may be little
functional difference between the probation office unilaterally sharing information
with the USAO and the probation office sharing that information after requiring
Nuss to authorize it to do so, the oral sentence described a different procedure—
arguably one more favorable to Nuss’s privacy and notice interests—than the
written judgment did.3
“[W]hen an oral sentence is unambiguous, it controls over a written sentence
that differs from it.” United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006).
Because the oral sentence differed materially from the written judgment regarding
both the alcohol prohibition and the financial disclosure requirement, we remand
for the district court to revise the written judgment in both respects.
AFFIRMED IN PART AND REMANDED IN PART.
3
It is unclear whether the district court somehow limited Nuss’s obligation
to authorize information-sharing by authorizing the probation office to require her
signature only “if appropriate.” But the parties do not address this issue, and we
need not reach it.
7