United States v. Lorenzo Gonzalez-Robles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50351
Plaintiff - Appellee, D.C. No. 2:12-cr-01134-SJO-1
v.
MEMORANDUM*
LORENZO OSVALDO GONZALEZ-
ROBLES,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted March 5, 2015
Pasadena, California
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
Lorenzo Gonzalez-Robles was convicted of conspiracy to import marijuana, 21
U.S.C. § 963, importation of marijuana, 21 U.S.C. §§ 952(a), 960(a)(1), (b)(1)(G),
possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii),
and possession with intent to distribute marijuana on board a vessel, 46 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
70503(a)(1). He appeals his convictions and sentences, alleging erroneous jury
instructions, prosecutorial misconduct, and improper admission of expert testimony.
We have jurisdiction under 28 U.S.C. § 1291, and affirm.
1. The district court did not err in giving Ninth Circuit Model Criminal Jury
Instruction 8.23. Although that instruction arguably contained one minor
misstatement, taken as a whole, the instructions made clear that in order to convict,
the jury was required to find that Gonzalez participated in a conspiracy that had
marijuana smuggling as its object. See United States v. Dearing, 504 F.3d 897, 903
(9th Cir. 2007).
2. The district court did not err in refusing to give a multiple conspiracy
instruction. The government did not urge, nor did the evidence support the existence
of, multiple discrete, uncharged conspiracies. See United States v. Eubanks, 591 F.2d
513, 517-18 (9th Cir. 1979) (explaining when a multiple conspiracies instruction is
required).
3. Gonzalez claims that statements made by the prosecutor in rebuttal argument
misstated the law about the mental state required to establish participation in a
conspiracy. Because Gonzalez did not object to the statements at trial, we review for
plain error. See United States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir.
2012). Under the plain error standard, reversal is only warranted if (1) the statement
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was improper and (2) substantially prejudiced the defendant. United States v.
Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011). Under plain error review, even if both
prongs of the test are met, “[t]he plain error doctrine ‘authorizes the Courts of Appeals
to correct only particularly egregious errors . . . that seriously affect the fairness,
integrity or public reputation of judicial proceedings.’” United States v. Bracy, 67 F.3d
1421, 1432 (9th Cir. 1995) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
That is not the case here.
a. The jury was properly instructed that to convict Gonzalez of conspiracy to
import marijuana, it had to find that “there was an agreement between two or more
persons to bring marijuana into the United States,” and that Gonzalez “joined in the
agreement knowing of its purpose and intending to help accomplish that purpose.”
The prosecutor’s rebuttal argument, however, improperly suggested that Gonzalez
could be convicted even if he had no intent to import marijuana.
b. The prosecutor’s misstatements, however, did not undermine the
fundamental fairness of the proceeding. The case against Gonzalez was strong; he
was arrested on a boat laden with marijuana, admitted he knew marijuana was there
from the time he boarded the boat, and admitted that he was a mechanic and in need
of money. An expert testified that panga crews typically include a mechanic who is
paid up to $10,000, and that marijuana smugglers never take on passengers who are
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not involved in the smuggling. The district court not only properly instructed the jury
on the intent required for conspiracy, but also emphasized that it was not to treat
closing statements as evidence and was required to follow the court’s instructions on
the law. See United States v. Segna, 555 F.2d 226, 232 (9th Cir. 1977) (noting that
accurate instructions can “mitigate the prejudicial effect” of an erroneous closing
argument).
4. The district court properly exercised its gatekeeper function under Federal
Rule of Evidence 702 before allowing Special Agent LeVan to give expert testimony.
See Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463-64 (9th Cir. 2014) (en
banc), cert. denied, 135 S. Ct. 55 (2014). During a pre-trial hearing on motions in
limine, the judge (a) recognized the topics of Agent LeVan’s proposed testimony, (b)
recognized his CV, (c) found that “modus operandi” testimony was acceptable, (d)
cited Ninth Circuit case law to support this finding, (e) acknowledged that Rule 702
requires an expert be qualified and the testimony be helpful to the jury, and (f)
concluded that “it would appear that Agent LeVan can testify.” A separate Daubert
hearing was not required. Id.
5. Agent LeVan’s modus operandi testimony also satisfied the reliability
requirements of Rule 702. We have repeatedly found that law enforcement may give
modus operandi testimony in drug smuggling and conspiracy cases. See United States
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v. Valencia-Amezcua, 278 F.3d 901, 909 (9th Cir. 2002) (collecting cases); United
States v. Kearns, 61 F.3d 1422, 1427 (9th Cir. 1995). Agent LeVan was qualified, and
his testimony was grounded in specialized knowledge.
6. Agent LeVan’s testimony did not violate Federal Rule of Evidence 704(b)
by addressing Gonzalez’s mental state. The expert “never directly commented on
defendant’s mental state, and the jury could have accepted his testimony and still infer
that defendant was atypical.” United States v. Younger, 398 F.3d 1179, 1190 (9th Cir.
2005), abrogated on other grounds as stated in United States v. Vongxay, 594 F.3d
1111, 1116 (9th Cir. 2010); see also United States v. Morales, 108 F.3d 1031, 1038
(9th Cir. 1997) (en banc).
7. Nor did the testimony channel others’ statements in violation of the
Confrontation Clause. “‘An expert witness’s reliance on evidence that Crawford
would bar . . . only becomes a problem where the witness is used as little more than
a conduit or transmitter for testimonial hearsay.’” United States v. Gomez, 725 F.3d
1121, 1129-30 (9th Cir. 2013) (quoting United States v. Johnson, 587 F.3d 625, 635
(4th Cir. 2009)), cert. denied, 134 S. Ct. 1908 (2014). Agent LeVan did not refer to
any specific statements, arguments, or information from sources, but made only
general assertions about panga boat smuggling.
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8. The district court did not abuse its discretion under Federal Rule of Evidence
403 in admitting the modus operandi testimony, which was plainly relevant and did
not pose an undue risk either of jury confusion or unfair prejudice.
AFFIRMED.
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