United States v. Gabriel Suarez

FILED
NOT FOR PUBLICATION
MAR 15 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50025
Plaintiff - Appellee, D.C. No. 16-cr-583-MMA
v.
MEMORANDUM*
GABRIEL SUAREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted March 8, 2018**
Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,*** District Judge.
* 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).
*** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Gabriel Suarez appeals his conviction for importing methamphetamine in
violation of 21 U.S.C. §§ 952 and 960. He contends the prosecutor committed
misconduct by making knowingly false or misleading comments during rebuttal
closing argument. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. “[T]he trial judge has broad discretion in controlling closing argument,
and improprieties in counsel’s arguments to the jury do not constitute reversible error
unless they are so gross as probably to prejudice the defendant, and the prejudice has
not been neutralized by the trial judge.” United States v. Navarro, 608 F.3d 529,
535–36 (9th Cir. 2010) (internal quotation marks and citations omitted). When a
defendant objects at trial, we review a district court determination that there was no
prosecutorial misconduct for abuse of discretion, applying harmless error analysis.
United States v. Nobari, 574 F.3d 1065, 1073 (9th Cir. 2009). When a defendant does
not object at trial, we review for plain error. United States v. Geston, 299 F.3d 1130,
1134 (9th Cir. 2002).
Suarez objected to the prosecutor’s comments during rebuttal closing argument,
but on grounds of “burden shifting” and “facts not in evidence,” rather than “false or
misleading.” A party fails to preserve an objection for appeal “not only by failing to
1
Suarez also moves to supplement the record on appeal (Doc. 11). The
Motion is denied.
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make a specific objection, but also by making the wrong specific objection.” United
States v. Del Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir. 2012) (quoting United
States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)). For example, this Court
held a defendant failed to preserve an objection under similar circumstances, where
counsel objected on grounds of “vouching,” rather than “prosecutorial misconduct.”
Id. Accordingly, we review for plain error.
2. At trial, Suarez denied knowing that his rental car contained
methamphetamine when he attempted to cross the border from Mexico to the United
States. He argued in closing that he was “set up”—either by the Avis car rental
company in Bakersfield, or perhaps someone else—and suggested the company could
have used unknowing couriers. On rebuttal, the prosecutor criticized the defense for
attempting to reduce the case to “evil Avis,” observing that there was “not a shred of
evidence presented to you over the past two days that Avis Rent A Car is some drug
trafficking enterprise.” The prosecutor later argued that “nobody at Avis knew . . .
[Suarez] was going to Mexico,” and “even indulging this theory that someone at Avis
is an evil drug smuggler, they didn’t have any idea where he was going.”
Suarez contends these statements were false, or at least misleading, because an
FBI investigation identified two drug-trafficking organizations that rented cars from
the Bakersfield Avis with the assistance of an inside contact, an employee at the rental
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agency. Suarez appears to acknowledge that the prosecutor’s actual statements were
true: there was no evidence presented at trial that the Bakersfield Avis was a front for
a drug-trafficking organization, and there was evidence that Suarez concealed his
destination from the rental company.
Instead, Suarez argues the prosecutor invited the jury to infer that there was no
reason to believe the Bakersfield Avis had any connection whatsoever to drug
trafficking—an inference he claims was improper, in light of the FBI investigation.
But “a court should not lightly infer that a prosecutor intends an ambiguous remark
to have its most damaging meaning or that a jury, sitting through lengthy exhortation,
will draw that meaning from the plethora of less damaging interpretations.” Donnelly
v. DeChristoforo, 416 U.S. 637, 647 (1974); see also Williams v. Borg, 139 F.3d 737,
744 (9th Cir. 1998). Suarez’s conclusion is not the only possible—or even the most
logical—inference to draw from the prosecutor’s remarks, which were in direct
response to Suarez’s suggestion of a multi-participant drug-trafficking conspiracy
operating out of the Bakersfield Avis. Nothing about the prosecutor’s rebuttal
exceeded the “normal bounds of advocacy” or rendered the trial fundamentally unfair.
Del Toro-Barboza, 673 F.3d at 1152. There is no plain error.
AFFIRMED.
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