United States v. Paulino Zavala-Garcia

FILED
NOT FOR PUBLICATION
APR 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50012
Plaintiff - Appellee, D.C. No. 3:14-cr-01858-L-1
v.
MEMORANDUM*
PAULINO ZAVALA-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Submitted April 5, 2016**
Pasadena, California
Before: SILVERMAN and GRABER, Circuit Judges, and EZRA,*** District
Judge.
A jury convicted Defendant Paulino Zavala-Garcia of knowingly importing
illegal drugs into the United States. The court sentenced him to 60 months of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
Western District of Texas, sitting by designation.
imprisonment. Defendant appeals his conviction and sentence. He argues that the
court failed to clarify ambiguous jury instructions, that the government’s closing
argument improperly raised propensity evidence and false inferences, that the jury
instructions failed to require the government to meet its burden of proving every
element of an offense, and that the court erred in imposing a 20-year statutory
maximum sentence. We affirm.
1. Defendant first claims that the court erred in its response to a jury
question asking whether the word "drugs" in the jury instructions referred literally
to drugs or whether the term could include contraband. We review for abuse of
discretion a district judge’s response to a question from the jury. United States v.
Romero-Avila, 210 F.3d 1017, 1024 (9th Cir. 2000). In response to the jury’s
question, the judge referred the jury back to the original instructions. The
instructions required that the government prove beyond a reasonable doubt that the
defendant knew that the substances he was bringing into the country "were
methamphetamine, cocaine, fentanyl or some other prohibited drug." The record,
therefore, shows that the judge answered the jury’s question; the response was not
an abuse of discretion.
2. Next, Defendant objects to the government’s statement in its closing
argument that the "defendant’s not a welder," but he did "cross a welding machine
2
on multiple occasions," as an improper attempt to use propensity evidence that
Defendant had smuggled drugs previously in a welding machine. At trial,
Defendant objected to the prosecutor’s remarks, though on different grounds. We
review for abuse of discretion a district court’s denial of an objection in closing
argument. United States v. Etsitty, 130 F.3d 420, 424 (9th Cir. 1997) (per curiam).
We review for plain error an objection not originally raised at trial. United States
v. French, 748 F.3d 922, 937 (9th Cir.), cert. denied, 135 S. Ct. 384 (2014). Under
either standard, we affirm. The disputed statement did not imply that Defendant
had previously smuggled drugs. In fact, in rebuttal, the government said that "[t]he
United States isn’t arguing that he has smuggled drugs before." In context, the
statement simply cast doubt on Defendant’s explanation for why he—who is not a
welder—was crossing the border with a welding machine on this occasion. The
district court’s ruling was neither an abuse of discretion nor plain error.
3. Defendant also challenges the jury instructions for failing to require the
jury to find that Defendant knew which specific drugs he was importing. We
review de novo alleged misstatements of law in jury instructions. United States v.
Cortes, 732 F.3d 1078, 1084 (9th Cir. 2013). We have recently held that "the
government need not prove that the defendant knew the precise type or quantity of
the drug he imported." United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir.
3
2015), cert. denied, 2016 WL 532846 (U.S. Mar. 21, 2016) (No. 15-8101). Such
knowledge is not an element of a drug-smuggling offense. Id. Under this
precedent, there was no error.
4. Finally, Defendant challenges the application of the statutory maximum
sentence because the jury instructions did not require the jury to find that
Defendant knew which type of drugs he was importing. We review de novo
challenges to the legality of a sentence. United States v. Tighe, 266 F.3d 1187,
1190 (9th Cir. 2001). Because knowledge of drug type is not an element of the
offense under which Defendant was convicted, Jefferson, 791 F.3d at 1015, failure
to include the knowledge of specific drug type in jury instructions does not affect
the legality of the sentence.
AFFIRMED.
4