United
States V. Flores, No. 14-50027 (12-23-15)(Wardlaw with
Berzon; dissent by Pregerson). The 9th
finds the prosecutor misstated the evidence, mischaracterized testimony, and
engaged in misconduct; nonetheless, the 9th affirmed the importation conviction
and sentence. The misconduct was not
egregious enough under a plain error standard, and in light of the overwhelming
weight of the evidence.
The defendant was charged with importation of marijuana. She was found with 36 pounds in her car. She argued that she was unaware of the marijuana--she had given her car to a car mechanic ("Juan") in Tijuana and it must have been hidden in the vehicle then. Unfortunately, for her, there were jail calls where she apologized to her family and asked that Facebook postings be deleted. The calls led the government to look closely at the postings, where there were references to "carrying" or "bringing" marijuana in. At trial, she argued that she was exporting marijuana from the U.S. to Mexico. This prompted the prosecutor to argue that she lied, that she was an admitted drug smuggler, and that she had brought drugs between countries and across borders.
The problem with that argument, and why it crossed the bounders of permissible, was that the testimony was for exportation. The answer may have been technically "yes," but the defendant was not charged with exportation but importation. The prosecutor played fast and loose with the testimony and was too clever. Moreover, the law was misstated as the prosecutor said the defendant could be convicted for carrying drugs to Mexico.
The 9th though held that the misconduct was harmless under plain error review. The evidence was overwhelming against the defendant; her defense was not credible, nor corroborated; and the court's jury instruction, read after argument, correctly stated the law.
The 9th also affirmed the denial of the motion to suppress, found no vouching, and upheld the obstruction enhancement.
Pregerson dissented, arguing that the misconduct was serious and warranted a reversal.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/23/14-50027.pdf
The defendant was charged with importation of marijuana. She was found with 36 pounds in her car. She argued that she was unaware of the marijuana--she had given her car to a car mechanic ("Juan") in Tijuana and it must have been hidden in the vehicle then. Unfortunately, for her, there were jail calls where she apologized to her family and asked that Facebook postings be deleted. The calls led the government to look closely at the postings, where there were references to "carrying" or "bringing" marijuana in. At trial, she argued that she was exporting marijuana from the U.S. to Mexico. This prompted the prosecutor to argue that she lied, that she was an admitted drug smuggler, and that she had brought drugs between countries and across borders.
The problem with that argument, and why it crossed the bounders of permissible, was that the testimony was for exportation. The answer may have been technically "yes," but the defendant was not charged with exportation but importation. The prosecutor played fast and loose with the testimony and was too clever. Moreover, the law was misstated as the prosecutor said the defendant could be convicted for carrying drugs to Mexico.
The 9th though held that the misconduct was harmless under plain error review. The evidence was overwhelming against the defendant; her defense was not credible, nor corroborated; and the court's jury instruction, read after argument, correctly stated the law.
The 9th also affirmed the denial of the motion to suppress, found no vouching, and upheld the obstruction enhancement.
Pregerson dissented, arguing that the misconduct was serious and warranted a reversal.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/23/14-50027.pdf
posted by Jon Sands at 9/23/2015 01:43:00 PM
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