United States v. Selene Lugo

MEMORANDUM

Selene Lugo appeals her conviction for importing methamphetamine in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291 . Reviewing for plain error, United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir.2011), we reverse and remand.

Lugo argues that the prosecutor made a number of improper arguments during closing and rebuttal arguments. We agree. First, the prosecutor not only-argued facts that were not in evidence, he used the Treasury Enforcement Communications System (“TECS”) records of Lugo’s prior border crossings as propensity evidence after assuring the district court in pretrial proceedings that the evidence was offered to prove dominion and control by the defendant over the car. Despite the fact that there was no evidence that Lugo ever smuggled drugs on any prior occasion, the prosecutor repeatedly and extensively argued that the vehicle’s prior crossings show that Lugo had smuggled drugs before. For example, the prosecutor argued that “runfning] drugs across the border” was “her thing,” and “she was down for it” whenever the drug traffickers “needed somebody to bring a load across,” that she was not nervous because she had…