United States v. Citlalli Flores

Citlalli Flores appeals her conviction and sentence for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. Although we find merit in her claims of prosecutorial misconduct, the misconduct does not rise to the level of plain error. Flores’s remaining claims of error lack merit. Accordingly, we affirm her conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of June 21, 2012, Flores was stopped by Customs and Border Protection (“CBP”) Officer Benjamin Brown as she entered the United States following a day trip to Tijuana, Mexico. When Flores handed Brown her driver’s license, her hands were shaking, and she looked back towards the rear passenger-side of her car several times. Brown became suspicious, inspected that area of the car, and found several packages of what turned out to be marijuana. CBP officers then searched the rest of Flores’s car, where they discovered 16.44 kilograms (36.24 pounds) of marijuana.

Flores was indicted on one count of importation of marijuana in violation of 21 *1033 U.S.C. §§ 952 and 960. 1 Flores’s first trial resulted in a hung jury. Upon retrial, a jury rendered a guilty verdict. The district judge…

dissenting:

I respectfully dissent. The Assistant U.S. Attorney violated the rules of permissible questioning and argument; forgot that our government’s interest “in a criminal prosecution is not that it shall win ..., but that justice shall be done,” Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935) (Sutherland, J.); and ignored Justice Sutherland’s admonition that a prosecutor “may strike hard blows, but not foul ones.” Id.

These serious violations do not warrant invocation of the plain error rule.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50027 Plaintiff-Appellee, D.C. No. v. 3:12-cr-03054-MMA-

CITLALLI FLORES,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Argued and Submitted December 8, 2014—Pasadena, California

Filed September 23, 2015

Before: Harry Pregerson, Kim McLane Wardlaw, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Wardlaw Dissent by Judge Pregerson SUMMARY*

Criminal Law

Affirming a conviction and sentence for importation of marijuana, the panel found merit in the defendant’s claims of prosecutorial misconduct, but held that the misconduct does not rise to the level of plain error.

The panel held that the government misstated the law by telling the jury it could convict the defendant based on her admission to carrying marijuana to Mexico on the date of her arrest, and misstated the defendant’s testimony thereby making an unsupported factual claim, but that the misstatements did not substantially…