FILED

NOT FOR PUBLICATION FEB 25 2016

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50555

Plaintiff - Appellee, D.C. No. 2:08-cr-00713-DSF-58

v.

MEMORANDUM*

RICARDO RUBIO-GARCIA,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted January 8, 2016 Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,** Senior District Judge.

1. Sufficient evidence supports Ricardo Rubio-Garcia’s conviction for

possession of cocaine with intent to distribute. Viewed in the light most favorable

to the government, see United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable J. Frederick Motz, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation. Page 2 of 7 (en banc), the evidence showed that Rubio gave directions to a Mexican drug

supplier that were to be relayed to a drug courier. Rubio then met the courier at a

prearranged location, briefly spoke with him, and got in the passenger seat of the

courier’s vehicle. Rubio directed the courier—whose vehicle was transporting ten

kilograms of cocaine hidden away in secret compartments—to a stash house where

the drugs could be removed. The jury also heard expert testimony that drug

trafficking organizations typically do not entrust individuals unfamiliar with the

details of the criminal enterprise with the location of a stash house, given the high

value of the narcotics stored there. A reasonable jury could infer from this

evidence “that [Rubio] associated with the criminal venture, participated in it, and

sought, by his actions, to make it a success.” United States v. Boykin, 785 F.3d

1352, 1359 (9th Cir. 2015). No more was required to convict Rubio under an

aiding-and-abetting theory, for which the government argued and on which the

jury was instructed. See id.

2. Sufficient evidence supports Rubio’s conspiracy conviction as well. The

above-narrated evidence amply demonstrated that Rubio agreed with at least the

supplier and the courier to participate in a drug deal and that he intended to aid in

its accomplishment. See United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th

Cir. 1997). The evidence also showed that the vehicle Rubio was directing drove Page 3 of 7 in a pattern consistent with counter-surveillance activities, which “qualify as acts in

furtherance of a conspiracy.” United States v. Penagos, 823 F.2d 346, 348 (9th

Cir. 1987).

It is immaterial whether the evidence showed that Rubio was aware of the

entirety of the broader drug conspiracy charged in the indictment. There was no

constructive amendment, since the proof at trial was narrower than the charges in

the indictment. See United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012).

And any variance from the charged conspiracy was not prejudicial. See United

States v. Morse, 785 F.2d 771, 775 (9th Cir. 1986). First, this was not a case in

which the evidence suggested the existence of two temporally separate

conspiracies, which might cast doubt on the jury’s unanimity. See United States v.

Echeverry, 698 F.2d 375, 377 (9th Cir. 1983) (per curiam). Second, as even Rubio

concedes, the defense was not unprepared for the evidence at trial. And third, any

risk of prejudicial spillover from evidence irrelevant to the narrower conspiracy

was slight. Unlike in Kotteakos v. United States, 328 U.S. 750 (1946), Rubio was

tried alone, and the jury was not instructed on transference of guilt among co-

conspirators. See United States v. Duran, 189 F.3d 1071, 1082–83 (9th Cir. 1999).

3. The district court did not plainly err in admitting improper opinion

testimony. The case agent in charge of the investigation into the broader drug Page 4 of 7 conspiracy testified as to his interpretation of various intercepted phone calls

involving the supplier, the courier, Rubio, and others; he also testified regarding

his perceptions of Rubio’s activities on the day of the drug deal. That he reviewed

translations of the intercepted conversations and did not listen to the calls in real

time does not mean that his testimony lacked proper foundation. He relied on his

ample “knowledge and investigation in this case” in forming his opinions, which is

all that is required in this context. See United States v. Torralba-Mendia, 784 F.3d

652, 660–61 (9th Cir. 2015). In addition, the vast majority of the case agent’s

opinion testimony was helpful to the jury and not based on expert knowledge. See

id.

However, not all of the case agent’s testimony was properly admitted. The

case agent explained the meaning of a few words and phrases that were well within

the common understanding of the jurors, and thus not helpful under Federal Rule

of Evidence 701. See United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007).

He also initially based his opinion that Rubio was directing the load vehicle to a

stash house on his “training and experience,” and he provided some testimony on

what is “typical” of drug deals. Each of these opinions fell outside the bounds of

proper lay opinion. See Fed. R. Evid. 701, 702; Torralba-Mendia, 784 F.3d at 660. Page 5 of 7 But Rubio cannot show that any of these errors violated his substantial

rights. The case agent’s testimony about what drug deals typically entail merely

duplicated what the government’s expert had already said, so any impact the error

had on the jury was limited. See United States v. Vera, 770 F.3d 1232, 1240 (9th

Cir. 2014). And the government corrected the case agent’s improper testimony

about Rubio’s role in the car immediately after it was introduced. Defense counsel

objected on foundation grounds, which led the prosecution to elicit testimony

about Rubio’s role in the load vehicle that was clearly based on the case agent’s

personal work on the case.

4. The district court’s failure to instruct the jury on the distinction between

the case agent’s lay testimony and his expert testimony did not rise to the level of

plain error. See Torralba-Mendia, 784 F.3d at 658–59. The case agent was not

qualified as an expert and, as explained above, nearly all of his testimony was well

within the bounds of proper lay opinion testimony. Any possible confusion and

prejudice were therefore limited, since the jury was not aware of the case agent’s

dual roles. See Vera, 770 F.3d at 1242.

5. The district court did not plainly err in admitting expert testimony about

the structure of drug organizations. Rubio was charged with conspiracy to

distribute and possess cocaine. The expert testimony in question was relevant to Page 6 of 7 the jury’s determination of whether a conspiracy existed and whether Rubio

knowingly participated in it. See Torralba-Mendia, 784 F.3d at 662–63; United

States v. Valencia-Amezcua, 278 F.3d 901, 908–09 (9th Cir. 2002).

6. The government’s introduction of expert testimony that drug trafficking

organizations do not use so-called “blind mules” does not necessitate reversal.

Whether or not some drug cartels do in fact use couriers who are unaware that they

are transporting drugs is irrelevant in this case, since Rubio was not a drug

courier.1 Viewed in the light most favorable to the government, the evidence

showed that Rubio knew the location of the stash house, which the jury was told is

a crucial and highly guarded piece of information within drug conspiracies. Rubio

has come forward with nothing to impugn the veracity of the expert’s testimony

that drug organizations typically do not entrust individuals unfamiliar with the

details of the criminal enterprise with the location of their stash houses. He thus

cannot satisfy the requirements of plain error review. See United States v. Sanchez,

659 F.3d 1252, 1257 (9th Cir. 2011).

1 Per Rubio’s unopposed request, this court takes judicial notice of the complaint in United States v. Chavez, Case No. 11-3330-G (W.D. Tex. 2011), in which the United States charged a defendant with conspiring with a drug trafficking organization (separate from the one at issue here) that made widespread use of blind mules. Page 7 of 7 7. The prosecution’s misconduct in questioning the sole defense witness

does not provide a basis for reversal. All of the calls about which the witness

testified were admitted into evidence, which allowed the jury to independently

evaluate the voices at issue. And even Rubio acknowledges that the

witness—whose voice-identification testimony was riddled with errors—“did not

offer the most compelling testimony on [his] behalf.”

8. Reversal is not required on account of cumulative error. See Parle v.

Runnels, 505 F.3d 922, 927 (9th Cir. 2007). The few errors at trial fall short of

fatally undermining the government’s case, as the evidence more than sufficed to

demonstrate Rubio’s guilt on both counts.

AFFIRMED.

United States v. Rubio-Garcia, No. 14-50555 FILED

FEB 25 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FRIEDLAND, Circuit Judge, dissenting:

Multiple evidentiary errors and instances of prosecutorial misconduct

marred Rubio’s trial. Because I believe that the cumulative effect of these

mistakes rendered the verdicts entirely unreliable, I would reverse both convictions

and remand for a new trial.1

First, in my view, there can be no question that the conspiracy the

Government sought to prove at trial varied from that with which Rubio was

charged. The Grand Jury in this case returned an indictment charging thirty co-

defendants, including Rubio, with participating in a single, wide-ranging

conspiracy run by the Sendis-Ramirez organization to traffic cocaine and other

narcotics from Mexico into the United States spanning the period from May 2007

through November 2012. But because the district court failed to read or describe

the indictment, and instead only informed the jury that Rubio was charged with

conspiring to distribute cocaine, the jury was not “fairly apprised of the nature of

[this] charge[].” Robles v. United States, 279 F.2d 401, 403-04 (9th Cir. 1960).

1 Although I believe the errors at trial should require us to reverse the convictions, I would hold that sufficient evidence was presented to permit a retrial. Cf. United States v. Bibbero, 749 F.2d 581, 586 (9th Cir. 1984) (explaining that the Double Jeopardy Clause precludes retrial when a conviction is reversed for insufficient evidence). 1 Likewise, in a departure from our model jury instruction, see Ninth Cir. Model

Crim. Jury Instruction 9.19 (2015), the district court’s instruction on the conspiracy

charge did not state the timeframe of the alleged conspiracy but instead allowed the

jury to convict Rubio if it found that he joined any agreement between two or more

persons to distribute cocaine. Given that the argument and evidence at trial

focused almost entirely on the single transaction in which Rubio was allegedly

involved, it seems clear that the jury convicted Rubio of a much narrower

conspiracy than that charged—one limited to an agreement among perhaps four

people to distribute a single load of cocaine on a single occasion. See United

States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012) (providing that a variance

occurs when “the evidence offered at trial proves facts materially different from

those alleged in the indictment” (quoting United States v. Hartz, 458 F.3d 1011,

1020 (9th Cir. 2006))).

The majority finds that no prejudice attached to this variance. I disagree.

The defense came to trial prepared to convince the jury that “the government never

connected [Rubio] to the larger Sendis Ramirez organization.” This strategy was

rendered irrelevant by the variance because it was not responsive to the theory that

Rubio conspired to carry out the single transaction. Further, the confusion about

the scope of the conspiracy at issue permitted evidence about the Sendis-Ramirez

organization and drug deals in which Rubio had no alleged involvement to spill

2 into his trial. Once admitted without even a limiting instruction, this largely

irrelevant evidence created a danger that the jury would unfairly impute to Rubio

guilt attributable to members of the Sendis-Ramirez organization.

As the majority concedes, this was not the only flaw in Rubio’s trial. There

also was the admission of improper lay and putative expert testimony by the case

agent without a dual-role instruction, which created the risk that the jury would

give the officer’s lay opinions unmerited credibility. See United States v.

Freeman, 498 F.3d 893, 903-04 (9th Cir. 2007). And there was the undisputed

prosecutorial misconduct during cross-examination of the sole defense witness—

when the prosecutor was permitted, over defense objections, to repeatedly invoke

hearsay conversations with other prosecutors to impeach the witness’s résumé.

Even more problematically, there was the admission of false testimony by

the Government’s “drug expert,” that drug trafficking organizations do not use

unknowing couriers, or “blind mules,” despite this court’s repeated admonition

against such testimony’s introduction. See United States v. Flores, 510 F. App’x

594, 595 (9th Cir. 2013) (unpublished); United States v. Venagas-Reynoso, 524 F.

App’x 373, 377 (9th Cir. 2013) (unpublished). The use of knowingly false

testimony to obtain a criminal conviction contravenes due process and can be

cause for reversal. Napue v. Illinois, 360 U.S. 264, 269 (1959); see United States

v. Houston, 648 F.3d 806, 814 (9th Cir. 2011).

3 The majority contends that the introduction of the blind mule testimony was

not material to Rubio’s conviction because Rubio was not himself a drug courier.

Respectfully, I believe the majority misapprehends the way the Government used

the testimony at trial. The Government elicited the testimony to support the

inference that drug trafficking organizations never employ unknowing participants

in their transactions and thereby to undercut Rubio’s theory of defense that he was

an unwitting participant in the drug deal at issue. Indeed, the prosecution explicitly

asked the jury to draw this very inference during its closing remarks when it told

them that Rubio’s defense was directly contradicted by the special agent’s expert

testimony that drug trafficking organizations do not use individuals “who [do not]

know that a drug deal is going on.” The Government’s evidence and argument that

drug organizations do not use unwitting persons in their drug deals went directly to

Rubio’s mental state and therefore to an essential element of the crimes charged.

There can be little confidence in a verdict obtained in this manner. See Hayes v.

Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc) (explaining that the materiality

standard contemplates “not whether the defendant would more likely than not have

received a different verdict . . . , but whether . . . he received a fair trial, understood

4 as a trial resulting in a verdict worthy of confidence” (quoting Hall v. Dir. of Corr.,

343 F.3d 976, 983-84 (9th Cir. 2003) (per curiam))).2

Together these errors unfairly prejudiced Rubio by “render[ing] [his]

defense ‘far less persuasive than it might have been.’” Parle v. Runnels, 505 F.3d

922, 934 (9th Cir. 2007) (quoting Chambers v. Mississippi, 410 U.S. 284, 294

(1973)); see United States v. Wallace, 848 F.2d 1464, 1476 n.21 (9th Cir. 1988)

(determining that error not objected to at trial may be aggregated together with

preserved errors in cumulative error analysis). The deleterious effect of

cumulative error is particularly severe here given the weakness of the

Government’s case, which was built on Rubio’s participation in a single phone call

in which no mention of drugs was made and the short period of time he spent in the

passenger seat of the load car. See United States v. Frederick, 78 F.3d 1370, 1381

(9th Cir. 1996) (“[W]here the government’s case is weak, a defendant is more

likely to be prejudiced by the effect of cumulative errors.”). Because I have no

2 I also reject the Government’s specious argument that the testimony was not actually false because the case agent premised the statements as being based on his personal experience. As the jury was repeatedly told, the case agent testified as an expert on drug trafficking, not based on his percipient observations. Further, the implication of the Government’s argument is that the prosecution could overcome Napue in almost every case by asking an expert to qualify false testimony as being based on his or her experience. I decline to endorse an outcome that would create such an end run around the Napue bar. Testimony that is “so misleading as to amount to falsity,” United States v. Vozzella, 124 F.3d 389, 390 (2d Cir. 1997), deserves no place in a criminal trial. 5 confidence in the process through which the jury reached its verdicts, I would

reverse to permit Rubio to confront the Government’s case on a fair playing field.

6