NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 1 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10022

Plaintiff-Appellee, D.C. No. 4:16-cr-01057-JGZ-LCK-1 v.

MARIA MARGARITA VALDEZ- MEMORANDUM*

ARAIZA, AKA Maria Margarita Valdez,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted June 14, 2019 San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District Judge.

Maria Margarita Valdez-Araiza appeals her conviction for knowingly

making a false statement in a passport application, in violation of 18 U.S.C.

§ 1542. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Valdez applied for a U.S. passport under the name “Maria Margarita

Valdez,” with a date of birth in 1956 and a place of birth in Nogales, Arizona. In

signing the application, Valdez “declare[d] under penalty of perjury” that she was

“a citizen or non-citizen national of the United States.” At the time she applied for

the passport, Valdez possessed a Mexican birth record, which stated that she was

born in 1957 in Mexico. This document was not included with her passport

application. After obtaining a U.S. passport, Valdez applied for a delayed birth

certificate from the State of Arizona, which denied the application after becoming

aware of Valdez’s Mexican birth record. The government subsequently revoked

Valdez’s passport, due to its discovery of the birth record.

After a grand jury indicted Valdez for violating § 1542, a first trial ended in

a hung jury and mistrial, and Valdez retained new counsel before retrial.

Following a four-day trial, the jury entered a guilty verdict.

1. As an initial matter, the parties dispute the proper standard of review for

Valdez’s expert testimony challenges. Federal Rule of Evidence 103 requires that

“if the opposing party violates the terms of [an] initial ruling, objection must be

made when the evidence is offered to preserve the claim of error for appeal.” Fed.

R. Evid. 103 advisory committee’s note to 2000 amendment. Because Valdez

failed to object during her second trial when the government introduced evidence

in violation of the district court’s in limine ruling from the first trial, her objections

2 were not preserved, and so we will review them for plain error.

2. The district court erroneously admitted certain evidence in Valdez’s second

trial. Anthony Jackson, an adjudications officer with U.S. Citizenship and

Immigration Services, testified that if he were presented with a hypothetical

individual with circumstances identical to Valdez’s, “[i]t would tell me that they

weren’t a U.S. citizen and that they were an alien.” Given that the jury was tasked

with determining whether Valdez was a U.S. citizen, Jackson was not permitted to

opine on this ultimate legal issue. See United States v. Morales, 108 F.3d 1031,

1038 (9th Cir. 1997) (en banc) (noting that an expert may not “draw the ultimate

inference or conclusion for the jury and the ultimate inference or conclusion [may]

not necessarily follow from the testimony”). That the question was couched as a

hypothetical does not change our conclusion. See United States v. Dela Cruz, 358

F.3d 623, 626 (9th Cir. 2004).

Similarly, Debbie Merced, a fraud prevention manager with the State

Department’s Western Passport Center, impermissibly offered opinion testimony

given that she was a fact witness and not noticed as an expert, see United States v.

Lloyd, 807 F.3d 1128, 1153–54 (9th Cir. 2015), and Robin Rodriguez, the

operations office chief and fraud manager of the Arizona Department of Health

Services, offered testimony regarding Valdez’s use of the passport that was

potentially prejudicial and of limited probative value, see Fed. R. Evid. 403;

3 United States v. Wells, 879 F.3d 900, 928–29 (9th Cir. 2018).

We conclude, however, that these errors did not “affect[] the outcome of the

district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). The

jury was instructed that it was free to accept or reject the experts’ opinion

testimonies, it heard other testimony that nonimmigrant visas of the sort Jackson

described are reserved for non-U.S. citizens, and Valdez’s Mexican birth record

was admitted as evidence, thus creating a reasonable foundation from which to

conclude that she was born in Mexico and not in the United States. Significantly,

Valdez herself chose to testify in her defense, offering evasive and confusing

responses to questions and, when asked by a juror if her father lied to procure her

Mexican birth record given her insistence that she was born in the United States,

replying, “No. He had no reason to lie.” See United States v. Kenny, 645 F.2d

1323, 1346 (9th Cir. 1981) (“When the defendant elects to testify, he runs the risk

that if disbelieved, the trier of fact may conclude that the opposite of his testimony

is the truth.”). Given the evidence presented at trial, Valdez’s own testimony in

particular, we conclude that improper admission of these testimonies did not

change the outcome of the trial.

3. The district court’s jury instructions did not improperly relieve the

government of its burden of proving that Valdez was not a U.S. citizen. Analyzing

the instructions as a whole, and considering the clarification provided by counsel in

4 their closing arguments, we conclude that the jury was sufficiently informed of the

proper burden and the availability of Valdez’s defense. See United States v.

Joetzki, 952 F.2d 1090, 1095 (9th Cir. 1991).

4. The district court did not abuse its discretion when it denied Valdez’s

motion for a mistrial. Although two of the government’s witnesses made passing

references to an “encounter” with an immigration agent and “immigration

apprehensions,” the district court reasonably determined, given that “[t]he

prejudicial value of the testimony was low” and “the reference was fleeting and the

context vague,” that the testimony did not “preclude[] the jury from impartially

reaching a verdict.” Additionally, although language in the district court’s order

indicates that the court might have articulated the wrong legal standard for

Valdez’s motion under Federal Rule of Criminal Procedure 29(c), any error was

harmless given that the court properly “weigh[ed] the evidence and in so doing

evaluate[d] for itself the credibility of the witnesses.” United States v. A. Lanoy

Alston, D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir. 1992) (quoting United States

v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).

5. We decline to address Valdez’s ineffective assistance of counsel arguments

on direct appeal. We lack a sufficiently developed record, and while Valdez has

clearly demonstrated her disagreement with defense counsel, and noted that

counsel in her first trial made different decisions, she has not pointed to any

5 “extraordinary circumstances” justifying review on direct appeal. United States v.

Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004).

6. Finally, although we have identified multiple errors in Valdez’s second trial,

we conclude, after “analyzing the overall effect of the errors in the context of the

evidence introduced at trial against the defendant,” United States v. Frederick, 78

F.3d 1370, 1381 (9th Cir. 1996), that the cumulative effect of these errors did not

deprive Valdez of a fair trial.

AFFIRMED.

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