NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50084

Plaintiff-Appellee, D.C. No. 8:16-cr-00026-JVS-1 v.

ANTONINO ESTRADA PARTIDA, Jr., MEMORANDUM* AKA Junior,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 18-50136

Plaintiff-Appellee, D.C. No. 8:16-cr-00026-JVS-2 v.

DELIA MARIA PARTIDA, AKA Delia Marie Partida, AKA Delia Marie Venegas, AKA Delia Marie Zaragoza,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted December 10, 2020**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Pasadena, California

Before: O’SCANNLAIN and OWENS, Circuit Judges, and KENNELLY,*** District Judge.

Antonino Estrada Partida, Jr. (“Antonino”) and Delia Maria Partida

(“Delia”) appeal their convictions by a jury for conspiracy to distribute

methamphetamine in violation of 21 U.S.C. § 846, and, as to Antonino, for

distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(viii). We affirm the defendants’ convictions but remand to the district

court to modify three of the defendants’ supervised release conditions.

Antonino argues that the district court abused its discretion by permitting the

government to introduce highly prejudicial gang testimony at trial without properly

weighing its probative value and unfairly prejudicial effect under Federal Rule of

Evidence 403. We review the district court’s ruling that Delia opened the door to

the otherwise inadmissible testimony and its decision to admit the evidence over

Antonino’s Rule 403 objections for abuse of discretion. United States v. Curtin,

489 F.3d 935, 943 (9th Cir. 2007) (en banc); see also United States v. Wells, 879

F.3d 900, 924 (9th Cir. 2018) (explaining that “the demands of Rule 403” are

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation.

2 satisfied if we can “easily find that the lower court implicitly balanced the

probative value against the prejudicial effect” (internal quotation marks and

citations omitted)).

Delia “introduc[ed] potentially misleading testimony” and created a “false

impression” during cross-examination of a government witness by eliciting

testimony that suggested there was law enforcement overkill in the investigation

that led to the defendants’ arrests for drug dealing. See United States v. Beltran-

Rios, 878 F.2d 1208, 1212 (9th Cir. 1989); see also United States v. Segall, 833

F.2d 144, 148 (9th Cir. 1987). To rebut this inference, the government elicited on

redirect testimony that the investigation involved significant law enforcement

resources because the police were targeting coordinated gang activity in the

defendants’ neighborhood. See Beltran-Rios, 878 F.2d at 1212 (determining that

the district court did not abuse its discretion when it “concluded that the

Government should have an opportunity to rebut the inference that defense counsel

was trying to raise”). The district court did not abuse its discretion when it

admitted limited testimony along these lines, and it adequately considered and

addressed Antonino’s Rule 403 objections to minimize unfair prejudice. See

Wells, 879 F.3d at 924.

The defendants also argue that the prosecutor committed misconduct during

the rebuttal argument by vouching for certain witnesses’ credibility, trivializing the

3 “reasonable doubt” standard of proof, and disparaging the defense counsel and the

defense’s tactics—all of which, the defendants contend, violated their right to a fair

trial.

“A criminal conviction will not be overturned on the basis of a prosecutor’s

comments unless in context they affected the fundamental fairness of the trial.”

United States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir. 2012). Because

the defendants did not object during the government’s argument, we review for

plain error and may reverse only if “there is (1) an error (2) that is plain and (3)

that affects substantial rights.” Id. at 1146.

The defendants’ argument that the prosecutor committed improper vouching

is unavailing. During closing argument, defense counsel argued that the

government’s witnesses were lying and biased and had ulterior motives, which

prompted a “direct response to defense counsel’s express statements to the jury

that government witnesses were lying.” See United States v. Wilkes, 662 F.3d

524, 540 (9th Cir. 2011). As in Wilkes, “the prosecutor here merely argued that its

witnesses were telling the truth; an argument the prosecutor had to make in order

to convict [the defendants].” See id. (internal quotation marks and citations

omitted).

The defendants’ other arguments regarding prosecutorial misconduct during

rebuttal also lack merit and do not give rise to plain error. In many instances, we

4 have rejected claims of misconduct similar to those that the defendants assert in

this case. See, e.g., United States v. Rude, 88 F.3d 1538, 1547-48 (9th Cir. 1996)

(rejecting the argument that “the prosecutor’s opening statement was peppered

with inflammatory jingles” that “persisted throughout the trial, including the

prosecution’s statements in closing arguments”); see also Williams v. Borg, 139

F.3d 737, 745 (9th Cir. 1998) (“A lawyer is entitled to characterize an argument

with an epithet as well as a rebuttal.”). “Prosecutors have considerable leeway to

strike ‘hard blows’ based on the evidence and all reasonable inferences from the

evidence.” United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000).

Because plain error is lacking, reversal is unwarranted.

Finally, the parties agree that we should remand with instructions to correct

three supervised release conditions which, after the defendants in this case were

sentenced, were invalidated by United States v. Evans, 883 F.3d 1154 (9th Cir.

2018). We held in Evans that three “standard” conditions of supervised release—

(1) to “meet . . . family responsibilities,” (2) to “work regularly,” and (3) to “notify

third parties of risks that may be occasioned by [the defendant’s] criminal record or

personal history or characteristics”—are unconstitutionally vague. Id. at 1162-64.

Accordingly, we remand to the district court to modify these supervised release

conditions.

For the foregoing reasons, we AFFIRM the defendants’ convictions, but

5 REMAND to the district court to modify three of the supervised release conditions

it imposed on the defendants.

6