United States v. Adriana Hernandez-Becerra ( 2016 )

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NOT FOR PUBLICATION FEB 25 2016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. 14-50257
Plaintiff - Appellee, D.C. No. 3:13-cr-02525-CAB-2
v.
MEMORANDUM*
ADRIANA HERNANDEZ-BECERRA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted February 2, 2016**
Pasadena, California
Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.
Andriana Hernandez-Becerra appeals her jury conviction for importing
drugs in violation of 21 U.S.C. §§ 952, 960, and 963. We have jurisdiction under
29 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. Hernandez-Becerra argues the evidence at trial was insufficient for the jury
to conclude she had either actual knowledge or deliberate ignorance of the drugs
she was convicted of importing. We review the sufficiency of evidence under a
two-step inquiry. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en
banc). First, we view the evidence “in the light most favorable to the prosecution.”
Id. Second, we “determine whether this evidence, so viewed, is adequate to allow
‘any rational trier of fact [to find] the essential elements of the crime beyond a
reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Viewing the conflicting evidence in the record in the light most favorable to
the prosecution, Hernandez-Becerra’s friend (“Sanchez-Mejia”) testified that she
and Hernandez-Becerra had on multiple occasions been paid by Sanchez-Mejia’s
boyfriend to cross the border from Mexico to the United States to retrieve drug
money. Sanchez-Mejia would drive, while Hernandez-Becerra would speak over
the phone with the boyfriend to get directions. Sanchez-Mejia also testified that she
knew drugs were hidden in the car and that she had told Hernandez-Becerra about
the drugs.
This evidence was adequate for any rational trier of fact to find that
Hernandez-Becerra had either actual knowledge or deliberate ignorance that drugs
were hidden in the car. Our inquiry “does not focus on whether the trier of fact
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made the correct guilt or innocence determination, but rather whether it made a
rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402
(1993). To be rational, the decision must be supported by more than a “mere
modicum” of evidence. Jackson, 443 U.S. at 320.
2. Hernandez-Becerra argues that the prosecutor committed prejudicial conduct
during closing argument:
a. At the beginning of closing argument, the prosecutor requested the
court’s permission to have Hernandez-Becerra stand. The court granted the request,
and the prosecutor asked Hernandez-Becerra to stand. She complied. The
prosecutor then proceeded to state, “Ladies and gentlemen, this lady is, in fact, a
drug smuggler. Not only that, she’s the perfect drug smuggler. You can have a
seat.” Hernandez-Becerra did not object. On appeal, Hernandez-Becerra argues
that the prosecutor’s request to have her stand, and the court’s granting of that
request, violated her Fifth Amendment right to not testify. When the defendant
does not object at trial, Fifth Amendment claims are reviewed for plain error.
United States v. Sehnal, 930 F.2d 1420, 1426 (9th Cir. 1991).“To obtain the
exceptional remedy of reversal in a criminal case on the basis of plain error there
‘must be a high probability that the error materially affected the verdict.’” Id.(quoting United States v. Bryan, 868 F.2d 1032, 1039 (9th Cir. 1989)).
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Hernandez-Becerra has failed to show that there was a high probability that the
district court’s actions materially affected the verdict.
b. The government concedes that the prosecutor misstated the evidence
during closing argument. Hernandez-Becerra properly objected and the district
court overruled the objection. When an objection is raised in trial court and
overruled, we review for abuse of discretion. United States v. Tucker, 641 F.3d
1110, 1120 (9th Cir. 2011). “An abuse of discretion is a plain error, discretion
exercised to an end not justified by the evidence, a judgment that is clearly against
the logic and effect of the facts as are found.” Rabkin v. Or. Health Scis. Univ., 350
F.3d 967, 977 (9th Cir. 2003) (quoting Int’l Jensen, Inc. v. Metrosound U.S.A.,
Inc., 819, 822 (9th Cir. 1993)). “[A] criminal conviction is not to be lightly
overturned on the basis of a prosecutor’s comments standing alone, for the
statements or conduct must be viewed in context; only by so doing can it be
determined whether the prosecutor’s conduct affected the fairness of the trial.”
United States v. Young, 470 U.S. 1, 11 (1985). When viewed in context, the district
court did not abuse its discretion in overruling Hernandez-Becerra’s objection to
the prosecutor’s misstatement of the evidence, because it did not affect the fairness
of the trial.
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c. At the end of its closing argument, the prosecutor told the jury that it
was their “duty to find the defendant guilty of these charges. The evidence shows
that she’s guilty.” Because Hernandez-Becerra did not object, we review for plain
error. United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011). Under United
States v. Gomez, a prosecutor’s “do your duty” argument is not improper if, when
“[r]ead in context, the prosecutor was arguing that, if the jury finds that the
prosecution has met its burden of proving the elements beyond a reasonable doubt,
then it is the jury’s duty to convict.” 725 F.3d 1121, 1131 (9th Cir. 2013). We find
that the district court did not plainly err, because (when read in context) the
prosecutor’s statement was made with respect to the burden of proof and satisfies
the Gomez standard.
AFFIRMED.
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