United States v. Brito

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2025
• Docket: 24-3709
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-3709 D.C. No. Plaintiff - Appellee, 4:23-cr-02249-RM-MAA-1 v. MEMORANDUM* VICTOR SAMUEL BRITO,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding

Submitted May 16, 2025** Phoenix, Arizona

Before: RAWLINSON, BUMATAY, and SANCHEZ, Circuit Judges.

Victor Samuel Brito (Brito) appeals his conviction, after a jury trial, for

escape from custody in violation of 18 U.S.C. § 751(a) and 18 U.S.C. § 4082. We

affirm Brito’s conviction.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. Reviewing de novo, we conclude that the district court did not err in

precluding Brito from presenting a necessity defense at trial. See United States v.

Barnes, 895 F.3d 1194, 1199 (9th Cir. 2018). “A defendant is entitled to present

evidence on a necessity defense and have the jury instructed accordingly once he

has adequately established—through an offer of proof—that all four requisite

factors are met: (1) he was faced with a choice of evils and chose the lesser evil;

(2) he acted to prevent imminent harm; (3) he reasonably anticipated a causal

relation between his conduct and the harm to be avoided; and (4) there were no

other legal alternatives to violating the law.” Id. at 1204 (citation, footnote

reference, and internal quotation marks omitted).

Brito failed to sufficiently proffer that “there were no other legal alternatives

to” escaping from custody at a residential center to assist his girlfriend, who was

threatening to harm herself and their unborn child. Id. As the district court

correctly determined, Brito did not attempt to seek a welfare check, or contact his

girlfriend’s family or friends to aid his girlfriend in lieu of escaping from custody.

At trial, Brito acknowledged that he did not “call anybody” to assist his girlfriend.

Thus, Brito was not entitled to a necessity defense because he did not pursue “other

legal alternatives” prior to escaping from custody. Id.

2. The district court did not abuse its discretion in denying Brito’s motion

for a mistrial premised on prosecutorial misconduct. See United States v.

2 24-3709 Cardenas-Mendoza, 579 F.3d 1024, 1029 (9th Cir. 2009). Brito maintains that the

prosecutor engaged in misconduct when she impermissibly argued in rebuttal that

Brito failed to “present evidence of a necessity defense.” However, the prosecutor

appropriately responded to Brito’s closing argument implying that the government

failed to prove that Brito voluntarily decided not to return to the residential center.

The prosecutor did not otherwise maintain that Brito failed to present evidence of

necessity. See United States v. Shih, 73 F.4th 1077, 1099 (9th Cir. 2023)

(explaining that “[a] prosecutor may respond in rebuttal to an attack made in the

defendant’s closing argument”) (citation omitted).1

Even if the prosecutor’s rebuttal was improper, “[a] district court does not

abuse its discretion in denying a mistrial where the prosecutor’s improper

statement is not prejudicial.” Cardenas-Mendoza, 579 F.3d at 1030 (citation

omitted). Irrespective of the prosecutor’s rebuttal, the evidence was overwhelming

that Brito voluntarily decided not to return to the residential center, that Brito did

not seek any legal alternatives to assist his girlfriend, and that Brito’s arrest

occurred approximately one week after his escape from the residential center, after

his mother contacted the police because Brito started hallucinating due to drug use.

1 Brito’s reliance on United States v. Vavages, 151 F.3d 1185 (9th Cir. 1988) is misplaced. Unlike the prosecutor’s rebuttal to Brito’s closing argument, the prosecutor in that case “intimidated a witness into refusing to testify, then capitalized on his misconduct during his closing argument by emphasizing that witness’ failure to appear.” Id. at 1191.

3 24-3709 As a result, no mistrial was warranted. See Shih, 73 F.4th at 1099.

AFFIRMED.

4 24-3709