United States v. Desiree Acedo Garcia

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2023
• Docket: 22-10239
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10239

Plaintiff-Appellee, D.C. No. 4:20-cr-00248-JCH-DTF-3

v. MEMORANDUM* DESIREE DESTINY ACEDO GARCIA, AKA Desiree Destiny Acedo-Garcia,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona John C. Hinderaker, District Judge, Presiding

Argued and Submitted November 9, 2023 Phoenix, Arizona

Before: SCHROEDER, COLLINS, and DESAI, Circuit Judges.

Desiree Acedo Garcia was convicted of conspiracy to commit simple

possession under 21 U.S.C. § 846 and possession with the intent to distribute

fentanyl under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vi) for transporting

packages of pills containing fentanyl across the border from Mexico to the United

States. Ms. Garcia appeals the second count of her conviction. She contends that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. district court abused its discretion by granting the government’s motion in limine to

exclude post-arrest text messages that allegedly supported Ms. Garcia’s duress

defense and by denying her motion for a new trial.

We have jurisdiction under 28 U.S.C. § 1291 and review for an abuse of

discretion. United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011); United States

v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006). We affirm.

1. The district court did not abuse its discretion by granting the government’s

motion in limine to exclude post-arrest text messages. The evidence was properly

excluded on hearsay grounds. Fed. R. Evid. 802. But even assuming the evidence

was admissible, the district court’s exclusion of the post-arrest text messages was

harmless error because it is “more probable than not” that the exclusion “did not

materially affect the verdict.” United States v. Liera, 585 F.3d 1237, 1244 (9th Cir.

2009) (quoting United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).

2. The district court did not abuse its discretion by denying Ms. Garcia’s

motion for a new trial. A new trial is warranted only “in exceptional circumstances

in which the evidence weighs heavily against the verdict.” United States v. Del Toro-

Barboza, 673 F.3d 1136, 1153 (9th Cir. 2012). Here, the evidence does not weigh

heavily against the jury’s guilty verdict or its rejection of the duress defense.

Moreover, the evidence supports the jury’s guilty verdict on possession with the

intent to distribute fentanyl. The fact that the jury returned a guilty verdict for Ms.

2 Garcia, but not for her co-defendant, does not alone justify a new trial. See id.; see

also Harris v. Rivera, 454 U.S. 339, 346 (1981) (noting that inconsistent verdicts

between co-defendants at joint trial do not justify setting verdicts aside).

Therefore, the district court’s judgement is AFFIRMED.