United States v. Gabriel Suarez

Opinion

FILED NOT FOR PUBLICATION MAR 15 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50025

Plaintiff - Appellee, D.C. No. 16-cr-583-MMA

v. MEMORANDUM* GABRIEL SUAREZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Submitted March 8, 2018** Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,*** District Judge.

* 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).

*** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Gabriel Suarez appeals his conviction for importing methamphetamine in

violation of 21 U.S.C. §§ 952 and 960. He contends the prosecutor committed

misconduct by making knowingly false or misleading comments during rebuttal

closing argument. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

1. “[T]he trial judge has broad discretion in controlling closing argument,

and improprieties in counsel’s arguments to the jury do not constitute reversible error

unless they are so gross as probably to prejudice the defendant, and the prejudice has

not been neutralized by the trial judge.” United States v. Navarro, 608 F.3d 529,

535–36 (9th Cir. 2010) (internal quotation marks and citations omitted). When a

defendant objects at trial, we review a district court determination that there was no

prosecutorial misconduct for abuse of discretion, applying harmless error analysis.

United States v. Nobari, 574 F.3d 1065, 1073 (9th Cir. 2009). When a defendant does

not object at trial, we review for plain error. United States v. Geston, 299 F.3d 1130,

1134 (9th Cir. 2002).

Suarez objected to the prosecutor’s comments during rebuttal closing argument,

but on grounds of “burden shifting” and “facts not in evidence,” rather than “false or

misleading.” A party fails to preserve an objection for appeal “not only by failing to

1 Suarez also moves to supplement the record on appeal (Doc. 11). The Motion is denied.

2 make a specific objection, but also by making the wrong specific objection.” United

States v. Del Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir. 2012) (quoting United

States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)). For example, this Court

held a defendant failed to preserve an objection under similar circumstances, where

counsel objected on grounds of “vouching,” rather than “prosecutorial misconduct.”

Id. Accordingly, we review for plain error.

2. At trial, Suarez denied knowing that his rental car contained

methamphetamine when he attempted to cross the border from Mexico to the United

States. He argued in closing that he was “set up”—either by the Avis car rental

company in Bakersfield, or perhaps someone else—and suggested the company could

have used unknowing couriers. On rebuttal, the prosecutor criticized the defense for

attempting to reduce the case to “evil Avis,” observing that there was “not a shred of

evidence presented to you over the past two days that Avis Rent A Car is some drug

trafficking enterprise.” The prosecutor later argued that “nobody at Avis knew . . .

[Suarez] was going to Mexico,” and “even indulging this theory that someone at Avis

is an evil drug smuggler, they didn’t have any idea where he was going.”

Suarez contends these statements were false, or at least misleading, because an

FBI investigation identified two drug-trafficking organizations that rented cars from

the Bakersfield Avis with the assistance of an inside contact, an employee at the rental

3 agency. Suarez appears to acknowledge that the prosecutor’s actual statements were

true: there was no evidence presented at trial that the Bakersfield Avis was a front for

a drug-trafficking organization, and there was evidence that Suarez concealed his

destination from the rental company.

Instead, Suarez argues the prosecutor invited the jury to infer that there was no

reason to believe the Bakersfield Avis had any connection whatsoever to drug

trafficking—an inference he claims was improper, in light of the FBI investigation.

But “a court should not lightly infer that a prosecutor intends an ambiguous remark

to have its most damaging meaning or that a jury, sitting through lengthy exhortation,

will draw that meaning from the plethora of less damaging interpretations.” Donnelly

v. DeChristoforo, 416 U.S. 637, 647 (1974); see also Williams v. Borg, 139 F.3d 737,

744 (9th Cir. 1998). Suarez’s conclusion is not the only possible—or even the most

logical—inference to draw from the prosecutor’s remarks, which were in direct

response to Suarez’s suggestion of a multi-participant drug-trafficking conspiracy

operating out of the Bakersfield Avis. Nothing about the prosecutor’s rebuttal

exceeded the “normal bounds of advocacy” or rendered the trial fundamentally unfair.

Del Toro-Barboza, 673 F.3d at 1152. There is no plain error.

AFFIRMED.