NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-1547
Plaintiff-Appellee, D.C. No. 3:21-cr-03308-JO-1 v.
MARIO ONESIMO GONZALEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Jinsook Ohta, District Judge, Presiding
Argued and Submitted December 3, 2024 Pasadena, California
Before: SANCHEZ and DE ALBA, Circuit Judges, and ZIPPS,** Chief District Judge.
Appellant Mario Onesimo Gonzalez appeals his jury conviction for
importation of methamphetamine and fentanyl in violation of 21 U.S.C. §§ 952 and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer G. Zipps, Chief United States District Judge for the District of Arizona, sitting by designation.
1 960. Gonzalez argues four prejudicial errors warrant reversal. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. The government’s removal of a GPS device, microphone, and relay,
before documenting how those objects connected to each other and to other parts
of the vehicle, did not violate Gonzalez’s due process rights under California v.
Trombetta, 467 U.S. 479, 489 (1984). The failure to preserve potentially
exculpatory evidence can result in reversal where (1) “the government acted in bad
faith”; and (2) “the missing evidence is ‘of such a nature that the defendant would
be unable to obtain comparable evidence by other reasonably available means.’”
United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013) (quoting Trombetta,
467 U.S. at 489). Gonzalez has the burden of proof as to each element. United
States v. Zaragoza-Moreira, 780 F.3d 971, 977, 981 (9th Cir. 2015).
2. Because Gonzalez did not present his due process challenge to the
district court, we review for plain error. See United States v. Yijun Zhou, 838 F.3d
1007, 1010 (9th Cir. 2016). Plain error is (1) error, (2) that is plain, (3) that affects
the defendant’s substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id. at 1012. Gonzalez
fails to demonstrate plain error.
3. The record is devoid of evidence showing that agents acted in bad
faith, i.e., with awareness that the way in which the GPS was hardwired into the
2 van had exculpatory value. See United States v. Cooper, 983 F.2d 928, 931 (9th
Cir. 1993) (“The presence or absence of bad faith turns on the government’s
knowledge of the apparent exculpatory value of the evidence at the time it was lost
or destroyed.”). Gonzalez also fails to show that he was unable to obtain
comparable evidence by reasonably available means. In the 11 months between the
discovery of the GPS and the second trial, he never attempted to examine the GPS
or determine how it connected to other parts of the van.
4. The district court did not err when it admitted HSI Special Agent
Jamisha Johnson’s testimony regarding the value of the seized drugs. We review
the district court’s ruling on the admissibility of expert testimony for an abuse of
discretion. United States v. Valencia-Lopez, 971 F.3d 891, 897 (9th Cir. 2020).
Because Gonzalez failed to object to the admission of the testimony on
Confrontation Clause grounds, we review that claim for plain error. United States
v. Macias, 789 F.3d 1011, 1017 (9th Cir. 2015).
5. The district court did not abuse its discretion when it admitted
Johnson’s testimony. “The inquiry envisioned by Rule 702 is . . . a flexible one,”
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594 (1993), and district
courts have broad latitude to decide both how to test an expert’s reliability and
whether an expert’s testimony is reliable, United States v. Ruvalcaba-Garcia, 923
F.3d 1183, 1189 (9th Cir. 2019) (citations omitted). The district court properly
3 exercised its gatekeeping role under Federal Rule of Evidence 702. The court held
a Daubert hearing and made explicit and detailed reliability findings, which are
sufficiently supported by the record. Johnson had 15 years of experience in drug
investigations, and she testified to the reliability of the price list based on the
manner in which data is gathered and put to use in drug investigations.
6. Johnson’s testimony regarding value did not violate the Confrontation
Clause because her testimony involved some independent judgment. See United
States v. Vera, 770 F.3d 1232, 1237 (9th Cir. 2014) (explaining that a
Confrontation Clause violation occurs if the expert is used as a conduit for
testimonial hearsay but not when the expert applies her training and experience to
the sources before her and reaches an independent judgment); United States v.
Gomez, 725 F.3d 1121, 1130 (9th Cir. 2013) (holding that an expert’s testimony
requires only “some level of independent judgment” to satisfy plain error review).
Johnson considered the reasonableness of the price list in light of her 15 years of
experience in undercover drug operations, conferred with other value experts and
agents involved in similar operations, and deducted 10% of the total weight of
methamphetamine to account for packaging, an amount she based on her
experience and conversations with other drug investigators.
7. The district court did not abuse its discretion in refusing to allow
Gonzalez to cross-examine Officer del Rio about his failure to mention the smell of
4 gasoline during the first trial. We review challenges to a trial court’s restrictions on
the manner or scope of cross-examination on nonconstitutional grounds for an
abuse of discretion. United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007)
(en banc). Whether the trial court identified the correct legal rule to apply is
reviewed de novo. United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.
2009) (en banc).
8. The district court stated and applied the correct legal standard. See
Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (noting that a witness’s omission is
treated as a prior inconsistent statement if the witness fails “to state a fact in
circumstances in which that fact naturally would have been asserted”). The district
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-1547
Plaintiff-Appellee, D.C. No. 3:21-cr-03308-JO-1 v.
MARIO ONESIMO GONZALEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Jinsook Ohta, District Judge, Presiding
Argued and Submitted December 3, 2024 Pasadena, California
Before: SANCHEZ and DE ALBA, Circuit Judges, and ZIPPS,** Chief District Judge.
Appellant Mario Onesimo Gonzalez appeals his jury conviction for
importation of methamphetamine and fentanyl in violation of 21 U.S.C. §§ 952 and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer G. Zipps, Chief United States District Judge for the District of Arizona, sitting by designation.
1 960. Gonzalez argues four prejudicial errors warrant reversal. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. The government’s removal of a GPS device, microphone, and relay,
before documenting how those objects connected to each other and to other parts
of the vehicle, did not violate Gonzalez’s due process rights under California v.
Trombetta, 467 U.S. 479, 489 (1984). The failure to preserve potentially
exculpatory evidence can result in reversal where (1) “the government acted in bad
faith”; and (2) “the missing evidence is ‘of such a nature that the defendant would
be unable to obtain comparable evidence by other reasonably available means.’”
United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013) (quoting Trombetta,
467 U.S. at 489). Gonzalez has the burden of proof as to each element. United
States v. Zaragoza-Moreira, 780 F.3d 971, 977, 981 (9th Cir. 2015).
2. Because Gonzalez did not present his due process challenge to the
district court, we review for plain error. See United States v. Yijun Zhou, 838 F.3d
1007, 1010 (9th Cir. 2016). Plain error is (1) error, (2) that is plain, (3) that affects
the defendant’s substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id. at 1012. Gonzalez
fails to demonstrate plain error.
3. The record is devoid of evidence showing that agents acted in bad
faith, i.e., with awareness that the way in which the GPS was hardwired into the
2 van had exculpatory value. See United States v. Cooper, 983 F.2d 928, 931 (9th
Cir. 1993) (“The presence or absence of bad faith turns on the government’s
knowledge of the apparent exculpatory value of the evidence at the time it was lost
or destroyed.”). Gonzalez also fails to show that he was unable to obtain
comparable evidence by reasonably available means. In the 11 months between the
discovery of the GPS and the second trial, he never attempted to examine the GPS
or determine how it connected to other parts of the van.
4. The district court did not err when it admitted HSI Special Agent
Jamisha Johnson’s testimony regarding the value of the seized drugs. We review
the district court’s ruling on the admissibility of expert testimony for an abuse of
discretion. United States v. Valencia-Lopez, 971 F.3d 891, 897 (9th Cir. 2020).
Because Gonzalez failed to object to the admission of the testimony on
Confrontation Clause grounds, we review that claim for plain error. United States
v. Macias, 789 F.3d 1011, 1017 (9th Cir. 2015).
5. The district court did not abuse its discretion when it admitted
Johnson’s testimony. “The inquiry envisioned by Rule 702 is . . . a flexible one,”
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594 (1993), and district
courts have broad latitude to decide both how to test an expert’s reliability and
whether an expert’s testimony is reliable, United States v. Ruvalcaba-Garcia, 923
F.3d 1183, 1189 (9th Cir. 2019) (citations omitted). The district court properly
3 exercised its gatekeeping role under Federal Rule of Evidence 702. The court held
a Daubert hearing and made explicit and detailed reliability findings, which are
sufficiently supported by the record. Johnson had 15 years of experience in drug
investigations, and she testified to the reliability of the price list based on the
manner in which data is gathered and put to use in drug investigations.
6. Johnson’s testimony regarding value did not violate the Confrontation
Clause because her testimony involved some independent judgment. See United
States v. Vera, 770 F.3d 1232, 1237 (9th Cir. 2014) (explaining that a
Confrontation Clause violation occurs if the expert is used as a conduit for
testimonial hearsay but not when the expert applies her training and experience to
the sources before her and reaches an independent judgment); United States v.
Gomez, 725 F.3d 1121, 1130 (9th Cir. 2013) (holding that an expert’s testimony
requires only “some level of independent judgment” to satisfy plain error review).
Johnson considered the reasonableness of the price list in light of her 15 years of
experience in undercover drug operations, conferred with other value experts and
agents involved in similar operations, and deducted 10% of the total weight of
methamphetamine to account for packaging, an amount she based on her
experience and conversations with other drug investigators.
7. The district court did not abuse its discretion in refusing to allow
Gonzalez to cross-examine Officer del Rio about his failure to mention the smell of
4 gasoline during the first trial. We review challenges to a trial court’s restrictions on
the manner or scope of cross-examination on nonconstitutional grounds for an
abuse of discretion. United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007)
(en banc). Whether the trial court identified the correct legal rule to apply is
reviewed de novo. United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.
2009) (en banc).
8. The district court stated and applied the correct legal standard. See
Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (noting that a witness’s omission is
treated as a prior inconsistent statement if the witness fails “to state a fact in
circumstances in which that fact naturally would have been asserted”). The district
court did not abuse its discretion in concluding that Officer del Rio would not
naturally have mentioned the smell of gasoline in response to the questions he was
asked during the first trial.
9. The prosecutor did not commit misconduct in closing argument by
expressing personal opinions about Gonzalez’s guilt, shifting the burden of proof,
or misstating the evidence. “The 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. Tucker, 641 F.3d 1110, 1121 (9th Cir. 2011) (quoting United States v.
5 Navarro, 608 F.3d 529, 535–36 (9th Cir. 2010)); accord. Darden v. Wainwright,
477 U.S. 168, 181–82 (1986).
10. While prosecutors may not express their personal opinion of the
defendant’s guilt or their belief in the credibility of witnesses, United States v.
McKoy, 771 F.2d 1207, 1210–11 (9th Cir. 1985), they “have considerable leeway
to strike ‘hard blows’ based on the evidence and all reasonable inferences”
therefrom, United States v. Wilkes, 662 F.3d 524, 538 (9th Cir. 2011) (quoting
United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000)). The prosecutor’s
statements were permissible attacks on Gonzalez’s credibility and theory of the
case and did not suggest the jury should place a higher level of trust in the
prosecutor based on his experience and authority as a representative of the
government. In the context of this case, the prosecutor’s use of the word
“ridiculous” and phrases “you’ve got to be kidding” and “it’s not based on the
truth” were not improper. See United States v. Wright, 625 F.3d 583, 611 n.14 (9th
Cir. 2010) (noting that it is not misconduct to refer to defense’s case, testimony, or
argument as “absolutely ridiculous,” an “absurd notion,” “trash,” or a “silly story”
(collecting cases)).
11. Prosecutors may not shift the burden of proof to the defendant but
may “challenge the [defense] to explain to the jury uncomfortable facts and
inferences.” United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991). The
6 prosecutor did not shift the burden of proof here. His statements “were made in the
context of explaining why the jury should reject [Gonzalez]’s version of events.”
Tucker, 641 F.3d at 1122. Additionally, the district court’s final jury instructions
accurately described the presumption of innocence and the reasonable doubt
standard, and instructed the jurors that lawyers’ arguments are not evidence, likely
curing any prejudice in the alleged instances of burden-shifting. See Mares, 940
F.2d at 461; United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001).
12. “A prosecuting attorney may not misstate or manipulate the evidence
at trial.” United States v. Preston, 873 F.3d 829, 844 (9th Cir. 2017). But
“prosecutors are free to argue reasonable inferences from the evidence.” United
States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). The prosecutor did not
misrepresent the automobile expert’s testimony. Although the expert did not testify
that the van’s modifications could relate to fumes, the expert provided ample
evidence from which a juror could reasonably infer that the gasoline fumes were
continuously emanating from the gas tank.
AFFIRMED.