United States v. Hector Martinez-Robos

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2022
• Docket: 20-50205
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50205

Plaintiff-Appellee, D.C. No. 3:19-cr-00369-DMS-1 v.

HECTOR MARTINEZ-ROBOS, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-50341

Plaintiff-Appellee, D.C. Nos. 3:19-cr-00369-DMS-2 v. 3:19-cr-00369-DMS

ISELA ROSA ACUNA,

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, Chief District Judge, Presiding

Argued and Submitted June 6, 2022 Pasadena, California

Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants Rosa Isela Acuna and Hector Martinez-Robos ask this court to

vacate their convictions and Martinez-Robos’ sentence for importation of cocaine in

violation of 21 U.S.C. §§ 952, 960 and 18 U.S.C. § 2. The parties are familiar with

the facts, and so we do not recount them here. We have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

1. Both defendants argue that the district court erred in not instructing the

jury that their co-defendant’s out-of-court statements could not be used against the

non-declarant defendant pursuant to United States v. Sauza-Martinez, 217 F.3d 754

(9th Cir. 2000). However, Sauza-Martinez requires a limiting instruction in a joint

trial when incriminating hearsay evidence is admissible against one defendant but

not another. 217 F.3d at 760. Here, the defendants’ statements were not hearsay

because they were not offered for the truth of the matter asserted. See Fed. R. Evid.

801(c)(2). Sauza-Martinez does not apply, so no limiting instruction was required.

2. Both defendants contend that cell phone photos of a crystalline substance

were inadmissible against them pursuant to Federal Rules of Evidence 403 and

404(b). We disagree. The photos tend to prove a material point and they are

sufficiently similar to the charged offenses. See United States v. Vo, 413 F.3d 1010,

1018 (9th Cir. 2005). The photos were taken and stored on Acuna’s phone, and the

case agent testified that the substance appeared to be methamphetamine. The district

court was not required to give a limiting instruction that the photos were

2 inadmissible against Martinez-Robos. The photos were permissibly admitted

against Martinez-Robos because there was sufficient evidence of his involvement in

the other act and there was no unfair prejudice.

3. The district court also did not plainly err in giving the jury instructions on

the mens rea requirements for the 21 U.S.C. § 960(a) importation offense that did

not follow McFadden v. United States, 576 U.S. 186 (2015). McFadden concerned

a statute that is not at issue here. Neither the Supreme Court, this court, nor the

model jury instructions has extended McFadden to the 21 U.S.C. § 960(a)

importation offense charged here.

4. The prosecutor did not improperly rely on hearsay statements of Martinez-

Robos in closing as evidence of Acuna’s guilt. Martinez-Robos’ statements were

not offered for the truth of the matter asserted and so were not hearsay. See Fed. R.

Evid. 801(c)(2). The Confrontation Clause does not apply to non-hearsay, and so

the prosecutor was free to use Martinez-Robos’ statements against Acuna. See

United States v. Mitchell, 502 F.3d 931, 966 (9th Cir. 2007).

5. As to Martinez-Robos, the prosecutor did not violate Griffin v. California,

380 U.S. 609 (1965), make an improper argument, or misstate the evidence during

summation. The prosecutor’s reference to Martinez-Robos’ decision not to testify

was not improper because it did not suggest that the jury could use his decision as

evidence of guilt. See Lakeside v. Oregon, 435 U.S. 333, 338 (1978). The

3 prosecutor did not misstate the defense expert’s testimony on cross examination, and

permissibly asked the jury to make inferences from it.

6. No new trial is required for either defendant based on a theory of

cumulative error. Because we find no errors, there is also no cumulative error.

7. Finally, we note that Martinez-Robos concedes that his sentence is correct

under current law. See United States v. Collazo, 984 F.3d 1308, 1321-29 (9th Cir.

2021) (en banc). We express no view on whether his sentence must be reversed if

the view of the Collazo dissent were governing law.

AFFIRMED.