United States v. Lili Tydingco

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2022
• Docket: 20-10210
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10210

Plaintiff-Appellee, D.C. No. 1:15-cr-00018-1

v. MEMORANDUM* LILI ZHANG TYDINGCO,

Defendant-Appellant.

Appeal from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief District Judge, Presiding

Argued and Submitted January 21, 2022 Honolulu, Hawaii

Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.

Following a jury trial, Lili Tydingco was convicted on one count of alien

harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). After we reversed her

conviction because of instructional error, United States v. Tydingco, 909 F.3d 297

(9th Cir. 2018), Tydingco was retried and again convicted; she again appeals. We

have jurisdiction under 28 U.S.C. § 1291, see 48 U.S.C. § 1824(b), and we reverse

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and remand.

1. The district court did not err in instructing the jury. As Tydingco

concedes, the instructions complied with the statement of law in our prior decision

in Tydingco, 909 F.3d at 302–04.

2. Sufficient evidence supports Tydingco’s conviction. At the second

trial, the government presented the same evidence that we previously found

sufficient. See Tydingco, 909 F.3d at 301–02 & n.1.

3. We review the district court’s admission of evidence for an abuse of

discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en

banc). For evidentiary errors, reversal is required “unless there is a ‘fair assurance’

of harmlessness or, stated otherwise, unless it is more probable than not that the

error did not materially affect the verdict.” United States v. Bailey, 696 F.3d 794,

803 (9th Cir. 2012) (quoting United States v. Morales, 108 F.3d 1031, 1040 (9th

Cir. 1997) (en banc)). “[I]n cases of ‘equipoise,’ we reverse.” United States v.

Liera, 585 F.3d 1237, 1244 (9th Cir. 2009) (quoting United States v.

Seschillie, 310 F.3d 1208, 1215 (9th Cir. 2002)).

The district court abused its discretion in admitting Rebecca Castro’s sham-

marriage and witness-tampering testimony. Federal Rule of Evidence 404(b)

prohibits the admission of otherwise relevant evidence of prior acts unless the

evidence is used for a non-propensity purpose “such as proving . . . knowledge.”

2 Fed. R. Evid. 404(b)(2). When Rule 404(b) evidence is offered to prove

knowledge, the prior act must be sufficiently similar to the charged act as “to make

the existence of the defendant’s knowledge more probable than it would be without

the evidence.” United States v. Rodriguez, 880 F.3d 1151, 1167 (9th Cir. 2018)

(quoting United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014)).

The government reasons that the prior act and the charged offense both

involved Tydingco’s “agreeing to help Chinese citizens circumvent U.S.

immigration laws for her own financial benefit.” That rationale is devoid of record

support: There was no evidence that Tydingco received, or expected to receive,

any financial benefit for her role in the sham-marriage proposal. Further, Castro’s

testimony does not tend to make it more probable that Tydingco knew that X.N.,

the alien she was charged with harboring, was in the United States illegally. The

evidence may have demonstrated that Tydingco knew that marriage is one pathway

to citizenship, but that knowledge has no logical connection to whether she knew

that X.N., a minor student, was not authorized to remain in the United States.

The district court also abused its discretion in admitting Castro’s testimony

that Tydingco encouraged her to leave the jurisdiction so that she would be unable

to testify. The relevance of this testimony came from the fact that it suggested

consciousness of guilt. But that theory of relevance depends on the underlying

sham-marriage testimony, which, as we have explained, should not have been

3 admitted.

The admission of Castro’s testimony was not harmless. As we observed

when we reversed Tydingco’s conviction after her first trial, “substantial evidence

emerged from which a reasonable jury could infer that [Tydingco]—despite

knowing of facts from which a reasonable person would infer the risk of X.N.’s

presence being unlawful—did not actually draw that inference herself.” 909 F.3d

at 305. Tydingco’s defense theory was plausible, and Castro’s inadmissible

propensity testimony directly undermined that defense.

The limiting instructions did not cure the error. The court told the jury that it

could give Castro’s testimony “such weight as [the jury] fe[lt] it deserve[d]” for the

purpose of proving Tydingco’s knowledge and consciousness of guilt. But because

the testimony was not relevant to those issues, the jury should not have been able

to give it any weight. By telling the jury that it could consider the evidence—which

was relevant only for its forbidden propensity inference—the court wrongly invited

the jury to rely on prejudicial evidence that it should not have heard in the first

place. See United States v. Santini, 656 F.3d 1075, 1079 (9th Cir. 2011) (per

curiam). Because the limiting instructions were ineffective, and the evidence went

to the heart of Tydingco’s defense, the government has not established that “it is

more probable than not that the error did not materially affect the verdict.” Bailey,

696 F.3d at 803 (quoting Morales, 108 F.3d at 1040).

4 4. The district court did not prejudicially err in admitting the testimony

of Customs and Border Patrol Officer Ronald Muna. At trial, Officer Muna

discussed translations of statements made in Chinese by Tydingco at her border

interview that an interpreter had orally translated for her. Tydingco argues that

these statements are inadmissible testimonial hearsay. But translated statements are

admissible under the Federal Rules of Evidence and the Confrontation Clause if

they “fairly should be considered the statements of the speaker.” United States v.

Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) (quoting United States v.

Nazemian, 948 F.2d 522, 527 (9th Cir. 1991)). In assessing such statements, the

court “must consider all relevant factors.” Id. The dispositive factor here is

Tydingco’s English fluency. Tydingco understands English, was present when the

interpreter relayed her statements to Officer Muna, and never corrected the

translation or expressed any confusion about it. Therefore, the translated

statements may fairly be considered Tydingco’s own statements for the purposes of

hearsay analysis and the Confrontation Clause. See Fed. R. Evid. 801(d)(2)(B).

The government also elicited testimony from Officer Muna about the

relevant parole program. Tydingco argues that this was improper expert testimony

from a lay witness. We conclude that any error in permitting Officer Muna to

testify about the parole program was harmless. The testimony was brief and was

not referred to in closing argument. It was also irrelevant to the jury’s

5 determination because Tydingco never argued that she had applied for or received

an extension of X.N.’s parole.

REVERSED and REMANDED.