United States v. Moreno

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2025
• Docket: 23-448
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-448 D.C. No. Plaintiff - Appellee, 3:22-cr-01375-BAS-1 v. MEMORANDUM* MOISES MORENO,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Submitted February 3, 2025** Pasadena, California

Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges.

Moises Moreno appeals his conviction and sentence for knowingly and

intentionally importing more than 400 grams of fentanyl in violation of 21 U.S.C.

§§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

* 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). and we affirm.

1. Ninety minutes into jury deliberations, the foreperson sent this note:

“Judge - We have a juror worried about what may happen to them or their family if

we find a result of guilty. Please advise.” The district court then told the parties:

So my suggestion would be to repeat a part of the instruction No. 1 which says, “It is your duty as jurors to base your verdict solely on the evidence and the law. You may not be influenced by personal likes or dislikes, sympathy, prejudice, fear, public opinion, or biases,” and then to add something that says, we use jurors’ numbers instead of names to ensure the privacy of our jurors. All juror personal information remains sealed and confidential.

Moreno’s counsel moved for a mistrial but did not object to the substance of the

proposed instruction. The judge denied a mistrial, wrote the instruction on the note,

and sent it back to the jury. The jury concluded deliberations about ten minutes later

and returned a guilty verdict.

The district court did not err in responding to the note solely with the curative

instruction. The note establishes neither actual bias of a juror, see United States v.

Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009), nor implied bias, see United States v.

Gonzalez, 906 F.3d 784, 797 (9th Cir. 2018). Nor does the note indicate that the

juror’s concern was prompted by either an improper external contact, see United

States v. Angulo, 4 F.3d 843, 846–848 (9th Cir. 1993), or “indirect coercive contact”

by Moreno, see United States v. Simtob, 485 F.3d 1058, 1060–61, 1064–65 (9th Cir.

2007).

2 23-448 2. The district court did not abuse its discretion in denying Moreno’s

mistrial motion based on the jury note. “[D]eclaring a mistrial is appropriate only

where a cautionary instruction is unlikely to cure the prejudicial effect of an error.”

United States v. Randall, 162 F.3d 557, 559 (9th Cir. 1998) (cleaned up).

“Ordinarily, cautionary instructions or other prompt and effective actions by the trial

court are sufficient” for this purpose, because “juries are presumed to follow such

cautionary instructions.” Id.

3. There was no plain error in the substance of the curative instruction, to

which Moreno did not object. See Fed. R. Crim. P. 52(b); United States v. Madrid,

842 F.2d 1090, 1093 (9th Cir. 1988). “[T]reating anonymity as a routine procedure

and offering neutral justifications focused on juror confidentiality” guarded against

any possible prejudice from drawing attention to jurors’ anonymity, and offering a

“pretextual reason” for that anonymity was not required. See United States v.

Mikhel, 889 F.3d 1003, 1031–32 (9th Cir. 2018).

4. The district court did not err in denying a “minor role” adjustment under

U.S.S.G. § 3B1.2(b), which applies if a defendant is “substantially less culpable than

the average participant” in the criminal scheme. United States v. Chichande, 113

F.4th 913, 915 (9th Cir. 2024). The court appropriately concluded that the record

did not establish that there were other participants with a greater role. Nor did the

court err in considering the amount of fentanyl seized when imposing a sentence.

3 23-448 The “nature and extent” of a defendant’s acts to be considered at sentencing

“reasonably includes the amount of drugs” imported. Id. at 923.

AFFIRMED.

4 23-448