United States v. Salvador Acosta

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2020
• Docket: 19-50007
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50007

Plaintiff-Appellee, D.C. No. 3:17-cr-03289-AJB-1 v.

SALVADOR ACOSTA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted January 22, 2020 Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

Salvador Acosta appeals his conviction under 21 U.S.C. §§ 952 and 960,

following a jury trial, for smuggling fentanyl into the United States. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The parties largely agree that the district court erred in failing to give

an “other acts” limiting instruction for certain evidence of prior border crossings,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. evidence allegedly suggesting Acosta’s involvement in a transaction for ecstasy, and

Acosta’s driving record for Uber/Lyft. See Fed. R. Evid. 404(b). At oral argument,

the government also agreed that Acosta preserved his objection on this issue.

Nevertheless, we conclude that the absence of such a limiting instruction was

harmless under any standard. See, e.g., United States v. Erickson, 75 F.3d 470, 479

(9th Cir. 1996); United States v. Arambula-Ruiz, 987 F.2d 599, 605 (9th Cir. 1993).

Notwithstanding the district court’s comment that the trial “could have gone

either way”—which was not clearly a commentary on the strength of the evidence

or any piece of evidence, and was offered over four months after the trial had

concluded—our independent review of the record confirms that extensive evidence

supported Acosta’s conviction. This evidence included that over 30 pounds of

highly toxic fentanyl valued at $4.5 million was found in Acosta’s vehicle; the odor

of a drug-masking agent emanating from his car; Acosta’s inconsistent statements

to law enforcement; and the implausibility of Acosta’s theory that someone would

have placed $4.5 million of a highly toxic drug in his vehicle while valeted at a

Tijuana restaurant, without knowing when Acosta would cross the border.

Any potential prejudice from the lack of an “other acts” limiting instruction

was also substantially mitigated by the district court’s instruction that the jury was

“only to determine whether the defendant is guilty or not guilty of the charge in the

indictment” and that Acosta was “not on trial for any conduct or offense not charged

2 in the indictment.” See, e.g., United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir.

1984).

2. The government did not draw improper inferences from the evidence.

Acosta bases this argument on certain Facebook messages and his Uber/Lyft driving

record, but he did not object to the introduction of this evidence, nor did he object at

trial that the government was arguing improper inferences from it. If anything,

Acosta attempted to use the Facebook messages to his benefit in suggesting at trial

that the government’s use of them was indication of a weak case.

Regardless, Acosta’s arguments about improper inferences lack merit. Acosta

argues that the government misinterpreted certain Facebook messages as relating to

ecstasy rather than cans of cleaner, but he points to no evidence suggesting that the

government knew its interpretation of the messages was false or suspected its

witnesses of lying. See Napue v. Illinois, 360 U.S. 264, 269 (1959); Morris v. Ylst,

447 F.3d 735, 744 (9th Cir. 2006). Nor did the government rely on Acosta’s

Uber/Lyft driving history to make an improper “poverty” argument. See United

States v. Romero-Avila, 210 F.3d 1017, 1022 (9th Cir. 2000). Instead, Acosta’s

driving history was used to show an abrupt change in Acosta’s sources of income,

which was permissible. See United States v. Jackson, 882 F.2d 1444, 1450 (9th Cir.

1989).

3. The district court did not constructively amend Acosta’s indictment by

3 instructing the jury he could be convicted for knowingly smuggling any “controlled

substance,” when the indictment specifically referenced fentanyl. Acosta did not

object on this ground below and admits our review is for plain error. See United

States v. Mickey, 897 F.3d 1173, 1183 (9th Cir. 2018). There was no plain error.

“The government is not required to prove that the defendant knew the type or

quantity of the controlled substance he imported to obtain a conviction” under 21

U.S.C. §§ 952 and 960, United States v. Jefferson, 791 F.3d 1013, 1015 (9th Cir.

2015); see also United States v. Collazo, ___ F.3d ___, 2020 WL 7052298, at *9–

14 (9th Cir. Dec. 2, 2020) (en banc), and so the jury instruction matched the elements

of the offense.

Any objection based on Rehaif v. United States, 139 S. Ct. 2191 (2019), was

waived, as Acosta failed to raise it in his briefing (his reply brief was filed several

months after Rehaif was decided). Regardless, Rehaif does not support reversal

because, unlike the statute there, “[t]he mens rea standard in § 960(a) is separate and

distinct from the penalty ranges set forth in § 960(b),” and so does not apply to drug

type and quantity. See Jefferson, 791 F.3d at 1018.

4. The district court did not err in failing to excuse sua sponte Juror No.

26 for actual, implied, or inferable bias, after this juror disclosed that her child had

dated someone who had overdosed on a “combination of drugs,” and “there was a

border arrest involved.” Acosta did not raise any objection to this juror in the district

4 court, nor did he seek to strike her peremptorily or for cause. The district court

appropriately questioned Juror No. 26 based on her disclosure and she repeatedly

affirmed that she could view the facts objectively and could be fair and impartial.

Under any standard of review, and on any theory of bias, the district court did not

err by seating Juror No. 26. See United States v. Mitchell, 568 F.3d 1147, 1150 (9th

Cir. 2009); United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995).

AFFIRMED.