                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10459

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00922-CKJ-JCG-
                                                 1
  v.

JOSE M. LOPEZ,                                   MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted May 15, 2012
                             San Francisco, California

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       Jose Lopez appeals his conviction of one count of stealing public money, in

violation of 18 U.S.C. § 641, and twenty-six counts of making material false

statements with respect to matters within the jurisdiction of the Department of

Homeland Security (“DHS”), in violation of 18 U.S.C. § 1001(a). We have



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jurisdiction under 28 U.S.C. § 1291. Lopez raises three arguments. We address

each in turn and affirm.

         We review de novo Lopez’s sufficiency of the evidence claim as to his false

statements charge. See United States v. Jiang, 476 F.3d 1026, 1029 (9th Cir.

2007). Common sense dictates that the Interim Transmittal Form unambiguously

asks the cashier to account for the net receipts of cash in exchange for permits.

This notion is further supported by the testimony of Lopez’s supervisors that they

relied on the forms to provide a true accounting of the money a cashier received

from permit sales. See United States v. Culliton, 328 F.3d 1074, 1079 (9th Cir.

2003) (“[W]e must consider the context of the question . . . as well as other

extrinsic evidence relevant to [defendant’s] understanding of the questions

posed.”). Viewing the evidence in the light most favorable to the government, a

rational juror could have found the elements of the false statements charge beyond

a reasonable doubt. See United States v. Bennet, 621 F.3d 1131, 1135 (9th Cir.

2010).

         We review for abuse of discretion the district court’s determination that the

prejudicial effect of Lopez’s false exculpatory statements did not substantially

outweigh its probative value. See United States v. Gonzalez-Flores, 418 F.3d

1093, 1098 (9th Cir. 2005). Lopez’s false exculpatory statements to the DHS


                                            2
agents “were probative of his consciousness that his conduct was illegal.” United

States v. Ramirez-Jiminez, 967 F.2d 1321, 1327 (9th Cir. 1992). Affording

“substantial deference” to the district court’s Rule 403 ruling, we conclude that the

ruling does not “lie[] beyond the pale of reasonable justification under the

circumstances.” United States v. Espinoza-Baza, 647 F.3d 1182, 1189 (9th Cir.

2011) (citation omitted).

      We review de novo the voluntariness of a confession, United States v.

Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc), and determine that

Lopez’s confession was voluntary. The DHS agents clearly indicated to Lopez that

they were interviewing him in their law enforcement capacity, and made no threats

or promises to coerce his cooperation. Nothing distinguishes Lopez’s interrogation

from any other police custody situation or suggests that his will was overborne.

See United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009).

      AFFIRMED.




                                          3
                                                                           FILED
USA v. Lopez, No. 10-10459                                                  DEC 21 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS




W. FLETCHER, Circuit Judge, dissenting:

      I concur with the panel’s holdings with regard to the exculpatory statements

and voluntary confession. I respectfully disagree, however, that there is sufficient

evidence to uphold Lopez’s convictions for false statements. The Interim

Transmittal Form asked the cashier to record the amount of cash in the cashbox at

the end of the cashier’s shift. Lopez did this. The numbers he reported on the

Form accurately reflected the amount of money in the cashbox at the end of his

shift. The fact that he had skimmed some of the cash and the number was therefore

lower than it otherwise would have been does not affect the fact that he truthfully

filled out the form.
