                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 17 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 14-50007

              Plaintiff - Appellee,              D.C. No. 3:13-cr-01874-LAB-1

 v.
                                                 MEMORANDUM*
MARIO SANCHEZ-SOTO,

              Defendant - Appellant.


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

                        Argued and Submitted June 1, 2015
                              Pasadena, California

Before: M. SMITH and N.R. SMITH, Circuit Judges and LAMBERTH,** Senior
District Judge.

      Defendant Mario Sanchez-Soto was arrested while attempting to drive

across the border between Mexico and the United States at the San Ysidro Port of

Entry in California. His truck contained almost 10 kilograms of cocaine, hidden in

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
compartments inside the truck. Sanchez was tried and convicted for knowingly

importing cocaine in violation of 21 U.S.C. §§ 952 and 960. He is currently

serving a 75 month term of imprisonment. Sanchez now raises a number of issues

on direct appeal of his conviction and sentencing.1 Two of those issues warrant

reversal of the judgment. Because reversal is warranted on these two grounds, we

decline to reach the other issues Sanchez raises. We reverse and remand to the

district court for further proceedings in accordance with this memorandum.

      1.    Sanchez argues that a statement made by his wife Marta in a

jail call with him was improperly admitted over a hearsay objection. The

government responds that this statement is an adoptive admission by Sanchez and,

therefore, admissible as non-hearsay. Evidentiary rulings are reviewed for abuse

of discretion. United States v. Whittemore, 776 F.3d 1074, 1077 (9th Cir. 2015).

Evidentiary errors are subject to harmless error review. Estate of Barabin v.

AstenJohnson, Inc., 740 F.3d 457, 464 (9th Cir. 2014) (en banc).

      The statement is reprinted below:

      Sanchez:     Did Chui give you anything?




      1
            The district court had original jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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      Marta:        No. Just, uh, 1500 for the thing about the dogs, because he told

                    Mario to bring us some money.

      Sanchez:      Oh, okay. Well, so . . . [transcript states that voices began

                    overlapping and were unintelligible at this point].

Appellant’s Excerpts of Record (“ER”) 283.

      Under Federal Rule of Evidence 801(d)(2)(B), a statement is not hearsay if it

is offered against an opposing party and it “is one the party manifested that it

adopted or believed to be true.” A party may adopt a statement “in any appropriate

manner.” Fed. R. Evid. 801(d)(2) advisory committee’s notes. This includes

adoption by oral response. See United States v. Monks, 774 F.2d 945, 950 (9th Cir.

1985) (defendant adopted a third party’s out of court statement that defendant had

just robbed a bank by commenting in response that the robbery was easy); see also

5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

801.31[3][a] (2d ed. 2000).

      A statement is only admissible as an adoptive admission if there are

“sufficient foundational facts” that would allow the “jury reasonably to conclude

that the defendant did actually hear, understand and accede to the statement.”

Monks, 774 F.2d at 950. Here, Sanchez’s jail calls were before the jury only in the

form of English language transcripts, read aloud by co-counsel for the government.


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See ER 9, 256–58. Sanchez’s brief response, filtered through the oral presentation

of counsel, was plainly insufficient to allow the jury to reasonably conclude that

Sanchez adopted the statement at issue. The jury had no ability to consider

Sanchez’s tone or mannerisms during the conversation. The four words he used

reveal little of his intent to adopt. Sanchez’s words could have just as readily

indicated his mere acknowledgment that he heard the statement, not that he was

acceding to its truth. In the absence of sufficient evidence allowing the jury to

reasonably conclude Sanchez adopted Marta’s statement, the district court’s

decision to admit it was an abuse of discretion.

      2.     Additionally, the prosecutor’s closing argument relating to Marta’s

reference to being paid “1500 for the thing about the dogs” was misconduct. The

prosecutor argued that this statement was an obscured reference to Sanchez being

paid extra for his arrest while smuggling drugs. ER 401. He argued:

      [Sanchez’s] family was paid extra because he got caught. In the calls
      that you heard, the defendant said to Chui, “The dogs, man. The dogs
      came directly to me. They came directly. It was dogs.” In a later
      call, his wife says, “I received $1500 because of the thing about the
      dogs.” If you recruit people to import cocaine into the United States
      from Mexico . . . wouldn’t you promise to pay the person — not just
      to pay the person who crossed the drugs, but promise to give their
      family more money if they got caught. Wouldn’t you actually do that,
      because don’t you care about your reputation?
      ...



                                          4
      Exhibit No. 10, this is the other half of the dog conversation. “Did
      Chui give you anything?” “No, just 1500 for the thing about the
      dogs.” He got $1500 extra because he got caught by the dogs.

ER 400–01, 403.

      A prosecutor may “strike hard blows” in closing argument “based on the

evidence and all reasonable inferences from the evidence.” United States v.

Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (internal quotation marks omitted). A

prosecutor may not, however, base closing argument on evidence not in the record.

United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). A prosecutor must

also be careful to phrase the argument “in such a manner that it is clear to the jury

that [he or she] is summarizing evidence rather than inserting personal knowledge

and opinion into the case.” United States v. Hermanek, 289 F.3d 1076, 1100 (9th

Cir. 2002). Rulings on claims of prosecutorial misconduct are reviewed for abuse

of discretion. United States v. Reyes, 660 F.3d 454, 461 (9th Cir. 2011). Harmless

error review applies when the defendant timely objects to the alleged misconduct.

Id.

      There are two errors in the prosecutor’s statements. First, the argument that

drug traffickers would pay the family of a detained drug smuggler extra money

was not supported by any evidence. There was no testimony of an expert witness

regarding how drug gangs in the region commonly operate. Furthermore, there


                                          5
was no evidence in the record regarding who might have recruited Sanchez to

smuggle drugs into the United States or the nature and practices of their

organization. The prosecutor’s closing was, in effect, the missing testimony

regarding best practices in the drug trade and the expected behavior of the

traffickers involved in this case. A prosecutor may not testify to the jury in this

manner. See United States v. McKoy, 771 F.2d 1207, 1211 (9th Cir. 1985);

Hermanek, 289 F.3d at 1100.

      Second, the prosecutor misstated the evidence by incorrectly quoting Marta

as referring to 1500 American dollars. In fact, her comment was ambiguous on

this point and could have been referring to any currency, including pesos, the

currency of her home country of Mexico. This difference is significant because

Sanchez’s explanation for the comment—payment of a dog-sitting fee—is

significantly less plausible if Marta received $1500 rather than 1500 pesos

(roughly $100). While the prosecutor could reasonably have inferred that Marta

was talking about American dollars, he could not flatly state that this was what she

said. See United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993) (holding that

it is “definitely improper” for a prosecutor to make “unsupported factual claims”

during closing).

      3.     The government failed to argue in its answering brief why we should


                                          6
apply harmless error review. It has, therefore, waived its entitlement to such

review as to either of the errors we have found. United States v. Kloehn, 620 F.3d

1122, 1130 (9th Cir. 2010). “[W]e have discretion to consider harmlessness sua

sponte in extraordinary cases.” United States v. Brooks, 772 F.3d 1161, 1171 (9th

Cir. 2014). Three factors should be evaluated in determining whether a case is

“extraordinary”: “(1) the length and complexity of the record, (2) whether the

harmlessness of an error is certain or debatable, and (3) the futility and costliness

of reversal and further litigation.” Id. (internal quotation marks omitted). The

second factor is most important. Id. Sua sponte recognition of harmless error is

inappropriate unless the harmlessness of the error is not reasonably debatable. Id.

Thus, the second factor functions as a threshold question that is potentially

dispositive of the analysis.

      As stated above, there were two errors during Sanchez’s trial. The

prosecutor placed heavy weight during closing argument on the jail calls and his

interpretation of those calls, particularly his improper interpretation of the

inadmissible hearsay comment by Marta. See ER 400–01, 403. Given the

significance of the errors to the government’s case against Sanchez, the issue of

harmlessness is reasonably debatable to say the least. Cf. id. at 1172 (conducting

harmless error review sua sponte where the evidence supporting the verdict was


                                           7
“overwhelming”). Because the second—and dispositive—factor is not met,

conducting harmless error review sua sponte is not appropriate in this case.

      The judgment is reversed, and this case is remanded to the district court for

further proceedings in accordance with this memorandum.

      REVERSED AND REMANDED.




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