                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 25 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50257

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02525-CAB-2

  v.
                                                 MEMORANDUM*
ADRIANA HERNANDEZ-BECERRA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                           Submitted February 2, 2016**
                              Pasadena, California

Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Andriana Hernandez-Becerra appeals her jury conviction for importing

drugs in violation of 21 U.S.C. §§ 952, 960, and 963. We have jurisdiction under

29 U.S.C. § 1291. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1.    Hernandez-Becerra argues the evidence at trial was insufficient for the jury

to conclude she had either actual knowledge or deliberate ignorance of the drugs

she was convicted of importing. We review the sufficiency of evidence under a

two-step inquiry. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en

banc). First, we view the evidence “in the light most favorable to the prosecution.”

Id. Second, we “determine whether this evidence, so viewed, is adequate to allow

‘any rational trier of fact [to find] the essential elements of the crime beyond a

reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      Viewing the conflicting evidence in the record in the light most favorable to

the prosecution, Hernandez-Becerra’s friend (“Sanchez-Mejia”) testified that she

and Hernandez-Becerra had on multiple occasions been paid by Sanchez-Mejia’s

boyfriend to cross the border from Mexico to the United States to retrieve drug

money. Sanchez-Mejia would drive, while Hernandez-Becerra would speak over

the phone with the boyfriend to get directions. Sanchez-Mejia also testified that she

knew drugs were hidden in the car and that she had told Hernandez-Becerra about

the drugs.

      This evidence was adequate for any rational trier of fact to find that

Hernandez-Becerra had either actual knowledge or deliberate ignorance that drugs

were hidden in the car. Our inquiry “does not focus on whether the trier of fact


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made the correct guilt or innocence determination, but rather whether it made a

rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402

(1993). To be rational, the decision must be supported by more than a “mere

modicum” of evidence. Jackson, 443 U.S. at 320.

2.    Hernandez-Becerra argues that the prosecutor committed prejudicial conduct

during closing argument:

      a.     At the beginning of closing argument, the prosecutor requested the

court’s permission to have Hernandez-Becerra stand. The court granted the request,

and the prosecutor asked Hernandez-Becerra to stand. She complied. The

prosecutor then proceeded to state, “Ladies and gentlemen, this lady is, in fact, a

drug smuggler. Not only that, she’s the perfect drug smuggler. You can have a

seat.” Hernandez-Becerra did not object. On appeal, Hernandez-Becerra argues

that the prosecutor’s request to have her stand, and the court’s granting of that

request, violated her Fifth Amendment right to not testify. When the defendant

does not object at trial, Fifth Amendment claims are reviewed for plain error.

United States v. Sehnal, 930 F.2d 1420, 1426 (9th Cir. 1991).“To obtain the

exceptional remedy of reversal in a criminal case on the basis of plain error there

‘must be a high probability that the error materially affected the verdict.’” Id.

(quoting United States v. Bryan, 868 F.2d 1032, 1039 (9th Cir. 1989)).


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Hernandez-Becerra has failed to show that there was a high probability that the

district court’s actions materially affected the verdict.

       b.       The government concedes that the prosecutor misstated the evidence

during closing argument. Hernandez-Becerra properly objected and the district

court overruled the objection. When an objection is raised in trial court and

overruled, we review for abuse of discretion. United States v. Tucker, 641 F.3d

1110, 1120 (9th Cir. 2011). “An abuse of discretion is a plain error, discretion

exercised to an end not justified by the evidence, a judgment that is clearly against

the logic and effect of the facts as are found.” Rabkin v. Or. Health Scis. Univ., 350

F.3d 967, 977 (9th Cir. 2003) (quoting Int’l Jensen, Inc. v. Metrosound U.S.A.,

Inc., 819, 822 (9th Cir. 1993)). “[A] criminal conviction is not to be lightly

overturned on the basis of a prosecutor’s comments standing alone, for the

statements or conduct must be viewed in context; only by so doing can it be

determined whether the prosecutor’s conduct affected the fairness of the trial.”

United States v. Young, 470 U.S. 1, 11 (1985). When viewed in context, the district

court did not abuse its discretion in overruling Hernandez-Becerra’s objection to

the prosecutor’s misstatement of the evidence, because it did not affect the fairness

of the trial.




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      c.     At the end of its closing argument, the prosecutor told the jury that it

was their “duty to find the defendant guilty of these charges. The evidence shows

that she’s guilty.” Because Hernandez-Becerra did not object, we review for plain

error. United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011). Under United

States v. Gomez, a prosecutor’s “do your duty” argument is not improper if, when

“[r]ead in context, the prosecutor was arguing that, if the jury finds that the

prosecution has met its burden of proving the elements beyond a reasonable doubt,

then it is the jury’s duty to convict.” 725 F.3d 1121, 1131 (9th Cir. 2013). We find

that the district court did not plainly err, because (when read in context) the

prosecutor’s statement was made with respect to the burden of proof and satisfies

the Gomez standard.

      AFFIRMED.




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