                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10544

                Plaintiff-Appellee,             D.C. No.
                                                4:16-cr-02096-JAS-BGM-1
 v.

ANHELY MARTINEZ-CAMARGO, AKA                    MEMORANDUM*
Anhely Camargo-Martinez,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    James Alan Soto, District Judge, Presiding

                            Submitted March 8, 2019**
                              Phoenix, Arizona BC

Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

      Anhely Martinez-Camargo (“Martinez-Camargo”) appeals her convictions

for conspiracy and possession with intent to distribute 50 kilograms or more of

marijuana, and conspiracy and importation of the same, in violation of 21 U.S.C.



      *
             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).
§§ 846, 841(a)(1), 841(b)(1)(C), 963, 952(a), 960(a)(1), and 960(b)(3). Martinez-

Camargo was arrested when she attempted to cross the U.S.-Mexico border with

approximately 100 kilograms of marijuana hidden in her car. On appeal, she

challenges the district court’s rulings on the admissibility of her video-taped

interview at the border and the manner in which the district court provided the

interview transcript to the jury. Because the district court committed no reversible

error, we affirm.

      1. Martinez-Camargo’s pre-trial motion to suppress the statement she made

after she was arrested was properly denied. We need not decide whether she

waived her suppression argument or what standard of review applies because her

claim fails under any standard. There was nothing deficient about the initial

warnings provided to her by Officer Littlejohn, see California v. Prysock, 453 U.S.

355, 359 (1981) (per curiam) (no “talismanic incantation” of Miranda warnings

required), and Martinez-Camargo’s single reference to “financial aid” at the end of

the interview does not show that she misunderstood her right to counsel.1


1
  In any event, the cases that Martinez-Camargo cites do not support the
proposition that an ambiguous statement at the end of the interview would cast
sufficient doubt on the validity of her earlier waiver that it would require
suppression. Unlike the interrogation in United States v. Garibay, 143 F.3d 534,
538 (9th Cir. 1998), at the beginning of the interview, Martinez-Camargo was
advised of her Miranda rights in her native language, was offered the help of a
translator, appeared to understand her rights, responded affirmatively to Officer
Littlejohn’s questions about comprehension, and signed a written waiver in her


                                          2
      2. The district court did not abuse its discretion in granting the

Government’s motion in limine to exclude the admission of certain portions of the

interview video, including the discussion of Martinez-Camargo’s right to

“financial aid.”

      Because the financial aid comment fails to show lack of a knowing and

intelligent waiver of the right to counsel in the first place, it also does not support

the further inference that Martinez-Camargo’s statements during the interrogation

were involuntary or unreliable. This case is a far cry from Crane v. Kentucky,

where the Supreme Court held that the defendant was deprived of his constitutional

right to a meaningful opportunity to present his defense when the district court

issued a blanket exclusion of any testimony about the highly coercive

circumstances of the interrogation. 476 U.S. 683, 690-91 (1986). There were no

such highly coercive circumstances here. Moreover, the jury was able to watch a

video of Martinez-Camargo’s waiver and confession and consider the demeanor,

tone, and body language of both interviewer and interviewee, so even if there was

error in excluding that portion of the video, it was harmless beyond a reasonable

doubt. See Chapman v. California, 386 U.S. 18, 23-24 (1967).



native language. And unlike the defendants in the state court cases that Martinez-
Camargo cites, Martinez-Camargo made no statement during the provision of the
Miranda warnings themselves that demonstrated a lack of understanding of the
warnings or of her rights.

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      Martinez-Camargo’s argument that the rule of completeness, Fed. R. Evid.

106, compels admission of the whole statement also fails. Rule 106 does not

“require the introduction of any unedited writing or statement merely because an

adverse party has introduced an edited version.” United States v. Vallejos, 742

F.3d 902, 905 (9th Cir. 2014). Rather, it applies only when the edited statement

creates a misleading distortion of the evidence. Id. Because the admitted portions

of her statement were not misleading, the district court did not abuse its discretion

in determining that Rule 106 does not compel the admission of the omitted

portions of the statement.

      Moreover, the district court did not abuse its discretion in ruling that the

statements Martinez-Camargo sought to introduce were also inadmissible under

Fed. R. Evid. 403 because of their potential to unnecessarily confuse or mislead the

jury. See United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978).2

      And, again, even if there was an error, it was harmless because it is still

“clear beyond a reasonable doubt that the jury would have returned a verdict of

guilty.” United States v. Lynch, 903 F.3d 1061, 1072 (9th Cir. 2018) (internal



2
  In addition, even if it was error for the Government to elicit testimony from the
interrogating officer that Martinez-Camargo never asked any questions about her
Miranda rights, Martinez-Camargo did not object at that point, nor did she request
permission to introduce the rest of the video during cross examination to impeach
the officer’s answer. Any claim based on this aspect of the Government’s case is
therefore forfeited.

                                          4
quotation marks and citations omitted).

       3. The courtroom deputy’s communications with the jury did not violate

Martinez-Camargo’s right to trial by jury or her statutory or constitutional rights to

be present at trial.

       The Sixth Amendment right to trial by an impartial jury requires that “when

responding to jury questions or requests during deliberations, every effort must be

undertaken to avoid influencing or coercing a jury to reach one verdict over

another.” United States v. Evanston, 651 F.3d 1080, 1084 (9th Cir. 2011).

Martinez-Camargo argues that the district court crossed this line when the judge

sent the courtroom deputy to talk to the jurors about what portions of the video

interrogation they wished to review during deliberations. But it is total speculation

that the courtroom deputy conveyed anything about what the judge thought about

the facts or law of the case. See Lynch, 903 F.3d at 1082 (holding that contact with

the jury that did “not rise to [the] level of conveying anything about facts or law”

were not ex parte communications). Nothing in the record suggests any

impropriety, nor is there reason to think that the courtroom deputy in any way

pressured the jury to reach a verdict too quickly simply because she conveyed to

the judge what the jury suggested would be “more time efficient.”

       The Constitution and the Federal Rules of Criminal Procedure also

guarantee a defendant the right to be present at trial. United States v. Frazin, 780


                                          5
F.2d 1461, 1469 (9th Cir. 1986). The constitutional right applies only to “critical”

stages of the trial, United States v. Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th

Cir. 2002), whereas the broader statutory right entitles the defendant to be present

at “every trial stage, including jury impanelment and the return of the verdict,”

Fed. R. Crim. P. 43(a)(2). Here, the record suggests that the district court acted

properly in considering the request from the jury to review portions of the

interview, discussing how to respond to that request with counsel, and ultimately in

delivering its decision to the jury foreperson in open court—all in the presence of

the parties. See United States v. Kupau, 781 F.2d 740, 743 (9th Cir. 1986).

Martinez-Camargo’s objection that she was absent during a critical stage hinges on

whether the few minutes when the judge instructed the courtroom clerk to speak

with the jury and confirm which portions of the interview they wished to review

constituted a critical stage of the proceedings. We are not persuaded that they

were. See McNeal v. Adams, 623 F.3d 1283, 1289 (9th Cir. 2010). There is

certainly nothing “disturbing” about this sequence of events, United States v. U.S.

Gypsum Co., 438 U.S. 422, 460 (1978), because that there is no indication that the

deputy was acting as a conduit for the judge. Although it would have been

preferable for the judge to ask the jury to clarify its request in open court, asking

the courtroom clerk to obtain that information does not rise to the level of a

constitutional or statutory violation, even in the absence of a transcript. See Lynch,


                                           6
903 F.3d at 1083.

      4. The district court’s decision to send the written transcript of Martinez-

Camargo’s video-recorded interrogation to the jury room during deliberations,

despite the parties’ stipulation to the contrary, also does not warrant reversal.

      We need not decide whether the district court abused its discretion, because

even if it did, the error was harmless. The jury had already seen the video during

trial, and Martinez-Camargo had stipulated to the transcript’s accuracy. The

district court did not abuse its discretion in allowing the jury to view the transcript.

See United States v. Taghipour, 964 F.2d 908, 910 (9th Cir. 1992). Further, though

Martinez-Camargo argues that the transcript gives a false impression because it

does not convey her body language, because she “does not question the accuracy

of the transcripts and makes no showing of any prejudice stemming from the use of

the transcript during deliberations, the district judge did not abuse his discretion.”

Id.

      Martinez-Camargo’s arguments that the district court should have required

that the transcript be reread in open court are also unconvincing. She relies on

cases in which the jury asked to review the transcripts of witnesses’ testimony at

trial—but the argument that the requirements articulated in those cases apply to

review of a transcript of a pretrial confession by the defendant that is admitted as a

trial exhibit is foreclosed by United States v. Chadwell, 798 F.3d 910, 915 (9th Cir.


                                           7
2015) (“The concern for avoiding undue emphasis on particular trial testimony did

not limit the discretion of the district court to send the video exhibit to the jury

room ‘for review like all other evidentiary exhibits.’” (quoting United States v.

Cuozzo, 962 F.2d 945, 953 (9th Cir. 1992))).

      Finally, Martinez-Camargo argues for the first time on appeal that the court

should have given a special instruction on the use of the transcript to avoid undue

emphasis on the Government’s case. Because this claim was not raised at trial, we

review for plain error. United States v. Banks, 514 F.3d 959, 976 (9th Cir. 2008).

Martinez-Camargo has not established any effect on her substantial rights because

the jury had viewed the entire video synchronized with the transcript earlier in the

same day.

      5. Finally, for the reasons discussed above, Martinez-Camargo’s cumulative

error argument also fails.

      AFFIRMED.




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