                                                                            FILED
                             NOT FOR PUBLICATION                             DEC 01 2009

                                                                      MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                      No. 08-50371

              Plaintiff - Appellee,            D.C. No. 3:07-cr-01140-JSL-1
                                               Southern District of California,
       v.                                      San Diego

LETICIA GALEOTE,
                                               ORDER DENYING PETITION
              Defendant - Appellant.           FOR PANEL REHEARING
                                               AND WITHDRAWING
                                               MEMORANDUM DISPOSITION


Before: FISHER and GOULD, Circuit Judges, and ENGLAND, District Judge.                 *



      The panel has voted to deny the petition for panel rehearing. The

memorandum disposition filed October 16, 2009 is withdrawn. A superseding

memorandum disposition is being filed concurrently with this order.

      The petition for rehearing filed October 30, 2009 is DENIED. No further

petitions for rehearing will be permitted.




       *
       The Honorable Morrison C. England, Jr., United States District Judge for
the Eastern District of California, sitting by designation.
                                                                          FILED
                            NOT FOR PUBLICATION                            DEC 01 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50371

              Plaintiff - Appellee,              D.C. No. 3:07-cr-01140-JSL-1

       v.
                                                 MEMORANDUM *
LETICIA GALEOTE,

              Defendant - Appellant.

                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                     Argued and Submitted September 4, 2009
                              Pasadena, California

Before: FISHER and GOULD, Circuit Judges, and ENGLAND, District Judge. **

      Leticia Galeote appeals her conviction and sentence for conspiracy to import

marijuana, importation of marijuana, conspiracy to distribute marijuana and

possession of marijuana with intent to distribute. We have jurisdiction under 28

U.S.C. y 1291 and 18 U.S.C. y 3742, and we affirm.

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Morrison C. England, Jr., United States District Judge for
the Eastern District of California, sitting by designation.
      The district court correctly found that officers' posing of questions to

Galeote's daughter and her daughter's friend did not constitute interrogation of

Galeote. Ïuestions related to the care of minors are 'normally attendant to arrest

and custody' and are not 'reasonably liµely to elicit an incriminating response.'

Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

      The district court did not abuse its discretion under Rule 403 by admitting

statements Galeote made while officers were speaµing with her daughter and her

daughter's friend.1 Although the statements were arguably harmful to Galeote's

case, it was within the district court's discretion to find that they were both

probative and not unfairly prejudicial. See United States v. Bailleaux, 685 F.2d

1105, 1111 n.2 (9th Cir. 1982) (noting unfair prejudice means the admission of

evidence 'results in some unfairness to the defendant because of its non-probative

aspect').

      In addition, even if the district court erred by admitting statements made

after Galeote attempted to terminate her post-arrest interview, any error was

harmless. We assume for the saµe of argument that Galeote sufficiently invoµed

her right not to answer any further questions by stating '[t]hat's all I'm gonna say,'



      1
          We assume for the saµe of argument that this issue was preserved for
appeal.

                                           2
'I'm not gonna say anything anymore' and 'I'm not talµing anymore.' See

Anderson v. Terhune, 516 F.3d 781, 787-88 (9th Cir. 2008) (en banc) (holding

'crystal-clear' invocations in that case 'left no room for doubt').2 The admission

of statements made to officers who continue interrogation after a sufficient

invocation violates the 'right to cut off questioning.' Michigan v. Mosley, 423

U.S. 96, 103-04 (1975) (internal quotations omitted). In this case, however, any

possible error was harmless beyond a reasonable doubt because the government

offered the substantial portion of Galeote's post-arrest interview that preceded the

invocations and only inconsequential details of the portion of the interview that

followed them. Moreover, the indisputably permissible testimony was a sufficient

basis for the prosecution's argument in closing that Galeote's story was ridiculous.

See United States v. Padilla, 387 F.3d 1087, 1094 (9th Cir. 2004) (finding error

harmless beyond a reasonable doubt when nothing sought to be suppressed could

have affected the jury's determination of guilt).

      Finally, the district court did not clearly err by denying Galeote a minor role

reduction. Galeote failed to offer evidence to meet her burden other than the


      2
       We are aware of the Supreme Court's recent grant of certiorari in Berghuis
v. Thompµins, 77 U.S.L.W. 3670 (U.S. Sept. 30, 2009) (No. 08-1470), but note that
the underlying decision is not on point. See Thompµins v. Berghuis, 547 F.3d 572,
584 (6th Cir. 2008) (addressing an implicit invocation of Miranda rights on the
basis of 'silence and general uncooperativeness').

                                          3
government's recommendation of a minor role reduction for her co-conspirator.

See United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000) (requiring

comparison of the defendant with the average participant in the conspiracy, rather

than only charged defendants); United States v. Howard, 894 F.2d 1085, 1091 (9th

Cir. 1990) (holding that a district court need not accept a government's

recommendation of a minor role reduction); see also United States v. Ladum, 141

F.3d 1328, 1348 (9th Cir. 1998) (placing the burden of proof concerning

entitlement to a minor role reduction on the defendant).

      AFFIRMED.




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