                        FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 16-50344
           Plaintiff-Appellee,
                                                  D.C. No.
                   v.                       3:11-cr-03486-JAH-6

 FLORA ESPINO,
         Defendant-Appellant.                      OPINION



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

            Argued and Submitted February 7, 2018
                    Pasadena, California

                         Filed June 18, 2018

Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
 Circuit Judges, and Joseph F. Bataillon,* District Judge.

                   Opinion by Judge Bataillon




    *
      The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
2                    UNITED STATES V. ESPINO

                            SUMMARY**


                            Criminal Law

    The panel affirmed a conviction for lying to a grand jury.

    Reviewing for plain error, the panel held that the verdict
form – which indicated that the jury would have to find the
defendant not guilty beyond a reasonable doubt – was clearly
erroneous, but that the error was harmless because the jury
instructions taken as a whole, read in conjunction with the
verdict form, clearly outlined the burdens of proof and the
reasonable doubt standard.


                             COUNSEL

Kenneth J. Troiano (argued), San Diego, California, for
Defendant-Appellant.

Daniel E. Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section, Criminal Division;
United States Attorney’s Office, San Diego, California; for
Plaintiff-Appellee.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   UNITED STATES V. ESPINO                         3

                            OPINION

BATAILLON, District Judge:

    The jury convicted defendant Flora Espino of lying to a
grand jury in violation of 18 U.S.C. § 1623. Espino appeals
and argues that the district court erred as a matter of law in
the language used in the verdict form and its subsequent
submission to the jury. Espino contends the district court
shifted the burden of proof, requiring the jury to find her not
guilty beyond a reasonable doubt. We agree that the
instruction was erroneous, but we affirm because Espino has
not shown that the error was prejudicial.1

                        BACKGROUND

    Espino worked as a tax preparer for a real estate broker in
Spring Valley, California. One borrower, Sean Desmond,
served as a police officer at the Chula Vista Police
Department. In 2006 he attempted to buy a $1.6 million
home. As a police officer, his salary was $90,000 at the time.
To assist him with qualifying for this loan, he worked with a
broker named Jesse Rodriguez to prepare the loan application
with a substantially inflated income. Rodriguez listed
Desmond as self-employed at a fictitious business called “San
Diego Private Detective and Consulting,” with an annual
income of $415,200. In fact, Desmond was not employed at
this firm, nor did he make such an income. The mortgage
lender agreed to make the loan, but only if it received a
verification letter from a CPA regarding the income.



    1
      Espino’s other grounds for reversal are declined in a separate,
concurrently filed memorandum disposition.
4                UNITED STATES V. ESPINO

    Rodriguez then emailed an associate named Adam
Fukushima and asked for a CPA letter, and indicated the CPA
might be contacted. Thereafter, upon request, Espino created
a verification letter for Desmond on her letterhead stating:

       [F]or the last two years I have been filing and
       consulting Sean Desmond a private
       investigating detective on his taxes. Mr.
       Desmond has not had any change in
       employment and has filed as self-employed
       for the past two years. If you have any
       questions regarding Mr. Desmond fill [sic]
       free to contact me. . . .

    She faxed the letter to Rodriguez with a cover sheet
stating “CPA Letter” and addressed to “Jesse Rodriguez” and
signed “Flora Espino.” The lender then approved the $1.6
million dollar loan for Desmond. A year later, Desmond
attempted to refinance with a new appraisal of $1.84 million.
He again worked with Rodriguez on the application. Another
CPA letter was needed in order to keep the bank from trying
to figure out Desmond’s employment. Espino then wrote a
second CPA verification letter, indicating Desmond was self-
employed and that she had prepared his last two tax returns.
He defaulted on the loan within two years, and the bank lost
half a million dollars.

    A couple of years later, Homeland Security subpoenaed
Desmond’s loan file. In it they found Espino’s income
verification document. Agents went to her office, showed her
the letter, and asked her about Rodriguez. She indicated that
she did not know that name. Counsel then subpoenaed her
before the grand jury where she testified that she was a tax
preparer and had provided letters in the past for people who
                     UNITED STATES V. ESPINO                   5

have filed self-employment taxes. She stated she created
these letters only for her own clients. When shown the letter
in question, she testified that the signature was hers, but this
is not the letter she wrote. She indicated she wrote something
about Desmond coming to her in the future, but she never met
him personally. She testified this appeared to be a cut and
paste letter. She further testified she could not confirm
details, as her laptop with all of her relevant records had been
stolen shortly before she testified before the grand jury.

    Thereafter, during a search of Rodriguez’s office, agents
found the letter from Espino to Rodriguez, the faxed cover
sheet, and the second income verification letter from Espino
to Rodriguez. They also found letters indicating that Espino
had been paid to create these documents, and self-
employment verification letters Espino had prepared for
different clients.

    In 2011 a grand jury returned an indictment against
Rodriguez and twenty-five other defendants for wire-fraud
and conspiracy to commit wire-fraud. Espino was charged
with a single count (Count 15) of giving false declarations
before a grand jury in violation of 18 U.S.C. § 1623. In
particular, the indictment alleged that Espino lied about
(1) “whether she had heard Jesse Rodriguez’s name before”
and (2) “whether she had signed a letter that contained, in
part, the following language: ‘for the last two years I have
been filing and consulting Sean Desmond a private
investigating detective on his taxes.’”2




   2
       The third allegation in the indictment was dismissed.
6                UNITED STATES V. ESPINO

     In March of 2016, Espino proceeded with a jury trial. She
argued primarily that (1) she did not remember sending the
letter to Rodriguez, and (2) even if she did remember, she did
not knowingly lie to the grand jury. The government called
Homeland Security Special Agent Philip Portiera as a
witness. He testified as to his meeting with Espino at her
office; eight email exhibits found on her home computer and
email account; and the refinance letter. The government also
called Marina Carmelo and Jose Sanchez who testified about
a loan package Espino prepared for them, wherein she used
similar income-verification letters. The government then
called Desmond who testified that he was a police officer and
never worked at SD Private Detective and Consulting.
Desmond further identified three tax transcripts from the IRS,
showing his and his wife’s stated income was between
$100,000 and $131,000 per year. He stated that he did not
know Espino and had not seen the letter she prepared.

    Espino called one witness, a handwriting expert, who
testified that she could not tell whether or not it was Espino’s
signature on the letter. The jury deliberated for less than an
hour and then found Espino guilty.

                STANDARD OF REVIEW

    When a defendant fails to object to a verdict form, we
review for plain error. United States v. Pineda- Doval,
614 F.3d 1019, 1031 (9th Cir. 2010). To determine whether
the jury was misled, we must consider the instructions and the
verdict form together. See Boggs v. Lewis, 863 F.2d 662, 666
(9th Cir. 1988) (citing Maddox v. City of Los Angeles,
792 F.2d 1408, 1418 (9th Cir. 1986)). The burden is on the
defendant to show the following: (1) “an error or defect,”
(2) that is “clear or obvious,” and (3) that “affected the
                  UNITED STATES V. ESPINO                      7

appellant’s substantial rights, which in the ordinary case
means he must demonstrate that it ‘affected the outcome of
the district court proceedings.”’ Puckett v. United States,
556 U.S. 129, 135 (2009). With regard to the fourth prong,
“the court of appeals has the discretion to remedy the error-
discretion which ought to be exercised only if the error
‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.”’ Id. “Meeting all four prongs is
difficult, ‘as it should be.’” Id.

                        DISCUSSION

    Initially, Espino requested that the verdict form require
the jury to find that she made two different false statements
to secure a conviction, since she was charged in the
conjunctive. The district court discussed a special verdict
form that would separate the two statements. The court
suggested an instruction that would state: “do you
unanimously find beyond a reasonable doubt that she made
a false statement with respect to this response or that
response.” The government agreed “as long as the jury is
instructed that they have to be unanimous as to the specific
fact that they need to find . . . there doesn’t need to be any
further inquiry beyond that.” The district court drafted a
verdict form with both statements. The government then
suggested a simpler verdict form, stating: “the more words
you add, the greater chance there is for some confusion or us
misstating something … that could be problematic on
appeal.” The court then agreed and decided not to use a
special verdict form. Instead, the district court crafted the
following instruction: “We the jury in the above entitled
cause unanimously find, beyond a reasonable doubt, that the
defendant, Flora Espino is: ________ of providing materially
8                 UNITED STATES V. ESPINO

false testimony to the Grand Jury.”           Espino did not
immediately object.

    The jury deliberated less than an hour and returned with
the word “guilty” on the verdict form. Espino then objected
to the verdict form, arguing it “unfairly shifted the burden to
the defense to prove … the defendant not guilty beyond a
reasonable doubt.” The court responded “that objection is
late, sir. But regardless, the instruction indicated that their
verdict had to be unanimous whether it was guilty or not
guilty.” The government agrees that the verdict form was
erroneous, as it required Espino to prove her innocence.
However, the government cites a number of cases dealing
with similar verdict forms, arguing they hold that even though
such a verdict form is erroneous, the defective verdict form
did not affect the defendant’s substantial rights. See United
States v. Rodriguez, 735 F.3d 1, 13 (1st Cir. 2013) (“Having
failed to establish prejudice, defendants cannot show that the
language in the verdict form constituted plain error sufficient
to warrant a new trial.”); United States v. Cardinas Garcia,
596 F.3d 788, 799 (10th Cir. 2010) (“But even so, any error
on the verdict form does not require reversal. We look to the
jury instructions as a whole, and, in that light we are satisfied
the jury was not misled about the government's burden of
proving guilt beyond a reasonable doubt. Cardinas therefore
fails to overcome the third prong of the plain error
standard—whether the error affected his substantial rights.”).
The government asserts that the error in this case is harmless
because the instructions on the proper burden of proof
overcome this issue.
                 UNITED STATES V. ESPINO                      9

    We agree the verdict form language was clearly
erroneous, thereby satisfying the first two prongs of the plain
error analysis. The wording set forth in the jury verdict form
indicated that the jury would have to find Espino not guilty
beyond a reasonable doubt. A reading that Espino had the
burden of proving herself innocent creates significant
constitutional issues. See Sullivan v. Louisiana, 508 U.S.
275, 277 (1993) (“What the factfinder must determine to
return a verdict of guilty is prescribed by the Due Process
Clause.”); id. at 278 (“[T]he jury verdict required by the Sixth
Amendment is a jury verdict of guilty beyond a reasonable
doubt.”); In re Winship, 397 U.S. 358, 364 (1970).

    Still, the burden on the defendant is heavy, and she must
show the error affected her substantial rights. Rodriguez,
735 F.3d at 11. When looking at prejudice, “it is entirely
appropriate to consider the verdict form in conjunction with
the jury instructions and the trial record as a whole.” Pulido
v. Chrones, 629 F.3d 1007, 1016 (9th Cir. 2010). The district
court instructed the jury on the government’s burden of proof
beyond a reasonable doubt in both the preliminary and final
instructions. The jury instructions taken as a whole, read in
conjunction with the verdict form, clearly outlined the
burdens of proof and the reasonable doubt standard. The
instructions, on numerous occasions, clearly indicated that the
jury must find guilt beyond a reasonable doubt, and Espino
points to no other instructions, other than the verdict form,
that she believes shifted that burden to her.
10                   UNITED STATES V. ESPINO

    Although we find that, in this case, the erroneous verdict
form was harmless, we reaffirm that a defendant’s right to be
found guilty only upon proof beyond a reasonable doubt is
sacrosanct.3

     AFFIRMED.




     3
     In In re Winship, 397 U.S. 358, 361–62 (1970), the Supreme Court
noted:

         The requirement that guilt of a criminal charge be
         established by proof beyond a reasonable doubt dates at
         least from our early years as a Nation. The ‘demand for
         a higher degree of persuasion in criminal cases was
         recurrently expressed from ancient times, (though) its
         crystallization into the formula ‘beyond a reasonable
         doubt’ seems to have occurred as late as 1798. It is
         now accepted in common law jurisdictions as the
         measure of persuasion by which the prosecution must
         convince the trier of all the essential elements of guilt.’
         C. McCormick, Evidence, § 321, pp. 681—682 (1954);
         see also 9 J. Wigmore, Evidence, § 2497 (3d ed. 1940).
         Although virtually unanimous adherence to the
         reasonable-doubt standard in common-law jurisdictions
         may not conclusively establish it as a requirement of
         due process, such adherence does ‘reflect a profound
         judgment about the way in which law should be
         enforced and justice administered.’ Duncan v.
         Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 1451,
         20 L.Ed.2d 491 (1968).
