                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   18-50389

                Plaintiff - Appellee,           D.C. No. 3:17-cr-02799-BAS-1

 v.
                                                MEMORANDUM*
LUZ DIVINA CARO-GUTIERREZ,

                Defendant - Appellant.

                   Appeal from the United States District Court
                 for the Southern District of California, San Diego
                   Cynthia A. Bashant, District Judge, Presiding

                            Submitted January 8, 2020**
                               Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,*** District
Judge.




      *
             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).
      **
            The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
      Luz Caro-Gutierrez appeals from the district court’s judgment and

challenges her jury-trial conviction for one count of importing cocaine in violation

of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291.

      During trial, the Government meant to move to admit a short video excerpt

from Caro-Gutierrez’s post-arrest interview, but it mistakenly moved to admit a

video of the entire interview, which included Caro-Gutierrez’s invocation of her

Miranda rights. Defense counsel immediately and successfully objected, but in

doing so stated in front of the jury: “I believe that she invoked.” Attributing the

need for the defendant’s objection to the Government’s wrongful proffer, the

defense on appeal argues that this created a Doyle violation.

      In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the U.S. Supreme Court held

that it is a due process violation to use a defendant’s post-arrest silence for

impeachment purposes. Contrary to Caro-Gutierrez’s argument, defense counsel’s

comment did not create a Doyle violation for two reasons. First, the Government

did not “use for impeachment purposes” Caro-Gutierrez’s post-arrest silence.

Greer v. Miller, 483 U.S. 756, 763 (1987) (citation omitted); see also United States

v. Stubbs, 944 F.2d 828, 835 (11th Cir. 1991) (“[A] single mention does not

automatically suffice to violate defendant’s rights when the government does not

specifically and expressly attempt to use . . . the improper comment to impeach the

defendant.” (citation omitted)). Second, the district court not only sustained the


                                           2
objection but also took proper curative measures in its jury instruction. See Greer,

483 U.S. at 764–66.

      Furthermore, even if defense counsel’s government-induced remark were a

Doyle violation, no reversal would be warranted as the alleged error “was harmless

beyond a reasonable doubt.” United States v. Ramirez-Estrada, 749 F.3d 1129,

1133 (9th Cir. 2014). This Court considers three factors in assessing harmlessness

of a Doyle error: “[1] the extent of comments made by the witness, [2] whether an

inference of guilt from silence was stressed to the jury, and [3] the extent of other

evidence suggesting defendant’s guilt.” Id. at 1137 (citation omitted) (alterations in

original). The first two factors clearly favor the Government, because defense

counsel’s comment at issue was limited quantitatively and qualitatively and

because the Government did not attempt at all to use Caro-Gutierrez’s silence to

suggest guilt. And as to the third factor, Caro-Gutierrez’s guilt was very strongly

suggested by other evidence, such as her dominion and control over her vehicle,

the changes made to the vehicle to accommodate the importation scheme, and

various text messages and photos on her phone.

      Defendant’s only other argument for reversal is her claim that, under Fed. R.

Evid. 403, the district court erred in admitting the fact that Caro-Gutierrez received

a computer-generated referral for secondary inspection. This evidence was

probative because it explained why Caro-Gutierrez was sent to the secondary


                                          3
inspection area, providing background information for the relevant officers’

testimony. In addition, the evidence was not unfairly prejudicial, because the

testimony regarding the computer-generated alert did not suggest that the alert

showed Caro-Gutierrez’s knowledge of the drugs in her car; rather, the

Government elicited testimony that the alert might have been random, thus not

suggestive of Caro’s guilt.

      Moreover, there was no objection under Rule 403 raised at the time, and so,

even assuming arguendo that there was an error, it was not plain error. See United

States v. Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011) (“[I]n view of the inherently

fact-specific nature of the Rule 403 balancing inquiry, and the special deference to

which district courts’ decisions to admit evidence pursuant to that Rule are entitled,

it is the rare exception when a district court’s decision to admit evidence under

Rule 403 constitutes plain error.”) (citation omitted) (alterations in original).

      AFFIRMED.




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