                                                                            FILED
                           NOT FOR PUBLICATION                              MAY 26 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50271

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03616-L-1

 v.
                                                 MEMORANDUM*
SELENE LUGO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                        Argued and Submitted May 8, 2015
                              Pasadena, California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.

      Selene Lugo appeals her conviction for importing methamphetamine in

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

1291. Reviewing for plain error, United States v. Sanchez, 659 F.3d 1252, 1256

(9th Cir. 2011), we reverse and remand.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Lugo argues that the prosecutor made a number of improper arguments

during closing and rebuttal arguments. We agree. First, the prosecutor not only

argued facts that were not in evidence, he used the Treasury Enforcement

Communications System (“TECS”) records of Lugo’s prior border crossings as

propensity evidence after assuring the district court in pretrial proceedings that the

evidence was offered to prove dominion and control by the defendant over the car.

Despite the fact that there was no evidence that Lugo ever smuggled drugs on any

prior occasion, the prosecutor repeatedly and extensively argued that the vehicle’s

prior crossings show that Lugo had smuggled drugs before. For example, the

prosecutor argued that “run[ning] drugs across the border” was “her thing,” and

“she was down for it” whenever the drug traffickers “needed somebody to bring a

load across,” that she was not nervous because she had gotten away with

smuggling drugs before, and that she was finally caught because “her luck ran

out.” In essence, the thrust of the prosecutor’s use of the TECS records was that

Lugo had smuggled drugs before on numerous occasions, and that she acted in

accordance with that propensity on this particular occasion. See Fed. R. Evid.

404(b); cf. United States v. Vega, 188 F.3d 1150, 1154 (9th Cir. 1999) (holding

that prior border crossings can constitute 404(b) evidence).




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      Second, the prosecutor compounded his improper arguments concerning the

TECS records with a number of other troubling comments. For example, when

arguing that the jury should reject Lugo’s defense theory—i.e., that she was an

unwitting drug courier—the prosecutor stated, “Or is what is more reasonable is

that this was a load vehicle, and the compartment was there, and she was lucky on

those other occasions when she drove the car into the United States because they

too were loaded with drugs? Which is more reasonable for you to believe?” These

statements likely caused jury confusion and diluted the government’s burden of

proof. Cf. Estelle v. McGuire, 502 U.S. 62, 69 (1991) (“[T]he prosecution must

prove all the elements of a criminal offense beyond a reasonable doubt.”); United

States v. Velasquez, 980 F.2d 1275, 1278-79 & n.1 (9th Cir. 1992) (upholding a

district court’s instruction that “[p]roof beyond a reasonable doubt is proof that

leave[s] you firmly convinced that the defendant is guilty”). Finally, the

prosecutor twice asserted that the government’s evidence was “overwhelming,”

despite the fact that the evidence was, as the district court observed, “thin.”

      Even on plain error review, we conclude that the government’s improper

arguments prejudiced Lugo’s trial and seriously affected the fairness, integrity, or

public reputation of the proceedings. See Sanchez, 659 F.3d at 1256. The

government had a “thin” circumstantial evidence case. At the time of her arrest,


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Lugo was twenty-two years old and living at home with her parents. She had no

prior convictions or arrests. She made no incriminating statements to law

enforcement about her knowledge, and a defense expert testified that the altered

compartment felt and appeared similar to an identical, non-altered vehicle of the

same make and model. Lugo testified, and the government argues that the jury

simply disbelieved her testimony. But the government fails to acknowledge that it

unfairly put its thumb on the scale by insinuating that Lugo was a repeat offender.

A repeat offender is less likely to be believed, and that’s precisely why propensity

evidence—that she did it before and now she’s doing it again—is prohibited. The

court failed to issue curative instructions, and the bulk of the prosecutor’s

propensity arguments occurred during rebuttal closing, further “ensuring that it was

the last argument the jury heard before going to the jury room to deliberate.” Id. at

1261. Viewed in context and in its entirety, the government’s prosecutorial

misconduct warrants a reversal.

      We are disturbed that, even on appeal, the government fails to recognize and

concede error. Instead, the government insists that the TECS records alone support

an inference that the prior crossings were drug smuggling runs. Not so. The

argument was sheer speculation, and we find the error particularly serious when

the prosecutor who tried this case—and presumably his office—were aware that


                                           4
there is an alternative explanation for repeated border crossings, such as the

practice of “burning the plates” to reduce suspicion. See, e.g., United States v.

Fitzgerald, No. 13-CR-1937-JLS, ECF No. 31, pp. 11-14 (S.D. Cal. Dec. 9, 2013).

The government’s failure to recognize error is even more troubling because the

government recently reassured this court that it would conduct training on the

appropriate boundaries of closing argument. See United States v. Maloney, 755

F.3d 1044, 1046 (9th Cir. 2014) (en banc) (noting that the Southern District of

California assured us that its training would “reinforce the principle that all

Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument

and must make every effort to stay well within these rules”).

      REVERSED AND REMANDED.




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