United States of America v. Elizabeth Gonzalez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELIZABETH GONZALEZ,
Defendant-Appellant.
No. 17-50292
D.C. No.
3:16-cr-03036-MMA-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted October 9, 2018**
Pasadena, California
Before: SCHROEDER, M. SMITH, and NGUYEN, Circuit Judges.
A jury convicted Elizabeth Gonzalez of importing cocaine and heroin into
the United States in violation of 21 U.S.C. §§ 952, 960. Gonzalez drove a car to
the United States-Mexico border with a hidden compartment containing the
narcotics. The central issue at trial was whether Gonzalez knew that the narcotics
* 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).
FILED
OCT 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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were in the car, which she claimed were put there by her fiancé.
On appeal, Gonzalez alleges that trial counsel was ineffective for failing to
present expert testimony about her gullibility at the trial, rather than at the
sentencing stage. Instead of an expert, defense counsel called Gonzalez’s sister to
testify that Gonzales was “gullible, naïve, and immature for her age.” At the
sentencing, however, trial counsel presented an expert opinion that Gonzalez’s low
verbal comprehension and working memory scores showed that she is easily
influenced by others. Gonzalez also faults her trial counsel for arranging a meeting
with the prosecutor before trial, calling her as the first witness in the defense case,
and presenting an inadequate opening statement and closing argument.
Generally, “we do not review ineffective assistance of counsel claims on
direct appeal.” United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). As
we explained in another case in which mental health was at issue, direct appellate
review is not appropriate because “defense counsel has not had an opportunity to
explain his actions” and “[t]he record is also undeveloped with regard to
[defendant’s] purported mental health defense, as the government has not
conducted its own psychological evaluation.” United States v. Moreland, 622 F.3d
1147, 1157 (9th Cir. 2010). Nor was counsel’s representation “so inadequate that
it obviously denie[d]” Gonzalez her Sixth Amendment right to counsel. There may
have been strategic reasons behind counsel’s decisions before and during trial.

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Benford, 574 F.3d at 1231 (internal quotations omitted). Therefore, this is not “an
exceptional case that merits review on direct appeal.” United States v. Alferahin,
433 F.3d 1148, 1160 n.6 (9th Cir. 2006).
AFFIRMED.

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