United States of America v. ANTONINO ESTRADA PARTIDA, Jr., AKA Junior

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONINO ESTRADA PARTIDA, Jr.,
AKA Junior,
Defendant-Appellant.
No. 18-50084
D.C. No.
8:16-cr-00026-JVS-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DELIA MARIA PARTIDA, AKA Delia
Marie Partida, AKA Delia Marie Venegas,
AKA Delia Marie Zaragoza,
Defendant-Appellant.
No. 18-50136
D.C. No.
8:16-cr-00026-JVS-2
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted December 10, 2020**
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Pasadena, California
Before: O’SCANNLAIN and OWENS, Circuit Judges, and KENNELLY,***
District Judge.
Antonino Estrada Partida, Jr. (“Antonino”) and Delia Maria Partida
(“Delia”) appeal their convictions by a jury for conspiracy to distribute
methamphetamine in violation of 21 U.S.C. § 846, and, as to Antonino, for
distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(viii). We affirm the defendants’ convictions but remand to the district
court to modify three of the defendants’ supervised release conditions.
Antonino argues that the district court abused its discretion by permitting the
government to introduce highly prejudicial gang testimony at trial without properly
weighing its probative value and unfairly prejudicial effect under Federal Rule of
Evidence 403. We review the district court’s ruling that Delia opened the door to
the otherwise inadmissible testimony and its decision to admit the evidence over
Antonino’s Rule 403 objections for abuse of discretion. United States v. Curtin,
489 F.3d 935, 943 (9th Cir. 2007) (en banc); see also United States v. Wells, 879
F.3d 900, 924 (9th Cir. 2018) (explaining that “the demands of Rule 403” are
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.

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satisfied if we can “easily find that the lower court implicitly balanced the
probative value against the prejudicial effect” (internal quotation marks and
citations omitted)).
Delia “introduc[ed] potentially misleading testimony” and created a “false
impression” during cross-examination of a government witness by eliciting
testimony that suggested there was law enforcement overkill in the investigation
that led to the defendants’ arrests for drug dealing. See United States v. Beltran-
Rios, 878 F.2d 1208, 1212 (9th Cir. 1989); see also United States v. Segall, 833
F.2d 144, 148 (9th Cir. 1987). To rebut this inference, the government elicited on
redirect testimony that the investigation involved significant law enforcement
resources because the police were targeting coordinated gang activity in the
defendants’ neighborhood. See Beltran-Rios, 878 F.2d at 1212 (determining that
the district court did not abuse its discretion when it “concluded that the
Government should have an opportunity to rebut the inference that defense counsel
was trying to raise”). The district court did not abuse its discretion when it
admitted limited testimony along these lines, and it adequately considered and
addressed Antonino’s Rule 403 objections to minimize unfair prejudice. See
Wells, 879 F.3d at 924.
The defendants also argue that the prosecutor committed misconduct during
the rebuttal argument by vouching for certain witnesses’ credibility, trivializing the

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“reasonable doubt” standard of proof, and disparaging the defense counsel and the
defense’s tactics—all of which, the defendants contend, violated their right to a fair
trial.
“A criminal conviction will not be overturned on the basis of a prosecutor’s
comments unless in context they affected the fundamental fairness of the trial.”
United States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir. 2012). Because
the defendants did not object during the government’s argument, we review for
plain error and may reverse only if “there is (1) an error (2) that is plain and (3)
that affects substantial rights.” Id. at 1146.
The defendants’ argument that the prosecutor committed improper vouching
is unavailing. During closing argument, defense counsel argued that the
government’s witnesses were lying and biased and had ulterior motives, which
prompted a “direct response to defense counsel’s express statements to the jury
that government witnesses were lying.” See United States v. Wilkes, 662 F.3d
524, 540 (9th Cir. 2011). As in Wilkes, “the prosecutor here merely argued that its
witnesses were telling the truth; an argument the prosecutor had to make in order
to convict [the defendants].” See id. (internal quotation marks and citations
omitted).
The defendants’ other arguments regarding prosecutorial misconduct during
rebuttal also lack merit and do not give rise to plain error. In many instances, we

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have rejected claims of misconduct similar to those that the defendants assert in
this case. See, e.g., United States v. Rude, 88 F.3d 1538, 1547-48 (9th Cir. 1996)
(rejecting the argument that “the prosecutor’s opening statement was peppered
with inflammatory jingles” that “persisted throughout the trial, including the
prosecution’s statements in closing arguments”); see also Williams v. Borg, 139
F.3d 737, 745 (9th Cir. 1998) (“A lawyer is entitled to characterize an argument
with an epithet as well as a rebuttal.”). “Prosecutors have considerable leeway to
strike ‘hard blows’ based on the evidence and all reasonable inferences from the
evidence.” United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000).
Because plain error is lacking, reversal is unwarranted.
Finally, the parties agree that we should remand with instructions to correct
three supervised release conditions which, after the defendants in this case were
sentenced, were invalidated by United States v. Evans, 883 F.3d 1154 (9th Cir.
2018). We held in Evans that three “standard” conditions of supervised release—
(1) to “meet . . . family responsibilities,” (2) to “work regularly,” and (3) to “notify
third parties of risks that may be occasioned by [the defendant’s] criminal record or
personal history or characteristics”—are unconstitutionally vague. Id. at 1162-64.
Accordingly, we remand to the district court to modify these supervised release
conditions.
For the foregoing reasons, we AFFIRM the defendants’ convictions, but

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REMAND to the district court to modify three of the supervised release conditions
it imposed on the defendants.

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