United States of America v. Selene Lugo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SELENE LUGO,
Defendant - Appellant.
No. 14-50271
D.C. No. 3:13-cr-03616-L-1
MEMORANDUM*
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.
FILED
MAY 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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
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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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