NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,

Plaintiff

- Appell ee ,

v. LUZ DIVINA CARO

- GUTIERREZ ,

Defendant

- Appell ant

. No. 18

- 50389
D.C. No. 3 : 17

- c r - 02799

- BAS

- 1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California, San Diego Cynthia A. Bashant , District Judge , Presiding Submitted January 8 , 20 20 * * 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, sittin g by designation. 

# FILED

JAN 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

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 cou nsel 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, 61 9 (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

commen t 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, 7 63 (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 the3

objection but also took proper curative measures in its jury instruction. See Greer , 483 U.S. at 764

– 6 6

. Furthermore, e ven if def

ense 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 import ation 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 ref erral for secondary inspection. Th is evidence was probative because it explained why Caro

- Gutierrez was sent to the secondary4

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 be en random, thus not

s uggestive 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 ev idence under Rule 403 constitutes plain error.” ) (citation omitted) (alterations in original)

. AFFIRMED .