FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FLORA ESPINO,

Defendant-Appellant.

No. 16-50344

D.C. No.

3:11-cr-03486-JAH-6

OPINION

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted February 7, 2018

Pasadena, California

Filed June 18, 2018

Before: Consuelo M. Callahan and Jacqueline H. Nguyen,

Circuit Judges, and Joseph F. Bataillon,* District Judge.

Opinion by Judge Bataillon

* The Honorable Joseph F. Bataillon, United States District Judge for

the District of Nebraska, sitting by designation.
2 UNITED STATES V. ESPINO

SUMMARY**

Criminal Law

The panel affirmed a conviction for lying to a grand jury.

Reviewing for plain error, the panel held that the verdict

form – which indicated that the jury would have to find the

defendant not guilty beyond a reasonable doubt – was clearly

erroneous, but that the error was harmless because the jury

instructions taken as a whole, read in conjunction with the

verdict form, clearly outlined the burdens of proof and the

reasonable doubt standard.

COUNSEL

Kenneth J. Troiano (argued), San Diego, California, for

Defendant-Appellant.

Daniel E. Zipp (argued), Assistant United States Attorney;

Helen H. Hong, Chief, Appellate Section, Criminal Division;

United States Attorney’s Office, San Diego, California; for

Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ESPINO 3

OPINION

BATAILLON, District Judge:

The jury convicted defendant Flora Espino of lying to a

grand jury in violation of 18 U.S.C. § 1623. Espino appeals

and argues that the district court erred as a matter of law in

the language used in the verdict form and its subsequent

submission to the jury. Espino contends the district court

shifted the burden of proof, requiring the jury to find her not

guilty beyond a reasonable doubt. We agree that the

instruction was erroneous, but we affirm because Espino has

not shown that the error was prejudicial.1

BACKGROUND

Espino worked as a tax preparer for a real estate broker in

Spring Valley, California. One borrower, Sean Desmond,

served as a police officer at the Chula Vista Police

Department. In 2006 he attempted to buy a $1.6 million

home. As a police officer, his salary was $90,000 at the time. 

To assist him with qualifying for this loan, he worked with a

broker named Jesse Rodriguez to prepare the loan application

with a substantially inflated income. Rodriguez listed

Desmond as self-employed at a fictitious business called “San

Diego Private Detective and Consulting,” with an annual

income of $415,200. In fact, Desmond was not employed at

this firm, nor did he make such an income. The mortgage

lender agreed to make the loan, but only if it received a

verification letter from a CPA regarding the income.

1 Espino’s other grounds for reversal are declined in a separate,

concurrently filed memorandum disposition.
4 UNITED STATES V. ESPINO

Rodriguez then emailed an associate named Adam

Fukushima and asked for a CPA letter, and indicated the CPA

might be contacted. Thereafter, upon request, Espino created

a verification letter for Desmond on her letterhead stating:

[F]or the last two years I have been filing and

consulting Sean Desmond a private

investigating detective on his taxes. Mr.

Desmond has not had any change in

employment and has filed as self-employed

for the past two years. If you have any

questions regarding Mr. Desmond fill [sic]

free to contact me. . . .

She faxed the letter to Rodriguez with a cover sheet

stating “CPA Letter” and addressed to “Jesse Rodriguez” and

signed “Flora Espino.” The lender then approved the $1.6

million dollar loan for Desmond. A year later, Desmond

attempted to refinance with a new appraisal of $1.84 million. 

He again worked with Rodriguez on the application. Another

CPA letter was needed in order to keep the bank from trying

to figure out Desmond’s employment. Espino then wrote a

second CPA verification letter, indicating Desmond was selfemployed and that she had prepared his last two tax returns. 

He defaulted on the loan within two years, and the bank lost

half a million dollars.

A couple of years later, Homeland Security subpoenaed

Desmond’s loan file. In it they found Espino’s income

verification document. Agents went to her office, showed her

the letter, and asked her about Rodriguez. She indicated that

she did not know that name. Counsel then subpoenaed her

before the grand jury where she testified that she was a tax

preparer and had provided letters in the past for people who
UNITED STATES V. ESPINO 5

have filed self-employment taxes. She stated she created

these letters only for her own clients. When shown the letter

in question, she testified that the signature was hers, but this

is not the letter she wrote. She indicated she wrote something

about Desmond coming to her in the future, but she never met

him personally. She testified this appeared to be a cut and

paste letter. She further testified she could not confirm

details, as her laptop with all of her relevant records had been

stolen shortly before she testified before the grand jury.

Thereafter, during a search of Rodriguez’s office, agents

found the letter from Espino to Rodriguez, the faxed cover

sheet, and the second income verification letter from Espino

to Rodriguez. They also found letters indicating that Espino

had been paid to create these documents, and selfemployment verification letters Espino had prepared for

different clients.

In 2011 a grand jury returned an indictment against

Rodriguez and twenty-five other defendants for wire-fraud

and conspiracy to commit wire-fraud. Espino was charged

with a single count (Count 15) of giving false declarations

before a grand jury in violation of 18 U.S.C. § 1623. In

particular, the indictment alleged that Espino lied about

(1) “whether she had heard Jesse Rodriguez’s name before”

and (2) “whether she had signed a letter that contained, in

part, the following language: ‘for the last two years I have

been filing and consulting Sean Desmond a private

investigating detective on his taxes.’”2

2

 The third allegation in the indictment was dismissed.
6 UNITED STATES V. ESPINO

In March of 2016, Espino proceeded with a jury trial. She

argued primarily that (1) she did not remember sending the

letter to Rodriguez, and (2) even if she did remember, she did

not knowingly lie to the grand jury. The government called

Homeland Security Special Agent Philip Portiera as a

witness. He testified as to his meeting with Espino at her

office; eight email exhibits found on her home computer and

email account; and the refinance letter. The government also

called Marina Carmelo and Jose Sanchez who testified about

a loan package Espino prepared for them, wherein she used

similar income-verification letters. The government then

called Desmond who testified that he was a police officer and

never worked at SD Private Detective and Consulting. 

Desmond further identified three tax transcripts from the IRS,

showing his and his wife’s stated income was between

$100,000 and $131,000 per year. He stated that he did not

know Espino and had not seen the letter she prepared.

Espino called one witness, a handwriting expert, who

testified that she could not tell whether or not it was Espino’s

signature on the letter. The jury deliberated for less than an

hour and then found Espino guilty.

STANDARD OF REVIEW

When a defendant fails to object to a verdict form, we

review for plain error. United States v. Pineda- Doval,

614 F.3d 1019, 1031 (9th Cir. 2010). To determine whether

the jurywas misled, we must consider the instructions and the

verdict form together. See Boggs v. Lewis, 863 F.2d 662, 666

(9th Cir. 1988) (citing Maddox v. City of Los Angeles,

792 F.2d 1408, 1418 (9th Cir. 1986)). The burden is on the

defendant to show the following: (1) “an error or defect,”

(2) that is “clear or obvious,” and (3) that “affected the
UNITED STATES V. ESPINO 7

appellant’s substantial rights, which in the ordinary case

means he must demonstrate that it ‘affected the outcome of

the district court proceedings.”’ Puckett v. United States,

556 U.S. 129, 135 (2009). With regard to the fourth prong,

“the court of appeals has the discretion to remedy the errordiscretion which ought to be exercised only if the error

‘seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.”’ Id. “Meeting all four prongs is

difficult, ‘as it should be.’” Id.

DISCUSSION

Initially, Espino requested that the verdict form require

the jury to find that she made two different false statements

to secure a conviction, since she was charged in the

conjunctive. The district court discussed a special verdict

form that would separate the two statements. The court

suggested an instruction that would state: “do you

unanimously find beyond a reasonable doubt that she made

a false statement with respect to this response or that

response.” The government agreed “as long as the jury is

instructed that they have to be unanimous as to the specific

fact that they need to find . . . there doesn’t need to be any

further inquiry beyond that.” The district court drafted a

verdict form with both statements. The government then

suggested a simpler verdict form, stating: “the more words

you add, the greater chance there is for some confusion or us

misstating something ... that could be problematic on

appeal.” The court then agreed and decided not to use a

special verdict form. Instead, the district court crafted the

following instruction: “We the jury in the above entitled

cause unanimously find, beyond a reasonable doubt, that the

defendant, Flora Espino is: ________ of providingmaterially
8 UNITED STATES V. ESPINO

false testimony to the Grand Jury.” Espino did not

immediately object.

The jury deliberated less than an hour and returned with

the word “guilty” on the verdict form. Espino then objected

to the verdict form, arguing it “unfairly shifted the burden to

the defense to prove ... the defendant not guilty beyond a

reasonable doubt.” The court responded “that objection is

late, sir. But regardless, the instruction indicated that their

verdict had to be unanimous whether it was guilty or not

guilty.” The government agrees that the verdict form was

erroneous, as it required Espino to prove her innocence. 

However, the government cites a number of cases dealing

with similar verdict forms, arguing they hold that even though

such a verdict form is erroneous, the defective verdict form

did not affect the defendant’s substantial rights. See United

States v. Rodriguez, 735 F.3d 1, 13 (1st Cir. 2013) (“Having

failed to establish prejudice, defendants cannot show that the

language in the verdict form constituted plain error sufficient

to warrant a new trial.”); United States v. Cardinas Garcia,

596 F.3d 788, 799 (10th Cir. 2010) (“But even so, any error

on the verdict form does not require reversal. We look to the

jury instructions as a whole, and, in that light we are satisfied

the jury was not misled about the government's burden of

proving guilt beyond a reasonable doubt. Cardinas therefore

fails to overcome the third prong of the plain error

standard—whether the error affected his substantial rights.”). 

The government asserts that the error in this case is harmless

because the instructions on the proper burden of proof

overcome this issue.
UNITED STATES V. ESPINO 9

We agree the verdict form language was clearly

erroneous, thereby satisfying the first two prongs of the plain

error analysis. The wording set forth in the jury verdict form

indicated that the jury would have to find Espino not guilty

beyond a reasonable doubt. A reading that Espino had the

burden of proving herself innocent creates significant

constitutional issues. See Sullivan v. Louisiana, 508 U.S.

275, 277 (1993) (“What the factfinder must determine to

return a verdict of guilty is prescribed by the Due Process

Clause.”); id. at 278 (“[T]he jury verdict required by the Sixth

Amendment is a jury verdict of guilty beyond a reasonable

doubt.”); In re Winship, 397 U.S. 358, 364 (1970).

Still, the burden on the defendant is heavy, and she must

show the error affected her substantial rights. Rodriguez,

735 F.3d at 11. When looking at prejudice, “it is entirely

appropriate to consider the verdict form in conjunction with

the jury instructions and the trial record as a whole.” Pulido

v. Chrones, 629 F.3d 1007, 1016 (9th Cir. 2010). The district

court instructed the jury on the government’s burden of proof

beyond a reasonable doubt in both the preliminary and final

instructions. The jury instructions taken as a whole, read in

conjunction with the verdict form, clearly outlined the

burdens of proof and the reasonable doubt standard. The

instructions, on numerous occasions, clearlyindicated that the

jury must find guilt beyond a reasonable doubt, and Espino

points to no other instructions, other than the verdict form,

that she believes shifted that burden to her.
10 UNITED STATES V. ESPINO

Although we find that, in this case, the erroneous verdict

form was harmless, we reaffirm that a defendant’s right to be

found guilty only upon proof beyond a reasonable doubt is

sacrosanct.3

AFFIRMED.

3

In In re Winship, 397 U.S. 358, 361–62 (1970), the Supreme Court

noted:

The requirement that guilt of a criminal charge be

established by proof beyond a reasonable doubt dates at

least from our early years as a Nation. The ‘demand for

a higher degree of persuasion in criminal cases was

recurrently expressed from ancient times, (though) its

crystallization into the formula ‘beyond a reasonable

doubt’ seems to have occurred as late as 1798. It is

now accepted in common law jurisdictions as the

measure of persuasion by which the prosecution must

convince the trier of all the essential elements of guilt.’

C. McCormick, Evidence, § 321, pp. 681—682 (1954);

see also 9 J. Wigmore, Evidence, § 2497 (3d ed. 1940).

Although virtually unanimous adherence to the

reasonable-doubt standard in common-lawjurisdictions

may not conclusively establish it as a requirement of

due process, such adherence does ‘reflect a profound

judgment about the way in which law should be

enforced and justice administered.’ Duncan v.

Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 1451,

20 L.Ed.2d 491 (1968).