F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

F L O R A E S P I N O , Defendant-Appellant. No. 16-50344

D.C. No. 3:11-cr-03486-J A H-6

OPI NI O N

A ppeal from the United States District Court for the Southern District of California J ohn A. Houston, District J udg e, Presiding

A rg ued and Submitted F ebruary 7, 2018 Pasadena, California

F iled J une 18, 2018

B efore: Consuelo M. Callahan and J acqueline H. Ng uy en, Circuit J udg es, and J oseph F . B ataillon, * District J udg e.

Opinion by

J udg e B ataillon

* T h e Ho n o rab le J o sep h F. B ataillo n , Un ited States District J u dg e f or th e District o f

Neb rask a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. E S P I N O 2

SUMMARY * *

Crim inal Law

The panel affirmed a conviction f or ly ing to a g rand jury

. Reviewing for plain error, the panel held that the verdict form

– which indicat e d t h a t the jury w ould have to find the defendant n ot g uilty bey ond a reasonable doubt – was clearly
erroneous, but t h a t the error was harmless because the jury instruction s taken as a whole, read in conjunction with the verdict f o r m , c learly outlined the burdens of proof and the reasonable doubt standard.

COUNSEL

Ke n n e t h J

. Troiano (arg u ed), San Dieg o, California, for Defendant-Appellant.

Daniel E. Z ipp (arg

ued), Assistant United States A t t o rney ; Helen H

. H ong , Chief, Appellate Section, Criminal D ivision; United States Attorney ’s Office, San Dieg o , California; for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. E S P I N O 3

OP INION

B ATAI L L O N, District J udg e :

The jury convicted defendant F lora Espino o f ly ing to a g rand jury

in violation of 18 U.S.C. § 1623. Espino appeals and arg ues that the district court e rred as a m at ter of law in the la n gu a g e used in the verdict form and its subsequent submission to t h e jury

. Espino c ontends the district court shifted the b urden of proof, requiring the jury to find her not g uilty bey ond a reasonable doubt. W e ag ree that the instruction was erroneous, but we affirm because E spino has not shown that the error was prejudicial. 1

BACK G ROUND

Espino w orked as a tax preparer f or a real estate broker in Spring Valley

, California. O ne borro w e r , Sean Desmond, served as a p o l i c e officer at the Chula Vista Police Department. I n 2006 he attempted to buy a $1.6 million home. As a police officer, h is salary was $90,000 at the time. To assist him with qualify ing for this loan, he w orked with a broker named J esse Rodrig uez to prepare the loan a pplication with a subst a n t i ally inflated income. Rodrig uez listed Desmond as self-employ ed at a fictitious business c alled “San Dieg o Private Detectiv e and Consulting ,” with an annual income of $415,200. I n fact, Desmond was not employ ed at this firm, n o r d i d he make such an income. The mortg ag e lender a g reed to make the loan, but only if it received a verification letter from a CPA reg arding the income.

1 Esp in o ’ s o th er g ro u n d s f o r rev ersal are d ecli n e d i n a s ep arate,

co n cu rren t ly

f iled m em o ran d u m

d isp o s itio n

.U N I T E D S T A T E S V

. E S P I N O 4

Rodrig uez then emaile d a n associate named Adam F ukushima and asked for a CPA letter, and indicated the CPA mig ht b e contacted. T hereafter, upon request, E spino created a verification letter for Desmond on her letterhead stating :

[ F ] or the last two y ears I have been filing a nd

c o n s u l t i n g S e a n D e s m o n d a p r i v a t e investig ating detective on h is tax es. Mr. Desmond has not had a ny chan g e in employ ment and has filed as self-employ ed for the past two y ears. I f y ou h a ve any questions reg arding Mr. Desmond fill [ sic] free to contact me. . . .

She f ax ed the lette r t o Rodrig u ez with a cover sheet stating “CPA L etter” and addressed to “J esse Rodrig u e z ” a nd sig ned “ F lora Espino.” The lender t h e n a p proved the $1.6 million dollar loan for Desmond. A y e a r later, D esmond attempted to refinance w ith a new appraisal of $1.84 million. He ag ain worked with Rodrig uez on the a pplication. Another CPA letter w as needed in order to keep the bank from try ing
to fig u re out Desmond’s employ ment. Espino then w r o t e a second CPA verification letter, indicating Desmond was selfemploy e d and that she had prepared h is last two tax returns. He defaulted on the loan within two y ears, and the bank lost half a million dollars.

A c ouple of y ears later, Homeland Security subpoenaed Desmond’s loan file. I n it they found Espino’s income verification document. Ag e nts went to her office, showed her the letter, and asked her about Rodrig u ez

. She indicated that she did not know that name. Counsel then subpoenaed her before the g rand jury where she testi fi e d t hat she was a tax preparer and had provided letter s i n t he past for people w hoU N I T E D S T A T E S V

. E S P I N O 5

have filed self-empl oy

ment tax es. She stated she created these letters only for h er own clients. W hen shown the letter in question, she testified that the sig nature was hers, b ut this is not the letter she wrote. She indicated she wrote something about Desmond coming to her in the f uture, but she never met him personally

. She testified this appeared to be a c u t and paste letter. She further testified she could not confirm details, as her laptop w ith all of her relevant records had been stolen shortly

before she testified before the g rand jury

.
Thereafter, during a search of Rodrig uez ’s office, ag ents found the letter f

rom Espino to Rodrig uez , the f a x e d cover sheet, and the second income verification letter f rom Espino
to Rodrig u ez

. They also found letters indicating that Espino had been paid to create the s e d ocuments, and selfemploy ment verification let ters E spino had prepared for different clients.

I n 2011 a g rand jury r e t u r n ed a n indictment ag ainst Rodrig uez and twenty -five other defendants f or w ire-fraud and conspiracy to commit wire-fraud. Espino w a s charg ed with a sing le count ( Count 15) of g iving false d eclarations before a g rand jury in violation of 18 U.S

. C

. § 1623. I n particular, the indictment a lleg ed that Esp i n o l ied about (1) “ whether she had heard J esse Rodrig uez ’s n a m e b efore” and (2) “whether she h a d s i gned a letter that contained, in part, t h e fo l l owing lang uag e: ‘for the last two y e ars I have been f ilin g a n d consulting Sean Desmond a private investig ating detective on his tax e s.’” 2

2 T h e th ird alleg atio n

in th e in d ictm en t w as d ism issed

.U N I T E D S T A T E S V

. E S P I N O 6

I n March of 2016, Espino proceeded with a jury trial. She
arg ued primarily that (1) she did n ot remember sending the letter to Rodrig uez , and (2) even if she did remember, she did
not knowing ly lie to the g rand jury

. T he g overnment called Homeland Security Special Ag ent Philip Portiera as a witness. He testified as t o h is meeting with Espino a t her office; eig ht email ex hibits found on her home computer a nd email account; and the refinance letter. The g overnment also called Marina Carmelo and J ose Sanchez who testified about

a loan packag e Espino prepare d for them, wherein she used similar income-verification le t t e rs. The g overnment then called D esmond who testified that he was a police officer a nd

never worked at SD Private Detective and Consulti ng

. Desmond further identified three tax transcripts from the I RS, showing his and his w i f e’s stated income was b etween $100,000 and $131,000 per y ear. He stated t h a t he did not know Espino and had not seen the letter she prepared.

Espino call e d o ne witness, a handwriting ex pert, w ho testified that she could not tell whether or not it was Espino’s sig nature on the letter. The jury deliberated for l es s t h a n an hour and then found Espino g u ilty

.

STANDARD OF REVIEW

W h en a defendant fails to object to a verd i c t form, we review f o r p l ain error. United States v. P ineda- Doval

, 614 F .3d 1 019, 1031 (9th Cir. 2010). To determine whether the jury was misled, we must c o nsider the instructions and the verdict form tog ether. See Boggs v. Lewis
, 863 F .2d 662, 666 (9th Cir. 1988) (citing M a d d o x v. City of Los Angeles

, 792 F. 2 d 1408, 1 418 (9th Cir. 1986)). The b urden is on the defendant to show the f

ol l o w i ng : (1) “an error or d efect,” (2) that is “clear or ob v i o u s,” and (3) that “ affected theU N I T E D S T A T E S V

. E S P I N O 7

a p pellant’s substantial rig hts, which in the ordinary c as e

m e a n s he must d emonstrate that it ‘affected the o u tcome o f the dis t r i ct court proceeding s.”’ Puckett v. United States
, 556 U.S. 129, 135 (2009). W i t h reg ard to the fourth p rong , “the court of appeals has the discretion to remedy the errord i scretion which oug ht to be ex ercised only if the error ‘seriously affect[ s] the f

airness, integ rity or public reputation of judicial proc e e d ing s.”’ Id. “Meeting all four prong s is difficult, ‘as it should be.’” Id.

D ISCUSSION

I nitially

, Espino requested that t h e v erdict f orm require the jury to find that she ma d e t wo d ifferent false statements to secure a convict i o n , since she was charg e d in the

co n junctive. The district court discussed a special verdict form that would separate the two s t a tements. The court sug g ested an instruction that would state: “do y ou unanimously find bey ond a r easonable do u b t that she made

a f alse statement with respect to this response o r t h at response.” T he g o vernment a g reed “as lo n g as the jury is instructed that they have to be u n a n imous as to the specific fact that they need to f

ind

. . . there doesn’t need to be any further inquiry bey ond that.” The district court drafted a verdict form w ith b oth statements. The g overnment then
sug g ested a simpler v e r d i c t form, stating : “the more words
y ou a dd, the g reater chance there is for some confusion o r us misstating something

... that could be p r o blematic on appeal.” T he c o u r t t h en a g reed and decided not to use a special verdict form. I n s t e a d

, the district court crafted the following instruction: “W e t h e jury in the above entitled

cause u nanimously find, bey ond a reasonable doubt, that the defendant, F lora Espino is:

________ of providing materiallyU N I T E D S T A T E S V

. E S P I N O 8

false testimony to the G rand J ury .” E spino d i d not immediately

object.

T he jury d eliberated less than an hour and returne d w i t h the word “g

u ilty ” on the verdict form. Espino then objected
to the verdict form, arg uing it “unfairly shifted the burden to the defense to prove

... the defendant not g uilty bey ond a reasonable doubt.” The court responded “that obje c tion is late, sir. B ut reg ardles s , t h e instruction indicated that their verdict had t o b e unanimous whether it was g uilty or not g uilty .” The g overnment ag ree s t h a t the verdict form was erroneous, as it r e q u ired Espino to prove her innocence. However, the go v e rnment c ites a number o f cases dealing with similar v erdict forms, arg uing they h old that even thoug h such a v e r d i c t form is erroneous, the d efective verdict form did n ot affect the defendant ’s s u b stantial rig hts. See United States v

. Rodriguez , 735 F .3d 1, 13 (1st Cir. 2013) ( “Having failed to establish prejudice, defendants cannot show that the lang uag e in the verdict f

orm constituted p lain error sufficient
to warrant a new trial.”); United States v. Cardinas G arcia
, 596 F .3d 788, 799 (10th Cir. 2010) ( “ Bu t even so, any error

on the verdict form does not require reversal. W e look to the jury instructions as a whole, a nd, in that lig ht we are satisfied the jury was not misled a bout the g o vernment' s burden o f proving g uilt bey ond a reasonable doubt. Cardinas therefore fails to overcome the third prong of t h e plain error standard—whether the error affected h is substantial rig hts.”). The g overnment asserts that the error in this case is harmless because t h e i n structions on the p roper burden of proof overcome this issue.U N I T E D S T A T E S V

. E S P I N O 9

W e ag ree the verdict f o r m lang uag e was clearly
erroneous, thereby satisfy ing the first two prong s o f the plain

error analy sis. The wording set forth in the jury verdict form in dicated that the jury would have to find Espino n ot g uilty bey ond a reasonable doub t

. A reading that Espino h ad the burden of p r o ving herself innocent creates sig nificant constitutional issu e s

. See Sullivan v. Louisiana
, 508 U.S. 275, 2 77 ( 1993) (“W hat the factfinder must d e t ermine to return a verd i c t o f g uilty is prescribed by the Due Process Clause.”); id

. at 278 (“[ T] he jury verdict required by the Six th Amendment is a jury verdict of gu i l t y bey o n d a reasonable doubt.”); In re W

inship , 397 U.S. 358, 364 (1970)

.
Still, the burden on the defendant is heavy , and she must show the error affected her substantial righ t s. Rodriguez

, 735 F .3d at 11. W hen looking at prejudice, “it is en t i r ely appropriate to consider the verdict form in conjunction w ith 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 g overnment’s burden of proof bey ond a reasonable doubt in both the preliminary and final instructions. The jury instructions t ak e n as a whole, read in conjunc tion with the verdict form, c learly outlined the b u r dens of proof and the reasonable doubt standard. T h e instruct i o n s , o n n

u merous occasions, clearly indicated that the jury must find g uilt bey ond a re a s o n a ble doubt, and Espino
p o i n ts to no other instructions, other than the verdict for m , that she believes shifted that burden to her.U N I T E D S T A T E S V

. E S P I N O 10

Althoug h w e find that, in this case, the erroneous verdict form was harmless, we reaffirm that a defendant’s rig ht to be found g uilty only u

pon proof bey ond a reasonable doubt is
sacrosanct. 3

AF F IRMED.

3 In In re W

in sh ip
, 3 9 7 U .S. 3 5 8, 3 6 1

– 62 (1 9 7 0 ), th e Su p rem e Co u rt

n o ted :

T h e req u irem en t t h a t g u ilt o f a crim in al ch arg e b e estab lish ed b y p ro o f b ey o n d a reaso n ab l e d o u b t d ates at least f ro m o u r early y ears as a Natio n

. T h e ‘ d em an d f or

a h ig h er d eg ree o f persu asio n in crim in al cases w as

recu rren t l y ex p ressed f

ro m an cien t tim es, (th ou g h ) its
cry stallizatio n in t o th e f

o rm u la ‘ b ey o n d a reaso n ab le d o u b t’ s e e m s t o h av e o ccu rred as late as 1 7 98

. It is

n o w acc ep ted in co m

m o n law j u risd ictio n s as th e

m easu re o f p ersu asio n b y w h i ch th e p ro secu tio n m

u s t

co n v in ce th e trier o f all th e essen tial elem en ts o f g u ilt.’ C. McCo rm ick

, Ev id en ce, § 3 2 1
, p p

. 6 8 1 —6 8 2 (1 9 5 4 );

see also 9 J

. W ig m o re, Ev id en ce, § 2 49 7 (3 d ed

. 1 9 4 0 ). A lth o u g h v i rtu ally u n an im o u s ad h er en ce to th e

reaso n ab le- d o u

b t stan d ard in co m

m o n

- law ju

r i s d i c t i o n s

m ay n o t co n clu siv ely estab lis h it as a req u irem en t of d u e p ro ce s s , su ch ad h eren ce d o es ‘ ref lect a p ro f

o u n d j u d g m en t ab o u t t

h e w ay in w

h ich law sh o u ld b e

en f o rced an d j u st i c e ad m in istered .’ Du nca n v. Lo u isia n a , 3 9 1 U.S. 1 4 5
, 15 5
, 88 S

. C t

. 1 4 4 4
, 1 4 5 1
, 2 0 L .Ed .2 d 4 9 1 (1 9 6 8 ).