FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALFRED VELAZQUEZ,

Defendant-Appellant.

No. 19-50099

D.C. No.

3:17-cr-03707-

BAS-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted July 8, 2020

Pasadena, California

Filed June 23, 2021

Before: Richard A. Paez and Bridget S. Bade, Circuit 

Judges, and Eric F. Melgren,* District Judge.

Opinion by Judge Paez;

Dissent by Judge Bade

* The Honorable Eric F. Melgren, United States District Judge for 

the District of Kansas, sitting by designation.
2 UNITED STATES V. VELAZQUEZ

SUMMARY**

Criminal Law

The panel vacated a conviction for importing controlled 

substances into the United States, and remanded for a new 

trial, in a case in which the defendant testified he did not 

know the car he was driving contained drugs.

During closing argument, the prosecutor compared the 

reasonable doubt standard to the confidence one needs to 

“hav[e] a meal” or “travel to . . . court”—without worrying 

about the “possib[ility]” that one will get sick or end up in 

an accident. The panel held that the prosecutor engaged in 

misconduct by trivializing the reasonable doubt standard 

and, as a result, caused the defendant substantial prejudice. 

The panel wrote that the prosecutor’s comments regarding 

the government’s burden of proof diverged significantly 

from what is required at trial, and was troubled by the 

suggestion that reasonable doubt can be compared to an 

“everyday” experience. The panel was not convinced that 

the district court’s providing the correct instruction and 

admonishing the jury earlier during closing argument 

sufficiently neutralized the prejudice. The panel did not 

believe that the evidence demonstrating the defendant’s

knowledge of the drugs was so overwhelming that the 

prosecutor’s misstatements were harmless.

Dissenting, Judge Bade agreed that the prosecutor’s 

comments were at best unhelpful, and potentially 

misleading, but wrote that the record overwhelmingly 

** 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. VELAZQUEZ 3

establishes that the comments did not affect the verdict and, 

thus, the defendant’s due process rights were not violated.

COUNSEL

Carlton F. Gunn (argued), Pasadena, California, for 

Defendant-Appellant.

Benjamin Holley (argued) and Nicole Ries Fox, Assistant 

United States Attorneys; Daniel E. Zipp, Chief, Appellate 

Section, Criminal Division; Robert S. Brewer, Jr., United 

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

California; for Plaintiff-Appellee.
4 UNITED STATES V. VELAZQUEZ

OPINION

PAEZ, Circuit Judge:

A jury convicted Alfred Velazquez of importing 

controlled substances into the United States, in violation of 

21 U.S.C. § 960. At trial, Velazquez took the stand and 

testified he did not know the car he was driving contained 

drugs—what is sometimes referred to as the “blind mule” 

defense.

Velazquez asserts multiple errors at trial, but we need 

focus only on one. During closing argument, the 

government compared the reasonable doubt standard to the 

confidence one needs to “hav[e] a meal” or “travel to . . . 

court”—without worrying about the “possib[ility]” that one 

will get sick or end up in an accident. Velazquez claims that 

this improper argument, and the district court’s failure to 

cure it, caused him prejudice. We agree. We have 

jurisdiction under 28 U.S.C. § 1291. We vacate Velazquez’s 

conviction and remand for a new trial.

I.

In July 2017, Velazquez was driving from Mexico into 

the United States when he encountered Customs and Border 

Protection Officer Sean Hanlon at the Otay Mesa Port of 

Entry. Velazquez provided his temporary driver’s license 

and told the officer he was going to the Department of Motor 

Vehicles (DMV) to obtain permanent identification. The 

officer asked Velazquez who owned the car, and Velazquez 

said the car belonged to his cousin.

Velazquez was sent to secondary inspection. As the 

officer took Velazquez to secondary inspection, he 

understood Velazquez to say: “I don’t know why you’re 
UNITED STATES V. VELAZQUEZ 5

searching me or bothering me. I’m just going to meet up 

with my mom.” The officer asked Velazquez about his 

earlier statement about going to the DMV. Velazquez 

explained that “he was going to pick up his mom and then 

going to go to the DMV to hang out.”

The officer searched the car in secondary inspection. 

The officer opened the hood and saw that the engine “was 

heavily tampered.” Velazquez gave the officer permission 

to open the intake manifold, where the officer found two 

packages. Later testing revealed the packages contained 

over 2,000 grams of a mixture and substance containing 

fentanyl and heroin, which was worth almost $150,000.

Velazquez was arrested, and Department of Homeland 

Security Agent Kevin Day interrogated him. Velazquez 

denied knowing about the drugs.

A. The Trial

Velazquez was indicted for importation of fentanyl and 

importation of heroin. Velazquez pled not guilty and 

proceeded to trial.

1. The Government’s Case-in-Chief

At trial, the government presented two main witnesses, 

Officer Hanlon and Agent Day. Officer Hanlon—the officer 

who first encountered Velazquez at the port of entry—

testified about his initial observations of Velazquez. He 

testified that Velazquez “couldn’t maintain eye contact, . . . 

was continuously readjusting in his seat, and . . . his hands 

were shaking when he would hand me documents or his ID.” 

He also testified that the car was very clean and had little 

“personalization.” On cross-examination, however, the 

officer acknowledged that there were several personal items 
6 UNITED STATES V. VELAZQUEZ

in the car, such as a CD and “some other personal items” in 

the glove box, a can on the floor, a personal jacket or 

checkered top, a sun visor block in the back of the car, and a 

“shirt or some such thing that[ was] kind of strewn” in the 

back.

Agent Day—the interviewing agent—also testified. He 

testified about various documents, including registration 

papers showing that the car Velazquez was driving had been 

purchased for $300 two months before he was stopped at the 

border, from a seller identified as “Operadora de Autos.” 

Agent Day also testified about various records showing 

Velazquez had crossed the border over sixty times, with 

about half of the entries resulting in secondary inspections.

Defense counsel asked Agent Day whether he was aware 

of the concept of “blind mules.” Agent Day explained he 

had heard of blind mules with “magnet loads of marijuana,” 

but “[had] not heard of any hard narcotic blind mules, and 

I’ve not heard of any where the drugs are concealed inside 

the engine.” Agent Day provided additional testimony on 

redirect examination, explaining that blind mules typically 

involve marijuana, usually hidden underneath a vehicle in a 

way that is easily accessible, usually with a GPS monitor 

attached.

2. Velazquez’s Testimony

After the government rested its case-in-chief, Velazquez 

testified in his defense. He testified that he had been living 

with his girlfriend, Bella, in Tijuana, Mexico, but would 

frequently travel to the United States to help at his parents’ 

nursery and with sales at swap meets. He met Bella through 

her uncle, Juan, who worked at a car wash Velazquez used 

in Tijuana. He also testified that a man named Rayo lived 
UNITED STATES V. VELAZQUEZ 7

across the street from Juan and Bella and identified all their 

residences in photographs.

Velazquez also testified that Bella became distant shortly 

before his arrest and began seeing her former boyfriend 

Emmanuel, whose father was involved “big time” in drugs 

and controlled a large area in Tijuana. Velazquez also heard 

rumors that Juan and Rayo were mixed up in drugs. Bella’s 

father had been the victim of a drug-related murder.

Velazquez also testified about the car he was driving 

when he was arrested. He said he purchased it for $1,500 

from a man he met through Juan. He testified that he parked 

the car in a parking lot Juan had told him about, and both 

Juan and Rayo knew Velazquez parked the car there. When 

Velazquez helped his parents in the United States, he parked 

the car at their nursery and used their truck for deliveries and 

other business. Bella knew where the nursery was located 

because she had asked Velazquez to send her a photograph 

of the car at the nursery, and the photograph had a “pin 

location” that provided its geographic location.

Velazquez also testified about the events leading up to 

his arrest. He said that the night before the arrest, he had had 

a fight with Bella, but she later met him at Juan’s house to 

make up. Velazquez spent the night at Juan’s house. The 

next day, Velazquez drove his car to the border to “take care 

of [] things” at the DMV and then head over to his parents’ 

house. He clarified that what he meant when he told Officer 

Hanlon about going to the DMV and hanging out with his 

mother was that he was going to the DMV and then going to 

see his mother. He admitted that he lied when he said the 

car belonged to his cousin, but that he did so because border 

officers had confiscated a car his brother had given him just 
8 UNITED STATES V. VELAZQUEZ

two weeks earlier.1 He denied knowing anything about the 

drugs.

3. Jury Instruction and Closing Argument

Just before closing argument, the court instructed the 

jury on reasonable doubt. The court stated:

Proof beyond a reasonable doubt is proof that 

leaves you firmly convinced the defendant is 

guilty. It is not required that the government 

prove guilt beyond all possible doubt. A 

reasonable doubt is a doubt based on reason 

and common sense and is not based purely on 

speculation. It may arise from a careful and 

impartial consideration of all the evidence or 

from a lack of evidence. If after a careful and 

impartial consideration of all the evidence 

you are not convinced beyond a reasonable 

doubt that the defendant is guilty, it is your 

duty to find the defendant not guilty.

The prosecutor then began his closing argument and 

described the reasonable doubt standard: “Reasonable doubt 

is something that you make decisions about every single 

day.” Defense counsel objected. The district court did not 

sustain or overrule the objection, but it did instruct the jury 

to follow its instruction on reasonable doubt and “not as to 

what any attorney says the standard of reasonable doubt is.” 

1 Agent Day testified he was “familiar” with this seizure. Velazquez 

gave Agent Day the same reason for lying about the car’s ownership 

during his post-arrest statement, but the district court excluded that 

testimony as hearsay when defense counsel proffered it.
UNITED STATES V. VELAZQUEZ 9

The prosecutor then gave more examples of reasonable 

doubt:

It is something that you do every single day. 

So things like getting up, having a meal. 

You’re firmly convinced that the meal you’re 

going to have is not going to make you sick. 

But it is possible that it might not—that it 

might actually make you sick.

You got in your car or you travel to the court 

today. It is possible that you may have gotten 

in an accident, but you are firmly convinced 

that—the likelihood that you’ll be able to get 

to court safely.

During rebuttal, the prosecutor again told the jury that 

reasonable doubt “is something that you use every single day 

in your life.” Defense counsel objected that the prosecutor’s 

argument “diminishes the burden of proof.” This time, the 

district court overruled the objection and did not admonish 

the jury.

4. Verdict and Judgment

The jury returned a guilty verdict. The court 

subsequently sentenced Velazquez to 151 months in prison. 

Velazquez timely appealed.

II.

Velazquez contends that, despite the court’s instruction 

regarding reasonable doubt, the prosecutor trivialized the 

standard during closing argument and substantially 

prejudiced him. We agree.
10 UNITED STATES V. VELAZQUEZ

A prosecutor’s misstatements of law during closing 

argument provide grounds for reversal. United States v. 

Segna, 555 F.2d 226, 230–32 (9th Cir. 1977). We will not 

reverse a conviction, however, unless the prosecutor’s 

statements during closing argument “are so gross as 

probably to prejudice the defendant, and the prejudice has 

not been neutralized by the trial judge.” United States v. 

Birges, 723 F.2d 666, 672 (9th Cir. 1984) (quoting United 

States v. Parker, 549 F.2d 1217, 1222 (9th Cir. 1977)). To 

show prejudice, “[t]he defendant must show that it is more 

probable than not that the misconduct materially affected the 

verdict.” United States v. Tucker, 641 F.3d 1110, 1120 (9th 

Cir. 2011) (quoting United States v. Tam, 240 F.3d 797, 802 

(9th Cir. 2001)); Segna, 555 F.2d at 232. In close cases, 

however, we will not hesitate to reverse a conviction on the 

basis of a prosecutor’s misstatement of the law, even when 

reviewing for plain error. See Segna, 555 F.2d at 230–32.

On multiple occasions, we have reviewed de novo 

whether a challenged prosecutorial comment infringes on a 

defendant’s Fifth Amendment rights. United States v. 

Mikhel, 889 F.3d 1003, 1060 (9th Cir. 2018) (reviewing de 

novo prosecutor’s comment on defendant’s failure to 

testify); United States v. Inzunza, 638 F.3d 1006, 1023 (9th 

Cir. 2011) (reviewing de novo prosecutor’s comment on 

failure to call witness); United States v. Reyes, 660 F.3d 454, 

461 (9th Cir. 2011); United States v. Perlaza, 439 F.3d 1149, 

1169 n.22 (9th Cir. 2006). We recently acknowledged, 

however, potential intra-circuit conflict on the standard of 

review for challenges to prosecutorial comments, suggesting 

that we might instead review the court’s overruling of an 

objection to such comments “for abuse of discretion.” 

United States v. Wijegoonaratna, 922 F.3d 983, 989 (9th Cir. 

2019) (quoting United States v. Santiago, 46 F.3d 885, 892 

(9th Cir. 1995)). Nonetheless, even if an intra-circuit 
UNITED STATES V. VELAZQUEZ 11

conflict exists, “we are not prompted to call for our court to 

revisit the broader issue en banc” because we reach the same 

conclusion under either standard of review. Id. (citation and 

brackets omitted); see also Segna, 555 F.2d at 230–32 

(reversing conviction, even on plain error review, in a close 

case involving a prosecutor’s misstatement of the law). 

Here, we conclude the prosecutor engaged in misconduct by 

trivializing the reasonable doubt standard and, as a result, 

caused Velazquez substantial prejudice. We further 

conclude that the court failed to neutralize the prejudice.

In a criminal trial, “no person shall be made to suffer the 

onus of a criminal conviction except upon sufficient proof—

defined as evidence necessary to convince a trier of fact 

beyond a reasonable doubt of the existence of every element 

of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 

(1979). This standard of proof is “indispensable” to our 

criminal justice system and preserves three distinct interests. 

In re Winship, 397 U.S. 358, 364 (1970). First, it protects 

the defendant’s interest in being free from unjustified loss of 

liberty and the stigmatization that results from conviction. 

Id. at 363. Second, it engenders community confidence in 

the administration of justice by giving “concrete substance” 

to the presumption of innocence. Id. at 363–64. Third, it 

ensures “that the moral force of the criminal law [is not] 

diluted by a standard of proof that leaves people in doubt 

whether innocent men are being condemned.” Id. at 364. 

Thus, for a jury to convict a defendant under this high burden 

of proof, the jury must “reach a subjective state of near 

certitude of the guilt of the accused.” Jackson, 443 U.S. at 

315 (emphasis added).

In the final moments of a trial, the government’s 

principal purpose is to persuade the jury it has met its burden 

to show guilt beyond a reasonable doubt. Even against this 
12 UNITED STATES V. VELAZQUEZ

high burden, however, a prosecutor, as a representative of 

the government, wields considerable influence over a jury. 

See Berger v. United States, 295 U.S. 78, 88 (1935). With 

this power, a prosecutor can easily mislead the average juror 

into adopting his or her personal view of the law, even when 

that view diverges from the court’s own instruction. See id.; 

see also United States v. Parr-Pla, 549 F.2d 660, 662 (9th 

Cir. 1977) (per curiam) (“It is the duty of the court, not 

counsel, to advise the jury as to the law . . . .”). Because 

jurors can be swayed by such mischaracterizations, a 

prosecutor must be especially wary of making any comments 

that could, in effect, reduce its burden of proof.

The prosecutor’s comments here regarding the 

government’s burden of proof diverged significantly from 

what we require in a criminal trial. The prosecutor compared 

the reasonable doubt standard to making decisions like going 

for a drive or eating a meal—with the confidence that things 

will not go awry. Such decisions involve a kind of casual 

judgment that is so ordinary and so mundane that it hardly 

matches our demand for “near certitude” of guilt before 

attaching criminal culpability. See Jackson, 443 U.S. at 315. 

These decisions do not typically even involve an objective 

calculation of risk, but rather rest on the fallacious comfort 

that because these activities did not result in chaos yesterday, 

they will not today. Such examples are highly inappropriate 

and misleading. See People v. Nguyen, 46 Cal. Rptr. 2d 840, 

844–45 (Ct. App. 1995) (holding that prosecutor’s 

statements equating reasonable doubt with decisions like 

getting married or changing lanes while driving were 

improper).

We are also troubled by the suggestion that reasonable 

doubt can be compared to an “everyday” experience. The 

process of adjudicating guilt is a major and meticulous 
UNITED STATES V. VELAZQUEZ 13

undertaking. People do not, “every single day,” bear the 

solemn task of examining evidence and determining an 

accused’s guilt. The comparison—to reflexive, quotidian 

decisions like “getting up,” “having a meal,” and “travel[ing] 

to . . . court”—is flagrant and seriously distorts the 

standard.2 The government’s analogies reflect an effort—

even if unintentional—to “reduce [its] burden of proof.” See 

United States v. Henry, 545 F.3d 367, 383 (6th Cir. 2008)

(holding that prosecutor’s suggestion to the jurors that the 

decision of whether to convict the defendant was the same 

as deciding whether to recommend their child to take a job 

2 The examples deployed here are worse and involve less 

deliberation, scrutiny, and advice-seeking than those that have already 

been heavily criticized, such as “choosing a spouse, a job, a place to live, 

and the like.” Victor v. Nebraska, 511 U.S. 1, 24 (1994) (Ginsburg, J., 

concurring) (quoting Fed. Jud. Ctr. Pattern Crim. Jury Instr. No. 21 

(1987)). A committee of distinguished federal judges, reporting to the 

Judicial Conference of the United States, had criticized formulations 

containing such examples because they “generally involve a very heavy 

element of uncertainty and risk-taking” and are thus “wholly unlike the 

decisions jurors ought to make in criminal cases.” Id. Justice Ginsburg 

echoed these concerns, calling such examples “unhelpful.” Id. So have 

we, describing the concerns as “well stated.” United States v. JaramilloSuarez, 950 F.2d 1378, 1386 (9th Cir. 1991), as amended on denial of 

reh’g (Dec. 16, 1991). State courts are also in accord with this view. 

See, e.g., Nguyen, 46 Cal. Rptr. 2d at 844–45; Holmes v. State, 972 P.2d 

337, 343 (Nev. 1998) (“[P]rosecutorial commentary analogizing 

reasonable doubt with major life decisions such as buying a house or 

changing jobs is improper because these decisions involve elements of

uncertainty and risk-taking and are wholly unlike the kinds of decisions 

that jurors must make in criminal trials.”). Commentators, too. See, e.g., 

Michael D. Cicchini, Instructing Jurors on Reasonable Doubt: It’s All 

Relative, 8 Cal. L. Rev. Online 72, 74–75 (2017).
14 UNITED STATES V. VELAZQUEZ

with him was improper). District courts in this circuit have 

rightfully admonished such analogies.3

The government acknowledges, in a footnote, that courts 

have warned against such analogies to everyday decisions 

because they are “easily susceptible to erroneous 

interpretation.” Gov’t Br. at 57 n.3 (quoting Escobar v. 

Williams, 774 F. App’x 403, 403–04 (9th Cir. 2019)). It 

nonetheless argues that, in context, the prosecutor did not err 

because he also quoted language directly from the court’s 

instruction on the reasonable doubt standard, an instruction 

Velazquez does not contest. That instruction stated, in part, 

that “[p]roof beyond a reasonable doubt is proof that leaves 

you firmly convinced the defendant is guilty.” To be sure, 

the prosecutor tracked some of this language and projected 

the instruction on a screen during his closing argument. But 

he also mischaracterized the court’s directive to be “firmly 

convinced” by analogizing it to everyday judgment and 

scrutiny. By doing so, the prosecutor’s comments provided 

the only concrete examples of the cryptic phrase “firm 

conviction,” and, as a result, diluted its meaning. In other 

words, the phrase has less significance when it is equated to 

3 See, e.g., United States v. Ramos, No. 13-cr-00403, 2016 WL 

844789, at *7–9 (C.D. Cal. Feb. 29, 2016), aff’d in part, vacated in part, 

717 F. App’x 693, 695 (9th Cir. 2017); Horton v. McWean, No. 10-cv6428, 2012 WL 6110488, at *23 (C.D. Cal. Nov. 5, 2012) (“[The 

prosecutor’s] comparison of the reasonable doubt standard to everyday 

decisions made while crossing a street or stopping at a red light arguably 

trivialized the standard.”), report and recommendation adopted, No. 10-

cv-6428, 2012 WL 6131200 (C.D. Cal. Dec. 10, 2012); Suy v. Pliler, No. 

02-cv-2765, 2007 WL 4200451, at *5 (E.D. Cal. Nov. 21, 2007) (“[T]he 

prosecutor’s reference to everyday decisions, such as what grade to give 

a school assignment or whether a motorist is guilty of a traffic violation 

if he exceeds the speed limit, come close to improperly trivializing the 

reasonable doubt standard.”), report and recommendation adopted, No. 

02-cv-02765, 2008 WL 496432 (E.D. Cal. Feb. 21, 2008).
UNITED STATES V. VELAZQUEZ 15

the “everyday” confidence one possesses when deciding to 

drive, get up, or eat a meal. If anything, a reasonable juror 

could read the instruction and believe it was entirely 

compatible with the prosecutor’s characterization of the 

reasonable doubt standard.4 See Segna, 555 F.2d at 230–32 

(holding that, although “some of the prosecutor’s 

comments” correctly stated the law, the prosecutor’s 

erroneous statements of law constituted plain error).

Next, the government argues that even if the prosecutor’s 

statements trivialized the standard, the error was harmless 

because the court clarified for the jury that it was to follow 

the court’s instruction “and not as to what any attorney says 

the standard of reasonable doubt is.” Because the court 

provided the correct instruction and admonished the jury 

earlier during closing argument, the government argues, 

Velazquez suffered no prejudice.5 We are not convinced 

4 The dissent argues that defense counsel’s discussion of the 

reasonable doubt standard invited the prosecutor’s comment during 

rebuttal argument. But the invited response doctrine is not implicated 

here because the prosecutor’s initial improper statements preceded 

defense counsel’s argument. See United States v. Weatherspoon, 

410 F.3d 1142, 1150 (9th Cir. 2005). Perhaps for that reason, the 

government elected not to raise such an argument in its answering brief. 

Nonetheless, “even if any defense statements were somehow viewed as 

opening the door to a prosecutorial response,” the prosecutor’s comment 

“would still be inappropriate because ‘the prosecution is not allowed to 

use improper tactics even in response to similar tactics by the defense.’” 

Id. (quoting United States v. Sarkisian, 197 F.3d 966, 990 (9th Cir. 

1999)). “Prosecutors must understand the different—and special—place 

that they occupy in the criminal justice system,” which, “as 

representative of the United States[,] . . . demands the exercise of far 

better restraint and better judgment than was exhibited here.” Id.

5 The dissent argues in part that the district court neutralized the 

prosecutor’s improper statements by reminding the jury that the lawyers’ 

arguments are not evidence. Our concern, however, is not with the 
16 UNITED STATES V. VELAZQUEZ

that the court sufficiently “neutralized” the prejudice. See 

Birges, 723 F.2d at 672; United States v. Weatherspoon,

410 F.3d 1142, 1151 (9th Cir. 2005) (explaining 

prosecutor’s improper statements were prejudicial because 

“the trial was doubly flawed: Objections were [] made by 

defense counsel, and whatever curative statements were 

provided by the district judge were inadequate”). Although 

the district court initially instructed the jury to follow its 

instruction on reasonable doubt and “not as to what any 

attorney says the standard of reasonable doubt is,” the 

prosecutor then provided numerous improper examples that 

served to reduce the government’s burden of proof—all 

without further admonishment. And the district court 

overruled defense counsel’s second objection after the 

prosecutor, during his rebuttal, rehashed an identical 

argument that reasonable doubt was something the jurors 

used “every single day.” See Weatherspoon, 410 F.3d 

at 1151. By overruling the objection, the court naturally left 

the jurors with the impression that the prosecutor’s 

comparison of the reasonable doubt standard to an 

“everyday” judgment, and that the specific examples the 

prosecutor furnished, were proper. Moreover, the 

prosecutor’s distortion of the standard was among the last 

things the jury heard before they began deliberations, further 

exacerbating our concerns.6 The risk that the jury believed 

that convicting a defendant was akin to, in the prosecutor’s 

words, “getting up,” “having a meal,” or “travel[ing] to . . . 

prosecutor’s characterization of trial evidence, but with his trivialization 

of the reasonable doubt standard.

6 For this reason, the government’s citation to United States v. Flores 

is not persuasive, as the district court here did not read the correct 

statement of law “shortly after closing arguments.” See 802 F.3d 1028, 

1039 (9th Cir. 2015).
UNITED STATES V. VELAZQUEZ 17

court,” was therefore high.7 See id. at 1145–51 (holding that 

the prosecutor’s improper vouching and other statements 

during closing argument constituted plain error).

Last, we do not believe that the evidence demonstrating 

Velazquez’s knowledge of the drugs was so overwhelming 

that the prosecutor’s misstatements were harmless. The 

government’s case relied exclusively on circumstantial 

evidence, such as the value, type, and amount of drugs in the 

car; Velazquez’s purported nervousness when he was 

stopped and the inconsistency about where he was headed; 

the lack of personalization in his car; and Velazquez’s 

apparent attempt to distance himself from owning the car. 

None of these facts were uncontroverted or otherwise so 

damning that we are convinced the error was harmless.

To begin, the argument that the value, type, or amount of 

drugs found in Velazquez’s car would not have been stored 

there without his knowledge is, at best, speculative and has 

no support in the record. The only evidence potentially 

7 The regular presumption that the jury accepts the law as stated by 

the court, not as stated by counsel, is not determinative here because the 

likely prejudicial effect of the prosecutor’s trivialization of the 

reasonable doubt standard is high. See United States v. Medina 

Casteneda, 511 F.3d 1246, 1250 (9th Cir. 2008) (explaining on plain 

error review that the presumption was not overcome because the “jury 

never sought clarification of the standard, and the likely prejudicial 

effects of this misstatement of the law on the defendant in the context of 

the extensive closing arguments by both sides and proper jury 

instructions is very low”). The totality of the closing arguments likely 

left the jury with the impression that the prosecutor’s improper 

explanations of the reasonable doubt standard were consistent with the 

court’s instructions. This is particularly true where the court’s final word 

on the issue was to overrule defense counsel’s objection. Further, as 

explained below, the government’s evidence was not so overwhelming 

as to render the error harmless.
18 UNITED STATES V. VELAZQUEZ

supporting this view is Agent Day’s testimony about the 

characteristics of blind mules generally, but he had no 

personal knowledge of whether those attributes applied to 

Velazquez’s case in particular.

Further, as we have recognized, evidence about a 

defendant’s nervousness provides limited objective value 

and does not even create reasonable suspicion to detain a 

person, let alone affirm a conviction. See United States v. 

Chavez-Valenzuela, 268 F.3d 719, 726 (9th Cir. 2001) 

(“Encounters with police officers are necessarily stressful 

for law-abiders and criminals alike.”), amended, 279 F.3d 

1062 (9th Cir. 2002), overruled on other grounds by 

Muehler v. Mena, 544 U.S. 93 (2005); see also United States 

v. Wald, 216 F.3d 1222, 1227 (10th Cir. 2000) (stating 

evidence of nervousness “is of limited significance” (citation 

omitted)). In a similar vein, the fact that Velazquez initially 

told Officer Hanlon he was going to the DMV, and later told 

him that he was on his way to see his mother, is not an 

inconsistency that necessarily indicates a guilty conscience.

Additionally, Officer Hanlon’s testimony about the car’s 

lack of personalization was, as discussed above, undercut on 

cross-examination, as Velazquez’s car did contain several 

items that did indicate personalization, such as a CD and 

“some other personal items” in the glove box, a can on the 

floor, a personal jacket or checkered top, a sun visor block 

in the back, and a “shirt or some such thing that[ was] kind 

of strewn” in the back.

Finally, although Velazquez’s initial decision to lie 

about his cousin owning the car could, on the one hand, 

indicate consciousness of guilt, it was equally consistent 

with his testimony that he was afraid his car would again be 

impounded, just as his other car had been two weeks prior.
UNITED STATES V. VELAZQUEZ 19

To be sure, we do not suggest the government had no 

case against Velazquez or that the evidence demonstrating 

his knowledge of the drugs was wholly lacking. But our job 

is not to demonstrate Velazquez’s innocence or eliminate 

any inkling of guilt. Indeed, even if the government has 

presented a “strong circumstantial web of evidence against 

[Velazquez], it was also a case in which, absent the 

constitutionally forbidden comments, honest, fair-minded 

jurors might very well have brought in not-guilty verdicts.” 

Chapman v. California, 386 U.S. 18, 25–26 (1967) (citation 

and internal quotation marks omitted); see also Segna, 

555 F.2d at 230–32 (“Although the evidence was sufficient 

for us to sustain a finding of sanity by the jury, an objective 

review of the record, that is, one that does not view the 

evidence only in the light most favorable to the government 

as the prevailing party, reveals that the issue was extremely 

close.”).

In sum, the ultimate issue at trial boiled down to whether 

the government proved that Velazquez knew about the drugs 

in his car beyond a reasonable doubt. Reasonable doubt was 

the central theme of his defense. The prosecutor’s 

comments, however, created an unacceptable risk that an 

honest, fair-minded juror would succumb to the prosecutor’s 

personal—rather than constitutional—view of the 

government’s burden of proof to obtain a conviction and 

therefore overlook his or her reasonable doubts. Because the 

evidence demonstrating Velazquez’s knowledge was not 

overwhelming, and the district court failed to neutralize the 

prejudice, we conclude “that it is more probable than not that 

the misconduct materially affected the verdict.” Tucker, 

641 F.3d at 1120 (citation omitted).
20 UNITED STATES V. VELAZQUEZ

For the above reasons, we vacate Velazquez’s conviction 

and remand for a new trial.8

VACATED and REMANDED.

BADE, Circuit Judge, dissenting:

Alfred Velazquez was arrested at a port of entry as he 

attempted to enter the United States from Mexico with 

nearly four-and-a-half pounds of a mixture or substance 

containing fentanyl and heroin, worth nearly $150,000, in 

two packages concealed in the intake manifold of his car’s 

engine. He was indicted on one count of importing 

controlled substances into the United States, in violation of 

21 U.S.C. §§ 952 and 960. Velazquez presented a “blind 

mule” defense at trial and testified that he did not know the 

drugs were hidden in his car. After a two-day trial, the jury 

returned a guilty verdict in approximately three hours.

Velazquez argues that his conviction must be vacated 

because the prosecutor violated his due process rights by 

trivializing the reasonable doubt standard during closing 

argument. The majority agrees and concludes that the 

prosecutor’s comments in closing argument were improper 

and caused Velazquez substantial prejudice that the district 

court failed to neutralize. I agree that the prosecutor’s 

comments were, at best, “unhelpful,” Maj. Op. 13 n.2

(quoting Victor v. Nebraska, 511 U.S. 1, 24 (1994) 

(Ginsburg, J., concurring)), and potentially misleading. But 

“it ‘is not enough that the prosecutors’ remarks were 

8 In light of our disposition, we need not address Velazquez’s 

remaining arguments.
UNITED STATES V. VELAZQUEZ 21

undesirable or even universally condemned.’ The relevant 

question is whether the prosecutors’ comments ‘so infected 

the trial with unfairness as to make the resulting conviction 

a denial of due process.’” Darden v. Wainwright, 477 U.S. 

168, 181 (1986) (citations omitted). Here, the record 

overwhelmingly establishes that the prosecutor’s comments 

did not affect the verdict and, thus, Velazquez’s due process 

rights were not violated.

The majority vacates Velazquez’s conviction, but in 

doing so it overlooks almost the entire trial record and 

erroneously fails to consider the prosecutor’s comments in 

context. See United States v. Young, 470 U.S. 1, 11 (1985) 

(“[A] criminal conviction is not to be lightly overturned on 

the basis of a prosecutor’s comments standing alone, for the 

statements or conduct must be viewed in context; only by so 

doing can it be determined whether the prosecutor’s conduct 

affected the fairness of the trial.”); see also Boyde v. 

California, 494 U.S. 370, 385 (1990) (“[T]he arguments of 

counsel, like the instructions of the court, must be judged in 

the context in which they are made.” (citations omitted)).

Instead, the majority considers only isolated comments 

in the prosecutor’s closing and rebuttal arguments, and it 

presents these comments in a confusing and inaccurate 

manner.1

 The majority disregards defense counsel’s failure 

1 The majority’s failure to consider the prosecutor’s comments in 

context results in a confusing and inaccurate presentation of what 

occurred at trial. As described in detail below, there are three comments 

at issue. Nonetheless, I identify these three comments at the outset to 

clarify the discussion. First, in his closing argument, the prosecutor 

commented that “[r]easonable doubt is something that you make 

decisions about every single day”; defense counsel objected, and the 

court admonished the jury to follow the instructions on the standard of 

proof, not the attorneys’ arguments. The majority does not suggest that 
22 UNITED STATES V. VELAZQUEZ

to object to the comment that it appears to find most 

objectionable and repeatedly quotes in its opinion 

(specifically, the prosecutor’s second comment in his 

closing argument in which he compared being “firmly 

convinced,” the level of certitude needed to convict, to 

routine decisions involving getting up, having a meal, and 

driving). The majority also fails to consider the prosecutor’s 

comments in context with the jury instructions, the court’s 

repeated admonitions to the jury to ignore counsels’ 

arguments interpreting the reasonable doubt standard and to 

rely only on the court’s instructions, and defense counsel’s 

closing argument.

When properly considered in context, the record readily 

establishes that the prosecutor’s comments did not affect the 

verdict. See United States v. Tucker, 641 F.3d 1110, 1120 

(9th Cir. 2011) (explaining that the defendant must “show 

the court’s admonition failed to mitigate any prejudice from this 

comment. Second, immediately after the court’s admonition in response 

to the first comment, the prosecutor suggested that the jurors engage in 

daily activities—such as getting out of bed, eating, and driving—“firmly 

convinced” that they can perform each task safely. Defense counsel did 

not object to these comments. Third, in his rebuttal argument, the 

prosecutor commented that the reasonable doubt standard “is something 

that you use every single day in your life”; defense counsel objected, and 

the court overruled the objection. Significantly, the majority brushes 

aside Velazquez’s failure to object to the second comment and any 

import that may have on the standard of review. United States v. Tam, 

240 F.3d 797, 802 (9th Cir. 2001) (“We review claims of prosecutorial 

misconduct for plain error when the defendant did not object at trial, and 

for abuse of discretion when the district court denied an objection to 

closing argument.” (citation omitted)); see also United States v. Tucker, 

641 F.3d 1110, 1120 (9th Cir. 2011) (same). Even assuming Velazquez 

properly preserved review of each comment, his claim still fails because 

he cannot show that “it is more probable than not that the misconduct 

materially affected the verdict.” Tam, 240 F.3d at 802 (internal quotation 

marks and citation omitted).
UNITED STATES V. VELAZQUEZ 23

that it is more probable than not that the misconduct 

materially affected the verdict” (citation omitted)). And the 

record shows that the district court appropriately neutralized 

any potential prejudice. Id. at 1122; see also United States 

v. Birges, 723 F.2d 666, 672 (9th Cir. 1984) (“Improprieties 

in counsel’s arguments to the jury do not constitute 

reversible error unless they are so gross as probably to 

prejudice the defendant, and the prejudice has not been 

neutralized by the trial judge.” (internal quotation marks and 

citations omitted)). Thus, the majority’s conclusions cannot 

withstand a proper review of the record. I respectfully 

dissent.

I.

When reviewing a claim that improper argument 

violated a defendant’s due process rights, the “remarks must 

be examined within the context of the trial to determine 

whether the prosecutor’s behavior amounted to prejudicial 

error. In other words, the [c]ourt must consider the probable 

effect the prosecutor’s [comments] would have on the jury’s 

ability to judge the evidence fairly.” Young, 470 U.S. at 12. 

We have identified several relevant factors to consider “[i]n 

determining whether a comment rendered a trial 

constitutionally unfair.” Hein v. Sullivan, 601 F.3d 897, 

912–13 (9th Cir. 2010). These factors include “whether the 

comment misstated the evidence, whether the judge 

admonished the jury to disregard the comment, whether the 

comment was invited by defense counsel in its summation, 

whether defense counsel had an adequate opportunity to 

rebut the comment, the prominence of the comment in the 

context of the entire trial and the weight of the evidence.” 

Id. (citing Darden, 477 U.S. at 182). Here, applying these 

factors and examining the prosecutor’s comments in the 
24 UNITED STATES V. VELAZQUEZ

context of the trial readily establishes that Velazquez was not 

prejudiced by these comments.

A.

As an initial matter, the majority acknowledges that the 

district court properly instructed the jury on the reasonable 

doubt standard, but it ignores the rest of the court’s 

instructions. This is a crucial omission because we 

“assume[] that the jury listened to and followed the trial 

judge’s instructions.” United States v. Wells, 879 F.3d 900, 

937 (9th Cir. 2018) (citations omitted). And “[t]he jury is 

regularly presumed to accept the law as stated by the court, 

not as stated by counsel.” United States v. Medina 

Casteneda, 511 F.3d 1246, 1250 (9th Cir. 2008) (citation 

omitted). Therefore, we cannot conclude that the 

prosecutor’s statements were prejudicial without 

considering the district court’s instructions to the jury.

During the preliminary instructions, the district court 

repeatedly stated that the government must prove its case 

beyond a reasonable doubt and explained to the jury that 

“statements and arguments of the attorneys” are not 

evidence. Defense counsel then reiterated these points for 

the jury in his opening statement; he told the jurors 

repeatedly that the government must prove Velazquez’s guilt 

beyond a reasonable doubt, and defined reasonable doubt by 

stating: “In other words, the prosecutor has to eliminate all 

reasonable or logical possibilities that Mr. Velazquez is 

innocent. That’s the burden of proof.”

Before counsel’s closing arguments, the district court 

again instructed the jurors and told them: “You will have as 

many copies as you want of these instructions back in your 

jury room . . . . You’ll each have a chance to take a look at 

them back in the jury room if you need to go back and 
UNITED STATES V. VELAZQUEZ 25

consult anything.” The court repeatedly stated that the 

government had the burden of proof to establish Velazquez’s 

guilt beyond a reasonable doubt, and accurately defined the 

reasonable doubt standard, stating in part:

Proof beyond a reasonable doubt is proof that 

leaves you firmly convinced the defendant is 

guilty. It is not required that the government 

prove guilt beyond all possible doubt. A 

reasonable doubt is a doubt based on reason 

and common sense and is not based purely on 

speculation. It may arise from a careful and 

impartial consideration of all the evidence or 

from a lack of evidence.

The court again instructed the jury that “statements, 

objections, and arguments by the lawyers are not evidence,” 

and reiterated that “what the lawyers have said in their 

opening statements, will say in their closing arguments, and 

at other times is to help you interpret the evidence, but it is 

not evidence.”

After closing arguments, the court gave the jurors final 

instructions before excusing them to deliberate, and in those 

instructions, it again stated that the government must prove 

its case beyond a reasonable doubt, that the verdict must be 

based “only on the evidence received in this case and on 

these instructions,” and again told the jurors that it would 

send the written instructions to the jury room. Thus, the 

record demonstrates that the district court appropriately 

instructed the jury, the district court admonished the jury not 

to consider the attorneys’ arguments as evidence, and further 

explained that the verdict could only be based on the 

evidence and the instructions.
26 UNITED STATES V. VELAZQUEZ

B.

The majority omits and mischaracterizes crucial details 

from the record that make it difficult, if not impossible, to 

properly gauge the prejudicial effect of the prosecutor’s 

comments. Reviewing the prosecutor’s comments, defense 

counsel’s comments, the objections to those comments, and 

how the court responded in the context of the entirety of 

closing arguments makes it abundantly clear that it is not 

“more probable than not” that the prosecutor’s comments 

“materially affected the verdict.” See Tucker, 641 F.3d at 

1120, 1122 (citation omitted).

During the prosecutor’s closing argument, he stated once 

that the jurors applied the concept of reasonable doubt as part 

of “everyday” decision-making. The prosecutor stated that 

“[r]easonable doubt is something that you make decisions 

about every single day.” Defense counsel objected, stating: 

“That misstates the standard of reasonable doubt. Improper 

argument.” In response, the court admonished the jurors, 

stating: “[Y]ou will follow my instruction as to reasonable 

doubt and not as to what any attorney says the standard of 

reasonable doubt is. I instructed you on what the standard 

for reasonable doubt is, and you should follow that 

instruction.”

The prosecutor then continued his explanation of 

reasonable doubt, suggesting that the jurors engage in daily 

activities—such as getting out of bed, eating, and driving—

“firmly convinced” that they can perform each task safely. 

The majority quotes this portion of the prosecutor’s 

argument in its opinion, and it appears that it is this portion 

the majority finds most prejudicial. But the majority fails to 
UNITED STATES V. VELAZQUEZ 27

place this comment in context and omits that defense counsel 

did not object to this comment.2

The prosecutor concluded his discussion of reasonable 

doubt by stating: “The idea here is that it’s all about 

reasonable doubt. Not proof beyond all possible doubt.” 

The prosecutor’s comments on the reasonable doubt 

standard, in their entirety including the objection, the court’s 

response, and the comparison to daily activities, comprised 

one minute at the beginning of his thirty-five-minute closing 

argument. For the next thirty-two minutes, the prosecutor 

summarized and argued the evidence.

The majority concludes that the district court’s 

admonition in response to the objection to the prosecutor’s 

description of reasonable doubt did not “sufficiently 

‘neutralize[]’ the prejudice,” Maj. Op. 15–16 (quoting 

Birges, 723 F.2d at 672; United States v. Weatherspoon, 

2 Without distinguishing the comments to which defense counsel 

objected from comments to which he did not object, the majority 

suggests that there may be an intra-circuit conflict on the appropriate 

standard of review: de novo or abuse of discretion. But the majority 

concludes the result is the same under either standard and so it does not 

resolve this issue. However, the case that the majority cites to suggest 

that such a conflict exists, United States v. Wijegoonaratna, states that 

“[w]e usually review for abuse of discretion a district court’s overruling 

of an objection to prosecutorial misconduct.” 922 F.3d 983, 989 (9th 

Cir. 2019) (citations omitted). There, the court noted that the defendant 

suggested de novo review might apply and cited United States v. Perlaza, 

439 F.3d 1149, 1169 n.22 (9th Cir. 2006), where the court reviewed de 

novo whether a closing argument constituted prosecutorial misconduct. 

Wijegoonaratna, 922 F.3d at 988–89. But the court concluded that 

“Perlaza appears to have mistaken the standard of review” because it 

cited United States v. Santiago, 46 F.3d 885, 892 (9th Cir. 1995), “where 

we reviewed ‘the court’s overruling of the objection’ to the prosecutor’s 

comments at trial ‘for abuse of discretion.’” Wijegoonaratna, 922 F.3d 

at 989.
28 UNITED STATES V. VELAZQUEZ

410 F.3d 1142, 1151 (9th Cir. 2005)), because the prosecutor 

“provided numerous improper examples” that reduced the 

government’s burden of proof, “all without further 

admonishment.” Maj. Op. 16. But this description of the 

court’s response to the closing argument distorts what 

occurred. As set forth above, defense counsel did not object

to the prosecutor’s comment giving examples—getting out 

of bed, eating, and driving—which the prosecutor listed 

immediately after the court’s admonition that the jury should 

follow its instructions and not follow “what any attorney 

says the standard of reasonable doubt is.”

Apparently, the majority is suggesting that the district 

court should have sua sponte admonished the jury again—a 

few moments after its previous admonition—that it should 

not follow the attorneys’ arguments on reasonable doubt. 

This is an absurd and legally unsupported standard to 

determine whether a district court’s admonitions neutralized 

any prejudice from improper arguments. Instead, under 

Hein, the district court’s admonition should be considered as 

a factor that mitigated any prejudice from the prosecutor’s 

comment because “the judge admonished the jury to 

disregard the comment.” 601 F.3d at 912.

Moreover, “prosecutorial misrepresentations . . . are not 

to be judged as having the same force as an instruction from 

the court.” Boyde, 494 U.S. at 384–85. Therefore, 

“[o]rdinarily, a cautionary instruction is presumed to have 

cured prejudicial impact.” Dubria v. Smith, 224 F.3d 995, 

1002 (9th Cir. 2000) (en banc) (citation omitted); see United 

States v. Davis, 932 F.2d 752, 761 (9th Cir. 1991). In 

response to the only objection in this one-minute segment of 

the prosecutor’s closing argument, the district court properly 

admonished the jury and reminded the jurors of the 

instructions on the reasonable doubt standard, which they 
UNITED STATES V. VELAZQUEZ 29

had heard multiple times and which they would take with 

them in written form into the jury room. Thus, the record 

establishes that the district court appropriately neutralized 

any prejudice from the prosecutor’s comment and did not err 

by not sua sponte offering a second admonition a few 

seconds later.

Defense counsel also addressed the reasonable doubt 

standard in his closing argument. But unlike the 

prosecutor’s argument, which addressed the reasonable 

doubt standard for one minute, defense counsel devoted 

about twenty minutes, of his forty-six minute closing 

argument, to his explanation of the reasonable doubt 

standard. Thus, defense counsel’s lengthy argument on the 

reasonable doubt standard is another factor that mitigates 

any prejudice from the prosecutor’s comment because 

“defense counsel had an adequate opportunity to rebut the 

comment.” Hein, 601 F.3d at 912 (citation omitted).

In his closing argument, defense counsel stated that 

when the reasonable doubt instruction states that the 

government is not required to prove guilt “beyond all 

possible doubt,” that means “they don’t need to prove 

beyond any imaginary doubt or any fantasy.” He also stated 

that if the jurors, “using reason or logic could believe that 

reasonable doubt might be true, that equals reasonable 

doubt.” The prosecutor objected to both statements. The 

district court did not rule on the first objection, but instead 

again admonished the jurors that they should not follow the 

attorneys’ interpretations of the reasonable doubt standard. 

The district court stated: “[A]s I cautioned you before, the 

lawyers will have argument as to how you should interpret 

this, but the law that I gave you is the law that you should 

follow and not what the attorneys argue it to be.” The district 

court overruled the second objection, stating: “It’s 
30 UNITED STATES V. VELAZQUEZ

argument. The attorneys are simply arguing how you should 

interpret the law, but you should follow the law as I instruct 

you.”

Two minutes later, defense counsel reiterated his 

interpretation of reasonable doubt, again telling the jurors 

that “when we’re talking about beyond all reasonable doubt, 

we’re not talking about fantasy. We’re not talking about 

fanciful doubt.” The prosecutor did not object, and the 

district court did not sua sponte admonish the jurors to 

follow its instructions on reasonable doubt, just as it did not 

sua sponte admonish the jurors after unobjected-to 

comments in the prosecutor’s closing argument.

The defense attorney also described at length an incident 

from the 1980s in which someone tampered with Tylenol by 

putting cyanide in the pill bottles, which resulted in the 

deaths of several people. He further stated that the 

manufacturer recalled the pills and created a tamper-evident 

seal “to eliminate any and all reasons that we would have to 

doubt the safety of their product.” Defense counsel then 

compared the government’s case to the 1980s Tylenol bottle 

(without the tamper-evident seal) and told the jury: “If 

you’re going to hesitate to take one of those pills, you have 

reasonable doubt.” Thus, defense counsel likened the 

reasonable doubt standard to the absolute certainty of safety 

a person would need to have before ingesting a pill possibly 

containing a deadly poison. But the prosecutor did not 

object, and again, the district court did not sua sponte 

admonish the jurors to follow the court’sinstructions, not the 

attorneys’ arguments.

At the beginning of his fourteen-minute rebuttal 

argument, after defense counsel’s argument, the prosecutor 

stated that reasonable doubt is “not proof beyond all possible 

doubt,” and reiterated—without example or elaboration—
UNITED STATES V. VELAZQUEZ 31

that each juror uses the reasonable doubt standard “every 

single day in your life.” Defense counsel objected that the 

statement “diminishes the burden of proof. It’s improper 

government argument.” But this time the court simply 

responded, “Overruled.” The prosecutor went on to argue 

the evidence for the next twelve minutes.

The prosecutor’s comment in rebuttal appears to have 

been prompted by Velazquez’s closing argument, which 

further reduces the likelihood that the comment had a 

prejudicial effect. “[T]he propriety of the prosecutor’s 

remarks must be judged in relation to what would constitute 

a fair response to the remarks of defense counsel.” United 

States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992) 

(citation omitted); see Darden, 477 U.S. at 182–83. 

Therefore, the prosecutor’s comment in rebuttal must be 

viewed in context with defense counsel’s poisoned pill 

illustration and suggestion that a juror’s hesitation to convict 

equates to reasonable doubt.

Immediately after the court overruled defense counsel’s 

objection, the prosecutor stated that “[i]t is not to be based 

purely on speculation. The pills, the bottle, all of that, has 

nothing to do with the [c]ourt’s instruction to you regarding 

the standard for reasonable doubt.” And both immediately 

before and after the comment that the jurors apply 

reasonable doubt “every single day,” the prosecutor argued 

that defense counsel was trying to define reasonable doubt 

“where it becomes impossible for the United States to 

reach,” and to “[r]aise it so high that the United States can’t 

meet it.” Thus, it appears that the prosecutor’s comment was 

intended to refute defense counsel’s suggestion that 

hesitation alone, or lack of absolute certainty, is sufficient to 

support a not guilty verdict. Therefore, the record 

demonstrates that the prosecutor’s comment in rebuttal was 
32 UNITED STATES V. VELAZQUEZ

a fair response to defense counsel’s argument, which 

mitigates any potential prejudice from the prosecutor’s 

comment.3 Hein, 601 F.3d at 912 (explaining that “whether 

the comment was invited by defense counsel in its 

summation” is a factor in determining whether a comment 

resulted in a denial of due process).

The majority nevertheless concludes that “[b]y 

overruling [defendant’s] objection” to the prosecutor’s 

comment in his rebuttal argument that jurors apply 

reasonable doubt every day, the district court conveyed to 

the jury that “the prosecutor’s comparison of the reasonable 

doubt standard to an ‘everyday’ judgment, and . . . the 

specific examples the prosecutor furnished, were proper.” 

Maj. Op. 16. Of course, the first problem with this 

conclusion is that the prosecutor did not furnish any specific 

examples in his rebuttal argument and so the district court 

was not overruling an objection to the prosecutor giving 

specific examples. Therefore, it is difficult to see how the 

court’s response to this objection would leave “the jurors 

with the impression” that specific examples—that were 

stated without objection nearly an hour-and-forty minutes 

3 The majority appears to suggest that defense counsel’s comments 

are not relevant to our analysis because the prosecutor made an improper 

comment before defense counsel’s closing argument. But the majority 

does not limit its prejudice analysis to the prosecutor’s initial comments; 

instead, the majority’s analysis relies heavily on the prosecutor’s 

comment in his rebuttal argument, which of course responded to defense 

counsel’s closing argument. Moreover, in Weatherspoon, the case the 

majority cites to suggest we should not consider defense counsel’s 

comments, we explained that we must “undertake a contextual review of 

prosecutorial misconduct” in light of “the entire trial.” 410 F.3d at 1150–

51 (citing Young, 470 U.S. at 12, 16).
UNITED STATES V. VELAZQUEZ 33

earlier during the prosecutor’s closing argument—were 

proper.

The majority further confuses the record by asserting that 

“the prosecutor’s distortion of the standard was among the 

last things the jury heard before they began deliberations, 

further exacerbating our concerns. The risk that the jury 

believed that convicting a defendant was akin to, in the 

prosecutor’s words, ‘getting up,’ ‘having a meal,’ or 

‘travel[ing] to . . . court,’ was therefore high.” Maj. Op. 16–

17 (alteration in original) (footnote omitted). But the 

prosecutor’s comment in which he gave the everyday 

examples that the majority references was not “among the 

last things the jury heard before they began deliberations.” 

Maj. Op. 16. Rather, the prosecutor offered these examples 

at the beginning of his closing argument, before defense 

counsel’s closing argument, before his rebuttal argument, 

and before the court’s final instructions—two hours before 

the court excused the jury to deliberate.

And the prosecutor’s comment in rebuttal, suggesting 

that the standard for “firmly convinced” is something the 

jurors use every day, was also not “among the last things the 

jury heard before they began deliberations.” Maj. Op. 16. 

Instead, the jurors heard an additional twelve minutes of 

rebuttal argument and six minutes of final instructions, and 

therefore the jurors heard this comment nearly twenty 

minutes before they were excused to begin deliberations.

Moreover, in the final instructions, which were the last 

thing the jurors heard before deliberations, the court again 

reminded the jurors that they “must base [their] verdict only 

on the evidence received in this case and on these 
34 UNITED STATES V. VELAZQUEZ

instructions.”4 Thus, the majority’s inaccurate recitation of 

the record is a fundamental flaw in its analysis, as these 

inaccuracies obfuscate what effect—if any—the 

prosecutor’s statements had on the jury.

C.

Beyond these misstatements of the record, the majority 

also ignores the district court’s treatment of objections 

throughout both attorneys’ closing arguments and the 

different weight given to the court’s instructions and the 

attorneys’ arguments. See Boyde, 494 U.S. at 384 

(“[A]rguments of counsel generally carry less weight with a 

jury than do instructions from the court. The former are 

usually billed in advance to the jury as matters of argument, 

not evidence, and are likely viewed as the statements of 

advocates; the latter, we have often recognized, are viewed 

as definitive and binding statements of the law.” (citations 

omitted)).

4 The majority suggests that my reference to the district court’s 

instruction that the lawyers’ arguments are not evidence is misguided 

because the “concern” here “is not with the prosecutor’s characterization 

of trial evidence, but with his trivialization of the reasonable doubt 

standard.” Maj. Op. 15 n.5. Although that instruction is relevant to the 

prejudice analysis, it is not the only (or even the primary) reason I 

conclude that the district court properly neutralized any prejudice. See

United States v. Koon, 34 F.3d 1416, 1445 (9th Cir. 1994) (stating that 

instructing jury “to rely only on the evidence introduced at trial” and that 

“argument is not evidence . . . dilute[s] the potential prejudice arising 

from improper statements” (citations omitted)), rev’d in part on other 

grounds, 518 U.S. 81 (1996). Instead, as described throughout this 

dissent, I conclude that the district court neutralized any prejudice arising 

from the prosecutor’s comments by properly instructing the jury on the 

reasonable doubt standard and by repeatedly admonishing the jury that 

it must apply the court’s instructions on the reasonable doubt standard, 

not counsel’s arguments.
UNITED STATES V. VELAZQUEZ 35

A complete review of the district court’s responses to the 

objections conclusively establishes that the jurors would not 

have concluded that, because the court overruled an 

objection, the prosecutor’s comment in his rebuttal argument 

was proper. Instead, the record establishes that the district 

court responded to objections by repeatedly admonishing the 

jurors that the attorneys were making arguments, but the 

jurors should follow the court’s instructions and their 

recollection of the evidence.5

During the prosecutor’s closing argument, after 

objecting to the prosecutor’s comment on the reasonable 

doubt standard, defense counsel made two additional 

objections. In each objection, defense counsel asserted that 

the prosecutor’s arguments assumed facts that were not in 

evidence. The district court sustained the first objection, but 

did not rule on the second objection and instead reminded 

the jurors that they were “the judge of what the testimony 

was and the attorneys’ statements are not evidence.”

The prosecutor also made objections to defense 

counsel’s closing argument, beyond his two objections to 

defense counsel’s statements defining reasonable doubt. 

The prosecutor objected twice that defense counsel’s 

argument misstated testimony. The court overruled both 

objections and admonished the jurors, stating: “I will remind 

you again that the evidence is as you remember it to be, not 

5 Defense counsel objected three times in the prosecutor’s closing 

argument, the prosecutor objected six times in defense counsel’s closing 

argument, and defense counsel objected twice in the prosecutor’s 

rebuttal argument. In response, the district court sustained only one 

objection, admonished the jurors to follow the instructions and their 

recollection of the evidence but did not otherwise rule on three 

objections, overruled three objections and admonished the jury to follow 

the instructions, and finally, overruled four objections without comment.
36 UNITED STATES V. VELAZQUEZ

as the lawyers represent it to be,” and “you’ll rely on the 

evidence as you remember it.”

The prosecutor also objected, without stating a basis, to 

defense counsel’s argument that the government presented 

testimony about the dangerousness of fentanyl “to persuade 

[the jury], to prejudice [the jury], to convict Mr. Velazquez 

from an emotional point of view.” The district court 

overruled the objection without comment. The prosecutor 

also objected that defense counsel misstated the law by 

arguing that the prosecutor had the power to file an 

indictment and was the most powerful person in the room. 

Again, the district court overruled the objection without 

comment. Given the court’s many admonishments about the 

nature of the attorneys’ arguments, it would be absurd to 

suggest that, by overruling these objections, the district court 

was conveying to the jurors that the government was trying 

to convince them to return a guilty verdict based on their 

emotions, rather than the evidence, or that the court agreed 

that the prosecutor was the most powerful person in the 

room.

During the prosecutor’s rebuttal argument, in addition to 

objecting to the prosecutor’s comment on reasonable doubt, 

defense counsel objected that the prosecutor’s argument 

assumed facts not in evidence. The court overruled the 

objection without comment. Again, given the court’s 

repeated admonitions in response to earlier objections, it 

would be unreasonable to conclude that, by overruling the 

objection, the court was suggesting that the jury should 

accept the prosecutor’s characterization of the facts.

The record conclusively establishes that the district court 

appropriately instructed the jury and reinforced those 

instructions with repeated admonitions that the jurors should 

follow the court’s instructions and their recollection of the 
UNITED STATES V. VELAZQUEZ 37

evidence, not the attorneys’ arguments. When the objections 

and the court’s responses are considered in context, the 

record unambiguously refutes the majority’s conclusion that 

the district court failed to neutralize any prejudice from the 

prosecutor’s comment in rebuttal by overruling an objection.

D.

Given that both sides made arguably hyperbolic and 

inaccurate statements about the standard of proof and that 

the court repeatedly admonished the jury to follow only its 

instruction, not the attorneys’ arguments, it is highly unlikely 

that the prosecutor’s and defense counsel’s comments on the 

reasonable doubt standard influenced the jurors’ review of 

the evidence. See Lopez-Alvarez, 970 F.2d at 598 

(concluding that “any prejudice which might have resulted 

from the [prosecutor’s] comments was ‘neutralized by the 

trial judge’ when he instructed the jury that ‘[t]he lawyers’ 

statements are not evidence’” (second alteration in original) 

(citation omitted)).

Critically, the majority fails to consider the prosecutor’s 

comments in the context of the entire trial, including the 

district court’s repeated admonitions to the jury to follow its 

instructions on the reasonable doubt standard. The majority 

does not explain how Velazquez overcame the presumption 

that the jury followed these admonitions. See Medina 

Casteneda, 511 F.3d at 1250. Instead, it cites Weatherspoon 

to support its assertion that “whatever curative statements 

were provided by the district judge were inadequate.” Maj. 

Op. 16 (quoting 410 F.3d at 1151). But Weatherspoon 

provides scant support for the majority’s argument.

In that case, the prosecutor repeatedly vouched for 

government witnesses and encouraged the jury to convict the 

defendant to protect the community. See Weatherspoon, 
38 UNITED STATES V. VELAZQUEZ

410 F.3d at 1146. However, the description of the 

proceedings does not state that the district court ever 

admonished the jury to ignore the prosecutor’s comments. 

See id. at 1151; see also id. at 1155–70 (Trott, J., concurring 

in part and dissenting in part) (describing relevant portions 

of each side’s closing arguments and the court’s rulings on 

objections). By contrast, here, the court explicitly and 

repeatedly admonished the jury to follow its instructions on 

the reasonable doubt standard, not counsels’ arguments.

We must presume that the jury followed the court’s 

instructions and admonitions as there is no evidence that it 

did not. See United States v. Flores, 802 F.3d 1028, 1040 

(9th Cir. 2015) (stating that the court presumes the jury 

followed the instructions when determining whether the 

defendant was guilty); Medina Casteneda, 511 F.3d at 1250 

(“The jury is regularly presumed to accept the law as stated 

by the court, not as stated by counsel.” (citation omitted)). 

As we explained in Medina Casteneda, the presumption that 

the jury followed the court’s instructions is not overcome 

when “there is no evidence that the jury was confused by the 

proof beyond a reasonable doubt standard” and it “never 

sought clarification of the standard” and, therefore, “the 

likely prejudicial effects of [a] misstatement of the law on 

the defendant in the context of the extensive closing 

arguments by both sides and proper jury instructions is very 

low.” Id. Because Velazquez has not rebutted this 

presumption, he has not shown that it is “more probable than 

not that the misconduct materially affected the verdict.” 

Tucker, 641 F.3d at 1120 (quoting Tam, 240 F.3d at 802).

II.

To determine whether the prosecutor’s comments 

“infected the trial with unfairness,” we may also consider 

“the prominence of the comment in the context of the entire 
UNITED STATES V. VELAZQUEZ 39

trial and the weight of the evidence.” Hein, 601 F.3d at 912–

13 (citation omitted). Here, the prosecutor’s comments 

comprised about ninety seconds of the hour-and-forty 

minutes of closing arguments from both attorneys. These 

arguments followed a two-day trial, during which five 

witnesses testified, including Velazquez, and forty-two 

exhibits were admitted into evidence. Thus, the prosecutor’s 

comments were not prominent in the context of the entire 

trial and were not likely to have affected the jury’s ability to 

weigh the evidence fairly.

Moreover, the evidence against Velazquez was 

overwhelming. There is no dispute that Velazquez was 

attempting to enter the United States with a large amount of 

fentanyl and heroin concealed in the engine of his car. He 

did not challenge these facts. Instead, Velazquez presented 

a “blind mule” defense at trial and testified that he did not 

know the drugs were hidden in his car. Specifically, 

Velazquez testified about his girlfriend Bella, who lived in 

Tijuana, her uncle Juan, her neighbor Rayo, and her exboyfriend Emmanuel, and that he had heard rumors that they 

were involved in drugs. He also testified that Bella, Juan, 

Rayo, and Emmanuel knew where he parked his car in 

Tijuana, and Bella knew where he parked his car in the 

United States.

But Velazquez’s testimony was uncorroborated. He did 

not provide the last names, addresses, or telephone numbers 

of Bella, Juan, Rayo, or Emmanuel, and as the prosecutor 

argued to the jury, “[t]he only evidence that these people 

exist came from the defendant.” The prosecutor further 

argued that the defendant was not credible, in part, because 

he did not present any evidence to support his blind mule 

defense until he testified. The prosecutor stated: “The 

defendant on the day of arrest said nothing to [the agents]. 
40 UNITED STATES V. VELAZQUEZ

He admits that. All these people involved in narcotics 

trafficking surrounding the defendant. He says nothing.”

In a similar case in which the defendant was 

apprehended crossing the border with drugs in her car and 

claimed that they were planted without her knowledge, we 

described the evidence of the defendant’s guilt as 

“overwhelming,” Flores, 802 F.3d at 1038, and 

characterized the uncorroborated blind mule defense as 

“highly suspect,” id. at 1039. Indeed, while the defendant in 

Flores presented a theory at trial on how she believed the 

drugs were planted, we emphasized that the defendant failed 

to mention any of the details behind her theory to agents and 

that she failed to “take[] even basic steps to . . . corroborate 

her story,” just as Velazquez failed to do here. Id. at 1038–

39. As in Flores, in this case “the government was free to 

ask the jury to disbelieve” the defendant. See id. at 1035.

The majority, however, does “not believe that the 

evidence demonstrating Velazquez’s knowledge of the 

drugs was so overwhelming that the prosecutor’s 

misstatements were harmless.” Maj. Op. 17. The majority 

then asserts that “[t]he government’s case relied exclusively 

on circumstantial evidence,” including the value, type, and 

amount of drugs in Velazquez’s car, his nervousness, his 

inconsistent statements about his destination, the lack of 

personalization in his car, and his false statements to agents 

about the ownership of the car. Maj. Op. 17. But the 

majority’s characterization of the strength of the evidence 

overlooks the most critical evidence at the trial: Velazquez’s 

testimony.

As the majority states, “the ultimate issue at trial boiled 

down to whether the government proved that Velazquez

knew about the drugs in his car beyond a reasonable doubt.” 

Maj. Op. 19. And Velazquez made his credibility the central 
UNITED STATES V. VELAZQUEZ 41

issue in the trial. The district court instructed the jury on the 

factors it could consider when deciding which witness 

testimony to believe or not believe, and Velazquez has not 

argued that there were any errors in those instructions. The 

court instructed the jury that it could consider, among other 

factors, “the witness’ interest in the outcome of the case,” 

“the witness’ bias or prejudice, if any,” and “the 

reasonableness of the witness’ testimony in light of all the 

evidence.” See Flores, 802 F.3d at 1038–39.

At the end of his direct examination, defense counsel 

elicited the following testimony from Velazquez:

Q. Okay. Alfred, did anybody pay you to 

move a load of drugs across the border 

that day?

A. No, sir.

Q. Okay. Did you have any idea that 

somebody had put drugs in that car?

A. No, sir.

Q. If you had known that there [were] drugs 

in that car, would you have crossed it?

A. I wouldn’t do that.

Q. And are you telling us the absolute truth 

today?

A. Yes, sir.

If the jury had accepted this testimony, it would have found 

him not guilty and rejected the government’s arguments to 

the contrary. Velazquez declared unequivocally that he did 
42 UNITED STATES V. VELAZQUEZ

not know that drugs were in his car and that he was telling 

the “absolute truth.” If the jury had accepted this testimony, 

regardless of any circumstantial evidence the government 

presented about whether the defendant appeared nervous, or 

his statements about his destination or the car ownership, it 

would have acquitted him.

But from the guilty verdict, we must conclude that the 

jury did not find Velazquez credible, and it rejected his 

testimony. There is nothing in the record that suggests that 

the jury did not understand its task in evaluating the 

credibility of testimony or the court’s instructions. Thus, it 

is very unlikely that the attorneys’ conflicting arguments on 

the reasonable doubt standard, including the prosecutor’s 

comments, had any effect on whether the jury believed 

Velazquez. Therefore, the record supports only one 

conclusion—it is not likely that the prosecutor’s comments 

affected the verdict.

III.

The majority opinion erroneously concludes that the 

prosecutor’s isolated comments on the reasonable doubt 

standard during his closing and rebuttal arguments 

prejudiced Velazquez. But the majority fails to consider 

these statements in context, including the district court’s 

instructions, its repeated admonitions that the jury must 

follow the instructions—not the attorneys’ arguments, 

defense counsel’s arguments on reasonable doubt, and the 

overwhelming evidence of defendant’s guilt. Instead, the 

majority’s conclusions are based on an inaccurate and 

incomplete statement of the record.

Nothing in the record suggests that the jurors ignored the 

district court’s repeated admonitions to follow its 

instructions on reasonable doubt, and in the absence of 
UNITED STATES V. VELAZQUEZ 43

evidence to the contrary, we must presume that they 

followed the court’s instructions. And nothing in the record 

suggests that the prosecutor’s statements affected the 

verdict. Therefore, I cannot conclude that the trial was so 

unfair that Velazquez’s due process rights were violated. I 

respectfully dissent.