FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CITLALLI FLORES,

Defendant-Appellant.

No. 14-50027

D.C. No.

3:12-cr-03054-MMA-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Argued and Submitted

December 8, 2014—Pasadena, California

Filed September 23, 2015

Before: Harry Pregerson, Kim McLane Wardlaw,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Wardlaw

Dissent by Judge Pregerson
2 UNITED STATES V. FLORES

SUMMARY*

Criminal Law

Affirming a conviction and sentence for importation of

marijuana, the panel found merit in the defendant’s claims of

prosecutorial misconduct, but held that the misconduct does

not rise to the level of plain error. 

The panel held that the government misstated the law by

telling the jury it could convict the defendant based on her

admission to carrying marijuana to Mexico on the date of

her arrest, and misstated the defendant’s testimony thereby

making an unsupported factual claim, but that the

misstatements did not substantially prejudice her. The panel

held that the government’s improper vouching for a witness

did not substantially prejudice the defendant. The panel

rejected the defendant’s contentions that the government

improperly shifted and undermined the burden of proof. The

panel rejected the defendant’s arguments that the prosecutor’s

statements about the defendant were improper. Reviewing

for plain error, the panel concluded that the prosecution’s

improper statements, whether viewed individually or

cumulatively, do not warrant reversal.

The panel rejected the defendant’s arguments that the

district court erred in denying her motion to suppress

evidence obtained from her Facebook account and that the

district court abused its discretion by admitting evidence of

her personal drug use at trial.

* 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. FLORES 3

The panel held that the district court did not err in

applying an obstruction of justice enhancement pursuant to

U.S.S.G. § 3C1.1 based on the defendant’s efforts to have

content from her Facebook account deleted.

Dissenting, Judge Pregerson wrote that the Assistant U.S.

Attorney’s serious violations of the rules of permissible

questioning and argument do not warrant invocation of the

plain error rule.

COUNSEL

Morgan D. Stewart (argued), Federal Defenders of San

Diego, Inc., San Diego, California, for Defendant-Appellant.

Michelle L. Wasserman (argued), Laura E. Duffy, and Bruce

R. Castetter, Office of the United States Attorney, San Diego,

California, for Plaintiff-Appellee.

OPINION

WARDLAW, Circuit Judge:

Citlalli Flores appeals her conviction and sentence for

importation of marijuana in violation of 21 U.S.C. §§ 952 and

960. Although we find merit in her claims of prosecutorial

misconduct, the misconduct does not rise to the level of plain

error. Flores’s remaining claims of error lack merit. 

Accordingly, we affirm her conviction and sentence.
4 UNITED STATES V. FLORES

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of June 21, 2012, Flores was stopped by

Customs and Border Protection (“CBP”) Officer Benjamin

Brown as she entered the United States following a day trip

to Tijuana, Mexico. When Flores handed Brown her driver’s

license, her hands were shaking, and she looked back towards

the rear passenger-side of her car several times. Brown

became suspicious, inspected that area of the car, and found

several packages of what turned out to be marijuana. CBP

officers then searched the rest of Flores’s car, where they

discovered 16.44 kilograms (36.24 pounds) of marijuana.

Flores was indicted on one count of importation of

marijuana in violation of 21 U.S.C. §§ 952 and 960.1 Flores’s

first trial resulted in a hung jury. Upon retrial, a jury

rendered a guilty verdict. The district judge imposed a twolevel enhancement for obstruction of justice, but then

substantially reduced her sentence in light of U.S.S.G.

§ 5K2.0 and the 18 U.S.C. § 3553(a) factors, ultimately

imposing a term of incarceration of 12 months and one day in

prison.2

Flores’s defense rested on her lack of knowledge that her

car was loaded with marijuana as she entered the United

States. She testified that while she was in Tijuana on June 21,

1 Section 952(a) provides: “It shall be unlawful . . . to import into the

United States from any place outside thereof . . . any controlled substance

in schedule I or II,” including marijuana.

2 The district court explained that by adding the extra day to Flores’s

sentence, she would be eligible for a reduction in the custodial portion of

her sentence.
UNITED STATES V. FLORES 5

2012, she gave her car to a mechanic named Juan so that he

could repair her air conditioning more cheaply than she could

have it done in the United States. She suggested that Juan

had hidden the marijuana in the quarter panels of her car

while it was in the mechanic shop. Competing automotive

experts testified about whether (1) Flores’s air conditioning

was in fact working on June 21; (2) Flores could have felt the

weight and noise-dampening effect of the marijuana while

she drove; and (3) car repairs were cheaper in Mexico.

The government noted Flores’s failure to provide

corroborating evidence that the repair work was done or that

Juan even existed, and offered evidence of her behavior at the

border and following her arrest as proof that she knew drugs

were hidden in her car. The government also introduced two

jail-recorded phone calls Flores made after her arrest. The

first evidenced concern that her actions had hurt her family

and the other was a request that her cousin delete “whatever

[he] fe[lt] need[ed] to be taken off” of Flores’s Facebook

page. The latter call prompted the government to search her

Facebook account for incriminating evidence. This search, in

turn, led to two Facebook messages Flores had sent on June

21 referencing her “carrying” or “bringing” marijuana, which

were introduced over Flores’s objections and following the

denial of her suppression motion.

Flores testified that the postings indicated only that she

carried marijuana on June 21 from the United States into

Mexico, not that she was about to smuggle marijuana from

Mexico into the United States. In this appeal, she argues that

the government committed misconduct by distorting her

testimony in closing. For example, the prosecutor asked her,

“so it’s undisputed that on the day of your arrest, you

definitely brought drugs between the United States and
6 UNITED STATES V. FLORES

Mexico” and “across the international border?”

3 The

prosecutor also asked Flores if it was “illegal” to bring

marijuana into Mexico—a misleading question given that

Flores was on trial for importation, not exportation.4 And,

after emphasizing that Flores admitted to “smuggling drugs,” 

the prosecutor argued during closing that Flores lied when

she testified that the messages referred to exportation—not

importation—of marijuana. Further, after acknowledgingthat

Flores claimed she brought drugs to Mexico only, the

prosecutor asserted, “[t]hat’s still smuggling drugs”—a

supposed crime that was not charged. In her final line to the

jury, the prosecutor emphasized: “She knows she was

smuggling drugs on June 21st, 2012. You heard her say that

repeatedly and that’s why she’s guilty beyond a reasonable

doubt.”

In addition to claiming that the government engaged in

prosecutorial misconduct, Flores argues on appeal that (1) the

district court erred in denying her motion to suppress; (2) the

district court abused its discretion by admitting Facebook

messages and other unduly prejudicial evidence referencing

Flores’s marijuana use; and (3) the district court procedurally

3 The prosecutor also asked Flores how often she brings “pot between

the United States and Mexico,” without specifying a direction of travel. 

At other points, the prosecutor accurately characterized Flores’s

testimony. For example, the prosecutor asked: “So your testimony is you

brought drugs from the United States to Mexico but not from Mexico into

the United States?”; “Do you have an estimate of when you brought drugs

from the United States into Mexico?”; and “You had driven drugs once

again from the United States to Mexico.”

4 Technically, the answer to the government’s question is, “Yes,” as

21 U.S.C. § 953 criminalizes the exportation of a controlled substance. 

But Flores was indicted only for knowingly and intentionally importing

marijuana, in violation of §§ 952 and 960.
UNITED STATES V. FLORES 7

erred in applying an obstruction of justice enhancement at

sentencing. We address Flores’s arguments in turn.

II. PROSECUTORIAL MISCONDUCT

We review de novo whether anyprosecutorial misconduct

occurred. See United States v. Weatherspoon, 410 F.3d 1142,

1145–46 (9th Cir. 2005); United States v. Ross, 123 F.3d

1181, 1187 (9th Cir. 1997). We then consider the effect of

any misconduct to determine whether reversal is warranted. 

See Weatherspoon, 410 F.3d at 1150–51. Where Flores

objected at trial, we review for harmless error; where she did

not, we review under the more deferential plain error

standard. See United States v. Ruiz, 710 F.3d 1077, 1082 (9th

Cir. 2013).

A. Misstating the Law and Facts

Flores contends that the government committed

misconduct by erroneously telling the jury that it could

convict her based on her admission to carrying marijuana to

Mexico on the date of her arrest. We agree that the

government misstated the law to the jury. See United States

v. Berry, 627 F.2d 193, 200 (9th Cir. 1980) (“A prosecutor

should not misstate the law in closing argument.”). The

government also misstated Flores’s testimony, thereby

making an unsupported factual claim. See United States v.

Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993); see also United

States v. Mageno, 762 F.3d 933, 943 (9th Cir. 2014), vacated

on other grounds, 786 F.3d 768 (9th Cir. 2015). Flores did

not object to this misconduct below, however, so we review

for plain error. We conclude that the misstatements did not

substantially prejudice her, and so do not warrant reversal. 

See Ruiz, 710 F.3d at 1082.
8 UNITED STATES V. FLORES

1. The Prosecution’s Impermissible Statements

The government crossed the line between permissible

commentary on Flores’s testimony about her Facebook

messages and that which we have long deemed

impermissible. In a message dated June 21, 2012, Flores’s

friend asked if she “carried some pot,” to which Flores

responded, “yes.”

5

In a second pair of June 21 messages,

Flores says to a different friend, “come over and have a

smoke” “of what I’m bringing.”6 Flores testified that these

messages meant that she was bringing marijuana to Mexico

and argued that they did not prove that she imported

marijuana as charged. The government characterized these

messages differently:

You heard about some posts on [Flores’s]

Facebook account from June 21st 2012 when

she said she was carrying marijuana and

bringing marijuana. You know what she was

carrying on June 21st 2012. She was carrying

and bringing marijuana from Mexico into the

United States in her car. She tried to convince

you. She tried to explain this away. She said,

No. No. What I was doing was bringing

marijuana from the United States of America

into Mexico.

5 The Facebook postings are in Spanish, which the government

translated for the jury. Flores translates the conversation differently,

asserting that the question was, “Did you take weed.”

6 Flores also translates this conversation differently, asserting that the

invitation was to “come so you can smoke out of what I have.”
UNITED STATES V. FLORES 9

This argument reflects the government’s apparent strategy for

using the Facebook messages to convince the jury that Flores

(1) admitted to carrying drugs across the U.S.-Mexico border,

and (2) was lying about the direction she carried the drugs.

Both parts of this strategy are permissible. Prosecutors

are free in argument to suggest that the jury draw reasonable

inferences from the evidence presented at trial. United States

v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997); see also

Mageno, 762 F.3d at 943; United States v. Molina, 934 F.2d

1440, 1445 (9th Cir. 1991) (holding that prosecutors may

argue that a defendant is lying). Here, there was more than

enough evidence to support a reasonable inference that the

Facebook messages actually meant that Flores was carrying

drugs into the United States, rather than to Mexico as she

testified. She was, in fact, carrying more than 36 pounds of

marijuana in her car as she entered the United States on the

very day she sent those messages. She then attempted to

delete postings on her Facebook account from jail after the

border patrol discovered the marijuana in her car.

Of course, the jury was free to believe Flores’s

explanation that the messages actuallyreferenced exportation

rather than importation, but the evidence adequately

supported the government’s characterization of them. Even

if we were to accept that those messages conveyed a desire to

smoke marijuana in Mexico, nothing in them rules out the

possibility that Flores was offering her friends an opportunity

to smoke some of the more than 36 pounds of marijuana she

picked up in Mexico before she carried it back to the United

States. The latter possibility is all the more plausible because

when Flores was arrested, she was not carrying anymarijuana

other than that found hidden in her car. This evidence

supports the permissible inference the government asked the
10 UNITED STATES V. FLORES

jury to draw—namely, that the Facebook messages

referenced the very marijuana found in Flores’s car.

This prosecutorial argument also accuratelycharacterized

Flores’s insistence that she carried drugs to Mexico but not to

the United States. So long as the government accurately

recounted what Flores said—and in the statement quoted

above, it did—the government was free to ask the jury to

disbelieve Flores. Further, the argument accurately states the

law by explaining that Flores is guilty because, regardless of

her Facebook postings and what she testified about them,

Flores brought drugs into the United States.

However, the government also strayed beyond the

boundaries of permissible questioning and argument. The

prosecutor repeatedly asserted that Flores had admitted to

“drug smuggling.” As a legal but irrelevant matter, Flores did

admit to drug smuggling, see 21 U.S.C. § 960—just not the

kind of drug smuggling with which she was charged, which

the prosecutor had to know. Labeling Flores an “admitted

drug smuggler” when she actually admitted to exportation

required the government to walk a very fine line. It was

“definitely improper” for the prosecutor to suggest that Flores

admitted to “drug smuggling” when the prosecutor used the

term as a synonym for importation because that misstated

Flores’s testimony. See United States v. Kojayan, 8 F.3d at

1321; see also Mageno, 762 F.3d at 943. At the same time,

when loosely referencing “drug smuggling” to encompass

exportation, the government could, without misstating

testimony, assert that Flores admitted to drug smuggling. 

However, it was improper to use the “admission to drug

smuggling” lingo in this loose manner when suggesting that

such an admission was sufficient to warrant a conviction for

the crime charged. Doing so misstates the law, because
UNITED STATES V. FLORES 11

Flores was not charged with exportation—the only form of

drug smuggling to which she actually admitted.

The prosecutor improperly used the phrase “drug

smuggling” as a synonym for importation frequently, from

her opening statement through her last closing line to the jury. 

The government’s arguments that Flores admitted to drug

smuggling at trial were therefore misleading, if not outright

false. These misstatements became flat falsehoods with the

prosecutor’s coup de grace: “She knows she was smuggling

drugs on June 21st, 2012. You heard her say that repeatedly

and that’s why she’s guilty beyond a reasonable doubt.” The

jurors knew this was an importation case, so the only way

Flores’s admission to “drug smuggling” would be a basis for

finding her guilty beyond a reasonable doubt is if she had

admitted to importation. Because she never made such an

admission at trial, this statement falsely characterized

Flores’s testimony.

Moreover, to the extent that the prosecutor did not

misrepresent Flores’s testimony, she misstated the law. 

Flores admitted at trial to exportation. She therefore could be

found guilty beyond a reasonable doubt based on this

admission only if exportation were adequate to support a

conviction. Because Flores was on trial for importation,

however, the argument that knowingly exporting marijuana

was sufficient to support a guilty verdict misstated the law.

The prosecutor also improperly invited the jury to convict

Flores based on exportation rather than importation during

cross-examination. After Flores admitted to carrying drugs

into Mexico, the prosecutor asked, “That was illegal, wasn’t

it?” Similarly, in closing, the prosecutor acknowledged that

Flores “claimed she had smuggled drugs from the United
12 UNITED STATES V. FLORES

States to Mexico,” then asserted, “[t]hat’s still smuggling

drugs.” These statements are not technically untrue, as

exportation is drug smuggling and is illegal. By specifically

emphasizing the illegality of exportation, however, the

government suggested that even if the jury believed that

Flores only exported drugs, she “still” acted illegally. In

doing so, the prosecutor overstepped by inviting the jury to

improperly convict Flores based on exportation.

The prosecutor made this worse by purposefully blurring

and minimizing the distinction between importation and

exportation. During cross-examination, the prosecutor asked

whether Flores carried drugs “between” the United States and

Mexico and “across” the border, without specifying a

direction. In closing, the prosecutor then characterized a

dispute over which direction the drugs traveled as a mere

“quibble[],” minimizing the significance of that disputed fact. 

These statements, while again not untrue as an abstract legal

matter, furthered the misimpression that the jury could

convict Flores based on exportation.

The government should have been much more cautious in

brandishing the potentially misleading label of “admitted

drug smuggler.” Had the government carefully and

accurately used the term, it may have been able to avoid

misstating the law or the facts. But the government was

unable to do so, and in any event should not have tried to

“push the envelope” in this manner. Ruiz, 710 F.3d at 1087

(Pregerson, J., concurring). As the Supreme Court has said,

“[t]he United States Attorney is the representative not of an

ordinary party to a controversy, but of a sovereignty whose

. . . interest . . . in a criminal prosecution is not that it shall

win a case, but that justice shall be done.” Berger v. United

States, 295 U.S. 78, 88 (1935).
UNITED STATES V. FLORES 13

2. Plain Error

Flores failed to object to any of these improper

statements, and must therefore show that the government’s

actions amounted to plain error. See Ruiz, 710 F.3d at 1082. 

Although there was error, and it was plain, Flores fails to

demonstrate the prosecutor’s improper statements affected

her substantial rights or the fairness, integrity, or public

reputation of the proceedings. See Puckett v. United States,

556 U.S. 129, 135 (2009); see also United States v. Olano,

507 U.S. 725, 734 (1993). In the context of the entire trial,

the prosecution’s misconduct was not likely to have affected

the jury’s ability to weigh the evidence fairly. See United

States v. Sanchez, 659 F.3d 1252, 1257 (9th Cir. 2011).

Despite the prosecutor’s best efforts, it was unlikely that

the jurywas actually confused about Flores’s testimony or the

elements of the charge of importation. On multiple

occasions, during both cross-examination and closing

arguments, the government did accurately, directly, and

explicitly re-state Flores’s testimony.

7 The defense also

accurately reiterated Flores’s testimony in closing.

8 The

chorus of accurate characterizations of Flores’s testimony

7 For example, during cross-examination, the prosecutor asked: “So your

testimony is you brought drugs from the United States to Mexico but not

from Mexico into the United States?” In closing, the prosecutor noted that

Flores “quibbled with the direction” in which the government argued the

drugs traveled. Similarly, the prosecutor reminded the jury that Flores

said, she “was bringing marijuana from the United States of America into

Mexico,” and “claimed she had smuggled drugs from the United States to

Mexico.”

8 Defense counsel conceded that Flores “would sometimes bring

marijuana to Mexico to smoke with her cousin.”
14 UNITED STATES V. FLORES

likely drowned out the government’s infrequent, indirect, and

implicit misstatements of that testimony. Moreover, Flores’s

testimonywas simple, unambiguous, and unmistakable.

9

Jury

confusion was therefore unlikely.

It is also unlikely that the prosecution’s misstatements of

the law confused the jury about the elements of the charged

offense. The prosecution did, on multiple occasions, clearly

and directly state that importation was required to support a

conviction. In closing, the prosecutor also correctly stated:

You don’t have to write this down, two

elements. Defendant knew she brought

marijuana from a place outside into a place

inside the United States and second, she knew

the substance she was bringing into the United

States was marijuana or some other prohibited

drug. Basically, the United States has to

prove to you or has proven to you beyond a

reasonable doubt that Ms. Flores [acted]

knowingly—she wasn’t dragged over the

border, nobody dragged her over the border. 

She voluntarily drove her car from Mexico

into the United States.

9 The prosecutor asked Flores: “[O]n the day of your arrest, you were

bringing marijuana between the United States and Mexico?” Flores

responded: “Into Mexico.” The prosecutor then asked: “[Y]ou definitely

brought drugs between the United States and Mexico?” Flores again

responded: “Not between. Into Mexico.”
UNITED STATES V. FLORES 15

During closing, the prosecutor argued at least sixteen times

that Flores brought drugs into the United States.10In other

words, the government built its entire argument around a

correct statement of a very simple law and repeatedly

informed the jury in which direction Flores had to carry drugs

to be found guilty. Accordingly, it is unlikely that a rational

jury would have concluded, based on a few misstatements of

the law, that it could convict Flores regardless of which

direction she carried drugs.

Further, the evidence against Flores was overwhelming. 

See Berry, 627 F.2d at 201. Flores was found with more than

36 pounds of drugs in her car. The government explained

various ways in which Flores would have become aware that

her car was loaded with marijuana. Flores acted suspiciously

at the border, drawing Officer Brown’s attention to the drugs. 

10 The prosecutor said: “she brought drugs in;” “[s]he was completely

surrounded by marijuana and coming into the United States;” “[s]he knew

she had smuggled drugs into the United States;” “[d]efendant knew she

brought marijuana from a place outside into a place inside the United

States;” “[w]e also have proven to you beyond a reasonable doubt she

knew there were drugs in her car [as she was entering the United States;]”

“[s]he was carrying and bringing marijuana from Mexico into the United

States in her car;” “[y]ou know the direction she was smuggling those

drugs. She was smuggling them from Mexico into the United States;”

“[s]he was nervous . . . because she was surrounded by marijuana she was

smuggling into the United States;” “[s]he did what anyone would do when

they are nervous because of smuggling drugs into the United States;”

“[s]he knewshe was smuggling[] drugs into the United States;” “[she was]

arrested . . . after smuggling[] drugs into the United States;” “[she was]

hire[d] to bring the drugs into the United States;” “[s]he knew she

smuggled drugs into the United States;” “[s]he was ashamed . . . in that

jail call because she knew she smuggled drugs into the United States;”

“[she] smuggled drugs into the United States;” “[s]he is a drug smuggler

who had someone put [the drugs] in [her car] for her so she could bring

drugs into the United States.”
16 UNITED STATES V. FLORES

In a recorded phone call from jail played for the jury, Flores

expressed regret, not frustration or confusion, as one would

expect if Juan had planted the drugs in Flores’s car without

her knowledge.11 She further implicated herself by asking

Jose Manuel to destroy evidence from Facebook—evidence

that was apparently so incriminating that Flores asked

someone to delete it even though she knew her call was being

recorded.12

Flores’s story about Juan the mechanic—the only

innocent explanation for the drugs found in Flores’s car—was

entirely uncorroborated and highly suspect, as the

government pointed out to the jury. Flores mentioned her

visit to the dermatologist to Officer Brown at the border, and

presented a host of evidence at trial to corroborate that aspect

of her trip to Mexico.13 Yet she failed to mention her

interaction with Juan to Officer Brown at the border and

offered no evidence to prove that Juan did any repair work on

11 In this call, Flores said to her boyfriend: “If you keep fucking around,

that’s not proving anything to me. Do you want to be with me? Do you

want to change? I fucking stepped foot in here and I asked myself, what

the fuck? Why would I do this to my family? . . . I’m not going to fucking

set foot in here again.”

12 In this call, Flores asked Manuel, her cousin, to login to Flores’s

Facebook account, change the password, and “take off whatever you feel

needs to be taken off.” Flores also warned Manuel that the call was being

recorded.

13 Flores identified her dermatologist as Dr. Juan R. Martinez Najera,

produced a picture of his office, and introduced prescriptions written by

Dr. Martinez for Flores on June 21, 2012.
UNITED STATES V. FLORES 17

her car, or that he even existed.14 The government’s expert

also testified that the air conditioner in Flores’s car was not

working in June of 2012, obviously suggesting that it had not

been repaired by Juan in Tijuana.15 Further, Flores’s cousin

in Tijuana, whom Flores visited on the day of her arrest, was

supposedly friends with Juan and presumably could have

provided details about Juan to corroborate Flores’s testimony. 

No such evidence was presented. Nor did Flores attempt to

explain why she had not taken even basic steps to locate Juan

or corroborate her story after having gone to such lengths to

confirm her trip to the dermatologist. All of these facts are

inconsistent with Flores’s story that Juan the mechanic

planted drugs in Flores’s car without her knowledge, and no

other innocent explanation was offered for how they got

there. Flores is correct that the evidence of her knowledge

was circumstantial, but that circumstantial evidence was

overwhelming.

16

14 Flores did not provide a last name, phone number, address, or business

name for Juan the mechanic. Unlike the dermatologist, she did not call

Juan in advance to arrange for the repair work to be done on her car. 

Flores testified that she paid Juan $40, but she did not have a receipt for

any repair work done by Juan in Tijuana. She did, however, have multiple

invoices from an auto body shop located in Garden Grove, California.

15 The government’s expert explained that the compressor in Flores’s

car—an essential component of an air conditioning system—was 

inoperable when he inspected it. He further explained that if the

compressor had been functional when Flores’s car was impounded, it

would have remained functional through the date of the inspection, as

compressors do not “fail from just sitting” in an impound lot.

16 In evaluating the strength of the evidence against her, Flores notes that

the jury in her first trial could not reach a unanimous verdict. But a jury’s

inability to reach a verdict could be attributed to many factors other than

the closeness of the evidence. That is particularly so in cases, like this,
18 UNITED STATES V. FLORES

Further mitigating the risk of prejudice, jury instructions

correctly stating the law were read shortly after closing

arguments, and thus shortly after the government’s key

misstatements. As to the elements of the charge, the district

court correctly instructed:

In order for the defendant to be found guilty

. . . , the government must prove each of the

following elements beyond a reasonable

doubt:

First, the defendant knowingly brought

marijuana into the United States from a place

outside the United States; and

Second, the defendant knew the substance she

was bringing into the United States was

marijuana . . . .

This instruction mirrored the prosecution’s earlier correct

statement of the law and again made the importance of

importation abundantly clear. The instructions also reiterated

that “the defendant is charged in the indictment with unlawful

importation of a controlled substance.” If the jury was at all

misled by the prosecution’s statements, which is doubtful, the

where the defendant seems sympathetic and lacked the wherewithal to act

alone given the drug quantity and means of transport, and the charge

involves a substance that has been legalized in some states. Because we

can only speculate about why the jury hung at the first trial, we place little

weight on the first jury’s inability to reach a verdict. In evaluating the

strength of the evidence, we look first and foremost to the evidence itself,

rather than to the first jury’s reaction to that evidence. For the same

reason, we place little stock in the fact that the second jury returned a

guilty verdict shortly after deliberations began.
UNITED STATES V. FLORES 19

court’s instructions very likely put the jury back on course. 

We presume the jury followed these instructions when

determining whether Flores was guilty as charged. See Weeks

v. Angelone, 528 U.S. 225, 234 (2000).

In sum, while the government misrepresented Flores’s

testimony and misstated the law on multiple occasions, in the

context of the trial as a whole, it is unlikely that the jury was

misled about the law or the facts. See Berry, 627 F.2d at 200. 

The evidence against Flores was overwhelming, see id. at

201, and the jury was correctly instructed. Accordingly,

Flores cannot show that the government’s misconduct rose to

the level of plain error. See Sanchez, 659 F.3d at 1257.

B. Vouching

“Improper vouching consists of placing the prestige of the

government behind a witness through personal assurances of

the witness’s veracity, or suggesting that information not

presented to the jury supports the witness’s testimony.” Ruiz,

710 F.3d at 1085. The government concedes that it

improperly vouched for its automotive expert witness, Russ

Butler, when the prosecutor stated, “I submit I would hire

Russ Butler to work on my car rather than Forrest Folck

[Flores’s expert]. Russ is experienced.” See United States v.

Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992). But see Kojayan,

8 F.3d at 1321 (explaining that the phrase “Isubmit” signaled

a request for the jury to draw a reasonable inference). Flores

did not object to this misconduct at trial, so we review for
20 UNITED STATES V. FLORES

plain error.17See Ruiz, 710 F.3d at 1082. To determine

whether vouching caused substantial prejudice, we consider:

the form of vouching; how much the vouching

implies that the prosecutor has extra-record

knowledge of or the capacity to monitor the

witness’s truthfulness; any inference that the

court is monitoring the witness’s veracity; the

degree of personal opinion asserted; the

timing of the vouching; the extent to which

the witness’s credibility was attacked; the

specificity and timing of a curative

instruction; the importance of the witness’s

testimony and the vouching to the case

overall.

Id. at 1085; see also United States v. Williams, 989 F.2d

1061, 1072 (9th Cir. 1993). Considering these factors, we

conclude that the government’s vouching did not

substantially prejudice Flores.

Unlike in cases where we have found vouching

prejudicial, the vouching here was not crucial to the

government’s case. See Kerr 981 F.2d at 1052–54 (citing

multiple instances of vouching and explaining that the

testimony of the vouched-for witnesses was crucial to the

government’s case). Even if the jury believed the defense

expert’s testimony that Flores’s air conditioner was working

on June 21, 2012, this would do little to bolster Flores’s story

about Juan the mechanic. That an air conditioner works on a

17 The government does not rely on Kojayan and concedes error. We

assume without deciding that the error was clear or obvious for purposes

of our plain error analysis.
UNITED STATES V. FLORES 21

particular day says nothing about who fixed it, where it was

fixed, or whether it was broken in the first place.

Moreover, the attack on Folck’s credibility was minimal

and involved a single improper statement. See United States

v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005) (holding that

a single improper statement did not materially affect the

verdict). Nor did the vouching imply extra-record knowledge

or the ability to monitor the witness’s truthfulness. See Ruiz,

710 F.3d at 1085. And the vouching did not function as a

government-backed assurance of Flores’s guilt. At worst, the

vouching simply reiterated the primary inference the

government asked the jury to draw all along—that Flores’s

story about Juan the mechanic was not credible. See

Williams, 989 F.2d at 1072 (“[V]ouching here functioned

mainly as rhetorical emphasis for the inferences the

prosecutor was urging the jury to draw rather than a

meaningful personal assurance that the defendants were

guilty.”).

Because of the “substantial evidence supporting the jury’s

verdict” and the minor role vouching played in the

prosecutor’s case, id., Flores fails to show that the vouching

caused “substantial prejudice,” Ruiz, 710 F.3d at 1084–85.

C. Shifting and Undermining the Burden of Proof

Flores next contends that the government improperly

(1) shifted the burden of proof by pointing out that she failed

to produce evidence to corroborate her story about Juan the

mechanic and (2) undermined the burden of proof by asking

the jury to evaluate the government’s “very reasonable” story

and Flores’s “preposterous” story “in the same way.” See

United States v. Evanston, 651 F.3d 1080, 1091–92 (9th Cir.
22 UNITED STATES V. FLORES

2011) (“It is beyond comment that the government bears the

burden of proving the defendant’s guilt beyond a reasonable

doubt at trial.”). These statements were not improper.

While Flores is correct that the government referred to its

theory as “very reasonable” and Flores’s defense as “crazy”

and “preposterous,” the government never argued that these

conclusions, or Flores’s failure to corroborate her story about

Juan, alone were sufficient to support a conviction. And the

government explicitly stated more than a half dozen times

that it bore the burden of proving Flores guilty beyond a

reasonable doubt. Highlighting the weakness of a defense,

characterizing it as incredible, and noting the defendant’s

failure to produce evidence is not improper, particularly

where the government correctly states the burden of proof. 

See Ruiz, 710 F.3d at 1086–87 (referring to the defense as

“smoke and mirrors” is permissible); United States v. Tucker,

641 F.3d 1110, 1120–21 (9th Cir. 2011) (highlighting flaws

in the defense is permissible); United States v. Necoechea,

986 F.2d 1273, 1282 (9th Cir. 1993) (noting the defense’s

failure to present evidence in support of its theory is

permissible); Molina, 934 F.2d at 1445 (arguing that the

defendant is a liar is permissible).

D. The Government’s Statements about Flores

Because Flores testified, the prosecutor’s comments on

her demeanor were permissible.18See Allen v. Woodford,

395 F.3d 979, 997 (9th Cir. 2005) (“The prosecutor’s

comments regarding [the defendant’s] courtroom demeanor

were permissible because [the defendant] chose to testify.”);

18 In closing, the prosecutor said to the jury: “You saw her sitting there

the entire trial. Her hands weren’t shaking while she was there.”
UNITED STATES V. FLORES 23

United States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir.

1987).

Flores also argues that the government impermissibly

called Flores a drug smuggler, a liar, and “not law abiding.” 

However, when the prosecutor called Flores a drug smuggler

and a liar, she was not making impermissible propensity

arguments. Instead, she was arguing that when Flores

admitted to smuggling drugs on June 21, 2012, she admitted

to the instant offense and that she was lying when she

claimed she only took drugs to Mexico. Such statements are

permissible to the extent that they were not misstatements of

fact or law. See Molina, 934 F.2d at 1445 (holding that the

prosecution may call the defendant a liar if that is one of the

inferences supported by the evidence); Sayetsitty, 107 F.3d at

1409 (holding that the prosecution may ask the jury to draw

reasonable inferences); Necoechea, 986 F.2d at 1282 (noting

that the government may argue that a defendant charged with

drug dealing is a “dope dealer”).

And the prosecutor’s assertion that Flores was not lawabiding was a permissible rebuttal to Flores’s closing

argument. Flores’s attorney attempted to explain why

Flores’s effort to delete her Facebook messages was not

necessarily a sign of guilt. Defense counsel told the jury a

childhood story in which he attempted to hide evidence

potentially suggesting that he cheated on a test even though

he had not actually cheated. The prosecutor’s argument that

Flores was not law-abiding was offered to distinguish the

defense attorney’s situation from Flores’s. Flores admitted

that she asked Manuel to delete content because she feared

there was a picture of her smoking marijuana. While the

evidence Flores’s attorney destroyed as a child was entirely

innocent (and might have exonerated him), the evidence
24 UNITED STATES V. FLORES

Flores asked her cousin to destroywas undoubtedly indicative

of criminal activity—the only question was which crime

Flores was trying to cover up, simple possession, exportation,

or importation. The government merely pointed out that,

unlike her attorney, Flores was trying to hide evidence of

wrongdoing. Placed in this context, the argument was proper

rebuttal.

E. Cumulative Error

Flores contends that, because the prosecution committed

multiple errors, we should not conduct “a balkanized, issueby-issue harmless error review.” United States v. Frederick,

78 F.3d 1370, 1381 (9th Cir. 1996). We agree that we must

consider the cumulative effect of the errors, if any. However,

Flores did not object to any of the prosecution’s conduct that

we find improper, so we review for plain error, not harmless

error as Flores suggests.

In the context of the trial as a whole, the jury was unlikely

to misunderstand Flores’s testimony or the law, and it is

unlikely that the jury’s deliberations were affected by the

prosecutor’s submission that she would hire Russ Butler

rather than Forrest Folck. Considering the errors together

does nothing to change these conclusions. Adding to Butler’s

credibility would not have increased the likelihood that the

jury misunderstood the law or Flores’s testimony, just as

misunderstanding the law or Flores’s testimony would not

have altered the jury’s assessment of the experts’ credibility. 

The likelihood that the errors affected the jurors’

deliberations was simply too low to constitute plain error. 

Further, because the evidence against Flores was

overwhelming, she was less likely prejudiced by the effect of

cumulative errors. See United States v. Wallace, 848 F.2d
UNITED STATES V. FLORES 25

1464, 1475–76 (9th Cir. 1988). Thus, whether viewed

individually or cumulatively, the prosecution’s improper

statements do not warrant reversal.

III. EVIDENTIARY CLAIMS

Flores argues that the district court erred in denying her

motion to suppress evidence obtained from her Facebook

account. She further argues that the district court abused its

discretion by admitting evidence of her personal drug use at

trial. We disagree.

A. Denial of Flores’s Motion to Suppress Facebook

Evidence

We review the denial of a motion to suppress de novo and

the district court’s findings of fact for clear error. United

States v. Camacho, 368 F.3d 1182, 1183 (9th Cir. 2004). 

Flores contends that the district court erred because (1) the

warrant to search her Facebook account was not supported by

probable cause and was stale; (2) the warrant was overbroad;

and (3) the search exceeded the scope of the warrant. We

reject each argument in turn.

1. Probable Cause and Staleness

Probable cause is established if an affidavit presents a

“fair probability” that evidence of criminal activity will be

found in the place to be searched. Illinois v. Gates, 462 U.S.

213, 238 (1983). We “give[] ‘great deference’ to an issuing

judge’s finding that probable cause supports the warrant” and

review for clear error. United States v. Grant, 682 F.3d 827,

832 (9th Cir. 2012). We will not find a search warrant invalid

so long as the issuing judge had a substantial basis for
26 UNITED STATES V. FLORES

concluding that the supporting affidavit established probable

cause. United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.

2007).

Special Agent Enriquez’s affidavit supporting the warrant

established probable cause to search Flores’s Facebook

account, at least for some period of time, considering Flores

called Jose Manuel from jail and asked him to purge her

account. That request, along with Flores’s warning that the

call was being recorded and the close proximity of the call to

her arrest, supported more than a “fair probability” that

agents would find evidence of drug smuggling or a smuggling

conspiracy in Flores’s account. Id.

Flores argues, however, that even if there was probable

cause on June 21, 2012, after she called Manuel, there was no

longer probable cause when the warrant issued more than

three months later, on October 2, 2012. See Grant, 682 F.3d

at 835 (explaining that an otherwise sufficient warrant

application may become stale absent “a continuing pattern or

other good reasons” suggesting that evidence remains in the

location to be searched); United States v. Gann, 732 F.2d 714,

722 (9th Cir. 1984). Contrary to Flores’s argument, there are

many reasons to believe that there remained a “fair

probability” of finding evidence of drug smuggling in her

account when the warrant issued.

The mere passage “of substantial amounts of time is not

controlling in a question of staleness.” United States v.

Dozier, 844 F.2d 701, 707 (9th Cir. 1988). That is

particularly true with electronic evidence. “Thanks to the

long memory of computers, any evidence of a crime was

almost certainlystill on [the defendant’s] computer, even if he

had tried to delete the images.” United States v. Gourde, 440
UNITED STATES V. FLORES 27

F.3d 1065, 1071 (9th Cir. 2006) (en banc) (emphasis added). 

Because any evidence that might have been in Flores’s

account on June 21, 2012 may not have been deleted and

likely could have been recovered even if it had been deleted,

there remained a fair probability that Flores’s account would

contain evidence of drug smuggling on October 2, 2012.

Flores counters by noting that the government sought to

file the warrant under seal precisely because anyone with

even basic computer skills could permanently delete

Facebook content. This argument disregards the fact that, on

August 27, 2012, Special Agent Enriquez submitted a

preservation request to Facebook for Flores’s account,19

which proved effective.20 Further, asserting that there is a

genuine risk that evidence might be permanently deleted in

the future, as Enriquez did in support of his request to seal the

warrant, is not the same as conceding that there is no longer

a fair probability that the evidence still exists (or is

recoverable). See Gourde, 440 F.3d at 1065, 1071. Probable

cause determinations are “commonsense, practical”

questions, and a “fair probability” is less even than a

preponderance of the evidence. Id. at 1069. In this day and

age, even persons with minimal technological savvy are

19 Agent Enriquez did not mention the preservation request in his

affidavit. He did, however, refer to “recovered data,” and he mentioned

that it was “very likely . . . that evidence of the crimes under investigation

exists on computers subject to the control of” Facebook.

20 In addition to the preservation request and the inherent difficulty of

irretrievably deleting digital data, a Facebook security setting also ensured

that the contents of Flores’s account remained accessible. Anyone logging

in to Flores’s account from an unknown computer had to enter a password

that was sent to Flores’s cell phone. Flores’s phone had been confiscated,

so Manuel was unable to login to Flores’s account.
28 UNITED STATES V. FLORES

aware that data is frequently preserved and recovered after

deletion from an electronic device, particularly when a third

party like Facebook is involved. See id. at 1071. Therefore,

even if agents were less likely to find evidence of drug

smuggling in Flores’s account in October than in June, a fair

probability of finding such evidence remained when the

warrant issued.

2. Overbreadth

Flores next argues that the warrant was overbroad. We

consider three factors in analyzing the breadth of a warrant:

(1) whether probable cause existed to seize all

items of a category described in the warrant;

(2) whether the warrant set forth objective

standards by which executing officers could

differentiate items subject to seizure from

those which were not; and (3) whether the

government could have described the items

more particularly in light of the information

available . . . .

United States v. Lei Shi, 525 F.3d 709, 731–32 (9th Cir.

2008).

The first two factors clearly suggest that the warrant was

not overbroad. The warrant allowed the government to

search only the Facebook account associated with Flores’s

name and email address, and authorized the government to

seize only evidence of violations of 18 U.S.C. § 371

(Conspiracy) and 21 U.S.C. §§ 952 and 960 (Importation of
UNITED STATES V. FLORES 29

a Controlled Substance).21 The warrant also established

“Procedures For Electronically Stored Information,”

providing executing officers with sufficient “objective

standards” for segregating responsive material from the rest

of Flores’s account. See Lei Shi, 525 F.3d at 731–32.

Citing United States v. ComprehensiveDrug Testing, Inc.,

621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam)

(“CDT”), Flores argues that the objective standards used here

were unconstitutional. At bottom, Flores complains that the

government, including the investigative team itself, was

authorized to seize and search all 11,000 pages of data in

Flores’s account when, as it turned out, only approximately

100 pages were truly responsive to the warrant. In United

States v. Adjani, we rejected a similar argument that the

government should have narrowed its search of a defendant’s

e-mail account. See 452 F.3d 1140, 1149–50 (9th Cir. 2006)

(“To require such a pinpointed computer search, restricting

the search to an email program or to specific search terms,

would likely have failed to cast a sufficiently wide net to

capture the evidence sought.”). “Over-seizing” is an accepted

reality in electronic searching because “[t]here is no way to

be sure exactly what an electronic file contains without

somehow examining its contents.” CDT, 621 F.3d at 1176,

1177.

That said, we have recognized a number of significant

limitations to prevent necessary “over-seizing” from turning

into a general dragnet. In Adjani, we explained that warrants

21 Flores argues that the warrant authorized agents to search for and seize

evidence tending to prove a conspiracy to commit any crime. She

misreads the warrant, which extended only to content “tending to show

narcotics trafficking.”
30 UNITED STATES V. FLORES

must specify the particular crime for which evidence is

sought. 452 F.3d at 1148–50. We also cautioned in CDT

against retaining unresponsive data based on the “plain view”

doctrine, and recognized the importance of protecting third

parties’ rights. 621 F.3d at 1169–71. Consistent with this

guidance, the warrant here specified a crime and a suspect,

the seized data was not used for any broader investigative

purposes, and Facebook, rather than government agents,

segregated Flores’s account to protect third parties’ rights.22

Flores claims that the third Lei Shi factor—whether the

government could have placed greater limits on the warrant’s

scope in light of available information, 525 F.3d at 732—cuts

in favor of finding the warrant overbroad. In particular, she

notes the warrant contained no temporal limit. As it turns

out, Flores’s Facebook account contained activitydating back

to when she was 17 or 18 years old, and she committed the

22 We recognize that the warrant authorized retention of Flores’s full

account for authentication purposes, a process we disapproved in United

States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982). Tamura presented

very different concerns, however, because the documents retained in that

case were a company’s physical “master volumes” rather than a copy of

digital data. Nevertheless, CDT reaffirmed the importance ofreturning (or

destroying) copies of digital data. See 621 F.3d at 1170; id. at 1179

(Kozinski, C.J., concurring). But CDT allowed for retention with

“specific judicial authorization,” which the warrant here included. See id. 

We also note that “any authorized federal agent” was allowed to search

within Flores’s account for responsive data. Ideally, the government’s

investigative team would not have been involved in segregating

responsive data from the rest of Flores’s account. See id. at 1168, 1172

(Majority Op.). CDT did not prohibit investigative teams from

participating in data segregation as a general matter, however, and instead

faulted the government for misleadingly suggesting in the warrant that the

team would not be involved. Id. at 1172. CDT thus serves as a reminder

not to mislead magistrates or exceed the scope of a warrant, not as a

blanket prohibition on data segregation by investigative teams.
UNITED STATES V. FLORES 31

offense of conviction shortly after turning 23 years old.23

Seizing five or six years’ worth of data may have been

excessive, though Agent Enriquez’s affidavit certainly

established probable cause to search Flores’s account for

some time before her arrest.

Ultimately, we need not decide whether the warrant was

overbroad for lack of a temporal limit because even if it was,

suppression of the evidence used at trial was not required. 

We have “embraced the doctrine of severance, which allows

us to strike from a warrant those portions that are invalid and

preserve those portions that satisfy the Fourth Amendment. 

Only those articles seized pursuant to the invalid portions

need be suppressed.” United States v. Gomez-Soto, 723 F.2d

649, 654 (9th Cir. 1984). No evidence was introduced at trial

that should have been suppressed under this standard,

regardless of the warrant’s potential overbreadth. Indeed, the

two sets of Facebook messages introduced at trial were sent

on the day of Flores’s arrest and thus fell well-within even the

narrowest of temporal limits. Therefore, even though the

warrant had no temporal limit, the district court did not err in

denying Flores’s motion to suppress. See Gomez-Soto,

723 F.2d at 654.24

23 In her motion in limine, Flores exaggerated the scope of the problem. 

She claimed that the government seized data fromas early as 2000. Flores

testified, however, that she joined Facebook when she was 17 or 18 years

old, which means that no data existed prior to 2006 or 2007, given that

Flores was born in 1989.

24 Because we conclude that the evidence used at trial was seized

pursuant to the valid portion of the warrant and that the motion to suppress

was therefore properly denied, we need not address the government’s

additional argument that the “good faith” exception to the exclusionary

rule applies.
32 UNITED STATES V. FLORES

3. Executing the Warrant

Flores further argues that the Facebook evidence

presented at trial should have been suppressed because the

government exceeded its scope by seizing all 11,000 pages of

data in Flores’s account. Pursuant to the terms of the warrant,

however, Facebook was authorized to provide agents with a

copy of the entire contents of Flores’s account. Agents then

segregated 100 pages of responsive material from the entire

account into a separate file within the 90-day period

authorized by the warrant.25 Again pursuant to the warrant,

the original copy of Flores’s account was sealed in an

evidence bag and is inaccessible absent a new warrant.26

In

short, the government executed the warrant exactly as it was

written.

We need not determine whether the 100 pages of

segregated data exceeded the scope of the warrant, as Flores

claims, because only two messages were admitted into

evidence. In United States v. Crozier, we held that “[o]nly

those items which fall outside the scope of the warrant need

be suppressed.” 777 F.2d 1376, 1381 (9th Cir. 1985). 

Accordingly, the district court properly considered only the

25 Flores also claims that the government exceeded the scope of the

warrant by refusing to enlist Facebook in this data segregation. Flores’s

claim fails because the warrant explicitly authorized the government to

perform this task and because the affidavit thoroughly explained why

Facebook could not be assigned to find responsive materials in Flores’s

account. See CDT, 621 F.3d at 1170–71; Tamura, 694 F.2d at 595.

26 In addition to the sealed copy retained for authentication purposes, the

government made three working copies of Flores’s account and gave one

copy to the defense, one to the prosecution, and one to the case agent. The

latter two copies have been destroyed.
UNITED STATES V. FLORES 33

Facebook messages the government planned to introduce at

trial. Those messages were well-within the scope of the

warrant. Thus, even if other evidence that was not introduced

at trial might have exceeded the warrant’s scope—and there

is no reason to believe that it did—the district court did not

err in denying Flores’s motion to suppress.

B. Admissibility of Evidence from Facebook

After the district court denied Flores’s motion to suppress,

Flores moved in limine to exclude any evidence referring to

her personal drug use, arguing that references to personal

drug use were inadmissible propensity evidence under

Federal Rule of Evidence 404(b) and unfairly prejudicial

under Rule 403. The district court denied her motion and

overruled her Rule 403 and 404 objections at trial. We

review the denial of Flores’s motion and the rejection of her

objections for abuse of discretion. See United States v.

Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en banc).

Flores contends that the two Facebook messages the

government introduced were improperly used for propensity

purposes and were unfairlyprejudicial—concernswhich were

improperly compounded by the admission of evidence that

Flores also used marijuana during her pretrial release period. 

Flores is correct that drug use and simple possession cannot

be introduced to show that a defendant conspired to smuggle

drugs. See United States v. Vizcarra-Martinez, 66 F.3d 1006,

1015 (9th Cir. 1995) (noting that possession of personal use

amounts of a drug does not evidence conspiracy to

manufacture that drug); United States v. Mehrmanesh,

689 F.2d 822, 831–32 (9th Cir. 1982) (rejecting the argument

that a jury can infer importation from drug use). She is

incorrect that the evidence was inadmissible, however,
34 UNITED STATES V. FLORES

because the government used the evidence for different,

permissible purposes.

The evidence supported a reasonable inference that the

Facebook messages referred to the very drugs Flores was

arrested for transporting. Thus, the messages were at least

arguably tantamount to admissions to the crime charged. 

Accordingly, Rule 404(b) is inapplicable because the

evidence did not refer to other bad acts at all; it referred to the

bad act at issue. See United States v. Rizk, 660 F.3d 1125,

1131 (9th Cir. 2011). Indeed, it would have been illogical for

the government to use the messages for propensity purposes,

as that would have bolstered Flores’s claim that the messages

referred to other uncharged bad acts, whereas the

government’s argument depended in part on convincing the

jury that the messages referred to the importation with which

Flores was charged. Thus, the district court’s decision to

admit the evidence as a potential admission was not an abuse

of discretion because the government’s characterization of the

messages was supported by “inferences that may be drawn

from facts in the record.” Redlightning, 624 F.3d at 1110. 

That Flores presented a competing plausible characterization

of the Facebook messages goes to the weight of the evidence,

not its admissibility. Nor did the district court abuse its

discretion under Rule 403 because the prejudice created by an

admission, while severe, is not unfair. See United States v.

Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000).

Allowing the government to use the messages for nonpropensity impeachment purposes—i.e., to show that Flores

was lying about what she wanted her cousin to delete from

Facebook—was not an abuse of discretion. The same is true

of the government’s reference to Flores’s pre-trial drug use,

which was introduced to show that Flores had lied to a federal
UNITED STATES V. FLORES 35

judge and thus was untrustworthy, rather than to show

Flores’s propensity to commit drug crimes. Moreover, the

court explicitly instructed the jury that it could not consider

evidence of Flores’s other wrongful acts “as evidence of guilt

of the crime for which the defendant is now on trial.” 

Because the evidence was used for permissible purposes only,

the district court did not abuse its discretion in denying

Flores’s motion in limine or overruling her objections. See

United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999)

(“[U]nless the evidence of other acts only tends to prove

propensity, it is admissible.”).

IV. SENTENCING

We review a district court’s construction and

interpretation of the Sentencing Guidelines de novo, its

factual findings for clear error, and its application of the

Guidelines to the facts for abuse of discretion. United States

v. Taylor, 749 F.3d 842, 845 (9th Cir. 2014); United States v.

Popov, 742 F.3d 911, 914 (9th Cir. 2014). Flores argues that

the district court procedurally erred by applying a 2-level

obstruction of justice enhancement under U.S.S.G. § 3C1.1

without making the requisite willfulness and materiality

findings. See U.S.S.G. § 3C1.1 cmt. 4(D). We disagree.

Flores is correct that the enhancement can be based only

on willful efforts to delete evidence that are material to “the

instant offense of conviction,” U.S.S.G. § 3C1.1 (emphasis

added)—importation of marijuana. See United States v.

Gardner, 988 F.2d 82, 83 (9th Cir. 1993) (per curiam). 

Contrary to Flores’s claim, however, the district court found

Flores asked her cousin to delete Facebook content that, “if

believed, would tend to influence or affect” the importation

charge itself. U.S.S.G. § 3C1.1 cmt. n.6 (defining
36 UNITED STATES V. FLORES

materiality). Indeed, the district court allowed the

government to introduce this evidence at trial over Flores’s

objections precisely because the court concluded that, if the

jury believed the government’s characterization of the

evidence, it would directly prove Flores knew there was

marijuana in her car as she entered the United States. The

court’s evidentiaryruling therefore encompasses the requisite

materiality finding. Cf. United States v. Armstrong, 620 F.3d

1172, 1176 (9th Cir. 2010) (“Although it is preferable for the

court to make a separate and clear finding . . . , doing so is

unnecessary where the court makes a determination of an

obstruction of justice enhancement that encompasses all of

the factual predicates for [such] a finding . . . .”).

Flores also asserted at sentencing that she asked Manuel

to delete Facebook content because “[s]he didn’t want the

prosecutors to assume that she had knowledge [of the drugs

in her car] simply because she herself had smoked marijuana

in the past.”27 Thus, Flores affirmatively stated at sentencing

27 Flores had stated this fear earlier in her testimony, as well. When

asked why she wanted Manuel to delete references to her marijuana use

from Facebook, Flores said, “For however long I had been smoking,

people they just pass judgment immediately. I don’t know, I guess they

think badly of somebody who smokes marijuana . . . . I knew that that

was something I could get in trouble for.” On cross-examination, she

confirmed that she wanted the evidence deleted because of “the judgment

that people pass on anyone who smokes marijuana,” and because “I didn’t

want it to be used as evidence in [a] case it was irrelevant to.” Essentially,

Flores was worried that evidence of her marijuana use might (1) support

a character inference that in turn would cause the government to prosecute

(and the jury to convict) her for importation, and (2) suggest that she knew

that drugs were hidden in her car as she entered the United States. While

Flores’s concerns might warrant exclusion of this evidence in an

importation case under Federal Rules of Evidence 404(b) and 403, a

defendant cannot avoid an obstruction enhancement by claiming that the
UNITED STATES V. FLORES 37

that she attempted to delete content from Facebook for the

purpose of hindering the investigation and prosecution of “the

instant offense of conviction.” U.S.S.G. § 3C1.1; see

Gardner, 988 F.2d at 83–84 (“[A]section 3C1.1 enhancement

must be premised on willful conduct that has the purpose of

obstructing justice.”). Accordingly, the district court’s

imposition of the enhancement based on Flores’s “efforts to

have her cousin delete certain postings from her Facebook

account” and “for the reasons stated,” was a finding of the

essential elements of obstruction under § 3C1.1. Gardner,

988 F.2d at 83–84 (“[T]he district court need not specify the

reasons for its factual finding of obstruction of justice.”).

Flores’s own testimony establishes that this factual

finding—that Flores asked Manuel to delete content from

Facebook for the purpose of eliminating evidence that might

tend to prove the crime charged—was not clearly erroneous. 

Therefore, we affirm her sentence.

V. CONCLUSION

Once again, an Assistant United States Attorney for the

Southern District of California overstepped the boundaries of

permissible questioning and argument. We reluctantlyaffirm

evidence she tried to destroy might have been inadmissible—that is not a

defendant’s decision to make. Obstruction enhancements are not reserved

for the willful destruction of admissible evidence only, and in any event,

the evidence Flores attempted to destroy was admissible for nonpropensity purposes. More importantly, Flores’s testimony confirms that

when she asked Manuel to delete content from Facebook, she knew it

could be used against her in a prosecution for importation, and she

attempted to destroy it for that reason.
38 UNITED STATES V. FLORES

Flores’s conviction under the high bar of the plain error

standard.

AFFIRMED.

PREGERSON, Circuit Judge, dissenting:

I respectfully dissent. The Assistant U.S. Attorney

violated the rules of permissible questioning and argument;

forgot that our government’s interest “in a criminal

prosecution is not that it shall win . . . , but that justice shall

be done,” Berger v. United States, 295 U.S. 78, 88 (1935)

(Sutherland, J.); and ignored Justice Sutherland’s admonition

that a prosecutor “may strike hard blows, but not foul ones.” 

Id.

These serious violations do not warrant invocation of the

plain error rule.