F OR P UBLICATION



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

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

,

v.

C I T L A L L I F L O R

E S , D efendant-Appellant

. No. 14-50027

D.C. No. 3:12-cr-03054-MMA-1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Michael M. Anello, District J udg e, Presiding

Arg ued and Submitted December 8, 2014—Pasadena, California

F iled September 23, 2015

B efore: Harry Preg erson, Kim McL ane W ardlaw, and Marsha S. B erz on, Circuit J udg es.

Opinion by

J udg e W ardlaw Dissent by

J udg e Preg ersonU N I T E D S T A T E S V

. F L O R E S 2

SUMMARY *

Crim inal Law

Affirming a conviction and sentence fo r importation o f marijuana, the panel found merit in the defendant’s claims o f prosecutorial misconduct, but held that the misconduct does not rise to the level of plain error.

The panel held that the g overnment misstated the law b y telling the jury it could con v i c t the defendant based on her admission to carry

ing mariju ana to Mex ico on the date o f her a r r e s t , and misstated the defendant’s testimony thereby making an u nsupported factual claim, but that the misstatements did not substantially prejudice her. The panel held that the g overnment’s improper vouching for a witness did not substantially prejudice the defendan t

. T h e panel rejected the defendant’s c o n tentions that the g overnment improperly shifted and undermined the burden of proof. The panel rejected the defendant’s arg uments that the pr o s ecutor’s
statements a

bout the defendant were improper. Reviewin g for p lain error, the panel concluded t h a t the prosecution’s improper statements, whether viewed individu a l l y o r cumulatively , do not warrant reversal.

The panel rejected the defe n d ant’s arg uments that the district co u rt erred in deny ing her motion to suppress evidence obtained fr o m her F acebook account a nd that the district court abused its d iscretion by admit t ing evidence o f her personal drug

use at trial.

* T h is su m m ary co n stitu

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

co u rt staf

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

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

. F L O R E S 3

T h e p a nel held that the district court did not err i n apply ing an obstruction o f justice enhancement pursuant to U.S.S.G. § 3C1.1 based o n t he defendant’s efforts to have content from her F acebook account deleted.

Dissenting

, J u d g e Preg e rson wrote that the Assistant U.S. Attorney ’s serious v iolati o n s o f the rules of permissible questioning and arg ument do n o t w arrant invocation of the plain error rule.

COUNSEL

Morg an D. Stewa rt (arg ued), F e deral Defenders of San Dieg o, I n c., San Dieg o, California, for Defendant-Appellant.

Michelle L

. W asserman ( arg ued), L aura E. Duffy

, and B ruce R. Castetter, Office of the United States A ttorney , San Dieg o, California, for Plaintiff-Appellee.

OP INION

W A RDL AW , Circuit J udg e:

Citlalli F lores appeals her convictio n a n d sentence for importation of marijuana in violation of 21 U.S.C. §§ 952 a nd 960. Althoug h we find merit in her c laims of prosecutorial misconduct, the misconduct d oes not rise to the level of plain

error. F lores’s remaining clai m s o f error lack merit. According ly

, we affirm her conviction and sentence.U N I T E D S T A T E S V

. F L O R E S 4

I. F ACTUAL AND P ROCEDURAL BACK G ROUND

On the evening of J une 21, 2 012, F lores was stopped b y Customs and B order Protection (“CB P”) Officer B enj a min B rown a s she entered the U n i t ed States following a day trip
to Tijuana, Mex ico. W hen F lores h anded B r own h e r driver’s license, her hands were shaking

, and she looked back towards the re ar p a s seng er-side of her car several times. B rown became suspicious, inspected that area of the car, and f ound several packag es of w hat turn e d o u t t o be marijuana. CB P officer s t h e n searched the rest of F lores’s car, where they discovered 16.44 kilog rams (36.24 pounds) of marijuana.

F lores was i ndicted on o ne count of importation o f marijuana in violation o f 21 U.S.C. §§ 952 and 960. 1 F lores’s first trial resulted in a h u ng jury

. Upon r e t r i a l

, a jury rendered a g uilty

verdict. The district judg e imposed a twolevel e nhancement for obstruction of jus t i c e, but then substantially reduced her sentence in lig h t o f U.S.S.G. § 5 K2.0 and the 18 U.S.C. § 3553(a) factors, ul t i mately imposing a term of incarceration of 1 2 months and one day in prison. 2

F lores’s defense rested on her lack of knowledg e that her

car was loaded with marijuana as she entered the United States. She testified that while she was in Tijuana o n J une 21,

1 Sectio n 9 5 2 (a) p r o v i d e s : “I t sh all b e u n law f u l

. . . to im

po rt in to th e Un i ted States f

ro m an y p l ace o u tsid e th ereo f

. . . an y co n t ro lled s u b stan ce in sch ed u le I o r II,” in clu d in g m arij u an a.

2 T h e d i s t r i c t co u rt ex p lain ed th at b y ad d in g th e ex tra d ay to Flo res’ s

sen ten ce, sh e w o u ld b e elig i b le f o r a red u ctio n in th e cu sto d ial p o rtio n of h er sen ten ce.U N I T E D S T A T E S V

. F L O R E S 5

2 0 1 2
, s h e g ave her car to a mechanic named J uan so that h e could repair her air conditioning more cheaply than she could have it done in the United Stat e s

. S h e sug g ested that J u an had hidden the marijuan a i n the quarter panels of her c ar

w h i l e it was in the mechanic shop. Competing automot i v e

ex p erts testified about w hether ( 1) F lores’s air conditioning

was in fact w orking on J une 21; (2) F lores could have felt the weig ht and noise-dampening e f fect of the marijuana while she drove; and (3) car repairs were cheaper in Mex ico.

The g overnment noted F lores’s failure to provide corroborating evidence that the r epair work was done or that J uan even ex isted, and offered evidence of her behavior at the border and following h e r arrest as proof that she knew drug s

were hidden in her car. The g overnment also introduced two ja il-recorded phone calls F lores 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” o f Fl o res’s F a cebook
pag e. The latter call prompted the g overnment to search her F acebook account for incriminating e vidence. T h is search, in turn, led to two F acebook messag e s Fl o res had sent on J u ne 21 referencing her “ carry

ing ” or “ bring ing ” marijuana, which

were introduced over F lores’s objections and following the denial of her suppression motion.

F lores testified that the posti n g s indicated o nly that she carried ma r i

j u a n a on J une 21 from the United States into Mex ico, not t h a t she w as about to smug g le marijuana from Mex ico into the U nited States. I n this appeal, she arg ues that the g o vernment committed misconduct by distorting her testimony in closing

. F or ex ample, the prosecutor asked her, “s o it’s undisputed that on the day of y o ur arrest, y ou definitely broug ht drug s between the United States a ndU N I T E D S T A T E S V

. F L O R E S 6

Mex ico” and “ across the inter n a t i onal border? ” 3 The prosecutor a lso asked Fl ores if it was “illeg al” to bring marijuana into Mex ico—a misleading question g iven that F lores was o n trial for importation, not ex portation. 4 And, after emphasiz ing that F lores admitted to “smug g ling drug s,” the prosecutor arg ued d

uring closing that F lores lie d when she testified that t h e messag es referred to ex portation—not i m p o r t ation—of marijuana. F urther, after a c k n o w l e d g i n g t

h a t F lore s claimed she broug ht drug s to Mex ico only

, the
p rosecutor asserted, “ [ t] h at’s still smug g ling drug s ”

— a supposed crime that w as not charg ed. I n her final line to the jury

, the prosecutor emphasiz ed: “ S h e knows she was smug g ling drug s on J une 21st, 2012. You heard her say that repeatedly and that’s why she’s g uilty bey on d a reasonable doubt.”

I n a ddition to claiming that the government eng ag ed in prosecutorial misconduct, F lores arg ues on appeal that (1) the district court erred in deny ing her motion to suppress; (2) the district court a

bused its d iscretion b y a dmitting F a cebook
messag es and other unduly prejudicial ev i dence referencing F lores’s marijuana u se; and (3) the district court procedurally

3 T h e p ro secu to r also as ke d F l o r e s h o w of ten sh e b rin g s “ p o t b etween t h e Un ited States an d Mex ico ,” w i th o u t sp ecif y in g a d i rectio n o f tra v e l

. A t o th er p oin ts, th e pro secu t o r a ccu rately ch aracterized Flo res’ s testim o n y

. Fo r ex am

p le, th e p ro s ecu to r ask ed : “ So y o u r testim o n y i s y ou b ro u g h t d ru g s f

ro m t h e Un ited States to Mex ico b u t n ot f ro m Mex ico in to th e Un ited States? ”; “ D o y o u h av e an estim ate o f w h en y ou b ro u g h t d ru g s f ro m th e Un ited S t a t e s i n to Mex i co ? ”; an d “ Yo u h ad d riv en d ru g s o n ce ag ain f ro m th e Un ited States to Mex ico .”

4 T ech n ically

, th e an sw er to th e g o v e r n m e n t ’s q u estio n is, “ Yes,” as 2 1 U.S.C. § 9 5 3 crim i n alizes th e ex p o rtatio n o f a co n tro l led s u b s t an ce. B u t Flo res w as in d icted on ly f o r k n ow in g ly an d in ten tio n ally imp o r tin g

m arij u an a, in v io l atio n

o f § § 9 5 2 an d 9 6 0

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

. F L O R E S 7

e r r e d in apply ing an obstruction of justice enhancement at sentencing . W e address F lores’s arg uments in turn.

II. P ROSECUTORIAL MISCONDUCT

W e r eview d e n ovo whether any prosecutorial misconduct occurred. S

ee United States v

. W

eatherspoon

, 410 F .3d 1142, 1145–46 (9th Cir. 2005); United States v. Ross
, 1 23 F .3d 1181, 1187 (9 t h Cir. 1997). W e then consider the effect o f
any misconduct to determine whether reversal is w a r r a nted. See W eatherspoon

, 410 F .3d a t 1150–51. W here F lores objected at trial, we review for harmless error; where she did

n o t , w e r eview 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 F acts

F lores contends that the g overnment committed misconduct by erroneously telling the jury t hat it could convict h er based on her admission t o carry ing marijuana to M ex ico on the date of h er arrest. W e ag ree t h a t t h e g overnment misstated the law to the jury

. See United States

v. Berry
, 627 F .2d 193, 2 00 (9th C i r

. 1 9 80) (“A p rosecutor should not misstate the law in closing arg ument.”). The
g overnment also misstated F lores’s testimony

, thereby making an unsupported factual cl a i m

. See United States v

. Kojayan
, 8 F

. 3d 1315, 1 321 (9th Cir. 1 993); see also United States v. Mageno
, 762 F .3d 933, 943 (9th Cir. 2014), vacated

on other g r o u n d

s , 786 F .3d 768 (9th Cir. 2015). F lores did
not o bject to this misconduct below, however, so we r eview for plain error. W e conclude that the mis s tatements did not substantially prejudice h e r , and so d o n o t warrant reversal. See Ruiz , 710 F .3d at 1082.U N I T E D S T A T E S V

. F L O R E S 8

1. The Prosecution’s Impermissible Statements

The g overnment c ros s e d the line between permissible commentary on F lores’s testimony about her F a cebook

m essag es a

nd that which we have long deemed impermissible. I n a messag e dated J une 21, 2012, F l o r e s ’s friend asked if she “carried some p ot ,” to which F lores responded, “y es. ” 5 I n a second pair of J une 21 messag es, F lores sa y s to a different friend, “come over and have a smoke” “of what I ’m bring ing .” 6 F lores testified that these
messag es meant t h a t she was bring ing marijuana to Mex ico and arg ued that they did not prove that she imported marijuana as charg ed. The g over n ment characteriz ed these
messag es differently :

You heard about some p o s ts on [ F lores’s] F acebook account from J une 21st 2012 when

s h e s aid she w as carry ing marijuana a

nd bring ing marijuana. You k now what she was carry ing on J une 21st 2012. She was carry ing and bring ing marijuana from Mex ico into the United States in her c ar. She tried to convince
y ou. She tried to ex plain this away

. She said, No. No. W

hat I was d

oing w a s bringing marijuana from the United States of America into Mexico.

5 T h e F aceb o o k po stin g s are i n Sp an i sh

, w h ich th e g o v ern m en t tran slated f

o r t h e j u ry

. F lo res tran slates th e co n v ersatio n dif f eren t ly

, assertin g th at th e q u estio n w as, “ Did y o u

tak e w eed .”

6 Flo res also tran s lates th is co n v ersatio n d if f eren tly

, assertin g th at th e in v itatio n w as to “ co m e so y o u

can sm ok e o u t o f

w h at I h av e.”U N I T E D S T A T E S V

. F L O R E S 9

This arg u ment reflects the g overnment’s apparent strateg y for using the F acebook messag es to convince the jury that F lores (1) admitted to carry

ing d r ug s across the U.S.-Mex ico border, and (2) was ly

ing about the direction she carried the drug s.

B o th parts of this strate g y are permissible. Prosecutors

are free in arg u ment to sug g e st that the jury draw reasonable inferences from the evidence presented at trial. United States

v. S ayetsitty
, 107 F .3d 1405, 1 409 (9 t h C i r

. 1997); see also Mageno , 762 F .3d at 943; U nited States v. Molina , 934 F .2d 1440, 1 445 (9th C i r

. 1991) (holding that prosecutors may arg ue that a defendant i s l y i n g ). H ere, there was more than
enoug h evidence to support a reasonable infer e n c e t hat the F acebook messag es a ctually meant t hat F lores was carry ing drug s into the United States, r ather than t o Mex ico as she testified. Sh e w a s , in fact, carry ing more than 36 pounds o f marijuana in her car as she e ntered the United States on t h e very day she sent those messag es. S h e t hen attempted to delete posting s on her F acebook account from jail after the border patrol discovered the marijuana in her car.

Of course, the jury was free to b e lieve F lores’s

ex p lanation that the messag es actually referenced ex portation rather than im p o rtation, b ut the evidence adequately supported the g overnment’s charac t e r iz a tion of them. Even if we w ere to accept that those messag e s convey ed a d esire to smoke m ar i

j u a na in Mex ico, n othing in them rules out the possibility that F lores was offering her friends an opportunity
to smoke some of the more than 36 pounds of marijuana she picked up in Mex ico before she carried it back to the United States. The latter possibility is all the more plausible because when F lores was arrested, she was not carry ing any marijuana
ot h e r than that found h idden in her c ar. This evidence supports the permissible inference the g o vernment asked theU N I T E D S T A T E S V

. F L O R E S 10

jury to draw—namely

, that the F acebook mes s a ges referenced the very marijuana found in F lores’s car.

This prosecutorial arg ument a lso accurately characteriz ed F lores’s insistence that she carried drug s to Mex ico but not to t h e United States. So long a s the g overnment a ccurately recounted what F l o r es said—and in the statement quoted above, i t d i d—the g overnment was free to ask the jury to disbelieve F lores. F urther, the arg ument accurately states the law by ex plaining that F lores is g uilty because, reg ardless o f her F acebook po sting s and what she testified about them, F lores broug ht drug s into the United States.

However, the g overnment a lso stra y ed bey ond the boundaries of permissible q u estioning and arg ument. The prosecutor repeatedly asserted that F lores had admitted to “drug smug g ling .” As a leg al b u t irrelevant matter, F lores did admit to drug smug g ling

, see 21 U.S.C

. § 960—just not the kind of drug smug g ling w ith which she w as charg ed, which the prosecutor had to know. L a beling Fl ores an “admitted drug smug g ler” when she actually admitted to e x p o r tation required the g overnment to walk a very f i n e l i n e. I t was “definitely improper” for the prosecutor to sug g est that F lores admitted to “ drug smug g ling ” when the prose c u tor u sed the
t e r m a s a sy

nony m f or importation because that misstated F lores’s tes t i m o n y

. See United States v

. Kojayan
, 8 F .3d at 1321; see a lso Mageno
, 7 62 F .3d a t 9 4 3. At the same time, when loosely referencing “drug smug g ling ” to encompass

ex p ortation, the g overnment could, wit h out misstating testimony

, assert that F lores a dmitted to drug sm ug g ling

. However, it was imprope r to use the “admission to d rug smug g ling ” ling o in this loose manner w hen sug g esting that such an admission was sufficient to warrant a conviction for the cri m e charg ed. Doing so misstates the law, becauseU N I T E D S T A T E S V

. F L O R E S 11

F lores was not charg ed with ex p ortation—t h e o n ly form o f drug smug g ling to which she actually admitted.

The prosecu t o r improperly u sed the phrase “drug
smug g ling ” as a sy

nony m for importation frequently

, from her opening statement throug h her last closing line to the jury

. The g overnment’s arg uments that F lores admitted to d rug smug g ling a t trial were therefore misleading

, if not outrig ht false. These misstatements b ecame flat falsehoods with the prosecutor’s coup de grace : “She knows she was smug g ling drug s on J une 21st, 2012. You heard h er say that repeatedly and that’s why she’s guilty beyond a reasonable doubt .” The jurors knew this was an importat i o n case, so the only way F lores’s admission to “drug smug g ling ” would be a basis for finding her g uilty b ey o nd a reasonable doub t is if she h ad admitted to importation. B eca u s e she never made such an admission at trial, this statement falsely characteriz ed F lores’s testimony

.
Moreover, to the ex tent that the pro s e c u t or did not misrepresent F lores’s testimony

, she misstated the l a w

. F lores admitted at trial to ex portation. She therefore could be fou n d g u ilty bey ond a reasonable doubt based on this

a d m ission only if ex portation were adequate to support a conviction. B ecause F lores was on trial for i m p o rtation, howe v e r , the arg ument that knowing ly ex porting marijuana was sufficient to support a g u ilty verdict misstated the law.

The prosecutor also improperly invited the jury to c onvict F lores based on ex portation ra t h e r than importation during

cross- e x amination. A fter F lores admitted to carry ing drug s into Mex ico, the prosecutor asked, “That was illeg a l, wasn’t it? ” Similarly , in closing , the prosecutor acknowledg ed that F lores “claimed she had smug g led drug s from t h e U nitedU N I T E D S T A T E S V

. F L O R E S 12

States to Mex ico,” then asserted, “ [t ] hat’s still smuggling drugs .” T hese statements are not technicall y u ntrue, a s

ex p ortation is drug smug g ling and is illeg al. B y specifically emphasiz ing the illeg a lity of ex p ortation, however, the
go v ernment sug g ested that even if the jury believed t h at F lores only ex ported d

rug s, she “ still” acted illeg a l l y

. I n doing so, the prosecutor overstepped by invitin g t h e jury to improperly convict F lores based on ex portation.

The prosecutor made this worse by purposefully blurring and minimiz ing the distinction between importation a nd

ex p ortation. D uring cross-ex amination, the prosecutor asked whether F lores carried drug s “between” the United States a nd Mex ico a n d “across” the border, without specify ing a direction. I n closing

, the prosecutor then characteriz ed a dispute over which direction the dr u gs traveled as a mere “quibble[ ] ,” minimiz ing the sig nificance of that disputed fact. These statements, while ag ain not untrue as an abstract leg al matter, furthered the misimpression that t h e j ury could convict F lores based on ex p ortation.

The g overnment should have been much more cautious in brandishing the potentially misleading lab e l of “admitted drug smug g ler.” Had the g overnment c are f ully a nd

a c c u rately used the term, it may have been able to avoid miss t a t i n g the law or the f acts. B ut the g overnment was unable to do so, and in any eve n t s h o u l d not have tried to “push the e nvel o p e” in this manner. Ruiz
, 710 F .3d a t 1087 (Preg erson, J

. , concurring ). As the Supreme Court has said, “[ t] he United States A ttorney is the r ep re s e n tative n ot of an ordina r y p arty to a controversy , but of a sovereig nty whose

. . . interest

. . . in a c r i m i n a l 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).U N I T E D S T A T E S V

. F L O R E S 13

2. Plain Error

F lores f a iled to object to any of these improper statements, and must therefore show that the g overnment’s actions amounted to plain e rror. S e e Ruiz
, 710 F .3d at 1082. Althoug h there was err o r, and it was plain, F lores fails to demonstrate the prosecutor ’ s improper statements affected her substantial rig hts or the fairness, in teg rity

, or public

re p u t a t i o n of the proceeding s. See Puckett v. United States
, 556 U.S. 129, 135 (2009); see also United States v

. Olano

, 507 U.S. 72 5
, 734 (1993). I n the contex t of the entire trial, the prosecution’s misconduct was not likely to have affected the jury ’s ability to weig h the evidence fairly

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

Despite the prosecutor’s best efforts, it was unlikely that the jury was actually confused about F lores’s testimony or the elements o f the c h arg e of importation. On multiple occasions, d u r ing both cross-ex amination a nd closing
arg uments, the g o vernment d id accurately

, direc t ly

, a nd

ex p licitly re-state F lores’s testimony

. 7 The defense also accurately reiterated F lores’s testimony in closing

. 8 The chorus of accurate characteriz a tion s of F lores’s testimony

7 Fo r ex am

p le, d u rin g cro ss- ex am in atio n , th e p ro secu to r ask ed : “ So y ou r testim o n y is y o u b ro u g h t dru g s f ro m th e Un ited States to Mex ico b u t n o t f ro m Mex i co i n to th e Un ited S tates? ” In clo sin g , th e p ro secu to r n o ted th at Flo res “ qu ib b l ed w i th th e d irectio n ” i n w h ich th e g o v ern m en t arg u ed th e d ru g s trav eled

. S im ilarly

, th e p ro secu t o r r e m i n d ed t h e j u ry th at Flo res said

, sh e “ w as b rin g in g m arij u an a f ro m th e Un ited States o f A m erica in to Mex ico ,” an d “ claim ed sh e h ad sm u g g led d ru g s f

ro m th e Un i ted States to Mex ico .”

8 D ef en se co u n s el co n ced ed th at Flo res “ w o u ld s o m etim es b r i ng

m arij u an a to Mex ico to sm ok e w ith h er co u sin .”U N I T E D S T A T E S V

. F L O R E S 14

likely drowned out the g overnment’s infrequent, indirect, a nd implicit misstatements of that testimony

. Moreover, F lores’s testimony w as simple, u nambig uous, and unmis t a k a b l e

. 9 J ury confusion was therefore unlikely

.

I t is a lso unlikely that the prosecution’s misstatements o f the law c onfused th e j u r y about the elements of the charg ed offense. T he p rosecution did, on multiple occasions, clearly

an d directly state that importation was required to support a conviction. I n closing , the prosecutor also correctly stated:

You d on’t ha v e t o w rite this down, two elements. D efendant knew she broug ht

ma r ijuana from a place outside into a place inside the United S

tates and second, she knew the substance she was bring ing into the United States was marijuana or some other prohibited drug

. B asically

, the United S t a t es has to prove to y ou or h a s p r o ven to y ou bey ond a reasonable doubt that Ms. F lores [ acted] knowin gl y

— she wasn’t drag g ed over the border, nobody dragged her over the border. She v oluntarily d

rove her car f

r o m Mex ico into the United States

.

9 T h e pro secu t o r a s k e d Flo res: “ [O]n th e d ay o f y o u r arrest, y o u w ere b rin g in g m arij u an a b etw een th e Un ited States an d Me x i c o ? ” Flo res resp on ded : “ In t o Mex ico .” T h e p ro secu to r th en ask ed : “ [Y]o u d ef in itely b ro u g h t d ru g s b etw een th e Un ited Stat e s an d Mex ico ? ” Flo res ag ain
resp on ded : “ No t b etw een

. In to Mexico

. ”U N I T E D S T A T E S V

. F L O R E S 15

During closing

, t h e prosecutor arg ued a t least six teen times that F lores broug ht d

rug s into the United States. 1 0 I n other words, the g o vernment b uilt its e ntire arg ument around a correct statement of a ve ry simple law and repeatedly informed the jury in which direction F lores had to carry drug s to be found g u ilty . According ly , it is unlikely that a rational jury would have concluded, b ased on a f e w misstatements o f the law, that it could conv i c t F lores reg ardless of which direction she carried drug s.

F urther, the e vidence ag a inst F lores was over whelming

. See Berry
, 627 F .2d at 201. F lores was f ound w ith more than 36 pounds of drug s in h e r c ar. The g overnment ex p lained various way s in w hich F lores w ould have become aware that her car was loaded with marijuana. F lores acted suspiciously
at the border, drawing Officer B rown’s attention to the drug s.

10 T h e p ro s ecu to r said : “s h e b ro u g h t d ru g s in ;” “ [s]h e w as co m p letely

su rro u n d ed b y m arij u an a an d co m in g in to th e Un ited S ta tes ;” “ [s]h e k n ew sh e h ad s m

u g g led d ru g s in to th e Un ited S ta tes ;” “ [d ]ef en d an t k n ew sh e b ro u g h t m arij u an a f

ro m a p l ace ou tsi d e i n t o a p la ce in sid e th e Un ited S ta tes ;” “ [w ]e also h av e p ro v en t o y ou bey o n d a reaso n ab le d o u b t sh e k n ew t h ere w ere d ru g s in h er car [as sh e w as en terin g th e Un ited States;]”

“ [s]h e w as carry in g an d b rin g in g m arij u an a f ro m Mex ico in t o th e Un ited S ta t e s i n he r car;” “ [y ]o u k n o w th e d i rectio n sh e w as sm u g g lin g th ose d ru g s. Sh e w a s sm

u g g lin g th em f

ro m Mex ico in to th e Un i ted S ta tes ;”

“ [s]h e w as n erv o u s

. . . b ecau se sh e w as su rro u n d ed b y m arij u an a sh e w as

sm u g g lin g in to th e Un ited Sta tes ;” “ [s]h e d id w h at an y o n e w o u ld d o w

h en th ey are n erv o u s b ecau se o f sm u g g li ng d ru g s in to th e Un ited S ta tes ;”

“ [s]h e k n ew s h e w as sm

u g g lin g [] d ru g s i n to th e Un ited S ta tes ;” “ [sh e w as] arrested

. . . af

ter sm u g g lin g [] d ru g s in to th e Un ited S ta tes ;” “ [sh e w as] h ire[d ] to brin g th e dru g s i n to th e U n ited S ta tes ;” “ [s]h e k

n ew sh e

sm u g g led d ru g s in to th e Un ite d S ta tes ;” “ [s]h e w as ash am ed

. . . in th at j ail call b ecau se sh e k

n ew sh e sm

u g g l e d d ru g s in to th e Un ited S ta tes ;”

“ [sh e] s m u g g led d ru g s in to th e Un ited S ta tes ;” “ [s]h e is a d ru g sm u g g ler

w h o h ad so m eo n e p u t [th e d ru g s ] in [h er car] f o r h er so sh e co u ld b rin g d ru g s in t o th e Un ited

S ta tes .”U N I T E D S T A T E S V

. F L O R E S 16

I n a recorded p hone c a ll from jail play ed for the jury

, F lores

ex p ressed re gr et, n ot f

rustration or confusion, as one would

ex p ect i f J u a n had planted the drug s in F lores’s car without her knowledg e. 1 1 She further implicated herself by asking J os e Manuel to destroy e vidence from F acebook—evidence that was a p p a rently so incriminating that F lores asked

someone to delete it even thoug h she knew her call was being recorded. 1 2

Flores’s story a

bout J uan the mechanic—the o n l y innocent ex p lanation for the d rug s f ound in F lores’s car—was entirely uncorroborated and hig h l y s uspect, as the
g overnment pointed out to the jury

. F lores mentioned her visit to the dermatolog ist to O fficer B r own at the border, a nd presented a host o f evidence at trial to corroborate that aspect of her trip to Mex ico. 1 3 Yet she fa i l ed to mention her interaction with J u an to Officer Br o w n a t the b order a nd offered no evidence to prove that J u an did any repair work on

11 In th is call, Flo res said t o h er b oy f rien d : “ If y o u k eep f

u ck in g aro u

n d

, th at’ s n ot p ro v in g an y

t h in g to m e. Do y o u w an t to b e w ith m e? Do y ou

w an t to ch an g e? I f

u ck in g step p ed f

oo t in h ere an d I ask ed m

y self , w h at th e f u ck ? W h y w o u ld I d o t

h is to m y f am ily ?

. . . I’ m n o t g o in g to f u ck in g set f o ot in h ere ag ain .”

12 In t h is call, Flo res ask e d M an u el, h er co u sin

, to lo g in to Flo res’ s Faceb o o k acco u n t, ch an g e t h e p assw ord

, an d “ tak e o f f w h atev er y o u f

eel

n eed s to b e tak en o f

f .” Flo res also w arn ed Man u el th at t h e call w as b ein g

reco rd ed

.

13 Flo res id en tif

ied h er d erm ato lo g ist as Dr. J u an R. Martin ez Naj era, p ro d u ced a p ictu re o f h is o f f ice, an d in tro du ced p rescrip t io n s w ritten b y Dr. Martin ez f

o r Flo res o n

J u n e 2 1 , 2 0 1 2.U N I T E D S T A T E S V

. F L O R E S 17

her car, or that he even ex isted. 1 4 The g overnment’s ex pert also test i fied that the air conditioner in F lores’s car was not working in J une of 2 012, obviously sug g esting that it had not been repaired by J uan in Tijuana. 1 5 F urther, F l o r es’s c ousin in T ijuana, w hom F lores visited on the day of her arrest, was supposedly f

riends with J uan a

nd presumably could have provided details a

bout J uan to corroborate F lor e s’s testimony

. N o such evidence was presented. Nor d id F lores at t e m p t t o

ex p lain why she h a d not taken even basic steps to locate J u an

or corroborate her story after having g one to such leng t hs to confirm h e r trip to the dermatolog ist. A ll of these facts a re inconsi s t ent with F lores’s story that J uan the mechanic planted drug s in F lores’s car without her knowledg e, and no other innocent ex p l a n a tion was o ffered for how they g ot there. F lores is correct that the evidence of h er knowledg e

was circumstantial, but that c ircumstantial evidence was overwhelming

. 1 6

14 Flo res d id n o t p ro v id e a last n am e, p h o n e n u m b er, ad d ress, o r b u sin ess

n am e f or J u an th e m ech an ic. Un lik e th e d erm ato lo g ist, sh e d id n o t call J u an in ad v an ce to arran g e f o r th e rep air w o rk to b e d o n e o n he r car. Flo res testif

i ed th at sh e p aid J u an $ 4 0 , b u t sh e d id n o t h av e a receip t f or

an y rep air w ork d o n e b y J u an in T ij u an a. S h e d id

, h o w ev er, h av e m u ltip le in v o ices f ro m an au to b o d y

sh o p lo cated in Gard en

Gro v e, Calif

o rn ia.

15 T h e g o v ern m en t’ s ex p ert ex p lain ed t h at th e co m

p resso r in Flo res’ s

car—an essen tial co m

p o n en t o f an air co n d itio n in g sy stem —w as in o p erab l e w

h en h e in sp e c t e d i t

. He f u rth er ex p lain ed th at i f th e

co m presso r h ad b een f

u n ctio n al w

h en F lo res’ s car w as i m

p o u n ded

, i t

w o u ld h av e rem ain ed fu nc t i o n al t h ro u g h t h e d ate o f th e in sp ectio n , as

co m presso rs d o n o t “ f

ail f ro m j u st sittin g ” in an im

p o u n d lo t.

16 In ev alu atin g th e stren g th o f th e ev id en ce ag ain st h er, Flo res n o tes th at th e j u ry in h er f

irst trial co u l d n o t reach a u n an im o u s v erd ict. B u t a j u ry ’ s in ab ility to reach a v erd ict co u ld b e attrib u ted to m an y f acto rs o th er th an th e clo sen ess o f th e ev i d en ce. T h at is p articu larly so in cases, lik e th is,U N I T E D S T A T E S V

. F L O R E S 18

F urther mitig ating the risk of prejudice, jury instructions correctly stating the law were read shortly after closing
arg uments, and thus shortly after the g over n m ent’s key misstatements. As to the elements of the charg e, the district court correctly

instructed:

I n order for the d e f

endant to be found g uilty

. . . , the g overnment must p rove each of the following elements bey o nd a reasonable doubt:

F irst, the d efendant knowing ly broug ht marijuana into the United States from a place outside the United States; and

Second, the defendant knew the substance she

was b r ing ing into the United States was marijuana . . . .

This instruction mirrored the prosecuti o n ’s earlier correct statement of the la w a n d ag ain made the importance o f importation abundantly c lear. The instructions also reiterated that “the defendant is charg ed in the indictment with unlawful importation of a controlled substance.” I f the jury was at all misled by the prosecution’s statements, w hich is doubtful, the

w h ere t h e d ef en d an t seem s s y

m p ath etic an d lack ed th e w

h erew ith al to act alo n e g iv en th e d ru g q u an tity an d m ean s of tran sp o rt, an d th e c ha rg e in v o lv es a su

b stan ce th at h as b een leg alized in so m e states. B ecau s e w e

can o n ly sp ecu late ab o u t w h y th e j u ry h u n g at th e f

irst trial, w e p lace little

w eig h t o n th e f

irst j u ry ’ s in ab ility to reach a v er d i c t

. In ev alu atin g th e stren g th o f th e ev id en ce, w e lo o k f irst an d f o rem o st to th e ev i den ce i tself

, r a t h e r th an to th e f

irst j u ry ’ s reactio n to th at ev id en ce. Fo r th e sa m e

reaso n , w e p lace little s t o c k in th e f act th at th e seco n d j u ry retu rn ed a g u ilty v erd ict sh o rtly

af ter d elib eratio n s b eg an

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

. F L O R E S 19

c o u rt’s instructions v ery likely put the jury back on cour s e. W e presume the jury followed the se instructions when determining whether F lores was g uilty as charg ed. S ee W eeks v. Angelone , 528 U.S. 225, 234 (2000).

I n sum, while the g overn m e n t misrepresented F lores’s testimony and misstated the law on multiple occasions, in the
contex t 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 a ga i nst F lores w as overwhelming

, see id. at 201, and the jury was correctl y i nstructed. A c cording ly

, F lores cannot show that the g overnment’s misconduct rose to the level of plain error. See Sanchez , 659 F .3d at 1257.

B. Vouching

“I mproper vouching consists of placing the prestig e of the
g overnment behind a witness throug h personal assurances o f the witness’s veracity

, or sug g esting t h a t information not presented to the jury supports the witness’s testimony .” Ruiz
, 710 F .3d at 1085. T he g overnment concedes that it improperly vouched f

or its automotiv e e x pert witness, Russ B utler, when the prosecutor stated, “I submit I would hire Russ B utler t o work on my car rather than F orrest F o lck [ F lores’s ex p ert]

. Russ is ex perienced.” See United States v

. Kerr
, 981 F .2d 1050, 1053 (9th Cir. 1992). But see Kojayan
, 8 F .3d at 1321 (ex plaining that the phrase “I submit” sig naled

a request for the jury to draw a reasonable inference). F lores did not object to this misconduct at trial, so we review f o rU N I T E D S T A T E S V

. F L O R E S 20

plain error. 1 7 See Ruiz
, 710 F

. 3d a t 1082. To determine whether vouching caused substantial prejudice, we consider:

the form of vouching ; how much the vouching implies that the prosecutor h as ex tra-rec o r d knowledg e of o r the capacity t o monitor the witness’s truthfulness; any inference that the
court is monitoring the witness’s veracity ; the deg ree of personal opinion a sserted; t h e timing of the v ouching ; the ex tent to which
t he witness’s credibility was attacked; the

s p e c i f i c it y a n d t i m i n g o f a c u ra t i v e instruction; the importance of the wi tness’s testimony a n d the vouching to the case overall.

Id. at 1085; see also United States v. W i l l i ams , 9 89 F .2d 1061, 1072 (9th Cir. 1993). Considering these f actors, we

c o nclude that the g overnment’s vouching did n o t substantially

prejudice F lores.

Unlike in cases where we have found vouching prejudicial, the vouching here was no t crucial to the
g overnment’s case. See Kerr 981 F .2d at 1052–54 (citi n g multiple instances of v ouching and e x plaining that the testimony of the vouched-for witnesses was cr u cial to the
g overnment’s case). Even if th e j u r y believed the defense

ex p ert’s testimony that F lores’s air conditioner was w orking

on J une 21, 2012, this would do little to bolster F lores’s story about J uan the mechanic. That an air conditioner works on a

17 T h e g o v ern m en t d o es n o t rely o n Ko ja ya n an d co n ced es err o r

. W e

assu m e w i th ou t d ecid in g th at th e erro r w as clear o r o b v i o u s f o r p u rp o ses

o f o u r p l ain erro r an aly sis.U N I T E D S T A T E S V

. F L O R E S 21

particular day sa y s n o t h ing a bout who fix ed it, where it was fix ed, or whether it was broken in the first place.

Moreover, the attack on F o lck’s credibility was minimal and involved a sing le improper statement. See United States

v. Y ounger , 398 F .3d 1 179, 1190 (9th Cir. 2005) (holding that

a sing le improper statemen t did not materially affect the verdict). Nor did the vouching imply ex tra-record knowledg e

or the ability to monitor the witness’s truthfulness. See Ruiz
, 710 F .3d at 1085. And the vo u c h i n g did not function as a g overnment-backed assurance of F lores’s g uilt. At worst, the vouching simply reiterated the primary inference the
g overnment asked the jury to draw all along —that F lores’s story ab o u t J uan the mechanic was not credible. See W illiams

, 989 F .2d at 1 0 7 2 ( “[ V] ouching here functioned mainly as rhetorical emphasis f or the inferences the prosecutor was urg ing the jury to draw ra t her than a meaning ful personal assurance that the defendants were g uilty .”).

B e cause of the “substantial evidence supporting the jury ’s verdict” and the minor role v ouc hing play ed in the prosecutor’s case, id.

, F lores fails to show that the vouching caused “substantial prejudice,” Ruiz , 710 F .3d at 1084–85.

C. Shif ting and Underm ining the Burden of P roof

F lores nex t contends that the g overnme n t improperly (1) shifted the burden of p roof by pointing out that she failed
to produc e e v i dence to corroborate her story about J u an the mechanic and (2) undermined the burden of proof by asking the jury to evaluate the g o vernment’s “ very reasonable” story

a nd F lores’s “preposterous” story “in the same w a y .” S e e United States v. Evanston
, 651 F .3d 1080, 1091–92 ( 9th Cir.U N I T E D S T A T E S V

. F L O R E S 22

2011) (“I t is bey ond comment that the g overnment bears the burden of proving

the defendant’s g

uilt bey o nd a reasonable doubt at trial.”). These statements were not improper.

W h ile F lores is correct that the g o vernment referred to its theory as “very reasonable” and F lores’s defense as “craz y ” and “preposterous,” the g overnment never arg ued that these conclusions, o r F lores’s failure to corroborate her story about J uan, alone were sufficient to support a conviction. And the
g overnment ex plicitly stated m o re than a half doz e n times that it bore the burden of pro ving F lores g uilty bey ond a reasonable doubt. Hig hlig hting the w eakness o f a defense, characteriz ing it as incredible, and noting the defendant’s failure to produce evidence is no t improper, p a rticularly where the g overnment correctly states the b u r d e n of proof. See Ruiz
, 710 F .3d a t 1086–87 (referring to the d efense a s “smoke and mirrors” is permissible); United S tates v. Tucker

, 641 F .3d 1110, 1120–21 (9th Cir. 2011) ( h i ghlig hting flaws in the defense is permissible); United Sta tes v. Necoechea

, 986 F .2d 1273, 1282 (9th Cir. 1993) ( no t i n g the defense’s f a ilure to present evidence in support of its theory i s permissible); Molina

, 934 F .2d at 1445 (arg uing t hat the defendant is a liar is permissible).

D. The G overnm ent’s Statem ents about F lores

B e cause F lores testified, the p rosecutor’s commen t s o n her demeanor were permissible. 1 8 See Allen v. W oodford

, 395 F

. 3d 9 79, 997 (9th Cir. 2005) (“The prosecutor’s
comments reg arding [ the d efendant’s] courtroom demeanor

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

18 In clo sin g , th e p ro secu t o r said to th e j u ry : “ Yo u saw h er sittin g th ere th e en tire trial. Her h an d s w eren ’ t sh ak in g w h ile sh e w as th ere.”U N I T E D S T A T E S V

. F L O R E S 23

United States v. Sch u l e r , 813 F .2d 978, 981 n.3 (9th Cir. 1987).

F l o r e s a lso arg ues that the g overnment impermissibly called F lores a drug smug g ler, a liar, a nd “not law abiding

. ” However, when the prosecutor called F lores a drug smug g ler and a liar, she was not making imperm issible propensity
arg ument s

. I nstead, she w as arg uing that w h en F lores admitted to smug g ling drug s on J u ne 21, 2012, she admitted
to the instant offense and that she wa s l y i n g when she claimed she only took drug s to Mex ico. Such statements a re permissible to the ex tent that they were n ot misstatements o f fact o r law. See M

o l i n a , 9 34 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 t o draw reasonable inferences); Necoechea

, 986 F .2d at 1282 (noting that the g overnment may arg u e that a defendant charg ed with drug dealing is a “dope dealer”).

And the prosecutor’s assertion that F lores was not l awabiding was a permissible rebuttal to F lores’s closing
arg ument. F lores’s attorney attempte d t o ex plain why F lores’s e ff

ort to delete her F a c ebook messag es was not necessarily a s i gn of g uilt. Defense counsel told the jury a childhood story in w hich he attempted to h i d e evidence potenti a lly sug g esting that he c h eated o n a test even thoug h he had not actually cheated. The p rosecutor’s arg ument that F lores was not law-abiding was o ffered to distin gu i s h the defense attorney ’s situation from F lores’s. F lores a d m i t ted that she a sked Manuel to delete content because she feared there was a picture of her smoking marijuana. W hile the evidence F lores’s attorney destroy ed as a child was entirely innocent (and mig ht have ex onerated him), th e evidenceU N I T E D S T A T E S V

. F L O R E S 24

F lores a sked her cousin to destroy was undoubtedly indicative of criminal activity

—the only questi o n was which crime F lores was try ing to cover up, simple possession, ex portation,

or importation. The g overnment merely pointed out t h a t,

u nlike her a ttorney , F lores w as try ing to hide eviden c e o f
wrong doing

. Placed in this c ontex t, the arg ument was proper rebuttal.

E. Cum ulative Error

F lores contends that, because the prosecution committed multiple errors, we should not conduct “a balkaniz ed, issueby -issue harmless error review.” United States v. Frederick

, 78 F .3d 1 370, 1381 ( 9th Cir. 1996). W e ag r ee that we must consider the cumulative effect of the errors, if any

. However, F lores did not object to any of the prosecution’s conduct that

we find improper, so we review for plain error, not harmless error as F lores sug g ests.

I n the contex t of the trial as a whole, the jury was unlikely
to misunderstand F lores’s testimony or t h e l a w , and it is unlikely that the jury ’s delibera t i o n s were affected by the
prosecu t or’s submission that she would hire Russ B utler rather than F orrest F olck. C o n s idering the errors tog ether does nothing to chang e these conclusions. Adding to B utler’s credibility w ould not have increased the likelihood that the jury misunderstood the law or F lores’s testimo n y , just a s misunderst a n d i ng the law or F lores’s testimony would not have altered the jury ’s assessment of the ex perts’ credibility

. The likelihoo d t hat the errors affected the jurors’ deliberations was simply too low to constitute plain error. F urther, because the evidence a ga i nst F lores was overwhelming

, she was less likely prejudiced by the effect o f cumulative errors. See U n i ted States v

. W

allace

, 848 F .2dU N I T E D S T A T E S V

. F L O R E S 25

1464, 1475–76 (9th Ci r

. 1988). Thus, whether viewed individually or cumulatively

, the prosecutio n’s improper statements do not warrant reversal.

III. EVIDENTIARY CLAIMS

Flores arg ues that the district court erred in deny i n g h e r motion to suppress evide n ce obtained from her F a cebook
account. She f

urther arg ues that the district court abused its discretion b y admitting e vidence o f her personal drug use at trial. W e disag ree.

A. Denial of

F lores’s Motion to Suppress F acebook Evidence

W e review the denial of a motion to suppress de novo a nd the district court’ s f

i nding s of fact for clear error. United States v. Camacho

, 3 68 F .3d 1182, 118 3 ( 9 t h Cir. 2004). F lores contends that the district court erred because ( 1 ) the
warrant to search her F acebook account was not supported b y probable cause and was stale; (2) the warrant was overbroad; and (3) the search ex ceeded the scope of t h e w a r rant. W e reject each arg

ument in turn.

1. Probable Cause and Staleness

Probabl e c ause is established if an affidavit presents a “fair probability ” that evidence of c riminal activit y w i l l be found in the place to be searched. Illinois v. Gates
, 462 U.S. 213, 238 (1983). W e “ g ive[ ] ‘g reat deference’ to an issuing judg e’s finding that probable cause supports the warrant” a nd review for clear error. United S tates v. Grant
, 682 F .3d 827, 832 (9th Cir. 2 012). W e will not find a search warrant invalid

so long as the issuing judg e h ad a substantial basis forU N I T E D S T A T E S V

. F L O R E S 26

concluding that the supporting affidavit established probable

cause. United States v. Crews
, 502 F .3d 1130, 1135 (9th Cir. 2007).

Special Ag ent Enriquez ’s affidavit supporting the warrant establishe d p robable cause to search F lores’s F a cebook account, at least for some period of time, considering F lores called J ose Manuel from jail and asked him t o purg e her
account. That request, along with F l o r e s ’ s warning that the call was being recorded and the close prox imity of the call to her arrest, supported more than a “fair probability ” that
ag ents w ould find e vidence of drug smug g ling or a smug g ling conspiracy

in F lores’s account. Id.

F lores arg ues, however

, t h a t even if there was probable

cause on J une 21, 2012, after she called Manuel, there was no long er p robable cause when the w a r rant issued more than three months later, o n October 2, 2012. See Grant
, 682 F .3d
at 835 ( ex plaining that an otherwise suffi c i e nt warrant application may become stale absent “a c ontinuing pattern o r other g ood reasons” sug g esting that evidence remains in the location to be searched); United States v. Gann
, 732 F .2d 714, 722 (9th Cir. 1984). Contrary to F lores’s arg ument, there a re many reasons to b elieve that there re m ained a “ fair probability ” of finding evidence of drug smu g g ling in her account when the warrant issued.

The mere passag e “of substantial a mounts of time is not controlling in a question of staleness.” United States v

. Dozier
, 844 F. 2 d 7 01, 707 (9th Cir. 1988). T hat is partic u l a rly true with electronic evidence. “Thanks to the long memory o f c omputers, a n y evidence of a crime was almost certainly still on [ the defendant’s] computer, even if he had tried to delete the images .” U nited States v. Gourde

, 440U N I T E D S T A T E S V

. F L O R E S 27

F .3d 1065, 1071 (9th Cir. 2006) (en banc) (emphasis added). B ecause any evidence that mig h t have been in F lores’s
account on J une 21, 2012 may not have been d e l e t ed a nd likely could have been recovered even if it had been deleted, there r emained a fair probability that F lores’s a ccount would contain evidence of drug

smug g ling on October 2, 2012.

F lores counters by n oting that the g overnm e n t soug ht to file the warrant under seal p r e cisely because any one with

even basic computer skills c o uld permanently delete F acebook c ontent. This arg ument disreg ards the fact that, on Aug ust 27, 2012, Special Ag ent Enr i q u e z submitted a preservation request to F acebook for F lores’s ac count, 1 9 whi c h p r o v ed effective. 2 0 F urther, asserting that there is a g enuine r isk that evidence mig ht be permane n tly deleted in the future, as E nriquez did in support of h is request to seal the
warrant , is not the same as conceding that there is no long er

a fair probability that the e v idence s t i l l ex ists (or is recoverable). See Gourde

, 440 F .3d at 1065, 1071. Probable

c a u s e d e t e r m i n ations a r e “ c o m m o n s e n s e , p ra c t i c a l ”
q uestions, and a “fair probability ” is less even tha n a preponderance of the evidence. I d

. at 1069. I n this day a

nd
ag e, even p ersons w it h minimal technolog ical savvy a re

19 A g en t En riq u ez d id n o t m en t io n th e p r e s e r v a t i o n req u est in h is af f id av it. He d id , h ow ev er, ref er to “ reco v ered data,” an d h e m en tio n ed th at i t w as “ v ery lik ely

. . . th at ev id en ce o f t h e crim es u n d er in v estig atio n

ex ists o n co m p u ters su b j ect to th e co n t

ro l o f ” Faceb o o k

.

20 In ad d itio n to th e p reserv atio n req u est an d th e in h eren t d if f icu lty of irretriev ab ly d eletin g d ig i tal d ata, a Faceb o o k secu rity settin g also en su red th at th e co n ten ts o f Flo res’ s acco u n t rem ain ed accessib le. A n y o n e lo g g in g in to Flo res’ s acco u n t f

ro m an u n k

n o w n co m p u ter h ad to en ter a p assw o rd th at w as sen t to Flo res’ s cell p h o n e. Flo res’ s p h o n e h ad b een co n f iscated

, so Man u el w as u n ab le to lo g in to Flo res’ s acco u n t.U N I T E D S T A T E S V

. F L O R E S 28

aware that data is frequently preserv e d and r ecovered a fter deletion from an electronic device, particularly when a third party like F acebook is involved. See id. at 1071. Therefore,

even if ag ents were less likely to find evidence o f d rug smug g ling in F lores’s account in October than in J u ne, a fair probabilit y o f finding such evidence remained w hen the warrant issued.

2. Overbreadth

F lores nex t arg u es that the warrant was overbroad. W e consider three factors in analy z ing the breadth of a warrant:

(1) whether probable cause ex isted to seiz e all items of a categ o r

y described in the w arrant; (2) whether the w a r

rant set f orth objective
sta n d ards by which ex e c uting officers could differentiate items subject to s e i z ure f rom those which were not ; an d (3) whether the
g overnment co u ld have described the items

more particularly in lig ht of the inf o rmation available . . . .

United States v. Lei Shi

, 525 F .3d 709, 731–32 (9th Cir. 2008).

The first two factors c learly sug g est that the warrant was not overbroad. The w arrant allowed the g overnment to search only the F acebook account associated with Fl o res’s

name and email a d d r ess, a nd authoriz ed the g overnment to seiz e only e vidence of violations of 18 U.S.C. § 371 (Conspiracy

) and 21 U .S.C. §§ 952 and 960 (I mportat i o n o fU N I T E D S T A T E S V

. F L O R E S 29

a C o ntrolled Substance). 2 1 The warrant also e stablishe d “Proce d u r e s Fo r E l ectronically Stored I nformation,” providing ex ecuting officers with sufficient “objective
st a n dards” for seg reg ating responsive material from the r e st of F lores’s account. See Lei Shi

, 525 F .3d at 731–32.

Citing United States v. Co m p r e h e n s i v e D r ug Testing, Inc.
, 621 F .3d 1 162 (9th Cir. 2010) (en banc) (per c uriam) (“ CDT ”), F lores a

rg ues that the objective standards u sed here were unconstitutional. At bottom, F lores complains that the
g overnment, inc l u d ing the investig ative team itself, was authoriz ed to seiz e and search a ll 11,000 pag e s o f data in Fl o r es ’ s account when, as it turned out, only approx imately 100 pag e s w ere truly responsive to the warra n t

. I n United States v. Adjani

, we rejected a si m i lar arg ument that the
g overnment should have narrowed its search of a defendant’s e-mail account. See 452 F .3d 1140, 1149–50 (9th Cir. 2 006) (“To require such a pinpointed computer searc h

, r estricting the search to an email prog ram or to speci f ic search terms, would likely h ave failed to cast a suff i c i e n t ly wide net to capture the e vidence soug ht.”). “Over-seiz ing ” is an accepted reality in electronic searching b e c ause “[ t] here is no w ay to be sure ex actly what a

n electronic file contains wi thout

s o m eh o w ex amining its contents.” CDT
, 621 F .3d at 117 6
, 1177.

That said, we have r e c o gn i z ed a number of sig nificant limitations to prevent necessary “over-seiz ing ” from turning into a g e neral drag net. I n Adjani

, w e ex p lained that warrants

21 Flo res arg u es t

h at th e w arran t au t

h o rized ag en ts to search f

o r an d seize

ev id en ce ten d in g to p ro v e a c o n s p i racy to co m m it an y crim e. Sh e

m isread s th e w arran t , w h ich ex t en d ed o n ly to co n ten t “ ten d in g to sh o w

n arco tics traf

f ick i n g .”U N I T E D S T A T E S V

. F L O R E S 30

must specify the particular crime for which evidence is
soug h t. 452 F. 3 d a t 1148–50. W e also cautioned in CDT
ag ainst retaining unresponsive d ata based on the “plain view” doctrine, and recog niz e d the i mportance of protecting third
p a r ties’ rig hts. 621 F .3d a t 1169–71. Consistent with t h i s g uidance, the warrant h ere specified a crime a nd a suspect, the seiz ed data w as not used for any broader invest ig ative
purposes, and F acebook, r at h er than g overnment ag e nts, seg reg ated F lores’s account to protect third parties’ rig hts. 2 2

F lores claims that the third Lei Shi factor—whether the
g overnment c ould have placed g r eater limits on the warrant’s
scope in lig ht of available information, 525 F

. 3d at 7 32—cuts in favor of finding the warrant overbroad. I n p a r ticular, she

n o t es the warrant contained no temporal limit. As it t u r n s out, F lores’s F acebook account contained activity dating back
to when she was 17 or 18 y ears old, and she committed the

22 We reco g n i ze th at th e w arran t au t h o rized reten tio n o f F lo res’ s f u l l

acco u n t f o r au th en ticatio n p u rp o ses, a pro cess w e d isap p ro v ed in Un ited S ta tes v. Ta mu r

a , 6 94 F.2 d 5 9 1
, 5 9 7 (9 th Cir. 1 9 8 2 ). Ta mu ra p resen ted

v ery d if f eren t co n cern s, h o w ev er, becau se t h e d ocu m en ts retain ed in th at

case w ere a co m

p an y ’s p h y s ical “ m aster v o lu m es” rath er th an a co p y of d ig ital d ata. Nev erth eless, CDT reaf f irm ed th e im

p o rtan ce of retu rn in g (o r d estro y in g ) co p i e s o f d i g ital d ata. S ee 6 21 F.3 d at 1 1 7 0 ; id

. at 1 1 7 9 (K o z i n s k i

, C .J
., co n cu rrin g ). B u t CDT allo w ed f o r reten tio n w i th

“ s p ecif ic j u d icial au t

h o rizatio n ,” w

h ich th e w arran t h ere in clu d ed

. S ee id

. W e also n ote th at “ an y au th o rized f ed eral ag en t ” w as allo w ed to search

w ith in Flo res’ s acco u n t f o r resp o n siv e d ata. Id eally

, th e g o ve r n m en t’ s in v estig ativ e team w o u ld n o t h av e b een in v o lv ed in seg reg atin g resp on s iv e d ata f

ro m th e rest o f Flo res’ s acco u n t. S ee i d

. a t 1 1 68
, 1 1 7 2 (Maj o rity Op .). C

DT d id n o t p ro h ib it in v estig ativ e t eam s f ro m p articip atin g in d ata seg reg atio n as a g en eral m atter, h o w ev er, an d in stead f au lted th e g o v ern m en t f

o r m islead in g ly s u g g estin g in th e w arran t th at th e team w o u ld n o t b e in v o lv ed

. Id

. at 1 17 2

. CDT th u s serv es as a rem in der

n o t to m islead m ag i s t r a t e s o r ex ceed th e s co p e o f a w arran t, n ot as a b lan k et p ro h ib itio n

o n d ata seg reg atio n

b y in v estig ativ e team s.U N I T E D S T A T E S V

. F L O R E S 31

offense of conviction shortly after turning 23 y ears old. 2 3 Seiz ing five or six y ears’ worth of d a t a m ay have been

ex c e ssive, thoug h Ag ent Enriquez ’s affidavit c ertainly established probable ca u s e t o search F lores’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 o f t h e evidence used at trial was not required. W e have “embraced the doctrine of severance, which a llows

us to strike from a warrant those portions that are invalid a nd
preserve those portions that satisfy the F ourt h A m endment. Only those articles seiz ed pursuant to the invalid portions need be suppressed.” United S tates v. G omez-Soto
, 723 F .2d 649, 654 (9th Cir. 1 9 84). No evidence was introduced at trial that should have been suppressed under this standard,
reg ardless of the warrant’s potential o verbreadth. I ndeed, the
two sets of F a cebook messag es introduced at t r i a l were sent

on the day of F lores’s arrest and thus fell well-within even the
narrowest of temporal limits. Therefor e , e v e n thoug h the
warrant had no temporal limit, the district court did not e rr in deny ing F lores’s motion to s u ppress. See Gomez-Soto
, 723 F .2d at 654. 2 4

23 In h er m o tio n in lim in e, Flo res ex ag g erated th e sco p e o f th e pro blem

. Sh e claim ed th at th e g o v ern m en t seized d ata f ro m as early as 2 00 0

. Flo res testif ied

, h o w ev er, th at sh e j o in ed F aceb o o k w h en sh e w as 1 7 o r 1 8 y ears

o ld

, w h i c h m e a n s th at n o d ata ex isted p rio r to 2 0 0 6 o r 2 0 0 7
, g iv en th at Flo res w as b o rn in 1 9 8 9

.

24 B ec au s e w e co n clu d e th at t h e ev i d en ce u sed at trial w as seized
p u rsu an t to th e v alid p o rtio n o f th e w arran t an d th at th e m o t io n to su p p ress

w a s t h e ref

o re p ro p erly den ied

, w e n eed n o t ad d ress th e g o v ern m en t’ s ad d itio n al arg u m e n t th at th e “ g o o d f aith ” ex cep tio n to th e ex clu sio n ary

ru le ap plies.U N I T E D S T A T E S V

. F L O R E S 32

3. Executing the W

a rrant

F lores further arg ues that the F acebook evidence presented at trial should have been suppressed because t he
g overnment e x ceeded its scope by seiz ing all 11,000 pag es o f data in F lores’s account. Pursuant to the terms of the warrant, however, F acebook w as auth oriz ed to provide ag ents with a copy of the entire contents of F lores’s account. Ag ents then
seg reg ated 10 0 p ag es of responsive material from the entire
account into a separate fi l e within the 90-day period authoriz ed b y the w arrant. 2 5 Ag ain pursuant to the warrant, the o rig inal copy of F lores’s account was sealed in an evidence bag a

nd is inaccessible absent a new warrant. 2 6 I n short, the g overnment ex e c uted the warrant ex a ctly as it was written.

W e need not determine w h e t her the 100 p ag es o f
seg reg ated data ex ceeded the scope of the warrant, as F lores claims, because o n ly two messag es were admitted into evidence. I n United States v

. Crozier
, we h e ld that “[ o ] nly those items which fall outside the scope of the warrant need be suppressed.” 777 F .2d 13 7 6
, 1381 (9th Cir. 1985). According ly

, the district c ourt properly considered only the

2 5 Flo res also claim s t

h at t h e g o v ern m en t ex ceed ed th e sco pe o f t h e

w arran t b y ref u sin g to en list Faceb o ok in th is d ata seg reg atio n

. Flo res’ s claim f ails b ecau se th e w arran t ex p licitly au th o rized t h e g ov ern m en t to p erf o rm th is task an d b ecau se th e af f id av it th oro u g h ly ex p l a i n ed w h y Faceb o o k co u ld n o t b e assig n ed t o fin d resp o n s iv e m aterials in Flo res’ s

acco u n t. S

ee CDT , 6 2 1 F.3 d at 1 1 7 0

– 71 ; Ta mu ra , 6 9 4 F.2 d at 5 9 5

.

26 In ad d i tio n t o th e sealed co p y retain ed f o r au t h en ticatio n pu rp o ses, th e g o v ern m en t m ad e th ree w o rk in g co pies o f Flo res’ s acco u n t an d g av e on e

co p y t o th e def

en se, o n e to th e p ro secu tio n , an d o n e to th e case ag en t. T h e latter tw o co p ies h av e b een d estro y ed

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

. F L O R E S 33

F acebook messag es the g overnment planned to introduce at trial. T hose messag es were well-within the s c o p e o f the
warrant. Thus, even if other evidence that was not introduced at trial mig ht have ex ceeded the warrant’s scope—and there is n o reason to believe that it did—the district court d id not err in deny

ing F lores’s motion to suppress.

B. Adm issibility of

Evidence f

r om F acebook

After the district court denied F l o res’s motion to suppress, F lores m oved in limine to e x clude a ny e vidence referring to her personal drug use, arg uing that references t o p ersonal drug use were inadmissible propensity evidence un d er F ederal Rule of Evidence 404(b) a nd unfairly prejudicial under Rule 403. The district court denied her motion a nd overruled her Rule 4 03 and 404 objections a t trial. W e review the denial of F lores’s motion and the rejection of her objections for abuse of discretion. S ee United States v

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

F lores c ontends t h a t the two F acebook messag es the
g overnment introduced w ere improperly used for propensity
purposes and w ere unfairly p rejudic i a l

— c o n c e r n s which were improperly compounded by the admission of evidence that F lores also u sed marijuana during her pretrial release period. F lores is co r r e ct that drug u se and simple possession cannot be introduced to show that a defendant conspired to smug g le drug s. See United S

tates v. Vizcarra-Martinez
, 66 F .3d 1006, 1015 (9th Cir. 1995) (noting that possession of personal use amounts of a drug does not evidence c onspira c y to manufacture that drug ); United States v

. M e hrmanesh

, 689 F .2d 822, 831–32 (9th Cir. 1982) (rejecting the arg ument t h a t a jury c an infer importation from drug use). S h e i s incorrect that the e vidence was inadmissible, however,U N I T E D S T A T E S V

. F L O R E S 34

because the g overnment used the evidence for different, permissible purposes.

The e vidence supported a reasonable inference that t h e F acebook messag es referred t o the very drug s F lores was arrested for transporting

. Thus, the messag es were a t least
arg uably tantamount to admissions to the crime charg ed. According ly

, Rule 404(b) is inapplicable becau se the evidence d id not refer to o ther bad acts at all; it referred to the bad act at issue. See United S t ates v. Rizk

, 660 F .3d 1125, 1131 (9th Cir. 2011). I ndeed, it would have been illog ical for the g overnment to use the messag es f or p ropensity purposes,

as that would have bolstered F lores’s claim that the messag e s referred to other uncharg ed bad acts, whereas the
g overnment’s arg ument depended in p art on convincing the jury that the messag es referred to the importation with which F lores was charg ed. Thus, the district court’s d ecision to admit the evidence as a potential admission was not an abuse

o f d i s c r e t ion because the g overnment’s characteriz ation o f the
messag es was supported by “inferences that may b e d r a wn from facts in the record.” Redlight n i n g , 624 F .3d at 1110. That F lores presented a competing plausible characteriz ation of the F acebook messag es g oes to the weig ht of the evidence,
not its admissibility

. N o r did the district court abuse its discretion under Rule 403 because the prejudice created by an admis s ion, while severe, is not unfair. See United States v

. Hankey

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

Allowing the g ove r n ment to use the messag e s f or nonpropensity

impeachment purposes—i.e., to show that F lores

w as ly ing about what she wanted her cousin to dele t e f r o m F acebook—was not an abuse of discretion. The same is true of the g overnment ’ s reference to F lores’s pre-trial drug u se, which was introduced to show that F lores had lied to a federalU N I T E D S T A T E S V

. F L O R E S 35

j u d g e and thus was untrustworthy

, rather than to sh o w F lores’s propensity t o c o m m it d rug crimes. Moreover, the

c o u r t ex plicitly instructed the jury that it could not consid e r evidence o f F lores’s other w rong ful acts “as e vidence of g u ilt of t h e crime for which the defendant is now on trial.” B ecause the evidence was used for p ermissible purposes only

, the district court did not abuse its discretion in d en y ing F lores’s motion in limine or overruling he r o bjections. See United States v. Castillo

, 181 F .3d 1129, 1134 (9th Cir. 1 999) (“[ U] n less the evidence of o t h e r a cts only tends to prove propensity , it is admissible.”).

IV. SENTENCING

W e review a district court’s construc t i on a nd interpretation of the Sentenci n g Guidelines de novo, its factual finding s for clear error, and its application of the Guidelines to the facts for abuse of d iscretion. United States

v. Taylor

, 749 F .3d 842, 8 45 (9th Cir. 2014); United States v

. Popov
, 742 F

. 3d 911, 914 (9th Cir. 2014). F lores arg ues that the district court procedurally erre d b y apply ing a 2-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 without making the requisite willfulness and materi a l i ty finding s. See U.S.S.G. § 3C1.1 cmt. 4(D). W e disag ree.

F lores is correct that the enhancement can be based only

on willful efforts to d elete evidence that are ma terial to “the instant offense of conviction
, ” U .S.S.G. § 3C1.1 (emphasis added)—im portation of marijuana. See United States v

. Gardner

, 988 F .2 d 82, 83 (9th Cir. 1 993) (per curiam). Contrary to F lores’s claim, however, the district court found F lores asked her cousin to delete F acebook c o n t e nt that, “if believed, would tend to influence or affect” the importation charg e itself. U

. S .S.G. § 3 C1.1 cmt. n.6 (definingU N I T E D S T A T E S V

. F L O R E S 36

materiality

). I ndeed, the district court allowed t he
g overnment t o i n t r o duce this evidence at trial over F lores’s objections precisely because the court concl u d e d that, if the jury b elieved the g overnment’s c haracteriz ation of the evidence, it would directly p r o v e F lores knew there was marijuana in her car a s she entered the United States. The court’s e videntiary ruling therefore encompasses the requisite materiality finding

. Cf. United States v. Armstrong
, 620 F .3d 1172, 1176 (9th Cir. 2010) (“Althoug h it is preferable for the
court to make a sepa r a te and c lear f inding

. . . , doing so is

un n e cessary where the c ourt makes a d etermination of an obstruction o f justice enhancement that encomp a sses all o f the factual predicates for [ such] a finding . . . .”).

F lores also asserted a t sentencing that she asked Manuel
to delete F acebook content because “[ s] he didn’t want the prosecutors to assume that she had k nowle dg e [ of the drug s in her car] simply because she herself had smoked marijuana in the past.” 2 7 Thus, F lores affirmatively stated at sentencing

27 F lo res h ad stated t h i s fear earlier in h er testim o n y , as w ell. W h en ask ed w h y sh e w an ted Man u el to delete ref eren ces to h er m arij u an a u s e f ro m Faceb o o k

, Flo res said

, “ Fo r h o w ev er l o n g I h ad b een sm ok in g , p eo p le t h ey j u st p ass j u d g m en t i m m e d i a t ely

. I d o n ’ t k n o w , I g u ess th ey th in k b ad ly o f so m eb o d y w h o sm o k es m arij u a n a

. . . . I k n ew th at th at

w as so m eth in g I co u ld g et in tro u b le f o r.” On cro ss- ex am i na tio n , sh e

co n f irm ed th at sh e w an ted th e ev id en ce d eleted b ecau se o f “ th e j u dg m en t th at peo p le p ass o n an y on e w h o s m o k es m arij u an a,” an d b ecau se “ I d id n ’ t

w an t it to b e u s ed a s evid

en ce i n [a] case it w as irrelev an t to .” Essen tially

, Flo res w as w o rried th at ev id en ce o f h er m arij u an a u se m ig h t (1 ) su p p o rt

a ch aracter i n f

eren ce th at in tu rn w ou ld cau se th e g o v ern m en t to p ro secu te (an d th e j u ry to co n v ict) h er f o r i m p o rtatio n , an d (2 ) su g g est th at sh e k n ew th at d ru g s w ere h id d en in h er car as sh e en tered th e Un ited States. W h i le Flo res’ s co n cern s m ig h t w arr a n t ex clu sio n o f th is ev id en ce in an im p o rtatio n case u n d er Fed eral Ru les o f E v i d en ce 4 0 4 (b ) an d 4 0 3
, a d ef en d an t can n o t

av o i d an o b s tru ctio n

en h an cem en t b y claim i n g th at th eU N I T E D S T A T E S V

. F L O R E S 37

t h a t she attempted to delete content f rom F acebook f

or th e purpose of hindering the investig ation a n d prosecution of “the instant offense of c onviction.” U .S.S.G. § 3 C 1

. 1 ; see G a r d n er , 9 88 F .2d at 8 3–84 (“[ A] section 3C1.1 enhance m e n t must be premised on willful conduct that has the purpose o f obstructing justice.”). According ly

, the district court’s imposition of the e n hancement based on F lores’s “efforts to have h er cousin delete cert a in p osting s from her F a cebook account” and “f

o r t he r easons stated,” was a f inding o f the essential elements of obstruction under § 3C1.1. Ga r d n er , 988 F

. 2d at 83–84 (“[ T] he district court need n ot specify the reasons for its factual finding of obstruction of justice.”).

F lores’s own testimony establishes that this f actual finding —that F lores a s k e d Manuel to delete content from F acebook for the purpose of eliminating evidence that mig ht tend to p rove the crime charg e d—was not clearly erroneous. Therefore, we affirm her sentence.

V. CONCLUSION

On c e a gain, an Assistant United States Attorney for the Southern D istrict of California overstepped the boundaries o f permissible questioning and arg ument. W e reluctantly affirm

ev id en ce sh e tried to d estro y m ig h t h av e been in ad m issib le—th at is n ot a d ef en d an t ’ s d ecisio n to m ak e. Ob stru ctio n en h an cem en ts are n o t reserv ed f o r th e w i llf

u l d estru ctio n

o f ad missib le ev i d en ce o n ly

, an d in an y ev en t, th e ev id en ce Flo res attem p ted t o d e s tro y w as ad m issib le f o r n o n

p ro p en sity pu rp o ses. Mo re im p ortan tly

, Flo res’ s testim o n y co n f irm s th at

w h en sh e a s k e d Man u el to d elete co n ten t f ro m Faceb o o k

, sh e k

n ew i t

co u ld be u sed ag ain s t h er in a p ro secu tio n f or im p o rtatio n , an d sh e attem p ted to d estro y

it f o r th at reaso n

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

. F L O R E S 38

F lores’s c onviction under the hig h bar of the plain error standard.

AF F IRMED.

PREGERSON, Circuit J udg e , dissenting :

I respectfully dissent. The As s i s tant U.S. Attorney violated the rules of permissible questioning and arg ument; f org ot that our g overnment’s interest “in a criminal
p rosecution is not that it shall win

. . . , but that justice shal l b e done,” Berger v. United States
, 295 U.S. 78, 8 8 (1935) (Sutherland, J .); and ig n ored J ustice Sutherland’s admonition that a prosecutor “may strike hard blows, but not foul ones.” Id

.

These serious v iolations do not warrant invocation of the plain error rule.