and Submitted February 7, 2018 Pasadena, California
from the United States District Court for the Southern
District of California John A. Houston, District Judge,
Presiding D.C. No. 3:11-cr-03486-JAH-6
Kenneth J. Troiano (argued), San Diego, California, for
E. Zipp (argued), Assistant United States Attorney; Helen H.
Hong, Chief, Appellate Section, Criminal Division; United
States Attorney's Office, San Diego, California; for
Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
Circuit Judges, and Joseph F. Bataillon, [*] District Judge.
panel affirmed a conviction for lying to a grand jury.
for plain error, the panel held that the verdict form - which
indicated that the jury would have to find the defendant not
guilty beyond a reasonable doubt - was clearly erroneous, but
that the error was harmless because the jury instructions
taken as a whole, read in conjunction with the verdict form,
clearly outlined the burdens of proof and the reasonable
BATAILLON, DISTRICT JUDGE
jury convicted defendant Flora Espino of lying to a grand
jury in violation of 18 U.S.C. § 1623. Espino appeals
and argues that the district court erred as a matter of law
in the language used in the verdict form and its subsequent
submission to the jury. Espino contends the district court
shifted the burden of proof, requiring the jury to find her
not guilty beyond a reasonable doubt. We agree that the
instruction was erroneous, but we affirm because Espino has
not shown that the error was prejudicial.
worked as a tax preparer for a real estate broker in Spring
Valley, California. One borrower, Sean Desmond, served as a
police officer at the Chula Vista Police Department. In 2006
he attempted to buy a $1.6 million home. As a police officer,
his salary was $90, 000 at the time. To assist him with
qualifying for this loan, he worked with a broker named Jesse
Rodriguez to prepare the loan application with a
substantially inflated income. Rodriguez listed Desmond as
self-employed at a fictitious business called "San Diego
Private Detective and Consulting, " with an annual
income of $415, 200. In fact, Desmond was not employed at
this firm, nor did he make such an income. The mortgage
lender agreed to make the loan, but only if it received a
verification letter from a CPA regarding the income.
then emailed an associate named Adam Fukushima and asked for
a CPA letter, and indicated the CPA might be contacted.
Thereafter, upon request, Espino created a ...