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United States v. Espino

United States Court of Appeals, Ninth Circuit

June 18, 2018

United States of America, Plaintiff-Appellee,
v.
Flora Espino, Defendant-Appellant.

          Argued and Submitted February 7, 2018 Pasadena, California

          Appeal 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 Defendant-Appellant.

          Daniel E. Zipp (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: Consuelo M. Callahan and Jacqueline H. Nguyen, Circuit Judges, and Joseph F. Bataillon, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         The panel affirmed a conviction for lying to a grand jury.

         Reviewing 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 doubt standard.

          OPINION

          BATAILLON, DISTRICT JUDGE

         The 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.[1]

         BACKGROUND

         Espino 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.

         Rodriguez 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 ...


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