FILED
NOT FOR PUBLICATION DEC 01 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50371
Plaintiff - Appellee, D.C. No. 3:07-cr-01140-JSL-1
Southern District of California,
v. San Diego
LETICIA GALEOTE,
ORDER DENYING PETITION
Defendant - Appellant. FOR PANEL REHEARING
AND WITHDRAWING
MEMORANDUM DISPOSITION
Before: FISHER and GOULD, Circuit Judges, and ENGLAND, District Judge. *
The panel has voted to deny the petition for panel rehearing. The
memorandum disposition filed October 16, 2009 is withdrawn. A superseding
memorandum disposition is being filed concurrently with this order.
The petition for rehearing filed October 30, 2009 is DENIED. No further
petitions for rehearing will be permitted.
*
The Honorable Morrison C. England, Jr., United States District Judge for
the Eastern District of California, sitting by designation.
FILED
NOT FOR PUBLICATION DEC 01 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50371
Plaintiff - Appellee, D.C. No. 3:07-cr-01140-JSL-1
v.
MEMORANDUM *
LETICIA GALEOTE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted September 4, 2009
Pasadena, California
Before: FISHER and GOULD, Circuit Judges, and ENGLAND, District Judge. **
Leticia Galeote appeals her conviction and sentence for conspiracy to import
marijuana, importation of marijuana, conspiracy to distribute marijuana and
possession of marijuana with intent to distribute. We have jurisdiction under 28
U.S.C. y 1291 and 18 U.S.C. y 3742, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Morrison C. England, Jr., United States District Judge for
the Eastern District of California, sitting by designation.
The district court correctly found that officers' posing of questions to
Galeote's daughter and her daughter's friend did not constitute interrogation of
Galeote. Ïuestions related to the care of minors are 'normally attendant to arrest
and custody' and are not 'reasonably liµely to elicit an incriminating response.'
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
The district court did not abuse its discretion under Rule 403 by admitting
statements Galeote made while officers were speaµing with her daughter and her
daughter's friend.1 Although the statements were arguably harmful to Galeote's
case, it was within the district court's discretion to find that they were both
probative and not unfairly prejudicial. See United States v. Bailleaux, 685 F.2d
1105, 1111 n.2 (9th Cir. 1982) (noting unfair prejudice means the admission of
evidence 'results in some unfairness to the defendant because of its non-probative
aspect').
In addition, even if the district court erred by admitting statements made
after Galeote attempted to terminate her post-arrest interview, any error was
harmless. We assume for the saµe of argument that Galeote sufficiently invoµed
her right not to answer any further questions by stating '[t]hat's all I'm gonna say,'
1
We assume for the saµe of argument that this issue was preserved for
appeal.
2
'I'm not gonna say anything anymore' and 'I'm not talµing anymore.' See
Anderson v. Terhune, 516 F.3d 781, 787-88 (9th Cir. 2008) (en banc) (holding
'crystal-clear' invocations in that case 'left no room for doubt').2 The admission
of statements made to officers who continue interrogation after a sufficient
invocation violates the 'right to cut off questioning.' Michigan v. Mosley, 423
U.S. 96, 103-04 (1975) (internal quotations omitted). In this case, however, any
possible error was harmless beyond a reasonable doubt because the government
offered the substantial portion of Galeote's post-arrest interview that preceded the
invocations and only inconsequential details of the portion of the interview that
followed them. Moreover, the indisputably permissible testimony was a sufficient
basis for the prosecution's argument in closing that Galeote's story was ridiculous.
See United States v. Padilla, 387 F.3d 1087, 1094 (9th Cir. 2004) (finding error
harmless beyond a reasonable doubt when nothing sought to be suppressed could
have affected the jury's determination of guilt).
Finally, the district court did not clearly err by denying Galeote a minor role
reduction. Galeote failed to offer evidence to meet her burden other than the
2
We are aware of the Supreme Court's recent grant of certiorari in Berghuis
v. Thompµins, 77 U.S.L.W. 3670 (U.S. Sept. 30, 2009) (No. 08-1470), but note that
the underlying decision is not on point. See Thompµins v. Berghuis, 547 F.3d 572,
584 (6th Cir. 2008) (addressing an implicit invocation of Miranda rights on the
basis of 'silence and general uncooperativeness').
3
government's recommendation of a minor role reduction for her co-conspirator.
See United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000) (requiring
comparison of the defendant with the average participant in the conspiracy, rather
than only charged defendants); United States v. Howard, 894 F.2d 1085, 1091 (9th
Cir. 1990) (holding that a district court need not accept a government's
recommendation of a minor role reduction); see also United States v. Ladum, 141
F.3d 1328, 1348 (9th Cir. 1998) (placing the burden of proof concerning
entitlement to a minor role reduction on the defendant).
AFFIRMED.
4