United States v. Del Toro-Barboza

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 10-50487
v.  D.C. No.
3:09-cr-03601-
ISRAEL DEL TORO-BARBOZA, W-1
Defendant-Appellant.


UNITED STATES OF AMERICA,  No. 10-50491
Plaintiff-Appellee, D.C. No.
v.  3:09-cr-03601-
ADIN DEL-TORO-BARBOZA, W-2
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding

Argued and Submitted
December 6, 2011—Pasadena, California

Filed March 14, 2012

Before: John T. Noonan, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Gould

2977
2982 UNITED STATES v. DEL TORO-BARBOZA

COUNSEL

Haring P. Raghupathi (argued), Federal Defenders of San
Diego, Inc., San Diego, California, for defendant-appellant
Israel Del Toro-Barboza.

Andrew K. Nietor (argued), San Diego, California, for
defendant-appellant Adin Del Toro-Barboza.

Daniel E. Butcher (argued), Laura E. Duffy, and Bruce R.
Castetter, Office of the U.S. Attorney, San Diego, California
for appellee United States.

OPINION

GOULD, Circuit Judge:

Adin and Israel Del Toro-Barboza (“Defendants”) appeal
their convictions for bulk cash smuggling under 31 U.S.C.
§ 5332 and failure to file reports on exporting monetary
instruments under 31 U.S.C. § 5324. Border agents found a
bag containing $500,000 in cash in a box under a sheet in the
back of defendants’ van when they were making an early
morning border crossing. No declaration of possession of cash
exceeding $10,000 had been made. Although defendants
asserted they had no knowledge this money was in their van,
they were charged with cash smuggling and not filing
required reports about exporting money, and were convicted
after a four-day jury trial. The district court sentenced Israel
to 46 months imprisonment and Adin to 41 months. Defen-
dants appeal their convictions and sentences, contending that
there was insufficient evidence to convict, that there was
 UNITED STATES v. DEL TORO-BARBOZA 2983
instructional error, that their convictions violated the double
jeopardy clause, that the indictments should have been dis-
missed because the government had destroyed evidence, that
prosecutorial misconduct and false comments in argument
give them a right to new trial, that there was cumulative error,
and that the district court misapplied the sentencing guide-
lines. We reject all these contentions, and affirm.

I. Background

Defendants worked for their parents who run a shoe store
in Ensenada, Mexico. They regularly drove to Southern Cali-
fornia to pick up merchandise from suppliers, which they
would take back to Mexico for their parents and other mer-
chants. One seller of merchandise in San Ysidro, California,
Jesus Reynosa, testified that Adin came to his store about
every two to three weeks to pick up shoes for merchants in
Mexico. On September 10, 2009, Adin went to Reynosa’s
business and picked up a box for a merchant in Mexico.

Two days later, on September 12, 2009, at around 1:30
a.m., Defendants were stopped at the Otay Mesa port of entry
as they tried to cross the border from the United States to
Mexico. They were driving a white Chevrolet Astro registered
to Adin (Israel was driving, and Adin was the passenger).
Officers Goulart and Parker and Agent Silva conducted
Defendants’ stop and search. According to Officer Goulart,
traffic was slow, which is not unusual because Otay Mesa is
a slower port of entry than San Ysidro. Officer Goulart asked
Defendants if they were carrying over $10,000 in cash, and
they responded that they were not. Israel was asked whether
or not he had any cash at all on his person, to which he
responded, “no.” No one asked Adin whether he had any cash
on his person. There are signs posted in English and Spanish
telling travelers that currency over $10,000 must be declared
to U.S. Customs.

While speaking to Defendants, Officer Goulart noticed that
there was a black sheet covering something in the back of the
2984 UNITED STATES v. DEL TORO-BARBOZA
van. He asked Israel what was in the van, and Israel
responded that it contained boxes of shoes. When asked why
the black sheet was covering the boxes, Israel said that it was
so Mexican customs officials would not see the boxes. Defen-
dants’ brother, Jose Angel Del Toro-Barboza, testified that,
when importing merchandise into Mexico, they used the sheet
so Mexican officials would not stop them at the Mexican bor-
der. If stopped by Mexican officials, the delay was lengthy
and involved paying unpredictable taxes. This tax is also why
they always carry cash on them as they cross between the bor-
ders.

Defendants were sent to the secondary inspection area and
were asked to stand by a fence while the border patrol officers
searched the van. The van was filled with about 38 brown
cardboard boxes of varying sizes, all sealed. There were
names written on the boxes. Officer Goulart inspected one
box and found shoes. In other boxes he also found hair exten-
sions and paint ball guns. Officer Parker pulled one box out
of the van because it was significantly heavier than the others
around it. Officer Goulart testified that he saw no writing on
that box at all and that it was sealed. Officers opened the box
and found a black duffel bag, which contained large bundles
of U.S. currency. The duffel bag contained $500,087 in cash.

Defendants were arrested. One cell phone was found on
Israel and two were found on Adin. There were four missed
calls that morning on one of Adin’s phones—at 2:13, 2:14,
2:21, and 2:26 a.m.—all from the same Mexican number.
Israel’s phone also had one incoming call at 2:10 a.m. There
was no evidence presented as to whether the calls to both
phones were from the same number. Israel had $943 in cash
on him, and Adin had $340 in cash.

Defendants were indicted on September 30, 2009. Count
One charged them with violating 31 U.S.C. §§ 5332 and 5316
(bulk cash smuggling). Count Two charged them with violat-
ing 31 U.S.C. §§ 5324(b)(1) and (c) and 5316 (evading
 UNITED STATES v. DEL TORO-BARBOZA 2985
reporting requirements). Both defendants were also indicted
on an aiding and abetting theory. Section 5316 creates a
requirement to report currency but attaches no criminal pen-
alty for failing to do so. Sections 5332 and 5324 incorporate
§ 5316 and criminalize the failure to report.

Before trial, Defendants moved to preserve the box con-
taining the money and the money found therein. The district
court granted the motion on November 23, 2009. Defendants
then filed motions to dismiss because the currency and box
were not preserved. On January 25, 2010, the district court
held a hearing on the motions to dismiss, and denied the
motions, concluding that the evidence was not exculpatory.

During the trial, Special Agent Cornwall testified that there
were no markings on the box that had contained the money,
but he did not pick it up to inspect it. Special Agent Cornwall
testified that he did not view the box as holding any evidenti-
ary value. Officer Goulart testified that the box with the
money was the only box with no writing.

A jury trial commenced on March 2, 2010 and lasted four
days. After the government concluded its case-in-chief,
Defendants moved for a judgment of acquittal under Rule 29,
and they renewed their motions after the defense rested. The
district court denied these motions. The jury returned a verdict
of guilty on all counts as to both defendants. The district court
sentenced Adin to 41 months on each count, to be served con-
currently, and three years of supervised release. It sentenced
Israel to 46 months on each count, to be served concurrently,
and three years of supervised release.

II. Sufficiency of the Evidence

A.

Defendants argue that there was insufficient evidence to
support their convictions under §§ 5324 and 5332 because,
2986 UNITED STATES v. DEL TORO-BARBOZA
not knowing the bag of money was hidden in the van, they did
not have the specific intent the statutes required. We review
de novo a district court’s determination that sufficient evi-
dence supports a conviction. United States v. Tatoyan, 474
F.3d 1174, 1177 (9th Cir. 2007).

To satisfy due process in the conviction of a defendant,
there must be “proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”
In re Winship, 397 U.S. 358, 364 (1970). Given the challenge
to the sufficiency of the evidence, “the relevant question is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.
2010) (en banc).

To apply this standard, we follow a two-step approach.
First, all evidence must be viewed in the light most favorable
to the prosecution, and, when “faced with a record of histori-
cal facts that supports conflicting inferences,” a reviewing
court “must presume—even if it does not affirmatively appear
in the record—that the trier of fact resolved any such conflicts
in favor of the prosecution, and must defer to that resolution.”
Jackson, 443 U.S. at 326; see also Nevils, 598 F.3d at 1164.
Second, looking at the evidence in this manner, we must
determine whether the evidence is adequate to allow “any
rational trier of fact [to find] the essential elements of the
crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319;
see also Nevils, 598 F.3d at 1164. “At this second step, how-
ever, a reviewing court may not ask itself whether it believes
that the evidence at the trial established guilt beyond a reason-
able doubt, only whether any rational trier of fact could have
made that finding.” Nevils, 598 F.3d at 1164 (internal quota-
tions and citations omitted).
 UNITED STATES v. DEL TORO-BARBOZA 2987
B.

[1] Count One of the indictments charged Defendants with
bulk cash smuggling under § 5332, which states:

Whoever, with the intent to evade a currency report-
ing requirement under section 5316, knowingly con-
ceals more than $10,000 in currency or other
monetary instruments . . . in any conveyance . . . and
. . . attempts to transport or transfer [it] from a place
within the United States to a place outside of the
United States . . . shall be guilty of a currency smug-
gling offense.

§ 5332. Section 5316 requires a person who knowingly trans-
ports monetary instruments of more than $10,000 across the
border to file a report. A defendant “need only have the
‘intent’ to violate § 5316 to be guilty of bulk cash smug-
gling.” Tatoyan, 474 F.3d at 1179. This requires only that the
“defendant act deliberately and with knowledge.” Id. (internal
quotations and citations omitted).

Count Two of the indictments charged Defendants with
intent to evade a currency reporting requirement under
§ 5324(c), which provides that “[n]o person shall, for the pur-
pose of evading the reporting requirements of section 5316
. . . fail to file a report required by section 5316, or cause or
attempt to cause a person to fail to file such a report . . . .”1

[2] Both crimes are specific intent crimes and are commit-
ted only where Defendants knew of the reporting require-
1
Count Two also charged Defendants with violating § 5324(b)(1), and
the judgments reflect convictions for both §§ 5324(b)(1) and (c). Appel-
lees concede that at trial they pursued a theory of liability only under
§ 5324(c). We therefore instruct the district court to correct the judgments
to reflect that the convictions under Count Two were only for a violation
of § 5324(c).
2988 UNITED STATES v. DEL TORO-BARBOZA
ments and knew that they were transporting more than
$10,000 in cash. Defendants argue that although evidence
supported that they knew they were transporting contraband,
there was insufficient evidence to prove that they knew the
contraband was more than $10,000 in cash because no logical
inference can be made that they knew they were transporting
money. We disagree.

In Juan H. v. Allen, a fifteen-year-old was convicted of
first-degree murder and attempted murder on an aiding and
abetting theory when his brother shot and killed a man and
shot at another man he thought had earlier that evening fired
shots at his family’s trailer. Juan H. v. Allen, 408 F.3d 1262,
1266-69 (9th Cir. 2005). We held that the evidence was insuf-
ficient to show that Juan H. knew his brother planned to com-
mit murder, intended to encourage his conduct, and
affirmatively acted to aid the murders. Id. at 1276. After the
shooting, Juan H. had fled from the scene to his parents’
trailer, and, when questioned by the police, he gave a false
alibi stating he had been in the trailer during the shooting. Id.
at 1277. The California Court of Appeal made the determina-
tion that the untrue statements Juan H. made to the police
reflected consciousness of guilt. Id. We held that this was
speculative conjecture, because although “we must draw all
reasonable inferences in favor of the prosecution, a ‘reason-
able’ inference is one that is supported by a chain of logic,
rather than . . . mere speculation dressed up in the guise of
evidence.” Id. There was no evidence of Juan H.’s motive or
intent to help his brother, either direct or circumstantial. Id. at
1279.

[3] Here, though there was no direct evidence showing that
Defendants knew they were transporting more than $10,000
in cash, there was sufficient circumstantial evidence, and
there was a plausible chain of logic to support the jury’s ver-
dict convicting appellants. The evidence showed that both
defendants had possession of the vehicle—Israel as the driver
and Adin as the registered owner. Adin was the passenger
 UNITED STATES v. DEL TORO-BARBOZA 2989
when the border was attempted to be crossed, but Adin drove
the van and had picked up boxes two days before the stop at
the border. Those boxes were in the van when it was stopped
and searched at the border, showing that he had some degree
of control over the contents of the van.

[4] There was also circumstantial evidence from which a
jury reasonably may have inferred that Defendants knew they
were transporting more than $10,000 in cash. An inference is
reasonable where it is “supported by a chain of logic, which
is all that is required to distinguish reasonable inference from
speculation.” U.S. v. Begay, ___ F.3d ___, 2011 WL 94566,
at *5 (9th Cir. Jan 12, 2011) (en banc) (internal quotations
omitted). Here, a rational jury could reasonably have accepted
the prosecution’s argument that a person would not be
expected to trust someone safely to transport that large
amount of money, a half million dollars, without telling the
Defendants that the box placed in the van was extremely valu-
able. Moreover, a jury could reasonably have concluded that
Defendants knew that the box contained contraband because
Defendants placed the box containing the money in the van,
the box was the only unmarked box in the van, Defendants
had attempted to conceal the boxes from the border officers
with a black sheet, they did not tell the officers they were
transporting items other than shoes, they crossed the border in
the middle of the night instead of at a normal business hour,
and a person or persons called Defendants several times in a
matter of minutes in the middle of the night after they were
delayed for search at the border. Given the high probability
that Defendants knew they were smuggling extremely valu-
able contraband in the box, the jury could therefore have rea-
sonably concluded that the Defendants knew the nature of that
contraband. There is no logical reason why the smugglers
would not have informed the Defendants that the box con-
tained a half million dollars in cash (rather than, for example,
illegal drugs), and indeed, the Defendants offered no explana-
tion to rebut this possibility. Therefore, a chain of logic could
2990 UNITED STATES v. DEL TORO-BARBOZA
lead a rational jury to conclude that the Defendants knew that
they were transporting over $10,000 in their van.

The facts here are circumstantial, but a case such as this
rarely has direct evidence. Viewing all evidence in the light
most favorable to the prosecution, and giving all reasonable
inferences to the government in view of the conviction, a
rational jury could believe that Defendants knew there was
over $10,000 of cash in their car. It is true, as Defendants
argue, that the owner of the money might have refrained from
telling Defendants about the contents of the box and that it
might have been placed in their van without their knowledge.
An innocent explanation is in the realm of the possible. We
have previously said, however, “that the mere fact that evi-
dence submitted by the government is wholly susceptible to
innocent explanations . . . is not enough to reverse a convic-
tion on appeal.” United States v. Goyal, 629 F.3d 912, 919
(9th Cir. 2010) (internal quotations and citations omitted).
The evidence submitted, viewed in the light most favorable to
the government, and with all reasonable inferences given it,
must be sufficient to prove the elements of the crimes beyond
a reasonable doubt, but that does not mean beyond all con-
ceivable doubt. We cannot say that no rational trier of fact
could have found the essential elements of the crimes beyond
a reasonable doubt.

III. Jury Instructions

Defendants jointly argue that the district court did not give
the jury any instructions on the elements of Count Two,
which charged them with violating §§ 5324(b) and (c). Adin
alone challenges the district court’s decision not to give a
“theory of the defense” instruction that he sought.

A. Elements of § 5324

Defendants challenge the district court’s instruction on
Count Two, arguing that the jury was not instructed on any
 UNITED STATES v. DEL TORO-BARBOZA 2991
element of § 5324(c).2 Due process requires the government
to “prove all the elements of a crime beyond a reasonable
doubt.” United States v. Delgado, 357 F.3d 1061, 1067 (9th
Cir. 2004). “A jury instruction cannot relieve the Government
of this burden.” Id.

The instructions given to the jury on Count Two were taken
directly from the Defendants’ jointly proposed jury instruc-
tions, and Defendants did not object at trial. We review for
plain error where no objection has been made to the omission
of an essential element of an offense in the charge to the jury.
United States v. Lindsey, 634 F.3d 541, 554-55 (9th Cir.
2011). Under plain error review, we reverse when there is (1)
an error (2) that is plain and (3) that affects substantial rights.
United States v. Alghazouli, 517 F.3d 1179, 1188 (9th Cir.
2008). Even if there is a plain error that affects substantial
rights, “we should exercise our discretion to reverse [the] con-
viction[s] only if the error seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings.” Id. (internal
quotations omitted).

Defendants argue that the court instructed only on the ele-
ments of § 5316, for which there is no criminal penalty, and
did not instruct on any elements of § 5324(c). The district
court told the jury that defendants were charged in Count Two
of the indictments “with failure to report exporting monetary
instruments in violation of section 5316(a) of Title 31 of the
United States Code.” Section 5324(c) attaches criminal penal-
ties to violations of § 5316, stating that “[n]o person shall, for
the purpose of evading the reporting requirements of section
5316 . . . fail to file a report required by section 5316 . . . .”
§ 5324(c). Section 5316 requires a person to file a report
when the person knowingly transports or is about to transport
2
As discussed supra Part II, Defendants also argue that no instructions
were given to the jury regarding § 5324(b)(1). The government has con-
ceded this fact, and we instruct the district court to amend the judgments
to remove any references to § 5324(b)(1).
2992 UNITED STATES v. DEL TORO-BARBOZA
more than $10,000 from a place in the United States to a place
outside the United States. To be guilty of violating § 5324(c),
a person must (1) knowingly be about to transport more than
$10,000 in cash over the U.S. border, (2) know of the report-
ing requirement, and (3) intentionally evade the reporting
requirement.

[5] The district court instructed the jury on all three of
these described elements. Specifically, it instructed the jury
that to find Defendants guilty of Count Two, the government
had to prove beyond a reasonable doubt that:

First, the defendant knowingly was about to trans-
port more than $10,000 in United States currency
from a place in the United States to or through a
place outside the United States; second, the defen-
dant knew that the report of the amount to be trans-
ported was required to be filed with the Secretary of
the Treasury; and third, the defendant willfully failed
to file such a report.

Although this phrasing did not exactly track the language of
§ 5324(c), the district court in substance instructed the jury on
the elements of § 5324(c). There was no plain error in these
jury instructions, as to which defendants had not objected.

B. Adin’s Proposed Instruction

Adin argues that the district court erred by rejecting his
proposed instruction on the theory of the defense. We review
de novo the district court’s instructions to determine if they
adequately covered the defense’s theory. United States v.
Tucker, 641 F.3d 1110, 1122 (9th Cir. 2011).

Although a defendant may ask the court to instruct the jury
on his theory of defense, and should get a suitable instruction
if the theory is supported by law and some evidence, a court
may reject a defendant’s requested instruction if other instruc-
 UNITED STATES v. DEL TORO-BARBOZA 2993
tions reasonably cover the theory of the defense. Id. “So long
as the instructions fairly and adequately cover the issues pre-
sented, the judge’s formulation of those instructions or choice
of language is a matter of discretion.” United States v.
Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

Defendants’ proposed instruction read:

It is Israel and Adin Del Toro’s theory of defense
that they had no knowledge of the currency con-
cealed in the duffle bag inside a box in the van they
were driving. Rather, they believed that the thirty or
more boxes they were transporting in the van con-
tained shoes, clothes, and other legitimate merchan-
dise. If after considering all of the evidence in this
case, you find that the government has failed to
prove beyond a reasonable doubt that Israel and
Adin Del Toro knew that there was over $10,000 of
currency hidden in the van, then you must find them
not guilty on all counts.

Adin argues that, although the instructions given to the jury
required it to find that he knowingly transported more than
$10,000 in currency, the instructions did not adequately
impart the possibility that he would be not guilty if someone
else had placed the currency in the van and he had no knowl-
edge of its presence. We disagree.

[6] The jury instructions for both counts included a
requirement that Defendants “knowingly” transported over
$10,000. The district court also instructed the jury that the
United States had the burden of proving each charge beyond
a reasonable doubt, that “mere presence at the scene of the
crime or mere knowledge that a crime is being committed is
not sufficient unless . . . the defendant was a participant and
not merely a knowing spectator.” In fact, during deliberation,
the jury sent a question to the judge that read: “What if some-
one believes the Del Toro’s knew about the money, however,
2994 UNITED STATES v. DEL TORO-BARBOZA
also believe the prosecution did not prove it?” This shows that
the jury fully understood that they had to find that Defendants
knew about the money. We hold that the instructions given by
the district court made clear that Defendants could not be
found guilty if the jury did not find that they had known they
were carrying more than $10,000 in cash. The defense’s the-
ory was reasonably covered by other instructions.

IV. Double Jeopardy

Defendants contend that because their convictions under
§§ 5324(c) and 5332 are multiplicitous, these convictions vio-
late the Double Jeopardy Clause of the United States Consti-
tution. U.S. CONST. amend. V (“nor shall any person be
subject for the same offence to be twice put in jeopardy of life
or limb”). Defendants did not raise this argument in the dis-
trict court. “Where a defendant fails to raise the issue of mul-
tiplicity of convictions and sentences before the district court,
we review the district court’s decision for plain error.” United
States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007).

[7] “The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Blockbur-
ger v. United States, 284 U.S. 299, 304 (1932); see also
United States v. Vargas-Castillo, 329 F.3d 715, 719 (9th Cir.
2003). Even if the two counts are multiplicitous, where “a leg-
islature specifically authorizes cumulative punishment under
two statutes, regardless of whether those two statutes pro-
scribe the ‘same’ conduct under Blockburger, a court’s task
of statutory construction is at an end and the prosecutor may
seek and the trial court or jury may impose cumulative pun-
ishment under such statutes in a single trial.” Tatoyan, 474
F.3d at 1182 (quoting Missouri v. Hunter, 459 U.S. 359,
368-69 (1983)).
 UNITED STATES v. DEL TORO-BARBOZA 2995
[8] The statutes here do not satisfy the Blockburger test.
Both statutes have as elements: (1) that a defendant attempted
to transport over $10,000 from the U.S. to a place outside the
U.S., (2) that the defendant knew that a report was required,
and (3) that the defendant acted with the purpose or intent of
evading the requirements of § 5316. Section 5332 contains an
additional element not in § 5324(c)—that the defendant con-
ceal the money—but § 5324(c) contains no element not in
§ 5332. Therefore, under Blockburger, the statutes are multi-
plicitous.

[9] However, where two statutes proscribe the same con-
duct that would violate the Double Jeopardy Clause if charged
in separate trials, “[w]ith respect to cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.” Hunter,
459 U.S. at 366. There is a rebuttable presumption that Con-
gress does not intend to punish the same offense under two
different statutes. Id. But where Congress’ intent is clear,
cumulative punishment is permissible in the same trial. Id. at
368. Here, Congress intended to provide for additional pun-
ishment. In its findings for § 5332 (bulk cash smuggling),
Congress stated:

The current penalties for violations of the currency
reporting requirements are insufficient to provide a
deterrent to the laundering of criminal proceeds. In
particular, in cases where the only criminal violation
under current law is a reporting offense, the law does
not adequately provide for the confiscation of smug-
gled currency. In contrast, if the smuggling of bulk
cash were itself an offense, the cash could be confis-
cated as the corpus delicti of the smuggling offense.

Pub. L. No. 107-56, Title III, § 371(a) (Oct. 26, 2001). Con-
gress’ purposes were to “(1) make the act of smuggling bulk
cash itself a criminal offense; (2) to authorize forfeiture of any
2996 UNITED STATES v. DEL TORO-BARBOZA
cash or instruments of the smuggling offense; and (3) to
emphasize the seriousness of the act of bulk cash smuggling.”
Id. at § 371(b). We conclude that Congress’ intent was clear;
it wanted to provide for two separate punishments for the
same conduct. See also Tatoyan, 474 F.3d at 1182 (“Congress
thus contemplated—and indeed welcomed—a scenario in
which someone guilty of a reporting offense under § 5316
would also be guilty of a bulk cash smuggling offense under
§ 5332.”). We hold that Defendants’ convictions under
§§ 5324 and 5332 do not violate the Double Jeopardy Clause.

V. Destruction of Evidence

Defendants argue that the government violated their due
process rights when it did not preserve the box that contained
the duffel bag and when the government deposited the cash
found in Defendants’ van before they could test the box and
money for fingerprints. “Whether a defendant’s due process
rights were violated by the government’s failure to preserve
potentially exculpatory evidence is reviewed de novo.” United
States v. Rivera-Relle, 333 F.3d 914, 918 (9th Cir. 2003). We
review factual findings, such as the absence of bad faith, for
clear error. United States v. Flyer, 633 F.3d 911, 916 (9th Cir.
2011).

[10] The Supreme Court has said that “when the State sup-
presses or fails to disclose material exculpatory evidence, the
good or bad faith of the prosecution is irrelevant: a due pro-
cess violation occurs whenever such evidence is withheld.”
Illinois v. Fisher, 540 U.S. 544, 547 (2004). However, the
Supreme Court applies a different test if there is a “failure of
the State to preserve evidentiary material of which no more
can be said than that it could have been subjected to tests, the
results of which might have exonerated the defendant.” Id.
(quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988)).
Instead, “the failure to preserve this ‘potentially useful evi-
dence’ does not violate due process ‘unless a criminal defen-
dant can show bad faith on the part of the police.’ ” Id. at
 UNITED STATES v. DEL TORO-BARBOZA 2997
547-48 (quoting Youngblood, 488 U.S. at 58). The applicabil-
ity of the Youngblood bad-faith requirement depends on
whether the evidence was material exculpatory evidence or
simply potentially useful evidence. Id. at 549.

[11] Defendants argue that the government did not pre-
serve the box in which the cash-filled duffle bag was found,
and did not preserve the cash distinctly. The defendants con-
tend that this evidence that was not preserved is materially
exculpatory, and a defense resting on its loss or destruction
requires no showing of bad faith. But the fatal weakness of
this argument is that the exculpatory nature of the money or
the box3 was not apparent. This type of evidence, as in Young-
blood, is not materially exculpatory but only potentially use-
ful. To illustrate, in Youngblood, government officials did not
preserve semen samples that could have eliminated the defen-
dant as the perpetrator, but the Supreme Court held that a
showing of bad faith was required because “[t]he possibility
that the semen samples could have exculpated respondent if
preserved or tested is not enough to satisfy the standard of
constitutional materiality.” Youngblood, 488 U.S. at 56 n.*.

Because the evidence was not materially exculpatory,
Defendants were required to show bad faith. The district court
determined there was no bad faith. Defendants argue this was
in error because the district court had issued an order for the
preservation of evidence and, in violation of that order, the
government destroyed the evidence. But the box was lost
before any motions were made. From the testimony it appears
that the box was abandoned the night of Defendants’
attempted border crossing because it was seen as unimportant.
Testimony during trial shows that as events unfolded no one
present considered the box to have any evidentiary value.
3
Defendants contended that the box was materially exculpatory because
a sealed box would show Defendants did not know its contents. But the
record shows that border agents opened the box at the border, so it could
not have shown anything more than at one point it was sealed.
2998 UNITED STATES v. DEL TORO-BARBOZA
Special Agent Cornwall testified that he did not view the box
as holding any evidentiary value. Agent Goulart testified that
the last time he remembered seeing the box was at the second-
ary area. Officer Parker testified that the last time he remem-
bered seeing the box was at the secondary lot when they took
the duffel bag out of the box. Additionally, the money was
deposited in the bank three days after the border crossing,
long before the district court’s preservation order on Novem-
ber 23, 2009. It might have been a better practice for the gov-
ernment to have retained both the box and the money for
Defendants to test, but “[b]ad faith requires more than mere
negligence or recklessness.” Flyer, 633 F.3d at 916.

[12] A due process violation may arise where the govern-
ment has intentionally destroyed evidence knowing it is of
value for the defense against criminal charges. But where evi-
dence is routinely destroyed or lost by the government with
no knowledge that the evidence is likely exculpatory, and the
evidence is later sought for testing, the destruction or loss of
such evidence is not fundamentally unfair to a defendant and
will not offend traditional notions of due process. We hold
that in the circumstances here there was no due process viola-
tion caused by the challenged government destruction of evi-
dence.

VI. Closing arguments

Defendants contend that statements made by the prosecutor
in closing arguments require reversal. Defendants jointly
argue that the prosecutor engaged in misconduct during the
government’s closing argument by disparaging the defense
counsel and by putting words into Defendants’ mouths that
government witnesses had lied on the stand. Adin also argues
prosecutorial misconduct for making improper references to
a larger organization and by misstating the evidence.

A criminal conviction will not be overturned on the basis
of a prosecutor’s comments unless in context they affected the
 UNITED STATES v. DEL TORO-BARBOZA 2999
fundamental fairness of the trial. United States v. Young, 470
U.S. 1, 11 (1985). “The trial Judge has broad discretion in
controlling closing argument, and improprieties in counsel’s
arguments to the jury do not constitute reversible error unless
they are so gross as probably to prejudice the defendant, and
the prejudice has not been neutralized by the trial judge.”
United States v. Navarro, 608 F.3d 529, 535-36 (9th Cir.
2010) (internal quotations and citations omitted).

Where Defendants objected at trial, we review a district
court’s determination that there was no prosecutorial miscon-
duct for abuse of discretion, and we apply harmless error
analysis. United States v. Nobari, 574 F.3d 1065, 1073 (9th
Cir. 2009). Where Defendants did not object at trial, we
review for plain error. United States v. Geston, 299 F.3d
1130, 1134 (9th Cir. 2002).

A. Disparaging Defense Counsel

Defendants argue that the prosecutor disparaged defense
counsel in closing argument, affecting their right to a fair trial.
Defendants challenge three sets of statements by the prosecu-
tor. First, the prosecutor said, “The government is not in this
for a game. This is a very serious offense . . . and the defense
wants to make this into a game?” Second, he said, “You heard
me objecting a couple of times where [defense counsel] tried
to slip in some stuff.” Finally the prosecutor compared the
Defendants’ defense to the Wizard of Oz, stating that the
defense counsel was telling the jury to “pay no attention to the
evidence” and said, “Don’t let them pull the Wizard of Oz
trick on you, ladies and gentlemen. Don’t let them distract
you with the smoke, and you get distracted by the facts.”
Defendants objected, without success, to the first two state-
ments, but there was no objection to the third challenged
statement.

[13] We conclude that the district court did not abuse its
discretion on the first two statements. They did not render the
3000 UNITED STATES v. DEL TORO-BARBOZA
trial fundamentally unfair. The prosecutor’s remarks stating
that the trial was “not a game” did not make the trial unfair
both because of the truth that a criminal trial is not a game,
and because such comments can be seen as a reasonable
response to the argument that had just been made by defense
counsel. Defendants in their closing argument had analogized
the trial to a game, referring to a government witness and say-
ing, “He is part of a team. He plays for that side.” In circum-
stances where the defense has by analogy suggested the trial
was like a game with a government witness on the govern-
ment’s team, it is not fundamentally unfair for a prosecutor to
respond that the trial is not a game. “[T]hat a prosecutor’s
remarks were made in response to defense counsel’s argu-
ments, as an ‘invited reply,’ may justify the remarks.” United
States v. McChristian, 47 F.3d 1499, 1508 (9th Cir. 1995)
(citing Young, 470 U.S. at 14-20). This does not give the pros-
ecutor leeway to say anything at all in response. See, e.g.,
United States v. Sanchez, 659 F.3d 1252, 1256-57 (9th Cir.
2011). However, the statement here was not sufficiently
inflammatory to constitute error offending due process so as
to negate the trial and jury verdict.

[14] Second, the government’s argument that defense
counsel “tried to slip in some stuff” also does not amount to
reversible error. The defense counsel was equally accusatory
during its closing, accusing the prosecutor of giving the jury
a “string of distractions,” of putting spin on facts, and com-
paring the government’s argument of evidence to “one of
those chewy dog toy guns that you chew on, and it makes a
lot of noise and it squeaks.” The government’s statements are
not like those made in Bruno v. Rushen, where we expressed
our disapproval of prosecutors’ attacks on defense attorneys.
721 F.2d 1193, 1195 (9th Cir. 1983). “There the prosecutor
tried to destroy the credibility of the defendant by implying
that defense counsel fabricated the defendant’s story and
instructed him to repeat it on the stand.” United States v.
Frederick, 78 F.3d 1370, 1380 (9th Cir. 1996) (describing
Bruno). The prosecutor’s suggestion that the defense had
 UNITED STATES v. DEL TORO-BARBOZA 3001
“tried to slip in some stuff” does not present a model of polite
professionalism, but in context did not render the trial unfair.

[15] Because Defendants did not object to the Wizard of
Oz comments made by the prosecutor, we review those com-
ments for plain error. Those comments were similar to ones
made in United States v. Matthews, 240 F.3d 806 (9th Cir.
2000).4 There the prosecution insinuated that defense counsel
was trying to hide the truth, referred to the defense as an “oc-
topus squirting ink,” and asserted that “they gotta hide all the
facts, cloud the facts, throw up all kinds of dirt, squirt the
ink.” Id. at 819. We held that the remarks may have crossed
the line, but that given the circumstances of the case, the
remarks did not amount to plain error. Id.

The proper application of the protections given criminal
defendants by the due process clause does not mean that every
jarring or badly selected metaphor renders a trial fundamen-
tally unfair. A criminal trial, whether it should be or not, in
practice is more like a football or basketball game than like
a pleasant tea or game of croquet. The prosecution and
defense confront each other and there will be some contact in
strong language that is not avoidable. We expect counsel on
both sides to exhibit professionalism, but a trial will usually
be a hard-fought contest. So long as the prosecutor’s vigorous
closing argument is within normal bounds of advocacy and
does not render a trial fundamentally unfair, a jury’s criminal
conviction upon proper jury instructions, and without other
supervening constitutional error, should not be upset by an
appellate court.

B. Putting Words Into Defendants’ Mouths

Defendants also argue that the prosecutor engaged in mis-
4
Matthews was reversed en banc, but the en banc panel adopted the part
of the panel opinion relevant here. See 278 F.3d 880 (9th Cir. 2002) (en
banc).
3002 UNITED STATES v. DEL TORO-BARBOZA
conduct by putting words into their mouths by stating at clos-
ing that the defense said that government witnesses had lied
on the stand. The prosecutor said: “So, Defense says, ‘Well,
perhaps the box may have had some markings on it.’ So what
they are saying, ladies and gentlemen, to you, is that these
officers got on this witness stand and told you a story. They
lied to you.” Defense counsel objected to this, but on vouch-
ing grounds rather than prosecutorial misconduct. “[A] party
fails to preserve an evidentiary issue for appeal not only by
failing to make a specific objection, but also by making the
wrong specific objection.” United States v. Gomez-Norena,
908 F.2d 497, 500 (9th Cir. 1990); see also United States v.
Sioux, 362 F.3d 1241, 1245 n.5 (9th Cir. 2004). Therefore we
review this for plain error. We will overturn a conviction
because of statements in closing arguments for plain error
only where the statement “undermine[s] the fundamental fair-
ness of the trial and contribute[s] to a miscarriage of justice.”
United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir.
1986) (quoting Young, 470 U.S. at 16).

A prosecutor may not question a defendant on the stand and
ask him whether another witness was lying. United States v.
Greer, 640 F.3d 1011, 1023 (9th Cir. 2011). However, that is
not what happened here. Instead, during rebuttal, the prosecu-
tor summarized the argument made by defense counsel. He
did not summarize anything said by Defendants on the stand.

[16] The prosecutor’s statement did not “undermine the
fundamental fairness of the trial and contribute to the miscar-
riage of justice” because it was in rebuttal to defense coun-
sel’s statements. Before this statement by the prosecutor,
defense attorneys commented on the government witnesses—
implying the witnesses had lied. Defense counsel argued that
the government witnesses had changed their stories, had said
one thing but written another in the report, had a bias, had
pressure to change their story, and that the testimony had
changed 180 degrees. The responsive argument by the prose-
cutor summarizing the defense counsel’s argument does not
 UNITED STATES v. DEL TORO-BARBOZA 3003
undermine the fundamental fairness of the trial or contribute
to a miscarriage of justice. There is no plain error.

C. Improper References to an Organization

Adin next argues that, even though the district court
granted a motion in limine to prevent any witness from testi-
fying about possible sources of the money found in the van,
the prosecutor in cross-examination and argument referred to
the existence and involvement of a larger organization, and
that this requires a new trial.

[17] In closing argument, the prosecutor referred to “the
person or persons that were calling” and said, “That’s some-
body who has said ‘my money better be in Mexico at 2
o’clock.’ ” But considering the prosecutor’s comment in con-
text, we see that Israel’s counsel in her opening statement
referred to “the person who was really responsible for that
money.” Adin’s defense was that an unknown third party had
“hidden cash inside the sealed box” and that Adin had
unknowingly loaded it into the van. Defendants argued that
others were involved and that these others had tricked Defen-
dants into unknowingly transporting the cash. The prosecution
simply argued, in response to the claims that a third party was
responsible, that Defendants knew the third party. “[W]here
the defendant opens the door to an argument, it is ‘fair advo-
cacy’ for the prosecution to enter.” United States v. Falsia,
724 F.2d 1339, 1342 (9th Cir. 1983). There was no error.

D. False Statements

Adin argues that the district court erred in denying his
motion for a new trial because the prosecutor made statements
of fact not supported by the record during his opening, clos-
ing, and rebuttal arguments. We review the denial of a motion
for a new trial for abuse of discretion and will only grant the
motion in exceptional circumstances in which the evidence
3004 UNITED STATES v. DEL TORO-BARBOZA
weighs heavily against the verdict. United States v. Pimentel,
654 F.2d 538, 545 (9th Cir. 1981).

The prosecutor has acknowledged making a false statement
of facts. During his closing argument, the prosecutor stated
that both defendants denied having money on them, but the
record reflects only that Israel was asked that question about
having money, Adin was not. The prosecutor then had argued
that because Adin lied about having money on him he also
lied about not knowing he was transporting over $10,000 in
cash. The district court held that this was an error, but it also
determined that this was an honest mistake and not prosecu-
torial misconduct. The district court further held the mistake
to be harmless and denied the motion for a new trial.

[18] The district court believed that Adin had received a
fair trial despite the error. The court noted that Adin said he
was not taking more than $10,000 out of the country, he heard
the agents ask Israel if he had any money on him but didn’t
speak up that he did, there were four missed calls on his
phone, he was the registered owner of the van, and the van
crossed the border at an unusual time. In addition to this, the
court determined any error was cured by its admonitions to
the jury before opening statements, before closing argument,
and during the course of instructions that the lawyers’ state-
ments were not evidence and that if the jury remembered facts
differently, their memory should control. Here, there was suf-
ficient evidence to support Adin’s conviction. His trial was
not perfect, but it was not fundamentally unfair. The misstate-
ment by the prosecutor was not “so gross as probably to prej-
udice the defendant.” Navarro, 608 F.3d at 535-36. Adin was
convicted of knowingly trying to smuggle the $500,000 out of
the U.S., not of lying about whether he had a few hundred
dollars in his pocket. The district court’s decision to deny the
motion for a new trial was not an abuse of discretion.

VII. Sentencing

Adin argues that the district court erred in giving him a 14
level enhancement for loss under § 2B1.1. He also argues that
 UNITED STATES v. DEL TORO-BARBOZA 3005
the court’s failure to provide a two level adjustment for hav-
ing a minor role in the crime was substantively unreasonable.

A. Standard of Review

We review a district court’s method of calculating loss de
novo and the district court’s determination of the amount of
loss for clear error. United States v. Santos, 527 F.3d 1003,
1006 (9th Cir. 2008). “Regardless of whether the sentence
imposed is inside or outside the Guidelines range, the appel-
late court must review the sentence under an abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007).

B. 14 Level Enhancement for Loss

A sentence for convictions under § 5332 is determined
under U.S.S.G. § 2S1.3. Section 2S1.3 provides:

(a) Base Offense Level:

(1) 8, if the defendant was convicted under
31 U.S.C. § 5318 or § 5318A; or

(2) 6 plus the number of offense levels from
the table in § 2B1.1 . . . corresponding to
the value of the funds, if subsection (a)(1)
does not apply.

Because subsection (a)(1) did not apply, the district court
looked at the table in § 2B1.1, whose chart shows that for
amounts more than $400,000, the offense level is increased by
14.

Adin’s argument is that § 2B1.1 is a penalty for loss and
that, in United States v. Bajakajian, the Supreme Court held
that failure to report currency caused no loss to the public fisc
and only caused a deprivation of the information that money
3006 UNITED STATES v. DEL TORO-BARBOZA
had left the country. 524 U.S. 321, 339 (1998). Because there
was no loss, Adin argues, there could be no 14-level enhance-
ment. We reject this argument.

First, the 14-level enhancement was applied not because of
loss, but because the Guidelines incorporated the chart as a
reference for the bulk cash smuggling guideline instead of
reprinting the chart. This follows from the plain language of
the sentencing guidelines.

[19] Second, as noted by the First Circuit, after Bajakajian,
Congress enacted the USA PATRIOT Act, which defined the
“new” crime of bulk cash smuggling at § 5332. United States
v. Jose, 499 F.3d 105, 109 (1st Cir. 2007). The First Circuit
in Jose noted that by enacting the bulk cash smuggling stat-
ute, Congress was demonstrating its “view that defendant’s
violation of the bulk cash smuggling statute constitutes a sig-
nificant harm.” Id. at 112. We agree.

[20] The 14-level enhancement was appropriate.

C. Minor Role Adjustment

Adin also contends that his sentence is substantively unrea-
sonable because the district court should have decreased his
Guidelines sentence by two levels because of what he charac-
terizes as his “minor role.” Under § 3B1.2, an offense level
should be decreased by two levels if the “defendant was a
minor participant in any criminal activity.” U.S. Sentencing
Guidelines Manual § 3B1.2(b) (2010). “The comments to the
Guidelines clarify that a minor participant is one who ‘plays
a part in committing the offense that makes him substantially
less culpable than the average participant.’ ” United States v.
Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir. 2011) (quot-
ing U.S.S.G. § 3B1.2(b) cmt n.3(A)). The defendant bears the
burden of proving that he is entitled to the downward adjust-
ment based on his role. Id.
 UNITED STATES v. DEL TORO-BARBOZA 3007
The district court stated that the minor role adjustment was
not applicable under this offense because:

[i]t’s only the people that are taking it out of the
country that are convicted of this offense. They were
the principles that took it out of the country. There-
fore, role just wouldn’t apply, in my opinion. They
can’t be substantially less culpable than somebody
else taking it out of the country, because there was
nobody else taking it out of the country.

Adin points out that the Congressional findings related to
§ 5332 state that while bulk cash smugglers are important,
they are “typically low-level employees of large criminal
organizations, and thus are easily replaced.” Pub. L. 107-56,
Title III, § 371(a)(5), Oct. 26, 2001. But we need not decide
whether in an appropriate case there might be a minor role
determination in a case involving bulk cash smuggling. For
here Adin had defended by asserting lack of knowledge at all
of the money in the van, and had not urged that he was carry-
ing it for a large organization. Even if there are cases involv-
ing this crime where there could be a proper application of the
two level minor role adjustment, this is not such a case.

[21] Adin had the burden of showing that his role was
minor, and he did not meet that burden. He provided no evi-
dence showing there was a bigger organization or that he was
carrying the cash for someone else. He presented no facts
explaining his role in this offense. He did not give a post-
arrest statement, did not testify at trial, did not discuss the
offense with the Probation Officer who prepared the Presen-
tence Report, and said nothing about his role at the sentencing
hearing. Adin was the owner of the van, had driven the van
and picked up some of the merchandise on his own before
crossing the border, and his phone was the one that received
four missed calls shortly after they should have crossed the
border. The sentence was not substantively unreasonable. See
United States v. Garcia-Guitar, 234 F.3d 483, 491-92 (9th
3008 UNITED STATES v. DEL TORO-BARBOZA
Cir. 2000) (upholding denial of minor role adjustment where
defendant “fails to point to other more culpable participants”).

VIII. Cumulative Error

[22] Defendants both argue that there is cumulative error
requiring dismissal. Whatever errors we have identified, these
“isolated errors . . . do not support reversal in the aggregate.”
United States v. Inzunza, 638 F.3d 1006, 1025 (9th Cir. 2011).

IX. Conclusion

We AFFIRM the convictions and sentences, but REMAND
to the district court and order it to amend the judgments to
remove references to § 5324(b)(1).