In a notable recent decision on prosecutorial misconduct, United States v. Citali-Flores, 14-50027, 2015 WL 5569098 (9th Cir. Sept. 23, 2015), the Ninth Circuit held error, albeit harmless, where the prosecutor, in closing argument, misstated evidence.

There, Flores was indicted with importation of marijuana into the United States in violation of 21 U.S.C. §§952 and 960. See id. at 3. At trial, Flores testified that she was “carrying” and “bringing” marijuana into Mexico, not the United States, after being questioned about a Facebook message found that she wrote. Id. at 5. The prosecutor, however, argued, in closing arguments, that Flores testified she was “carrying and bringing marijuana from Mexico into the United States.” Id. at 8.

In holding that the prosecutor’s argument was improper, the Ninth Circuit emphasized that the misstated evidence invited the jury to improperly “convict the defendant based on her admission to carrying marijuana to Mexico” when exportation was not even the charge. Id. at 2.

Although the conviction was affirmed, on plain error review, Judge Wardlaw noted: “Once again, An Assistant United Sttes Attorney for the Southern District of California overstepped the boundaries of permissible questioning and argument.” Id. at 15. Moreover, Judge Pregerson, in dissent, would have likely reversed: “These serious violations do not warrant invocation of the plain error rule.”Id.at 15.