In United States v. Olivas, --- F.4th ---, No. 20-50182 (9th Cir. 2025), on remand from the Supreme Court after Diaz, the Court affirmed Sylvia Olivas’s conspiracy convictions arising from her participation in activities of the Canta Ranas Organization, an alleged street gang.
At Olivas’s trial, a government expert testified that “secretaries”—trusted gang members who facilitate communication to and from incarcerated gang leaders— know “[e]verything” about the gang’s activities. Later, the expert opined that Olivas was “a secretary.”
Olivas argued on appeal that the testimony violated Federal Rule of Evidence 704(b), which prohibits expert witnesses in criminal cases from stating opinions “about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged.” Reviewing for plain error, the Court affirmed.
A party must lodge a “specific objection” to the challenged testimony. United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990). Put another way, a party must object to the precise testimony under review. Objections to earlier, attenuated statements are not enough. A party cannot claim to have properly objected to the testimony without having put the district court on notice of the specific ground raised on appeal. Because the defense failed to specifically object to Enriquez’s testimony that Olivas was a Mexican Mafia secretary, we review for plain error.We conclude that the district court did not plainly err by admitting Enriquez’s testimony that Olivas was Gavaldon’s secretary after he said earlier that secretaries know “[e]verything” about the gang. And even if the district court plainly erred, we conclude that the error did not affect Olivas’s substantial rights or impair the integrity of judicial proceedings.To satisfy plain error, there must be no question or ambiguity that a district court failed to correct a manifest error—one that any jurist would have recognized without an objection. See United States v. Rusnak, 981 F.3d 697, 705 (9th Cir. 2020). “Plain error applies to a trial error that should have been, but was not, recognized by the district court.”We cannot say that the district court should have recognized this error. To start, Olivas splices snippets from Enriquez’s day-long testimony to identify an alleged Rule 704(b) violation.We assume, as Olivas argues, that the witness’s challenged statements, when considered in the aggregate, fall afoul of Diaz. But, under the peculiar circumstances of this case we cannot say any error “should have been, but was not, recognized by the district court.” Id. The challenged statements came hours apart separated by exchanges on topics unrelated to secretaries. We would not expect the district court to realize sua sponte that Enriquez’s opinion that Olivas is a secretary—itself an unobjectionable opinion—was rendered improper because of a separate permissible opinion, made hours earlier, that secretaries know “[e]verything.”Even if the district court should have recognized this error, Olivas must show “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Greer v. United States, 593 U.S. 503, 507–08 (2021) (quotation omitted); see also United States v. Atkinson, 297 U.S. 157, 160 (1936) (relief is limited to “exceptional circumstances”). She has not met that burden.
