United States v. Sylvia Olivas

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FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 20-50182

               Plaintiff-Appellee,           D.C. No.
                                          2:16-cr-00390-
 v.                                         DSF-AB-4

SYLVIA OLIVAS, AKA Sylvia Lee
Gavaldon,                                    OPINION

               Defendant-Appellant.

      On Remand from the United States Supreme Court

            Argued and Submitted April 7, 2025
                San Francisco, California

                  Filed August 25, 2025

Before: Andrew D. Hurwitz, Ryan D. Nelson, and Patrick
             J. Bumatay, Circuit Judges.

                Opinion by Judge R. Nelson
2                         USA V. OLIVAS


                          SUMMARY *


                         Criminal Law

    On remand from the Supreme Court, the panel affirmed
Sylvia Olivas’s conspiracy convictions arising from her
participation in activities of the Canta Ranas Organization, a
violent 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.” The panel rejected that argument and affirmed
Olivas’s convictions and sentence.
     The Supreme Court remanded for further consideration
in light of Diaz v. United States,
602 U.S. 526
(2024), which
elaborated on when expert testimony violates Rule 704(b).
    The panel concluded that the district court did not plainly
err by admitting the expert’s testimony that Olivas was a
secretary for her brother, a Mexican Mafia member, after the
expert said earlier that secretaries know “[e]verything” about
the gang. The panel explained that Diaz underscores the

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                         USA V. OLIVAS                          3


narrow scope of testimony prohibited by Rule 704(b)—an
expert opinion is “about” the ultimate issue of the
defendant’s mental state only if it includes a conclusion on
that precise topic, not merely if it concerns or refers to that
topic. The panel assumed, as Olivas argued, that the expert’s
challenged statements, when considered in the aggregate,
fall afoul of Diaz. But, under the peculiar circumstances of
this case in which the challenged statements came hours
apart separated by exchanges on topics unrelated to
secretaries, the panel could not say any error “should have
been, but was not, recognized by the district court.”
   The panel concluded that Olivas is not entitled to relief
under Federal Rule of Criminal Procedure 52(b) because
even if the district court plainly erred, the error did not affect
Olivas’s substantial rights or impair the integrity of judicial
proceedings.
  The panel addressed other issues in a separately filed
memorandum disposition.


                          COUNSEL

Hava A.L. Mirell (argued), Jehan M. Pernas Kim, Lindsay
M. Bailey, MiRi Song, and Chelsea Norell, Assistant United
States Attorneys; Kathy Yu, Senior Litigation Counsel;
Mack E. Jenkins and Bram M. Alden, Assistant United
States Attorneys, Chiefs, Criminal Division; E. Martin
Estrada, United States Attorney; Office of the United States
Attorney, United States Department of Justice, Los Angeles,
California; for Plaintiff-Appellee.
Carlton F. Gunn (argued), Law Office of Carlton F. Gunn,
Los Angeles, California, for Defendant-Appellant.
4                       USA V. OLIVAS


                         OPINION

R. NELSON, Circuit Judge:

    During Sylvia Olivas’s trial for conspiracy, 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.” In a previous appeal, Olivas argued 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.” We rejected that argument and affirmed
Olivas’s convictions and sentence. See United States v.
Olivas, No. 20-50182,
2023 WL 4105308
, at *2, *3 (9th Cir.
June 21, 2023). The Supreme Court vacated our judgment
and remanded for further consideration in light of its opinion
in Diaz v. United States, which elaborated on when expert
testimony violates Rule 704(b).
602 U.S. 526
(2024).
    Reviewing for plain error, we find none. And, even
assuming plain error, admission of the testimony did not
affect Olivas’s substantial rights. We affirm.
                              I
   Sylvia Olivas was a member of the Canta Ranas
Organization (CRO), a violent street gang in southern
California that deals drugs and commits other crimes. See
United States v. Jaimez,
45 F.4th 1118, 1122
(9th Cir. 2022).
The CRO is linked to the Mexican Mafia, another criminal
organization.
Id.
Olivas’s brother, David Gavaldon, is a
                       USA V. OLIVAS                      5


Mexican Mafia member who led the CRO while serving a
life sentence for murder.
    Gavaldon controlled the CRO through “secretaries”—
loyal gang members who conveyed his orders to
“shotcallers” on the outside. Law enforcement learned that
Olivas was her brother’s secretary for several years. She
visited Gavaldon in prison to discuss gang business, relayed
his messages to gang members on the streets, and controlled
the flow of CRO money on his behalf.
    In 2017, a federal grand jury indicted Olivas and nearly
50 codefendants under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961–68. The
indictment alleged RICO conspiracy, money-laundering
conspiracy, drug-trafficking conspiracy, and various
substantive offenses. See
18 U.S.C. §§ 1962
(d), 1956(h);
21
U.S.C. § 846
.
    At trial, the Government argued that Olivas was “a
trusted secretary” to Gavaldon. To support its theory, the
Government offered the expert testimony of Rene Enriquez,
a former Mexican Mafia member.
    On direct examination, Enriquez described secretaries as
being “right under a Mexican Mafia member” in the gang’s
hierarchy. “There’s no greater power” than being a
secretary, Enriquez explained, because “[t]hat’s the
individual who communicates with the Mexican Mafia
member,” “controls the crew,” and “controls the money.”
Simply said, “[w]ithout the secretary, there is no crew.”
After that colloquy, Enriquez testified about other gang
members, such as the shotcallers. The court then adjourned
for lunch.
6                      USA V. OLIVAS


    The Government renewed its questioning in the
afternoon. It picked up with Enriquez’s discussion about
shotcallers before addressing other topics, like how the gang
smuggles drugs into prison. Sometime later, the exchange
returned to secretaries. When asked how much “secretaries
know about the activities of the crew,” Enriquez replied,
“Everything. Everything goes through them.”
    The questioning again shifted to other topics—for
example, how gang members use code to communicate.
Eventually, the Government played a video of Olivas
visiting Gavaldon in prison. When asked what he learned
from the video, Enriquez said that Olivas “was a secretary
for her brother, Mexican Mafia member, David Gavaldon.”
There was no objection.
     Later, the Government questioned Enriquez about a
letter from Olivas telling Gavaldon that a woman thanked
him for sending her money. Enriquez explained that “[s]he’s
expressing her appreciation to the Mexican Mafia member,
David Gavaldon, through his secretary, Ms. Olivas.” Again,
no objection.
    The direct examination continued. The Government
asked Enriquez “whether David Gavaldon and Sylvia Olivas
were passing messages regarding Mexican Mafia business.”
The defense objected, arguing that the question went to the
“ultimate issue [in] the case.” The district court overruled
the objection.
    Finally, after several hours of questioning, only a small
portion of which involved secretaries, the Government again
asked Enriquez if he had “an opinion regarding Sylvia
Olivas’s position in David Gavaldon’s crew.” As he had two
times before, Enriquez stated, “She’s a secretary for the
                          USA V. OLIVAS                           7


Mexican Mafia. She’s a secretary for David Gavaldon.” Yet
again, no objection.
    Olivas was convicted and sentenced to 151 months’
imprisonment. On appeal, Olivas argued that Enriquez’s
testimony violated Federal Rule of Evidence 704(b), which
bars an expert in a criminal case from stating an opinion
about whether the defendant had a mental state constituting
an element of the charged offense. See United States v.
Finley,
301 F.3d 1000, 1015
(9th Cir. 2002). As Olivas saw
it, Enriquez’s opinion that she was Gavaldon’s secretary,
combined with his earlier testimony that secretaries know
“[e]verything” about the gang, compelled a conclusion about
her mental state during the charged conspiracies, which
require knowledge or intent related to the criminal scheme.
See, e.g., Baumer v. Pachl,
8 F.3d 1341, 1346
(9th Cir. 1993)
(“[C]onspiracy to violate RICO requires a showing that
defendant ‘was aware of the essential nature and scope of the
enterprise and intended to participate in it.’” (quotation
omitted)).
    Two years ago, we disagreed. See United States v.
Olivas, No. 20-50182,
2023 WL 4105308
, at *2 (9th Cir.
June 21, 2023). 1 Our original decision reasoned that
Enriquez never opined on Olivas’s “‘actual mental state
during the charged offense’” or offered “‘testimony which
necessarily would imply that ultimate conclusion’ in
violation of Rule 704(b).”
Id.
(quoting United States v.
Morales,
108 F.3d 1031, 1038
(9th Cir. 1997) (en banc)). At
most, “Enriquez’s testimony merely ‘described’” a

1
  Judge Hurwitz and Judge R. Nelson decided the original appeal as a
two-judge quorum. See
28 U.S.C. § 46
(d); 9th Cir. Gen. Ord. 3.2(h).
Judge Bumatay was drawn as the third panel member after remand from
the Supreme Court.
8                         USA V. OLIVAS


characteristic—knowledge of the gang’s activities—that is
“‘a common practice of those who’” are secretaries to CRO
leaders.
Id.
(quoting United States v. Freeman,
498 F.3d
893
, 906–07 (9th Cir. 2007)). After addressing the
remaining issues, we affirmed Olivas’s convictions and
sentence. 2 Id. at *1.
    Meanwhile, another Ninth Circuit case involving Rule
704(b) was making its way to the Supreme Court. At issue
in United States v. Diaz was expert testimony about the so-
called “blind mule” defense. No. 21-50238,
2023 WL
314309
, at *2 (9th Cir. Jan. 19, 2023). The defendant—who
was caught driving across the southern border with 54
pounds of methamphetamine—claimed ignorance to the
drugs hidden in her car. See Diaz, 602 U.S. at 528–29. On
that telling, the defendant was not guilty of “knowingly”
importing drugs into the United States. See
21 U.S.C.
§§ 952
, 960(a)(1). A government expert, however, testified
that drug traffickers “rarely use unknowing couriers.” Diaz,
2023 WL 314309
, at *2. The defendant was convicted of
importing methamphetamine, and argued on appeal that the
expert’s testimony violated Rule 704(b) because it was the
“‘functional equivalent’ of a prohibited opinion on mental
state.”
Id.
The panel rejected that argument as “contrary to
our precedent.”
Id.
It relied on the same line of cases as the
original decision here, concluding that the expert had “not
provide[d] an ‘explicit opinion’ on the defendant’s state of
mind.”
Id.
(quoting United States v. Gomez,
725 F.3d 1121,
1128
(9th Cir. 2013)).



2
 We also resolved the consolidated appeal for Olivas’s codefendant,
Michael Salinas. See United States v. Salinas, No. 21-50270 (9th Cir.
June 21, 2023), Dkt. 61. His claims are not at issue here.
                            USA V. OLIVAS                               9


    The Supreme Court granted certiorari in Diaz and set the
case for argument. Diaz v. United States,
144 S. Ct. 392
(2023). Olivas also sought certiorari. After the Supreme
Court issued its opinion in Diaz, see
602 U.S. 526
(2024), it
granted Olivas’s petition, vacated our judgment, and
remanded “for further consideration in light of Diaz.” Olivas
v. United States,
144 S. Ct. 2711
(2024).
    We must now decide anew whether it was reversible
error to admit Enriquez’s testimony. We have jurisdiction
under
28 U.S.C. § 1291
. 3
                                   II
     If the admission of expert testimony is objected to at
trial, we review for abuse of discretion. United States v.
Johnson,
875 F.3d 1265, 1280
(9th Cir. 2017). But when
there is no objection, we review for plain error. United
States v. Halamek,
5 F.4th 1081
, 1087 (9th Cir. 2021).
     The Government contends that plain error applies
because Olivas failed to object to the challenged testimony
at trial. We agree. Enriquez testified three times that Olivas
was Gavaldon’s secretary. Her lawyer never objected to that
testimony. A party preserves an evidentiary issue for appeal
“only if” it “timely objects” and “states the specific ground”
for the objection, “unless it was apparent from the context.”
Fed. R. Evid. 103(a). Yet at no point during trial did the
defense claim that any of Enriquez’s testimony was
improper mental state evidence under Rule 704(b), even
though references to her being a secretary followed
Enriquez’s opinion that secretaries know “[e]verything”
about the gang. See United States v. Pino-Noriega,
189 F.3d

3
We address the other issues Olivas raised on appeal in a separately filed
memorandum disposition.
10                          USA V. OLIVAS


1089, 1097 (9th Cir. 1999) (“[S]ince the defense did not raise
the [specific] objection at trial, we review for plain error,
even as to those statements to which some other objection
was made.”).
    Olivas counters that her lawyer objected to earlier
testimony that she was “passing messages [with Gavaldon]
regarding Mexican Mafia business.” More is required. 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. Cf. United States v. Rivera,
43 F.3d 1291, 1295
(9th Cir. 1995) (“[A] party fails to preserve an evidentiary
issue for appeal . . . by making the wrong specific
objection.” (quoting Gomez-Norena,
908 F.2d at 500
)).
Because the defense failed to specifically object to
Enriquez’s testimony that Olivas was a Mexican Mafia
secretary, we review for plain error. 4
    Federal Rule of Criminal Procedure 52(b) allows some
“forfeited” errors to be “reversible.” United States v. Olano,
507 U.S. 725, 732
(1993). But a defendant seeking to invoke

4
  Olivas asserts that the Government waived its plain-error argument at
the certiorari stage when it filed a two-page memorandum noting that
“the Court’s decision in Diaz may bear on the correct resolution of this
case.” Not so. While the Government may waive plain-error review, it
did not do so in a memorandum that said nothing about the substance of
Olivas’s petition. See United States v. Murguia-Rodriguez,
815 F.3d
566
, 574–75 (9th Cir. 2016). The Government simply asked the Court
to hold Olivas’s petition before disposing of it “as appropriate” under
Diaz.
                        USA V. OLIVAS                       11


that Rule must meet the “heavy burden” of showing
“(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Hougen,
76 F.4th 805, 810
(9th Cir.
2023) (quotations omitted). If those three requirements are
met, we have “discretion to grant relief,” but only if Olivas
can show that the error “‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’”
Id.
at 810–11 (emphasis omitted) (quoting United States v.
Depue,
912 F.3d 1227, 1232
(9th Cir. 2019) (en banc)); see
Olano,
507 U.S. at 735
(“Rule 52(b) is permissive, not
mandatory.”). “Meeting all four prongs is difficult, ‘as it
should be.’” Puckett v. United States,
556 U.S. 129, 135
(2009) (quotation omitted).
     Plain error is judged at the time of appellate review.
Henderson v. United States,
568 U.S. 266, 269
(2013). So
we consider Diaz, even though it was decided after Olivas’s
trial.
                              III
    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.
                              A
    Generally, “[a]n opinion is not objectionable just
because it embraces an ultimate issue.” Fed. R. Evid. 704(a).
Rule 704(b), however, carves out a “limited exception” to
the default rule. United States v. Campos,
217 F.3d 707
,
710–11 (9th Cir. 2000). “In a criminal case, an expert
12                      USA V. OLIVAS


witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense.”
Fed. R. Evid. 704(b). “Those matters are for the trier of fact
alone.”
Id.
We have interpreted Rule 704(b) “much more narrowly
than its text might indicate.” United States v. Hayat,
710
F.3d 875, 901
(9th Cir. 2013). Chief among these limitations
is that the Rule prohibits only “explicit” or “direct” opinions
about a criminal defendant’s mental state. Gomez,
725 F.3d
at 1128
(quoting United States v. Murillo,
255 F.3d 1169,
1178
(9th Cir. 2001)); Freeman,
498 F.3d at 906
.
    The “direct opinion” doctrine traces back to Morales.
Sitting en banc, we held that Rule 704(b) “exclude[s] only
testimony as to a defendant’s actual mental state during the
charged offense or testimony which necessarily would imply
that ultimate conclusion.”
108 F.3d at 1038
(emphasis
added). Five years later, in United States v. Gonzales, we
upheld the admission of testimony in the face of a Rule
704(b) challenge because the expert “never directly and
unequivocally testified to [the defendant’s] mental state.”
307 F.3d 906, 911
(9th Cir. 2002). Hayat said the same: The
expert complied with Rule 704(b) because “he never
commented directly on [the defendant’s] mental state.”
710
F.3d at 902
. And in Freeman, we reasoned that the expert
“offered no opinion as to whether [the defendant] possessed
the requisite criminal intent . . . but instead described a
common practice of those who do have such intent.” 498
F.3d at 906–07.
   Our court’s decision in Diaz relied on these precedents.
See Diaz,
2023 WL 314309
, at *2 (the expert did not
“provide an ‘explicit opinion’ on the defendant’s state of
                        USA V. OLIVAS                       13


mind” (quoting Gomez,
725 F.3d at 1128
)). In affirming that
decision, the Supreme Court gave more guidance on how to
apply Rule 704(b). Diaz involved testimony about whether
drug couriers typically know they are carrying drugs. A
government expert testified that “in most circumstances, the
[courier] knows they are hired . . . to take the drugs from
point A to point B.”
602 U.S. at 530
. The question, then,
was whether the expert functionally opined that the
defendant knowingly transported drugs—an element of the
charged offense.
    The Court began with a straightforward observation:
“Rule 704(b) applies only to opinions about the defendant.”
Id. at 534
. Because the expert testified about the knowledge
of most drug couriers, he did not necessarily describe the
defendant’s mental state.
Id.
at 534–35. His testimony, the
Court explained, left open the possibility that the defendant
was one of the “less-numerous-but-still-existent couriers
who unwittingly transport drugs.”
Id. at 536
. Thus, the
expert “did not state an opinion about whether [the
defendant] herself had a particular mental state” in violation
of Rule 704(b).
Id. at 528
.
    The expert’s testimony left room for the jury to make the
ultimate inference that the defendant knowingly transported
drugs. Some background helps make the point. The
common-law “ultimate issue rule” barred witnesses from
“stat[ing] their conclusions on” an issue that the factfinder
must decide to resolve the case. United States v. Spaulding,
293 U.S. 498, 506
(1935). The logic of the rule was to
“prevent[] witnesses from taking over the jury’s role.” Diaz,
602 U.S. at 532
. “If a witness gave an opinion ‘covering the
very question which was to be settled by the jury,’ some
feared that the jury would be left with ‘no other duty but that
of recording the finding of [the] witnes[s].’”
Id.
(quoting
14                       USA V. OLIVAS


Chi. & Alton R.R. Co. v. Springfield & Nw. R.R. Co.,
67 Ill.
142, 145
(1873)).
    Rule 704 generally abolished the ultimate issue rule. Id.
at 533; see Fed. R. Evid. 704(a). But the exception in
subsection (b) reflects the old concern that expert
witnesses—with their considerable persuasive authority—
should not be permitted to “substitute [their] judgment for
the jury’s” on a dispositive issue. See United States v. Diaz,
876 F.3d 1194, 1197
(9th Cir. 2017) (quotation omitted).
Thus, in Diaz, the Supreme Court emphasized how the
expert testimony still left the ultimate inference—whether
the specific defendant had the requisite mental state—“to the
jury’s judgment.”
602 U.S. at 536
. “As a result, [the
expert’s] testimony did not violate Rule 704(b).”
Id.
It follows that Rule 704(b) prohibits only a “narrow set
of opinions.”
Id. at 534
. One such opinion, Diaz suggests,
is a statement about the mental state of all members of a
given group, combined with an opinion that the defendant is
a member of that group. See
id. at 535
(the dissent
“mistakenly conflates an opinion about most couriers with
one about all couriers”). Put differently, if an expert testifies
that all individuals in a group have a certain state of mind,
and then places the defendant in that group, she may opine
on the defendant’s mental state. Diaz thus underscores the
“narrow scope of testimony prohibited by Rule 704(b).”
Id.
at 537
. An expert opinion “is ‘about’ the ultimate issue of
the defendant’s mental state only if it includes a conclusion
on that precise topic, not merely if it concerns or refers to
that topic.”
Id.
B
   Olivas seizes on Diaz to craft a syllogism. As the
argument goes, Enriquez’s testimony that secretaries know
                        USA V. OLIVAS                        15


“[e]verything” about the gang—combined with his
statement that she was “a secretary”—functionally is an
opinion that Olivas had the knowledge and intent to convict
her of the charged conspiracies. She argues that Enriquez’s
testimony (unlike the expert testimony in Diaz) did not allow
for a “less-numerous-but-still-existent” group of secretaries
that do not have the requisite mental state. See
602 U.S. at
536
. That is fatal, she says, because Diaz interprets Rule
704(b) to prohibit expert testimony that functionally opines
on the defendant’s state of mind.
    We conclude, however, that the district court’s
admission of Enriquez’s testimony was not plainly
erroneous under Diaz. “Error is plain where it is ‘clear and
obvious.’” United States v. Kilbride,
584 F.3d 1240, 1255
(9th Cir. 2009) (quoting United States v. Recio,
371 F.3d
1093, 1100
(9th Cir. 2004)). Said another way, an error is
not plain if it is “subject to reasonable dispute.” Puckett,
556
U.S. at 135
(citing Olano,
507 U.S. at 734
). 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.”
Id.
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. She begins with statements made at the
beginning of Enriquez’s direct examination: “Without the
secretary, there is no crew,” and “[t]here’s no greater power”
than being a secretary because “[t]hat’s the individual who
communicates with the Mexican Mafia member,” “controls
the crew,” and “controls the money.” Then came a lunch
16                      USA V. OLIVAS


break. Once proceedings resumed, the Government asked
Enriquez how much “secretaries know about the activities of
the crew.” He replied, “Everything. Everything goes
through them.” Only much later did Enriquez say that
Olivas was “a secretary.”
     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. See supra, at 5–6. 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.”
                              C
     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.
    First, given the nature of Enriquez’s testimony, it is hard
to say that the jury understood Enriquez as “necessarily”
implying that Olivas knew everything about the gang’s
activities. Morales,
108 F.3d at 1038
; see Diaz,
602 U.S. at
534
. It is not apparent that the jury—in learning that
secretaries know “[e]verything” and then, much later,
hearing that Enriquez believed Olivas was “a secretary”—
                        USA V. OLIVAS                      17


would draw the ultimate inference that Olivas herself knew
everything about the gang’s activities. See Kilbride,
584
F.3d at 1255
. Had Enriquez testified in short order that all
Mexican Mafia secretaries know everything about the gang,
and that Olivas was a secretary, Olivas would have a
stronger argument that she was prejudiced by Enriquez
having “substitute[d] [his] judgment for the jury’s” by
compelling the conclusion that Olivas, as a Mexican Mafia
secretary, knew about the gang’s activities—an element of
the charged conspiracies. See Diaz,
876 F.3d at 1197
. But
here, it is doubtful that the jury ever made that connection.
    Consider too the ambiguities in Enriquez’s testimony.
Enriquez testified that secretaries know everything about the
gang’s activities. But he did not make it explicit whether, in
his opinion, all or some lesser proportion of secretaries know
everything. Immediately after saying that secretaries know
“[e]verything,” Enriquez clarified that otherwise “[i]t would
be akin to being the CFO of a corporation and not knowing
any of its function[s].” That is why “the secretary
necessarily has to be involved in the micromanagement and
minutiae of the crew on a regular basis,” he continued. At
other points when discussing the roles of secretaries,
Enriquez used qualifying language, such as “[c]ommonly,”
“[u]sually,” and “typically.” The jury might have inferred
the same qualification applied to Enriquez’s opinion that
secretaries know “[e]verything.” In short, given the
ambiguities in the testimony, any prejudice to Olivas from
this testimony is speculative at best.
    Second, even putting aside Enriquez’s testimony, the
Government “presented strong independent evidence of
[Olivas’s] guilt.” United States v. Moreland,
622 F.3d 1147,
1162
(9th Cir. 2010) (quotation omitted). Her text messages,
for example, revealed mastery of informal gang code. When
18                      USA V. OLIVAS


other CRO members too obviously discussed illegal activity,
Olivas corrected them. Olivas also knew that she might be
under surveillance. When talking to a CRO member who,
unbeknownst to her, was wearing a wire, Olivas said:
(1) “[M]y phones are tapped.           Just remember that”;
(2) “People talk. People blab . . . that’s how the police find
stuff out”; and (3) “[P]eople start throwing names out there.
You never know when . . . you’re going to be talking to an
informant.”
     The jury also learned that Olivas met with Gavaldon in
prison before transmitting his messages to gang members on
the streets. During a prison visit, Olivas and Gavaldon
discussed “Bryan,” the code name for Armando Holguin, a
CRO shotcaller. Gavaldon expressed his displeasure with
Holguin’s leadership, instructing Olivas to tell Holguin that
“he cannot be harsh” with his crew. Olivas responded, “I’ll
tell him.”
    Olivas also controlled the flow of CRO money on
Gavaldon’s behalf. Gavaldon had the power to “tax,” or
extort money, in the Mexican Mafia’s name. When
Gavaldon learned that a CRO member was triple taxing—
“she was going to three different people” and
“accumulating . . . a couple thousand dollars”—he told
Olivas that he “put a stop to it.” During another prison visit,
Olivas confirmed to Gavaldon that the crew sent her money
for gang-related purposes. She also explained how she sent
money to Gavaldon’s chosen beneficiaries.             This is
compelling evidence of Olivas’s knowledge of and
participation in the charged conspiracies.
   Olivas counters that her interactions with Gavaldon
“were easily explained by the fact he was her brother.” In
her view, Enriquez’s testimony that secretaries know
                        USA V. OLIVAS                      19


“[e]verything” and that Olivas was “a secretary” was so
damning that it “drove a nail—indeed, multiple nails—into
[her] coffin.”      This argument ignores the body of
incriminating evidence—consisting of Olivas’s own calls,
jail visits, and text messages—that has nothing to do with
Enriquez’s opinion that Olivas was Gavaldon’s secretary.
Against that evidence, it defies reality to say that a few
statements in a roughly two-week trial were so prejudicial as
to negate the entire defense theory. This is not one of the
rare times where a forfeited error “seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Rosales-Mireles v. United States,
585 U.S.
129, 135
(2018) (quotation omitted).
                             IV
    Under Diaz, the district court did not plainly err in
admitting Enriquez’s testimony despite Rule 704(b). And
even if it did, the error does not affect Olivas’s substantial
rights. So Olivas is not entitled to relief under Rule 52(b).
   AFFIRMED.