Petition for Writ of Certiorari — Enriqueta Martinez, Petitioner v. United States

No. _____

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════

ENRIQUETA MARTINEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

═════════════════════════

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

═════════════════════════

Zandra Luz Lopez

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101

Telephone: (619) 234-8467

Attorneys for Petitioner

QUESTION PRESENTED

Whether the invited error doctrine applies to situations where a party who

does not induce or provoke an initial error but proposes curative actions to attempt

mitigation of the prejudice caused by the error waives issues regarding the

effectiveness of the curative actions.

prefix

PARTIES, RELATED PROCEEDINGS, AND RULE 29.6 STATEMENT

The parties to the proceeding below were Petitioner Enriqueta Martinez and

the United States. There are no nongovernmental corporate parties requiring a

disclosed statement under Supreme Court Rule 29.6.

All proceedings directly related to the case, per Rule 14.1(b)(iii), are as

follows:

United States v. Enriqueta Martinez, 3:22-cr-01753-GPC (S.D. Cal. 2022)

United States v. Enriqueta Martinez, No. 23-4290, ECF 49, 2025 WL 2427173

(9th Cir. Aug. 22, 2025)

United States v. Enriqueta Martinez, No. 23-4290, ECF No. 54

(9th Cir. Jan. 6, 2026)

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TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ............................................................................................. prefix

PARTIES, RELATED PROCEEDINGS, AND RULE 29.6 STATEMENT ............................... prefix

TABLE OF CONTENTS ........................................................................................................ i

APPENDIX INDEX ............................................................................................................ iii

INTRODUCTION ................................................................................................................ 1

OPINION BELOW .............................................................................................................. 3

JURISDICTION .................................................................................................................. 3

ISSUES PRESENTED FOR REVIEW ..................................................................................... 3

STATEMENT OF THE CASE ................................................................................................ 3

REASONS FOR GRANTING THE PETITION .......................................................................... 8

I.

The Ninth Circuit’s opinion is contrary to the Second, Fifth, Tenth,

Eleventh, and D.C. Circuits’ interpretation of invited error doctrine as

a means to prevent a party from intentionally provoking an error. ................. 8

II.

The Ninth Circuit creates a circuit split by expanding the invited error

doctrine to situations where the party seeks to mitigate an error they

did not create. .................................................................................................... 10

III.

The division among the circuits demands the Court’s attention and this

case is a proper vehicle. .................................................................................... 11

CONCLUSION ................................................................................................................. 13

CERTIFICATE OF COMPLIANCE ....................................................................................... 14

CERTIFICATE OF SERVICE .............................................................................................. 15

i

TABLE OF AUTHORITIES

CASES

PAGE(S)

F.W. Woolworth Co. v. Contemp. Arts,

Inc., 344 U.S. 228 (1952) ............................................................................................ 2

Johnson v. Zerbst,

304 U.S. 458 (1938) .................................................................................................. 10

Munoz v. State Farm Lloyds of Texas,

522 F.3d 568 (5th Cir. 2008) ...................................................................................... 9

Tesone v. Empire Mktg. Strategies,

942 F.3d 979 (10th Cir. 2019) .................................................................................. 10

United States v. Bastian,

770 F.3d 212 (2d Cir. 2014)........................................................................................ 9

United States v. Duldulao,

87 F.4th 1239 (11th Cir. 2023)................................................................................. 10

United States v. Long,

997 F.3d 342 (D.C. Cir. 2021) .................................................................................. 10

United States v. Martinez,

2025 WL 2427173 (9th Cir. Aug. 22, 2025) ............................................................... 8

United States v. Wells,

519 U.S. 482 (1997) ............................................................................................ 1, 2, 8

STATUTES

21 U.S.C. §§ 952 ............................................................................................................. 4

28 U.S.C. § 1254(1) ........................................................................................................ 4

ii

APPENDIX INDEX

APP.

NO.

DOCUMENT

A.

United States v. Enriqueta Martinez, U.S. Court of Appeals for the

Ninth Circuit, Memorandum, filed August 22, 2025

B.

United States v. Enriqueta Martinez, U.S. Court of Appeals for the

Ninth Circuit, Order Denying Petition for Panel Rehearing and

Rehearing En Banc, filed January 6, 2026

iii

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════

ENRIQUETA MARTINEZ,

Petitioner,

- v. UNITED STATES OF AMERICA,

Respondent.

═════════════════════════

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

═════════════════════════

Petitioner Enriqueta Martinez respectfully prays that the Court issue a writ

of certiorari to review the order of the United States Court of Appeals for the Ninth

Circuit entered on August 22, 2025.

INTRODUCTION

The invited error doctrine prevents a party from inducing action by a district

court and later seeking reversal on the ground that the requested action was error.

The doctrine prevents appellate review of an issue when the party complaining of

an error, “himself invited or provoked the district court to commit” the error.

United States v. Wells, 519 U.S. 482, 488 (1997) (cleaned up). The very purpose of

the doctrine is to “control[] the party who wishes to change its position on the way

from the district court to the court of appeals.” Id. (cleaned up). It is meant to

prevent a party from profiting or taking advantage of an error the party, itself,

caused. F.W. Woolworth Co. v. Contemp. Arts, Inc., 344 U.S. 228, 230–31 (1952).

1

Several circuit courts, including the Second, Fifth, Tenth, Eleventh, and the

D.C. Circuits, have made clear that the invited error doctrine is limited to

situations where the party is intentionally or strategically attempts to insert error

that it can later appeal.

The Ninth Circuit takes a different approach. The Ninth Circuit broadens the

traditional application of the invited error doctrine. Here, the district court allowed

the admission of inadmissible prior bad acts at trial and later reversed itself. The

Petitioner requested a mistrial, but when the mistrial was denied, she proposed a

curative instruction that was accepted by the district court and given to the jury. On

appeal, she argued that the admission of the evidence was so prejudicial that no

curative instruction could cure it and the instructions given were, in fact, not

sufficient.

In denying the appeal, the Ninth Circuit expanded the invited error doctrine.

The Circuit now holds that a party, like Petitioner, cannot complain about the

curative instructions being insufficient to cure the prejudice when the party is the

one that drafted the instruction. Thus, in the Ninth Circuit applies invited error to

situations where the party was not the cause of the error but merely proposed

remedies for errors that already occurred. The circuit expands the doctrine to

situations where the party does not induce the district court to do something that it

would not otherwise do. The circuit expands the doctrine even though there is no

gamesmanship or tactical advantage on the part of the party.

2

The Ninth Circuit’s opinion in this case creates a circuit split. The Court

should grant review to resolve this split as to the application of the invited error

doctrine.

OPINION BELOW

The Ninth Circuit Court of Appeals affirmed Petitioner’s conviction in an

unpublished memorandum on August 22, 2025. See Appendix A at 1–2. Petitioner

then petitioned for panel rehearing and rehearing en banc. The Ninth Circuit also

denied Petitioner’s petition for panel rehearing and rehearing en banc on January

6, 2026 (attached here as Appendix B).

JURISDICTION

On August 22, 2025, the Ninth Circuit denied Petitioner’s appeal and

affirmed her conviction. See Appendix A. The Ninth Circuit then denied the petition

for rehearing and or rehearing en banc on January 6, 2026. Appendix B. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

ISSUES PRESENTED FOR REVIEW

Whether the invited error doctrine applies to situations where a party who

does not induce or provoke an initial error but proposes curative actions to attempt

mitigation of the prejudice caused by the error waives issues regarding the

effectiveness of the curative actions.

STATEMENT OF THE CASE

In 2022, Ms. Martinez drove a car across the United States-Mexico border

when customs agents found drugs concealed in different areas of her car. She was

3

arrested and charged in an information with one count of unlawful importation of

methamphetamine and one count of unlawful importation of fentanyl in violation of

21 U.S.C. §§ 952, 960.

Almost a decade prior, in 2013, Ms. Martinez pleaded guilty to a possession of

marijuana misdemeanor. In preparation for trial, the district court stated that it

would allow the government to introduce evidence of the 2013 prior under Federal

Rule 404(b). Despite being concerned with the remoteness of the prior, the district

court stated it would allow the evidence to be introduced because of the

prosecution’s promise that the evidence would show similarities in the manner of

concealment of the drugs to the instant offense.

Because the district court admitted the evidence pre-trial, the jurors heard

explicit and implicit evidence of Ms. Martinez previously smuggling drugs in 2013

throughout trial. First, a Customs and Border Patrol agent testified that she

reviewed Ms. Martinez’s border crossings records. Specifically, records from 2013.

The agent explained to the jury that on one particular day in 2013, Ms. Martinez’s

car was inspected as she was coming across the United States-Mexico border. The

car was inspected because there was a customs alert, meaning the car was

suspected of “possible smuggling of drugs, humans, or medicine.” The agent’s

testimony suggested that nothing was found in the car at that time and the car

entered the United States. But the car was stopped again at an internal Border

Patrol checkpoint, after another customs alert, because of suspicion of smuggling

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drugs. The border crossing records that showed the customs alerts were introduced

and admitted as exhibits at trial.

After the customs agent’s testimony, the defense objected to the admission of

the 2013 prior. Looking at the witness list and exhibits, Ms. Martinez’s counsel

noted that it did not appear that the government would be able to come through

with its pre-trial promise of being able to show similarities in the manner of

concealment of the drugs between the prior and the instant offense. The court

ordered the government not to admit further evidence of the 2013 prior until after

the court had an opportunity to revisit the issue.

Despite this admonition, the prosecutor introduced evidence of the 2013

prior. The government’s agent told the jury that he investigated an almost decadesold event and interviewed a 2013 “associate” of Ms. Martinez. The prosecutor then

directly asked the case agent whether Ms. Martinez admitted to previously

smuggling drugs. The prosecutor asked:

Q:

Agent Bernal, during the defendant’s post-arrest interview, did

the defendant mention a prior smuggling incident where she was

driving a different car loaded with drugs?

A:

Yes.

Immediately recognizing the prosecutor had violated the court’s admonition, the

court stepped in. The court instructed the prosecutor, “[n]ext question. In a different

area.” The court also informed the jury that the “jury is instructed to disregard the

last question.” The court denied the defense’s request to be heard, and the

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prosecutor continued her questions regarding Ms. Martinez’s other post-arrest

statements.

Later, the court revisited the issue. The court indicated that had it known

that the government lacked evidence of similarities in concealment, it would not

have allowed the admission of the 2013 events under Rule 404(b).

The defense requested a mistrial. The defense argued the evidence was

prejudicial because the jury heard that Ms. Martinez allegedly confessed to

previously smuggling a car full of drugs. The defense added that the jury may be

left thinking that she previously smuggled thousands of pounds of

methamphetamine. The defense argued there was so much prejudicial evidence that

was introduced, the error could not be cured. The district court denied the motion

for mistrial.

The district court said it would not give a curative instruction. The district

court reasoned that a curative instruction would put a “spotlight” on otherwise

prejudicial evidence. The trial proceeded with other witnesses.

The next day, the defense reiterated that the proper remedy was a mistrial.

But because of the district court’s denial of the mistrial motion, the defense

prepared a curative limiting instruction that was accepted by the district court and

read to the jury. Specifically, the instruction told the jurors it was striking the

exhibits that referenced the 2013 prior custom alerts. The jurors were told to

disregard those exhibits. The jurors were also instructed to disregard the “question

and answer” given by case agent.

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The instructions did not repeat the content of the “question and answer” from

the case agent’s direct examination. The instruction did not instruct the jury to

disregard the customs agent’s testimony regarding the 2013 customs alerts that

suggested Ms. Martinez was previously suspected of smuggling drugs.

The jury returned a guilty conviction.

On appeal, Ms. Martinez argued that her conviction should be vacated

because the district court errored in failing to declare a mistrial after the

government introduced inadmissible evidence of the 2013 prior drug smuggling

offense. Because of the extent of the evidence admitted at trial, Ms. Martinez

argued that any curative instruction would be insufficient to cure the prejudice and

the instructions given at trial did not cure the prejudice.

In an unpublished memorandum, the Ninth Circuit affirmed the conviction

finding that, although evidence of the prior was prejudicial, it agreed with the

district court that the evidence was “limited” and the district court “immediately

admonished and instructed the jury.” United States v. Martinez, No. 23-4290, 2025

WL 2427173, at *1 (9th Cir. Aug. 22, 2025) (unpublished) (internal quotations and

citation omitted).1 The Ninth Circuit further found that, because the defense

drafted a subsequent curative instruction given to the jury before their

deliberations, under the “invited error doctrine,” the defense waived argument that

the curative instruction was insufficient to cure the error. Id.

1

A copy of the decision is attached in Appendix A.

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REASONS FOR GRANTING THE PETITION

I.

The Ninth Circuit’s opinion is contrary to the Second, Fifth, Tenth,

Eleventh, and D.C. Circuits’ interpretation of invited error doctrine

as a means to prevent a party from intentionally provoking an error.

The invited doctrine precludes an appellate court from reviewing an error

when the complaining party appears to have caused the error. United States v.

Wells, 519 U.S. 482, 488 (1997). The doctrine is meant to “control[] the party who

wishes to change its position on the way from the district court to the court of

appeals. Id.

The Fifth Circuit has explained why the invited error doctrine does not apply

to situations, like Ms. Martinez’s case, where the defendant proposes curative

instructions after inadmissible evidence is introduced at trial. The Fifth Circuit held

that invited error must be limited to situations where the party “invited” or

“provoked” the error below and not “merely [where the party is] attempting to

prevent further prejudicial error.” Munoz v. State Farm Lloyds of Texas, 522 F.3d

568, 573–74 (5th Cir. 2008) (quotations omitted). In that case, State Farm objected

to the introduction of inadmissible evidence and the district court overruled the

objection. Id. After the evidence was admitted, the district court realized that

admitting the evidence was a mistake. Id. State Farm proposed a curative

instruction. Id. The Fifth Circuit rejected the plaintiff’s argument that State Farm

could not now complain about the curative being insufficient because State Farm

drafted it. Id. The Fifth Circuit explained that a claim that State Farm “invited” or

“provoked” in these circumstances would “impermissibly stretch the doctrine of

invited error beyond its traditional scope.” Id. at 574. “State Farm did not abandon,

8

waive, or otherwise sanction the district court’s initial error of admitting”

prejudicial evidence. Id.

Other Circuit Courts of Appeals have also emphasized that the invited error

doctrine is limited to situations where the party is intentionally seeking to create a

tactical advantage. The Second Circuit explained, invited error is meant to prevent

a party from “deliberately provok[ing] a procedural irregularity” and “seeks to avoid

rewarding mistakes stemming from a defendant’s own intelligent, deliberate course

of conduct in pursuing his defense.” United States v. Bastian, 770 F.3d 212, 218–19

(2d Cir. 2014) (internal citation omitted).

The Tenth Circuit observed that in the typical invited error scenario, a party

“induce[s] the district court to do [some]thing it would not otherwise have done,”

and later attempts to challenge the “proposition that [it] ... urged the district court

to adopt.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 993 n.10 (10th Cir.

2019). Thus, the Tenth Circuit has found that it is not invited error when the party

does not “induce the district court to do anything it would not otherwise have done.”

Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 993 n.10 (10th Cir. 2019).

As stated by the D.C. Circuit, “said another way, statements amounting to

invited error are a species of waiver and generally evince an intent by the speaker

to convince the district court to do something that it would not otherwise have

done.” United States v. Long, 997 F.3d 342, 353–54 (D.C. Cir. 2021) (cleaned up).

This is in keeping with this Court’s long-established tenant that a true “waiver” can

9

only be affected by “an intentional relinquishment or abandonment of a known right

or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

And the Eleventh Circuit highlighted that the doctrine is meant to “prevent[]

litigants from sandbagging district courts by ‘introducing error at trial with the

intention of creating grounds for reversal on appeal.”’ United States v. Duldulao, 87

F.4th 1239, 1255 (11th Cir. 2023) (citation omitted). None of these circuits hold that

the doctrine applies to a litigant who merely attempts to mitigate an error that it

did not create.

II.

The Ninth Circuit creates a circuit split by expanding the invited

error doctrine to situations where the party seeks to mitigate an

error they did not create.

The Ninth Circuit’s application of the invited error doctrine, however,

contradicts the Second, Fifth, Tenth, Eleventh and the D.C. Circuit Courts.

According to the Ninth Circuit, invited error applies even where the defendant did

not set in motion the error challenged on appeal. It is sufficient under the Ninth

Circuit rule that a litigant proposes an instruction that is meant to mitigate the

error they did not cause. Thus, under the Ninth Circuit rule, a defendant would be

precluded from arguing on appeal that the curative instructions could not have

cured the prejudice caused by the error if the litigant attempted to mitigate some of

that harm during trial.

This expansion of the invited error doctrine is contrary to both this Court and

other Circuit Court precedent.

10

III.

The division among the circuits demands the Court’s attention and

this case is a proper vehicle.

Resolving this circuit split is particularly important here. The current Ninth

Circuit interpretation of the invited error doctrine places a litigant in a proverbial

cath-22. When the jury hears inadmissible prejudicial evidence through no fault of

the defense, and the district court denies the defense motion for mistrial, the

defense cannot suggest ways of mitigating the harm, without waiving issues

regarding the effectiveness of the curative instruction.

Furthermore, Ms. Martinez’s case is the right vehicle to resolve this circuit

split, as her case squarely presents the issue. Ms. Martinez did not introduce, or

directly set in motion, the error of which she complains, namely the admission of

prior bad act evidence and denial of the motion for mistrial. Nor did she attempt to

sandbag the district court by claiming one thing at trial and another on appeal. In

this case, it was the government who introduced inadmissible evidence. The defense

objected to the introduction of the evidence both before and during trial. And the

defense adamantly argued that the only remedy for that error was a mistrial, but

the district court denied giving her that remedy. The district court itself suggested

that a curative instruction would only further prejudice Ms. Martinez by putting a

“spotlight” on the already introduced prejudicial evidence. Only at this point, in an

effort to mitigate the error of the introduced prejudicial evidence, did the defense

propose a curative instruction that would not further prejudice the defense.

11

Furthermore, Ms. Martinez consistently argued below and on appeal that the

only proper remedy was mistrial and that any instruction to the jury could not cure

the error complained of on appeal.

Yet the Ninth Circuit rule states that, by proposing an instruction in an

attempt to mitigate district court error, Ms. Martinez somehow waived the

argument that any instruction could not cure the harm done. Had Ms. Martinez’s

case been in the Fifth, Tenth, Eleventh, or D.C. Circuits, it would have been likely

found that no curative instruction could have sufficiently cured the error caused by

the admission of the prior bad acts.

If the Court agrees that the Ninth Circuit improperly conducted the invited

error analysis, Ms. Martinez would be eligible for relief. The evidence of a prior

smuggling event was extremely prejudicial and could not have been cured by any

instruction. The Ninth Circuit’s improper application of the invited error doctrine

contributed to its finding that the curative sufficiently cured the prejudice.

Accordingly, Ms. Martinez’s case provides an ideal vehicle to resolve this circuit

split.

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CONCLUSION

For these reasons, the Court should grant the petition for a writ of certiorari.

Date: April 6, 2026

uz Lopez

Federa Defenders of San Diego,

225 Broadway, Suite 900

San Diego, California 92101

Telephone: (619) 234-8467

Attorneys for Petitioner

13