40 F.4th 938
9th Cir.2022Background
- On Dec. 31, 2017 a U.S. Coast Guard helicopter and cutters interdicted a panga near the Galapagos; occupants (three defendants) allegedly threw bundled packages overboard and were detained.
- Defendants were held chained on a sequence of Coast Guard cutters for ~23 days in cramped, cold, and wet conditions before arrival in Long Beach; Coast Guard transferred them to DEA custody and they were flown to San Diego after signing Rule 5 waivers and Miranda waivers in Spanish.
- At trial defendants were convicted of conspiracy to distribute cocaine on board a vessel, possession with intent to distribute on board a vessel, and aiding and abetting; they appealed multiple pretrial and sentencing rulings.
- Pretrial motions included requests to dismiss the indictment for outrageous government conduct and for Rule 5 presentment violations; other issues on appeal included suppression/voluntariness of statements, alleged prosecutorial misconduct, exclusion of duress expert testimony, and minor-role Guideline adjustments at sentencing.
- Ninth Circuit affirmed convictions and two sentences, vacated Chichande’s sentence for incorrect minor-role analysis, and remanded for resentencing; it rejected dismissal for outrageous conduct and for Rule 5 violations on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Outrageous government conduct dismissal | Govt. actions were so shocking (shackling, exposure, deprivation) that indictment must be dismissed | Coast Guard mistreatment was integral to interdiction operations and thus connected to securing the indictment | No dismissal; defendants failed to show the required nexus between conduct and securing indictment; Ninth Circuit declined to extend doctrine here |
| Supervisory-power dismissal | Court should dismiss indictment under supervisory powers to condemn mistreatment in international waters | Matta-Ballesteros limits supervisory dismissal; need more than policy concerns | Denied; district court did not abuse discretion in refusing supervisory dismissal |
| Rule 5 presentment delay dismissal | Transport to CA (not nearest district) and 23-day delay, plus Long Beach→San Diego lag, violated Rule 5 and warrants dismissal | Delay was reasonable given sea transport logistics; waiver and booking procedures were routine; remedy is suppression, not dismissal absent extreme facts | No Rule 5 violation: 23-day transport and subsequent procedural delays were reasonable; dismissal not warranted on these facts |
| Suppression / voluntariness of statements | Statements obtained after prolonged detention and waivers signed in Long Beach were involuntary | At time of statement detainees were no longer subject to the alleged coercive conditions; rights were read in Spanish and waiver was given | Statement voluntary under Due Process; no suppression required |
| Prosecutorial misconduct (closing and sentencing) | Prosecutor vouched and argued inconsistent facts (playbook analogy; arguing different leaders at trial vs sentencing; asserting throwing = knowing possession) | Comments were rhetorical, based on evidence, and clarified immediately | No reversible misconduct; playbook analogy permitted; inconsistency defensible as trial strategy; possession comment was harmless error |
| Exclusion of duress expert (Marinez) | Testimony of a Colombian attorney about local paramilitary practice was admissible as lay/specialized knowledge to corroborate duress | Offer of proof lacked sufficient indicia of reliability, methodology, or basis for his opinions | No abuse of discretion excluding the expert under Daubert/Kumho gatekeeping; district court permissibly found insufficient foundation |
| Minor-role Guideline reductions | Defendants sought downward adjustments as substantially less culpable than average participant | Sentencing court must compare defendant to average culpability of all participants for whom there is sufficient evidence | Clarified standard: include all participants with sufficient evidence and compute a rough average (three-step test); court properly denied reductions for two defendants but vacated Chichande’s sentence because the district court excluded the recruiter (improperly) and must re-do the analysis |
Key Cases Cited
- United States v. Russell, 411 U.S. 423 (1973) (origin of outrageous-government-conduct idea)
- Greene v. United States, 454 F.2d 783 (9th Cir. 1971) (rare Ninth Circuit dismissal for outrageous government involvement)
- United States v. Nickerson, 731 F.3d 1009 (9th Cir. 2013) (no nexus between certain detention conduct and securing indictment)
- United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995) (circumscribes supervisory power to dismiss prosecutions)
- Corley v. United States, 556 U.S. 303 (2009) (presentment requirement prevents secret detention)
- McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1957) (historical basis for prompt presentment and suppression remedy)
- Bayless v. United States, 381 F.2d 67 (9th Cir. 1967) and Jernigan v. United States, 582 F.2d 1211 (9th Cir. 1978) (discuss dismissal as a rarely-invoked remedy for presentment delay)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (gatekeeping factors for expert reliability apply broadly)
- United States v. Rojas-Millan, 234 F.3d 464 (9th Cir. 2000) and United States v. Diaz, 884 F.3d 911 (9th Cir. 2018) (minor-role analysis: compare to average culpability of all participants with sufficient evidence)
- County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (examples of unreasonable presentment delay and recognition of practical transport delays)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (sentencing error arising from incorrect Guidelines range often requires remand)