UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC GONZALEZ, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FERNANDO LUVIANO, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SUSSIE AYALA, Defendant-Appellant.
No. 15-50483, No. 15-50528, No. 15-50542
United States Court of Appeals for the Ninth Circuit
October 10, 2018
D.C. No. 2:13-cr-00574-GHK-1, D.C. No. 2:13-cr-00574-GHK-3, D.C. No. 2:13-cr-00574-GHK-2. Argued and Submitted April 11, 2018, Pasadena, California.
OPINION
Before: John M. Rogers,* Jay S. Bybee, and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
SUMMARY**
Criminal Law
The panel affirmed convictions and sentences for conspiracy to deprive a visitor to the Los Angeles County Men‘s Central Jail of his civil rights (
The panel rejected Ayala‘s and Deputy Fernando Luviano‘s challenge to the sufficiency of the evidence to support their
Rejecting all three defendants’ challenge to the district court‘s denial of their request to dismiss a juror shortly after the trial began, the panel held that the record does not warrant a finding of either implied or actual bias.
The panel held that the government did not commit misconduct during closing argument by inviting the jury to credit as true something that Gonzalez‘s own lawyer asserted was true.
The panel rejected Ayala‘s contention that her sentence is substantively unreasonable.
COUNSEL
Timothy Allen Scott (argued) and Nicolas O. Jimenez, Scott Trial Lawyers APC, San Diego, California, for Defendant-Appellant Eric Gonzalez.
Katherine Kimball Windsor (argued), Law Office of Katherine Kimball Windsor, Pasadena, California, for Defendant-Appellant Fernando Luviano.
Jonathan I. Edelstein (argued) and Alan Ellis, Law Office of Alan Ellis, New York, New York for Defendant-Appellant Sussie Ayala.
Bram M. Alden (argued), Assistant United States Attorney, Criminal Appeals Section; Lawrence S. Middleton, Assistant United States Attorney Chief, Criminal Division; United States Attorney‘s Office, Los Angeles, California; for Plaintiff-Appellee.
WATFORD, Circuit Judge:
A group of law enforcement officers brutally beat Gabriel Carrillo, a visitor to the Los Angeles County Men‘s Central Jail, while he was handcuffed. The defendants are three of the officers who played a role in the beating: Eric Gonzalez, a sergeant with the Los Angeles County Sheriff‘s Department, and two deputies under his supervision, Fernando Luviano and Sussie Ayala. Ayala instigated the beating, Luviano physically participated in it, and Gonzalez summoned additional officers to the scene and oversaw the cover-up afterwards. A jury found the defendants guilty of violating Carrillo‘s civil rights and falsifying reports to conceal their wrongdoing. On appeal, the defendants challenge mainly the sufficiency of the evidence to support their convictions and the district court‘s refusal to dismiss an allegedly biased juror shortly after trial began. We affirm across the board.
I
On the day of the beating, Carrillo and his girlfriend, Griselda Torres, were visiting Carrillo‘s brother at the jail. Gonzalez and Ayala were standing in an employee break room when another deputy, Pantamitr Zunggeemoge, brought Torres into the room to determine whether she had smuggled a cell phone into the facility in violation of jail regulations. After a search confirmed that she had, Torres told the officers that her boyfriend also had a cell phone. Gonzalez ordered Zunggeemoge, who cooperated with the government and testified against the defendants, to get Carrillo from the visitors’ lobby and bring him to the break room.
At that point, Ayala summoned additional officers over her radio. Luviano and at least two other deputies responded to the call and entered the break room. As they surrounded Carrillo, Ayala told them, “You want to know what this homeboy said? He said that if he wasn‘t in handcuffs, he‘d take flight on us,” meaning Carrillo would fight the officers. One officer proposed removing Carrillo‘s handcuffs to “see how tough he is,” while another suggested that they remove Torres from the break room.
After Torres was escorted out, Luviano punched the still-handcuffed Carrillo in the right side of his face. Luviano and Zunggeemoge then knocked Carrillo to the ground. Unable to break his fall, Carrillo landed on his face and stomach. Luviano and Zunggeemoge began punching Carrillo in the head, back, ribs, and thighs as he lay on the floor. Blood from Carrillo‘s facial wounds soon covered the floor.
Sergeant Gonzalez, who had been watching these events unfold, summoned additional officers over his radio using the code “415,” a call indicating that a deputy is involved in a
In all, the beating lasted about 45 seconds. Throughout, Carrillo remained handcuffed and unable to pose any resistance. As a result of the beating, he suffered bone fractures, trauma to the head and face, a broken nose, and multiple lacerations. Carrillo‘s face was so disfigured by the beating that Torres could not recognize him when she saw him a few days later.
After Carrillo was carried out of the break room to receive medical attention, the officers huddled up to concoct a story that would justify their use of force. Sergeant Gonzalez, as the ranking officer, led the effort. He directed Zunggeemoge to prepare the primary incident report and largely dictated its contents. The report truthfully stated that Carrillo had been detained for possessing a cell phone and had been knocked to the floor, punched in the face, and pepper-sprayed. But the report falsely stated that Carrillo had attacked the officers and attempted to escape from their custody. According to the report, only one of Carrillo‘s hands had been handcuffed during the incident, and he had used the handcuff dangling from his hand as a weapon by wildly swinging it at the officers. The officers’ use of force, under this telling, had been necessary to subdue a combative and resistant suspect.
Each of the three defendants prepared their own use-of-force reports repeating the agreed-upon cover story and
Gonzalez also directed Zunggeemoge to prepare a probable cause declaration for use in prosecuting Carrillo. The account in the declaration tracked the false narrative contained in the officers’ reports. Based on the declaration, the district attorney‘s office charged Carrillo with assaulting and resisting an officer and attempting to escape from custody.
Prosecutors dropped the charges against Carrillo after incriminating text messages between Gonzalez and another deputy surfaced, triggering an investigation into the circumstances leading up to the beating. The other deputy, who had arrested Carrillo‘s brother two days before the beating, sent Gonzalez a text message attaching the booking photo of Carrillo‘s brother showing his face cut and bruised. Gonzalez responded by sending the deputy Carrillo‘s booking photo, which showed even more extensive injuries to Carrillo‘s face. Gonzalez joked, “Looks like we did a better job.... Where‘s my beer big homie.”
The federal government charged Gonzalez, Luviano, and Ayala with violating Carrillo‘s civil rights and falsifying reports of the beating. Count One of the indictment charged Gonzalez and Ayala with conspiring to deprive Carrillo of his civil rights, in violation of
After a five-day trial, the jury found the defendants guilty on all counts. The district court denied the defendants’ post-trial motions for judgment of acquittal or, in the alternative, a new trial. The court sentenced Gonzalez to 96 months of imprisonment, Luviano to 84 months, and Ayala to 72 months.
On appeal, the defendants each filed separate briefs advancing an assortment of arguments. Gonzalez and Ayala challenge the sufficiency of the evidence to support their convictions under
II
We begin with Gonzalez‘s and Ayala‘s challenge to the sufficiency of the evidence supporting their convictions under
A
Before addressing the defendants’ sufficiency challenge, we begin by rejecting the flawed premise of their argument. Gonzalez and Ayala assume that whenever one object of a multiple-object conspiracy is not supported by sufficient evidence, a general verdict must be set aside. The Supreme Court foreclosed that very argument in Griffin v. United States, 502 U.S. 46 (1991). There, the Court held that reversal is required only if one of the objects of the conspiracy is legally deficient-for example, because the conduct underlying the object is protected by the Constitution, occurred outside the statute of limitations, or “fails to come within the statutory definition of the crime.” Id. at 59. In that scenario, if the basis for the jury‘s verdict is unclear, reversal is required because we do not expect jurors to be able to determine “whether a particular theory of conviction submitted to them is contrary to law.” Id.; see
This case is controlled by Griffin. Gonzalez and Ayala do not contend that either object of the conspiracy charged in Count One was legally deficient. They do not, for example, assert that the jury instructions improperly defined the elements of the crime. They argue only that the first object, concerning Carrillo‘s right to be free from the use of excessive force, was not supported by sufficient proof. Even if we agreed with them on that point (which we don‘t, for reasons explained below), they would not be entitled to reversal of their convictions on Count One. The evidence was sufficient to prove the second object, as they freely concede. That suffices to sustain the jury‘s general verdict against the challenge Gonzalez and Ayala assert. See id.
Although the Supreme Court‘s 1991 decision in Griffin provides the rule that controls here, Gonzalez and Ayala contend that our court established a contrary rule in United States v. Manarite, 44 F.3d 1407 (9th Cir. 1995). In that case, they say, we reversed a general verdict convicting the defendants of a multiple-object conspiracy where two of the five objects (mail and wire fraud) were not supported by sufficient evidence. Gonzalez and Ayala are wrong. In Manarite, we held that the fraudulent scheme underlying the mail and wire fraud objects “did not constitute mail or wire fraud as a matter of law.” Id. at 1413. To put it in the
In short, we affirm Gonzalez‘s and Ayala‘s conspiracy convictions under
B
We must nonetheless resolve Gonzalez‘s and Ayala‘s sufficiency challenge because their convictions for the substantive offense charged in Count Two are predicated on Pinkerton v. United States, 328 U.S. 640 (1946). Under Pinkerton, a defendant may be found guilty of a criminal offense committed by his co-conspirators if (1) the offense was committed during the course and in furtherance of the conspiracy, (2) the defendant was a member of the conspiracy at the time the offense was committed, and (3) the offense fell within the scope of the unlawful agreement and could be “reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id. at 647–48; see United States v. Gadson, 763 F.3d 1189, 1215 (9th Cir. 2014). Here, the government argued at trial that if Gonzalez and Ayala conspired to deprive Carrillo of his right to be free from the use of excessive force, as charged in the first object of Count
The same general rules governing proof of conspiracies elsewhere in the criminal law apply under
The first element requires proof of an agreement among the conspirators to commit a crime—here, a violation of
A rational jury could infer from this evidence that the officers tacitly agreed to use excessive force against Carrillo. The officers shared a common motive to punish Carrillo. They acted together to achieve that objective by repeatedly punching and kicking him. And they huddled together afterward to come up with an agreed-upon story that would justify their actions, a story each of the officers repeated in the falsified reports they submitted. Taken together, these facts—a common motive, joint action in pursuit of a common objective, and a coordinated cover-up—suffice to support the existence of a conspiracy. See, e.g., United States v. Navarrette-Aguilar, 813 F.3d 785, 794 (9th Cir. 2015);
With respect to the second element, a rational jury could also have found that Gonzalez and Ayala knowingly joined the conspiracy and intended to deprive Carrillo of his right to be free from the use of excessive force. As to Gonzalez, the jury could rely on the fact that, after witnessing the events that led to Carrillo‘s beating, Gonzalez summoned additional officers to the break room even though he knew there was no legitimate law enforcement purpose for doing so. Carrillo was already on the ground in handcuffs being pummeled by multiple officers. Viewed in the light most favorable to the government, Gonzalez‘s summoning of additional officers proved that he shared the other officers’ desire to see Carrillo punished and that he wanted to make sure the objective was achieved. In addition, Gonzalez stated in his report that he directed the officers under his command to use force against Carrillo. Gonzalez contends that the government cannot rely on this statement because the indictment charged Gonzalez in Count Three with having falsified his report. But the jury could reasonably conclude that some of the statements in Gonzalez‘s report were accurate, even if the report falsely recited other facts in an attempt to justify the officers’ actions. Finally, Gonzalez‘s participation in a coordinated cover-up with the officers who inflicted the beating strengthened the inference that he was in on the agreement to use excessive force against Carrillo, rather than merely present at the scene of a crime committed by others.
The evidence also supports the jury‘s finding that Ayala knowingly joined the conspiracy and shared the intent to see Carrillo punished through the use of excessive force. As noted above, a rational jury could conclude that she instigated
III
We turn next to Luviano‘s and Ayala‘s argument that the evidence is insufficient to sustain their convictions under
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
The district court properly instructed the jury that the government bore the burden of proving that: (1) the
Viewed in the light most favorable to the government, the evidence introduced at trial amply supported the defendants’ convictions. Luviano and Ayala filed their own narrative reports that provided a false account of the events leading up to Carrillo‘s beating, and the evidence leaves no doubt that the defendants knew their reports were false when they prepared them. The evidence also established that the defendants prepared their reports with the intent to obstruct a contemplated investigation into whether the force used against Carrillo was reasonable. The whole point of the officers’ efforts to concoct a false cover story was to make it appear as though the force they used was justified, thereby shielding them from the punishment that would likely follow if the truth were revealed. And as to the third element, the defendants stipulated that the “matter” at issue here—an inquiry into whether the officers’ actions violated Carrillo‘s civil rights—falls within the jurisdiction of both the U.S. Department of Justice and the FBI.
First, they argue that
Second, Luviano and Ayala argue that the government failed to prove that they “falsified” their reports. In their view, that term covers only the alteration of existing records or documents, not the wholesale fabrication of new ones. That would be an odd distinction for Congress to draw in a statute designed to punish efforts to obstruct investigations conducted by the federal government. After all, government investigations can be obstructed just as readily by creating false documents as by altering documents that already exist.
We agree with the Second Circuit that Congress did not draw the implausible distinction the defendants have proposed. As the court explained in United States v. Rowland, 826 F.3d 100 (2d Cir. 2016), the word “falsify” has two meanings relevant in this context: (1) to modify or tamper with an object, and (2) to make false representations. Id. at 108. The first definition supports the defendants’ argument, but the second one obviously does not. A defendant can make false representations both by modifying an existing document in a way that obscures the truth, and by creating a fabricated document from whole cloth. We think Congress used the term “falsifies” to encompass both of these acts, a reading that again is supported by the statute‘s legislative history. See S. Rep. No. 107-146, at 12 (proposed statute “would clarify and plug holes in the current criminal laws relating to the destruction or fabrication of evidence“) (emphasis added). We join the Second Circuit in holding that
Finally, Luviano and Ayala argue that the government failed to prove that they acted with the requisite intent. They contend that they lied in their reports solely to support the prosecution of Carrillo on false charges, not to obstruct or impede an investigation into their own wrongdoing. Viewed in the light most favorable to the government, a rational jury could conclude that the evidence showed otherwise. Zunggeemoge testified that the officers falsified their reports to justify their use of force against Carrillo. He explained that the officers needed to lie about what happened because the force they used was excessive and they would get in trouble if the truth were known. This evidence supported the jury‘s finding that the defendants contemplated an investigation into their use of excessive force and falsified their reports to obstruct or impede such an investigation.
In a supplemental letter submitted after the close of briefing, Luviano and Ayala cite United States v. Johnson, 874 F.3d 1078 (9th Cir. 2017), in support of their position. That case is of no help to them. Johnson involved a different obstruction-of-justice statute that requires proof of an intent to hinder, delay, or prevent the communication of information “to a law enforcement officer or judge of the United States.”
IV
All three defendants challenge the district court‘s denial of their request to dismiss a juror for actual or implied bias shortly after the trial began. A district court‘s actual bias determination is reviewed for abuse of discretion because assessing a juror‘s impartiality often turns on an evaluation of the juror‘s demeanor and credibility. United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000). A district court‘s implied bias determination involves a mixed question of law and fact that we review de novo. Fields v. Brown, 503 F.3d 755, 770 (9th Cir. 2007) (en banc).
The issue of alleged juror bias arose in the following circumstances. During opening statements, the government displayed a photograph of Carrillo‘s face taken shortly after the beating. The photograph, which was later admitted into evidence, graphically depicted the injuries Carrillo sustained as a result of the beating. The next day, after the first few witnesses had been called, the district court received a note from one of the jurors. The juror stated that seeing the image of Carrillo‘s disfigured face “sickened and saddened my core being“; the image, she said, “kept replaying in my head throughout the night.” The juror explained that she
After reviewing the letter with counsel, the district court conducted an extensive colloquy with the juror outside the presence of the other jurors. When first asked by the court whether she could consider all of the evidence and render a fair and impartial verdict, the juror responded, “Cognitively, yes. Emotionally, I‘m not sure.” When the court followed up and asked whether she would be able to keep her emotions in check and not allow them to override her ability to reason objectively and impartially, the juror said, “I would like to say yes, I could.” But, she added, “I was not able to sleep last night. I did not eat dinner.” Later in the colloquy, the juror said that she would “listen to all the evidence as it‘s presented.” In response to the court‘s final question, which asked whether the juror believed she could continue to serve by not allowing any single item of evidence “to totally override your reasoning, your analysis, your impartiality,” the juror answered without qualification, “Yes.” On the basis of this last answer and an assessment of the juror‘s demeanor, the district court concluded that the juror could be fair and impartial. The court accordingly denied the defendants’ request to dismiss her.
The defendants contend that the record establishes both actual and implied bias that compelled the juror‘s dismissal. Actual bias exists when, as the term suggests, a juror is in fact biased for or against one of the parties, thereby precluding her
We can quickly dispose of the claim that the record warrants a finding of implied (presumed) bias. Implied bias arises only in a few “extreme situations.” Fields, 503 F.3d at 770. We have held that bias will be presumed “where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Id. (internal quotation marks omitted). Examples of such relationships include having a relative who is a participant in the trial, or having had “some personal experience that is similar or identical to the fact pattern at issue in the trial.” Gonzalez, 214 F.3d at 1112; see Dyer, 151 F.3d at 982; Tinsley v. Borg, 895 F.2d 520, 528 (9th Cir. 1990). Bias will also be presumed when “the juror is aware of highly prejudicial information about the defendant,” which no ordinary person could be expected to put aside in reaching a verdict. Gonzalez, 214 F.3d at 1112. And we have held that bias will be presumed when a juror lies about material facts during voir dire in order to secure a spot on the jury. Dyer, 151 F.3d at 982.
We do not think the record supports a claim of actual bias either. To be sure, the juror in question raised concerns about her ability to remain impartial after seeing the photograph of Carrillo. But the district court conducted a thorough colloquy with the juror to determine whether she could still fairly and impartially evaluate all of the evidence presented. While the juror expressed initial reservations about her ability to do so on an emotional level, she maintained throughout that she could do so “cognitively.” The only question was whether the juror could set aside her emotional reaction to the photograph and allow her cognitive assessment of the evidence to control. After a dialogue with the court, the juror unequivocally stated that she could evaluate all of the
The facts of this case are similar to those in Bashor v. Risley, 730 F.2d 1228 (9th Cir. 1984), where we also rejected a claim of actual bias. There, during voir dire, defense counsel in a murder case asked a juror whether she thought she could be impartial, given that the victim‘s daughter had been a student in the juror‘s dance class. Id. at 1236 n.3. The juror candidly responded that she did not think she could be. Id. When questioned by the prosecutor, however, the same juror said that she could be impartial “on the facts.” Id. at 1236 n.4. When the trial court inquired about this apparent inconsistency, the juror responded that the defense attorney had asked about her emotions, whereas the prosecutor had asked about her ability to evaluate the facts. Id. at 1237. The juror confirmed that she could put her emotions aside, and the trial court ultimately concluded that she could be impartial. After conducting an independent review of the record, we upheld the trial court‘s ruling. We reasoned that the juror had recognized her responsibility to decide the case based on the evidence presented at trial, and we emphasized that when the juror was advised of her duties she assured the judge that “she could be a fair juror and decide the case on the proved facts.” Id.
The same analysis governs here. Like the juror in Bashor, the juror in our case made statements, both in her note to the court and at the outset of the colloquy, that raised legitimate concerns about her ability to render a fair and impartial verdict. But after questioning the juror to explore those
The defendants make one last argument, which is that the district court should have conducted further inquiry into the same juror‘s alleged bias later in the trial. They assert that, during the government‘s case-in-chief, the juror looked away when (1) the photograph depicting Carrillo‘s injuries was again displayed, and (2) the government played a videotape of an interview that sheriff‘s deputies conducted with Carrillo shortly after he was beaten. This behavior, the defendants contend, constituted further evidence of actual bias that the district court was obligated to investigate.
The district court did not abuse its discretion in concluding, without further investigation, that the juror‘s conduct did not amount to evidence of actual bias. The court was not required to make any further inquiry into the juror‘s reasons for looking away from the photograph because that same photo had been the basis of the earlier colloquy. Thus, the court already knew “the exact scope and nature of the bias allegation.” United States v. Smith, 424 F.3d 992, 1011 (9th Cir. 2005) (internal quotation marks omitted). As to the suggestion that the juror may have looked away from the video of Carrillo‘s interview, the court pointed out that the juror could still hear the audio of the interview. And if she did not want to look at Carrillo‘s bloodied and battered image in the video, it was presumably for the same reasons she did not want to view the photograph again. In these
V
Gonzalez and Ayala argue that the district court gave the jury faulty instructions with respect to Count Two, which charged a violation of
The defendants argue that this instruction was deficient because it did not require the jury to find that each defendant‘s acts were the “proximate cause” of Carrillo‘s injuries. The defendants did not request an instruction on proximate cause, so we review only for plain error. United States v. Vincent, 758 F.2d 379, 383 (9th Cir. 1985).
The “bodily injury” element of
The defendants argue that Burrage v. United States, 571 U.S. 204 (2014), requires a contrary result. In that case, the Supreme Court considered the same statutory provision at issue in Houston and held, as we did, that the statute‘s plain language requires a showing of but-for causation. Id. at 214. The Court expressly declined to address whether proximate cause must also be shown. Id. at 210. As a result, nothing in Burrage calls into question the reasoning or result in Houston.
VI
Gonzalez asserts that the government committed misconduct during closing arguments by asking the jury to draw inferences from the evidence that the prosecutor knew to be false. Specifically, the government argued that Gonzalez could be found guilty of violating
Gonzalez is correct that a prosecutor may not ask the jury to draw inferences that the prosecutor “knows to be false, or has very strong reason to doubt.” United States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002). But the prosecutor did not cross that line here. The prosecutor had a good-faith basis for arguing to the jury that Gonzalez directed others to use force because Gonzalez‘s own use-of-force report said that is what he did. As Gonzalez points out, none of the witnesses who testified at trial corroborated that assertion, which certainly undercuts the strength of the inference that can be drawn from the statements in Gonzalez‘s report. Still, notwithstanding the absence of witness corroboration, Gonzalez‘s own lawyer argued that Gonzalez had in fact directed others to use force. Gonzalez‘s lawyer argued that everything Gonzalez said in his report was true, presumably to help win his client‘s acquittal on the offense charged in Count Three. The government was entitled to argue, and the jury was entitled to find, that some aspects of Gonzalez‘s report were true while others were false, based on the totality of the evidence introduced at trial. The government did not commit misconduct by inviting the jury to credit as true something that Gonzalez‘s own lawyer asserted was true.
Finally, Ayala contends that her 72-month sentence is substantively unreasonable. There is no merit to this argument. The court granted Ayala a downward departure from the 87-108 months she faced under the Sentencing Guidelines. Although a below-Guidelines sentence is not immune from challenge, such a sentence will rarely be substantively unreasonable. See United States v. Armstrong, 620 F.3d 1172, 1179 (9th Cir. 2010).
The district court adequately explained why it believed the sentencing factors described in
AFFIRMED.