UNITED STATES of America, Plaintiff-Appellee, v. Hector SOTO-ZUNIGA, Defendant-Appellant.
No. 14-50529
United States Court of Appeals, Ninth Circuit
September 16, 2016
837 F.3d 992
In Horizon Air, we affirmed a finding that an employer violated its
This court has held that superficial attempts at negotiations violate the duty to “exert every reasonable effort.” Id. at 547. Flatly refusing to participate in mediation surely violates this duty as well, as it indicates absolutely no effort, let alone every reasonable effort, to make or maintain an agreement. We therefore remand and direct the District Court to grant summary judgment in favor of the Union on this claim, and to conduct further proceedings to determine the issue of damages and other relief.
CONCLUSION
To summarize: we reverse the District Court‘s grant of summary judgment in favor of Aviation Safeguards,
- We hold that equitable tolling principles apply to the Union‘s unlawful interference and coercion claim against Aviation Safeguards. Accordingly, we remand and direct the District Court to grant the Union‘s cross-motion for summary judgment under RLA
§ 152 , Third and Fourth, and to conduct further proceedings to determine the issue of damages and other relief. - We hold that the District Court has subject matter jurisdiction over the Union‘s status quo claim under RLA
§§ 152 , Seventh;155 ; and156 . We emphasize that this claim does not constitute a representation dispute under RLA§ 152 , Ninth. We remand to the District Court for the limited purpose of determining whether this claim is timely and, if the claim is timely, we direct the District Court to grant the Union‘s cross-motion for summary judgment under RLA§§ 152 , Seventh;155 ; and156 . - We hold that Aviation Safeguards unlawfully refused to mediate. We remand and direct the District Court to grant the Union‘s cross-motion for summary judgment under RLA
§ 152 , First, and to conduct further proceedings to determine the issue of damages and other relief.
Costs are awarded to Plaintiffs-Appellants.
REVERSED and REMANDED.
Paul Allen Barr (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Kyle B. Martin (argued), Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney‘s Office, San Diego, California; for Plaintiff-Appellee.
Before: ALEX KOZINSKI, WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges.
GOULD, Circuit Judge:
Hector Soto-Zuniga appeals his jury conviction for possession with intent to distribute methamphetamine in violation of
At both his first trial and his subsequent re-trial, Soto-Zuniga testified that before being stopped at the checkpoint, he had given a ride to three teenagers he did not know as a favor to his cousin‘s husband, Christian Rios Campos.1 The government stipulated that Rios was a known drug smuggler who recruited juveniles to smuggle drugs into the United States, and Soto-Zuniga‘s primary defense was that the teenagers had planted the drugs in the car without his knowledge. Before the second trial, Soto-Zuniga moved for discovery of the government‘s investigation of Rios‘s drug smuggling operation, which may have identified the three teenagers by name. This, too, was denied. Soto-Zuniga was convicted after the second jury trial and sentenced to six years in prison.
Soto-Zuniga raises several arguments on appeal, and we conclude that two have merit: (1) the district court abused its discretion by denying Soto-Zuniga‘s pretrial motion for discovery relating to the constitutionality of the San Clemente checkpoint, and (2) the district court abused its discretion by denying Soto-Zuniga‘s motion for discovery on Rios‘s drug smuggling operation. We have jurisdiction under
I
On June 29, 2013, at around 3:50 p.m., Soto-Zuniga was stopped in his car at a Border Patrol checkpoint near San Clemente, California. U.S. Border Patrol Agent Ivan Favela questioned Soto-Zuniga, who told Agent Favela that he was coming from Tijuana. Agent Favela testified at trial that Soto-Zuniga appeared nervous and that his hands were shaking. Agent Favela directed Soto-Zuniga to a secondary inspection area. There, two additional agents, Raymond Rabreau and Brian Chang, approached Soto-Zuniga‘s car. Soto-Zuniga presented Agent Chang with a Permanent Resident Card and told Agent Chang that he was traveling to Los Angeles from Tijuana. Agent Chang later reported that he noticed Soto-Zuniga‘s hand and leg shaking during the exchange. Based on this nervous behavior, Agent Chang asked Soto-Zuniga to step out of the car. Agent Chang said that when he asked Soto-Zuniga if he had any contraband in his car, Soto-Zuniga looked down before answering “no.” Agent Chang then asked Soto-Zuniga to open the trunk of his car, and he complied. According to Agent Chang, Soto-Zuniga continued to fidget during their exchange. Agent Rabreau, who approached Soto-Zuniga‘s car from the passenger‘s side, later reported that he smelled marijuana coming from the vehicle, and he observed a “black and mild cigarillo” in the car‘s ashtray, as well as remnants of tobacco. Agent Rabreau reported that, based on his training and experience, he suspected Soto-Zuniga had been smoking marijuana in the car.
Next, a third agent at the secondary checkpoint, Anthony Rodgers, also noticed that Soto-Zuniga was acting nervously and observed that the carotid artery in his neck was “bounding.” Agent Rodgers wrote in his report that Soto-Zuniga admitted to smoking marijuana in the car
Other agents soon approached the secondary inspection area, including Agents Favela and Buck. Agent Buck later reported that he questioned Soto-Zuniga about smoking marijuana, and that Soto-Zuniga denied ever smoking marijuana, but admitted that he had friends that smoked. Agent Buck reported that he then asked Soto-Zuniga if he allowed friends to smoke marijuana in his car, and Soto-Zuniga “became very defensive and became visibly agitated with [his] questioning.” Agent Buck also wrote that when he told Soto-Zuniga that his car would be searched because of the smell of marijuana, Soto-Zuniga “adopted a defeated body posture.”
Agent Rodgers‘s report reflects that, due to Soto-Zuniga‘s alleged admission that he had smoked marijuana in the car and the smell that Agent Rabreau reported, agents decided to search Soto-Zuniga‘s car at about 4:25 p.m., approximately 35 minutes after the initial stop. In searching the car, Agent Favela recovered four bundles wrapped in brown tape from behind the driver‘s seat. The bundles were under a floor mat, which was also covered by a sweater. A field test indicated that the bundles contained methamphetamine, and Soto-Zuniga was arrested. Evidence at trial established that the bundles contained 2.9 kilograms of methamphetamine, with a street value of more than $80,000.
Soto-Zuniga was subsequently interviewed by Agent Kameron Korte, who testified that Soto-Zuniga waived his Miranda rights3 through the Spanish translation of another Border Patrol agent. During that interrogation, Soto-Zuniga told Agent Korte that his cousin‘s husband, Christian Rios Campos, had called that morning and asked Soto-Zuniga to give a ride to three teenagers from Otay Mesa to San Ysidro in San Diego. Soto-Zuniga told Agent Korte that he picked up the teenagers at a McDonald‘s in Otay Mesa and dropped them off at a Shell gas station close to a trolley station in San Ysidro. By the time Agent Korte contacted the McDonald‘s, any video surveillance had been erased. Agent Korte never contacted the Shell station.
Soto-Zuniga was charged with possession of methamphetamine with intent to distribute in violation of
The district court held an evidentiary hearing on the pretrial motions. At the hearing, Agent Rabreau testified that the main purpose of the San Clemente check
In a declaration, Soto-Zuniga claimed that he had not smoked marijuana in five or more years and that he had told Agent Buck that he did not smoke marijuana. Soto-Zuniga also said that he told Agent Buck that none of his friends had smoked marijuana in the car. When called to testify during the evidentiary hearing, Soto-Zuniga testified consistently with his declaration on these points.
The district court denied Soto-Zuniga‘s motions to suppress and to compel discovery. The district court reasoned that “the sequence of events [in the agents’ reports] seems to be very consistent,” and that there was probable cause based on several factors, including the smell of the marijuana, Soto-Zuniga‘s reported nervousness, the air fresheners, the loose tobacco, the cigarillo wrappers, and Agent Rodgers‘s report that Soto-Zuniga admitted to him that he had smoked marijuana in the car. The court noted that the physical evidence was “where it nails the coffin here.” The court further noted that, while Agent Rabreau was the only agent who claimed to smell the marijuana, other agents reported that Agent Rabreau had told them he smelled marijuana at the scene so it was not “a post-arrest revelation.” The court also found that the testimony of Agent Rabreau, “with regard to his role, his experience in terms of his own arrests, and then his happening to be the conduit through which reports pass, all support [the conclusion that] the primary purpose of this checkpoint is immigration.” The case was set for trial.
Before the start of the first trial and after jury selection, an investigator for the defense obtained a social security number for Marisol Diaz, Soto-Zuniga‘s cousin and the wife of Christian Rios Campos. The investigator then got an arrest warrant for Diaz, which included a declaration from a Homeland Security Investigations agent that the government had arrested three teenagers on suspicion of trafficking drugs at the command of Rios. Defense counsel argued that this new information corroborated Soto-Zuniga‘s account of events. The district court postponed the trial until the next day. Defense counsel next filed an emergency motion for a continuance to permit time to investigate the new information. The government stipulated to the information contained in the declaration, including that Rios had recruited teenagers to traffic drugs. The district court concluded that the stipulation was sufficient to meet the defense‘s purpose, and denied the motion for a continuance as well as defense counsel‘s subsequent motion for a mistrial.
During the trial, Soto-Zuniga sought specific jury instructions that differed from
Before the second trial, Soto-Zuniga requested discovery on the government‘s investigation of Christian Rios Campos and Marisol Diaz, including any relevant information regarding the three teenagers who were arrested for trafficking at Rios‘s command. The district court reviewed the written materials related to the government‘s investigation and denied the motion, stating that any investigation of Rios was “collateral. It is irrelevant. It is predominately inadmissible in the forms in which you have it, and that‘s the ruling.” The district court also said that discovery would extend the litigation and would present “a 403 problem4 in spades.” At the end of the second trial, the jury was instructed with the same jury instructions used in the first trial—after the district court noted that Soto-Zuniga had preserved all prior objections. The jury returned a guilty verdict.
At sentencing, Soto-Zuniga argued that the statutory maximum sentence should only be one year because the jury had not found that he had possessed a particular quantity of methamphetamine. The district court rejected this claim and sentenced Soto-Zuniga to 72 months (six years).
II
We review discovery rulings for abuse of discretion. United States v. Amlani, 111 F.3d 705, 712 (9th Cir. 1997). To reverse Soto-Zuniga‘s conviction, we must find that the district court abused its discretion in denying his discovery motions, and that the error resulted in prejudice to his substantial rights, i.e., that there is “a likelihood that the verdict would have been different had the government complied with the discovery rules.” United States v. de Cruz, 82 F.3d 856, 866 (9th Cir. 1996) (citation and internal quotation marks omitted).
A
We first address Soto-Zuniga‘s argument that the district court abused its discretion in denying his motion for discovery of the San Clemente checkpoint search and arrest statistics. He contends that this evidence is necessary to determine whether the checkpoint itself is constitutional. We agree that the district court abused its discretion in denying discovery that could have revealed an unconstitutional seizure and led to the suppression of the evidence that illicit drugs were found in Soto-Zuniga‘s car.
The
The constitutionality of immigration checkpoints, including the San Clemente checkpoint, was raised again nearly two decades later in a separate case before our Court. See United States v. Soyland, 3 F.3d 1312 (9th Cir. 1993). In Soyland, the defendants’ car was searched at an immigration checkpoint‘s secondary inspection, revealing drug paraphernalia and small amounts of marijuana. Id. at 1314. A subsequent search of the defendants revealed 220 grams of methamphetamine and a scale. Id. The majority declined to address “the issue of whether checkpoint officers routinely overstep their authority by conducting pretextual narcotics searches,” noting that it had not been argued at trial nor on appeal. Id. Judge Kozinski dissented, voicing his concern that the San Clemente checkpoint and others like it may be violating restrictions on suspicionless searches. Id. at 1315-20 (Kozinski, J., dissenting). While recognizing that Martinez-Fuerte approved internal checkpoints for immigration control purposes, Judge Kozinski warned that “[t]here‘s reason to suspect the agents working these checkpoints are looking for more than illegal aliens. If this is true, it subverts the rationale of Martinez-Fuerte and turns a legitimate administrative search into a massive violation of the
Although Judge Kozinski‘s dissent primarily discussed the searches that occur at the San Clemente checkpoint, his concerns are also relevant to the initial seizure—the vehicle stop—at issue in Soto-Zuniga‘s case. In City of Indianapolis v. Edmond, the Supreme Court clarified that the constitutionality of suspicionless immigration checkpoints is governed by the same standard as administrative searches. 531 U.S. at 37-38. The Court also reaffirmed that checkpoints with the principal purpose of thwarting criminal activity do not comport with the
It is on this issue that the requested discovery is pertinent. Although the district court held an evidentiary hearing to determine the checkpoint‘s primary purpose, the only evidence before it was the testimony of Agent Rabreau and several news articles, including a few detailing the interdiction of narcotics. Based on Agent Rabreau‘s testimony that he had reviewed seizure and arrest records and that upwards of 90 percent of arrests were immigration related, the district court concluded that the checkpoint was constitutional and denied further discovery of the search and arrest statistics.
It may well be that Agent Rabreau‘s experience and knowledge is consistent with the general practices at the San Clemente checkpoint. But there is a risk that the district court made its decision as if in part blindfolded, considering only one version of the evidence. Our system of criminal justice relies on an adversary system to help ensure that justice will be done.
Under
Notwithstanding that language and guidance of the Supreme Court, we do not read Armstrong to preclude
The government argues that Cedano-Arellano and Thomas created a narrow “dog discovery” exception to the general rule that Armstrong establishes. The government points to our precedent in United States v. Chon, in which the defendants were convicted of theft and conversion of government property after they broke into a Naval facility and stole military equipment. 210 F.3d 990, 992 (9th Cir. 2000). The defendants were caught and charged as a result of a Naval Criminal Investigative Service (NCIS) investigation. Before the trial, the defendants moved for discovery on any activities of the NCIS and its predecessor agency that targeted civilians to bolster their claim that NCIS violated the Posse Comitatus Act (PCA), which prohibits the military from participating in civilian law enforcement. Id. at 992-93. We affirmed the district court‘s determination that this request was a “far reaching fishing expedition.” Id. at 992. We held that the discovery request was “considerably broader” than any materials that could be relevant to the specific charges against the defendants and that the requested discovery did “not serve the purpose of fortifying the appellants’ ‘shield claims.‘” Id. at 995.
Chon turns on the determination that the requested discovery had no relevance to whether NCIS violated the PCA in the defendants’ particular case. The materials sought were expansive, “implicating widespread and repeated violations of the PCA in the State of Hawaii and within the United States.” Id. at 994. By contrast, Soto-Zuniga sought discovery of whether he and his automobile were unconstitutionally seized at the San Clemente checkpoint—an issue that is central to his defense, because it could spell the difference
It has been forty years since the San Clemente checkpoint was upheld by the Supreme Court as constitutional. Martinez-Fuerte, 428 U.S. at 556-64. Whether the primary purpose of the checkpoint has evolved from controlling immigration to detecting “ordinary criminal wrongdoing,” see Edmond, 531 U.S. at 42, is a question that is subject to discovery under Rule 16. Soto-Zuniga “should not have to rely solely on the government‘s word that further discovery is unnecessary.” United States v. Budziak, 697 F.3d 1105, 1113 (9th Cir. 2012). We conclude that the district court abused its discretion by denying this discovery. See de Cruz, 82 F.3d at 866. However, because we do not have access to the records in question, we cannot determine the likelihood of whether Soto-Zuniga‘s case would have had a different outcome had he been permitted discovery. Id. The proper course under such circumstances is to remand for discovery and an evidentiary determination. See Thomas, 726 F.3d at 1097-98; see also United States v. Doe, 705 F.3d 1134, 1151-52 (9th Cir. 2013). We reverse the district court‘s denial of the discovery motion relating to the checkpoint‘s arrest statistics, and remand for the district court to assess the constitutionality of the San Clemente checkpoint in further proceedings. See id. at 1097-98.
B
We also reverse the district court‘s denial of discovery of the government‘s investigation into Rios‘s drug smuggling operation. The district court reviewed the documents submitted by the government, including reports from the agents involved in investigating drug smuggling operations, and concluded that the documents were irrelevant, that the documents were inadmissible because they relied on hearsay, and that permitting the requested discovery would unnecessarily extend the litigation in violation of Fed. R. Evid. 403. After reviewing the documents,7 we disagree both with the district court‘s characterization of the documents and with its application of the law.
Soto-Zuniga has maintained that, before being stopped at the checkpoint, he gave a ride to three teenagers at the request of Rios. It is possible that discovery about the investigation might help Soto-Zuniga identify the teenagers to whom he gave a ride. Those persons might then provide direct testimony on whether one or more of them placed drugs in the car of Soto-Zuniga without his knowledge. And even if not, they might potentially give information that would lead to the identification of the persons in question. Soto-Zuniga‘s defense was that the contraband must have been left in his car by the teenagers to whom he gave a ride because he knew nothing about it. If the persons are identified, they could potentially either support or contradict Soto-Zuniga‘s claim that he did not knowingly or intentionally possess the drugs, an element of the crime of
Under
It has been said that it “behooves the government to interpret the disclosure requirement broadly and turn over whatever evidence it has pertaining to the case.” Hernandez-Meza, 720 F.3d at 768. While we recognize the sensitive nature of the documents in question, Soto-Zuniga‘s interest in government materials that are pertinent to his defense takes precedence. We reverse the district court‘s denial of Soto-Zuniga‘s discovery motion, vacate the conviction, and remand with instructions to grant the motion. See Thomas, 726 F.3d at 1098. We also instruct the district court to consider the government‘s request for a window of time before production to determine whether to continue to pursue this case, and to consider the government‘s request for protective measures that would maintain the security of the information in the documents while allowing Soto-Zuniga to adequately prepare a defense.
III
Soto-Zuniga raises three additional arguments that we briefly address here.
First, he argues that the district court erred in denying his motion to suppress the drug evidence on the basis that the Border Patrol agents lacked probable cause to search the car. We review a denial of a suppression motion de novo and the underlying factual findings for clear error. See United States v. Rodgers, 656 F.3d 1023, 1026 (9th Cir. 2011).
Agents at a checkpoint may not search a private vehicle without a
Here, the district court made factual findings that supported probable cause, including (1) that Agent Rabreau smelled marijuana, (2) that the car had multiple air fresheners, (3) that there was a cigarillo wrapper and loose tobacco in the car, (4) that Soto-Zuniga appeared to be agitated and nervous, and (5) that Soto-Zuniga admitted to smoking marijuana in the car. Even if neither marijuana nor marijuana paraphernalia, were ever recovered from the car, we conclude that the district court‘s factual findings were not clearly erroneous. Agent Rabreau testified that he smelled marijuana and that there was physical evidence in the car that made him suspect drug use or trafficking. Deference must be given to the district court‘s determination that Agent Rabreau was credible. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-76 (1985). Also, other agents reported that Soto-Zuniga was agitated and at least one agent reported that Soto-Zuniga had admitted to smoking marijuana in the car. We give due regard to the views of the agents, their recitals of what Soto-Zuniga said and did, and items seen in the car, once these have been confirmed by the district court‘s factual findings.
Viewing the entire record, we determine that the district court‘s account of the evidence is plausible, see id. at 573-74, and that the totality of the circumstances supported probable cause for the search. Cf. United States v. Koshnevis, 979 F.2d 691, 695 (9th Cir. 1992) (holding that a driver‘s nervousness, inconsistent statements, and lies about not possessing a trunk key or a weapon constituted probable cause to search the car‘s trunk at an immigration checkpoint). We stress that under the Supreme Court‘s standard in Illinois v. Gates, it is not certainty that is required to support a search or seizure but only probable cause, based on the total circumstances, that a search may yield evidence of crime. 462 U.S. at 238. We affirm the district court‘s denial of Soto-Zuniga‘s suppression motion, insofar as it is based on a claimed lack of probable cause for the search of the car.
Soto-Zuniga also argues that the district court erred by instructing the jury, using the Ninth Circuit pattern jury instructions, that “[a] reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation.” Soto-Zuniga contends that this phrasing interferes with the presumption of innocence. But this argument is foreclosed by our precedent. See United States v. Alcantara-Castillo, 788 F.3d 1186, 1198 n.4 (9th Cir. 2015) (noting that we have “repeatedly upheld the use of the Ninth Circuit model jury instruction on reasonable doubt” and collecting cases).
Soto-Zuniga also argues that knowledge of drug type and quantity is an element of possession with intent to distribute in violation of
IV
In conclusion, we vacate Soto-Zuniga‘s conviction and remand this case for a new trial. If the government decides to proceed, the district court shall permit discovery of the San Clemente checkpoint statistics. The court should also hold an evidentiary hearing on the checkpoint‘s constitutionality, and, as appropriate, publish an order or opinion on its findings. If the checkpoint is found to be constitutional, then the district court shall also permit discovery of the investigation into Rios‘s drug smuggling operation.
The conviction is VACATED, the discovery rulings REVERSED, and the case REMANDED, with instructions.