*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT U NITED S TATES OF A MERICA , No. 19-50268 Plaintiff-Appellee ,
D.C. No. v. 3:18-cr-00421- BEN-2 S EGUNDO M ARCIAL D OMINGUEZ - C AICEDO ,
Defendant-Appellant. U NITED S TATES OF A MERICA , No. 19-50271 Plaintiff-Appellee ,
D.C. No. v. 3:18-cr-00421- BEN-3 V ICTOR G ASPAR C HICHANDE ,
Defendant-Appellant. U NITED S TATES OF A MERICA , No. 19-50274
Plaintiff-Appellee ,
D.C. No. v. 3:18-cr-00421- BEN-1 A NDRIAN A NDRES C ORTEZ -
Q UINONEZ , AKA Andrian Andres Quinonez-Cortez, OPINION
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Argued and Submitted July 29, 2021 *2 Pasadena, California Filed July 18, 2022 Before: MILAN D. SMITH, JR. and KENNETH K. LEE,
Circuit Judges, and EDUARDO C. ROBRENO, [*] District Judge.
Opinion by Judge Milan D. Smith, Jr.
[*] The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
SUMMARY [**]
Criminal Law
The panel affirmed Adrian Andres Cortez-Quinonez’s, Segundo Marcial Domingez-Caicedo’s, and Victor Gaspar Chichande’s convictions for conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting; affirmed Dominguez-Caicedo’s and Cortez-Quinonez’s sentences; vacated Chichande’s sentence; and remanded for Chichande’s resentencing.
Coast Guard officers boarded a suspicious panga boat carrying the defendants near the Galapagos Islands after the boat ignored warnings to stop. Officers then detained the defendants, and the Coast Guard transferred them to a series *3 of Coast Guard cutters, eventually transferring them to DEA custody in Long Beach, where a DEA agent had each defendant sign a Rule 5 waiver that allowed them to be transferred to San Diego instead of going before a magistrate judge in Long Beach.
The defendants moved to dismiss the indictment for
outrageous government conduct based on their treatment
aboard the Coast Guard cutters. In order to secure dismissal
of an indictment due to outrageous government conduct, a
defendant must show a nexus between the conduct and either
securing the indictment or procuring the conviction. The
defendants claimed
that
the nexus between
the
Government’s conduct and securing the indictment is
[**]
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
satisfied because if the Coast Guard had chosen to treat the
defendants and other detainees humanely, they couldn’t have
conducted their Pacific operations. The panel wrote that this
is not the type of nexus this court generally considers
sufficient to establish outrageous government conduct
requiring dismissal of an indictment, noting that nearly all
police actions are broadly connected to securing indictments.
The panel wrote that the Ninth Circuit appears to have
assumed without deciding that outrageous government
conduct
could
apply to conditions of confinement, so long as
there is a nexus between the conduct and securing the
indictment or conviction. Because there is no nexus here,
the panel did not revisit that conclusion. The defendants
argued that even if outrageous government conduct does not
require dismissal of the indictment, the district court should
have used its supervisory powers to provide the same
remedy, asserting that the government should tread lightly in
international waters, and the court should not condone
mistreatment of foreigners with no connection to the United
States. The panel wrote that pursuant to
United States v.
Matta-Ballesteros
,
The defendants also sought to dismiss the indictment for violation of Fed. R. Crim. P. 5, which requires that the Government bring defendants before a magistrate judge without unnecessary delay. The panel held that a court has the power to dismiss an indictment for egregious violations *4 of Rule 5, and that the proper inquiry is whether transportation to the United States as a whole was unnecessarily delayed, rather than whether there was some other district in the United States in which the defendant could have been brought before a magistrate judge more quickly. The panel held that the district court did not clearly err in its determination that 23 days was not an unreasonable delay, given that the Coast Guard needed to transport the defendants from near the Galapagos Islands to San Diego. The panel therefore concluded that the Coast Guard’s decision to take the defendants to California, rather than Florida, did not violate Rule 5. The panel also held that the district court did not clearly err in finding that the delays between arrival in Long Beach and presentment before a magistrate judge in San Diego were reasonable. Because the panel held that the Government did not violate Rule 5, it did not need to examine whether the defendants voluntarily signed their Rule 5 waivers, or whether the facts of this case present a Rule 5 violation that warrants dismissal of the indictment.
Cortez-Quinonez argued that even if there was no Rule 5 violation, his statement still should have been suppressed because it was involuntary. The panel held that the district court did not err by finding that the statement was voluntary under the Due Process Clause, where, at the time he gave his statement, Cortez-Quinonez was no longer experiencing the coercive government misconduct he alleged is the treatment he received on the Coast Guard cutter.
The panel next addressed the defendants’ prosecutorial misconduct claims. The panel held that the prosecutor’s use of a “drug trafficker’s playbook” analogy during closing argument did not constitute prosecutorial misconduct because the prosecutor’s references to a “playbook” were not meant to imply that there was an actual playbook in evidence; instead, the prosecutor used the analogy to explain why the defendants did what they did. Rejecting the contention that the prosecutor committed misconduct by *5 6 U NITED S TATES V . D OMINGUEZ -C AICEDO arguing in closing that Dominguez-Caicedo was in charge but arguing at sentencing that Cortez-Quinonez was the leader, the panel wrote that the prosecutor did not argue facts that he knew were untrue, and that it was not inconsistent for him to point out all of these facts about Dominguez-Caicedo and Cortez-Quinonez both in closing argument and at sentencing. For the same reasons, the panel rejected Cortez- Quinonez’s argument that the prosecutor’s alleged misconduct resulted in depriving him of a minor role reduction, violating his right to due process. The panel held that the prosecutor’s statement that “throwing cocaine overboard on a vessel is knowing possession of cocaine” was harmless error in the context of the entire trial.
In order to corroborate his duress defense, Dominguez- Caicedo attempted to call as an expert witness an attorney who grew up near where Dominguez-Caicedo lived in Colombia, and who would have testified that he is aware that armed criminal paramilitary groups in the area kidnap, intimidate, and use violence to further their criminal enterprises. Dominguez-Caicedo contended that, in excluding the testimony, the district court’s focus on the Daubert factors of reliable principles and methods was misplaced, where the subject of the testimony was to be his knowledge and experience, rather than his scientific analyses. The panel held that, given the extremely broad latitude the Supreme Court has said district courts have in conducting this inquiry, the district court did not abuse its discretion by looking at these particular factors and finding the proposed witness’s testimony wanting.
All three defendants challenged the district court’s denial of their requests for minor role reductions at sentencing. The panel clarified how district courts should conduct the minor role analysis. To be eligible for either a “minimal” role adjustment, which comes with a guidelines reduction of at least four levels, U.S.S.G. § 3B1.2(a), cmt. 4, or a “minor’ role adjustment, which provides a reduction of at least two levels, id. at cmt 5, the defendant must be substantially less culpable than the average participant in the criminal activity. The relevant comparison is to the other participants in the defendant’s crime, not to typical defendants who commit similar crimes. To determine whether a defendant is substantially less culpable than the average participant in the *6 offense, a district court must (1) identify all of the individuals for whom there is sufficient evidence of their existence and participation in the overall scheme; (2) calculate a rough average level of culpability for these individuals, taking into consideration the five factors in comment 3(C) to the Mitigating Role Guideline; and (3) compare the defendant’s culpability to that average. The panel agreed with Chichande that the district court’s exclusion of his recruiter from the analysis was erroneous because the proper comparison is the average of all of the individuals who participated in Chichande’s offense, including those that the district court believed were leaders or organizers or who were otherwise highly culpable. Because the district court misunderstood the appropriate legal standard, the panel vacated Chichande’s sentence and remanded for the district court to conduct the minor role analysis applying the correct legal standard. The panel concluded that the Government did not meet its burden of establishing that any error was harmless.
The panel held that the district court did not abuse its discretion in denying Cortez-Quinonez a minor role adjustment. The panel wrote that the fact that illicit drugs are often traceable to larger drug trafficking organizations does not mean that district courts must compare the conduct of each defendant convicted of a drug crime to that of every hypothetical member of a drug trafficking organization; the relevant comparators are the actual participants in the defendant’s crime, and the district court is not required to compare the defendant’s culpability with that of the unidentified person.
The panel held that the district court likewise did not err in denying Dominguez-Caicedo a minor role reduction. The panel wrote that the district court did not determine that the “guys with guns” and the “man who commandeered Mr. Dominguez” were “likely participants,” and therefore did not err by excluding them from the comparison. Because Dominguez-Caicedo did not properly object to the Presentence Report at all, the district court was not required to address his argument raised for the first time in his sentencing memorandum—and never mentioned during the sentencing hearing—that there was sufficient evidence that the individuals identified were involved in the crime.
COUNSEL
Robert H. Rexrode III, Law Offices of Robert Rexrode, San Diego, California, for Defendant-Appellant Segundo Marcial Dominguez-Caicedo.
Michael Marks (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant Andrian Andres Cortez-Quinonez.
Mark F. Adams, Law Offices of Mark F. Adams, San Diego, California, for Defendant-Appellant Victor Gaspar Chichande.
D. Benjamin Holley (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.
10 U NITED S TATES V . D OMINGUEZ -C AICEDO
OPINION
M. SMITH, Circuit Judge:
The defendants in these three consolidated cases— Adrian Andres Cortez-Quinonez, Segundo Marcial Dominguez-Caicedo, and Victor Gaspar Chichande—were convicted of conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting. In this appeal, they challenge the district court’s denial of their pre-trial motions to dismiss the indictment. Defendants also argue that the prosecutor committed misconduct in his closing argument. Individually, Dominguez-Caicedo contends that the district court improperly excluded expert testimony that supported his duress defense. Cortez-Quinonez individually appeals the district court’s decision not to suppress his post-arrest statements. He also argues that the prosecutor committed misconduct by arguing at his sentencing that Cortez- Quinonez was the ringleader, after arguing at trial that Dominguez-Caicedo was in charge. Finally, all three defendants argue that the district court erred by not granting them minor role reductions at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the defendants’ convictions and Dominguez-Caicedo’s and Cortez-Quinonez’s sentences. We vacate Chichande’s sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND On December 31, 2017, the Coast Guard cutter Stratton spotted a suspicious vessel—a 30- to 40-foot “panga” boat— carrying the three defendants near the Galapagos Islands. The Coast Guard observed the vessel and determined that it had no indicia of nationality. From a Coast Guard helicopter, Officer Charles Arena activated the helicopter’s *9 blue law-enforcement lights and broadcast a message to the boat via maritime radio in English and Spanish, informing the vessel that the United States Coast Guard was ordering them to halt. When the panga did not stop, Arena ordered the “precision marksman” onboard the helicopter to fire warning shots into the water in front of the panga, some of which contained an orange tracer that makes the shots more visible. After discharging the warning shots, Arena observed “the occupants onboard start to throw items overboard,” including “packages that were tied together.” The Coast Guard later determined that the packages were attached to a “GPS buoy” that was also thrown overboard. When the panga still did not stop, the marksman fired two more warning shots into the water aft of the panga’s engine, apparently to signal that those on board should move away from the engine, and then shot out the engine. Dominguez- Caicedo testified that by the time he saw the helicopter, it was shooting at the panga. He did not know that it was a U.S. Coast Guard helicopter. Cortez-Quinonez stated that he thought the shots from the helicopter were going to kill them.
Three officers from the Coast Guard then boarded the panga. Dominguez-Caicedo told the officers who boarded the panga that they had been out fishing. Cortez-Quinonez identified himself as the “master” of the vessel through an interpreter, to one of the Coast Guard officers. Cortez- Quinonez gave the officers his Ecuadorian identification card. The other two defendants said that they did not have any identification with them. The Coast Guard then detained the three defendants and transferred them to the Stratton. Several days later, on January 2, 2018, they were transferred to the Northland, another Coast Guard vessel, where they were detained until January 3.
On board the Stratton, according to Officer Welzant of the Coast Guard, the standard protocol dictates that each detainee is given an initial medical screening by the medical corpsman—essentially a nurse. They are not told where they are headed, they do not get an opportunity to contact their families, and they do not know how long they will be on board. Detainees are chained to a cable that runs the length of the deck inside the helicopter hangar (emptied of helicopters). Each detainee is chained to the cable using an eighteen-inch ankle shackle. The detainees remain chained at all times of the day and night, except for trips to the bathroom and approximately one hour per day of exercise time, during which the detainees are permitted to walk freely *10 on the deck. Detainees can shower periodically. Cortez- Quinonez testified that he was forced to shower with the other two defendants while officers laughed at their “private parts and how [they] were naked,” though it was not clear on which cutter this allegedly occurred. Welzant stated that there were no group showers on the Stratton. Welzant testified that detainees are escorted to use the restroom upon request, unless the crew is launching a helicopter or a small boat, which would take approximately ten minutes. However, the Stratton’s detainee logbook showed that the three defendants were rarely taken to the restroom between 6:30 p.m. and 7:00 a.m. the next morning. When the three defendants in this case were detained, there were thirty- seven total detainees on board the Stratton.
Welzant testified that Defendants were provided with mats approximately half an inch thick on which to sleep. The Coast Guard confiscated the clothes that the defendants were wearing and gave them disposable Tyvek painters’ coveralls to wear instead. These coveralls often ripped and exposed detainees. Each person also routinely receives a blanket. Detainees are fed three meals per day, primarily consisting of rice and beans, supplemented with fruit approximately every other day. A jug of water is accessible to detainees at all times. Welzant stated that the detainees are also provided with dominoes, cards, and Spanish- language Bibles. Officer Jordan Groff testified to the conditions aboard the Northland, which were substantially similar to those on board the Stratton, except that the detainees ate eggs, potatoes, toast, enchiladas, spaghetti, and chicken, rather than rice and beans.
On January 3, 2018, the defendants were transferred to another Coast Guard cutter, the Mohawk. The defendants were transferred to the Mohawk—which was heading for Florida—because the Coast Guard suspected that the Department of Justice would prosecute the case in Florida. On the Mohawk, the detainees were kept on the top deck, exposed to the elements. According to Coast Guard officer Kristopher Meyer, the crew erects a tent on that deck while detainees are on-board to provide some shelter from the elements. The Mohawk crew does not provide any sleeping mats, though they do give each detainee a blanket and a towel.
While the defendants were on the Mohawk, there were numerous rain squalls, which caused the deck to become wet. When it rained during the night, the detainees would either have to stand up or try to sleep while laying on the wet *11 deck. On the Mohawk, detainees were served rice and beans for every meal. The defendants testified that the rice and beans were very undercooked, and that these meals resulted in them suffering gastrointestinal distress. The Mohawk’s detainee log shows that Gaspar Chichande refused five meals in a row, and that Cortez-Quinonez and Dominguez- Caicedo refused three meals in a row. Cortez-Quinonez testified that he was denied medical care on board the Mohawk, despite complaining of pain.
The defendants were aboard the Mohawk for five days. On January 8, 2018, they were transferred back to the Stratton—which was heading to California—because the Department of Justice had designated the Southern District of California as the prosecuting district. If the defendants had remained on the Mohawk, they would have arrived in Florida on January 17, 2018. However, the Coast Guard determined that there was no aircraft available to fly the defendants from Florida to California to prosecute them in the designated district.
On January 16, 2018, the defendants were transferred from the Stratton to their final cutter, the Active. The conditions of confinement on the Active were similar to those on the Stratton, except that the area where the defendants were shackled was protected from the elements only by a canvas tarp, and the sleeping mats provided were an inch-and-a-half thick. In addition, the temperature dropped as low as 50 degrees during the time the defendants were onboard the Active. Dominguez-Caicedo testified that he was extremely cold on the Active.
Dominguez-Caicedo and Cortez-Quinonez testified that the shackles and living conditions onboard the cutters caused them significant physical pain. A psychologist, Dr. Julia Kuck, testified as an expert witness at the defendants’ motion to dismiss hearing. Dr. Kuck had interviewed Gaspar Chichande and diagnosed him with post-traumatic stress disorder (PTSD) with dissociative symptoms and panic attacks. This diagnosis was based on antecedent traumatic events such as childhood neglect, abandonment, and trauma. Dr. Kuck testified that the “primary triggering event” for Gaspar Chichande’s PTSD was the Coast Guard
U NITED S TATES V . D OMINGUEZ -C AICEDO 15 helicopter firing its gun at the panga. She also referred to the treatment aboard the Coast Guard cutters as psychological torture due to “unrelenting cold,” “wet conditions on deck,” “feral treatment of individuals,” and “induced desperation.”
The Coast Guard had intended to land the Active in San Diego, but due to bad weather, it was prevented from doing so. Instead, the Active landed in Long Beach on January 22, 2018, where DEA Agent Brandon Pullen met the ship and took custody of the defendants. Pullen testified that none of the three defendants appeared to be ill or under the influence of drugs or alcohol. Pullen had each defendant sign a Rule 5 waiver that allowed them to be transferred to San Diego instead of going before a magistrate judge in Long Beach. The waivers also advised Defendants that they were entitled to remain silent and to have an attorney appointed to represent them.
Pullen then advised each defendant of his Miranda rights in Spanish through another DEA agent, who served as an interpreter. Each defendant signed a Miranda waiver. After signing the waiver, Cortez-Quinonez made incriminating statements that suggested he knew that he was transporting drugs. At a pre-trial hearing, Cortez-Quinonez testified that at the time he signed the Miranda form, he did not understand that a lawyer could be appointed for him free of charge; the form does not specify that the appointed attorney would be free of charge. The statements were nonetheless introduced at trial. The jury convicted the defendants on all charges.
STANDARDS OF REVIEW
We review de novo the district court’s decision on the
motion to dismiss for outrageous government conduct, and
we review for abuse of discretion the district court’s decision
not to use its supervisory powers to dismiss the indictment.
United States v. Restrepo
,
In reviewing alleged prosecutorial misconduct to which
a defendant objected at trial, we review under the harmless
error standard.
United States v. Alcantara-Castillo
, 788 F.3d
1186, 1190 (9th Cir. 2015). Under the harmless error
standard, we must view “the challenged conduct in the entire
context of the trial, and reverse only if it appears more
probable than not that prosecutorial misconduct materially
affected the fairness of the trial.”
Id.
(citation and internal
quotation marks omitted). If the defendant does not
contemporaneously object, we
review
the alleged
misconduct for plain error.
Id.
Under plain error, “[w]e may
reverse if (1) there was error; (2) it was plain; (3) it affected
the defendant’s substantial rights; and (4) viewed in the
context of the entire trial, the impropriety seriously affected
the fairness, integrity, or public reputation of judicial
proceedings.”
Id.
at 1190–91 (citation and internal quotation
marks omitted). Furthermore, where a defendant alleges
multiple instances of misconduct, we must consider the
combined prejudicial effect of the misconduct.
Berger v.
United States
,
ANALYSIS A Prior to trial, the defendants moved to dismiss the indictment for outrageous government conduct based on their treatment aboard the Coast Guard cutters. They also sought to dismiss the indictment for violation of Federal Rule of Criminal Procedure 5, which requires that the Government bring defendants before a magistrate judge without unnecessary delay.
“The argument that an indictment must be dismissed
because of outrageous government conduct is derived from
a comment by the Supreme Court in
United States v. Russell
,
411 U.S. 423 (1973),” in which the Court distinguished a
claim of outrageous government conduct from a claim of
entrapment.
Restrepo
,
“In order to show outrageous government conduct,
defendants must show conduct that violates due process in
such a way that it is ‘so grossly shocking and so outrageous
as to violate the universal sense of justice.’”
United States
v. Stinson
, 647 F.3d 1196, 1209 (9th Cir. 2011) (quoting
Restrepo
, 930 F.2d at 712). A claim of outrageous
government conduct is “a claim that government conduct
in
securing an indictment
was so shocking to due process
values that the indictment must be dismissed.”
United States
v. Nickerson
,
Defendants claim that the nexus between the Government’s conduct and securing the indictment is satisfied because “if the Coast Guard had chosen to treat Appellants and other detainees humanely, they simply couldn’t have conducted their Pacific operations.” Specifically,
[o]ne officer testified that feeding rice and beans [to the detainees] was the only affordable way for the Coast Guard to accomplish its mission. Another testified that the excessive restraint of defendants resulted from too few watchmen and too many detainees. Coast Guard testified that it couldn’t get detainees to shore because its helicopters were old and didn’t have long range. They claimed they couldn’t wait for diplomatic clearance to get people off the cutters because it would upset the ability to patrol the ocean.
This is not the type of nexus that we generally consider
sufficient to establish outrageous government conduct
requiring dismissal of an indictment. For example, in
Nickerson
, the defendant argued that her indictment should
have been dismissed based on “outrageous government
conduct of videotaping her while she was using the toilet in
a holding cell at the police station.”
We have dismissed an indictment due to outrageous
government conduct in a published opinion only once, in
Greene v. United States
,
Indeed, the development of the outrageous government conduct concept suggests that it does not even apply to conditions of pre-trial detention. For that reason, the Eleventh Circuit has rejected claims similar to those Defendants raise here. See United States v. Jayyousi , 657 F.3d 1085, 1112 (11th Cir. 2011) (holding that the outrageous government conduct doctrine “does not apply” to *16 20 U NITED S TATES V . D OMINGUEZ -C AICEDO alleged mistreatment between arrest and indictment). Unlike the Eleventh Circuit, our circuit appears to have assumed without deciding that outrageous government conduct could apply to conditions of confinement, so long as there is a nexus between the conduct and securing the indictment or conviction. E.g. , Nickerson , 731 F.3d at 1015. Because there is no nexus here, it is unnecessary to revisit that conclusion.
Separate from the outrageous government conduct claim, federal courts also “have inherent supervisory powers to order dismissal of prosecutions” for three reasons: (1) to remedy “the violation of a recognized statutory or constitutional right”; (2) to ensure “that a conviction rests on appropriate considerations validly before a jury”; and (3) “to deter future illegal conduct.” United States v. Matta- Ballesteros , 71 F.3d 754, 763 (9th Cir. 1995) (citation omitted). Defendants argue that even if outrageous government conduct does not require dismissal of the indictment, the district court should have used its supervisory powers to provide the same remedy. Their reasoning rests on the assertion that the “government should tread lightly in international waters, and the court should not condone mistreatment of foreigners with no connection to the United States.” Pursuant to Matta-Ballesteros , that is not a sufficient reason to hold that the district court abused its discretion by not dismissing the indictment. Therefore, we affirm the district court’s denial of Defendants’ motions to dismiss for outrageous government conduct.
B
Defendants’ joint Rule 5 claim requires us to determine (1) whether dismissal of an indictment is a remedy available for violation of Rule 5; and (2) if so, whether Defendants have shown that they are entitled to this remedy. We hold 21 that a court has the power to dismiss an indictment for egregious violations of Rule 5, but that the Government did not violate Rule 5 in this case.
“A person making an arrest outside the United States
must take the defendant without unnecessary delay before a
magistrate judge[.]” Fed. R. Crim. P. 5(a)(1)(B). This is
*17
termed the “‘presentment’ requirement,” and it is meant “to
prevent secret detention” and “inform a suspect of the
charges against him[.]”
Corley v. United States
, 556 U.S.
303, 306 (2009). The predecessor to Rule 5(a) was
McNabb
v. United States
,
In
Bayless v. United States
,
The Second and Eighth Circuits have outright rejected
dismissal of the indictment as a remedy for violation of Rule
5, with holdings that appear to foreclose dismissal even in
egregious circumstances.
United States v. Peeples
, 962 F.3d
677, 687–88 (2d Cir. 2020);
United States v. Cooke
,
Defendants argue that the Government violated Rule 5(a) by (1) having Defendants travel to California instead of Florida; and (2) having Defendants sign Rule 5 waivers that then allowed the Government to interrogate them before presentment, which took place the day after they arrived in the United States.
“Whether or not undue delay occurred . . . must be
determined upon the individual facts of each case.”
Gray v.
United States
,
i
First, Defendants contend that the district court engaged *19 in the wrong inquiry when examining their transportation to 24 U NITED S TATES V . D OMINGUEZ -C AICEDO California. Instead of asking whether the Government transported Defendants to the prosecuting district without unnecessary delay, Defendants claim that the district court should have asked whether the Government transported Defendants to a magistrate judge without unnecessary delay. [1] It is undisputed that Defendants could have arrived in Florida five days earlier than they arrived in California. The issue is whether delay caused by the choice to transport Defendants directly to the prosecuting district (California, in this case) is an “unnecessary” delay for Rule 5 purposes. The district court implicitly held that it was not, and we agree.
Until now, we have not addressed whether a delay in arraignment caused by the Government’s choice to send a defendant interdicted on the high seas directly to the prosecuting district (rather than the closest magistrate judge) is “unnecessary delay.” In the Fourth Amendment unreasonable seizure context, the Supreme Court has stated that “[e]xamples of unreasonable delay [in presentment] are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.” Cnty. of Riverside v. McLaughlin , 500 U.S. 44, 56 (1991). In McLaughlin , the Court specifically cited the “often unavoidable delays in transporting arrested persons from one facility to another” as a “practical realit[y]” that would not qualify as unreasonable. Id. at 57.
[1] Defendants’ joint brief incorrectly states that Rule 5(a) requires transportation to “the nearest available magistrate.” This was the language in an outdated version of Rule 5. The current language does not require that Defendants be transported to the nearest magistrate, only that they are transported to one without unnecessary delay.
Other courts that have addressed delays in presentment
of defendants arrested on the high seas have uniformly held
that such delays are reasonable.
See, e.g.
,
United States v.
Savchenko
,
Importantly, none of these cases compare the time it took the Government to bring the defendants to the prosecuting district to the time it would have taken to bring the defendants to the closest district. The Eleventh Circuit addressed this distinction, writing that “the MDLEA does not prohibit the government from taking offenders to Florida rather than California” because “[a] person violating the MDLEA may be tried in any district, if the offense was begun or committed upon the high seas.” United States v. Cabezas-Montano , 949 F.3d 567, 591 (11th Cir. 2020) (citation and internal quotation marks omitted). Therefore, the Eleventh Circuit said, “the issue here is not where the defendant was taken, but why it took the government 49 days to present the defendant arrested outside the United States before a magistrate judge in the United States for a probable cause hearing.” Id. The court then applied the Eleventh Circuit’s test for determining whether a particular delay was unnecessary. Id . at 591–92. Like the Eleventh Circuit, we hold that the proper inquiry is whether transportation to the United States as a whole was unnecessarily delayed, rather than whether there was some other district in the United States in which the defendant could have been brought before a magistrate judge more quickly.
The district court did not clearly err in its determination that twenty-three days was not an unnecessary delay, given that the Coast Guard needed to transport Defendants from near the Galapagos Islands to San Diego. In fact, Defendants do not contend that twenty-three days was an unreasonable amount of time to reach California. We therefore conclude *21 that the Coast Guard’s decision to take Defendants to California, rather than Florida, did not violate Rule 5.
ii
There was a second period of delay between Defendants arriving in Long Beach and their presentment in San Diego. Defendants argue that this period of delay also violated Rule 5. Although they signed Rule 5 waivers in Long Beach, Defendants say that this was involuntary. Defendants also contend that the waiver only excused the Government from presenting them to a magistrate judge in Long Beach; it did not allow delay of presentment once Defendants arrived in San Diego.
Defendants arrived in Long Beach on January 22 at approximately 11:30 a.m., and cleared customs at 11:50 a.m. Agent Pullen took Defendants to the San Diego DEA office, arriving about 3:00 p.m. (with a stop for food at In-N-Out). That morning or the day before, Pullen had made an appointment for the 5:30 p.m. booking window for the defendants at the prison in San Diego. After Mirand izing Defendants, Pullen conducted brief interviews with each (ten to twenty minutes), and then took them to the prison for booking. They went before a magistrate judge the next morning, January 23.
We have never addressed whether the standard procedures for booking arrestees in the Southern District of California violate Rule 5. However, numerous district courts have concluded that they do not. In United States v. Lauina , 2016 WL 1573195, at *1 (S.D. Cal. Apr. 18, 2016), the district court found “it necessary to revisit the current presentment procedures” because “certain detainees are still not presented on either the day of their arrest or the day following their arrest.” The court explained, “In this district, rather than transporting detainees directly to a Magistrate Judge, arresting agents take detainees to the Metropolitan Correctional Center (“MCC”) for initial processing.” Id. This is because “the MCC provides the necessary function of organizing detainees prior to their initial appearance.” Id. The court wrote that “bringing detainees directly to the Court would likely be disorganized, cause unsafe conditions, and be an inefficient use of the Court’s time.” Id. At the time of Lauina , “[t]he MCC maintain[ed] three booking windows each day at approximately 9:00 a.m., 12:30 p.m., and 5:00 p.m.” Id. at *2.
Following
Lauina
, in
United States v. Portocarrero-
*22
Angulo
,
Defendants arrived in Long Beach around 11:50 a.m., so the 5:30 p.m. booking window was the earliest available. Although Cortez-Quinonez states that the Magistrate Judge was arraigning defendants until “at least 5 p.m.,” that does not support the contention that Defendants could have been arraigned after their tuberculosis screening at 5:30 p.m. Furthermore, there is no evidence that Pullen purposely delayed the booking and presentment to interrogate the defendants. Under these circumstances, the district court’s finding that the delays in presentment were reasonable was not clearly erroneous. Because we hold that the Government did not violate Rule 5, we need not examine whether Defendants voluntarily signed their Rule 5 waivers, or whether the facts of this case present a Rule 5 violation that warrants dismissal of the indictment.
C
Cortez-Quinonez also argues that in the event we find that there was no Rule 5 violation, his statement still should have been suppressed because it was involuntary.
Upon arrival at the DEA office in San Diego, Cortez- Quinonez and the Spanish-language interpreter had the following exchange in Spanish, which has been translated into English. Per the court translator, “Non-standard spelling, word choice and grammar in English reflect the manner of the Spanish spoken, and have been underlined. Ambiguous utterances have been rendered with different
U NITED S TATES V . D OMINGUEZ -C AICEDO 29 possibilities (or inferred meaning) [2] in brackets.” Additionally, words the agent spoke in English are italicized.
Agent: Okay . Before doing it any questions, you have to understand your rights. You have… right to… remeintz silent. Anything that you say can be useds against you. Before of a kert. Before doing it any questions, you have the right to consult an attorney. You have the right to have an attorney present during the… inter-egation. In the event of not being able to pay for the services of a attorney, and if you so wish, an [would/were to] be… appointed… before doing it any questions. Have you understood [his/her/its/your] rights?
Cortez-Quinonez: Yes.
Agent: Okay. Are you availab-, wel-, willing to answer somes questions, or do you want an attorney?
Cortez-Quinonez: Yes, I am willing to… to the questions, because… now, being here— you do understand me?—one, one’s family members—you understand me?—things, how they are in [one’s] country… when one suffers from hardship… [2] We have reproduced the translation of the transcript exactly as it appears in the record. The translation appears to be a literal word-for- word substitution of English for Spanish.
Agent: Yes, but, are you sure, or, or… do you want an attorney?
Cortez-Quinonez: [Okay…/What?] There, *24 there isn’t, there isn’t any money to pay an… Agent: That’s fine. The, uh, here, in this country, they give you an… attorney. You don’t have to pay.
[pause] Agent: So, so, do you want to talk, or [does he/does she/do you] want to wait? Until speaking with your attorney. Cortez-Quinonez: But, the attorney, [until when/for how long]? This morning?
Agent: Yes, but… [that’s that/nothing can be done]. You can’t… leave. You do understand me?
[pause]
Agent: So , do you want to wai’ for, for… an attorney? Cortez-Quinonez: No, well, my buddy doesn’t have [enough] for… an attorney neither, just the… the questions —you do understand me?
Agent: Okay, so , you want to talk?
[pause]
Agent: Okay. so put yours… initials here, at each point. And then, “have you… uh, understood [his/her/its/their/your] rights?” put “yes.” And then “are you are willid to asnwer somes questions”, “yes.” Okay? So, initials, at each point… Cortez-Quinonez: [UI] the, of my first name, or—
Agent: —Mm-hmm— Cortez-Quinonez: —of my last name?
Agent: Yes. Your, uh, first name. *25 Cortez-Quinonez: My first name. Like that, like it is here, written down?
Agent: Yes. Mm-hmm.
. . . .
Agent: And then, here, uh… that “yes,” you have understood.
[pause]
Agent: And then, here, that “yes,” you want to talk.
[pause]
Agent: Initials, at each point.
Cortez-Quinonez: Just of my name?— Agent: —Yes.
[pause]
Agent: Okay, and the [Ø] goes; put your signature, here.
[pause]
Agent: Thank you. Cortez-Quinonez then gave an incriminating statement that was used against him at trial.
Pursuant to the Due Process Clause, a statement is voluntary only if it is “the product of a rational intellect and a free will.” Blackburn v. Alabama , 361 U.S. 199, 208 (1960). “[T]he characteristics of the accused and the details of the interrogation” are relevant considerations. United States v. Kelley , 953 F.2d 562, 564–65 (9th Cir. 1992). However, introduction of a statement at trial that was given without “coercive government misconduct” does not violate the Due Process Clause. Colorado v. Connelly , 479 U.S. 157, 163 (1986). It appears that the only coercive government misconduct Cortez-Quinonez has alleged is his treatment on board the Coast Guard cutter. However, at the *26 time Cortez-Quinonez gave his statement, he was no longer experiencing this treatment. Cortez-Quinonez was advised of his rights, indicated he understood them, asked a clarifying question about his right to counsel, and then gave an inculpatory statement. The district court did not err by 33 finding that the statement was voluntary under the Due Process Clause.
D
We turn next to Defendants’ prosecutorial misconduct claims. In closing argument, the prosecutor stated, “when the coast guard showed up, [Defendants] had to pull from the drug trafficker’s playbook. Play number one. You saw it on the video. Don’t move. They might not spot you.” After defense counsel objected, and the court overruled the objection, the prosecutor clarified, “I’m not talking about a playbook somewhere. I’m talking about what they did and what the facts in evidence show. Okay? Just so we’re clear.” The prosecutor went on to discuss “Plan B. Act normal. Nothing to see here,” “Plan C, speed away,” and “Plan D,” which “was throw the drugs overboard.” After Plan D, “there’s more in the playbook,” because “Plan E” is to “deceive.” Finally, “Plan F” was “[t]hings that they have said” at trial—namely, that they were forced to transport the narcotics. The prosecutor returned to the playbook analogy several times.
Defense counsel objected to the prosecutor’s use of the
playbook analogy, so we review under the harmless error
standard. First, we must determine whether the reference to
a playbook was error.
Alcantara-Castillo
,
The prosecutor’s reference to the playbook analogy is
distinct from statements of facts not in evidence that this
*27
34
U NITED S TATES V . D OMINGUEZ -C AICEDO court has held to be misconduct requiring reversal.
See, e.g.
,
United States v. Toomey
,
In this case, the prosecutor’s references to a “playbook” clearly were not meant to imply that there was an actual playbook in evidence that listed Plans A–F. [3] Instead, the prosecutor was using the playbook analogy to provide a framework to consider Defendants’ different actions during the Coast Guard’s interdiction.
Defendants also argue that the prosecutor’s use of the playbook analogy constituted improper vouching and implied extra-record knowledge not available to the jury. The transcript of the prosecutor’s closing argument simply does not bear this out. As stated above, the playbook analogy was used to explain why the defendants did what they did, creating an overarching narrative for the video showing the interdiction. The prosecutor’s argument was based on the facts in evidence. We hold that this argument did not constitute prosecutorial misconduct, and so we do not address whether the referenced misconduct was harmless error.
[3]
This contrasts with the case Defendants cite,
United States v.
McGill
,
Defendants also contend that the prosecutor committed misconduct by arguing in closing that Dominguez-Caicedo was in charge but arguing at sentencing that Cortez- Quinonez was the leader.
In closing, the prosecutor said: *28 Here is [Gaspar Chichande’s] testimony from this trial. “In fact, you indicated Mr. Cortez was the captain, he was in charge, didn’t you?” And he said, “Well, because he had a device with him, and that’s why I said he was the captain.” “But he had a device, and he would tell you to drive such and such route?” “Yes, sir.” “And in fact, you specifically called him the captain?” “Yes, sir.” “Because he was in charge?” And he says, “I think so.” Right? He thinks he’s in charge because he’s manning the engines, but you know from watching the video that Mr. Dominguez is the one calling the shots. You see it. He’s this one that turns around and gives the order.
The prosecutor also stated “Mr. Dominguez [is] the man giving the order for the boat to take off[.]” In other words, Gaspar Chichande testified that he believed Cortez- Quinonez was the captain of the boat, but the video of the interdiction showed that Dominguez-Caicedo gave the order for the boat to take off.
At Cortez-Quinonez’s sentencing, the district court began by giving counsel his tentative on the sentence— 240 months. Cortez-Quinonez’s attorney “strongly urge[d]” the court to “come off [its] tentative” based on the argument that Cortez-Quinonez was more similar to Gaspar Chichande (who got 180 months) in terms of relative culpability than he was to Dominguez-Caicedo (who got 216 months). The court stated, “I haven’t disregarded your arguments yet, but so far, it kind of has struck me that it’s Mr. Cortez that really was the one that was most culpable and most in charge.” The prosecutor then argued:
In terms of the suggestion that [Cortez- Quinonez] wasn’t in charge, our trial strategy is not what is necessarily 100 percent what actually is—who’s in charge, right?
The fact that we may highlight a particular person in closing argument is a trial strategy in light of how the trial played out and the evidence, but what we do know—so I wouldn’t take too much from that.
But what we do know is that Mr. Gaspar *29 Chichande testified, and he said that it was Mr. Cortez who had the GPS communication device. . . . Mr. Cortez says in his post-arrest statement that, in fact, [the bosses] were telling him—giving instructions, that sort of stuff [through the device].
He’s also the one who instructs Mr. Gaspar Chichande to activate the GPS device. That’s testimony that’s uncontroverted in the trial. . . . When the coast guard comes onboard, who is it that says he’s the captain? It’s Mr. Cortez. 37
In context, it is clear that the prosecutor did not argue facts in closing that he knew were untrue. The trial evidence showed both that Dominguez-Caicedo gave the order for the boat to take off, attempting to outrun the Coast Guard, and that Cortez-Quinonez was driving the boat, communicating with the bosses back in South America, and gave the order for Gaspar Chichande to activate the GPS buoy before throwing the narcotics overboard. It was not inconsistent for the prosecutor to point out all of these facts, both in closing argument and at sentencing. We hold that this alleged misconduct also does not constitute error.
3
Cortez-Quinonez argues that the prosecutor’s alleged misconduct resulted in depriving him of a minor role reduction, violating his right to due process. However, for the same reasons that the prosecutorial misconduct claim fails, Cortez-Quinonez’s due process claim also fails—the prosecutor highlighted different facts that were not inconsistent with each other at different stages of the proceeding.
In closing argument, the prosecutor said, “Ladies and gentlemen, throwing cocaine overboard on a vessel is knowing possession of cocaine. All right? Just watch this [video] clip. That’s the element in a heartbeat.” Defense counsel objected, and the district court overruled the objection. The prosecutor then immediately clarified:
The evidence shows that what they’re doing is knowing possession of the cocaine. They know that it’s there, they have control of it, *30 and they’re throwing it overboard, and you 38 U NITED S TATES V . D OMINGUEZ -C AICEDO
infer from their actions that they know it’s cocaine or some other drug . . . and clearly when the coast guard comes, they don’t throw the fuel barrels and all that overboard. They’re throwing the cocaine overboard. Defendants argue that although “the prosecutor softened the categorical nature of this incorrect statement of the law,” “that softening came too late,” resulting in the jury being “most likely left with the incorrect view of the law that simply possessing something that turned out to be cocaine is sufficient to prove knowing possession under the law.”
The jury was instructed that “an act is done knowingly if the defendant is aware of the act and does not act through ignorance, mistake, or accident. . . . You may consider evidence of the defendant’s words, acts, or omissions along with all the other evidence in deciding whether the defendant acted knowingly.” Although it is true that throwing wrapped bales overboard without knowing that there is cocaine inside is not in itself enough to establish knowing possession, the prosecutor immediately clarified that he meant the jury could infer knowledge of the contents of the packages based on their throwing them overboard. This error was harmless in the context of the entire trial.
E
Dominguez-Caicedo attempted to call an expert witness, Diego Alexander Marinez, an attorney in Colombia. Mr. Marinez grew up approximately 40 miles from the area where Dominguez-Caicedo lived (Barbacoas). He travels to Barbacoas at least once per month for work. According to the offer of proof submitted to the district court, Mr. Marinez was prepared to testify that he is familiar with armed criminal paramilitary groups in that area. He also would *31 have testified that he “is aware” that these groups kidnap, intimidate, and use violence to further their criminal enterprises, including drug trafficking. Mr. Marinez also stated that he “is aware” that these groups dress in military garb and carry assault rifles in broad daylight in the area.
Mr. Marinez’s testimony would have been offered to corroborate Dominguez-Caicedo’s duress defense. At trial, Dominguez-Caicedo testified that five paramilitary members carrying machine guns kidnapped him and forced him to transport narcotics. However, the district court excluded Mr. Marinez’s expert testimony on the grounds that it was not “based on sufficient facts or data which is the product of reliable principles and methods” and that the witness had not “applied the principles and methods reliably to the facts in the case.” The district court continued:
I can’t find what principles and methods the supposed expert would use. I don’t even know what he’s an expert in. There’s no indicia that any other experts would accept the principles or the opinions or conclusions that this so-called expert would proffer. I don’t know what his educational background is on the subject. I don’t know of any publications or other certifications or professional memberships that he belongs to that would allow him to express an opinion on any of the things that he has proffered. I don’t know what materials he may have received or reviewed. I don’t know his prior experience as an expert in the area. I don’t know what records he may have reviewed, what procedures, and what methodology did he use once in arriving at this so-called
opinion, what examinations, what research, what testing, what surveys, or what verifications were used. I don’t know what, if anything, he did to, for example, try to disprove any hypothetical or ultimate conclusion that he has reached. I don’t know, in fact, looking at this, any of this, whether he really has any knowledge whatsoever of any of the things that [he] has testified or proposes to testify to.
In all, the district court found “absolutely no indicia whatsoever of reliability,” and that the testimony would not *32 be helpful.
Dominguez-Caicedo contends that the district court’s focus on the Daubert factors of reliable principles and methods was misplaced. Instead, Dominguez-Caicedo argues that the district court’s focus should have been on the “knowledge and experience” of the expert, since the subject of the expert’s testimony was to be his knowledge and experience, rather than his scientific analyses.
In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), the Supreme Court listed several relevant factors for assessing the reliability of scientific expert testimony under Federal Rule of Evidence 702. Among these were whether the expert’s theory or technique has been tested; whether it “has been subjected to peer review and publication”; the “error rate” of “a particular scientific technique”; and the general acceptance of a theory or technique within the scientific community. 509 U.S. at 593–94. Then, in Kumho Tire , the Supreme Court discussed how to apply Daubert to expert testimony that was not scientific in nature:
We conclude that Daubert ’s general holding—setting forth the trial judge’s general “gatekeeping” obligation—applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge. We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated in Daubert , the test of reliability is “flexible,” and Daubert ’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.
Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141–42 (1999) (internal citations omitted).
Although some of the factors the district court listed are not obviously relevant to Mr. Marinez, some are. For example, Mr. Marinez’s offer of proof omits how *33 Mr. Marinez “is aware” of the activities of FARC. As the district court stated, then, there is no indicia that other experts on FARC would agree with Mr. Marinez’s opinion that FARC uses “intimidation and violence in the town of Barabaoas [sic] and its surrounding area to further their criminal enterprises” and that “these armed groups do little to hide their existence in the town of Barbacoas.” It was also unclear “what, if anything,” Mr. Marinez did to try to disprove his opinion that these individuals are part of FARC. 42
In short, the offer of proof fell short of showing the basis for Mr. Marinez’s expert opinion that Dominguez-Caicedo’s testimony about FARC kidnapping him was plausible.
Dominguez-Caicedo is correct in that the factors the
district court listed apply more directly to testimony of a
scientific nature, which Mr. Marinez’s was not. However,
given the extremely broad latitude the Supreme Court has
said district courts have in conducting this inquiry, we hold
the district court did not abuse its discretion by looking at
these particular factors and finding Mr. Marinez’s testimony
wanting.
See Kumho Tire
,
F
All three defendants challenge the district court’s denial
of their requests for minor role reductions at sentencing.
When reviewing sentencing decisions, we review the district
court’s identification of the relevant legal standard de novo,
its factual findings for clear error, and its application of the
legal standard to the facts for abuse of discretion.
United
States v. Gasca-Ruiz
,
A defendant who is “plainly among the least culpable of those involved in the conduct of a group” may receive a “minimal” role adjustment, which comes with a Sentencing Guidelines reduction of at least four levels. [4] U.S.S.G. [4] We say “at least” because a mitigating role adjustment can interact with other provisions of the Sentencing Guidelines to trigger additional adjustments. See, e.g. , U.S.S.G. § 2D1.1(a)(5).
U NITED S TATES V . D OMINGUEZ -C AICEDO 43 § 3B1.2(a), cmt. 4. A defendant “who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal” may receive a “minor” role adjustment, which provides a reduction of at least two levels. Id. at cmt. 5. To be eligible for either adjustment, the defendant must also be “substantially less culpable than the average participant in the criminal activity.” Id. at cmt. 3(A).
The relevant comparison is to the other participants in
the defendant’s crime, not to typical defendants who commit
similar crimes.
[5]
See United States v. Diaz
, 884 F.3d 911,
916 (9th Cir. 2018). Thus, in this case, the district court was
required to compare the defendants to the other participants
in their crimes, not to typical defendants occupying their
roles, such as typical drug transporters. Further, when the
mitigating role commentary instructs courts to compare the
defendant’s culpability to that of “the average participant in
the criminal activity,” it is not referring to the actual level of
culpability of any single participant. It is instead referring to
the mathematical average,
i.e.,
a “single value that represents
the midpoint of a broad sample of subjects.”
Average
,
Black’s Law Dictionary
(11th ed. 2019). Thus, “
all
likely
participants in the criminal scheme” must be included in
calculating the average.
Diaz
,
To determine whether a defendant is substantially less
culpable than the average participant in the offense, a district
[5]
In the past we have referred to these typical defendants as
“hypothetical average participants,” but we use the term “typical
defendant” here because it is more precise, and it avoids confusion with
our discussion of the “average participant” referred to in comment 3(A).
court must proceed in three steps. First, the court must
identify all of the individuals for whom there is “sufficient
evidence of their existence and participation in the overall
scheme.”
Rojas-Millan
,
The Government and some district courts appear to have
interpreted
United States v. Hurtado
,
This understanding of Hurtado is incorrect. At the outset, we note that much of Hurtado has been overruled or abrogated. [6] But to the extent anything remains of Hurtado , it simply stands for the proposition that comparing a defendant to only the most culpable subset of the participants in the offense does not demonstrate that the defendant is entitled to a minor role reduction. Instead, the district court must compare the defendant’s culpability with the average level of culpability of all of the participants in the crime. Hurtado did not set forth an entirely different method of performing the minor role analysis.
*36
Nor could it have. Fourteen years earlier, we held that
courts should compare a defendant’s culpability to “all
participants in the criminal scheme for which he was
charged” even if those co-participants are not charged.
Rojas-Millan
,
him was Jorge Adame-Farias. Id. After being convicted of various drug crimes, Rojas-Millan sought a minor role reduction, which the district court denied. Id. at 472. The district court concluded that Rojas-Millan was not substantially less culpable than Adame-Farias, who was charged alongside Rojas-Millan, and that it could not compare Rojas-Millan’s conduct against the drug supplier in Los Angeles and the recipient in Nevada because they were not charged. Id.
We vacated the sentence and remanded, holding that “the district court should have evaluated [Rojas-Millan’s] role relative to all participants in the criminal scheme for which he was charged.” Id. We explained that “ignoring the actions of other participants . . . subjects less culpable defendants to longer sentences simply because their more involved co-conspirators managed to escape arrest or were tried separately. We see no reason why the Guidelines would sanction such a regime, and we find confirmation in the language of § 3B1.2 that the intent was not to do so.” Id. at 473. We thus vacated Rojas-Millan’s sentence and remanded for the district court to compare Rojas-Millan’s culpability “relative to the involvement of other likely actors, such as the alleged Los Angeles supplier and the Reno distributor . . . if the district court found sufficient evidence of their existence and participation.” Id. at 473– 74. The only limit on the comparison group we recognized in Rojas-Millan was that the district court was required to find “sufficient evidence of [the comparators’] existence and participation” in the crime. Id. at 474. If the district court *37 found on remand that the Los Angeles supplier and Reno distributor participated, it was required to compare Rojas- Millan’s culpability to theirs. Id. at 473–74. We did not hold that the district court could decline to consider the Los Angeles and Reno participants’ culpability if it determined that they were leaders or organizers or were otherwise of “above-average” culpability. Indeed, to do so would be inconsistent with our observation that “ignoring the actions of other participants” undermines the purpose of the minor role reduction because doing so “subjects less culpable defendants to longer sentences simply because their more involved co-conspirators managed to escape arrest or were tried separately.” Id. at 473.
Since we already held in
Rojas-Millan
that “all
participants in the criminal scheme” must be included in the
comparison, we could not have departed from that rule in
Hurtado
to require district courts to exclude the most highly
culpable participants.
See Miller v. Gammie
,
In sum,
Hurtado
did not change our longstanding
approach to the mitigating role analysis, which requires
district courts to include “all participants in the criminal
scheme” in the comparison.
Rojas-Millan
,
2
Chichande argues that the district court erred by excluding his recruiter from the comparison. We agree. The district court concluded that Chichande’s recruiter existed and participated, yet it excluded him from the comparison group. The court stated at sentencing:
So the defendant has to show me well, who’s the average participant so that I can then make a determination as to whether or not the defendant is, in fact, substantially less culpable than the average participant . . . . So what do we know? Well, we know this gentleman was recruited by someone who, in my opinion, if that individual were before me, would receive an aggravated role for being a leader/organizer. We have the people with the guns . . . . So taking a look at the people that are involved, there are three people on the boat. I believe, frankly, that probably one of them is somewhat more culpable than the other two. And I do believe that this defendant, given the fact that he was more candid and forthright, probably deserves a break in that regard. It doesn’t really affect my assessment of minor role . . . . So what do I know? I know that there were men with guns. I know that there was a recruiter or someone that got this fellow into this venture. But I don’t know who the average participant would be. And I don’t know that this defendant would be substantially less culpable than whoever that average participant is.
This discussion shows that the district court attempted to identify a single “average participant” with whom to compare Chichande. When the district court could not identify such an individual, it denied the minor role adjustment, apparently without comparing Chichande’s culpability with anyone’s. At a minimum, the court excluded the recruiter. This analysis was erroneous. As we have explained, the proper comparison is to the average of *39 all of the individuals who participated in Chichande’s offense, including those that the district court believed were leaders or organizers or who were otherwise highly culpable. Because the district court misunderstood the appropriate legal standard, we vacate Chichande’s sentence and remand for the district court to conduct the minor role analysis applying the correct legal standard.
The Government argues that any error in the district court’s minor role analysis was harmless because the district court made an alternative Guidelines calculation assuming it granted Chichande a minor role reduction and stated that it would impose the same “sentence regardless of whether [it] gave him minor role.” We disagree.
“A mistake in calculating the recommended Guidelines
sentencing range is a significant procedural error that
requires us to remand for resentencing.”
United States v.
Munoz-Camarena
, 631 F.3d 1028, 1030 (9th Cir. 2011).
“When a defendant is sentenced under an incorrect
Guidelines range—whether or not the defendant’s ultimate
sentence falls within the correct range—the error itself can,
and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.”
Molina-
Martinez v. United States
, 136 S. Ct. 1338, 1345 (2016).
Accordingly, we have vacated sentences and remanded for
resentencing when district courts have misunderstood the
law governing the minor role reduction.
See, e.g., Diaz
,
A “district court’s mere statement that it would impose
the same . . . sentence no matter what the correct calculation
cannot, without more, insulate the sentence from remand.”
Munoz-Camarena
,
The Government argues that that is what the district court did here. We disagree. When it came time to impose the sentence, the district court started by determining that Chichande’s criminal history category was I, his base offense level was 38, and a two-level upward adjustment was warranted because he co-piloted the boat, for a total offense level of 40. This yielded a Guidelines range of 292 to 365 months. See U.S.S.G. Manual Ch. 5 Pt. A (U.S. Sent’g Comm’n 2018). The district court then concluded that a 292-month sentence “would be excessive” because Chichande was a first-time offender, discussed the 18 U.S.C. § 3553(a) factors, and ultimately imposed a sentence of 180 months. After imposing the sentence, the district court provided Chichande with a copy of the supervised release conditions and informed him that he could appeal. Immediately afterward the following exchange occurred:
Counsel for Chichande: Yes, I’ve told him that I will file that Notice of Appeal this morning.
The Court: All right. Is there anything else I need to address? Is there anything – well, I guess for purposes of making sure we all understand – by the way, I did do a guideline calculation assuming that I gave him minor role. I think that would have resulted in, if I’m not mistaken, a range of 121 to 151 months. I think I did a calculation giving him acceptance. That would result in 97 to 121 months.
But as I said, my sentence was based on [the] 3553(a) factors. Given the seriousness of the offense and the nature of the offense, the circumstances of the offense, the amount of the drugs, the fact that a shooting was required, I think 180 months is a reasonable sentence, and I would impose that sentence regardless of whether I gave him minor role. In that case, I would be varying up. In this case, I’m varying down. Anything else I’ve missed?
The district court’s discussion of the alternative ranges *41 at the very end of the sentencing hearing does not 52 U NITED S TATES V . D OMINGUEZ -C AICEDO demonstrate that the district court conducted the sentencing a second time starting with the correct range and keeping it in mind throughout the process. The conclusory nature of this discussion, and the fact that it occurred after the district court had already imposed Chichande’s sentence and only in response to Chichande’s declaration that he would appeal suggest that the district court did not meaningfully consider this range in arriving at its sentence. Since the Government has not met its burden of establishing that any error was harmless, we vacate Chichande’s sentence and remand for resentencing so that the district court may apply the correct legal standard.
3
Cortez-Quinonez argues that the district court erred because it “expressly acknowledged the existence of a Pablo-Escobar-type drug lord” and “a giant, complex drug- trafficking organization” but nevertheless refused to include members of that organization in the comparison. In the district court, Cortez-Quinonez cited a report that the Sentencing Commission sent to Congress listing roles of individuals often involved in drug trafficking organizations in order of their typical culpability and argued that the court was required to compare his conduct to individuals occupying those roles who “likely” were involved in his crime.
The fact that illicit drugs are often traceable to larger
drug trafficking organizations does not mean that district
courts must compare the conduct of each defendant
convicted of a drug crime to that of every hypothetical
member of a typical drug trafficking organization.
See
United States v. Rosas
,
In arguing to the contrary, Cortez-Quinonez relies
heavily on our statements in
Diaz
and
Rojas-Millan
instructing district courts to consider “likely” participants.
But Cortez-Quinonez takes the word “likely” out of context.
We have referred to likely participants to make clear that the
defendant does not necessarily need to know the
participant’s name or see the participant for there to be
sufficient evidence of that person’s participation in the
offense.
See Diaz
,
Cortez-Quinonez next argues that the district court erred
by “ignor[ing] [his] lack of ownership in the drugs and his
relatively low compensation.” But the district court heard
argument regarding this factor, stated that it considered all
“five nonexhaustive factors,” and ultimately adopted the
Government’s analysis of them. And even if the district
court erroneously weighed that factor against Cortez-
Quinonez, that one of the five factors in comment 3(C)
weighed in favor of Cortez-Quinonez does not mean that the
district court abused its discretion in denying the minor role
adjustment.
See Quintero-Leyva
,
Dominguez-Caicedo’s arguments are similar. He claims that the district court identified “the man who commandeered Mr. Dominguez into participating in this offense” and “the ‘guys with the guns’ who approached Dominguez” as “potential likely participants” but nevertheless improperly refused to compare his culpability to theirs. He also argues that the district court improperly “overlooked” “all the persons” the Government identified in its pre-trial expert disclosure, “those who actually own the cocaine at the heart of this case,” and “those who recruited and tricked Mr. Dominguez’s co-defendants.” Once again, we disagree.
With respect to the “guys with guns” and “man who commandeered Mr. Dominguez into participating in this offense” Dominguez-Caicedo’s characterization is not consistent with the record. Dominguez-Caicedo testified at trial that while he was harvesting bananas in rural Colombia, he was kidnapped by five armed men wearing hoodies and masks who told him they needed him for a mission. He testified that these men eventually placed him on the boat carrying the drugs at issue here. At sentencing, the district court made clear that it did not believe Dominguez- *44 Caicedo’s account and did not find these individuals to be likely participants in the offense. The court explained: “I mean, Mr. Dominguez-Caicedo was hoping that by telling his story, he was going to [be] able to convince the jury that he was acting under duress. The jury didn’t believe it. It’s a self-serving statement that I frankly – I don’t buy, either. I don’t accept it.” Therefore, contrary to Dominguez- Caicedo’s argument, the district court did not determine that the “guys with guns” and the “man who commandeered Mr. Dominguez” were “likely participants,” and therefore did not err by excluding them from the comparison.
Next, the district court was not required to address the people the Government identified in its pre-trial expert disclosure, the people who allegedly owned the cocaine, and the people who allegedly recruited Dominguez-Caicedo’s co-defendants because Dominguez-Caicedo failed to object to the Presentence Report’s (PSR) conclusion that he did not provide evidence of their existence and participation in the offense.
The PSR concludes that “the defendant has presented no
information supporting the fact that he was substantially less
culpable than the other identified participants in this offense
as he appears to have held the same role as CORTEZ and
GASPAR.” It also says that “Defense counsel . . . believes
a minor role adjustment is appropriate, but did not provide
any basis for it.” Federal Rule of Criminal Procedure
32(f)(1) requires parties to “state in writing any objections,
including objections to material information . . . contained in
or omitted from the [PSR].” If a party objects to a material
factual assertion in or omission from the PSR, the district
court must rule on the objection. Fed. R. Crim. P.
32(i)(3)(B);
see also United States v. Petri
, 731 F.3d 833,
837–39 (9th Cir. 2013). But if a party does not object, the
district court is not required to address factual assertions
raised for the first time in a sentencing memorandum or at
the sentencing hearing.
Petri,
Petri is illustrative. There, Petri objected to the PSR’s recommendation that the district court deny Petri’s request for a minor role reduction because, among other things, he alleged that he was “used by the more sophisticated individuals in the scheme, including a man named ‘Sorin,’ whom Petri identified as the ringleader.” Id. at 836. But
U NITED S TATES V . D OMINGUEZ -C AICEDO 57 while Petri cited Sorin’s alleged involvement in support of his objection to the PSR’s recommendation to deny him a minor role reduction, he did not specifically object to the omission of factual information about Sorin in the PSR. Id. at 836, 841. In other words, Petri objected to the probation officer’s ultimate recommendation that the court deny the minor role reduction but did not specifically object to the probation officer’s decision not to include “any factual assertion regarding whether ‘Sorin’ manipulated or coerced Petri into complicity.” Id. at 841. In his sentencing memorandum and during the sentencing hearing, Petri’s attorney attempted to supplement the record with details about Sorin’s alleged coercion and argued that recently discovered documents showed Sorin was involved. Id. at 836–37. The district court ultimately denied the minor role reduction without addressing whether Sorin coerced Petri. Id. at 837. On appeal, we held that the district court “had no responsibility to rule on . . . if ‘Sorin’ coerced” Petri because Petri’s objection to the PSR was not specifically directed at the alleged factual omissions in the PSR. Id. at 841.
Dominguez-Caicedo did not properly object to his presentence report at all. [7] Therefore, the district court was [7] Dominguez-Caicedo included a footnote in his sentencing memorandum citing to Cortez-Quinonez’s objections to his PSR and stated that “Mr. Dominguez joins in his co-defendant’s analysis regarding the applicability of a mitigating role adjustment in this case.” Dominguez-Caicedo’s footnote is not a proper objection to the PSR. First, it does not dispute any of the factual assertions or alleged omissions in his own PSR. Second, we held in Petri that an argument in a sentencing memorandum does not constitute an objection to a PSR. Third, Dominguez-Caicedo filed his sentencing memorandum after the deadline for objecting to the PSR. The deadline for objecting to the PSR is “14 days after receiving” it, Fed. R. Crim. P. 32(f)(1), and Dominguez- not required to address his argument raised for the first time in his sentencing memorandum—and never mentioned during the sentencing hearing—that there was sufficient *46 evidence that the individuals he identified were involved in the crime.
CONCLUSION
We affirm all three defendants’ convictions, and Dominguez-Caicedo’s and Cortez-Quinonez’s sentences. We vacate Chichande’s sentence and remand for resentencing consistent with this opinion.
AFFIRMED in part, and VACATED and REMANDED in part.
Caicedo filed his sentencing memorandum 28 days after the PSR was filed. For each of these reasons, Dominguez-Caicedo’s footnote was not a proper objection to the PSR, and it did not require the district court to address whether these individuals participated in the crime.