United States v. Cazares

Decision Date14 May 2015
Docket Number06–50678,06–50679.,07–50037,Nos. 06–50677,s. 06–50677
Citation788 F.3d 956
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Fernando CAZARES, aka Sneaky, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Gilbert Saldana, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Alejandro Martinez, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Porfirio Avila, aka Dreamer, Defendant–Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Verna Wefald (argued), Law Offices of Verna Wefald, Pasadena, CA, for DefendantAppellant Fernando Cazares.

Wayne R. Young (argued), Law Office of Wayne R. Young, Santa Monica, CA, for DefendantAppellant Alejandro Martinez.

Jonathan Libby (argued), Deputy Federal Public Defender, Sean K. Kennedy, Federal Public Defender, Federal Public Defender's Office, Los Angeles, CA, for DefendantAppellant Gilbert Saldana.

Karen L. Landau (argued), Law Office of Karen L. Landau, Oakland, CA, for DefendantAppellant Porfirio Avila.

Thomas E. Chandler (argued) and Jessica Dunsay Silver, Attorneys, Thomas E. Perez, Assistant Attorney General, Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for PlaintiffAppellee.

Appeal from the United States District Court for the Central District of California, Percy Anderson, District Judge, Presiding. D.C. Nos. CR–04–00415–PA–04; CR–04–00415–PA–02; CR–04–00415–PA–01; CR–04–00415–PA–05.

Before: HARRY PREGERSON and WILLIAM A. FLETCHER, Circuit Judges, and LAWRENCE L. PIERSOL,* Senior District Judge.

OPINION

PIERSOL, Senior District Judge:

A jury found defendants Fernando Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio Avila guilty of violating 18 U.S.C. § 241 by conspiring to intimidate African–American citizens in the Highland Park neighborhood of Los Angeles and to deprive them of their constitutional right to “purchase, lease and hold real and personal property, and the right to occupy a dwelling, free from intimidation based on race.” The jury found defendants Cazares, Saldana, and Martinez guilty of violating 18 U.S.C. §§ 245(b)(2)(B), and 2(a) by shooting Kenneth Kurry Wilson, an African–American man, because of his race and color and because he was enjoying facilities provided and administered by a subdivision of the State, namely the public streets of Los Angeles. The jury also found defendants Cazares, Saldana, and Martinez guilty of violating 18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill Kenneth Kurry Wilson while carrying out the charged conspiracy.

The defendants are members of the Avenues 43, a Latino street gang in the Highland Park area, an area inhabited predominantly by Latinos. One of the tenets of the Avenues 43 was to harass and use violence to drive African–Americans out of the Highland Park area. The conspiracy charged in the Second Superseding Indictment alleges overt acts continuing from 1995 through 2001 and involving racial slurs, threats, assaults, harassment, and murder directed at African–American residents of the Highland Park area, with the intent of causing the African–American residents to leave the Highland Park area.

Several black residents and former residents of the Highland Park area testified as to the harassment and violence the black residents of the Highland Park area suffered at the hands of the Avenues 43 gang members. The government also relied heavily on the testimony of former Avenues gang members, Jesse Diaz and Jose De La Cruz, who were incarcerated on state convictions, for evidence specific to the defendants.

The district court sentenced Saldana, Cazares, and Martinez each to two consecutive sentences of life imprisonment and sentenced Avila to life imprisonment.

All of the defendants allege constitutional errors during trial based on their being shackled to their chairs, their not being present for most of the voir dire, the admission of hearsay, and the limiting of cross examination of several government witnesses. All of the defendants allege the district court abused its discretion by allowing improper gang expert testimony and by permitting another government's expert to testify that her firearm identifications were made to a scientific certainty. Defendants Saldana, Cazares, and Martinez argue that Count Two of the Superseding Indictment should have been dismissed because 18 U.S.C. § 245(b)(2)(b) is unconstitutional on its face and as applied to this case because its enactment and enforcement in the case of a murder committed on a public street exceeds Congress's limited powers. All of the defendants argue that the alleged cumulative errors at trial deprived them of their Fifth Amendment Due Process rights to a fair trial.

Defendant Gilbert Saldana submitted a supplemental opening brief contending that the district court erred in denying his motion to suppress statements made without Miranda warnings. The district court denied Saldana's suppression motion mid-trial without making findings or stating the basis of the ruling on the record. We issued an unpublished memorandum disposition reversing the denial of Saldana's motion to suppress and remanding to the district court for fact finding on whether Saldana was in custody when he made these statements to the police. We deferred submission of the rest of the appeal pending the district court's fact finding. See United States v. Cazares, 517 Fed.Appx. 597 (9th Cir.2013). The district court later issued and filed with this Court seven pages of findings of fact in support of the denial of Saldana's motion to suppress.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm on all issues.

DISCUSSION
I.THE USE OF SHACKLES

Defendants contend their rights to due process were violated by being shackled to their chairs during the trial. We review the decision to shackle defendants during trial under an abuse of discretion standard. Morgan v. Bunnell, 24 F.3d 49, 50 (9th Cir.1994) (per curiam). We place restrictions, however, on that discretion in that: (1) “the court must be persuaded by compelling circumstances that some measure was needed to maintain the security of the courtroom”; and (2) “the court must pursue less restrictive alternatives before imposing physical restraints.” United States v. Fernandez, 388 F.3d 1199, 1245 (9th Cir.2004) (quoting Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.1990) ).

Factual Background Concerning Shackling

Before trial, counsel for Cazares submitted a declaration expressing his concern that the defendants would be handcuffed with shackles on their legs and chained to their seats at trial. Counsel based his concern on the fact that the trial was ordered to be held in the Roybal security courtroom and that at prior proceedings in that courtroom the marshals had handcuffed, shackled, and chained defendants to their seats. Counsel for Cazares declared under oath that at each court proceeding he attended the defendants had behaved as gentlemen and had not exhibited any behavior or demeanor that would indicate an intention to disrupt proceedings, escape, or assault anyone. In initially ruling on the issue the district court stated, “I wouldn't be over here in this courtroom if I was—this courtroom, I guess, was built by taxpayers' expense for cases like this, and so, at least at this point, I'm going to deny that motion without prejudice, and we'll see.”

At the beginning of the trial, after it was called to the court's attention that some of the prospective jurors had seen the defendants shackled on a video feed in a different courtroom, the potential jurors were questioned and the few that had possibly seen the shackles were excused. A three-and-a-half to four-foot barrier had been placed in the courtroom to prevent the jurors from seeing shackles or handcuffs when the defendants were seated. A journalist, however, saw that the defendants were shackled to their chairs and reported in the Los Angeles Times that the defendants were shackled but that when they were seated the shackling was not visible. The district court called the article to the attention of counsel and proposed cautioning the jury again about not reading anything about the case and inquiring whether any prospective juror had in fact read any articles about the case. Defense counsel restated their objection, moved for a mistrial, and moved to unshackle the defendants from the chairs so they could stand at appropriate times. The district court responded that he would talk to the marshals, but noted that two of the defendants were serving life terms for murder from state proceedings.

The district court took the shackles into his consideration from the outset of the trial. If the voir dire had been conducted at sidebar the jurors would likely have been able to see the defendants' shackles. The district court therefore decided against doing individual juror questioning at sidebar. At the beginning of the voir dire process, the district court said, “I think we will do this [i.e., voir dire] over in the jury room across the hall there because there is a chance that they could see something back here. Okay. So I will just tell them we are going to do this over there.” In context, it is quite clear that when the judge said that “there is a chance they could see something back here” he was talking about prospective jurors seeing defendants' shackling from the angle at which the sidebar would take place.

During the course of voir dire, counsel for the defendants renewed their objection to the jury pool. The district court denied the motion at the time because he did not find that there had been any taint of the prospective jurors, but advised that he would take action if a level of taint was established. The district court continued to question potential jurors about whether they had seen the defendants on the monitor. One of the potential jurors responded that he had seen the defendants escorted in the courtroom and that [i]t looked like they had...

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