U.S. v. Carreno, 02-10464.
| Decision Date | 06 April 2004 |
| Docket Number | No. 02-10464.,02-10464. |
| Citation | 363 F.3d 883 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roberto Raul CARRENO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barry J. Portman, and Steven G. Kalar, Federal Public Defender, San Francisco, CA, for appellant Roberto Raul Carreno.
Kevin V. Ryan, Hannah Horsley, Lewis A. Davis, and Michael L. Wang, U.S. Attorney's Office, Oakland, CA, for appellee United States of America.
Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CR-99-00472-MJJ-01.
Before: WALLACE, NOONAN, and McKEOWN, Circuit Judges.
This appeal arises out of Roberto Carreno's conviction and seventy-month sentence for criminal violations of 8 U.S.C. § 1324 (alien transportation), 18 U.S.C. § 1203 (hostage taking), and 18 U.S.C. § 371 (conspiracy). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Carreno raises a number of evidentiary and other claimed errors related to his jury trial. None of these rises to the level of reversible error. In sentencing Carreno to a seventy-month term, the district court imposed a sentence enhancement for creation of substantial risk of death or serious bodily harm under U.S.S.G. § 2L1.1(b)(5). At issue is the degree of risk required to invoke this enhancement. Although no bright line guides our inquiry, we affirm because the district court's articulated reasons for finding a substantial risk are supported by the evidence and fall within the court's sentencing discretion.
This case stems from the police arrest of Carreno and codefendant Jose Flores for transporting illegal aliens from Mexico. Carreno and Flores, van drivers for Olvera Van Tours ("OVT"), reportedly refused to release two young boys to their family, due to a fare dispute, when the van arrived at the boys' final destination in San Rafael, California. Natives of El Salvador, the eight- and ten-year-old boys entered the United States illegally with the help of a smuggler. Their mother, Maria Gomez, who was already living in the United States, arranged for the boys' travel from El Salvador, including their transport in an OVT van from Houston, Texas to San Rafael.
At trial, one of the key issues bearing on the hostage-taking counts was ascertaining what occurred when the van arrived at the San Rafael parking lot where family members had arranged to pick up the boys. No one disputed that the boys' uncle, Jaime Pineda, and their stepfather, Jose Pena, arrived to meet the van, but that the boys nonetheless remained in the van when Carreno later left for Oakland to drop off another passenger. Neither was it disputed that Pineda approached Carreno outside the van and attempted to give him $500 to pay the transit fare; that Carreno informed Pineda that the fare was actually $800; and that Carreno accompanied Pineda to a nearby pay phone where Pineda called the boys' mother to inform her of the fare difference. What was in dispute, however, was what occurred between Carreno and Pineda after it became clear that the family did not have immediate access to $800 in cash. Carreno claimed that he and the family agreed that Carreno would return with the boys when the family came up with the money. The government contended that Carreno held the children hostage and made it clear that they would be released to their family only as quid pro quo for the full fare.
In any event, after Carreno left San Rafael with the boys, Pena called the police. Maria then called OVT's headquarters in Houston to discuss the situation with Carreno's superiors; she spoke with a man who "reminded her that [the boys] were children to whom something could happen" and pointed out that the children "were male." On the authorities' advice, Maria called Carreno and told him that she had obtained the full fare. When Carreno returned to San Rafael to meet Maria, police arrested him.
Another key issue bearing on the hostage-taking counts was whether Carreno threatened the youngest boy, Carlos, as the van left San Rafael. The government interviewed the boys numerous times prior to trial. In an interview that occurred approximately two years after the van trip and after Carlos had already been interviewed five times, Carlos reported for the first time that Carreno had threatened him that, if the family did not come up with the full fare, he would "use [the boys] as girls" or send them back to El Salvador. Whether Carlos made this statement in response to pointed questioning by FBI agents or whether he simply volunteered the statement was a hotly contested issue at trial.
Despite Carreno's requests to interview all witnesses to the incident, the Immigration and Naturalization Service deported many of the van passengers after the FBI interviewed them. One of the deported passengers was Jesus Gonzalez Sanchez, who was outside the van smoking when Pineda initially approached Carreno with the $500 fare and potentially within earshot of the contested conversation. The government concedes that, prior to Sanchez's deportation, the government was aware that Sanchez had witnessed something of the conversation. Whether he actually heard the conversation was in dispute. The FBI file from Sanchez's pre-deportation interview, known as a "302," states that "Sanchez believed that there was some disagreement over money." The Sanchez 302 was in the prosecution's files when it requested the INS to refrain from deporting several other witnesses who might be valuable to the case — Sanchez not among them. Despite this somewhat suspect chronology of events, Carreno produced no evidence that Sanchez actually heard the content of the conversation between Pineda and Carreno or that Sanchez's deportation was anything but routine.
At trial, only Carreno and Pineda testified to hearing the conversation that took place outside the van. Several other witnesses testified to what they observed during the conversation. For example, van passenger Loida Perez testified that Pineda looked upset and worried during the conversation. Another van passenger, Efrin Lainez-Miranda, testified that Pineda looked upset during the conversation and that Pineda and Carreno were possibly having an argument.
Carreno filed multiple pretrial motions and requests related to the government's deportation of Sanchez and Carreno's alleged sexual threat to Carlos, including: 1) a motion to dismiss the indictment under United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), based on the Sanchez deportation; 2) a motion to present evidence regarding the Sanchez deportation; 3) a motion to admit the Sanchez 302 into evidence; 4) a request for a missing witness instruction to counterbalance any prejudice caused by the government's deportation of Sanchez; 5) a motion to exclude Carlos's testimony regarding Carreno's alleged sexual threat during the van ride from San Rafael to Oakland; 6) a request for a "taint" hearing regarding the testimony that he threatened Carlos; 7) a motion to permit expert testimony on child suggestibility to support the defense's theory that Carlos "misremembered" the threat that an OVT employee made to Carlos's mother as a threat that Carreno made to him; and 8) a request for a hearing regarding the defendant's proposed suggestibility expert under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After numerous hearings, the district court denied these motions and requests.
After a jury convicted Carreno of four counts of alien transportation, two counts of hostage taking, and two counts of conspiracy to commit these offenses, the district court sentenced him to a seventy-month term. The district court imposed a three-level enhancement based on its finding that Carreno had "recklessly creat[ed] a substantial risk of death or serious bodily injury to another person," pursuant to U.S.S.G. § 2L1.1(b)(5).
The first issue we address is whether the government's deportation of Sanchez violated Carreno's Fifth and Sixth Amendment rights. We review de novo a district court's denial of a motion to dismiss for failure of the government to retain a witness, and for clear error the district court's underlying factual determinations. United States v. Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir.2002). We also review de novo the denial of a motion to dismiss an indictment on constitutional grounds. United States v. Andaverde, 64 F.3d 1305, 1308-09 (9th Cir.1995).
The district court properly invoked the two-prong test from United States v. Dring, 930 F.2d 687, 693-94 (9th Cir.1991), to evaluate Carreno's witness deportation claim. The Dring test applies "[i]n cases of constitutionally guaranteed access to evidence, wherein the Government loses potentially exculpatory evidence...." Id. at 693. Dring requires the defendant to "make an initial showing that the Government acted in bad faith and that this conduct resulted in prejudice to the defendant's case." Id. (emphasis in original). Carreno has not made this showing.
Although we have not charted the precise contours of "bad faith" under Dring, we have held that "a negligent failure to ensure a percipient witness' presence does not amount to a finding of bad faith." United States v. Armenta, 69 F.3d 304, 307 n. 1 (9th Cir.1995). Carreno makes a strong case that the government's deportation of Sanchez was negligent. After all, Carreno specifically requested to interview the witnesses before their deportation, and the Sanchez 302 should have put the government on notice that Carreno was a potential witness. At a minimum, Carreno...
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