U.S. v. Gonzalez-Flores
| Decision Date | 12 August 2005 |
| Docket Number | No. 03-10656.,03-10656. |
| Citation | 418 F.3d 1093 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis GONZALEZ-FLORES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul J. Mattern, Phoenix, AZ, for the defendant-appellant.
Joan G. Ruffennach, Assistant U.S. Attorney, Phoenix, AZ, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. No. CR-03-00650-SMM.
Before LAY,** B. FLETCHER, and HAWKINS, Circuit Judges.
Defendant-appellant Jose Luis Gonzalez-Flores ("Gonzalez") was convicted of alien smuggling for leading a group of nearly two dozen Mexicans into the United States across the desert. In this direct appeal, Gonzalez claims that the evidence was insufficient to support his conviction and that certain testimony admitted at trial was irrelevant and unduly prejudicial. Gonzalez also attacks his sentence on Booker grounds; the government argues in response that he waived his Sixth Amendment rights.
We hold that the evidence was sufficient to support the conviction and that the error arising from the admission of the prejudicial testimony was harmless, and therefore we affirm the conviction. However, we reject the government's contention that Gonzalez waived his Sixth Amendment rights when his attorney moved to exclude the prejudicial testimony. We therefore remand the case pursuant to United States v. Ameline.
Gonzalez was convicted on one count of bringing in illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(i). The following facts emerged at trial:
In late May 2003, a group of twenty-three Mexican nationals set out on foot from Mexico across the desert into the United States. Three members of the group were detained by a border patrol agent on a road near Interstate 8 in Arizona; these individuals told the agent that there were approximately twenty other members of their group still in the desert. A search and rescue operation was initiated, and border patrol agents found nineteen members of the group in the desert. Two teenage girls from the group were suffering from severe heat exhaustion and respiratory problems and were airlifted to a hospital. Another agent, responding to a report of an illegal alien, encountered and detained Gonzalez at a barn off I-8 near Yuma, Arizona.
Three members of the group, Miguel Gonzalez-Flores (no relation to defendant), Eduardo Salinas-Zagal, and Everardo Salinas-Zagal (Eduardo's brother), were detained as material witnesses and deposed on videotape two weeks after the crossing.1 Gonzalez's lawyer cross-examined the witnesses in the videotaped depositions.
The videotapes of the three depositions were played for the jury. All three witnesses testified that they were Mexican nationals and that, led by the defendant, they had crossed the border other than at a port of entry. Miguel met the two brothers at a border town in Mexico, and they discussed hiring a guide to help them walk across the border. They then met Gonzalez, who indicated that he knew the way through the desert, and so they went with him. They expected to pay Gonzalez for being their guide.
Gonzalez led a group of nearly two dozen people — including Miguel, Eduardo, and Everardo — through the desert and across the border. The group spent a full night and half a day walking in the desert. At some point during the trek, the group ran out of water, and Gonzalez left the group to go look for some. Sometime thereafter, border patrol agents found the group.
The initial indictment charged that Gonzalez placed lives in jeopardy in connection with the offense. Noting that any injuries to members of Gonzalez's group would not go to an element of the crime of bringing in aliens, the court questioned the parties prior to trial as to the propriety of including this fact in the indictment. Gonzalez's lawyer argued: Gonzalez himself made no statement on the matter. The court ruled that the matter of the harm to others was a sentencing issue and not an element; consequently, evidence of the injuries sustained by individuals Gonzalez brought across the border should be presented at sentencing rather than to the jury at trial.2
Just before the commencement of the trial, however, the court revisited the subject of the group members' injuries. Gonzalez's lawyer asked the judge to confirm that no testimony as to the two girls' heat stroke would be permitted and suggested he would stipulate to the injuries, if necessary, at sentencing. The government responded that the girls' distress "was an important part of the event, and it's certainly relevant with respect to sentencing issues." The court ruled:
During the trial, a border patrol agent described finding the two girls, who needed "immediate medical care, advanced medical care." The agent characterized the cause of the medical distress as "[h]eat exhaustion turning into heatstroke." According to the agent, during the helicopter flight to the hospital, one of the girls stopped breathing and required resuscitation by rescue breathing.
At the close of the government's case, the defense moved for a judgment of acquittal and for a mistrial because the admission of the evidence of the two girls' heat stroke violated Federal Rules of Evidence 402, 403, or both. The court denied both motions. As to the mistrial motion, the court explained that the testimony in question "helps to explain the circumstances of the other testimony of why [Gonzalez] left to find water and to determine whether he was in fact assisting in bringing people into the United States." Additionally, the court didn't "believe it was so prejudicial."
Gonzalez presented no defense; the jury convicted him. Reiterating the evidentiary argument about the two girls' heat stroke (among other arguments), Gonzalez moved for a new trial. The court denied the motion, once again finding that the probative value of the heat stroke testimony outweighed any possible prejudicial value.
The presentence report (PSR) recommended three sentence enhancements for specific offense characteristics: (1) the number of aliens smuggled; (2) the fact that Gonzalez brought people into the desert with insufficient water, thereby recklessly creating a substantial risk of death or serious bodily injury; and (3) the fact that the two girls suffered severe heat distress, which constituted serious bodily injury sustained in connection with the offense. Gonzalez objected to the last of these enhancements, arguing that the PSR overstated the seriousness of the injuries and as a result added too many levels. The district court accepted the base offense level from the PSR, granted a two-level downward departure, and sentenced Gonzalez to 33 months in prison (the low end of the Guideline range), a special assessment of $100, and two years supervised release.
Gonzalez timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
Gonzalez's sufficiency-of-evidence challenge is easily rejected, as it rests on the demonstrably erroneous premise that none of the videotaped depositions that formed the backbone of the prosecution's case was properly admitted into evidence. The record flatly contradicts Gonzalez's claim: the trial minutes and the transcript of the trial reveal that all three tapes were admitted. Gonzalez does not argue, nor could he plausibly, that the videotaped depositions themselves did not provide sufficient evidence to sustain his conviction. Gonzalez's sufficiency-of-evidence challenge must fail.
Gonzalez argues that the admission of testimony about the heat stroke suffered by the two girls violated several provisions of the Federal Rules of Evidence. Because we conclude that the evidence should have been excluded under Rule 403, which prohibits evidence whose "probative value is substantially outweighed by the danger of unfair prejudice," we need not discuss the other rules Gonzalez cites. However, because we determine that the admission of the unduly prejudicial testimony was harmless, we affirm Gonzalez's conviction.
A trial court's determination that the prejudicial effect of particular evidence did not substantially outweigh its probative value under Federal Rule of Evidence 403 is reviewed for an abuse of discretion. United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir.2004). As to a criminal defendant, "unfair prejudice" refers to "the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). In other words, unfairly prejudicial evidence is that having "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. (citation and internal quotation marks omitted).
The probative value of evidence against a defendant is low where the evidence does not go to an element of the charge. See United States v. Ellis, 147 F.3d 1131, 1135 (9th Cir.1998); United States v. Arambula-Ruiz, 987 F.2d 599, 604-05 (9th Cir.1993). In this case, the government charged Gonzalez with violating 8 U.S.C. § 1324(a)(1)(A)(i), a crime...
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