U.S. v. Miguel, 01-10538.

• Decision Date: 23 July 2003
• Docket Number: No. 01-10538.,No. 02-10018.,01-10538.,02-10018.
• Citation: 338 F.3d 995
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto A. MIGUEL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Bryson Jose, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

338 F.3d 995

UNITED STATES of America, Plaintiff-Appellee, v. Roberto A. MIGUEL, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Bryson Jose, Defendant-Appellant.

No. 01-10538.

No. 02-10018.

United States Court of Appeals, Ninth Circuit.

Submitted May 7, 2003 — Honolulu, Hawaii.

Decided July 23, 2003.

Peter C. Wolff, Jr., Federal Public Defender, Honolulu, HI, for Defendant-Appellant Miguel.

Barry D. Edwards, Honolulu, HI, for Defendant-Appellant.

Edward H. Kubo, Jr., Marshall H. Silverberg, and Ronald G. Johnson, United States Attorneys Office, Honolulu, HI, for the Plaintiff-Appellee.

Before LEAVY, RYMER, and T.G. NELSON, Circuit Judges.

Opinion by Judge T.G. NELSON; Opinion concurring in part and dissenting in part by Judge RYMER.

OPINION

T.G. NELSON, Circuit Judge.

Roberto Miguel appeals his criminal convictions for felony murder, attempted robbery, attempted burglary, and several firearms charges. Miguel's co-defendant, Bryson Jose, appeals his criminal conviction for felony murder. We hold that the district court committed structural error when it precluded the defendants from arguing their theory of the case and instructed the jury that no evidence supported the defendants' theory. We further hold that Apprendi v. New Jersey¹ does not apply to transfer proceedings that allow the Government to try a juvenile as an adult. Thus, the transfer proceeding was proper, and the district court had jurisdiction over Miguel.

We will also address two of the other claims Miguel and Jose raise because these claims may arise on retrial. We hold that neither second-degree murder, nor voluntary manslaughter, nor involuntary manslaughter is a lesser included offense to felony murder. Finally, we decline to seek en banc review of our opinion in United States v. LaFleur.² Thus, we reverse the defendants' felony murder convictions, reverse Miguel's conviction for use of a firearm during a crime of violence, affirm defendants' other convictions,³ vacate the defendants' sentences, and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Shooting

During the evening of June 2, 1998, Miguel and Jose were carousing with several friends, including Keoni Tapaoan, Donald Calarruda, Keala Leong, Jason Afong, and Eddie Lovell. Early in the evening, Miguel, Tapaoan, and Calarruda discussed going to Waipahu to rob someone. However, they changed their mind and went to Waianae to drink and gamble instead. Calarruda had a sawed-off rifle. Several members of the group had the gun at different points that night. After drinking and gambling at some apartments in Waianae, they went to the home of an adult affiliated with their high school, where they continued to drink and smoke marijuana.

As the night wore on, the group became violent. Lovell shot the rifle at a bank surveillance camera. The group assaulted a young man, threatened him with the rifle, and stole his backpack. Because they had so much "fun" robbing the man, Jose, Miguel, Leong, Tapaoan, Afong, and Calarruda decided to steal from the cabins at the Waianae Army Recreation Center ("WARC").

The Latchum family was vacationing at the WARC. Mrs. Latchum heard somebody trying to open the front door. When she pulled back the curtains, she saw six to eight young men on the front porch. They ran down the stairs and off the porch when she yelled at them.

Awakened by his wife's yells, Mr. Latchum ran out of the bedroom and onto the porch. He also yelled at the young men to leave, threatening to call the police. Mrs. Latchum saw the young men stop running and gather together facing the cabin. One of them fired at Mr. Latchum. The bullet hit him in the right side of his chest. As Mrs. Latchum screamed, the young men fled. Mr. Latchum died of massive internal bleeding.

The police apprehended the young men within a week of the shooting. Tapaoan, Calarruda, and Afong eventually testified against Miguel, Jose, and Leong.

Miguel was the last one to speak to the police. Miguel gave a taped statement to two detectives and an FBI officer. The statement includes conflicting accounts of the shooting. He said that the rifle went off when he was trying to take it away from Calarruda to prevent Calarruda from shooting at Latchum. He said that he did not pull the trigger and that it might have been Calarruda's finger on the trigger when the rifle fired. At another point in the interview, he said that his finger was on the trigger. He also said that he fired the gun accidentally when he was trying to fire it into the air. Finally, he said that Calarruda wanted him to take the fall for the shooting even though he did not shoot Latchum.

B. The Transfer Proceeding

Miguel was seventeen years old at the time of the shooting. The Government moved to transfer Miguel from juvenile proceedings to adult status for prosecution in district court. Miguel opposed the transfer. In his memorandum, Miguel's counsel stated that even assuming the truth of the Government's allegations, the shooting was accidental and the youth's intoxication mitigated the offense.

After considering the transfer statute factors,⁴ the district court granted the Government's motion to transfer Miguel. As the Government itself recommended, the district court assumed the truth of the Government's allegations regarding Miguel's commission of the charged crime for purposes of the transfer hearing. The court required the Government to present clear and convincing evidence to rebut the presumption in favor of treating Miguel as a juvenile. It exercised its discretion to transfer⁵ because it found that the transfer served the interests of justice.

Miguel appealed the transfer order to this court. In his brief, Miguel's counsel again described the statement Miguel made to the police, stating that Miguel accidentally fired the gun while he was trying to aim it into the air. In an unpublished disposition, we rejected Miguel's challenges and returned the case to the district court for trial.

C. The Trial and the Sentencing

The Government brought eight charges against Jose, Leong, and Miguel.⁶ Count 1 charged all three defendants with felony murder. Count 2 charged Miguel with using a firearm during a crime of violence. Counts 3 and 4 charged all three with attempted robbery. Count 5 charged all three with attempted burglary. Counts 6 and 7 charged Jose and Miguel with possession of an unregistered firearm. Lastly, Count 8 charged Miguel with possessing a firearm while being an unlawful user of a controlled substance.

During pretrial conferences, the parties argued about Miguel's statement to the police. Miguel's counsel pointed out that Miguel's statement included different versions of the events. The district court ruled the statement admissible in transcript form if the Government could redact any portions prejudicial to the co-defendants (to avoid severance).

A jury convicted the three defendants after a trial. The defense focused on the inconsistency between the physical evidence from the scene, particularly the location of the shell casing, and the accounts of Calarruda, Tapaoan, and Afong. During opening statements, defense counsel told the jury to pay particular attention to what the physical evidence would tell them about this crime. Defense counsel asked the jury to focus on Calarruda's testimony. Counsel suggested that Calarruda and Tapaoan colluded with each other to blame the defendants for the shooting. The Government did not introduce Miguel's statement into evidence, and none of the defendants testified.

As defense counsel promised, substantial testimony focused on the physical evidence from the scene. Both sides used a scale diagram of the crime scene to locate both people and physical evidence. The shell casing was 114 feet from the cabin. The Government's expert testified that the rifle would eject the casing to the right of the shooter and the casing would travel approximately five to ten feet. From this testimony, the jury could infer that the shooter was more than one hundred feet from the cabin.

Calarruda's and Tapaoan's testimony placed themselves in the area where the police found the shell casing. They testified that Miguel and Jose were about forty feet from the cabin. Tapaoan, for example, testified that Miguel shot Latchum from thirty to forty feet away from the cabin. Therefore, the Government's own witnesses' testimony placed them, not Miguel or Jose, near where the physical evidence suggested the shooter was located.

During closing argument, Miguel's counsel started to argue that Calarruda might have fired the gun. The court determined that counsel did not have a good faith basis for the argument and precluded it. During the sidebar, the district court stated: "I don't think there was any evidence before this court, at all, that anyone other than Mr. Miguel fired the gun. There just isn't a shred of evidence." The court also said that counsel had admitted that Miguel fired the gun in previous proceedings.⁷ The court instructed the jury to disregard counsel's earlier argument and told the jury that there was "no evidence before the court that Mr. Calarruda was the gunman."

The defendants requested lesser included offense instructions on second-degree murder, voluntary manslaughter, and involuntary manslaughter. The court denied the request, noting that none of these crimes was a lesser included offense of felony murder.

The jury found Miguel guilty of Counts 1-5 and 7-8. It found Jose guilty of Counts 1 and 3-6.

During the trial, Miguel moved to dismiss the case for lack of jurisdiction, for a judgment of acquittal, or for a mistrial, based on Apprendi.⁸ Miguel argued that the jury, rather than the judge, must decide whether to try him as an adult because the transfer increased his maximum sentence from imprisonment until age twenty-three to life imprisonment. The district court denied Miguel's motion. The court rejected...