U.S. v. You, 03-30420.
| Decision Date | 31 August 2004 |
| Docket Number | No. 03-30421.,No. 03-30420.,03-30420.,03-30421. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Chang Guo YOU, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mi Ae Yim, aka Mi Ae Pigman, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael S. Lahr, Assistant United States Attorney, Helena, AZ, for the plaintiff/appellee.
Palmer A. Hoovestal, Helena, MT, for defendant/appellant You.
Anthony R. Gallagher, Great Falls, MT, for defendant/appellant Yim.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding, D.C. No. CR-02-00015-DWM.
Before HALL, KLEINFELD, and CALLAHAN, Circuit Judges.
A federal jury convicted Appellants, Chang Guo You and Mi Ae Yim, of violating 8 U.S.C. § 1324(a)(1)(A)(iii) for harboring illegal aliens. They now appeal their convictions and sentences. You argues that the court erred in (1) denying his motion for a retrial on double jeopardy grounds and (2) declining to grant him a downward departure during sentencing pursuant to U.S.S.G. § 5K2.0 or § 5K2.13. You and Yim both contend that the district court erred in instructing the jury. Finally, Yim argues that the district court erred in its determination that Yim failed to show that the government purposefully discriminated in making its peremptory challenges. We disagree with each contention and affirm the district court.
This appeal follows an initial trial, during which the court declared a mistrial, a subsequent retrial, and, finally, the sentencing hearing. We outline the proceedings' three stages below.
The district court began a jury trial on March 31, 2003. On the second day of trial, the government called its first Spanish-speaking witness, but Yim objected to the government's interpreter. After the defense conducted a cross-examination, the court determined that the interpreter was not court-certified. The court suggested tape-recording the translation to protect its accuracy. The court also observed that You's counsel spoke Spanish and could object during trial if the translation were inaccurate. The court then asked if defense counsel wanted to make any further record.
You's counsel responded, somewhat cryptically, "No further record, just with the exception of the previous one imposed." Yim's counsel, however, again objected and moved for a mistrial, noting that he wished to "abort and begin anew with a different jury." Yim's counsel went on: "I'll state categorically on the record that I wouldn't interpose any double jeopardy problem."
The court then explored the possibility of the government finding another interpreter. You's counsel stated that he had no objection to this approach, while Yim's counsel restated his position that "I think we should just terminate and begin anew."
The court took a twenty-four minute recess to allow the government an opportunity to find another interpreter. The government, however, was unable to contact any court certified interpreters during the break. The court subsequently stated that it was going to declare a mistrial and schedule a new trial. The judge asked the attorneys if either wished "to make any record?" Counsel for both defendants responded that they did not. The judge then called in the jury and dismissed them. The court again asked the defendants' counsel if they had anything further. They again responded that they did not.
After the court set a new trial date, You and Yim moved to dismiss the indictment on double jeopardy grounds. The district court denied their motion. Approximately two months after the initial trial, the court conducted a retrial.
During jury selection of the second trial, the government exercised four of its peremptory challenges, all on women. Yim objected, claiming that the challenges were gender-based and discriminatory. The district court agreed that Yim had made a prima facie showing of discrimination and asked the government to explain its rationale for its peremptory challenges.
Regarding the first challenged juror, the government explained that the juror lacked sufficient age and maturity level. The government said that the second juror would not look the prosecutor in the eye, raising the specter that the juror might be unsympathetic to the government. The third juror was an artist who regularly used a pen name when signing pictures. This allegedly presented a problem because certain witnesses had used aliases. The government explained that the final juror held an administrative job in which she did not deal with people and she seemed to lack the intellect to serve on a jury. The district court considered these reasons and concluded that they were not gender-based.
After the presentation of evidence, the district court gave the jury the following instruction:
In order for a defendant to be guilty of Count I, the government must prove the following elements beyond a reasonable doubt:
First, Roger Quezada Raudales, aka Hector Sierra-Orlando, was an alien;
Second, Roger Quezada Raudales, aka Hector Sierra-Orlando, was not lawfully in the United States;
Third, a defendant knew or was in reckless disregard of the fact that Roger Quezada Raudales, aka Hector Sierra-Orlando, was not lawfully in the United States; and
Fourth, a defendant concealed, harbored, or shielded Roger Quezada Raudales, aka Hector Sierra-Orlando, for the purpose of avoiding Roger Quezada Raudales, aka Hector Sierra-Orlando, detection by Immigration authorities.
The court gave a nearly identical instruction regarding the other allegedly-concealed alien. It changed only the count number and the name of the second alien.
You and Yim objected to these instructions, arguing that the court must place the word "knowingly" before "concealed, harbored, or shielded." The court overruled the objections and gave the instructions as proposed.
The court did, however, initially give a stock Ninth Circuit instruction defining "knowingly." The instruction stated that "[t]he government is not required to prove that the defendant knew that his or her acts or omissions were unlawful." Shortly after giving this instruction, however, the court noted at side-bar that it conflicted with an element of the offense that a defendant "knew or was in reckless disregard" of the fact that the alien was not lawfully in the United States. The district court then reread the instruction to the jury, deleting the language: "the government is not required to prove that the defendant knew his or her acts or omissions were unlawful."
During deliberations, the jury asked whether the judge mistakenly omitted the word "knowingly" from the verdict form. The jury asked "if this is an oversight and it was accidentally omitted, as it was our understanding that you, the Judge in this case, intentionally required it to be added." After discussing the question with counsel, the court responded: After further deliberation, the jury returned a guilty verdict.
During sentencing, You requested a downward departure under two different prongs of the Sentencing Guidelines. He first requested a departure for diminished mental capacity pursuant to U.S.S.G. § 5K2.13, which allows for a departure where the defendant "committed the offense while suffering from a significantly reduced mental capacity." You argued that he had difficulty with the English language and simply did not understand that what he had done was illegal. The district court acknowledged that You did not "have an intimate comprehension of the American judicial system" but noted that You had experience with the legal system regarding his political status and was the owner of a successful business. The court concluded, "I just can't see that the 5K2.13 diminished capacity guideline applies here and I'm not going to exercise my discretion to grant a downward departure based on that ground and for the reasons stated."
You also requested a downward departure pursuant to U.S.S.G. § 5K2.0, which allows a departure "in the exceptional case in which there is present a circumstance that the Commission has not identified." The district court expressed frustration with the Guidelines, but concluded, "I don't think it's a case that under the existing case law I would be acting appropriately if I exercised my discretion to grant a 5K2 or Koon kind of departure."1 The court ultimately sentenced You to five months in the custody of the Bureau of Prisons, five months of home-detention and two years of supervised release. It sentenced Yim to one month in prison, eleven months of home confinement with electronic monitoring and three years of supervised release.
You and Yim now appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
Appellants raise four issues on appeal. We address each in turn.
The first issue is whether the district court erred in denying You's motion to dismiss the indictment against him on double jeopardy grounds after the court declared a mistrial. We review the district court's denial of You's motion to dismiss de novo. See United States v. Ziskin, 360 F.3d 934, 942 (9th Cir.2003). We accept the district court's factual findings unless they are clearly erroneous. See id.
Because jeopardy had already attached when the district court declared the mistrial, the court could order a retrial in two circumstances: (1) the defendant consented to the mistrial or (2) manifest necessity caused the mistrial. See United States v. Gaytan, 115 F.3d 737, 742 (9th Cir.1997). Both parties agree that You did not expressly consent to the mistrial. We conclude that You imp...
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