United States v. Lozoya
| Decision Date | 13 December 2021 |
| Docket Number | No. 17-50336,17-50336 |
| Citation | 19 F.4th 1217 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Monique A. LOZOYA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cuahtemoc Ortega, Federal Public Defender; James H. Locklin, Deputy Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.
Tracy L. Wilkison, Acting United States Attorney; Bram M. Alden, Chief, Criminal Appeals Section; Karen E. Escalante, Assistant United States Attorney, Major Frauds Section; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.
Before: Sidney R. Thomas, M. Margaret McKeown, William A. Fletcher, Jay S. Bybee, Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Mark J. Bennett, Daniel P. Collins and Kenneth K. Lee, Circuit Judges.
The joint motion to recall the mandate is denied. "We have the inherent power to recall our mandate in order to protect the integrity of our processes, but should only do so in exceptional circumstances." Carrington v. United States , 503 F.3d 888, 891 (9th Cir. 2007).
Federal Rule of Appellate Procedure 40(a) permits a party to file a petition for rehearing within fourteen days after the entry of judgment to bring to the court's attention any point of law or fact the party contends the court overlooked in deciding the case. Fed. R. App. P. 40(a). The power to recall the court's mandate "may not be used simply as a device for granting late rehearing." Moran v. McDaniel , 80 F.3d 1261, 1267 (9th Cir. 1996) (quoting Johnson v. Bechtel Assocs. , 801 F.2d 412, 416 (D.C. Cir. 1986) ). The opinion of the en banc court was filed on December 3, 2020. The mandate issued on December 28, 2020. The motion to recall the mandate in order to file a new petition for rehearing was filed on October 7, 2021. Thus, the motion was filed over 300 days after the filing of the opinion, and is untimely.
The issue presented in the joint motion to recall the mandate concerns whether the magistrate judge imposed an improper burden of proof on the defendant. The district court concluded that—given the context of the entire record and, particularly, in light of the magistrate judge's findings—the magistrate judge had not improperly shifted the burden to the defendant, despite stray comments. See United States v. Coutchavlis , 260 F.3d 1149, 1156–57 (9th Cir. 2001) (). The record supports the district court's conclusion.
Further, any error was likely harmless beyond a reasonable doubt because the magistrate judge specifically credited the testimony of the victim and found the testimony of the witnesses presented by the defense to be "inconsistent" and "implausible." Given the magistrate judge's findings, it is clear beyond a reasonable doubt that a court would have found the defendant guilty absent any error. See United States v. Liu , 731 F.3d 982, 992 (9th Cir. 2013) (describing standard); United States v. Argueta-Rosales , 819 F.3d 1149, 1156 (9th Cir. 2016) ().
Therefore, although we do not reach the merits of any of these issues, given all of these considerations, the untimely motion does not present the "exceptional circumstances" that would justify the recall of the mandate in order to protect the integrity of our processes.
"[T]he courts of appeals are recognized to have an inherent power to recall their mandates," but this extraordinary power should be "sparing[ly]" exercised only as a "last resort, to be held in reserve against grave, unforeseen contingencies." Calderon v. Thompson , 523 U.S. 538, 549–50, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) ; see also Carrington v. United States , 503 F.3d 888, 891 (9th Cir. 2007). Based on a confluence of six unique factors, I think that this case meets that very high standard, and I would therefore grant the parties' joint motion to recall the mandate. Because the majority concludes otherwise, I respectfully dissent.
First , as the parties' joint motion notes, the en banc court committed a clear, if understandable, error in overlooking one of the grounds for reversal that Lozoya had raised on appeal.
In her opening brief before the three-judge panel, Lozoya argued that her conviction for assault on an in-flight airplane should be reversed for three reasons: (1) the Government violated the Speedy Trial Act; (2) the Government failed to establish venue in the Central District of California; and (3) the magistrate judge applied the wrong legal standard in evaluating the issue of whether Lozoya acted in self-defense. The three-judge panel unanimously rejected the Speedy Trial Act claim on the merits. United States v. Lozoya , 920 F.3d 1231, 1236–38 (9th Cir. 2019). By a divided vote, that panel then agreed with Lozoya's second contention that the Government had failed to establish that venue was proper. See id. at 1238–43 ; id. at 1243–45 (Owens, J., dissenting in part). Because the panel majority reversed the conviction on venue grounds, it concluded that it "need not determine whether the magistrate judge applied the wrong standard" in evaluating self-defense. Id. at 1243 n.8. After rehearing en banc was granted, the eleven of us on the en banc panel sensibly "exercise[d] our discretion to consider only th[e] issue" of venue, which was the only issue that warranted en banc reconsideration under the standards set forth in Federal Rule of Appellate Procedure 35. See United States v. Lozoya , 982 F.3d 648, 651 n.2 (9th Cir. 2020) (en banc). But we subsequently failed to realize that, after rejecting Lozoya's venue challenge, the additional issue that the three-judge panel had found unnecessary to decide—viz. , whether the magistrate judge had applied the wrong standard of proof—was now no longer moot. We should have remanded the case back to the three-judge panel to address this now-resurrected issue, and we committed a patent error in failing to do so.
Second , although Lozoya's counsel should have called the omission to our attention in a timely petition for rehearing, that failure itself raises a substantial issue of ineffective assistance of counsel.
Once rehearing en banc was granted, the en banc proceedings involved Lozoya's direct appeal of her criminal conviction and therefore implicated her constitutional "right to effective assistance of counsel in direct appeals" in criminal cases. Lafler v. Cooper , 566 U.S. 156, 168, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). I can think of no conceivable strategic reason for counsel's failure to secure a decision on one of the three grounds for reversal raised on appeal, and the oversight seems to me clearly to fall "below an objective standard of reasonableness." Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).1 Indeed, the joint motion here effectively acknowledges that counsel's failure to raise the matter in a petition for rehearing fell below the applicable standard of professional competence. Moreover, if the overlooked issue has merit, then there would be a "reasonable probability that, but for counsel's unprofessional error[ ], the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052 ; see also Miller v. Keeney , 882 F.2d 1428, 1434 (9th Cir. 1989) ().2
Third , I think that the overlooked standard-of-proof issue raises a substantial question on the merits—and that fact independently supports our recalling the mandate and also solidifies the conclusion (discussed above) that there is a substantial question as to whether Lozoya was deprived of her constitutional right to effective assistance of counsel.
In addressing the issue of "whether the assault was committed in self-defense," the magistrate judge's guilty finding emphasized the inconsistencies both in "the defendant's testimony and her statements to the special agent and to the flight attendants" and in "the testimony of the defendant's witnesses," and the court concluded that this evidence "failed to establish beyond a reasonable doubt that the defendant was in a position where she felt threatened." On its face, the magistrate judge's resolution of the self-defense issue rests on a plainly incorrect statement of the law. A defendant who raises self-defense only needs to present sufficient evidence to establish a prima facie case, and if that is done (as it was here) then the Government must "disprove it beyond a reasonable doubt." United States v. Keiser , 57 F.3d 847, 851 n.4 (9th Cir. 1995). The majority nonetheless concludes that the magistrate's statement was merely a "stray comment[ ]" that did not reflect a shifting of the burden of proof and that, even if it did, any error was harmless beyond a reasonable doubt. See Order at 4–5. I disagree with the majority on both points.
In dismissing the magistrate judge's comment as a slip of the tongue, the majority wrongly analogizes this case to United States v. Coutchavlis , 260 F.3d 1149 (9th Cir. 2001). In that case, the magistrate judge's verbal juxtaposition of two thoughts (the absence of evidence contradicting the Government's witness's testimony and a finding in accordance with that testimony) could have been read as implying a burden on the defense to come forward with evidence. Id. at 1156. But the resulting ambiguous statement did not have to be read that way, and it was "more reasonable to interpret the magistrate judge's comment" as simply meaning that there was nothing in the record that caused the judge to have a reasonable doubt. Id. at 1156–57. Here, by contrast, there is no reasonable alternative way to read the...
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