United States v. Rosales-Aguilar

• Decision Date: 12 April 2016
• Docket Number: No. 14–50315.,14–50315.
• Citation: 818 F.3d 965
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David ROSALES–AGUILAR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

818 F.3d 965

UNITED STATES of America, Plaintiff–Appellee,

v.David ROSALES–AGUILAR, Defendant–Appellant.

No. 14–50315.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 2015.

Filed April 12, 2016.

Kara Hartzler (argued), Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, U.S. Attorney, Brandon James Kimura, Special Assistant U.S. Attorney, Peter Ko, Assistant U.S. Attorney Chief, Appellate Section Criminal Division, Colin M. McDonald (argued), Assistant U.S. Attorney, San Diego, CA, for Plaintiff–Appellee.

Before: ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN and JAY S. BYBEE, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge:

David Rosales–Aguilar was convicted under 8 U.S.C. § 1326 of two counts of attempted illegal reentry. At trial, Rosales did not testify but he snuck in his recollection of events by using an expert witness as a conduit for his own words. The principal issue in this appeal is whether it was proper to allow the government to impeach the expert with statements that Rosales made voluntarily but that weren't Miranda compliant.

FACTS

On June 21, 2013, Border Patrol Officer Moreno spotted Rosales in the pedestrian entry line at San Ysidro. "Disheveled" and "grungy," Rosales "stood out" from the crowd. Rosales told Moreno that he was going to Chula Vista but didn't have any entry documents. He also told Moreno that he wasn't a U.S. citizen. When Moreno asked Rosales how he intended to enter the United States, Rosales replied that he was "just going to walk through and they wouldn't stop him." According to Moreno, it's not unusual for pedestrians to "make a break for it" once they arrive at the front of the line.

Moreno searched Rosales and found a syringe in his pocket but didn't ask whether Rosales was intoxicated. Rosales was arrested and processed for expedited removal. During this process, Rosales said he left Mexico "[t]o find work and to live in the United States." Because these statements were not preceded by a Miranda warning, the district court suppressed them but ruled they were voluntary and could therefore be used for impeachment.

Rosales was removed but three days later, on June 24, Border Patrol officers found him in a bush approximately 300 yards north of the border. When arrested, Rosales was high on methamphetamine and heroin.

After conducting a field interview, the agents took Rosales to a nearby station. Before interrogating him, the agents read him his Miranda rights. As they did so, Rosales—who "was, to some degree, under the influence of heroin and methamphetamine"—was mumbling to himself and nodding off. During this interrogation, Rosales admitted that he had been previously removed and didn't ask the U.S. Attorney General for permission to reenter, that he climbed over the border fence and that he was on his way to San Diego. The district court suppressed Rosales's statements after viewing the videotape and finding that the waiver "couldn't have been [made] knowingly because he was dozing off during part of it." But, as with statements made during his expedited removal on June 21, the court found that these statements were made voluntarily. Thus, the court concluded, "if [Rosales] takes the stand and he denies any of the facts that are set forth in the sworn statement, the government can impeach him with the sworn statement."

Rosales was charged with attempted reentry by a removed alien in violation of 8 U.S.C. § 1326 based on the June 24 bush incident. This indictment was superseded by adding a second count of attempted illegal reentry based on Rosales's June 21 appearance at the port of entry. Rosales was found guilty on both counts.

In calculating the Sentencing Guidelines range, the district court applied a 16–level enhancement upon finding that a 1998 conviction for sale of cocaine base under California Health and Safety Code section 11352(a) —for which Rosales was sentenced to three years in prison—qualified as a drug trafficking offense under U.S. Sentencing Guidelines section 2L1.2(b)(1)(A)(i). The court calculated a Guidelines range of 84 to 105 months, but varied the sentence down to 54 months.

DISCUSSION

Rosales challenges the use of his suppressed statements during the cross-examination of his expert witness. Rosales also appeals the district court's denial of his motion for judgment of acquittal, denial of his motion to dismiss the June 21 count for vindictive prosecution and rejection of an adverse-inference jury instruction based on the routine destruction of border security videos by the government. Rosales also challenges the district court's assessment of a drug-trafficking offense enhancement.

I. Impeachment Exception

Before trial, Rosales filed a motion in limine to prevent the government from using his suppressed statements for purposes other than impeachment of his testimony at trial. Rosales's lawyer explained that he intended to call Dr. Matthew Carroll, a psychiatrist who evaluated Rosales on two occasions, as an expert witness. Dr. Carroll would testify that Rosales told him he had no memory of going to the border or speaking with the agent on June 21, and that Dr. Carroll found this behavior consistent with an individual who is under the influence of drugs. The court warned Rosales that if he offered the hearsay statements—which the court deemed admissible under Federal Rule of Evidence 803(4) —the government would likely be able to impeach the declarant with Rosales's suppressed statements under Federal Rule of Evidence 806.

At trial, Rosales's theory of the case was that he lacked the specific intent necessary for attempted illegal reentry because he was under the influence of heroin and meth. Defense counsel asked Dr. Carroll to talk about his interview with Rosales. Dr. Carroll testified that Rosales "says he doesn't remember anything [that occurred on June 21]. He doesn't remember going [to the port of entry]. He doesn't remember talking to anybody. He doesn't remember it happening at all." And as to the June 24 incident, Dr. Carroll testified, "[Rosales] has some memory about that incident. What he remembers is being asleep in the bushes and all of a sudden seeing Border Patrol agents, and he does remember talking to them and then going to a hospital after that." When Dr. Carroll asked Rosales how he got there, Rosales said, "I don't know; I was just using; I don't know what happened; I don't remember that night at all." Dr. Carroll also testified that Rosales told him that if the Border Patrol hadn't found him, he "would have walked back to Mexico." The court then allowed the government to use Rosales's suppressed statements in cross-examining Dr. Carroll.

"Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct.... [W]ithout it the constitutional guarantee against unreasonable searches and seizures would be a mere ‘form of words.’ " Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quoting Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ). The Supreme Court, however, "has carved out exceptions to the exclusionary rule ... where the introduction of reliable and probative evidence would significantly further the truthseeking function of a criminal trial and the likelihood that admissibility of such evidence would encourage police misconduct is but a ‘speculative possibility.’ " James v. Illinois, 493 U.S. 307, 311–12, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990) (quoting Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) ).

One of these exceptions "permits prosecutors to introduce illegally obtained evidence for the limited purpose of impeaching the credibility of the defendant's own testimony." Id. at 312, 110 S.Ct. 648. In Harris and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), the Court clarified that this exception "permit[s] prosecutors to impeach defendants using incriminating yet voluntary and reliable statements elicited in violation of Miranda requirements." James, 493 U.S. at 312, 110 S.Ct. 648.

But the Court has refused to "[e]xpand[ ] the class of impeachable witnesses from the defendant alone to all defense witnesses." Id. at 313, 110 S.Ct. 648 (emphasis added). In James, one out of three boys fired a gun into a group of eight other boys, "killing one boy and seriously injuring another." Id. at 309, 110 S.Ct. 648. Five members of the larger group testified that the shooter "had ‘reddish’ hair, worn shoulder length in a slicked-backed ‘butter’ style." Id. at 310, 110 S.Ct. 648. The evening after the shooting, two detectives found Darryl James at his mother's beauty parlor. Id. at 309, 110 S.Ct. 648. After being arrested, James told the detectives that he dyed and curled his hair "to change his appearance." Id. The trial court suppressed his statements after finding that "the detectives lacked probable cause for his warrantless arrest." Id. James didn't take the stand, but he called as a witness a family friend who "testified that on the day of the shooting she had taken James to register for high school and that, at that time, his hair was black." Id. at 310, 110 S.Ct. 648. Over James's objection, the trial court allowed the state to impeach the witness with James's prior statements to the police. Id.

The Supreme Court held that the state court erred in allowing the prosecution to use the suppressed statements to impeach the defense witness. Id. at 320, 110 S.Ct. 648. The Court reasoned that the impeachment exception "penalizes defendants for committing perjury by allowing the prosecution to expose their perjury through impeachment using illegally obtained evidence," but "leaves defendants free to testify truthfully on their own behalf." Id. at 314, 110 S.Ct. 648. "The exception thus generally discourages perjured testimony without discouraging truthful testimony." Id. The Court refused to...