USA v. Pineda-doval
| Decision Date | 10 August 2010 |
| Docket Number | No. 08-10240.,08-10240. |
| Citation | 614 F.3d 1019 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Adan PINEDA-DOVAL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Jon M. Sands, Federal Public Defender, and Daniel L. Kaplan, Assistant Federal Public Defender, Phoenix, AZ, for the defendant-appellant.
Diane J. Humetewa, United States Attorney, District of Arizona; John R. Lopez IV, Deputy Appellate Chief; Joseph Koehler, Raymond K. Woo, Dominic Lanza, Assistant United States Attorneys, 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. 2:06-cr-00778-SMM-1.
Before: BETTY B. FLETCHER, WILLIAM C. CANBY, JR., and SUSAN P. GRABER, Circuit Judges.
Adan Pineda-Doval was convicted, after a seven-day jury trial, on ten counts of transportation of illegal aliens resulting in death, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv). The district court sentenced him to a term of life imprisonment on each count, sentences to be served concurrently. On appeal, Pineda-Doval challenges his convictions, primarily on the basis that the jury should have been instructed that it could find the defendant guilty only if his conduct was the proximate cause of the ten charged deaths. In addition, he argues that his conviction should be vacated because of improper jury instructions regarding the lesser included offense of transportation of illegal aliens, incorrect evidentiary rulings, and prosecutorial misconduct at closing arguments. Finally, Pineda-Doval challenges his sentence; he argues that the district court did not find that he acted with malice aforethought and therefore should not have calculated his recommended Guidelines sentence using the second-degree murder guideline, and also that the district court should have applied the heightened “clear and convincing” standard of proof at sentencing. We affirm Pineda-Doval's conviction, vacate his sentence, and remand for re-sentencing.
Early in the morning on August 7, 2008, Pineda-Doval loaded twenty men, women, and children into a Chevrolet Suburban. The car was not equipped with rear seats or safety belts. All of his passengers were illegal aliens. Eighteen of them crowded into the back of the Suburban, and two pregnant women sat in the front seat next to Pineda-Doval, the driver.
Customs and Border Patrol (“CBP”) Agent Corey Lindsay was driving south on Red Cloud Mine Road, a remote dirt road in southern Arizona that is believed by Border Patrol to be popular with alien smugglers. He passed Pineda-Doval, who was driving in the opposite direction, and saw that the Suburban was crowded with passengers. Agent Lindsay radioed for assistance and turned his car around to follow Pineda-Doval. The defendant quickly realized that he was being pursued, made a U-turn, and started driving towards Mexico. Agent Lindsay did the same. Though Pineda-Doval was forced to drive slowly because of the state of the road and weight of his car, he tried to lose Agent Lindsay several times by hitting the brakes or attempting to pull into the brush. Some passengers grew frightened and yelled at the defendant to stop. He refused.
Pineda-Doval then turned left onto the paved, two-lane Martinez Lake Road. Heading east, he accelerated to about 50-55 miles per hour, occasionally reaching speeds of about 70 miles per hour. Agent Lindsay continued to trail him.
Meanwhile, Agent Clinton Russell responded to Agent Lindsay's request for assistance and drove west on Martinez Lake Road, heading in the direction of the defendant and Agent Lindsay. He carried with him a controlled tire deflation device (“CTDD”), also called a “spike strip.” A CTDD is a tool used by Border Patrol to stop fleeing vehicles. It consists of a series of x-shaped plastic links that, when expanded, can cover one lane of traffic. Hollow tubes are embedded along the plastic strip. When a vehicle drives over an expanded CTDD, the hollow tubes pierce the tires, causing air to gradually escape, disabling the vehicle.
Agent Russell had never used a CTDD before. Between them, Agents Russell and Lindsay had witnessed over 100 CTDD deployments, many of them involving SUVs that were overloaded with passengers. Neither of them had ever seen a spiked vehicle roll over. Pineda-Doval had twice before been the target of a spike strip. On both occasions he had been transporting illegal aliens. The first time he managed to swerve around the CTDD, but the next time he was successfully stopped and apprehended by Border Patrol.
Agent Russell stopped at a point on Martinez Lake Road where the road was relatively flat and there was little traffic. He placed the collapsed CTDD on one side of the road and hid in the brush on the opposite side of the road, ready to pull the CTDD across the pavement when Pineda-Doval approached. Agent Russell radioed Agent Lindsay and advised him of the location of the spike strip. About one and a half miles from Agent Russell's location, when Pineda-Doval was traveling about 45 miles per hour, Agent Lindsay turned on his vehicle's lights and siren. When Pineda-Doval did not yield, Agent Lindsay told Agent Russell to deploy the spike strip.
Agent Russell waited until the Suburban was approximately 80 to 100 feet away and then yanked the spike strip across the road. Pineda-Doval shouted to his passengers, “Commend yourselves to God, because we are being pursued.” He swerved across the westbound lane of traffic and onto the dirt shoulder, trying to drive around the CTDD, but it caught his right rear tire. He immediately swerved back onto the paved road. The weight of his unsecured passengers suddenly shifted, and the front edge of the Suburban “tripped” into the asphalt. Passengers were thrown from the Suburban as it rolled once on its side and then once more end-to-end, finally coming to rest right side up but facing the wrong direction. Five passengers died at the scene, and five more died at hospitals as a result of injuries sustained in the crash.
Pineda-Doval was charged with ten counts of transportation of illegal aliens resulting in death, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv), one count of transportation of illegal aliens placing in jeopardy the life of any person, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iii), and one count of reentry after deportation, 8 U.S.C. § 1326(a).
Before trial, the government submitted a motion in limine to bar Pineda-Doval from offering evidence that the Border Patrol agents had not complied with CBP policies for deploying spike strips. Over the defendant's objection, the district court granted the motion, concluding that such evidence was irrelevant.
The trial lasted seven days. The Government called the agents involved in the pursuit of Pineda-Doval, the immigration officer who interviewed Pineda-Doval after the crash, two of the Suburban's passengers, and an expert in car accident reconstruction. At the end of the Government's case, Pineda-Doval's counsel renewed his request to submit evidence of CBP policies on CTDDs. The court again refused. Defense counsel rested, explaining that he had no evidence because of the court's ruling. The jury deliberated for about an hour and a half before finding the defendant guilty on all counts. The district court sentenced Pineda-Doval to life imprisonment on each of the ten counts of transportation of illegal aliens resulting in death, sentences to run concurrently.
Pineda-Doval now appeals his conviction and sentence.
Pineda-Doval argues that his conviction must be vacated because the jury instructions did not require the jury to find that his transportation was the proximate cause of the deaths of his ten passengers. “A proximate cause is one which played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence of the defendant's speed or condition or manner of driving.” United States v. Main, 113 F.3d 1046, 1050 (9th Cir.1997).
The defendant was charged and convicted of violating 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv), which has five elements: The defendant must have (1) known or been in reckless disregard of the fact that the person he was transporting was (2) an alien who was (3) in the United States illegally; (4) the defendant must have transported the alien in order to help him or her enter or remain in the United States illegally; and (5) the defendant's transportation must have resulted in the death of some person. With respect to the final element, the district court instructed the jury as follows:
As used in these instructions and the form of the verdict, “resulted in death” means that the death of a person occurred in the course of the transportation
of an illegal alien and was related to the transportation of an illegal alien. You must find that during the course of the transportation the defendant exposed individuals to one or more life-threatening conditions and the life-threatening condition(s) was a cause in the deaths of those named in the enumerated counts of the indictment.
(Emphasis added.) 1
Pineda-Doval argues that this definition of “resulting in death” misstated the law because the instructions should have required the Government to prove that “the defendant exposed” his passengers to life-threatening conditions and that his transportation was the proximate cause of the ten deaths.
As a threshold matter, we consider whether this argument was properly preserved. Generally, “[w]e review de novo whether the jury instructions accurately define the elements of a statutory offense.” United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.2000) (citing United States v. Gergen, 172 F.3d 719, 724 (9th Cir.1999); United States v. Iverson, 162 F.3d 1015, 1022 (9th...
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