and Submitted April 11, 2018 Pasadena, California
from the United States District Court for the Central
District of California D.C. Nos. 2:13-cr-00574-GHK-1,
2:13-cr-00574-GHK-3, 2:13-cr-00574-GHK-2 George H. King,
District Judge, Presiding
Timothy Allen Scott (argued) and Nicolas O. Jimenez, Scott
Trial Lawyers APC, San Diego, California, for
Defendant-Appellant Eric Gonzalez.
Katherine Kimball Windsor (argued), Law Office of Katherine
Kimball Windsor, Pasadena, California, for
Defendant-Appellant Fernando Luviano.
Jonathan I. Edelstein (argued) and Alan Ellis, Law Office of
Alan Ellis, New York, New York for Defendant-Appellant Sussie
M. Alden (argued), Assistant United States Attorney, Criminal
Appeals Section; Lawrence S. Middleton, Assistant United
States Attorney Chief, Criminal Division; United States
Attorney's Office, Los Angeles, California; for
Before: John M. Rogers, [*] Jay S. Bybee, and Paul J. Watford,
panel affirmed convictions and sentences for conspiracy to
deprive a visitor to the Los Angeles County Men's Central
Jail of his civil rights (18 U.S.C. § 241), violating
his civil rights (18 U.S.C. § 242), and falsifying
reports to obstruct an investigation (18 U.S.C. § 1519),
arising from the brutal beating by a group of law enforcement
officers of Gabriel Carrillo while he was handcuffed.
panel rejected Sergeant Eric Gonzalez's and Deputy Sussie
Ayala's challenge to the sufficiency of the evidence
supporting their conspiracy convictions under § 241. The
panel affirmed those convictions regardless of whether there
was sufficient evidence to support the first object of the
charged conspiracy (deprivation of Carrillo's Fourth
Amendment right to be free from the use of excessive force),
since it is undisputed that sufficient evidence exists to
support the second object (deprivation of Carrillo's due
process right not to be prosecuted on the basis of falsified
evidence). The panel also rejected Gonzalez's and
Ayala's sufficiency-of-the-evidence challenge to their
convictions for the substantive offense of willfully
depriving Carrillo of his right to be free from the use of
excessive force, which were predicated on Pinkerton
panel rejected Ayala's and Deputy Fernando Luviano's
challenge to the sufficiency of the evidence to support their
§ 1519 convictions. The panel held that viewed in the
light most favorable to the government, the evidence
introduced at trial amply supported the convictions. The
panel rejected the argument that § 1519 applies only to
financial records or documents, not to reports prepared by
law enforcement officers. The panel held that § 1519
prohibits not just the alteration of existing documents, but
also the creation of false documents. The panel rejected
Luviano's and Ayala's argument that the government
failed to prove that they acted with the requisite intent.
all three defendants' challenge to the district
court's denial of their request to dismiss a juror
shortly after the trial began, the panel held that the record
does not warrant a finding of either implied or actual bias.
panel held that the district court did not commit plain error
by failing to include a proximate-cause requirement in its
instruction on a provision of § 242 that increases the
maximum term of imprisonment "if bodily injury results
from the acts committed in violation of this section."
panel held that the government did not commit misconduct
during closing argument by inviting the jury to credit as
true something that Gonzalez's own lawyer asserted was
panel rejected Ayala's contention that her sentence is
WATFORD, CIRCUIT JUDGE
of law enforcement officers brutally beat Gabriel Carrillo, a
visitor to the Los Angeles County Men's Central Jail,
while he was handcuffed. The defendants are three of the
officers who played a role in the beating: Eric Gonzalez, a
sergeant with the Los Angeles County Sheriff's
Department, and two deputies under his supervision, Fernando
Luviano and Sussie Ayala. Ayala instigated the beating,
Luviano physically participated in it, and Gonzalez summoned
additional officers to the scene and oversaw the cover-up
afterwards. A jury found the defendants guilty of violating
Carrillo's civil rights and falsifying reports to conceal
their wrongdoing. On appeal, the defendants challenge mainly
the sufficiency of the evidence to support their convictions
and the district court's refusal to dismiss an allegedly
biased juror shortly after trial began. We affirm across the
day of the beating, Carrillo and his girlfriend, Griselda
Torres, were visiting Carrillo's brother at the jail.
Gonzalez and Ayala were standing in an employee break room
when another deputy, Pantamitr Zunggeemoge, brought Torres
into the room to determine whether she had smuggled a cell
phone into the facility in violation of jail regulations.
After a search confirmed that she had, Torres told the
officers that her boyfriend also had a cell phone. Gonzalez
ordered Zunggeemoge, who cooperated with the government and
testified against the defendants, to get Carrillo from the
visitors' lobby and bring him to the break room.
Zunggeemoge located Carrillo, cuffed his hands behind his
back, and brought him to the break room. Once inside,
Zunggeemoge pushed Carrillo face-first against a refrigerator
and proceeded to search him while Gonzalez, Ayala, and Torres
looked on. When Carrillo questioned the purpose of the
search, Zunggeemoge lifted Carrillo's arms "all the
way up so he could feel some pain." After Zunggeemoge
finished the search, Carrillo said to Torres, "If I
wasn't in handcuffs, this would be a different
situation." Ayala walked over to Carrillo and demanded,
"What did you say, what did you say?" Carrillo told
Ayala that he had not been speaking to her.
point, Ayala summoned additional officers over her radio.
Luviano and at least two other deputies responded to the call
and entered the break room. As they surrounded Carrillo,
Ayala told them, "You want to know what this homeboy
said? He said that if he wasn't in handcuffs, he'd
take flight on us," meaning Carrillo would fight the
officers. One officer proposed removing Carrillo's
handcuffs to "see how tough he is," while another
suggested that they remove Torres from the break room.
Torres was escorted out, Luviano punched the still-handcuffed
Carrillo in the right side of his face. Luviano and
Zunggeemoge then knocked Carrillo to the ground. Unable to
break his fall, Carrillo landed on his face and stomach.
Luviano and Zunggeemoge began punching Carrillo in the head,
back, ribs, and thighs as he lay on the floor. Blood from
Carrillo's facial wounds soon covered the floor.
Gonzalez, who had been watching these events unfold, summoned
additional officers over his radio using the code
"415," a call indicating that a deputy is involved
in a fight with an inmate. Two more deputies arrived and
joined in punching and kicking Carrillo. At one point
Carrillo lost consciousness; he testified at trial that when
he came to, his head was "bouncing off the floor from
the punches." To add insult to injury, Luviano
pepper-sprayed Carrillo in the face, aggravating his wounds
and making it difficult for him to breathe.
the beating lasted about 45 seconds. Throughout, Carrillo
remained handcuffed and unable to pose any resistance. As a
result of the beating, he suffered bone fractures, trauma to
the head and face, a broken nose, and multiple lacerations.
Carrillo's face was so disfigured by the ...