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United States v. Gonzalez

United States Court of Appeals, Ninth Circuit

October 10, 2018

United States of America, Plaintiff-Appellee,
v.
Eric Gonzalez, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Fernando Luviano, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Sussie Ayala, Defendant-Appellant.

          Argued and Submitted April 11, 2018 Pasadena, California

          Appeal 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 Ayala.

          Bram 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 Plaintiff-Appellee.

          Before: John M. Rogers, [*] Jay S. Bybee, and Paul J. Watford, Circuit Judges.

         SUMMARY[**]

         Criminal Law

         The 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.

          The 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 liability.

         The 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.

         Rejecting 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.

          The 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."

         The 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 true.

         The panel rejected Ayala's contention that her sentence is substantively unreasonable.

         COUNSEL

          OPINION

          WATFORD, CIRCUIT JUDGE

         A group 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 board.

         I

         On 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.

         At that 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.

         After 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.

         Sergeant 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.

         In all, 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 ...


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