USA V. SEGUNDO DOMINGUEZ-CAICEDO, No. 19-50268 (9th Cir. 2022)
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Defendants in three consolidated cases were convicted of conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting. They challenged the district court’s denial of their pre-trial motions to dismiss the indictment. Defendants also argue that the prosecutor committed misconduct in his closing argument. The Defendants made individual claims as well.
Defendants argued that even if outrageous government conduct does not require dismissal of the indictment, the district court should have used its supervisory powers to provide the same remedy, asserting that the government should tread lightly in international waters, and the court should not condone mistreatment of foreigners with no connection to the United States. The Ninth Circuit wrote that pursuant to United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995), that is not a sufficient reason to hold that the district court abused its discretion by not dismissing the indictment. The court, therefore, affirmed the district court’s denial of the defendants’ motions to dismiss the indictment.
Further, the court held that a court has the power to dismiss an indictment for egregious violations of Rule 5, and that the proper inquiry is whether transportation to the United States as a whole was unnecessarily delayed, rather than whether there was some other district in the United States in which the defendant could have been brought before a magistrate judge more quickly. The court held that the district court did not clearly err in its determination that 23 days was not an unreasonable delay.
Court Description: Criminal Law. The panel affirmed Adrian Andres Cortez-Quinonez’s, Segundo Marcial Domingez-Caicedo’s, and Victor Gaspar Chichande’s convictions for conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting; affirmed Dominguez-Caicedo’s and Cortez-Quinonez’s sentences; vacated Chichande’s sentence; and remanded for Chichande’s resentencing. Coast Guard officers boarded a suspicious panga boat carrying the defendants near the Galapagos Islands after the boat ignored warnings to stop. Officers then detained the defendants, and the Coast Guard transferred them to a series of Coast Guard cutters, eventually transferring them to DEA custody in Long Beach, where a DEA agent had each defendant sign a Rule 5 waiver that allowed them to be transferred to San Diego instead of going before a magistrate judge in Long Beach. The defendants moved to dismiss the indictment for outrageous government conduct based on their treatment aboard the Coast Guard cutters. In order to secure dismissal of an indictment due to outrageous government conduct, a defendant must show a nexus between the conduct and either securing the indictment or procuring the conviction. The defendants claimed that the nexus between the Government’s conduct and securing the indictment is 4 UNITED STATES V. DOMINGUEZ-CAICEDO satisfied because if the Coast Guard had chosen to treat the defendants and other detainees humanely, they couldn’t have conducted their Pacific operations. The panel wrote that this is not the type of nexus this court generally considers sufficient to establish outrageous government conduct requiring dismissal of an indictment, noting that nearly all police actions are broadly connected to securing indictments. The panel wrote that the Ninth Circuit appears to have assumed without deciding that outrageous government conduct could apply to conditions of confinement, so long as there is a nexus between the conduct and securing the indictment or conviction. Because there is no nexus here, the panel did not revisit that conclusion. The defendants argued that even if outrageous government conduct does not require dismissal of the indictment, the district court should have used its supervisory powers to provide the same remedy, asserting that the government should tread lightly in international waters, and the court should not condone mistreatment of foreigners with no connection to the United States. The panel wrote that pursuant to United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995), that is not a sufficient reason to hold that the district court abused its discretion by not dismissing the indictment. The panel therefore affirmed the district court’s denial of the defendants’ motions to dismiss the indictment. The defendants also sought to dismiss the indictment for violation of Fed. R. Crim. P. 5, which requires that the Government bring defendants before a magistrate judge without unnecessary delay. The panel held that a court has the power to dismiss an indictment for egregious violations of Rule 5, and that the proper inquiry is whether transportation to the United States as a whole was unnecessarily delayed, rather than whether there was some other district in the United States in which the defendant UNITED STATES V. DOMINGUEZ-CAICEDO 5 could have been brought before a magistrate judge more quickly. The panel held that the district court did not clearly err in its determination that 23 days was not an unreasonable delay, given that the Coast Guard needed to transport the defendants from near the Galapagos Islands to San Diego. The panel therefore concluded that the Coast Guard’s decision to take the defendants to California, rather than Florida, did not violate Rule 5. The panel also held that the district court did not clearly err in finding that the delays between arrival in Long Beach and presentment before a magistrate judge in San Diego were reasonable. Because the panel held that the Government did not violate Rule 5, it did not need to examine whether the defendants voluntarily signed their Rule 5 waivers, or whether the facts of this case present a Rule 5 violation that warrants dismissal of the indictment. Cortez-Quinonez argued that even if there was no Rule 5 violation, his statement still should have been suppressed because it was involuntary. The panel held that the district court did not err by finding that the statement was voluntary under the Due Process Clause, where, at the time he gave his statement, Cortez-Quinonez was no longer experiencing the coercive government misconduct he alleged is the treatment he received on the Coast Guard cutter. The panel next addressed the defendants’ prosecutorial misconduct claims. The panel held that the prosecutor’s use of a “drug trafficker’s playbook” analogy during closing argument did not constitute prosecutorial misconduct because the prosecutor’s references to a “playbook” were not meant to imply that there was an actual playbook in evidence; instead, the prosecutor used the analogy to explain why the defendants did what they did. Rejecting the contention that the prosecutor committed misconduct by 6 UNITED STATES V. DOMINGUEZ-CAICEDO arguing in closing that Dominguez-Caicedo was in charge but arguing at sentencing that Cortez-Quinonez was the leader, the panel wrote that the prosecutor did not argue facts that he knew were untrue, and that it was not inconsistent for him to point out all of these facts about Dominguez-Caicedo and Cortez-Quinonez both in closing argument and at sentencing. For the same reasons, the panel rejected Cortez- Quinonez’s argument that the prosecutor’s alleged misconduct resulted in depriving him of a minor role reduction, violating his right to due process. The panel held that the prosecutor’s statement that “throwing cocaine overboard on a vessel is knowing possession of cocaine” was harmless error in the context of the entire trial. In order to corroborate his duress defense, Dominguez- Caicedo attempted to call as an expert witness an attorney who grew up near where Dominguez-Caicedo lived in Colombia, and who would have testified that he is aware that armed criminal paramilitary groups in the area kidnap, intimidate, and use violence to further their criminal enterprises. Dominguez-Caicedo contended that, in excluding the testimony, the district court’s focus on the Daubert factors of reliable principles and methods was misplaced, where the subject of the testimony was to be his knowledge and experience, rather than his scientific analyses. The panel held that, given the extremely broad latitude the Supreme Court has said district courts have in conducting this inquiry, the district court did not abuse its discretion by looking at these particular factors and finding the proposed witness’s testimony wanting. All three defendants challenged the district court’s denial of their requests for minor role reductions at sentencing. The panel clarified how district courts should conduct the minor role analysis. To be eligible for either a “minimal” role UNITED STATES V. DOMINGUEZ-CAICEDO 7 adjustment, which comes with a guidelines reduction of at least four levels, U.S.S.G. § 3B1.2(a), cmt. 4, or a “minor’ role adjustment, which provides a reduction of at least two levels, id. at cmt 5, the defendant must be substantially less culpable than the average participant in the criminal activity. The relevant comparison is to the other participants in the defendant’s crime, not to typical defendants who commit similar crimes. To determine whether a defendant is substantially less culpable than the average participant in the offense, a district court must (1) identify all of the individuals for whom there is sufficient evidence of their existence and participation in the overall scheme; (2) calculate a rough average level of culpability for these individuals, taking into consideration the five factors in comment 3(C) to the Mitigating Role Guideline; and (3) compare the defendant’s culpability to that average. The panel agreed with Chichande that the district court’s exclusion of his recruiter from the analysis was erroneous because the proper comparison is the average of all of the individuals who participated in Chichande’s offense, including those that the district court believed were leaders or organizers or who were otherwise highly culpable. Because the district court misunderstood the appropriate legal standard, the panel vacated Chichande’s sentence and remanded for the district court to conduct the minor role analysis applying the correct legal standard. The panel concluded that the Government did not meet its burden of establishing that any error was harmless. The panel held that the district court did not abuse its discretion in denying Cortez-Quinonez a minor role adjustment. The panel wrote that the fact that illicit drugs are often traceable to larger drug trafficking organizations does not mean that district courts must compare the conduct 8 UNITED STATES V. DOMINGUEZ-CAICEDO of each defendant convicted of a drug crime to that of every hypothetical member of a drug trafficking organization; the relevant comparators are the actual participants in the defendant’s crime, and the district court is not required to compare the defendant’s culpability with that of the unidentified person. The panel held that the district court likewise did not err in denying Dominguez-Caicedo a minor role reduction. The panel wrote that the district court did not determine that the “guys with guns” and the “man who commandeered Mr. Dominguez” were “likely participants,” and therefore did not err by excluding them from the comparison. Because Dominguez-Caicedo did not properly object to the Presentence Report at all, the district court was not required to address his argument raised for the first time in his sentencing memorandum—and never mentioned during the sentencing hearing—that there was sufficient evidence that the individuals identified were involved in the crime. UNITED STATES V. DOMINGUEZ-CAICEDO 9
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