United States v. Raul Villarreal , 621 F. App'x 883 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50295
Plaintiff - Appellee, D.C. No. 3:08-cr-01332-JAH-1
v.
MEMORANDUM*
RAUL VILLARREAL,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50296
Plaintiff - Appellee, D.C. No. 3:08-cr-01332-JAH-2
v.
FIDEL VILLARREAL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted May 4, 2015
Pasadena, California
Before: FISHER, BEA and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Raul and Fidel Villarreal appeal their convictions and sentences for
conspiracy to bring aliens into the United States for financial gain in violation of
18 U.S.C. § 371 (Count 1), bringing aliens into the United States for financial gain
in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) (Counts 2-12), receiving a bribe by a
public official in violation of 18 U.S.C. § 201(b)(2)(A) and (C) (Count 13), and
conspiracy to launder money through international promotion in violation of 18
U.S.C. § 1956(a)(2)(A) and (h) (Count 15). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm in part, vacate in part and remand.
1. The district court did not violate the Villarreals’ Sixth Amendment right
to a public trial by excluding the Villarreals’ brother from the courtroom. Because
this was a partial closure of the trial, see United States v. Yazzie, 743 F.3d 1278,
1288 n.4 (9th Cir. 2014), we apply the Waller v. Georgia, 467 U.S. 39, 48 (1984),
factors as applied by United States v. Sherlock, 962 F.2d 1349, 1356-57 (9th Cir.
1989). See United States v. Rivera, 682 F.3d 1223, 1236 (9th Cir. 2012).
Applying the first factor, the district court had a “substantial reason,”
Sherlock, 962 F.3d at 1357, for excluding the Villarreals’ brother from the
courtroom. He had intimidated and threatened government witnesses, including by
making throat-slashing gestures, following them into the hallway and staring them
down. See Rivera, 682 F.3d at 1236 (noting that “protecting witnesses from fear of
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testifying” may justify closing a courtroom); United States v. Hernandez, 608 F.2d
741, 747 (9th Cir. 1979) (explaining that “the right to a public trial does not
preclude a limited exclusion of spectators when there is a demonstrated need to
protect the witness from threatened harassment or physical harm”).
As to the second factor, the closure was “narrowly tailored” to protect the
integrity of the proceedings. See Sherlock, 962 F.2d at 1358. The district court
excluded only a single spectator from the trial; other members of the Villarreal
family were permitted to be present throughout the proceedings. Given the
brother’s serious and repeated misconduct, the district court was permitted to
ensure the integrity of the proceedings by excluding him from the remainder of the
trial, not only for testimony by government witnesses. The exclusion order was
proportionate and appropriate under the circumstances. Cf. United States v.
Addison, 708 F.3d 1181, 1188 (10th Cir. 2013) (“[I]t was proper in this case for the
court to exclude [a single spectator] from the entire trial because more than one
witness complained of intimidation. Indeed, protecting the participants in a trial is
an integral part of protecting the integrity of the trial itself.”).
Under the third factor, the district court adequately considered “reasonable
alternatives to closing the proceeding.” Waller, 467 U.S. at 48. The district court
had already warned everyone in the courtroom, in the brother’s presence, against
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“nonverbal communications.” Given the seriousness of the brother’s misconduct,
the district court was not required to provide a further admonishment before
excluding him from the courtroom. See Sherlock, 962 F.2d at 1359.
Finally, turning to the fourth factor, the district court made “findings
adequate to support the closure.” Waller, 467 U.S. at 48. The district court was
not required to hear from the intimidated witnesses themselves, as in Guzman v.
Scully, 80 F.3d 772, 775-76 (2d Cir. 1996), because it was undisputed that the
Villarreals’ brother engaged in misconduct, and the conduct was per se
intimidating. The court could have made more detailed findings on the scope of
the closure, but under these circumstances, in which exclusion from the entire trial
was plainly justified, the findings were sufficient for us to conduct an appellate
review and conclude that the court carried out its obligations under Waller.
In sum, the Villarreals’ right to a public trial was not violated.1
2. As the government concedes, “[t]here was no testimony from any witness
that one brother aided or assisted the other in receiving bribes.” Accordingly, as
1
We reject the government’s arguments that the Villarreals forfeited their
right to a public trial by failing to object to the district court’s closure order, see
Rivera, 682 F.3d at 1232-35, that the closure was too trivial to implicate the public
trial right, see id. at 1232 (noting that exclusion of a family member “implicates
Sixth Amendment values more directly than the exclusion of the general public”),
and that, under Cosentino v. Kelly, 102 F.3d 71, 73 (2d Cir. 1996), the
Waller/Sherlock factors need not be examined.
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the government also concedes , the district court erred by giving a supplemental
aiding and abetting instruction on the bribery count in response to a question from
the jury. See United States v. McLister, 608 F.2d 785, 791 (9th Cir. 1979) (“It is of
course well established that an instruction should not be given if it lacks
evidentiary support . . . .”).
We need not decide whether giving the aiding and abetting instruction
amounted to constitutional error. Cf. Dixon v. Williams, 750 F.3d 1027, 1032 (9th
Cir. 2014) (describing how, in the habeas context, we determine whether an
erroneous jury instruction amounted to constitutional error). Even applying the
less onerous prejudice standard governing nonconstitutional error, the government
has not demonstrated the error was harmless.
To show that nonconstitutional error is harmless, “the government must
show a fair assurance that the verdict was not substantially swayed by the error.”
United States v. Chase, 340 F.3d 978, 993 (9th Cir. 2003) (en banc) (internal
quotation marks omitted). Here, the government has not left us with such a fair
assurance. In fact, the record strongly suggests that the error did sway the jury’s
verdict. After deliberating for a full day without reaching a verdict, the jury felt it
necessary to ask the judge to clarify whether each of the elements of bribery had to
be found with respect to each of the Villarreals. In response, the district court gave
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the erroneous aiding and abetting instruction. Only after it received this erroneous
instruction did the jury convict the Villarreals of bribery. Under these
circumstances, we have no “fair assurance” the erroneous instruction did not
substantially sway the jury’s verdict. Cf. United States v. Gergen, 172 F.3d 719,
724 (9th Cir. 1999) (“[B]ecause the jury specifically requested further instruction
as to the mens rea element, it is apparent the jury considered the mens rea element
prior to finding Gergen guilty; the fact that the jury was influenced by the
instruction is clear.”).
In sum, because the supplemental instruction was given in error, and the
error was not harmless, we vacate the Villarreals’ bribery convictions.2 We also
necessarily vacate their sentences, which were based on the bribery convictions.
We nonetheless address the Villarreals’ claims of sentencing error because they
may arise on remand. See United States v. Van Alstyne, 584 F.3d 803, 817 n.14
(9th Cir. 2009).
2
Because we vacate the Villarreals’ bribery convictions on this ground, we
do not reach their arguments that the supplemental instruction violated Federal
Rule of Criminal Procedure 30, that it erroneously set forth the mens rea for the
offense of aiding and abetting bribery and that the district court violated their rights
to due process of law by introducing a new aiding and abetting theory during jury
deliberations without affording them the opportunity to present additional
argument to the jury.
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3. There was no error in the district court’s jury instruction on conspiracy to
commit money laundering. The court properly instructed the jury on the elements
of the offense, including the underlying money laundering crime, 18 U.S.C.
§ 1956(a)(2)(A). See United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir.
2008). The jury was instructed that, in order to find the Villarreals guilty, it had to
find “there was an agreement between two or more persons to launder money
through international promotion, that is, to transmit or transfer monetary
instruments or funds from a place inside the United States to a place outside the
United States with the intent to promote the carrying on of the specified unlawful
activity, that is, bringing aliens to the United States for the purpose of commercial
advantage or private gain.” This instruction adequately covered the elements of
the offense, including the specific intent required under § 1956(a)(2)(A). See
United States v. Trejo, 610 F.3d 308, 313-14 (5th Cir. 2010). The Villarreals also
have not presented any authority for the proposition that the court was required to
denote the conspiracy elements and the elements of the underlying money
laundering crime in separate instructions.
4. The district court did not misapply grouping principles. Under the plain
language of the Sentencing Guidelines, “[t]he combined offense level is
determined by taking the offense level applicable to the Group with the highest
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offense level,” not the Group with the highest statutory maximum. U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 3D1.4. Accordingly, the district court
properly relied on Group Two to establish the combined offense level,
notwithstanding the 15-year statutory maximum sentence applicable to the bribery
offense. We do not read United States v. Brinton, 139 F.3d 718, 721-22 (9th Cir.
1998), as holding otherwise. Nor did the district court’s sentencing run afoul of
U.S.S.G. § 5G1.2. The 10-year sentences the court imposed on the bribery counts
fell within the 15-year statutory maximum. In addition, the guideline ranges
calculated by the district court (although erroneous for other reasons, as discussed
below) fell within the combined statutory maximums.
5. The district court did not err in imposing aggravating role adjustments.
See U.S.S.G. § 3B1.1. First, the district court properly found the Villarreals had
aggravating roles not only with respect to the alien smuggling counts but also with
respect to the bribery count in particular. See United States v. Antico, 275 F.3d
245, 270 (3d Cir. 2001). The record shows the Villarreals exercised the same
decisionmaking authority and control over the payments they received as they
exercised over other aspects of the operation.
Second, the district court properly found there were five or more
participants. Under the Guidelines, “[a] ‘participant’ is a person who is criminally
8
responsible for the commission of the offense, but need not have been convicted.”
U.S.S.G. § 3B1.1 cmt. n.1. Here, although only two persons actually received
bribes, others – including Claudia Gonzalez, Hector Cabrera and Armando Garcia
– aided and abetted the Villarreals in the crime of receiving bribes. The participant
requirement, therefore, is satisfied. See United States v. Smith, 719 F.3d 1120,
1126 (9th Cir. 2013) (“Any person who knowingly abets the defendant’s conduct
qualifies as a ‘participant.’”).
Third, the district court properly found the Villarreals “exercised some
degree of control or organizational authority over others.” United States v. Avila,
95 F.3d 887, 890 (9th Cir. 1996). The evidence shows the Villarreals specifically
directed Claudia Gonzalez in the manner in which their payments were to be made,
as the district court found.
Fourth, the district court did not clearly err when it concluded the Villarreals
received a “lion’s share” of the proceeds of the smuggling operation. See U.S.S.G.
§ 3B1.1 cmt. n.4. The Villarreals point out that Ana Trotman may have received a
greater share of the proceeds on some of the smuggling runs, but Trotman was not
the only person supplying the operation. Furthermore, even if the Villarreals did
not receive the largest share of the proceeds, they received an enormous share, and,
given the other evidence that they directed and controlled the operation, the court’s
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ultimate conclusion the Villarreals played aggravating roles was not clearly
erroneous.
6. The district court erred in applying the Sentencing Guidelines. Under the
Guidelines, a sentencing court should (1) conduct the grouping analysis under
§ 3D1.4, (2) determine a guideline range, (3) consider departures and (4) arrive at
and adequately explain a sentence by reference to the 18 U.S.C. § 3553(a) factors.
See U.S.S.G. § 1B1.1. Here, however, the district court appears to have (1)
calculated a total offense level, including increases in the offense level to account
for departures, (2) conducted a grouping analysis, (3) calculated a guideline range
for Raul (none was calculated for Fidel) and (4) arrived at a sentence. The court
erred by considering departures before calculating the guideline ranges. See
U.S.S.G. §§ 1B1.1, 3D1.3(a); United States v. Munoz-Camarena, 631 F.3d 1028,
1030 (9th Cir. 2011); United States v. Evans-Martinez, 611 F.3d 635, 643 (9th Cir.
2010); United States v. Joetzki, 952 F.2d 1090, 1097 (9th Cir. 1991). The court
also erred by failing to calculate a guideline range for Fidel and by calculating an
erroneous guideline range for Raul. See United States v. Carty, 520 F.3d 984, 991
(9th Cir. 2008) (en banc). And the court erred by failing to adequately explain the
sentences in light of the § 3553(a) factors. See id. at 992. The court should bear
these considerations in mind on remand.
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7. The district court did not err by finding that the Villarreals each received
more than one bribe. See U.S.S.G. § 2C1.1(b)(1). “Although the payments were
part of a larger conspiracy, they were not installment payments for a single action.”
United States v. Kahlon, 38 F.3d 467, 470 (9th Cir. 1994); see U.S.S.G. § 2C1.1
cmt. n.2. The Villarreals also offer no support for their contention they cannot be
subject to the more-than-one-bribe enhancement merely because they were charged
with a single count of bribery.
8. Because we vacate the sentences on other grounds, we do not reach the
Villarreals’ argument that their sentences were substantively unreasonable.
***
We affirm the Villarreals’ convictions for conspiracy to bring aliens into the
United States for financial gain, bringing aliens into the United States for financial
gain and conspiracy to launder money through international promotion. We vacate
their convictions for receiving a bribe by a public official. We also vacate their
sentences. We remand to the district court for proceedings consistent with this
disposition.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
The government’s motion for judicial notice is DENIED as moot.
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