United States v. Eric Gonzalez , 906 F.3d 784 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50483
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00574-GHK-1
ERIC GONZALEZ,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50528
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00574-GHK-3
FERNANDO LUVIANO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50542
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00574-GHK-2
SUSSIE AYALA,
Defendant-Appellant. OPINION
2 UNITED STATES V. GONZALEZ
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted April 11, 2018
Pasadena, California
Filed October 10, 2018
Before: John M. Rogers,* Jay S. Bybee,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
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 Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ 3
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.
4 UNITED STATES V. GONZALEZ
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
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.
UNITED STATES V. GONZALEZ 5
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.
6 UNITED STATES V. GONZALEZ
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
UNITED STATES V. GONZALEZ 7
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
beating that Torres could not recognize him when she saw
him a few days later.
After Carrillo was carried out of the break room to receive
medical attention, the officers huddled up to concoct a story
that would justify their use of force. Sergeant Gonzalez, as
the ranking officer, led the effort. He directed Zunggeemoge
to prepare the primary incident report and largely dictated its
contents. The report truthfully stated that Carrillo had been
detained for possessing a cell phone and had been knocked to
the floor, punched in the face, and pepper-sprayed. But the
report falsely stated that Carrillo had attacked the officers and
attempted to escape from their custody. According to the
report, only one of Carrillo’s hands had been handcuffed
during the incident, and he had used the handcuff dangling
from his hand as a weapon by wildly swinging it at the
officers. The officers’ use of force, under this telling, had
been necessary to subdue a combative and resistant suspect.
Each of the three defendants prepared their own use-of-
force reports repeating the agreed-upon cover story and
8 UNITED STATES V. GONZALEZ
describing their involvement in the incident. Of particular
note, Gonzalez’s report stated that he had summoned
additional officers to the scene and directed them to use force
against Carrillo. Ayala’s report stated that she had helped
Luviano and Zunggeemoge knock Carrillo to the floor. None
of the witnesses who testified at trial corroborated Gonzalez’s
claim that he had directed officers to use force or Ayala’s
claim that she had used force against Carrillo.
Gonzalez also directed Zunggeemoge to prepare a
probable cause declaration for use in prosecuting Carrillo.
The account in the declaration tracked the false narrative
contained in the officers’ reports. Based on the declaration,
the district attorney’s office charged Carrillo with assaulting
and resisting an officer and attempting to escape from
custody.
Prosecutors dropped the charges against Carrillo after
incriminating text messages between Gonzalez and another
deputy surfaced, triggering an investigation into the
circumstances leading up to the beating. The other deputy,
who had arrested Carrillo’s brother two days before the
beating, sent Gonzalez a text message attaching the booking
photo of Carrillo’s brother showing his face cut and bruised.
Gonzalez responded by sending the deputy Carrillo’s booking
photo, which showed even more extensive injuries to
Carrillo’s face. Gonzalez joked, “Looks like we did a better
job . . . . Where’s my beer big homie.”
The federal government charged Gonzalez, Luviano, and
Ayala with violating Carrillo’s civil rights and falsifying
reports of the beating. Count One of the indictment charged
Gonzalez and Ayala with conspiring to deprive Carrillo of his
civil rights, in violation of 18 U.S.C. § 241. Count Two
UNITED STATES V. GONZALEZ 9
charged all three defendants with willfully depriving Carrillo
of his right to be free from the use of excessive force, in
violation of 18 U.S.C. § 242. And Count Three charged each
defendant with falsifying reports to obstruct an investigation,
in violation of 18 U.S.C. § 1519.
After a five-day trial, the jury found the defendants guilty
on all counts. The district court denied the defendants’ post-
trial motions for judgment of acquittal or, in the alternative,
a new trial. The court sentenced Gonzalez to 96 months of
imprisonment, Luviano to 84 months, and Ayala to
72 months.
On appeal, the defendants each filed separate briefs
advancing an assortment of arguments. Gonzalez and Ayala
challenge the sufficiency of the evidence to support their
convictions under 18 U.S.C. § 241. Luviano and Ayala
challenge the sufficiency of the evidence to support their
convictions under § 1519. All three defendants contend that
the district court should have dismissed an allegedly biased
juror shortly after the trial commenced. Gonzalez and Ayala
contest one aspect of the jury instructions on the § 242
charge. Gonzalez contends that the government committed
misconduct during closing arguments by asking the jury to
draw factual inferences that the prosecutor knew to be false.
And finally, Ayala challenges the substantive reasonableness
of her 72-month sentence.
II
We begin with Gonzalez’s and Ayala’s challenge to the
sufficiency of the evidence supporting their convictions under
18 U.S.C. § 241. As relevant here, § 241 prohibits two or
more persons from “conspir[ing] to injure, oppress, threaten,
10 UNITED STATES V. GONZALEZ
or intimidate any person . . . in the free exercise or enjoyment
of any right or privilege secured to him by the Constitution or
laws of the United States.” Count One charged Gonzalez and
Ayala with a § 241 conspiracy that had two objects: (1) to
deprive Carrillo of his Fourth Amendment right to be free
from the use of excessive force; and (2) to deprive Carrillo of
his due process right not to be prosecuted on the basis of
falsified evidence. The jury returned a general verdict finding
both defendants guilty of Count One as charged. Gonzalez
and Ayala concede that there was sufficient evidence to
support the second object. They contend that the verdict on
Count One must nevertheless be reversed because there was
insufficient evidence to support the first object and the jury’s
general verdict makes it impossible to tell which of the two
objects the jury agreed upon.
A
Before addressing the defendants’ sufficiency challenge,
we begin by rejecting the flawed premise of their argument.
Gonzalez and Ayala assume that whenever one object of a
multiple-object conspiracy is not supported by sufficient
evidence, a general verdict must be set aside. The Supreme
Court foreclosed that very argument in Griffin v. United
States, 502 U.S. 46 (1991). There, the Court held that
reversal is required only if one of the objects of the
conspiracy is legally deficient—for example, because the
conduct underlying the object is protected by the
Constitution, occurred outside the statute of limitations, or
“fails to come within the statutory definition of the crime.”
Id. at 59. In that scenario, if the basis for the jury’s verdict is
unclear, reversal is required because we do not expect jurors
to be able to determine “whether a particular theory of
conviction submitted to them is contrary to law.” Id.; see
UNITED STATES V. GONZALEZ 11
also Yates v. United States, 354 U.S. 298, 312 (1957). The
rule is different when all objects of the conspiracy are sound
as a legal matter, but one of them lacks adequate evidentiary
support. Because “jurors are well equipped to analyze the
evidence,” we can be confident that the jury chose to rest its
verdict on the object that was supported by sufficient
evidence, rather than the object that was not. Griffin,
502 U.S. at 59. In this latter scenario, the verdict stands.
This case is controlled by Griffin. Gonzalez and Ayala do
not contend that either object of the conspiracy charged in
Count One was legally deficient. They do not, for example,
assert that the jury instructions improperly defined the
elements of the crime. They argue only that the first object,
concerning Carrillo’s right to be free from the use of
excessive force, was not supported by sufficient proof. Even
if we agreed with them on that point (which we don’t, for
reasons explained below), they would not be entitled to
reversal of their convictions on Count One. The evidence
was sufficient to prove the second object, as they freely
concede. That suffices to sustain the jury’s general verdict
against the challenge Gonzalez and Ayala assert. See id.
Although the Supreme Court’s 1991 decision in Griffin
provides the rule that controls here, Gonzalez and Ayala
contend that our court established a contrary rule in United
States v. Manarite, 44 F.3d 1407 (9th Cir. 1995). In that case,
they say, we reversed a general verdict convicting the
defendants of a multiple-object conspiracy where two of the
five objects (mail and wire fraud) were not supported by
sufficient evidence. Gonzalez and Ayala are wrong. In
Manarite, we held that the fraudulent scheme underlying the
mail and wire fraud objects “did not constitute mail or wire
fraud as a matter of law.” Id. at 1413. To put it in the
12 UNITED STATES V. GONZALEZ
language of Griffin, the conduct charged by the government,
even if proved by sufficient evidence, did not “come within
the statutory definition of the crime.” 502 U.S. at 59.
Because the jury could not have been expected to recognize
that legal deficiency, we reversed the defendants’
convictions. We did not hold—and indeed, in light of Griffin,
could not have held—that the defendants were entitled to
reversal of their convictions because the evidence was
insufficient to prove the charged conduct itself.
In short, we affirm Gonzalez’s and Ayala’s conspiracy
convictions under § 241 regardless of whether there was
sufficient evidence to support the first object of the charged
conspiracy, since it is undisputed that sufficient evidence
exists to support the second object.
B
We must nonetheless resolve Gonzalez’s and Ayala’s
sufficiency challenge because their convictions for the
substantive offense charged in Count Two are predicated on
Pinkerton v. United States, 328 U.S. 640 (1946). Under
Pinkerton, a defendant may be found guilty of a criminal
offense committed by his co-conspirators if (1) the offense
was committed during the course and in furtherance of the
conspiracy, (2) the defendant was a member of the conspiracy
at the time the offense was committed, and (3) the offense fell
within the scope of the unlawful agreement and could be
“reasonably foreseen as a necessary or natural consequence
of the unlawful agreement.” Id. at 647–48; see United States
v. Gadson, 763 F.3d 1189, 1215 (9th Cir. 2014). Here, the
government argued at trial that if Gonzalez and Ayala
conspired to deprive Carrillo of his right to be free from the
use of excessive force, as charged in the first object of Count
UNITED STATES V. GONZALEZ 13
One, they were also guilty under Pinkerton of the substantive
offense committed by their co-conspirators as charged in
Count Two. Gonzalez and Ayala do not contest these general
principles. They contend that Pinkerton liability cannot apply
because the government failed to prove that they in fact
conspired to commit the first object of the conspiracy as
charged in Count One.
The same general rules governing proof of conspiracies
elsewhere in the criminal law apply under § 241, although no
overt act is required. United States v. Skillman, 922 F.2d
1370, 1375–76 (9th Cir. 1990). In order to convict Gonzalez
and Ayala of violating § 241 based on the first object of the
charged conspiracy, the government had to prove: (1) that
two or more persons agreed to deprive Carrillo of his right to
be free from the use of excessive force, and (2) that Gonzalez
and Ayala knowingly joined the agreement and intended to
deprive Carrillo of his right to be free from the use of
excessive force. See id. at 1373. In evaluating a sufficiency-
of-the-evidence challenge, we ask whether, viewing the
evidence in the light most favorable to the government, any
rational jury could have found each element of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979).
The first element requires proof of an agreement among
the conspirators to commit a crime—here, a violation of 18
U.S.C. § 242. The government does not need to prove the
existence of an express agreement; a tacit agreement will
suffice. United States v. Reese, 2 F.3d 870, 893 (9th Cir.
1993). A tacit agreement may be inferred from the
conspirators’ conduct as well as other circumstantial
evidence. United States v. Duenas, 691 F.3d 1070, 1085 (9th
Cir. 2012).
14 UNITED STATES V. GONZALEZ
None of the officers involved in the beating ever said to
each other, “Let’s get together and use excessive force against
Carrillo.” But there was more than sufficient evidence of a
tacit agreement to do just that. Ayala instigated the beating
by summoning other officers to the break room, despite the
fact that Carrillo was handcuffed, under control, and not
being combative. When Luviano and the other officers
arrived, Ayala made clear that she had summoned them not
to help quell a fight, but to start one. She informed the
assembled officers, in a manner that the jury could conclude
was intended to goad her colleagues into taking retaliatory
action, that Carrillo had said he would fight the officers if he
weren’t in handcuffs. One of the officers suggested that they
remove Carrillo’s girlfriend from the break room, thereby
eliminating the only non-officer witness to what was about to
happen. Everyone present understood at that point that
Carrillo would be taught a lesson for making his remark.
After acting together to punish Carrillo for his perceived
insolence, the officers then engaged in a concerted effort to
cover up their wrongdoing.
A rational jury could infer from this evidence that the
officers tacitly agreed to use excessive force against Carrillo.
The officers shared a common motive—to punish Carrillo.
They acted together to achieve that objective by repeatedly
punching and kicking him. And they huddled together
afterward to come up with an agreed-upon story that would
justify their actions, a story each of the officers repeated in
the falsified reports they submitted. Taken together, these
facts—a common motive, joint action in pursuit of a common
objective, and a coordinated cover-up—suffice to support the
existence of a conspiracy. See, e.g., United States v.
Navarrette-Aguilar, 813 F.3d 785, 794 (9th Cir. 2015);
UNITED STATES V. GONZALEZ 15
United States v. Smith, 294 F.3d 473, 478–79 (3d Cir. 2002);
United States v. Davis, 810 F.2d 474, 477 (5th Cir. 1987).
With respect to the second element, a rational jury could
also have found that Gonzalez and Ayala knowingly joined
the conspiracy and intended to deprive Carrillo of his right to
be free from the use of excessive force. As to Gonzalez, the
jury could rely on the fact that, after witnessing the events
that led to Carrillo’s beating, Gonzalez summoned additional
officers to the break room even though he knew there was no
legitimate law enforcement purpose for doing so. Carrillo
was already on the ground in handcuffs being pummeled by
multiple officers. Viewed in the light most favorable to the
government, Gonzalez’s summoning of additional officers
proved that he shared the other officers’ desire to see Carrillo
punished and that he wanted to make sure the objective was
achieved. In addition, Gonzalez stated in his report that he
directed the officers under his command to use force against
Carrillo. Gonzalez contends that the government cannot rely
on this statement because the indictment charged Gonzalez in
Count Three with having falsified his report. But the jury
could reasonably conclude that some of the statements in
Gonzalez’s report were accurate, even if the report falsely
recited other facts in an attempt to justify the officers’
actions. Finally, Gonzalez’s participation in a coordinated
cover-up with the officers who inflicted the beating
strengthened the inference that he was in on the agreement to
use excessive force against Carrillo, rather than merely
present at the scene of a crime committed by others.
The evidence also supports the jury’s finding that Ayala
knowingly joined the conspiracy and shared the intent to see
Carrillo punished through the use of excessive force. As
noted above, a rational jury could conclude that she instigated
16 UNITED STATES V. GONZALEZ
the beating by summoning additional officers to the break
room for no legitimate reason, and by goading her fellow
officers into assaulting Carrillo without justification. That
was enough to make her a member of the conspiracy; she
need not have intended to participate in the unlawful assault
herself. See Ocasio v. United States, 136 S. Ct. 1423, 1429
(2016); United States v. Whitney, 229 F.3d 1296, 1301–02
(10th Cir. 2000). As with Gonzalez, Ayala’s participation in
the coordinated cover-up further supports the inference that
she acted in concert with the other officers to use excessive
force against Carrillo and was not merely an uninvolved
bystander who happened to witness his beating.
III
We turn next to Luviano’s and Ayala’s argument that the
evidence is insufficient to sustain their convictions under
18 U.S.C. § 1519. That statute provides:
Whoever knowingly alters, destroys,
mutilates, conceals, covers up, falsifies, or
makes a false entry in any record, document,
or tangible object with the intent to impede,
obstruct, or influence the investigation or
proper administration of any matter within the
jurisdiction of any department or agency of
the United States or any case filed under title
11, or in relation to or contemplation of any
such matter or case, shall be fined under this
title, imprisoned not more than 20 years, or
both.
The district court properly instructed the jury that the
government bore the burden of proving that: (1) the
UNITED STATES V. GONZALEZ 17
defendants knowingly falsified a record or document; (2) the
defendants acted with the intent to impede, obstruct, or
influence an actual or contemplated investigation; and (3) the
investigation concerned a matter within the jurisdiction of the
U.S. Department of Justice or the Federal Bureau of
Investigation. See United States v. Katakis, 800 F.3d 1017,
1023 (9th Cir. 2015). The court also properly instructed the
jury that the government did not need to prove that the
defendants knew about a pending federal investigation or that
they intended to obstruct a specific federal investigation.
Luviano and Ayala do not contest these instructions. They
contend only that the evidence was insufficient to satisfy the
elements as defined.
Viewed in the light most favorable to the government, the
evidence introduced at trial amply supported the defendants’
convictions. Luviano and Ayala filed their own narrative
reports that provided a false account of the events leading up
to Carrillo’s beating, and the evidence leaves no doubt that
the defendants knew their reports were false when they
prepared them. The evidence also established that the
defendants prepared their reports with the intent to obstruct
a contemplated investigation into whether the force used
against Carrillo was reasonable. The whole point of the
officers’ efforts to concoct a false cover story was to make it
appear as though the force they used was justified, thereby
shielding them from the punishment that would likely follow
if the truth were revealed. And as to the third element, the
defendants stipulated that the “matter” at issue here—an
inquiry into whether the officers’ actions violated Carrillo’s
civil rights—falls within the jurisdiction of both the U.S.
Department of Justice and the FBI.
18 UNITED STATES V. GONZALEZ
In the face of this plainly sufficient evidence, Luviano and
Ayala assert three legal arguments concerning the scope of
§ 1519.
First, they argue that § 1519 applies only to financial
records or documents, not to reports prepared by law
enforcement officers. They base that argument largely on the
fact that Congress enacted § 1519 as part of the Sarbanes-
Oxley Act of 2002, which was “intended to prohibit, in
particular, corporate document-shredding to hide evidence of
financial wrongdoing.” Yates v. United States, 135 S. Ct.
1074, 1081 (2015) (plurality opinion). But the text of § 1519
covers “any record, document, or tangible object,” and the
statute’s intent clause encompasses the intent to impede,
obstruct, or influence the investigation of “any matter within
the jurisdiction of any department or agency of the United
States.” If Congress had intended to limit the statute’s scope
to records or documents of a financial nature, it could not
have chosen language more ill-suited to convey that narrow
focus. Nor is there anything in the legislative history of
§ 1519 that supports the defendants’ restrictive reading of the
statute. Indeed, the relevant Senate report indicates that the
drafters intended the statute to have a decidedly more
expansive reach. See S. Rep. No. 107-146, at 14 (2002)
(“Section 1519 is meant to apply broadly to any acts to
destroy or fabricate physical evidence so long as they are
done with the intent to obstruct, impede or influence the
investigation or proper administration of any matter, and such
matter is within the jurisdiction of an agency of the United
States . . . .”). We therefore hold what several other circuits
have assumed to be true: Reports prepared by law
enforcement officers qualify as “records” or “documents”
under § 1519. See United States v. McQueen, 727 F.3d 1144,
1151–53 (11th Cir. 2013) (upholding § 1519 conviction
UNITED STATES V. GONZALEZ 19
predicated on falsified police report); United States v. Moore,
708 F.3d 639, 649 (5th Cir. 2013) (same); United States v.
Moyer, 674 F.3d 192, 206–08 (3d Cir. 2012) (same); United
States v. Gray, 642 F.3d 371, 374–79 (2d Cir. 2011) (same).
Second, Luviano and Ayala argue that the government
failed to prove that they “falsified” their reports. In their
view, that term covers only the alteration of existing records
or documents, not the wholesale fabrication of new ones.
That would be an odd distinction for Congress to draw in a
statute designed to punish efforts to obstruct investigations
conducted by the federal government. After all, government
investigations can be obstructed just as readily by creating
false documents as by altering documents that already exist.
We agree with the Second Circuit that Congress did not
draw the implausible distinction the defendants have
proposed. As the court explained in United States v.
Rowland, 826 F.3d 100 (2d Cir. 2016), the word “falsify” has
two meanings relevant in this context: (1) to modify or
tamper with an object, and (2) to make false representations.
Id. at 108. The first definition supports the defendants’
argument, but the second one obviously does not. A
defendant can make false representations both by modifying
an existing document in a way that obscures the truth, and by
creating a fabricated document from whole cloth. We think
Congress used the term “falsifies” to encompass both of these
acts, a reading that again is supported by the statute’s
legislative history. See S. Rep. No. 107-146, at 12 (proposed
statute “would clarify and plug holes in the current criminal
laws relating to the destruction or fabrication of evidence”)
(emphasis added). We join the Second Circuit in holding that
§ 1519 prohibits the creation of false documents and the
20 UNITED STATES V. GONZALEZ
alteration of existing documents. Rowland, 826 F.3d at
108–09.
Finally, Luviano and Ayala argue that the government
failed to prove that they acted with the requisite intent. They
contend that they lied in their reports solely to support the
prosecution of Carrillo on false charges, not to obstruct or
impede an investigation into their own wrongdoing. Viewed
in the light most favorable to the government, a rational jury
could conclude that the evidence showed otherwise.
Zunggeemoge testified that the officers falsified their reports
to justify their use of force against Carrillo. He explained
that the officers needed to lie about what happened because
the force they used was excessive and they would get in
trouble if the truth were known. This evidence supported the
jury’s finding that the defendants contemplated an
investigation into their use of excessive force and falsified
their reports to obstruct or impede such an investigation.
In a supplemental letter submitted after the close of
briefing, Luviano and Ayala cite United States v. Johnson,
874 F.3d 1078 (9th Cir. 2017), in support of their position.
That case is of no help to them. Johnson involved a different
obstruction-of-justice statute that requires proof of an intent
to hinder, delay, or prevent the communication of information
“to a law enforcement officer or judge of the United States.”
18 U.S.C. § 1512(b)(3). In Johnson, we held that this statute
requires the government to prove a “reasonable likelihood”
that the information in question would have reached a federal
officer. 874 F.3d at 1081 (citing Fowler v. United States,
563 U.S. 668, 677–78 (2011)). Section 1519 does not contain
an element requiring such proof. To sustain a conviction
under § 1519, it is enough for the government to prove that
the defendant intended to obstruct the investigation of any
UNITED STATES V. GONZALEZ 21
matter as long as that matter falls within the jurisdiction of a
federal department or agency. Moyer, 674 F.3d at 209–10;
United States v. Gray, 692 F.3d 514, 519 (6th Cir. 2012).
The defendant need not know that the matter in question falls
within the jurisdiction of a federal department or agency.
McQueen, 727 F.3d at 1152; Moyer, 674 F.3d at 208. As
discussed above, the government introduced more than
enough evidence to prove that the defendants acted with the
intent required under § 1519.
IV
All three defendants challenge the district court’s denial
of their request to dismiss a juror for actual or implied bias
shortly after the trial began. A district court’s actual bias
determination is reviewed for abuse of discretion because
assessing a juror’s impartiality often turns on an evaluation of
the juror’s demeanor and credibility. United States v.
Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000). A district
court’s implied bias determination involves a mixed question
of law and fact that we review de novo. Fields v. Brown,
503 F.3d 755, 770 (9th Cir. 2007) (en banc).
The issue of alleged juror bias arose in the following
circumstances. During opening statements, the government
displayed a photograph of Carrillo’s face taken shortly after
the beating. The photograph, which was later admitted into
evidence, graphically depicted the injuries Carrillo sustained
as a result of the beating. The next day, after the first few
witnesses had been called, the district court received a note
from one of the jurors. The juror stated that seeing the image
of Carrillo’s disfigured face “sickened and saddened my core
being”; the image, she said, “kept replaying in my head
throughout the night.” The juror explained that she
22 UNITED STATES V. GONZALEZ
understood all of the instructions the court had given; that she
would “continue to listen to the facts as presented”; and that
she understood the government bore the burden of proving
the defendants’ guilt beyond a reasonable doubt. “However,”
the letter concluded, “the grotesque image of injuries
sustained by Gabriel Carrillo is weighing heavy on my heart
and I felt compelled to share my struggles with you.”
After reviewing the letter with counsel, the district court
conducted an extensive colloquy with the juror outside the
presence of the other jurors. When first asked by the court
whether she could consider all of the evidence and render a
fair and impartial verdict, the juror responded, “Cognitively,
yes. Emotionally, I’m not sure.” When the court followed up
and asked whether she would be able to keep her emotions in
check and not allow them to override her ability to reason
objectively and impartially, the juror said, “I would like to
say yes, I could.” But, she added, “I was not able to sleep last
night. I did not eat dinner.” Later in the colloquy, the juror
said that she would “listen to all the evidence as it’s
presented.” In response to the court’s final question, which
asked whether the juror believed she could continue to serve
by not allowing any single item of evidence “to totally
override your reasoning, your analysis, your impartiality,” the
juror answered without qualification, “Yes.” On the basis of
this last answer and an assessment of the juror’s demeanor,
the district court concluded that the juror could be fair and
impartial. The court accordingly denied the defendants’
request to dismiss her.
The defendants contend that the record establishes both
actual and implied bias that compelled the juror’s dismissal.
Actual bias exists when, as the term suggests, a juror is in fact
biased for or against one of the parties, thereby precluding her
UNITED STATES V. GONZALEZ 23
from rendering a fair and impartial verdict. Fields, 503 F.3d
at 767. Most of the cases in which actual bias has been found
involved jurors who either stated that they could not be
impartial or who, after expressing views adverse to one party,
equivocated when asked if they could set aside those views
and evaluate the evidence fairly and impartially. Id. Implied
bias is different. It is a legal doctrine under which bias will
be conclusively presumed in certain circumstances even if the
juror professes a sincere belief that she can be impartial.
Dyer v. Calderon, 151 F.3d 970, 981–82 (9th Cir. 1998) (en
banc).
We can quickly dispose of the claim that the record
warrants a finding of implied (presumed) bias. Implied bias
arises only in a few “extreme situations.” Fields, 503 F.3d at
770. We have held that bias will be presumed “where the
relationship between a prospective juror and some aspect of
the litigation is such that it is highly unlikely that the average
person could remain impartial in his deliberations under the
circumstances.” Id. (internal quotation marks omitted).
Examples of such relationships include having a relative who
is a participant in the trial, or having had “some personal
experience that is similar or identical to the fact pattern at
issue in the trial.” Gonzalez, 214 F.3d at 1112; see Dyer,
151 F.3d at 982; Tinsley v. Borg, 895 F.2d 520, 528 (9th Cir.
1990). Bias will also be presumed when “the juror is aware
of highly prejudicial information about the defendant,” which
no ordinary person could be expected to put aside in reaching
a verdict. Gonzalez, 214 F.3d at 1112. And we have held
that bias will be presumed when a juror lies about material
facts during voir dire in order to secure a spot on the jury.
Dyer, 151 F.3d at 982.
24 UNITED STATES V. GONZALEZ
None of these circumstances is present here. The juror in
our case did not lie about material facts during voir dire, and
she was not aware of any highly prejudicial information about
the defendants. Nor did she have a relationship to some
aspect of the case that would make it highly unlikely she
could remain impartial. What caused her to raise concerns
about her impartiality was her strong reaction to an item of
evidence properly admitted at trial. Without more, that
reaction cannot be the basis for an implied bias claim. One
of the primary functions of the Federal Rules of Evidence,
particularly Rules 403 and 404, is to prevent the admission of
evidence that might render jurors unfairly biased against one
of the parties. We do not presume that jurors become
“biased” as a result of exposure to evidence properly put
before them. Here, the photograph depicting Carrillo’s
injuries was properly admitted as an exhibit at trial, so no
presumption can arise that jurors exposed to it would be
unable to decide the case fairly and impartially. The juror’s
reaction to the photograph could at most support a claim of
actual bias, to which we turn next.
We do not think the record supports a claim of actual bias
either. To be sure, the juror in question raised concerns about
her ability to remain impartial after seeing the photograph of
Carrillo. But the district court conducted a thorough colloquy
with the juror to determine whether she could still fairly and
impartially evaluate all of the evidence presented. While the
juror expressed initial reservations about her ability to do so
on an emotional level, she maintained throughout that she
could do so “cognitively.” The only question was whether
the juror could set aside her emotional reaction to the
photograph and allow her cognitive assessment of the
evidence to control. After a dialogue with the court, the juror
unequivocally stated that she could evaluate all of the
UNITED STATES V. GONZALEZ 25
evidence impartially, notwithstanding her strong reaction to
the photo. The district court had the opportunity to assess the
juror’s demeanor and concluded that her assurance was
credible. We see nothing in the record that would justify
second-guessing the district court’s conclusion.
The facts of this case are similar to those in Bashor v.
Risley, 730 F.2d 1228 (9th Cir. 1984), where we also rejected
a claim of actual bias. There, during voir dire, defense
counsel in a murder case asked a juror whether she thought
she could be impartial, given that the victim’s daughter had
been a student in the juror’s dance class. Id. at 1236 n.3. The
juror candidly responded that she did not think she could be.
Id. When questioned by the prosecutor, however, the same
juror said that she could be impartial “on the facts.” Id. at
1236 n.4. When the trial court inquired about this apparent
inconsistency, the juror responded that the defense attorney
had asked about her emotions, whereas the prosecutor had
asked about her ability to evaluate the facts. Id. at 1237. The
juror confirmed that she could put her emotions aside, and the
trial court ultimately concluded that she could be impartial.
After conducting an independent review of the record, we
upheld the trial court’s ruling. We reasoned that the juror had
recognized her responsibility to decide the case based on the
evidence presented at trial, and we emphasized that when the
juror was advised of her duties she assured the judge that “she
could be a fair juror and decide the case on the proved facts.”
Id.
The same analysis governs here. Like the juror in Bashor,
the juror in our case made statements, both in her note to the
court and at the outset of the colloquy, that raised legitimate
concerns about her ability to render a fair and impartial
verdict. But after questioning the juror to explore those
26 UNITED STATES V. GONZALEZ
concerns, the district court received the juror’s unqualified
assurance that she could decide the case impartially based on
the evidence presented. As in past cases involving similar
facts, the court did not abuse its discretion in concluding that
no actual bias had been shown. See United States v.
Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995); United States
v. Daly, 716 F.2d 1499, 1507 (9th Cir. 1983).
The defendants make one last argument, which is that the
district court should have conducted further inquiry into the
same juror’s alleged bias later in the trial. They assert that,
during the government’s case-in-chief, the juror looked away
when (1) the photograph depicting Carrillo’s injuries was
again displayed, and (2) the government played a videotape
of an interview that sheriff’s deputies conducted with Carrillo
shortly after he was beaten. This behavior, the defendants
contend, constituted further evidence of actual bias that the
district court was obligated to investigate.
The district court did not abuse its discretion in
concluding, without further investigation, that the juror’s
conduct did not amount to evidence of actual bias. The court
was not required to make any further inquiry into the juror’s
reasons for looking away from the photograph because that
same photo had been the basis of the earlier colloquy. Thus,
the court already knew “the exact scope and nature of the bias
allegation.” United States v. Smith, 424 F.3d 992, 1011 (9th
Cir. 2005) (internal quotation marks omitted). As to the
suggestion that the juror may have looked away from the
video of Carrillo’s interview, the court pointed out that the
juror could still hear the audio of the interview. And if she
did not want to look at Carrillo’s bloodied and battered image
in the video, it was presumably for the same reasons she did
not want to view the photograph again. In these
UNITED STATES V. GONZALEZ 27
circumstances, the district court had no obligation to engage
the juror in a second round of questioning.
V
Gonzalez and Ayala argue that the district court gave the
jury faulty instructions with respect to Count Two, which
charged a violation of 18 U.S.C. § 242. (We need not decide
whether Luviano preserved this argument on appeal since the
argument fails in any event. Luviano did not raise this
argument in his opening brief, and he did not join the
arguments raised by his co-defendants until his reply brief.)
The defendants do not challenge the instructions given on the
offense’s core elements. Instead, they focus 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 district court instructed the jury on this
element of the offense as follows: “If you find a defendant
guilty as charged in Count Two of the indictment, you must
then determine whether the government has proven beyond
a reasonable doubt that Mr. Carrillo suffered a bodily injury,
and that the bodily injury resulted from acts committed by
that defendant.”
The defendants argue that this instruction was deficient
because it did not require the jury to find that each
defendant’s acts were the “proximate cause” of Carrillo’s
injuries. The defendants did not request an instruction on
proximate cause, so we review only for plain error. United
States v. Vincent, 758 F.2d 379, 383 (9th Cir. 1985).
The “bodily injury” element of § 242 is similar to a
comparable provision found in 21 U.S.C. § 841, a statute
criminalizing the distribution of certain controlled substances.
28 UNITED STATES V. GONZALEZ
Section 841 provides for enhanced penalties “if death or
serious bodily injury results from the use of such substance.”
§ 841(b)(1)(C). In United States v. Houston, 406 F.3d 1121
(9th Cir. 2005), we held that Congress’ use of the phrase
“results from” indicates that proof of but-for causation alone
is required. We explicitly rejected the defendant’s contention
that proximate cause also had to be shown. Id. at 1124.
Because § 242 employs the same “results from” phrase we
construed in Houston, the district court’s failure to give a
proximate cause instruction cannot be deemed an error so
obvious that it should have been avoided even without an
objection having been made.
The defendants argue that Burrage v. United States,
571 U.S. 204 (2014), requires a contrary result. In that case,
the Supreme Court considered the same statutory provision at
issue in Houston and held, as we did, that the statute’s plain
language requires a showing of but-for causation. Id. at 214.
The Court expressly declined to address whether proximate
cause must also be shown. Id. at 210. As a result, nothing in
Burrage calls into question the reasoning or result in
Houston.
VI
Gonzalez asserts that the government committed
misconduct during closing arguments by asking the jury to
draw inferences from the evidence that the prosecutor knew
to be false. Specifically, the government argued that
Gonzalez could be found guilty of violating §§ 241 and 242
on the theory that he ordered his subordinates to use
excessive force against Carrillo. As the basis for this
argument, the government relied on Gonzalez’s use-of-force
report, in which Gonzalez stated that he personally directed
UNITED STATES V. GONZALEZ 29
deputies to use force against Carrillo. On appeal, Gonzalez
contends that the government’s argument was improper
because the prosecutor knew that Gonzalez’s report was false.
Gonzalez did not object to the statements he now challenges,
so we review only for plain error. See United States v.
Geston, 299 F.3d 1130, 1134 (9th Cir. 2002). There was no
error, plain or otherwise.
Gonzalez is correct that a prosecutor may not ask the jury
to draw inferences that the prosecutor “knows to be false, or
has very strong reason to doubt.” United States v. Blueford,
312 F.3d 962, 968 (9th Cir. 2002). But the prosecutor did not
cross that line here. The prosecutor had a good-faith basis for
arguing to the jury that Gonzalez directed others to use force
because Gonzalez’s own use-of-force report said that is what
he did. As Gonzalez points out, none of the witnesses who
testified at trial corroborated that assertion, which certainly
undercuts the strength of the inference that can be drawn from
the statements in Gonzalez’s report. Still, notwithstanding
the absence of witness corroboration, Gonzalez’s own lawyer
argued that Gonzalez had in fact directed others to use force.
Gonzalez’s lawyer argued that everything Gonzalez said in
his report was true, presumably to help win his client’s
acquittal on the offense charged in Count Three. The
government was entitled to argue, and the jury was entitled to
find, that some aspects of Gonzalez’s report were true while
others were false, based on the totality of the evidence
introduced at trial. The government did not commit
misconduct by inviting the jury to credit as true something
that Gonzalez’s own lawyer asserted was true.
30 UNITED STATES V. GONZALEZ
VII
Finally, Ayala contends that her 72-month sentence is
substantively unreasonable. There is no merit to this
argument. The court granted Ayala a downward departure
from the 87–108 months she faced under the Sentencing
Guidelines. Although a below-Guidelines sentence is not
immune from challenge, such a sentence will rarely be
substantively unreasonable. See United States v. Armstrong,
620 F.3d 1172, 1179 (9th Cir. 2010).
The district court adequately explained why it believed
the sentencing factors described in 18 U.S.C. § 3553(a)
justified a departure down to 72 months but no lower. Most
significantly, Ayala instigated the assault on Carrillo, first by
summoning additional officers to the break room for no
legitimate law enforcement purpose, and then by goading her
colleagues into attacking Carrillo while he stood defenseless
in handcuffs. Ayala not only failed to report the gross abuse
of authority she and her colleagues had participated in; she
affirmatively tried to cover up their wrongdoing by filing a
false report, which she knew would be used to support
Carrillo’s prosecution on felony charges that were completely
fabricated. The district court properly concluded that Ayala’s
actions exhibited “a profound disrespect for the law” and the
people Ayala was sworn to serve. The court did not abuse its
discretion when it sentenced her to 72 months in prison.
AFFIRMED.