United States v. Monique Lozoya ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50336
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00598-AB-1
MONIQUE A. LOZOYA,
Defendant-Appellant. ORDER
Filed December 13, 2021
Before: Sidney R. Thomas, M. Margaret McKeown,
William A. Fletcher, Jay S. Bybee, Sandra S. Ikuta,
Jacqueline H. Nguyen, Paul J. Watford, John B. Owens,
Mark J. Bennett, Daniel P. Collins and Kenneth K. Lee,
Circuit Judges.
Order;
Dissent by Judge Collins
2 UNITED STATES V. LOZOYA
SUMMARY *
Criminal
The en banc court denied a joint motion to recall the
mandate in a criminal case, which presented an issue
concerning whether the magistrate judge imposed an
improper burden of proof on the defendant.
The en banc court wrote that the motion, which was filed
more than 300 days after the filing of the opinion, was
untimely; that the record supports the district court’s
conclusion that the magistrate judge did not improperly shift
the burden to the defendant, despite stray comments; and that
any error was harmless beyond a reasonable doubt. The en
banc court concluded that although it does not reach the
merits of any of these issues, given all of these
considerations, the untimely motion does not present the
exceptional circumstances that would justify the recall of the
mandate in order to protect the integrity of the court’s
processes.
Dissenting, Judge Collins wrote that this case meets the
very high standard for recalling the mandate in light of the
confluence of six unique factors: the en banc court
committed a clear error by failing to realize, after rejecting
the defendant’s venue challenge, that the issue regarding the
standard of proof was no longer moot and should have been
remanded back to the three-judge panel; counsel’s failure to
call the omission to this court’s attention in a timely petition
for rehearing itself raises a substantial issue of ineffective
*
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. LOZOYA 3
assistance of counsel; the overlooked standard-of-proof
issue raises a substantial question on the merits; granting the
motion to recall the mandate is the only possible way to
consider or redress the substantial question of ineffective
assistance that is apparent on the record; the motion is not
untimely; and the fact that this is a joint motion eliminates
any concerns that the moving party may be engaged in
procedural gamesmanship or that important interests in
finality are not being adequately respected.
COUNSEL
Cuahtemoc Ortega, Federal Public Defender; James H.
Locklin, Deputy Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.
Tracy L. Wilkison, Acting United States Attorney; Bram M.
Alden, Chief, Criminal Appeals Section; Karen E. Escalante,
Assistant United States Attorney, Major Frauds Section;
United States Attorney’s Office, Los Angeles, California;
for Plaintiff-Appellee.
4 UNITED STATES V. LOZOYA
ORDER
The joint motion to recall the mandate is denied. “We
have the inherent power to recall our mandate in order to
protect the integrity of our processes, but should only do so
in exceptional circumstances.” Carrington v. United States,
503 F.3d 888, 891 (9th Cir. 2007).
Federal Rule of Appellate Procedure 40(a) permits a
party to file a petition for rehearing within fourteen days
after the entry of judgment to bring to the court’s attention
any point of law or fact the party contends the court
overlooked in deciding the case. Fed. R. App. P. 40(a). The
power to recall the court’s mandate “may not be used simply
as a device for granting late rehearing.” Moran v. McDaniel,
80 F.3d 1261, 1267 (9th Cir. 1996) (quoting Johnson v.
Bechtel Assocs., 801 F.2d 412, 416 (D.C. Cir. 1986)). The
opinion of the en banc court was filed on December 3, 2020.
The mandate issued on December 28, 2020. The motion to
recall the mandate in order to file a new petition for rehearing
was filed on October 7, 2021. Thus, the motion was filed
over 300 days after the filing of the opinion, and is untimely.
The issue presented in the joint motion to recall the
mandate concerns whether the magistrate judge imposed an
improper burden of proof on the defendant. The district
court concluded that—given the context of the entire record
and, particularly, in light of the magistrate judge’s
findings—the magistrate judge had not improperly shifted
the burden to the defendant, despite stray comments. See
United States v. Coutchavlis, 260 F.3d 1149, 1156–57 (9th
Cir. 2001) (stating a judge’s comments on burden of proof
must be viewed in the context of the entire case). The record
supports the district court’s conclusion.
UNITED STATES V. LOZOYA 5
Further, any error was likely harmless beyond a
reasonable doubt because the magistrate judge specifically
credited the testimony of the victim and found the testimony
of the witnesses presented by the defense to be
“inconsistent” and “implausible.” Given the magistrate
judge’s findings, it is clear beyond a reasonable doubt that a
court would have found the defendant guilty absent any
error. See United States v. Liu, 731 F.3d 982, 992 (9th Cir.
2013) (describing standard); United States v. Argueta-
Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016) (applying
standard to bench trials).
Therefore, although we do not reach the merits of any of
these issues, given all of these considerations, the untimely
motion does not present the “exceptional circumstances”
that would justify the recall of the mandate in order to protect
the integrity of our processes.
IT IS SO ORDERED.
COLLINS, Circuit Judge, dissenting:
“[T]he courts of appeals are recognized to have an
inherent power to recall their mandates,” but this
extraordinary power should be “sparing[ly]” exercised only
as a “last resort, to be held in reserve against grave,
unforeseen contingencies.” Calderon v. Thompson,
523 U.S. 538, 549–50 (1998); see also Carrington v. United
States, 503 F.3d 888, 891 (9th Cir. 2007). Based on a
confluence of six unique factors, I think that this case meets
that very high standard, and I would therefore grant the
parties’ joint motion to recall the mandate. Because the
majority concludes otherwise, I respectfully dissent.
6 UNITED STATES V. LOZOYA
I
First, as the parties’ joint motion notes, the en banc court
committed a clear, if understandable, error in overlooking
one of the grounds for reversal that Lozoya had raised on
appeal.
In her opening brief before the three-judge panel, Lozoya
argued that her conviction for assault on an in-flight airplane
should be reversed for three reasons: (1) the Government
violated the Speedy Trial Act; (2) the Government failed to
establish venue in the Central District of California; and
(3) the magistrate judge applied the wrong legal standard in
evaluating the issue of whether Lozoya acted in self-defense.
The three-judge panel unanimously rejected the Speedy
Trial Act claim on the merits. United States v. Lozoya,
920 F.3d 1231, 1236–38 (9th Cir. 2019). By a divided vote,
that panel then agreed with Lozoya’s second contention that
the Government had failed to establish that venue was
proper. See id. at 1238–43; id. at 1243–45 (Owens, J.,
dissenting in part). Because the panel majority reversed the
conviction on venue grounds, it concluded that it “need not
determine whether the magistrate judge applied the wrong
standard” in evaluating self-defense. Id. at 1243 n.8. After
rehearing en banc was granted, the eleven of us on the en
banc panel sensibly “exercise[d] our discretion to consider
only th[e] issue” of venue, which was the only issue that
warranted en banc reconsideration under the standards set
forth in Federal Rule of Appellate Procedure 35. See United
States v. Lozoya, 982 F.3d 648, 651 n.2 (9th Cir. 2020) (en
banc). But we subsequently failed to realize that, after
rejecting Lozoya’s venue challenge, the additional issue that
the three-judge panel had found unnecessary to decide—viz.,
whether the magistrate judge had applied the wrong standard
of proof—was now no longer moot. We should have
UNITED STATES V. LOZOYA 7
remanded the case back to the three-judge panel to address
this now-resurrected issue, and we committed a patent error
in failing to do so.
II
Second, although Lozoya’s counsel should have called
the omission to our attention in a timely petition for
rehearing, that failure itself raises a substantial issue of
ineffective assistance of counsel.
Once rehearing en banc was granted, the en banc
proceedings involved Lozoya’s direct appeal of her criminal
conviction and therefore implicated her constitutional “right
to effective assistance of counsel in direct appeals” in
criminal cases. Lafler v. Cooper, 566 U.S. 156, 168 (2012).
I can think of no conceivable strategic reason for counsel’s
failure to secure a decision on one of the three grounds for
reversal raised on appeal, and the oversight seems to me
clearly to fall “below an objective standard of
reasonableness.” Strickland v. Washington, 474 U.S. 668,
688 (1984). 1 Indeed, the joint motion here effectively
acknowledges that counsel’s failure to raise the matter in a
petition for rehearing fell below the applicable standard of
professional competence. Moreover, if the overlooked issue
has merit, then there would be a “reasonable probability that,
1
Because this case involves our wholesale failure to decide a
properly raised ground for reversal on appeal—a defect that this court
would have been required to fix by granting rehearing—I do not think
that this situation falls within the rule that there is no right to effective
assistance of counsel for purely discretionary forms of review. See Evitts
v. Lucey, 469 U.S. 387, 401–02 (1985). Counsel has not discharged his
or her obligation to provide effective assistance on direct appeal if
counsel never even secures a decision on the properly raised grounds for
that appeal.
8 UNITED STATES V. LOZOYA
but for counsel’s unprofessional error[], the result of the
proceeding would have been different.” Id. at 694; see also
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989)
(prejudice question in the context of appellate ineffective
assistance is whether “there is a reasonable probability that,
but for counsel’s unprofessional errors, [the defendant]
would have prevailed on appeal”). 2
III
Third, I think that the overlooked standard-of-proof issue
raises a substantial question on the merits—and that fact
independently supports our recalling the mandate and also
solidifies the conclusion (discussed above) that there is a
substantial question as to whether Lozoya was deprived of
her constitutional right to effective assistance of counsel.
In addressing the issue of “whether the assault was
committed in self-defense,” the magistrate judge’s guilty
finding emphasized the inconsistencies both in “the
defendant’s testimony and her statements to the special agent
and to the flight attendants” and in “the testimony of the
defendant’s witnesses,” and the court concluded that this
evidence “failed to establish beyond a reasonable doubt that
the defendant was in a position where she felt threatened.”
On its face, the magistrate judge’s resolution of the self-
defense issue rests on a plainly incorrect statement of the
2
The joint motion also argues that, because in this case counsel did
not file any petition for rehearing from the en banc decision, “prejudice
to the defendant should be presumed ‘with no further showing from the
defendant of the merits of his underlying claims.’” Garza v. Idaho,
139 S. Ct. 738, 742 (2019) (quoting Roe v. Flores-Ortega, 528 U.S. 470,
484 (2000)). I find it unnecessary to rely on that contention, but this
alternative point only further underscores the substantiality of the
ineffective assistance claim presented here.
UNITED STATES V. LOZOYA 9
law. A defendant who raises self-defense only needs to
present sufficient evidence to establish a prima facie case,
and if that is done (as it was here) then the Government must
“disprove it beyond a reasonable doubt.” United States v.
Keiser, 57 F.3d 847, 851 n.4 (9th Cir. 1995). The majority
nonetheless concludes that the magistrate’s statement was
merely a “stray comment[]” that did not reflect a shifting of
the burden of proof and that, even if it did, any error was
harmless beyond a reasonable doubt. See Order at 4–5. I
disagree with the majority on both points.
In dismissing the magistrate judge’s comment as a slip
of the tongue, the majority wrongly analogizes this case to
United States v. Coutchavlis, 260 F.3d 1149 (9th Cir. 2001).
In that case, the magistrate judge’s verbal juxtaposition of
two thoughts (the absence of evidence contradicting the
Government’s witness’s testimony and a finding in
accordance with that testimony) could have been read as
implying a burden on the defense to come forward with
evidence. Id. at 1156. But the resulting ambiguous
statement did not have to be read that way, and it was “more
reasonable to interpret the magistrate judge’s comment” as
simply meaning that there was nothing in the record that
caused the judge to have a reasonable doubt. Id. at 1156–57.
Here, by contrast, there is no reasonable alternative way to
read the magistrate judge’s actual words that would be
consistent with the law. The majority also points to the
magistrate judge’s “findings,” see Order at 4, but there is
nothing in those findings to indicate that they were made
under the proper standard of proof. And the fact that the
record elsewhere contained boilerplate statements of the
Government’s general burden of proof in criminal cases does
not establish that the magistrate judge recognized that the
Government bore the burden of proof beyond a reasonable
doubt when she addressed the specific issue of self-defense.
10 UNITED STATES V. LOZOYA
I also disagree with the majority’s suggestion that the
error was harmless. We have held that, in reviewing a legal
error regarding the elements of an offense in a bench trial,
we “us[e] the same harmless error standard that would apply
to an erroneous jury instruction.” United States v. Argueta-
Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016) (citation
omitted). The Government contends—and the majority
agrees—that this means the correct standard is the one
enunciated in United States v. Liu, 731 F.3d 982, 992 (9th
Cir. 2013). See Order at 5. There, we said that an error in
describing an element “is harmless only if it is clear beyond
a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” Id. at 992 (citations and
internal quotation marks omitted). We drew this standard
from Neder v. United States, 527 U.S. 1, 18 (1999), which
applied that harmless-error standard to an element that was
omitted entirely from the jury instructions. See Liu, 731 F.3d
at 992. I think that the majority’s reliance on the Neder-Liu
standard fails.
As an initial matter, it is doubtful that the Neder-Liu
standard applies to the particular error at issue here, which
involves neither a misdescribed element nor a missing one.
Rather, the error here is that the magistrate judge misstated
the underlying standard of proof applied to the factfinding
process concerning self-defense. Even after Neder, that sort
of error in jury trials remains governed by the rule of
automatic reversal established in Sullivan v. Louisiana,
508 U.S. 275, 281–82 (1993). “[T]he essential connection
to a ‘beyond a reasonable doubt’ factual finding cannot be
made where the instructional error consists of a
misdescription of the burden of proof, which vitiates all the
jury’s findings.” Id. at 281 (first emphasis added). Under
Argueta-Rosales, we must use this same standard in the
bench-trial context, see 819 F.3d at 1156, and that requires
UNITED STATES V. LOZOYA 11
reversal here. At a minimum, a remand is required to direct
the magistrate judge to make new findings of fact under the
proper standard. See United States v. Hogue, 132 F.3d 1087,
1091 (5th Cir. 1998) (where record did not make clear that
the district court in bench trial had made the requisite
findings beyond a reasonable doubt, remand was required);
Clapper v. Clark Dev., Inc., 747 F. App’x 317, 323–24 (6th
Cir. 2018) (district court erred in applying “clear and
convincing evidence standard to levy a criminal contempt
sanction,” and resulting Sullivan error required vacatur).
But even if the Neder-Liu standard applies here, the
majority’s harmless error determination is still wrong. The
question under Neder and Liu is not whether we are sure that
this particular magistrate judge would have found the
defendant guilty absent the error; rather, it is an objective
inquiry as to whether the “district court” (i.e., a rational
factfinder) would have found the defendant guilty. Lozoya
put on testimony at trial that, if credited, could have led a
rational factfinder to determine that the government failed to
disprove self-defense beyond a reasonable doubt. Because
“the defendant contested the omitted element and raised
evidence sufficient to support a contrary finding,” a
reviewing court “should not find the error harmless.” Neder,
527 U.S. at 19; Hogue, 132 F.3d at 1092 (court of appeals
cannot direct a verdict in a criminal case, even in an appeal
from a bench trial).
IV
Fourth, under the truly unusual circumstances of this
case, granting the motion to recall the mandate is the only
possible way to consider or redress the substantial question
of ineffective assistance that is apparent on this record.
12 UNITED STATES V. LOZOYA
In almost any other criminal case, a motion to recall the
mandate in this sort of situation would be summarily denied,
because any such defect could be adequately addressed by a
motion under 28 U.S.C. § 2255. An inexcusable failure to
file a petition for rehearing pointing out the court’s obvious
and wholesale oversight of a meritorious issue would be
ineffective assistance of counsel and therefore grounds for
relief under § 2255. Although the district court that initially
made the error that was the subject of the overlooked
appellate challenge would presumably deny the § 2255
motion for lack of prejudice under Strickland’s second
prong, the resulting appeal from that denial of the § 2255
motion would then place the merits of the overlooked issue
squarely before the court of appeals. But Lozoya has no such
remedy available here, because her only penalty upon
conviction was a fine. That is, given the lack of any sentence
involving custody, probation, or supervision, relief under
§ 2255 is not available. See United States v. Thiele, 314 F.3d
399, 401–02 (9th Cir. 2002); United States v. Kramer,
195 F.3d 1129, 1130 (9th Cir. 1999). This is the truly
exceptional case in which a motion to recall the mandate is
the “last resort.” Calderon, 523 U.S. at 550.
V
Fifth, contrary to what the majority asserts, the motion
here is not untimely. See Order at 4.
To be sure, the majority is correct that, because the
motion was filed “over 300 days from the filing of the
opinion,” it would be “untimely” to the extent that it were
deemed to be a petition for rehearing. See Order at 4; FED.
R. APP. P. 40(a). But that is the wrong question. Because
the mandate generally does not issue until after the time to
seek rehearing has expired, see FED. R. APP. P. 41(b), a
motion to recall the mandate will of necessity always be
UNITED STATES V. LOZOYA 13
“untimely” if considered through the lens of the deadline for
a petition for rehearing. The focus instead should be on
whether, considered as a motion to recall the mandate, the
motion is too late. Viewing the motion in light of the factors
I have set forth, I think it is clear that the motion is not
untimely. Lozoya’s counsel acknowledges that the error was
discovered while a petition for certiorari was being prepared,
and the motion to recall the mandate was filed within three
days of the Supreme Court’s denial of certiorari. See Lozoya
v. United States, 142 S. Ct. ___, 2021 WL 4507929 (2021).
Given that the motion was filed within three days of the
decision in this appeal becoming final, its filing was not
unduly delayed.
For similar reasons, I disagree with the majority’s
suggestion that the joint motion to recall the mandate here is
being used “‘simply as a device for granting late rehearing.”’
See Order at 4 (quoting Moran v. McDaniel, 80 F.3d 1261,
1267 (9th Cir. 1996)). Indeed, Moran bears no resemblance
to this case and only underscores the majority’s error.
In our initial decision in Moran, we had granted relief to
Moran on one of the five issues he raised, but our decision
was then reversed by the Supreme Court. See Moran v.
Godinez, 972 F.2d 263 (9th Cir. 1992), rev’d, 509 U.S. 389(1993). On remand from the Supreme Court, we issued an
order directing the parties “to address the remaining issues
in light of the Supreme Court’s decision in this case.” See
Order, Moran v. Godinez, No. 91-15609 (9th Cir. Aug. 18,
1993), ECF No. 47. “In Moran’s subsequent briefing, he
asserted only two arguments,” and omitted any discussion of
the other three issues that had previously been raised.
Moran, 80 F.3d at 1265. This court’s later decision denying
relief therefore understandably did not address those
additional three issues. See Moran v. Godinez, 57 F.3d 69014 UNITED STATES V. LOZOYA
(9th Cir. 1994). Although Moran filed a petition for
rehearing challenging that decision, he did not raise those
three abandoned issues in that petition. Moran, 80 F.3d
at 1265–66. Eight months after our mandate issued, Moran
sought to recall the mandate, arguing that the court should
address those three issues. Id. at 1266. We concluded that
Moran’s belated claim of “oversight” was “not good cause
to excuse his failure to include in his earlier-filed petition for
rehearing the contentions he now makes in his motion to
recall the mandate.” Id. at 1267.
In reaching this conclusion, we rejected Moran’s reliance
on Patterson v. Crabb, 904 F.2d 1179 (7th Cir 1990), in
which the Seventh Circuit recalled its mandate when,
“through judicial error,” the appellant “never obtained a
hearing of his appeal”; the appellant’s failure to raise the
error in a petition for rehearing was excusable given that he
was then “pursuing an alternative administrative remedy”;
and “the appellee [did] not contend that he [would] be
harmed by the reopening of the matter.” Id. at 1180. We
noted that none of these same features were present in
Moran. 80 F.3d at 1267. The opposite, of course, is true
here. Unlike in Moran—in which the omission originated
from the petitioner’s dropping of the issues from his remand
briefing—here, as in Patterson, the error originated with the
court of appeals. See Patterson, 904 F.2d at 1179–80 (noting
that the court of appeals was “mainly” at fault because it had
”overlooked” that the district court had entered a final
judgment, and it thus erroneously dismissed the appeal).
Unlike in Moran—in which the petitioner filed a petition for
rehearing that again omitted the issue—here, as in Patterson,
no petition for rehearing was filed because counsel
(wrongly) proceeded directly with pursuing another remedy
(here, certiorari). See id. And here, as in Patterson, and
unlike in Moran, the appellee has not asserted that any
UNITED STATES V. LOZOYA 15
prejudice would arise from recalling the mandate. Id.
at 1180.
On top of these points, Moran is distinguishable on
several additional grounds as well: (1) the record in Moran
suggests an affirmative abandonment of the three issues on
remand from the Supreme Court; (2) Moran, a habeas corpus
proceeding, did not involve a direct appeal, with its
concomitant effective-assistance-of-counsel guarantee; and
(3) in Moran, the motion to recall was filed more than four
months after the Supreme Court denied certiorari from the
decision in question. Moran provides no support for denying
recall of the mandate here.
VI
Sixth, and finally, we are presented here with a joint
motion to recall the mandate, filed by both Lozoya and the
Government. That important fact eliminates any concerns—
often present in motions to recall the mandate—that the
moving party may be engaged in procedural gamesmanship
or that important interests in finality are not being adequately
respected. If the Government itself affirmatively supports
disregarding the otherwise applicable “profound interests in
repose,” Calderon, 523 U.S. at 550 (citation omitted), I do
not see why we would insist on giving them primacy here.
* * *
For these reasons, I think that the joint motion should be
granted, the mandate recalled, and the case returned to the
three-judge panel. I respectfully dissent.