F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

F E R N A N D O C A Z

A R E S , AKA S N E A K Y , Defendant-Appellant

. N o. 06-50677

D.C. No. CR-04-00415-PA -04

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

G I L B E R T S A L D A

N A , Defendant-Appellant

. N o. 06-50678

D.C. No. CR-04-00415-PA -02

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

A L E J A N D R O M A R T I N E Z , Defendant-Appellant

. N o. 06-50679

D.C. No. CR-04-00415-PA -01U N I T E D S T A T E S V

. C A Z A R E S 2

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

P O R F I R I O A V I L A , AKA Dreamer, Defendant-Appellant

. N o. 07-50037

D.C. No. CR-04-00415-PA -05

OPI NI ON

A ppeal from the United States District Court for the Central District of California Percy Anderson, District J udg e, Presiding

Arg ued October 11, 2012 Submitted May

14, 2015 Pasadena, California

F iled May

14, 2015

B efore: Harry

Preg erson and W illiam A. F letcher, Circuit J udg es, and L awrence L

. Piersol, * Senior District J udg e

.

Opinion by

J udg e Piersol

* T h e Ho n o rab le L aw

ren ce L

. Pierso l, Sen i o r District J u d g e f o r th e U .S. District Co u

rt f o r So u t h Dak o ta, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. C A Z A R E S 3

SUMMARY * *

Crim inal Law

The panel affirmed the convictions of (1) F ernando C a z ares, Gilbert Saldana, Alejandro Martinez
, and Porfirio Avla, a ll members of the Avenues 43 L atino street g ang , for violating 1 8 U.S.C. § 24 1 by conspiring to intimidate A f r i c a n

- A m e r i c a n c i t i z e n s i n t h e H i g h l a n d P a r k neig hborhood of L os A n ge l e s and to deprive them of their constitutional rig ht to “purchase, lease and hold real a nd personal p r o p e rty , and the r ig ht to occupy a dwelling
, free from i ntimidation based on race”; and (2) Caz ares, Saldana, and Martinez for violating (a) 18 U.S.C. §§ 245(b)(2)(B )
, a nd 2 ( a ) by shooting Kenneth Kurry W ilson, an African

American man, because of h is race and c o l o r a nd because he was enjoy ing facilities provided and admi n i s t e red b y

a subdivi s i o n o f t h e S t a t e ; a n d ( b ) 1 8 U .S.C. §§ 924( c ) ( 1 ) (A)(iii), (j)(1) and 2(a) by using firearms to k ill W ilson while carry

ing out the charg ed conspiracy

.

The panel held that the defe n d a nts’ due process rig hts

were not violated by their being shackled to their c hairs during the trial.

The panel wrote that the r easons stated by the district
court for holding most of the voir dire in private would not be sufficient to a void a determination that the defendants’ rig hts
to a public trial were violated, but held tha t the defendants

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. C A Z A R E S 4

validly waived their ri g ht to be present at voir dire and their rig ht to a public trial.

The panel held that a dmission o f hearsay statements pursuant to the doctrine of forfeiture by w rong doing was not reversible error.

The panel held that it was improper ex pert testimony a nd

a violation o f Fe d

. R. Evid. 703 for an officer to identify Avenues g ang members and t h e officers assig ned to the investig ations of Avenues as his source for characteriz ing Martinez
, Saldana, and Avila as the most violent members o f the Avenues and the members with the most clout. The panel held that more g eneral testimony reg arding the Avenues g ang members’ attitudes towards black people is permissible
, but that if there was e r

ror in allowing the of

f i cer to testify
reg arding those attitudes, it mos t l ikely did not have a substantia l e f

f e c t o n the jury ’s verdict. The panel held that the defendants cannot on this record establish that admission of the officer’s testimony constituted pla i n e rror under the Confrontation Clause.

The panel held that the d istrict cour t d i d n ot err in deny ing Saldana’s motion to suppress statements he made to t h e police without being g iven his Miranda rig hts, where Saldana was never in custody

.

The panel rejected as w a i v ed, a nd on the g round o f invited e rror, the defendants’ c laim that their rig hts u nder the Confrontation Clause were violated by testimony
, in response to a question asked d

uring cross-ex amination, reg a rd i ng a non-testimonial conversation being g ang members.U N I T E D S T A T E S V

. C A Z A R E S 5

The p a nel rejected the defend an ts’ contention that the district court denied the defe n d a n ts their rig h ts to effective

cross-ex amination a n d confrontation by limiting a nd precluding cross-ex amination of four witnesses.

The pa n e l h eld that any error in permitting the
g overnment’s ex pert to testify that her firearm identification finding s were made to a “scientific certainty” was harmless.

The panel held that § 245(b)(2)(B ) is constitutional a s applied to this case.

The panel concluded that the ove r a l l effect o f any errors that were c o m m i t t ed do not violate the d efendants’ d ue process rig hts to a fair trial.

COUNSEL

Verna Wefald (arg

ued), L aw Offices of Verna W e fald, Pasadena, California, for Defendant-Appellant F ernando Caz ares.

W a y ne R. Y oung ( arg ued), L aw Office of W ay ne R. Young
, Santa Monica, California, f or D e f e n d a n t

- A p p e llant Alejandro Martinez

.

J onathan L ibby (a r gu e d), D eputy F ederal Public Defender, Sean K. Kennedy
, F ederal Public Defender, F ederal Public Defender’s Office, L os Ang e les, California, f or D efendantAppellant Gilbert Saldana.

Karen L

. L a

ndau (arg ued), L aw Of

f ice of Karen L

. L andau, Oakland, California, for D efendant-Appellant Porfirio A vila.U N I T E D S T A T E S V

. C A Z A R E S 6

Thomas E. Chandler ( arg ued) a n d J essica Dunsay Silver, Attorney s, Thomas E

. Perez
, Assistant Attorney General, Department of J us t i c e, Civil Rig hts Division, Appellate Section, W ashing ton, D.C., for Plaintiff-Appellee.

OP INION

PI ERSOL , Senior District J udg e :

A jury found d e f

endant s F ernando Caz ares, Gilbert Saldana, Alejandro Martinez
, and Porfi r i o Avila g uilty o f violati n g 18 U.S.C. § 241 by conspiring to intimidate A f r i c a n

- A m e r i c a n c i t i z e n s i n t h e H i g h l a n d P a r k neig hborhood of L os A ng eles and to d e p rive them of their constitutional rig ht to “purchase, lease and hold real a nd
p e r sonal property , and the rig ht to occupy a dwelling
, f r e e from intimidation based o n race.” The jury found defendants Caz ares, Saldana, and Martinez g uilty of violating 18 U .S.C. §§ 245(b)(2)(B ), and 2(a) by shooting Kenneth Kurry W ilson,

an African-American man, b e c ause o f his race and color a nd because he w as enjoy ing facilities provided and administered by a subdivision of the State, namely the public streets of L os Ang eles. T he jury also found defendants C a z ares, Saldana,

a n d M a r t i n e z g u i l t y o f v i o l a t i n g 1 8 U

. S

. C

. §§ 9 2 4 ( c ) (1)(A)(iii), (j)(1) and 2(a) by using firearms to k ill Kenneth Kurry W ilson while carry i n g out the charg ed conspiracy

.

The defendants are members of the A venues 43, a L atino
street g ang in the Hig hlan d Park area, an a rea inhabited predominantly by L atinos. One of the tenets of the Avenues 43 was to harass and use violence to drive African-Americans
out of the H ig hland Park area. The conspiracy charg e d in theU N I T E D S T A T E S V

. C A Z A R E S 7

Second Superseding I ndictment a lleg es overt acts continuing from 1995 throug h 2001 and involvi n g racial slurs, threats, assaults, h arass m ent, and murder directed at AfricanAmerican r esidents of the Hig h land Park area, with the intent of c a u sing the African-American residents to leave the Hig hland Park area.

Several black residents and forme r r e s idents of the Hig hland Park area testified as to the harassment and violence the black residents of the Hig h land Park area suffered at the hands of the Avenues 43 g ang member s

. The g overnment also relied heavily on the testimony of former Avenues g ang

m e m b e r s, J esse Diaz and J ose De L a Cruz
, w ho were incarcerated on state convictions, for evidence specific to the defendants.

The dis t rict court sentenced Saldana, Caz ares, a nd Martinez e ach to two consecutive sentences of life imprisonment and sentenced Avila to life imprisonment.

All of the defendants alleg e constitutio nal errors during trial based on their being shackled t o their chairs, their not being p resent for most of the voir dire, t h e admission o f hearsay
, and the limiting of cross ex aminat i o n o f several
g overnment witnesses. All o f the defendants alleg e the district c ourt abused its discretion by allowing improper g ang

ex p ert testimony and by p er m itting another g overnment’s

ex p ert to testify that her firearm identifications were made to

a scientific certainty

. Defendants Saldana, Caz a r es, a nd Martinez arg u e that Count Two of the Sup e rs eding I ndictment should have been dismissed because 1 8 U .S.C. § 245(b)(2)(b) is unconstitutional on its f ace and as applied to t h i s c ase because its enactment a nd enforcement in the c ase of a murder committed on a public street ex ceeds Cong ress’sU N I T E D S T A T E S V

. C A Z A R E S 8

limited powers. All of the defendants arg ue that the alleg ed cumulative e r rors at trial deprived them of their F ifth Amendment Due Process rig hts to a fair trial.

Defendant Gilbert Saldana s u b m itted a supplemental opening b rief contending t h at the d istrict court erred in deny ing his motion to suppress statements made without Miranda warning s. T h e d i s t r ict court denied Saldana’s suppression motion mid-trial without making fin d i ng s o r stating the basis of the ruling on the record. W e issued an unpublished memorandum disposition reversing the denial o f Saldana’s motion to suppress and remanding to t he district
court f or f act findin g o n whether Saldana was in c ustody when he made these statements to t h e p o l ice. W e deferred submission of the rest of the appeal pending the district court’s fact finding

. See United S tates v. Cazares
, 517 F

. App’x 597 (9th Cir. 2013). The district court later issued a nd filed with this Court seven pag es of finding s of fact in support of the denial of Saldana’s motion to suppress.

This Court has jurisdiction pursuant to 2 8 U.S.C. § 1291. W e affirm on all issues.

D ISCUSSION

I.

THE USE OF SHACK LES

Defendants co n t e n d their r ig hts to due process were violated by being shackled to their chairs during the trial. W e review the d ecision to shackle defendants during trial under

an abuse o f discretion standard. Morgan v. Bunnell
, 24 F .3d 49, 50 (9th Cir. 1994) (per curi a m )

. W e place restrictions,U N I T E D S T A T E S V

. C A Z A R E S 9

however, on that discretion in that: ( 1 ) “ the court must be persuaded by compelling c ircumstances that some measure

was needed to maintain the security of the courtroom”; and (2) “the court must pursue less restrictive alternatives before imposing phy sical restraints.” U nited States v. Fernandez
, 388 F .3d 1 199, 1245 ( 9th Cir. 2004) (quoting Jones v. Meyer
, 899 F .2d 883, 885 (9th Cir. 1990)).

Factual Background Concerning Shackling

B e fore trial, counsel for Caz a r es submitted a declaration

ex p ressing his concern that the de fe ndants would be h a n d c u f f ed with shackles on their leg s and chained to their

sea t s a t trial. Counsel based his concern on the fact that the trial was ordered to be held in the Roy bal security courtroom

an d t hat at p rior proceeding s in that courtroom the marshals had handcuffed, shackled, a nd c h aine d defendants to their
seats. Counsel for Caz ares d eclared u nder oath that at e ach
court p roceeding he attended the defendants had behaved a s g entlemen and had not ex hibited a ny behavi o r o r demeanor that would indicate an intention to disrupt p roceeding s, escape, or assault any one. I n initially ruling on the issue the district court stated, “I wouldn’t be over here in this
courtroom if I was – this courtroo m , I g uess, was built b y tax pay e rs ’ e x pense f

or cases like this, a

nd so, at least at this point, I ’m g oing to deny that motion without prejudice, a nd we’ll see.”

At the beg inning of the trial, after it was call ed to the court’s a ttention that some of the prospective jurors had seen the defendants shackled on a video feed in a different

cou r t r o om, the potential jurors were questioned and the few
t h a t h ad possibly seen the shackles were ex c used. A threeand-a-half to four-foot barrier had been placed in theU N I T E D S T A T E S V

. C A Z A R E S 10

courtro o m t o prevent the jurors f rom seeing shackles o r handcuffs when the de f

e n d a n ts were seated. A journalist, however, saw that the defendants were shackled to their chairs a nd reported in th e L os A ng eles Times that the defendants w ere shackled but that when they were seated the shackling was not visible. T h e district court called the article
to the attention of counsel and proposed cautio n i n g t h e jury
ag ain about not reading any thing about the case and inquiring whether any p r o s p e ctive juror h ad in fact read any articles about the case. Defense counsel restated their o b jection, moved for a mistrial, and moved to unshackle the defendants from the chairs so they could stand at appropriate times. The district court r e s p o n ded that he would talk to the marshals, but noted th a t two of the defendants were serving life terms for murder from state proceeding s.

The district court took the shackles into his consideration from the outset of the trial. I f th e v o i r dire h ad been conducted at sidebar the jurors would like l y h a ve been able
to see the defendants’ shackles. The district court t h er e fore decided ag ainst doing individual juror questioning at sidebar. At the beg inning of the v oir d ire process, the district court said, “I think w e will do this [ i.e., voir d i r e ] o v e r in the jury

room across the hall there because there is a chance that they could see something back here. Okay

. So I will just tell them

we ar e g oing to do this over there.” I n contex t, it is quite clear that w hen th e judg e said that “there is a chance they could see something back here” he was t a l king about prospective j u rors seeing defendants’ shackling from the
ang le at which the sidebar would take place.

During the course of voir dire, counsel for the defendants renewed their obj ec t i o n t o the jury pool. The district court denied the motion at the t i m e because he did not f ind thatU N I T E D S T A T E S V

. C A Z A R E S 11

there had been any taint of the prospective jurors, but advised that he would take action if a l e vel of taint was established. The district court continued to q uestion p otential jurors about whether they had seen the defendants on the monitor. One o f the potential jurors responded that he had seen the defendants escorted in the courtro o m a n d that ‘[ i] t looked like they h ad handcuffs on behind their backs.” This potenti a l juror also stated, “ I think w e all just looked at it, a nd I d o n’t think
any body really

said any thing .”

The district court dismissed all b ut six of the panel that had been in the courtroom w ith the video monitor. Those six

were seated in the jury box and the district c ourt concluded that they ha d not seen the defendants on the monitor. Other potential jurors denied seeing the d efendants on the monitor before voir dire commenced. A few stated that they had seen the defendants on the monitor before v o i r dire commenced, but that the d efendants were seated. Another prospective juror stated that he had seen on the monitor what he assumed
to be, possibly incorrectly
, a defendant walkin g i n the
courtroom. After voir dire was completed, the district court announced that all the potential jurors who had possibly seen the defendants in shackles had been ex cused a nd that the district court was satisfied that the panel was not tainted. The district cou r t a g ain p o inted out the placement of the barrier that preven t e d the jurors from seeing any shackles o r handcuffs when the defend ants were seated. Counsel objected to the shackling
, becau s e i t would prevent the defendants from g etting up and down d uring the t r i a l
, a

nd renewed the moti o n for mistrial. Counsel also moved the district court for an order to unshackle the d e f endants from
t h e ir chairs, so that e ven thoug h they were wearing l e g

s h a c kles they could stand up and down throug hout the trial. The district c ourt responded to the renewed motion by statingU N I T E D S T A T E S V

. C A Z A R E S 12

that he would talk to the marshals and by ag ain noting that at least two o f the defendants w ere s er v i n g life sentences for murder. B ased on the L os A ng eles Times article referencing the shackles, the district court then asked the potential jurors if any had read a news report reg arding the case, but none o f the potential jurors responded.

Applicable Law on Shackling

“ [ G ] iven their prejudicial effect, due process does n o t permit the u se of v isible restraints i f t he trial court has not take n a ccount of the circumstances of the particular case.” Deck v. Missouri
, 544 U.S. 622, 632 (2005). T h e r a t ionale
ag ainst shackling is that “[ v] isible shackling undermines the presumption o f innocence an d the related fairness of the factfinding process.” Id. at 630. “I n the presence of the jury
, [ the d efendant] is ordinarily ent i t led to be relieved o f handcuffs, or other unusual restraints, so as not to mark him

as an obviously bad man or to sug g est that the fact o f his g u ilt is a foreg one conclusion.” Stewart v. Corbin , 850 F .2d 492, 497 ( 9 th Cir. 1988) (citation omitted )

. A t r ial court may order that a d efendant b e shackled during trial only after the trial court is “persuaded by compel l i n g circumstances that

some measure is needed to maintain security of the courtroom” and if the tr i a l court pursues “less restrictive alternatives before imposing phy sical restraints.” Duckett v

. Godinez
, 67 F .3d 734, 748 (9th Cir. 1995) (quotation marks and citation omitted).

I n deciding whether less res t r i ctive a lternatives to shackling ex ist, a trial court must beg in by assessing the disadvantag e s and limitati o n s if shackles are applied to a defendant. Spain v. Rush e n , 8 8 3 F .2d 712, 721 (9th Cir. 1989). Such disadvantag es and limitations includeU N I T E D S T A T E S V

. C A Z A R E S 13

(1) reversal of the presumption of innocence, (2) impairment of the defendant’s mental abilit y , (3) impeding o f communication between the defendant a nd his co unsel, (4) detraction from the decorum o f the trial, and (5) pain. Id. “After considering these factors, the trial judg e ‘must weig h the benefits and [ thes e ] b u rdens o f shackling ag ainst other possible alternatives.’” Jones
, 899 F .2d a t 885 (9 t h C ir. 1990) (alteration in orig inal) (quoting Spain
, 883 F. 2 d at 721).

There are no ex plicit finding s in the record reg arding the

ex is t e n ce of c ompelling circumstances or the possibility o f less restrictive alternatives to shackling

. “Yet we have never held, and we refuse to h o l d n o w, that a trial c ourt must conduct a h e aring and make finding s before ordering that a defendant be shackled.” Id. at 886.

The district court judg e in this case was conducting a trial in w h ich all f

our defendants were members o f a violent g ang , two of the defendants h ad already been sentenced to life
sentences in state court, and a ll of the defendants were facing life sentences as a result of the federal charg es. I t is apparent from the record that the district court judg e consulted with the marshals reg a

rding the security c o n siderations inherent in shackling

. W e have held that a trial judg e has wide discretion
to decide whether increased secu r i t y measures are r equired when dealing with a d efendant w ho has a p ropensit y f o r violence. Morgan
, 24 F

. 3d at 51. To reduce the risk o f prejudice from the shackling
, the district court judg e carefully questioned the potential jurors during voir dire to preclude seating jurors w ho had seen any defendants in shackles on the monitor. I n a ddition, the b arrier that was placed i n the
courtroom to prevent the jurors from seeing the shackles minimiz ed o r eliminated the di s a d vantag es of shacklesU N I T E D S T A T E S V

. C A Z A R E S 14

reg arding reversal of the pre s u m p tion of innocence a nd detraction f

r o m the decorum of the trial. Visibility of the shackles is critical to the determination of the due process issue. United States v. Mejia
, 559 F .3d 1113, 1117 (9th Cir. 2009); see also W

illiams v. W

oodford
, 384 F .3d 567, 592 (9th Cir. 2004) (“W hen the ju r y n e v er saw the defendant’s shackles in the courtroom, we have h eld that the shackles did
not prejudice the defendant’s rig h t to a f a ir trial.”). Defendants have made no claims and presented no evidence
reg arding the shackles a f fecting their mental ab i lities o r communications with counsel, or c ausing them pain. Even if the district court did not fully state on the record his reasons f o r shackling and h is assessment of less restrict i v e alternatives before orde r i n g shackling in this case, the defendants are not entitled to a reversal based on this record.

I n Cox v. Ayers
, w e set f

orth four factor s t h at a criminal defendant must satisfy to establish that his shackling at trial amounted to a due process violation. 613 F .3d 883, 890 (9th Cir. 2010). T hese four factors are (1) that the defendant was phy sically restrained in the presence of the jury ; ( 2 ) t h at the shackling was seen by the jury ; ( 3) that the phy sical restraint

was not justified by state i n t e re s ts; and (4) that he suffered prejudice as result of t he shackling

. Id. (quoting Ghent v

. W oodford
, 279 F .3d 1121, 1132 (9th Cir. 2002)). These factors are not present in this case.

Defendants acknowledg e that it i s n o t c lear whether any of the sitting ju r o rs actually saw them in shackles. Defendants arg ue, however, that even if the jurors did not see the leg and waist shackles, they had to believe the defendants

were dang erous b ased o n the district court judg e questioning

a nd b ased on the defendants’ immobility during a trial in aU N I T E D S T A T E S V

. C A Z A R E S 15

courtroom in which the marshals outnumbere d the defendants.

This a rg ument is n ot persuasive. The voir dire questioning did not sug g est any ch a r a c t eristic of the defendants. I n addition, a s the district court judg e ex p lained in response to the request to unshackle the d e fendants, there is no ex pectation of mobility of defendants in the courtroom during a trial. The shackles w e r e n ot visible a nd the defendants’ due p rocess r ig hts were n ot v iolated by t h e shackling

. 1

II.

VOIR DIRE CONDUCTED OUTSIDE THE P RESENCE OF THE DEF ENDANTS AND P UBLIC

Defendants contend their constitutional rig hts to a public trial and to be present at trial were violated when the district court conducted much of the voir dire in camera and outside their presence. Defendants concede t h at they did not object
to voir dire being conducted in camera, so this Court reviews the issue for plain error. United States v

. Mageno
, 762 F .3d 933, 940 (9th Cir. 2 0 1 4 )

. “F irst, for us to reverse the jury verdict in t h i s c ase, there must be error that is plain.” Id. at 943 (emphasis omitted). E ven then, we must f i n d that the

error s e r i o u sly affected “the fairness, integ rity
, or public reputation of the judicial proceeding s” before ex ercising discretion to correct the e r ror. Id. at 940 (quoting Puckett v. United States , 556 U.S. 129, 135 (2009)).

1 In a d d i t i o n , th e u n co n s titu tio n al sh ack lin g of a d ef en d an t resu lts in
p rej u d ice o n ly if th e e v i d e n c e o f g u i lt is n o t “ o v erw h elm in g .” Co x , 6 1 3 F.3 d at 8 91 . T h e ev id en ce o f g u ilt in th is case w as o v erw

h elm in g

.U N I T E D S T A T E S V

. C A Z A R E S 16

Factual B ackground on Right to be P resent and to P ublic Trial

J ury selection in this c a s e took over five-and-one-half day s. Most of the voir dire took place outside the presence o f the d efendants and the public in a jury roo m

. Defense

c o u nsel, however, was p resent. Althoug h appearances , instruction, admonitions, g e neral voir dir e , and e x ercise o f peremptory ch a lleng es took place in open court, substantial questioning of prospective jurors reg arding whether they h ad

seen or heard the d efendants on the video monitor, questioning reg arding hardship a nd bias, and leg al arg ument, took place i n t h e j u ry r oom outside the presence of the defendants and the public. The trial transcript repeated l y references that voir dire w as bein g h e l d i n the jury room outside the presence of the defendants.

The district c ourt had a reason for n ot conducting voir dire at sidebar. As was indicated in the previous dis c u s s i o n concerning shackling
, if the voir dire had b e en c onducted at sidebar, the prospective jurors w ould likely have been able to

see the defendants’ shackles. As a r es u l t, the district court decided ag ainst hardship a nd o t h er voir dire questioning at sidebar. At the beg inning of voir dire, the district judg e said, “I think we will do this [ i.e., voir dire] over in the jury room

across the hall there, b ecause there is a chance that they could

see som e thing back h ere. Okay

. So I will just tell them we

are g oing to do this over there.” I n contex t, it is q uite clear that when the judg e said that “there is a chance they could see something back here” he was talking about prospective jurors seeing defendants’ shackling from the ang le at which the voir dire sidebar ex amination of prospective jurors woul d t ake place.U N I T E D S T A T E S V

. C A Z A R E S 17

Neither defendants nor their counsel objected to the voir dire taking place in the jury room o utside the presence of the defendants and the public. I n f a ct , o ne of the defendant’s counsel stated: “I think that the selection oug h t to be done the

same way as it was done earlier b ecause it would look a little odd if the new – the jurors alre a d y s e a ted, having g o ne throug h this rather ex tensive private interviews, now see that the new batch doesn’t have that.”

At one p oint t h e district c ourt advised of his intent to question jurors about vacation time in a nother courtroom a

nd stated, “I g uess I need to probably g et a waiv e r from y our clients.” One of the defendant’s c o u nsel res p o n d ed, “Your Honor, I can’t imag ine my client would have an objection to

us g oing over and doi n g that.” B e fore the district court a nd counsel moved to the other c o u r troom the d istrict court inquired of each defendant whether he o bjected to proceeding in this manner. E ach d efendant c onse n t e d orally on the record to this plan. W hen jury selecti o n was finished a nd defense counsel was asked if there was any leg al cause why the jury panel should not be sworn, each defendant’s counsel responded “no.”

Right to be Present at Voir Dire

F ederal Rule of Crimin a l P rocedure 43(a)(2) states that unless p rovided otherwise a defendant must be present at “every trial st age , including jury impanelment.” I n United States v. Gagnon
, the Court ex plained the constitutional basis of the rig ht o f a d e f

endant to be present a t his court proceeding s:

The c onstitutional ri ght to presence is rooted
to a l a rg e ex tent in the Confrontation ClauseU N I T E D S T A T E S V

. C A Z A R E S 18

o f t he Six th Amendment, e .g., Illinois v

. Allen
, 397 U.S. 337 (1970), but w e h a v e

r e co gniz ed that this rig h t is protected by th e Due Process Clause in some situations where the defen d ant is not actually confronting witnesses or evidence a g ainst h im. I n Snyder

v. Massachusetts
, 291 U.S. 97 (1934), the Court ex plai n ed that a d efendant has a d ue process rig h t to be present a t a proceeding “whene v er his presence has a relation, reasonably s ubstantial, to the fulness of his opportunity to defend ag a inst the charg e

. . . . [ T] he presence of a defendant is a condition o f due p rocess to the ex t e n t that a fair and just hearing w ou l d be thwarted by his absence, and to that ex tent only .” Id

. at 105–06, 108;

see a lso Faretta v. Califor n ia
, 422 U.S. 806, 819 n.15 (1975). The Court also cautioned in Snyder that the ex clusion of a defendant f rom

a trial proceeding should b e considered in lig ht of the whole record. 291 U.S. at 115.

470 U.S. 522, 526 (1985) (per curia m )

. Fu r ther, under the Due Process Clause, “a defe n d a n t i s g uaranteed the r ig ht to be present at any stag e of the cr i m i nal proceeding that is critical to its o utcome if his presence would contribute to the fairness of the procedure.” Kentucky v. S tincer
, 482 U

. S. 730, 745 (1987).

I n Gomez v. United S

tates , the Court discussed the sig nificance of voir dire:

[ I ] n affi r m i n g voir dire as a critical stag e o f the criminal proceeding, during which theU N I T E D S T A T E S V

. C A Z A R E S 19

defen d ant has a constitutional rig h t to be present, the Court wrote: “ ‘[ W ] he re the indictme n t is for a f elony
, the trial

commences at leas t f

r om the time when the work of empanelling the jury beg ins.’” Lewis

v. United States
, 146 U.S. 3 70, 37 4 (1892) (quoting Hopt v. Utah
, 110 U.S. 5 74, 578 (1884)). See Swain v. Alabama
, 380 U .S. 202, 219 ( 1965) ( voir dire “a necessary part of trial by jury ”); see also R icketts v. A d a mson , 483 U.S. 1, 3 (1987); United States v. Powell
, 469 U .S. 57, 66 ( 1 984)

. J u r y selection is the primary means by which a court may enforce

a defendant’s rig h t to b e t r ied by a jury free fro m e thnic, racial, or political prejudice, Rosales-Lopez v. United States
, 451 U.S. 182, 188 (1981); Ham v. South Carolina
, 409 U.S. 524 (1973) ; Dennis v. U

nited States
, 339 U.S. 162 ( 1950), or predisposition about the defendant’s culpability
, Irvin v. Do w d
, 366 U.S. 717 (1961).

490 U.S. 858, 873 (1989). The r ig ht of a defendant to be present during all c r itical stag es of the court proceeding s is subject to harmless error analy sis, u nless that deprivation, b y its nature, cannot be considered harmless. R ushen v. Spain
, 464 U.S. 114, 117–21 (1983) (per curiam) ( holding that an unrecorded ex parte communication between a trial judg e a nd juror was harmless error).

Right to a Public Trial

The Six th A mendment provides, in relevant part, that “[ i] n all criminal p rosecutions, the accused shall enjoy theU N I T E D S T A T E S V

. C A Z A R E S 20

rig ht to a speedy and public trial.” The Six th A mendment rig ht to a p u blic trial ex tends b ey ond the actual proof presented at a trial. See, e.g. , W aller v. Georgia
, 467 U .S. 39, 44–47 (1984) (pretrial suppression hearing must be open to t h e p u blic). The Supreme Court has h eld that the r ig ht t o a public trial ex tends bey ond the accused and can be i n v o k ed under the F irst A men d m en t

. Press-Enterprise Co. v

. Superior Court of Cal., Riverside Cnty.
, 464 U.S. 501 (1984).

I n Presley v

. Georgia
, the Court h eld that a defendant’s Six th Amendment rig ht to a public trial was v iolated when the trial court ex c luded the p u b l i c f rom the voir d ire o f
p r o s p e c tive jurors. 558 U.S. 209, 2 13 (2010) (per curiam). I n Presley
, the trial court advised a courtroom observer, the defendant’s u ncle, t h a t he would not be allowed in the
courtroom while the jury was selected but that he could come in after jury selection. W h en co u n s el for the defendant objected to the ex clusion of the public from t h e courtroom, the trial court ex plained that there w a s not space for the public to sit in the audience and that there was “really no need for the uncle to be present d uring jury selection.” Id. at 210. The Court concluded that the questio n o f whether the Six th Amendment rig ht to a jury trial ex tends to jury voir dire was

so well settled that it could proceed by summary disposition:

The point is well settled under PressEnterprise I and W

aller

. The ex tent to which th e Fi rst and Six th A mendment public trial rig hts are coex tensive is an o pen question, a nd it is not necessary here to speculate whether o r in what circumstances the reach o r protections of one mig ht be g reater than the other. Still,
t h e r e is no leg itimate r eason, at least in th e contex t of juror selection proceeding s, to g iveU N I T E D S T A T E S V

. C A Z A R E S 21

one who asserts a F irst Amendment privileg e g reater rig hts to insi s t on public proceeding s t han the accused has. “Our cases hav e

u n i f o r m l y r e c o g n i z e d t h e p u b l i c

- t r i a l
g uarantee as one created for the benefit of the defendant.” Gannett Co. v. DePasquale
, 443 U.S. 3 6 8
, 3 8 0 (1979). There could be no

ex p l anation for barring the accused f rom

r a isi n g a c o n s t i t u t i o n a l r i gh t t h a t i s unmistakably f

or his or h er benefit. That rationale suffices to r esolve the instant matter.

Id. at 213.

The Supreme Court i n P resley admonished that “[ t] rial
courts are oblig ated to take e v e ry reasonable measure to accommodate public a ttendance at criminal t r ials.” I d

. at 215. Althoug h the Sup r e m e Court acknowledg ed circumstances that would warrant closi n g v o i r dire to the public, the Court directed that “in those cases, the particular interest, and threat to that interest, must ‘be articulated along with f inding s specific enoug h that a reviewing c o u r t can determine whether the closure order was properly entered.’” Id. (quoting Press-Enterprise , 464 U.S. at 510).

The district court in this case s t a t ed that its “practice,
g enerally
, ” and especially in l o n ger cases, was to conduct hardship v o i r d i r e in the jury room. The district court

ex p lained that addressing hardship issues in the a d j acent conference room “will just be easier and nobody will be able
to hear us.” T he district court a lso stated that he was bring ing in t he prospective jurors one at a time to the jury room to consider hardship issues b ecause “if people don’t g et the idea that people are g etting out, i t m ay keep it down to aU N I T E D S T A T E S V

. C A Z A R E S 22

reasonable number.” Had any of the defendants asserted their rig hts to a public trial, the r easons stated by the district court for holding most o f v o i r dire in private would not be sufficient to a void a determination that the defendants’ rig hts
to a public trial were v iolated. The United States arg ues that althoug h the district c ourt d id not ex pressly make the Presley finding
, it was clear that the district court was conducting the individual voir dire in private because of t h e n a t ure of the bias and hardship questions. The questions asked were not o f

an intensely personal nature so that arg ument is not supported by the record.

Harmless Error or Structural Error

I n Arizona v. Fulminan t e , the Supreme Court divided constitutional errors into two cl a s ses: trial errors a nd

s t r uctural d efects. 499 U.S. 279, 307 ( 1991). Trial err o rs “occurred during presentation of the cas e t o the jury ” a nd their effect may “be quantitatively assessed in the contex t of other evidence presented in order to determine whether [ they were] harmless bey ond a reasonable do u b t.” Id. at 307–08. S t r u c t u r a l d e f

e c t s , h o w e v e r , “ d e f

y a n a l y s i s b y ‘harmless-error’ stan d a rds” because they “affect[ ] the framework w i t h i n which the trial proceeds,” and a re not “simply a n e rror in the trial process itself.” I d. at 309–10. The denial of the rig ht to public trial has been categ oriz ed a s

a structural defect. United States v. Gonzalez-Lopez
, 548 U .S. 140, 1 49 (2006) (citing W aller
, 467 U.S. at 49, n.9). I f the rig ht to a public trial had n ot been waived, defendants would have a persuasive arg u ment that their rig ht to a public trial was violated w hen mos t o f v o i r dire was conducted in private.U N I T E D S T A T E S V

. C A Z A R E S 23

“The Supreme Court has never held that the ex clusion o f

a defendant f

r om a critical stag e of his criminal proceeding s constit u tes a structural error.” Campbell v. Rice
, 408 F .3d 1166, 1 172 ( 9 th Cir. 2005). I n making this statement, we relied on R ushen v. Spain
, in which the Supreme Court f ound that a juror’s ex parte communication with the trial judg e was harmless bey o nd a r easonable doubt. 464 U.S. at 1 17–21. I n United States v. Gagnon
, t h e Supreme Court emphasiz ed, “[ T] he presence of a defendant is a condition of due process
to the ex tent that a fair and just hearing would be thwarted b y his absence, an d t o that e x tent only .’” 470 U.S. at 526 (quoting Snyder v

. Massachusetts
, 291 U.S. 9 7
, 1 05–06 (1934)).

I n Gagnon
, the district court judg e had a communication with a juror who was concerned that o n e o f the defendants

w a s sketching the juror. T he district court advised in o p e n court that he was g oing to have this communication without the defendants being present, and no objection was made. Id.
at 523. The Supreme Court characteriz ed the communication as follows:

The en counter between the judg e, the juror, and Gag non’s lawy er was a short interlude in

a complex trial; the conference was not the
sort of event which every defendant h a d a rig ht persona l l y to attend under the F ifth Amendment. Responde nts could have d o ne nothing h ad they been at the c o n ference, nor would they have g ained any thing b y attending

.

I d

. a t 5 2 7

. The p rivate voir dire in the case at hand was no t “a short interlude” to the ex tent that it took place for most o fU N I T E D S T A T E S V

. C A Z A R E S 24

the five-and-one-half day s of voir dire. H o wever, it is difficult to see how the defendants’ presence would have chang ed the c omposition of the jury panel, s e e G ray v

. Mississippi
, 481 U.S. 648, 665 (1987), or otherwise affected the outcome of the case. I t is u n clear what defendants would have g a ined by attending the voir dire, especially since their counsel was in attendance. Nonethele ss, the defendants should have been in attendance to view prospective j u r o r s,

see the reactions, both oral and phy sical, of prospective jurors to questioning , and consult with their defense counsel.

W aiver

W e have recog niz ed that “[ a] lthoug h a defendant charg ed with a felony has a f

undamental rig ht to be present during voir dire, this rig ht may b e wa i ved.” United States v

. Sherwood
, 98 F .3d 402, 407 ( 9th Cir. 1996) (citing Campbell

v. W ood
, 18 F .3d 662, 6 72–73 ( 9 th Cir. 1 9 9 4 ) (en banc) (defendant in a capital case w aived h is ri ght to be present during voir dire by ex p ressing his desire not t o b e present);

s ee also G agnon , 470 U.S. at 529 (“W e h old that f ailure by a criminal defendant to invoke his righ t t o b e present under F ederal Rule of Criminal Procedure 43 at a conference which he knows is taking p lace b etween the judg e an d a j u r o r in chambers constitutes a valid w aiver of that rig ht.”). The rig ht
to a public trial can a l s o b e waived. See Levine v. United States
, 362 U.S. 610, 619 ( 1960) ( “The continuing ex clusion of the public in this case is not to [be] deemed c ontrary to the requirements o f t h e Due Process Clause without a request having been made to the trial judg e to open the courtroom at the final stag e of the proceeding . . . .”).

“ [ C ]ourts must indulg e every r easonable presumption
ag ainst the loss of constitutional r i g hts.” Illinois v. Allen
,U N I T E D S T A T E S V

. C A Z A R E S 25

397 U.S. 337, 343 (1970) (citing Johnson v. Zerbst
, 304 U.S. 458, 464 (1938)). I

n Campbell v. W

ood , we ex p lained:

A waiver is an “intentional relinquishment o r abandonment of a known rig ht or privileg e. ” Johnson v. Zerbst , 304 U.S. 458, 464 (1938). The finding of a k

nowing and voluntary waiver is a m i x e d question of law and fact which we review de novo

. Terrovo n a v. Kincheloe
, 8 52 F .2d 424, 427 (9th Cir. 1988). The ultimate issue of voluntariness is a leg al
q u estion r e q u i r i n g i n d e p e n d e n t f e d e ra l d e t e rm i n a t i o n

. A r iz o n a v

. F u l m i n a n t e , 499 U.S. 279, 286 (1991).

18 F .3d at 672.

Defendants contend without citing suppor t ing authority that “[ b] y being shackled they could not possib ly have asserted their rig hts to b e present.” T he United States arg ues that there is “no connection” between being shackled a nd being a ble to assert their rig h t to be present or to have an open trial. There is arg uably some connection between being shackled and not asserting the rig ht to b e present in the jury

room for the private voir dire a s there is no evidence that the barrier which hid the shackles in the courtroom was available in the jury room where most o f the voir dire took place. Also,

as a matter of log istics, moving the shackled defendants may have required some e x tra time and e ffort. I f defendants h ad objected to the voir dire being conducted in the jury room, the voir dire could have been held in the courtroom where there

was a barrier which hid th e s h ackles. However, defendants could h ave asserted their rig hts and “[ t] he district court need
not g et an e x press ‘on the record’ waiver from the defendantU N I T E D S T A T E S V

. C A Z A R E S 26

for every trial conference which a d efendant may have a rig ht
to attend.” G agnon , 4 70 U .S. at 528. None of the defendants

nor their counsel e v er requested that the defendants be present at t h e p o r t i o n o f the voir dire that took place in the jury r oom. W hen the district court requested a waiver of the d efendants’ presence for a p ortion of the voir dire, the defendants each g ave the waiver on the record. I n addition, counsel for one o f the d efendants requeste d t h a t the private voir dire continue in the manner it was proceeding

. The facts of this case support fi n d i n g a valid waiver of the rig ht to be present at voir dire and a valid waiver of the rig h t to a public trial.

III.

WHETHER THE DISTRICT COURT COMMITTED P REJUDICIAL ERROR IN ADMITTING HEARSAY P URSUANT TO THE DOCTRINE OF F ORF EITURE

BY WRONG DOING

The district court’s r esolution of Confrontation Cla u se claims is reviewed de novo. U nited S tates v. Berry
, 683 F .3d 1 0 1 5, 1020 (9th Cir. 2 012). Additionally
, “we revi e w d e

novo the district cour t ’s c onstruction of hearsay rules, but review for abuse of d isc r e t i on the court’s determination to admit hearsay

evidence.” U

nited States v. Marguet-Pillado
, 560 F .3d 1078, 1081 (9th Cir. 2009).

Factual Background o n Doctrine of Forfeiture by W rongdoing Issue

One o f the defendants, Porfirio Avila,
, a/k/a “Dreamer,” and another Avenues g a n g m e mber, Rene Madel, had been convicted of murder i n s t a t e court for the murder o fU N I T E D S T A T E S V

. C A Z A R E S 27

Christopher B owser before the federal trial in this matter was held. The assaults a

nd later murder o f B owser were set forth

a s o v ert acts in the Second Superseding I ndictment. Af t e r B o w s e r w as assaulted and robbed on October 2 6, 2000, B owser report e d the crimes to the L os A ng eles Police D e p artment. Defendant Alejandro Martinez
, a/k/a “B ird,”

was subsequently arrested for the assault and robbery

. As set forth in testimony of Avila ’ s former brother-in-law David Cruz
, a/k/a “ Mousey ,” which was c ontained in the state court murder trial transcript and reviewed by the dist r i c t court before trial, Martinez then d irected Avila and Madel to k ill B owser. On December 11, 2 000, A vila and Madel shot and killed B owser.

I n presenting the evidence concern i n g Christopher B owser, the g overnment eli c i t e d testimony from several

sources r eg arding out-of-court st a tements made b y B owser implicating the Avenues, and Martinez in part i c u lar, in the initial assaults and assault and robbery

. Seve ral w itnesses testified to B owser having a long history of being harassed b y the A venues. T he g overnment cont e nded that B owser’s
statements w e r e admissible under the “forfeiture b y wrong doing ” ex ception to the hearsay rule. The dis t r i ct court, over the defendants’ objections, allowed B o wser ’s
statements to be admitted in evidence subject to a motion to strike.

L APD O fficer F ernando Carrasco testified that on October 26, 2000, h e responded to a ca l l o n a robbery investig ation and spoke with B o wser w ho to l d h i m h e h ad bee n punched, kicked, and robbed o f a necklace by two Hispanic men while he was waiting at a bus stop. O ff i c e r Carrasco also testified t h at B owser told him he recog niz ed

one of the Hispanic men as “B ird” from the Avenues and toldU N I T E D S T A T E S V

. C A Z A R E S 28

Carrasco that he had had prev i o us run-ins w ith “B ird.” Officer Carrasco testified that B owser was initiall y h e sitant
to press charg e s and stated that “he feared for his safety

. He feared retaliation.”

Officer J ohn Padilla, a detective f or the C i t y of L os Ang eles, testified that he was assig ned to do a follow-up invest i ga t i on on the a ssault and r obbery ag ainst B owser. Officer Padilla testified that on November 28, 2 0 0 0
, he received a note at his desk that B owser wanted to press charg es ag ainst “B ird” because “ B ird” had d rive n b y him in

a car a nd pointed a g un at him. Officer Padilla testified that he went to B owser’s house in H igh l a n d Park on November 30, 2000, and interviewed B owser. Officer Padilla testified that at this interview B o wser said he was robbed b y “B ird” and another. Officer Padilla further testif i e d t h at B owser stated he h a d been assaulted a n d called the N-word by “B ird” on several occasions. B owser then identified “B ird” on a photo lineup and circled “ Bird’s” photog raph. Under the photog raph B owser, in the presence o f Officer Padilla, wrote, “‘B ird,’ N o. 6, stole my chain and assaulted me.” B owser sig ned and dated the n ote. Martinez was arrested on December 3, 2000. B owser was s h o t a n d killed on December 11, 2000.

Right to Confrontation, Forfeiture by W rongdoing, and Rule 804( b ) ( 6)

The Confrontation C l ause of the Six th A mendment provides t h a t, “[ i] n all criminal p rosecutions, the accused shall en j o y the rig ht

. . . to be confronted with the w itnesses
ag ainst him.” I n Crawford v. W ashington
, the Supreme Court held out-of-court statements by witnesses that are testimonial

are barred, under the Confrontation Clause, unless theU N I T E D S T A T E S V

. C A Z A R E S 29

witnesses a

re unavailable and a defendant had a p r i o r opportunity to cross- ex a mine the witnesses, reg ardless o f whether such statement s a r e deemed reliable by the court. 541 U.S. 36, 53–54 ( 2004). The decision in Crawford abrog ated O hio v

. Roberts
, which allowed the admission o f a statement of a hearsay d ec l a rant who is unavailable for trial if it bears “adequate ‘indicia of reliability .’” 448 U .S. 56, 66 (1980). I n Crawford the Supreme Court held that statements taken b y police officers in the c o u rs e o f interrog ations a re testimonial under even a narr o w standard. 541 U.S. a t 52. The Court held that the Con f r o n t a tion Clause g ives a defenda nt the rig ht to cross-ex amine witnesses who g ive testimony a g ainst him, ex c ept in cases where an ex ception to the rig ht of confrontation w as recog niz ed at the time of the founding

. Id. at 53–54.

I n Giles v. California
, the Supre m e C o urt ex a mined the “forfeiture by wrong doing ” doctrine. 55 4 U

. S. 353 (2008). I n Giles
, California unsuccessfully argu e d that whenever a defendant committed an act of wrong doing t h a t r e ndered a witness unavailable, the defendant forfeited his rig ht to object
to the witness’s testimony on co n frontation g rounds. Id. at 364–65. I n rejecting this arg ument t h e C ourt stated, “American courts never—prior to 1985—invoked forfeiture outside the co n tex t of deliberate witness tampering

. ” I d. at 366.

I n G i l es , the Court cited to Crawford and the previous acknowledg ment of two forms of u n conf ronted testimonial
statements that were admitted a t common law. The first founding -era ex ception to the rig ht of confront ation is “declarations made by a speaker who was both on the b r i nk of death and aware that h e w a s d y i n g .” Id. at 358. The second founding -era ex ception to t h e rig ht of confrontation,U N I T E D S T A T E S V

. C A Z A R E S 30

a n d the one relevant to the case at hand, is forfeiture b y wrong doing
, a d o ctrine which permitted the admission o f

“ s tatements o f a witness who was ‘detained’ or ‘kept aw a y ’ by the ‘ means or procurement’ of the defendant.” Id. at 359.

I n ex amining the history of the doctrine of forfeiture b y wrong doing
, the Cour t o bserved, “I n cases where the evidence sug g ested that the d efendant had caused a person to be absent, b ut had not done s o t o p re vent the p e rson from
te s t i fy ing —as in the ty

pical murder case involving accusatorial statements by the victim—the testimony was

ex c luded unless it was confronted or fell within the dy ing -declarations ex ception.” Id. at 361–62.

I n Davis v. W

ashington
, 547 U.S. 813 (2006)
, the Supreme Court ex p lained:

[ W ] hen defend a nts seek to undermine the judicial process b y p rocuring or coercing silence from w itnesses and victims, the Six th A mendment does not require courts to acquiesce. W hile defendants have no duty to assist the Stat e i n proving their g uilt, they do have the duty to refrain fr o m a c ting in way s that d estroy the integ rity of the criminal-trial
sy stem. W e reiterate what w e said in Crawford : that “the rule of forfeiture b y wrong doing

. . . ex ti ng u ishes confrontation claims on essentially e quitable g rounds.” 541 U.S. at 62. That is, one who obt a i ns the absence of a witness by wrong doing forfeits the constitutional rig ht to confrontation.

Id. at 833.U N I T E D S T A T E S V

. C A Z A R E S 31

The Supreme Court in Giles observed that in 1997 it h ad approved Rule 804(b)(6), a rule “which codifies the forfeiture doctrine.” 5 54 U.S. at 367 (quoting Davis
, 547 U.S. at 833). Rule 804(b)(6) provides that a “statement offered ag ainst a party that wrong fully caused—or acquiesced in wrong fu lly causing

— the declarant’s unavailability as a w itness, a nd did

so intending tha t re s u lt” is not ex c luded by the rule ag ainst hearsay if the d eclarant is unavailable as a witness. Causing th e declarant’s unavailability w ith the intent of doing so is critical to the doctrine of f o rfeiture by wrong doing

. See United States v

. L e al-Del Carmen
, 697 F .3d 964, 974 (9th Cir. 2012) (holding videotape admissible under the forfeiture by wr o n gdoing h earsay ex ception because the Government

was r esponsi b l e for rendering the declarant unavailable as a witness).

Rule 80 4 ( b ) (6) applies to those who “acquiesced in
wrong fully causing

—the declarant’s unava i l a bility .” A number of courts have ruled that a witn e s s ’ s statement may b e admissible under Rule 804(b)(6) a g ainst a defendant conspirator w ho did not directly p rocure the unavailability o f the witness, so long a s a coconspirator had done s o, the misconduct was within the scope and in fur t herance of the conspiracy
, and the misconduct was reasonab l y foreseeable
to the conspirator. See United States v. Cherry
, 217 F .3d 811, 820 (10th Cir. 2000); United S tates v

. R ivera
, 292 F

. Supp. 2d 827, 833 (E.D. Va. 2003). The factors supporting a pplication of Rule 80 4 (b)(6) are to be determined based on a preponderance of the evidence. Davis
, 5 4 7 U.S. at 833; Cherry
, 2 17 F .3d at 821; United S tates v. Emery
, 1 8 6 F. 3d 921, 926 (8th Cir. 1999).U N I T E D S T A T E S V

. C A Z A R E S 32

District Court’s Application of Forfeiture b y W rongdoing Doctrine

Defendants arg u e that the district court misconstrued the
scope of the forfeiture b y w r ong doing doctrine and v iolated
t h e i r Confrontation Clause rig hts because the Govern m e n t d i d
not show that the d efendants h ad B owser killed for the
purpose of rendering him unable to testify

. Defendants a rg ue that the court made n o finding on the question whether Mr. B owser was killed for this purpose.

I mmediately before the jury returned its verdict in this
case, the district court p ut on the record the basis for its admission of the B owser statements under the forfeiture b y wrong doing doctrine. The district court stated: “I wanted to
set out some o f the reasons w h y I f o u n d that there w as a preponderance of evidence that t h e d e fendants Avila a nd Martinez and o thers d irectly eng ag ed in w rong doing that was intended to and did render Chris B owser unavailable as a witness.” (Emphasis added.) The district c ourt then stated that the reasons for his ruling included, but were not limited
to: (1) That Bo w s e r complained about being h arassed b y

mem b e rs of the Avenues, including Martinez ; (2) That B owser had been beaten b y individuals wearing blue u niform shirts that Avila and Martinez wore for e mploy ment; (3) That B owser reported to the police that Martinez had robbed him and Mar t i n ez was then a

rrested for the assault; (4) That the mother of B owser’s child testified B o wser told her in the day s leading up to his death that he wanted to see h is child because the Avenues were after him; ( 5) That B owser was killed eig ht day s a f t e r he told the police that Martinez had robbed him; (6) That B owser was killed ex ecution sty le at the same bus stop where he reported b e ing robbed and assaulted; (7) That the pattern of shots used in the B owser murder was identicalU N I T E D S T A T E S V

. C A Z A R E S 33

to that in another local murd e r o f an African-American (Anthony Prudhomme); (8) That th e testimony g iven b y Mousey in People v

. Avila set forth that Martinez had ordered Avila and Madel to k ill B o wser and that Avila had admitted having done so to Mousey ; (9) That the district court h ad taken judicial notice of Avila’s c onvictions for mur d e ri ng B owser and Prudhomme; and ( 10) That the district c ourt h ad taken judicial notice of Martinez ’s conviction f or the robbery of B owser and the fact that t h e B o wser murder was charg ed as an overt act in furtherance of the conspiracy

.

I n addition to these r easons, the e v i d ence a t trial established that five day s after B owser’s mur d e r , a fellow
g ang member who w as incarcerated in state prison took part in a recorded telephone con v e r s a tion w ith Avila in which Avila admitted that h e and Martinez a s s a ulted B owser. I n this conversation Avila stated t h a t B owser r eported the assault and that the police raided Martinez ’s residence. Avila then commented, “That fool’s g o ne.” Also, Mousey testified in the state c ourt proceeding that Martinez ’s order f r om the jail to k ill B owser was also because of B owser b eing a witness ag ainst Martinez

.

The district court acted properly in admitting the B owser statements a t trial conting e nt upon proof of the elements for admission by a preponderance of the evidence. S e e E mery , 186 F .3d at 926. The federal c o urts “ have soug ht to effect the
purpos e of the forfeiture-by

- wrong doing ex ception b y construing b roadly the elements r equired for its application.” United States v. Gray
, 405 F .3d 227, 242 (4th Cir

. 2005). The g overnment is not required to show that a defe n d a n t ’s sole purpose was to silence the declarant. See United States

v. Dhinsa
, 243 F .3d 635, 654 (2d Cir. 2001). The district court’s stated reasons and the r ecord as a whole clearlyU N I T E D S T A T E S V

. C A Z A R E S 34

support t h e application of the forfeiture by wrong doing doctrine with reg ard to defendants Avila and Martinez . The fact that Mousey ’s credibility a nd testimony was subject to attack does not, as defendants arg ue, support the defendants’ position that the e vidence was insufficient to suppor t a determination that B o wse r’s murder was undertaken to prevent him from g iving testimony

.

The district court should have articulated that the B owser murder w as w i t h i n t h e scope of and in furtherance of the conspiracy
, and that the murder was reasonably f o r eseeable
to t h e d efendants other than Martinez and Avila so that the forfeiture by wrong d o i n g doctrine applied to all who h ad

“ a c q u i esced in w r o n gf u l l y ca u s i n g

— t h e d e c l a r a n t ’s unavailability .” Cherry
, 2 1 7 F

. 3d at 811; F ed. R. Evid. 804(b)(6). Ho w ev e r , if there was any e rror in the failure to do so, the error appears to be harmless. There was a plethora of evidence other than B owser’s statements that the Avenues harassed bl ac k s and B owser in particular. Also, the testimonial statements that B owser made to the officers, for the most part, implicated o nly Martin e z

. The admission o f the B owser statements does not constitute reversible error.

IV.

WHETHER THE TESTIMONY OF THE G OVERNMENT’S EXP ERT WITNESS VIOLATED RULE 703 AND DEF ENDANTS’ CONF RONTATION

RIG HTS

W e review the dis t r i ct court’s admission of ex pert testimony for abuse of d i s c r etion. Estate o f B arabin v

. A s t enJohnson, Inc.
, 7 40 F .3d 457, 460 (9th Cir. 2014 ) ( e n b a n c )

. “A district court’s ruling s on the admissibility o fU N I T E D S T A T E S V

. C A Z A R E S 35

ex p ert testimony

. . . will be revers e d o n l y if ‘manifestly

e r r o n eous.’” United States v. Hankey
, 203 F .3d 1160, 11 6 7 (9th Cir. 2000) (quoting Gen. E l e c. Co. v. Joiner
, 522 U.S. 136, 142 ( 1997)). Defendants now challeng e a portion of the testimony of the g ang e x pert on Confrontation Clause
g rounds, but failed to object on those g rounds before the district court. W e review de novo a district court’s admission of evidence in alleg ed violation o f the Confrontation Clause. However, if a defendant failed to obj ec t to the admission o f evidence under the Confrontation Clause, we review for plain

error. United States v. Ha gege , 437 F .3d 943, 956 (9th Cir. 2006).

Factual Background on Expert W itness Lopez Issue

Th e g overnment called L A PD L t. Robert L o pez as an

ex p ert o n s treet g ang s, including the A venues, that reside in the Northeast Division. At the time of trial L opez was a 28-
y ear veteran of the L APD with 25 y ears of worki n g w i t h
g ang s. H e was the detective in charg e of the Northeast g ang unit. L opez attended specializ e d training and seminars on g ang s, and had taug h t g ang investig a t i o n

. L opez talked to between 200 and 400 Avenues g ang members over the y ears

a n d t alked to other law enforcement o f ficers who were i n contact with Avenues g ang m em b e r s. L opez had either investig ated or supervised o ver 500 A venues cases in the past twelve y e ars. The d istrict c o urt o verruled defendants’ objections to the g overnment’s offer of L opez as a n e x pert on the Avenues g ang

. Then the district court instructed the jury that opinion testimony should b e judg ed like any other testimony
, and could be accepted, rejected, or g iven as much weig ht as the jurors t h o u ght it deserved considering the witness’s education, ex perience, and reasoning
, as w ell as all of the other evidence in the case.U N I T E D S T A T E S V

. C A Z A R E S 36

L opez testified about the structure, membe r s hip requirements, practices, g raffiti, and slang of the Avenues
g ang

. Defendants c o n t e nd that other testimony of L opez

se rved merely to r elay inadmissible hearsay to the jury

. I n particular, d efendants c h a lleng e the admission o f L o pez ’s opinion about the racial attitud e s of the Avenues g ang

. Defendants conten d t h at the testimony reg arding racial attitudes consisted e n tirely o f hearsay and was neither admissible nor helpful to the jury as required by Rule 703.

L opez testified as to h is observation that with the increase of b lack people moving into the Hig hland Park neig h borhood there w a s a chang e in the Avenues’ crimes, in that the Avenues’ c rimes targ eted black individuals a n d families in the area. L opez testified that he talked to black people in the neig hborhood and to officers w orking the c rimes about this development. The g overnment then asked, “B ased on those interactions, do y o u have any opinion about whether the Avenues g a

n g members had any racial attitudes? ” The defendants o bjected on the g r ounds that it was not the proper subject of ex pert opinion in that it g oes to one of the elements charg ed, that there w as inadequate foundation, that ex pert testimony was not necessary in this area, a n d that it was bey ond L opez ’s ex pertise. After a sidebar c o n f er ence the prosecutor asked whether L opez had an opinion as to h ow the Avenues g ang members felt about the increase i n the black population in Hig hland Park. L opez testified that they hated it. The district court allowed L opez to testify as to the basis of h is opinion, and L opez testified that based on interviews o f the community members, the A v en u es g ang members, a nd detectives and officers assig ned to his unit, it was his opinion that black people moving in to the neigh b o rhood was chang ing the makeup of the neig hborhood and the Avenues
g ang members weren’t happy with it.U N I T E D S T A T E S V

. C A Z A R E S 37

W h ile eliciting the testimony reg arding the Avenues g ang members’ a tt i tudes towards b lack people, the p rosecutor eng ag ed in the following questioning :

Q: J ust to be c lear, L ieutenant L opez , when
y ou talk about the Avenues’ attitudes towards black people in the neig hborhood, y ou are not offering any opinion about whether any o f these defendants a c t ed with r acial intent on any particular occasion; correct?

A: Correct.

Q: You are just talking in g eneral terms?

A: Yes, ma’am.

L opez ’s testimony was not so g eneral with reg ard to the unofficial hierarchy of the Avenues g ang

. L opez testified that

c o n v e rsations he had with the A venues g ang members a nd the officers a ssig ned to the investig ations of the Avenues led him to conclude that the oldest and most violent m e m b ers would b e revered and h a v e ex tra clout. L opez w as then allowed, over a defense relevancy o bjection, to opine whether
any member of the Avenues 43 h ad that ex tra c l o u t. L opez identified d efendants M a r tinez and to a certain e x tent, Saldana and Avila, as being in that categ ory

. Gang Expert Testimony and Rule 703

Ex p e r ts may be used to testify to matters outside the

ex p ected knowledg e of the averag e juror. F ed. R. Evid. 702;

see also Hankey
, 203 F .3d a t 1167. E x pert witnesses may rely o n inadmissible hea r s a y in forming their o pinions, soU N I T E D S T A T E S V

. C A Z A R E S 38

long as it is of a t y

pe r easonably relied upon by ex perts in their field. F ed. R. Evid. 703; Hankey
, 203 F .3d at 1169. I n Hankey
, we upheld the a dmission of ex pert testimony of an officer with ex perience and sources of information similar to that possessed by

Officer L opez

. As we ex plained:

Certainly the officer relied on “st r eet intellig ence” for his opin i o n s about g ang membership a

n d tenets. How else can o ne

o btain this ency clopedic k nowledg e o f identifiable g ang s? Gang s such as involved here do not have by -la w s , org aniz ational minutes, or any other normal means o f i d e n t i f i c a t i o n

- a l t h o u gh a s [ t h e o f f i c e r ] testified, some wear c o l o rs, g ive sig ns, bear tattoos, etc. [The officer] was repeatedly asked the basis for his o pinions and fully articul a t e d the basis, demonstrating that the information upon w h i c h he relied is of the ty pe normally obtained i n h is day -to-day police activity

.

203 F .3d at 1169–70.

Defendan ts are challeng ing the testimony g iven b y Officer L o pez which ex tended bey o n d “g eneral backg r ound information about g ang s” a nd “specializ ed testimony
reg arding matters bey ond the jury ’s k en.” Defendants rely
upon U nited States v. Mejia
, 545 F .3d 179 (2d Cir. 2008), a s authority that this ex pert witness was used as a subterfug e to introduce otherwise inadmissible hearsay

. I n Mejia
, a case in which a p olice officer who was a member of a g ang task force testified as an ex pert in p r osecution of g ang members, the Second Circuit cautioned:U N I T E D S T A T E S V

. C A Z A R E S 39

Yet despite the u tility of, a n d n eed for,

ex p ertise of this sort, its use mu s t b e limited
to those issues w here sociolog ical knowledg e is appropriate. An in c r easing ly thinning line
sep a r ates the leg itimate use of an officer

ex p ert to translate e s o t e ric terminolog y or to

ex p lica t e a

n o rg aniz ation’s hierarchical

s t r u c t u r e f

r o m t h e i l l e g i t i m a t e a n d impermissible sub s titution of ex pert opinion f o r factual evidence. I f the officer ex pert st ray s bey ond the bounds of a ppropriately “ex pert” matters, that officer becomes, rather than a soci o l o g ist d escribing the inner working s of a closed c o mmunity
, a chronicler of the r ecent past w hose pronouncements on el em e nts o f the c harg e d o ffense serve a s shortcuts to proving g u ilt. As the officer’s purported ex pertise narrows from “org aniz ed crime” to “this p ar ticular g ang ,” from the

mean i n g of “capo” to the criminality of the defendant, the officer’s testimony be c omes

more central to the case, more corroborative of the fact witnesses, and thus more like a summary of the facts t h a n an aide in understanding them.

Id. at 190.

Defendants also a r g ue that Officer L opez ’ s testimony resulted in the prohibited disclosure o f inadmissible hearsay
upon which he based some of his testimo n y

. Ru le 703 provides:U N I T E D S T A T E S V

. C A Z A R E S 40

An ex pert may base an opinio n o n f acts o r data in the c ase that the ex p ert has been made

aware of or personally observed. I f ex perts in the particular fi e ld would reasonably rely on tho s e k i n ds of facts o r data in forming an opinion on the subject, they need not be admissible for the opinion to b e a dmitted. But if the facts or data w o u ld otherwise be inadmissible, the proponent of the opinion
may disclose th e m to the jury only if their probative value in helping t h e jury evaluate the o pinion substantially outweighs their prejudicial effect.

(Emphasis added.)

W e have recog niz ed that to the e x t e nt that inadmissible evidence is reasonably relied upon by an ex pe r t , a l imiting instruction ty

pically is needed to limi t the u se of that evidence. United States v. Grace
, 504 F .3d 745, 759 n.7 (9th Cir. 2 007); United States v. 0.59 Acres o f L and
, 109 F .3d 1493, 1496 (9th Cir. 1997). No limiting instruc t i on was requested or g iven after the testimony in issue.

I t was improper ex pert testimony and a violation o f Rule 703 for Officer L opez to identify Avenues g ang members a nd
t h e officers assig ned to the investig ations of the Avenues a s his source for c h a racteriz ing defendants Martinez
, Saldana, and Avila as t he most violent members of the Avenues a nd the members with the most c lout. The more g eneral testimony reg arding the Avenues g a n g members’ a t t i t udes towards black people is permissible under Hankey

.U N I T E D S T A T E S V

. C A Z A R E S 41

Harmless error on Admission of expert testimony

An e rror is harmless unless it results in actual prejudice, which is demonstrated where “the error in question had a ‘substantial a

nd injurious eff

e ct or influence in d etermining the jury ’ s verdict.’” W

inzer v

. H all
, 494 F .3d 1192, 1201 (9th Cir. 2007) ( quoting Brecht v

. Abramson
, 507 U.S. 619, 623 (1993)). Defendants maintain that since C o u n t O ne, the conspiracy ag ainst rig hts charg ed u nder 18 U.S.C. § 241, a nd Count Two, t h e interference with federally protected rig hts charg ed under 18 U.S.C. § 245(b)(2)(B )
, required the jury to find t h e Defendants acted based on their victims’ r a ce, the admission of Avenues g ang members’ attitudes t o w a r ds black people could not be harmless error. Defendants also contend that this testimony was n o t harmless because it corroborated the disputed testimony of D i a z a n d De L a Cruz
, who the defendants c haracteriz e as “ h ig hly unreliable,” on the issue o f whether all African-Americans, not j u s t m embers of other
g ang s, were subject to attack.

I f there was e rror in allowing L opez to t es t i f y reg arding the Avenues g a

ng members’ attitudes towards b lack people, it most likely did not h ave a substantial effect on the jury ’s verdict. L opez cla rified that he was not offering an opinion

on the racial attitudes of the individual defendants. F urther, ther e w a s abundant testimony from black residents of the Hig hlan d P ar k area reg arding the r a c ial a ttitudes of the Avenues g ang me m bers. A lso, in lig ht of the entire record,

one c ould no t conclude that Officer L opez ’s brief testimony characteriz ing defendants Martinez
, Saldana, and A vila a s the
most violent members of t h e A venues and as the members with the most clout, h ad a substantial and injurious effect on the jury ’s verdict.U N I T E D S T A T E S V

. C A Z A R E S 42

Confrontation Clause and Plain Error

The Confrontation Clause a pplies only to te s t i m onial hearsay

. Crawford
, 541 U.S. at 5 1

. S tatements a re testimonial when made in t h e course of police interrog ation when the “primary purpose of the interrog ation is to establish

or prove past event s p otentially r elevant to later criminal prosecution.” Davis
, 547 U.S. at 822. The r ecord is deficient in establ i s h i n g L opez ’s primary purpose in g athering the informatio n reg arding the defendants’ violent character a nd role in the Avenues. Since defendants failed t o o b j e ct on Confrontation Clause g rounds, plain error review applies to

a Confrontat i o n Clause claim. Hagege
, 437 F .3d at 956. Error is plain when it is clear or obvious under the law. Defendants cannot establish plain error on this record.

V.

WHETHER THE DISTRICT COURT ERRED IN DENYING

DEF ENDANT SALDANA’S MOTION TO SUP P RESS STATEMENTS HE MADE TO THE P OLICE WITHOUT BEING G IVEN HIS MIRANDA

RIG HTS

The ultimate question of whether a confes s i on is voluntary and admissible is subject to de novo review, but the d i s t rict court’s underly ing factual finding s are reviewed f o r clear error. United States v. Brobst
, 558 F .3d 982, 9 9 5 (9th Cir. 2009). W hether a person is “in c ustody ” for purposes o f Miranda is a mix ed question of law and fact that is reviewed de nov o

. U

nited States v. Kim
, 292 F .3d 969, 9 73 (9th Cir. 2002).U N I T E D S T A T E S V

. C A Z A R E S 43

Factual Background of Suppression Issue

Saul Audelo, a suspect in the murder of Renee Cerda, was interviewed b y p o lice. Audelo admitted owning a 9 millimeter Rug er and sai d h e s old it to defendant Saldana after the Cerda murder

. Detectives investig ating the Cerda murder obtained a search w arrant for Saldana’s residence in order to find the g

un.

At 7 :00 a.m. on May 6
, 1999, p o lice officers ex ecuted the search warrant at the home of J uana Saldana, S a ldana’s mother, w here Saldana, his mother, brother, and sister lived. Saldana h ad just showered a fter returning home after w orking

a double shift at Va n denburg Air F orce B a se. The other family members were sleeping

. T he officers moved all of the occupants into the living room where they were seated on the couch. The district court concluded on remand that Saldana

was not h andcuffed at a

n y time. That factual findin g in the face o f conflicting evidence is not c learly erroneous. A f ter the search, Saldana was moved into a bedroom where officers questioned him about the 9 millimeter R ug er. The officers then led Saldana out o f the house and into a car. Saldana was g iven the option of d

riving his car to the police station o r riding with Detective Gabriel Rivas. That a n y choice was g iven was denied by the defense, but the district court’s factual find ing is not clearly erroneous. Saldana r ode with the Detective to the Hollenbeck police station. Saldana was questioned by t w o o r t hree officers in an 8 by 10 interview

room at the station. A transcript of the r e corded interview at the stati o n shows he w as told that he was not under arrest. Saldana admitted to purchas i n g a 9 millimeter firearm from Audelo, but said he no long er had the weapon. He was asked
to find the weapon and contact Detective Rivas, which he
ag reed to do. D uring the poli c e s t a tion questioning
,U N I T E D S T A T E S V

. C A Z A R E S 44

detectives did not threaten or sug g est to Saldana that he would b e placed under arrest or prosecuted, nor did they brandish their weapons. The district court also found that no pressure or coercive tactics w ere employ ed by the detectives either during the search o r the subsequent interviews. The district court a lso found that Saldana w as told duri n g the questioning he was free to leave the police station. There is

no dispute that Saldana was not g iven Mira n d a warning s. Saldana was permitted to lea v e the interview room and the police station.

The police later were informed that Sa ldana h ad participated in the W ilson murder a nd had used a 9 millimeter
g un he obtained from ano t h e r gang member. Subsequently
, the g un was connect e d t o b oth the Cerda and the W ilson murders. Saldana f

iled a pre-trial motion to suppress his
statements made in the May 6, 1999 interv i ew a t the police station. W itness declarations were submitted by the parties. The district court held hearing s on the motion to suppress at which Saldana, his brother, his sister, two detectives, and an F B I ag ent testified. T he day the g ov e r n m e n t called A udelo and Detective Rivas as w itnesses at the trial of this case, the district court denied the motion to suppress Saldana’s
statements without ex planation. The court s t a t ed that it would either write something or state its reasons later on the record. T he parties agr e e t hat w as not done and the matter

w a s r e manded to the district court. Thereafter, the distri ct court filed its seven pag e F inding s of F act in Suppo rt of the Denial of Gilbert Saldana’s Motion to Suppress.

Applicable Law on Suppression of Statements

I n Miranda v. Arizona
, the Supreme Court e stablished that, when a person is “ i n c ustody ,” procedural safeg uardsU N I T E D S T A T E S V

. C A Z A R E S 45

must b e a fforded that person before the person is questioned. Otherwise, the prosecution may n ot u se w hat it learns throug h its interrog ation. 384 U .S. 436, 444 (1966). T h e C o u rt reasoned that the privi leg e ag ainst self-incrimination is protected by adequately and effectively advising an individual of h is or her r igh t s

. I d

. a t 467. I t is undisputed that Saldana was not read or told of his Miranda rig hts before, during , or after the interview on May 6, 1999.

The question is whether Saldana was “in custody ” while being q uestioned. “ To determine w hether an individual was in custody
, a court must, a f ter ex a min i n g a l l of the circumstances surrounding the interrog ation, decide whether there [was] a f

ormal a rrest or restraint on freedom o f
movement of the deg ree a sso ciated with a formal arrest.” Kim
, 292 F

. 3d at 973 ( alter a t i o n in orig inal) (internal quotation marks and citation omit t ed )

. The court must “ex a mine the totality of the circumstanc e s surrounding the interrog ation.” U

nited S tates v. Craighea d
, 539 F .3d 1073, 1082 (9th Cir. 2008). A defendant is in custody if a

“ reasonable innocent person in such circumstances wo u l d conclude that a fter brief questi o ning he or she would not be free to leave.” United Sta t e s v

. Booth
, 669 F .2d 1231, 1235 (9th Cir. 1 981). The custody determination is objective and is not based upon “the subjective views of the o fficers or the individual being questioned.” Kim , 292 F .3d at 973.

F acts relevant to the determination of whether a person is in custody “include the lang u ag e used by the officers, the phy sical characteristics of the place where the questioning
occurs, the deg ree of p ressure applied to d etain the individual, the duration of the detent i o n , a n d the ex tent to which the
person was confronted w ith evidence of g uilt.” United States

v. Hernandez
, 476 F .3d 791, 7 9 6 ( 9 th Cir. 2 0 07) (quotingU N I T E D S T A T E S V

. C A Z A R E S 46

United States v. B utler
, 249 F .3d 1094, 1099 ( 9th Cir. 2 001)); accord United States v

. Hayden
, 260 F .3d 106 2
, 1066 (9th C ir. 2001) (“F actors relevant to whether an accused is ‘ i n custody ’ include the following : (1) the lang uag e u s ed to

summon the individual; (2) the ex tent to which the defendant is confron t ed with evidence of g uilt; (3) the phy sical surrounding s of the interrog ation; (4) the duration o f the detention; and (5) the deg ree of pressure applied to detain the individual.”). “W hile deter m i n i ng whether a defendant is constitutionally entitled to Miranda warning s is subject to de

novo review, it is nevertheless a fact-intensiv e inquiry

. ” United States v. W

right
, 625 F .3d 583, 602 (9t h C i r

. 2 010) (citing Craighead , 539 F .3d at 1082, 1084).

Discussion

There are factual disputes conce rning the circumstances

o f the interview at the police station. T he record indicates that the a

udiotape or recording of the int e r v i e w may be incomplete. Saldana was told “y ou wer e n o t under arrest,” but the transcript of the recording does n o t reflect that Sa l d a na was told he was free to leave but on remand the district c ourt f

ound that Saldana was told he was free to leave while at the police station. The lang uag e used by the officers in the taped interview at the police station was neutral even thoug h it did direct the questioning . There is no showing o f other lang uag e being u sed p r eviously at the h ome o f Saldana’s mother where he lived. Three or four officers took S al d ana to another room for an initial questioning w hile t h e search went o n

. There were at least 10 officers participating in the search, with a t leas t 7 o f them in the house with a number o f police cars parked in the street. The p o lice station interview room was small, about 8 by 10 feet, and there were two a nd sometimes three officers in the room. Saldana drankU N I T E D S T A T E S V

. C A Z A R E S 47

one cup of coffee and was offered a second cup of coffee. The recorded interview was about 10 minutes l o n g and the i nterview may have started before the recording device w a s activated. Saldana was n o t confronted w ith evidence of g u ilt

as the officers stated they o n l y w a n t e d t o g et the g un. As a convicted f

e lon, Saldana would be incriminating hims e l f b y merely a dmitting he h ad possessed the h andg un. B ut that was not the focus o f the search nor of the questioning

. T h e f actual finding on conflicting evidence is that there was no d etention. I t is about a 30 minute drive from the house to the police station. F inally
, there was no p r essure applie d t o detain Saldana.

Under the facts as found by the d i strict court, and a fter

ex a mining all of the circumstances surrounding the questioning
, there was no f o r mal arrest or restraint o f freedom of movement of the deg ree associated with formal
arrest.

The d e fense claims it i s inconceivable that the L APD would not place a convicted murderer in handcuffs while they conducted an e arly morning search at his home. T he district
court has the best opportunity to b oth hear and observe the witnesses and to judg e their credibility

. Ba s e d upon the finding s of the district court, Defendant Saldana was never in custody and was n ot en t i tled to a M iranda warning

. His statements to the L APD were properly admissible.U N I T E D S T A T E S V

. C A Z A R E S 48

VI.

WHETHER DEF ENDANTS’ RIG HTS UNDER THE CONF RONTATION CLAUSE WERE VIOLATED BY HEARSAY TESTIMONY OF SAUL AUDELO REG ARDING

THE CERDA MURDERS AND THE G U N USED TO COMMIT THOSE MURDERS

The district court’s r esolution of Confrontatio n Clause claims is reviewed de novo

. B e r r y , 683 F .3d at 1020. Additionally
, “we review de novo th e district court’s

c o n s truction o f hearsay rules, but review for abuse o f discretion the court’s d e termination to admit hearsay evidence

. ” Marguet-Pillado
, 560 F .3d at 1081. I f a defendant has both invited e rror a n d r e l inquished a known rig ht then the error is waived a nd the court can decline review. United States v. Nguyen
, 565 F .3d 668, 676 (9th Cir. 2009).

Factual Background of A udelo hearsay testimony issue

Saul A udelo, a f

ormer prison bun k m a te of defendant Gilbert Saldana, was convicted in state court of killing J aime

a n d Rene Cerda. The Cerda murders occurred F ebruary 2 2
, 1999. Audelo was a member of the L os Ang eles W hite F e nce g ang

. After A udelo and Saldana were released from jail they maintained a friends h ip and Audelo sold Saldana g uns, including “ burnt” g uns, or g uns that had been used in a crime. Audelo was asked at his trial, “Did y ou sell the g un used in the Serta (sic) murders to Gilbert Saldana? ” The defendants obj e c t ed o n foundation g r ounds and the district court sustained the objection.U N I T E D S T A T E S V

. C A Z A R E S 49

The defendants contended that the o nly w ay Audelo knew of what g un w as used a t the Cerda murders was throug h hearsay since Aud e l o c laimed h e was not involved in the Cerda murders, even thoug h a jury in state court convi cted him o f those murders. After a sidebar conference, the
p r o secutor asked Audelo: “Did y o u have possession of the firearm used during t h ose [ Cerda] murders? ” A udelo

answer e d in the a ffirmative to that question, and to the question o f whether he sold that firearm to a ny one. A udelo testified that he sold the g un to L u cky (defenda n t G i l b ert Saldana )

. A udelo also testified that the g un in issue, a 9 millimeter Rug er, w as one of about five weapons that he h ad sold Saldana. Audelo testified t hat Saldana usually came with defendant Ma r t inez (B ird) and Merced Cambero (Shadow) when the g uns were sold. T h e g overnment maintains that the same 9 millimeter Rug er used in the Cerda murders was used to kill Kenneth W ilson on A pril 1 8, 1999.

During cross ex amination of Audelo, Saldana’s attorney elicited testimony from Audelo that he h a d claimed he was not present at the Cerda murders. Sa ldana’s attorney then

as k e d : “ S o y our claim that y ou made here today that the
weapon that y ou sold to Mr. Saldana was u sed in the Rene Serta (sic) murder is based u pon what someone else told y ou. I s that y our claim? ” Audelo answer e d : “B y the shooter himself, y es.” Saldana’s attorney followed with, “W ell, y ou say the murderer himself; I s that correct? ” Audelo ag r eed.

Earlier, a t a hearing o utside the pre s e n ce of the jury
, Audelo testified that after he sold th e 9 millimeter Rug er to Saldana, Pony

boy (Salva d o r R amos) told h im that he h ad used the 9 millimeter Rug e r in the Cerda murders. After the hearing the district cour t o verruled Saldana’s hearsay a nd confrontation clause objections. The 9 millimeter Rug er wasU N I T E D S T A T E S V

. C A Z A R E S 50

not produced at t r i al as it was n ot in the possession of the
g overnment. A firearms ex aminer w ith the L APD later
t e s tified at trial that the b ullets and b u llet casing s from t h e W i lson murder were fired from the same g un as had b e e n used in the Cerda murders — a 9 millimeter Rug er. The
g overnment never called Ramos to testify

. Confrontation Clause Argument

Defendants c o n t e n d that there was a Confrontation Clause violation when A udelo testifie d i n response to a question asked during cross ex amination that he heard f rom the murderer that the g un sold to Saldana was used in the Cerda murders (for which A udelo was convicted). The Confrontation Clause, however, applies only to testimonial hearsay

. Crawford
, 541 U.S. at 51. S t a t ements a re testimonial when made “to establi s h o r prove past events potentially relevant to later criminal prosecution.” Davis
, 547 U .S. at 822. A conversation between two g ang members about the journey of their burnt g un is no t t es t i monial. I n addition, defense counsel clearly invited this testimony

.

Defendants a

ppear to be challeng ing the g overnm e n t putting on a witness who claims n ot to have fi rs t h a nd knowledg e of at least part of the testimony h e is ex pected to
g ive. This arg ument is c ompromised to some deg r ee b y Audelo’s murder convictio n in the Cerda case. More importantly
, defendants fail to cite authority for this arg ument and the cited aut h ority does not support defendants’ confrontation clause arg ument. The f ailure to cite to valid leg al authority waives a claim for appellate review. See Acosta-Huerta v. E

stelle
, 7 F.3d 139, 144 (9th Cir. 1992). F or these reasons and the f act that e r ror was invited, defendants are not entitled to relief on this issue.U N I T E D S T A T E S V

. C A Z A R E S 51

VII.

WHETHER THE DISTRICT COURT DENIED D EF ENDANTS THEIR RIGHTS TO EF F ECTIVE CROSS-EXAMINATION AND CONF RONTATION BY LIMITING AND P R ECLUDING CROSS

EXAMINATION

“I f the defendant raises a Confrontation Clause challeng e based on the ex clusion o f an a r ea of inquiry
, we r ev i e w de novo.” United States v

. Larso n , 4 9 5 F .3d 1094, 1101 (9th Cir. 2007) (en banc). However, “[ a] challeng e to a trial

c o u r t ’ s r e s t r i c t i o n s o n t h e m a n n e r o r s c o p e o f

cross-ex amination o n n onconstitutional g r ounds is

. . . reviewed for abuse of discretion.” Id.

General Principles

The Confrontation Clause of the Six th A mendm e nt g uarantees the rig ht o f an accused in a criminal prosecution “to be confronted with the witnesses a g ainst h i m.” “The main and essential purpose of co n f ro n t a tion is to secure for the opponent the opportunity of cro s s

- e x amination.” D avis

v. Alaska
, 415 U

. S

. 3 0 8, 315–16 (1974) (quoting 5 J

. W ig more, Evidence § 1395, at 123 (3d ed. 1 9 40)). I mproperly restrictin g defense counsel’s cross-ex amination, when that ex amination is desig ned to show bias on the p art o f

a prosecution wi t n ess, violates a d efendant’s Confrontation Clause rig hts. Delaware v. V a n A r s d a ll
, 475 U .S. 673, 679 (1986). W e, like the Supreme Court, have “‘emphasiz ed the policy favoring ex pansive witness cross-ex amination in criminal trials.’” Larson
, 495 F .3d at 11 02 (quoting United States v. Lo , 231 F .3d 471, 482 (9th Cir. 2000)).U N I T E D S T A T E S V

. C A Z A R E S 52

This Court has also recog niz ed:

The constitutional rig h t to c ross ex ami ne is “[ s] ubject a lway s to t he broad discretion of a trial judg e to preclude repetitive and und u l y harassing interrog a tion,” b ut that limitation
cannot preclude a defendant from asking
, not only “ whether [the w itness] was biased” but

a l s o “to make a r ecord from which to a rg ue why [ the witness] mig ht have been biased.”

United States v. Schoneberg
, 396 F

. 3d 1036, 10 4 2 (9th Cir. 2 0 0 5) (quoting Davis v. Alaska
, 4 15 U.S. at 3 16, 318) (alterations in orig inal) (footnotes omitted).

W e have identified three facto r s to be considered in determining whether a defendant’s rig h t to cross-ex aminat ion has b een v iolated: (1) whether the e x c l uded evidence was relevant; (2) whether other leg itimate int e rests outweig h ed the defendant’s interest in p resenting the ex cluded evidence; and (3) whether the ex clusion of evid e n c e left the jury with sufficient information to assess the credibility of the witness the def e n d an t was attempting to cross-ex amine. Larson
, 495 F .3d at 1103 (citing United States v. Beardslee
, 197 F .3d 378, 383 ( 9th Cir. 1 999)). The limitation on the

cross-ex amination of each witness is reviewed separately

. Id

.

Factual Background Concerning Cross-Ex amination and Confrontation Issue

Defend a n t s c l a i m t hat the district c o urt improperly limited

cross-ex amination of witnesses J esse D iaz
, J ose De L a Cruz
, Saul Audelo, and Eneida Montano.U N I T E D S T A T E S V

. C A Z A R E S 53

Jesse Diaz : J esse Diaz had be en c o n victed of attempted murder and was sentenced to 20 y ears in 1999. Diaz was an Avenues g ang member and testified about the g an g’ s activities. Diaz testified that he was p resent with Defendants Mar t i n ez , Caz ares, and Saldana when K enneth W ilson was murdered a

nd testified a s to the details of that event. Diaz had 10 y ears remain i n g o n his state sentence at the time o f trial and testified on direct ex amination that the g overnment would be sending a letter to the state court judge a n d any reduction would be up to the state court judg e.

Defendants c omplain that Saldana ’s counsel w as not allowed to cross-ex amine D iaz o n the fact tha t he had been outed as a snitch at a p reliminary hearing

. Saldana’s counsel, in fact, cross-ex amined on this p oint. Defendants com p l ain that Saldana’s c ounsel could not ex plore Diaz ’s knowledg e o f whether he knew the punishment h e c ould be subject to in the State of California for murder. Counsel for Saldana, in fact,

was allowed to question Diaz whether he knew the punishment for murder and attempted murder. Counsel also questioned Diaz as t o w h ether he made a deal with the detective so he “would never be pros e c u ted b y the State o f California for Murder.”

Defendants also c omplain that counsel for Saldana could
not ex p lore whether Di az knew Sam Salinas. Counsel for Saldana, in fact, asked Diaz about Sam Salinas and Diaz stated twice that he did not know Sam Salinas.

Diaz was an important witness. However, d e f ense counsel cross-ex amined Diaz ex tensively o n h is b ias, motives, and inconsistencies. There was no Six th Amendment violation with reg ard to Diaz

.U N I T E D S T A T E S V

. C A Z A R E S 54

Jose De La Cruz : J ose D e L a Cruz had been a member o f the Cy press Avenues ga n g an d was serving 45 y ears to life for the murder of Kenneth W ilson. De L a Cruz w as also with d efendants Martinez
, Caz ares, a n d Saldana w hen Ken n e t h W ilson was murdered and testified as to the details of that
event. De L a Cruz had also spent time with the defendants
eng ag ing in g ang activities and testified to the details of these activities.

De f e ndants contend their rig hts w ere violated when counsel for Saldana was not allowed to q uestion De L a Cruz about detectives telling De L a Cruz that Saldana would take the stand a g ainst him. Counsel f o r S a ldana conducted the following cross-ex amination in this area:

Q: I s part of what motivated y ou to cooperate with the p olice the fact t h at they told y ou that Gilbert Saldana was putting this thing
on y ou.

[ objection overruled by

district court]

A: That had nothing to do with it.

Q: S o y ou thoug ht it was okay that Gilber t Saldana was putting the murder on you?

A: I knew he wasn’t.

Defendants contend their r ig hts were violated w hen the district c ourt sustained an objection about De L a Cruz h aving

a shank in prison. Counsel asked and De L a Cruz answered wh e t h e r h e had been arraig ned o n possession of a shank. Althoug h further questio n ing about possession o f the shankU N I T E D S T A T E S V

. C A Z A R E S 55

was objected to and d i s allowed based on Rule 6 09, counsel

a sked w ithout objection, “W ell, were y ou concerned at th at time fo r y o u r o wn personal safety in the county jail because
y ou knew that y ou had snitched o ut some of y our fellow g ang members? ”

Defendants contend their r ig hts were violated w hen the district court sustained an objection about De L a Cruz never having killed a black man befor e t h e murder of Kenneth W ilson. D e f

endants make a meritless claim that the “questi o n g o es directly to the indictment’s alleg ation that there w a s a n ong oing conspiracy among De L a Cruz ’s g ang to kill B lack people.”

Defendants contend their r ig hts were violated w hen the district court sustained an objection to an incomplete question about the F B I telling De L a Cruz t h e y w ere making a case about Kenneth W ilson being killed because of racial hatred. However, before the objection was sust ained the following questioning took place:

Q: Now, i t w a sn’t until November of 2003 that y ou mention e d the motivation for killing Mr. W ilson as b e i ng that he was African American; isn’t that correct?

A: That’s rig h t.

Q: And when the F B I spoke to y ou , t h e y made it very clear that they were interested – that they were investig ating a

case dealing with r a c ial h atr e d; isn’t that correct?U N I T E D S T A T E S V

. C A Z A R E S 56

A: That’s rig h t.

Defendants contend their r ig hts were violated w hen the district court sustained obj e ctions to questions concerning attorney communications and plea barg aining for the W ilson homicide. Testimony was elicited from De L a Cruz
, however, establishing

that he was neg otiating a better deal.

D e L a Cruz was also an important witness. How e v e r, defense c oun sel cross-ex amined De L a Cruz ex tensively on his bia s , motives, and inconsistencies. There was no Six th Amendment violation with reg ard to De L a Cruz

.

Saul Aud e lo : Saul Audelo w as Saldana’s former prison bunkmate. Audelo h a d been convicted in state court o f killing J a ime and Rene Cerda. Audelo testified to selling Saldana the 9 millimeter Rug er the g overnment contends was used to kill Kenneth W ilson.

Defendants contend their r ig hts were violated w hen the district court sustained objections to q uestions concerning the conditions of his confinement “i n order to flesh out reasons why he was cooperating .” Audelo, in fact, g ave testimony in

cross-ex amination t h a t i t was difficult for his family to visit him, that he had been in lock down a number o f t imes, a nd that he didn’t like being incarcerated and wanted to g o h ome.

Audelo was also an important witness. Defense counsel

cross-ex amined hi m e x tensively o n bias, motives, a nd inconsistencies. There was no Six th Amendment violations concerning Audelo.

E neida M

ontano : Eneida Montano had been Saldan a ’s former g irlfriend. She testified a s to Saldana’s use of the N-U N I T E D S T A T E S V

. C A Z A R E S 57

word or “my ate” (Spa n i s h s lang for the same). Defendants contend their rig hts w e r e violated because they could not impeach Montano on whether she had stated Saldana used the N-word or just the term “my ate.” Defendants further contend their rig hts were violat e d b ec ause they could not impeach Montano reg arding her inability to recall testimony t o t h e g rand jury

despite her training

to be a deputy

sheriff.

Montano was not an especially important w itness and the

areas o f restricted cross-ex amination were not that important. There was no Six th Amendment violat i o n with r eg a rd to Montano.

There was ex tensive cros s -ex amination of all the witnesses in this case. Def e n d an t s have cited only a few in s t a n c e s , and some are cited o ut of c ontex t, with reg ard to limitations placed on c r oss-ex amination. W ith reg ard to e ach of the witnesses listed above, v ery l ittle evidence was

ex c luded from their c ross-ex a minations and the ex clusion o f this small amount of evidence still left the jury with sufficient information to assess the c r edibility of the witness the defendant w a s attempting to cross-ex amine. Larson
, 495 F .3d at 1103.

VIII.

WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION BY P ERMITTING THE G OVERNMENT’S EXP ERT TO TESTIF Y THAT HER F IREARM IDENTIF ICATION F INDING S WERE MADE TO A “SCIENTIF IC CERTAINTY”

W e review the district c ourt’s admission of ex p er t testimony for abuse o f d iscretion. Estate o f Barabin
,U N I T E D S T A T E S V

. C A Z A R E S 58

740 F .3d at 4 6 0. The g overnment contends t h e defendants failed to raise their objectio n s properly and that plain error applies.

Factual and Procedural Background o n Firearms Expert Testimony Issue

Defendants filed a motion in limine requesting the district
court ex clude b allistics evidence in t h i s case under Daubert

v. M errill D o w P h a rmaceuticals
, 509 U.S. 579 (1993), a nd Rule 702. At a pretrial hearing the district court advised that he did not need a hearing on the ballistics issue at that point but that he would perform his g a te-keeping function.

During trial and outside the presence of the jury
, counsel for Saldana renewed his motion in limine to preclude the testimony of the g overnment’s ballistics ex pert on the
g rounds that the ex pert’s c o nclusions concerning the matches in the W ilson a

nd Cerda murders and t he B owser a nd Prudhomme murders lacked statistical re l iability

. Counsel for Saldana arg ued: “So, at the very least, aside from keeping

ou t h e r testimony
, I assume that y o u r Honor is g oing to overrule my objection, I would ask that she be prec l uded from say ing that this is an absolute match . . . .”

The g o vernment a dvised that the witness would conclude she matched the evidence in h e r opinion to a scientific certai n t y

. The district c ourt found that “tool mark identification method, ball i s t i c s a n a l y s i s e m

p loy ed essentially by the g o v e r n m ent’s witness is reasonably reliable and will likely be helpful to the ju r y , ” a n d that the defense could

cross-ex amine on reliabili ty

. Althoug h the district court noted there had been criticism of tool mark identification by

some scholars, he felt the methodolog y was still accepted inU N I T E D S T A T E S V

. C A Z A R E S 59

criminal trials. The other defendants joined Saldana’s motion and the district court denied the motion.

At the jury trial in this case the g overnment called Diana Paul as an ex p e r t w itness. Paul worked f or the L APD F irearms Analy sis Unit as a criminalist and f irearms

ex a miner. Paul t estified that she had b een a firearms ex pert for ap p rox imately 15 y ears, and that she had a Master o f Science deg ree in c r iminalistics. She further testified that the majority of h e r training came from a two-y ear, on-the-job training prog ram with the L APD F irearms Analy s i s Unit. She the n p a s s ed a competency test which included both a written and p ractical component. Paul eng ag ed in ong oing training i n w orkshops and training seminars put on b y forensic org aniz ations, including a class offered by the F B I at Quantico, Virg inia, desig ned specifically for forensic firearm and tool mark ex amination. Paul s ubscribed to forensic

s cience journals and over the y e a rs she had analy

z ed
approx imately 2500 cases in the L APD F irearms A n a ly sis Unit. Paul h ad testified specifically i n f i r earms analy sis between 200 and 250 times.

W h en the g overnment offered Diana Paul as an ex pert in the area o f firearms analy sis, def e n dant Saldana objected. The district court found Paul qualified and then instructed the jury that opinion test i m o n y should be judg ed like other testimony
, and that it could be a c cepted, rejected, or g iven a s much weig h t as the jury believed it deserved. Paul testified that her standard, the Associ a t e s of F irearms and Toolmark Ex aminers (AF TE) standard, was more conservative than that of others and that “I am not comfortable writing a report o r reporting something that i s n o t in my mind to a scientific certainty .” Paul also testified d uring direct ex amination that there is a subjective element to her job so she insures t heU N I T E D S T A T E S V

. C A Z A R E S 60

quality o f her work w ith four different a r eas of quality control.

Paul ex amined fired sh o t s hells, f ired cartridg e cases, fired b ullets, and shot s h ell components from the Kenneth W ilson murder crime scene. Paul f ound the shot shells were fired f rom the same g un. Paul e x amined fired casin g s with the ca l i b e r desig nation of a 9 millimeter L ug er from the Kenneth W ilson murder crime sce n e and compared them to the casing s from the Rene Cer d a m u r d er and testified that they were fired from the same f irearm. W hen the g overnment aske d h o w c onfident Paul was that the casing left behind at the Cerda murder was fired out of the same g un as was fired in the W ilson murder, Saldana objected for lack o f foundation in terms of probability

. The objection w as initially sustained, but over the objection o f counsel Paul was allowed to testify that the 9 millimeter Rug er could have fired the c a s i n g s in both scenes, thoug h she could n o t be c e r t a i n. Paul also testified that she ex amined a bullet th a t was taken from Kenneth Wilson’s body and compared it to bullet s at the

scene and concluded they were fired from different firearms. She further testified, over defe n s e objections on foundation and speculation, that there were at least three firearms used in the Kenneth W ilson crime. T his testimony corresponds with the testimony

g iven by Diaz and De L a Cruz

.

I n h er testimony Pau l also compared firearms evidence from the Christopher B owser murder of December 1 1, 2000, and the Anthony

Prudhomme murder of November 3, 2000. Another detective testified over defense objection at trial that he observed “an immediate nex us” between the B owser a nd Prudhomme murder scenes, because Prudhomme was also a black male Hig hlands Park area victim who was killed with

a g unshot wound to the back o f the head just weeks before theU N I T E D S T A T E S V

. C A Z A R E S 61

B owser m u r d e r. Paul ex amined three cartridg e cases a nd bullet evidence from t h e Bo w ser murder crime scene. Paul testified that the three casing s had a .25 auto c aliber desig nation a

nd that they we r e f

ired f rom the same firearm. Paul further testified that she ex a mined two casing s from the Prudhomme murder scene a n d concluded they were fired fro m the same firearm. There were no objections to this testimony

. Paul also testified that she c o m p a r e d the bullet evidence from the B owser murder with the bullet evidence from the Prudhomme murder, a n d concluded they were fired from the same firearm. T here was no objection m a d e a t the time this testimony w as g iven.

Paul was ex t e n sively cross-ex amined about her methodolog y , analy sis, and basis for conclusions. Paul conceded during cross-ex a mination that the conclusion that

a particular bullet was fired by the same firearm as anot h e r bullet is u ltimately a subjective ev aluation. Paul also conceded that there w as no statistical d a t a base from which she could prove that no other firearm could have f ired the particular bullet. On redirect ex a mination, however, Paul testified a s follows (without objection) reg arding her finding s in this case: “I am completely certai n

. I f I was not completely certain, I w ould have written a report say ing that it was inconclusive. I would not have said t h a t it was a match, the two were fired in the same g un.” She testified that

was the ca s e i n the Wilson and Cerda c omparisons and the B owser and Prudhomme comparisons

. P a ul then testified, without objection from the defense, that her finding s were made with a scientific certainty
, but acknowledg ed, “There is no absolute certainty

in science.”

During closing arg u ments the prosecutor stated that “the
most important corroboration to Diaz ’s and De L a Cruz ’sU N I T E D S T A T E S V

. C A Z A R E S 62

testimony that Saldan a s h o t at W ilson’s car with a 9 millimeter g un he p urchased f rom a W hite F ence g ang member was Paul’s testimony “to a scientific certainty

. ”

Toolmark Identification Expert Testimony

On September 26
, 2 012, defendants submitted supplemental aut h o rity o n the issue of whether the district
court erred b y p e rmitting the g overnments’s firearms ex pert to testify to a scientific certainty about her f irearms identification finding s. The a uthority
, United States v. Otero
, 8 4 9 F

. Supp. 2d 425 (D.N.J

. 2 012), contains a thorou gh discussion on the reliability o f forensic toolmark ex amination utiliz ed to identify the firearm from which a discharg ed ammunition orig inated. T h e district court issued its decision after it conducted a three-day Daubert hearing

. The decision

ex p lains, “According to the theory of toolmark identification

e s p oused by the Association of F irearms and Toolmark Ex aminers (‘AF TE’), individual characteristics ‘are un i q u e to that tool and disting uish it from a ll other tools.’” Id. at 428. I n discussing t h e ge n eral acceptance of toolmark identification, the court summariz ed:

Courts have observed that the AF TE theory o f firearms and toolmark identification is w idely accepted in the forensic c o mmunity and, specifically
, in the community of firearm and toolmark ex aminers. See Unite d States v

. Diaz
, No. 05-167, 2 0 0 7 W L 4 85967, at *11 (N.D. Cal. F eb. 12, 2007). Even courts which have critic i z e d the b ases and standards o f toolmark identification h ave nevertheless concluded that AF TE theory and its id entification methodolog y is widely acceptedU N I T E D S T A T E S V

. C A Z A R E S 63

a m o ng ex aminers as r e liable and have held the e x pert identification eviden c e to be admissible, albeit with limitat ions. United States v. Tayl o r , 6 6 3 F

. Supp. 2d 1170, 1178 (D.N.M. 2 009); United States v

. Monteiro
, 4 0 7 F. Supp. 2d 351, 372 (D. Mass. 2006); United S tates v

. Green
, 405 F

. Supp. 2d 104, 122–24 (D. Mass. 2005).

849 F

. Supp. 2d at 435. The district court in Otero likewise concluded that there ex isted g eneral acceptance of the AF TE theory among professional ex aminers as a reliable method o f firearms and toolmark identification. The g overnment in the Otero cas e , however, soug ht admission o f the toolmark identification testimo n y b a s ed on the standard of “ to a reasonable deg

ree of certainty

. ” Id. at 429 n.3.

The issue in this a

ppeal is not the g eneral admissibility o f the toolmark identification testimony
, but the “scientific certainty ” standard to which Paul testified.

I n Diaz
, the district court held t h at t h e theory of firearm identification used b y the SF PD Crime L ab was reliable under Daubert

. 2007 W L 4 85967 a t *1. However, the judg e also acknowledg ed the subjectivity involved in a firearms a nd toolmark ex aminer’s id e n t ification, and concluded, “The record, however, doe s not support the conclusion that identifications can be made to the ex clusion of a ll other firearms in the world. Thus, the e x aminers who testify in this

case may only testify that a match has been mad e to a ‘reasonable deg

ree of certainty

in the ballistics field.’” I d.U N I T E D S T A T E S V

. C A Z A R E S 64

Harmless Error

Even the g o vernment is not a rgu i ng on appeal that “scientific certainty” is a proper c haracteriz ation f or toolmark identification ex pert testimony

. W hile there may be s o me deficiency in the objections to the standard testified to b y Paul, it appears that the “ scientific certainty” is s ue was broug ht to the d i s t r i c t court’s attention before a nd during Paul’s te s t imony

. A more thoroug h Daubert hearing could have been helpful in handling the “scientific certainty” issue. The issue is then whether t h e “scientific certainty” characteriz ation was harmless error.

An e rror is harmless unless it results in actual prejudice, which is demonstrated where “the error in question had a ‘substantial an d injurious effect or influence in d etermining the jury ’s verdict.’” W inzer
, 494 F .3d at 1201 (quoting Brec h t , 5 07 U.S. at 623). Althoug h the f irearms identification e vidence and e x pert test i m ony was important in this case, the “scientific certainty” c harac teriz ation was

s u b j e c t t o c r o s s e x a m i n a t i o n w h i c h r e s u l t e d i n acknowledg ment of subjectivity in the ex pert’s w o r k. I n addition, the district court p roperly instructed as to the r ole o f

ex p ert testimony and there was substa n t i al evidence otherwise linking the defendants to the W ils o n a nd B owser murders. We believe “a reasonable deg ree of certainty in the ballistics field” is the proper e x p e rt characteriz ation o f toolmark identification. Any error in this cas e f rom the “scientific certainty

” characteriz ation was harmless.U N I T E D S T A T E S V

. C A Z A R E S 65

IX.

WHETHER 18 U.S.C. § 245(b)(2)(B), ON ITS F ACE AND AS AP P LIED IN THIS CASE, IS A VALID EXERCISE OF CONG RESSIONAL P OWER

This Co u r t “ review[ s] de novo questions of federal constitu tional law, as well a s questions of statutory construction.” United States v. Kaczynski
, 551 F .3d 1120, 1123 (9th Cir. 2009) (citations omitted).

Defendants Saldana, Martinez
, and Caz a r e s arg ue that their convictions on C o u nt T wo of the Second Superseding I n d i c t m e n t s h o u l d b e v acated because 18 U.S. C

. § 245(b)(2)(B ) is unconstitutional on its face and as a pplied
to this case. Althoug h def e n d a n ts arg ue that Section 245(b)(2)(B ) ex ceeds Cong ress’s powers under both Section 2 of the Thirteenth Amendment and the Co m merce Clause, d efendants also acknowledg e that these arg uments were rejected in United States v. Allen
, 34 1 F. 3 d 870 (9th Cir. 2003). Defendants concede in their j o i n t opening brief that

we are bound, to the ex tent applicable, t o t h e holding in United States v. Allen

. Defendants state t h a t the facial constitutional challeng e is raised to p reserve that issue for later review.

18 U.S.C. § 245(

b) ( 2) ( B) in the Context of a City Street

18 U.S.C. § 245(b)(2)(B ) provides as follows:

(b) W hoever, w hether or not a cting under

c o l or o f law, by force or threat o f for c e willf ully injures, intimidates or interferesU N I T E D S T A T E S V

. C A Z A R E S 66

with, o r attempts to injure, intimidate o r interfere with–

. . . (2) any p erson because of hi s r a c e, color, relig ion or national orig in and because he is o r has been--

. . . (B ) par t i cipating in or enjoy ing any benefit, service, privileg e, prog ram, facility
, o r activity provided or administered by the United States[ .]

Count Two of the Second Supersedi ng I ndictment charg e s defendants Saldana, Martinez
, and Ca z ares with violating 18 U.S.C. § 245(b)(2)(B ) because they “ d id willfully
, b y force a nd threat of force, injure, intimidate, and interfere with Kenneth Kurry W ilson, an African-Ameri c an man, b y shooting him with firearms, b ecause of Kenne t h Kurry W ilson’s race and color, and because he was and had b e e n enjoy ing fac i lities provided and a dministered b y a subdivision of the State, namely t h e p u b lic streets o f L os Ang eles, California, in and around Avenue 52.”

Defendants arg u e t h at a street is not a facility within the meaning of 18 U .S.C. § 245, so the st atute could not be applied to the facts of this case. D efendants arg ue that Cong r ess’s vag ue use of the “fa c i l ity ” sets few if any limits

on the statute’s reach. Defendants note that there a r e no cong ressional finding s th a t a h ate c r ime victim’s u se of a street affects interstate commerce. Defendants a lso maintainU N I T E D S T A T E S V

. C A Z A R E S 67

that there is ambig uity with respect to the definition o f “facility ” and that the rule of lenity thus requires interpreting the statute as being inapplicable to the fac t s of the case at hand. No court, however, has accepted these arg uments.

I n reje c t i ng arg u ments similar to those made by the defendants in this case, t h e S e c o nd Circuit presented the following persuasive discussion of a street being included in the term “facility

”:

Defendants’ sug g e stions to t h e contrary notwithsta n ding
, the term “facility ” clearly and unambig uously includes city streets within its meaning

. A “ f a c ility ” is “someth ing that promotes the ease of any action, operation, transaction, o r course o f conduct” or “ something ( as a hospital,

m a c h i n e r y , p l u m b i n g ) t h a t i s b u i l t , constructed, installed or e s t ablished to perform some particular function or facilitate

some particular en d.” W ebster’s Third I nternational Dictionary 812–13 (1966). And

a city street undoubtedly “promotes the eas e of” travel a

nd transportation w ithin the city and is “b u ilt” and “constructed” to “perform [ the] function [ and] facili t a te [ the] end” o f such tr a vel and transportation. I t therefore unambig uously falls w ithin the clear meaning of the tex t of § 245(b)(2)(B ).

United States v. Nelson
, 277 F .3d 164, 193 (2d Cir

. 2 002) (alterations in orig inal); see also United S t ates v. M ungia
, 11 4 F. 3 d 1181 (5th Cir. 1997) (per curiam) (streets a nd

s i d e w a l k s q u a l i f

y a s f a c i l i t i e s u n d e r 1 8 U

. S

. C

.U N I T E D S T A T E S V

. C A Z A R E S 68

§ 2 4 5(b)(2)(B )); U

nited States v. Three Juveniles
, 886 F

. Supp. 934, 944 (D. Ma s s

. 1 995) ( same). Defendants fail to provide a c onvinc i n g arg ument that the street was not a facility under § 245(b )( 2 )(B ). Section 245(b)(2)(B ) is

con s t i t u t i onal as applied to this c a se, and there was no error in declining to dismiss Count Two of the Second Superseding I ndictment.

X.

W HETHER THERE WERE CUMULATIVE ERRORS AT TRIAL WHICH DEP RIVED DEF ENDANTS OF THEIR F IF TH AMENDMENT DUE P ROCESS

RIG HTS TO A F AIR TRIAL

There are some cases where the cumu l at i v e effect o f multiple errors may so prejudice a defend ant as to require reversal, even thoug h no sing le trial e r ror ex amined in isolation is sufficiently prejudicial to warrant reversal. Relief from the effects of cumulative error is ap propriate in those

cases where g overnment’s case is weak and a d ef en d ant is

more likely to be prejudiced by the e ffect of c umulative

errors. See United States v. F rederick
, 78 F .3d 1370, 1381 (9th Cir. 1996). T he g overnment did not present a weak case in the case at hand. The overall effect o f any errors that were committed do n ot violate the Defendants’ Due Process rig hts to a fair trial.

AF F IRMED.