FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FERNANDO CAZARES, AKA

SNEAKY,

Defendant-Appellant.

No. 06-50677

D.C. No.

CR-04-00415-PA

-04

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GILBERT SALDANA,

Defendant-Appellant.

No. 06-50678

D.C. No.

CR-04-00415-PA

-02

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEJANDRO MARTINEZ,

Defendant-Appellant.

No. 06-50679

D.C. No.

CR-04-00415-PA

-01
2 UNITED STATES V. CAZARES

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PORFIRIO AVILA, AKA Dreamer,

Defendant-Appellant.

No. 07-50037

D.C. No.

CR-04-00415-PA

-05

OPINION

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued October 11, 2012

Submitted May 14, 2015

Pasadena, California

Filed May 14, 2015

Before: Harry Pregerson and William A. Fletcher, Circuit

Judges, and Lawrence L. Piersol,* Senior District Judge.

Opinion by Judge Piersol

* The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.

District Court for South Dakota, sitting by designation.
UNITED STATES V. CAZARES 3

SUMMARY**

Criminal Law

The panel affirmed the convictions of (1) Fernando

Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio

Avla, all members of the Avenues 43 Latino street gang, for

violating 18 U.S.C. § 241 by conspiring to intimidate

African-American citizens in the Highland Park

neighborhood of Los Angeles and to deprive them of their

constitutional right to “purchase, lease and hold real and

personal property, and the right to occupy a dwelling, free

from intimidation based on race”; and (2) Cazares, Saldana,

and Martinez for violating (a) 18 U.S.C. §§ 245(b)(2)(B), and

2(a) by shooting Kenneth Kurry Wilson, an AfricanAmerican man, because of his race and color and because

he was enjoying facilities provided and administered by

a subdivision of the State; and (b) 18 U.S.C.

§§ 924(c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill

Wilson while carrying out the charged conspiracy. 

The panel held that the defendants’ due process rights

were not violated by their being shackled to their chairs

during the trial.

The panel wrote that the reasons stated by the district

court for holding most of the voir dire in private would not be

sufficient to avoid a determination that the defendants’ rights

to a public trial were violated, but held that the defendants

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. CAZARES

validly waived their right to be present at voir dire and their

right to a public trial.

The panel held that admission of hearsay statements

pursuant to the doctrine of forfeiture by wrongdoing was not

reversible error. 

The panel held that it was improper expert testimony and

a violation of Fed. R. Evid. 703 for an officer to identify

Avenues gang members and the officers assigned to the

investigations of Avenues as his source for characterizing

Martinez, Saldana, and Avila as the most violent members of

the Avenues and the members with the most clout. The panel

held that more general testimony regarding the Avenues gang

members’ attitudes towards black people is permissible, but

that if there was error in allowing the officer to testify

regarding those attitudes, it most likely did not have a

substantial effect on the jury’s verdict. The panel held that

the defendants cannot on this record establish that admission

of the officer’s testimony constituted plain error under the

Confrontation Clause.

The panel held that the district court did not err in

denying Saldana’s motion to suppress statements he made to

the police without being given his Miranda rights, where

Saldana was never in custody. 

The panel rejected as waived, and on the ground of

invited error, the defendants’ claim that their rights under the

Confrontation Clause were violated bytestimony, in response

to a question asked during cross-examination, regarding a

non-testimonial conversation being gang members.
UNITED STATES V. CAZARES 5

The panel rejected the defendants’ contention that the

district court denied the defendants their rights to effective

cross-examination and confrontation by limiting and

precluding cross-examination of four witnesses.

The panel held that any error in permitting the

government’s expert to testify that her firearm identification

findings were made to a “scientific certainty” was harmless.

The panel held that § 245(b)(2)(B) is constitutional as

applied to this case.

The panel concluded that the overall effect of any errors

that were committed do not violate the defendants’ due

process rights to a fair trial.

COUNSEL

Verna Wefald (argued), Law Offices of Verna Wefald,

Pasadena, California, for Defendant-Appellant Fernando

Cazares.

Wayne R. Young (argued), Law Office of Wayne R. Young,

Santa Monica, California, for Defendant-Appellant Alejandro

Martinez.

Jonathan Libby (argued), Deputy Federal Public Defender,

Sean K. Kennedy, Federal Public Defender, Federal Public

Defender’s Office, Los Angeles, California, for DefendantAppellant Gilbert Saldana.

Karen L. Landau (argued), Law Office of Karen L. Landau,

Oakland, California, for Defendant-Appellant Porfirio Avila.
6 UNITED STATES V. CAZARES

Thomas E. Chandler (argued) and Jessica Dunsay Silver,

Attorneys, Thomas E. Perez, Assistant Attorney General,

Department of Justice, Civil Rights Division, Appellate

Section, Washington, D.C., for Plaintiff-Appellee.

OPINION

PIERSOL, Senior District Judge:

A jury found defendants Fernando Cazares, Gilbert

Saldana, Alejandro Martinez, and Porfirio Avila guilty of

violating 18 U.S.C. § 241 by conspiring to intimidate

African-American citizens in the Highland Park

neighborhood of Los Angeles and to deprive them of their

constitutional right to “purchase, lease and hold real and

personal property, and the right to occupy a dwelling, free

from intimidation based on race.” The jury found defendants

Cazares, Saldana, and Martinez guilty of violating 18 U.S.C.

§§ 245(b)(2)(B), and 2(a) by shooting Kenneth KurryWilson,

an African-American man, because of his race and color and

because he was enjoying facilities provided and administered

by a subdivision of the State, namely the public streets of Los

Angeles. The jury also found defendants Cazares, Saldana,

and Martinez guilty of violating 18 U.S.C.

§§ 924(c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill

Kenneth Kurry Wilson while carrying out the charged

conspiracy.

The defendants are members of the Avenues 43, a Latino

street gang in the Highland Park area, an area inhabited

predominantly by Latinos. One of the tenets of the Avenues

43 was to harass and use violence to drive African-Americans

out of the Highland Park area. The conspiracy charged in the
UNITED STATES V. CAZARES 7

Second Superseding Indictment alleges overt acts continuing

from 1995 through 2001 and involving racial slurs, threats,

assaults, harassment, and murder directed at AfricanAmerican residents of the Highland Park area, with the intent

of causing the African-American residents to leave the

Highland Park area.

Several black residents and former residents of the

Highland Park area testified as to the harassment and violence

the black residents of the Highland Park area suffered at the

hands of the Avenues 43 gang members. The government

also relied heavily on the testimony of former Avenues gang

members, Jesse Diaz and Jose De La Cruz, who were

incarcerated on state convictions, for evidence specific to the

defendants.

The district court sentenced Saldana, Cazares, and

Martinez each to two consecutive sentences of life

imprisonment and sentenced Avila to life imprisonment.

All of the defendants allege constitutional errors during

trial based on their being shackled to their chairs, their not

being present for most of the voir dire, the admission of

hearsay, and the limiting of cross examination of several

government witnesses. All of the defendants allege the

district court abused its discretion by allowing improper gang

expert testimony and by permitting another government’s

expert to testify that her firearm identifications were made to

a scientific certainty. Defendants Saldana, Cazares, and

Martinez argue that Count Two of the Superseding

Indictment should have been dismissed because 18 U.S.C.

§ 245(b)(2)(b) is unconstitutional on its face and as applied to

this case because its enactment and enforcement in the case

of a murder committed on a public street exceeds Congress’s
8 UNITED STATES V. CAZARES

limited powers. All of the defendants argue that the alleged

cumulative errors at trial deprived them of their Fifth

Amendment Due Process rights to a fair trial.

Defendant Gilbert Saldana submitted a supplemental

opening brief contending that the district court erred in

denying his motion to suppress statements made without

Miranda warnings. The district court denied Saldana’s

suppression motion mid-trial without making findings or

stating the basis of the ruling on the record. We issued an

unpublished memorandum disposition reversing the denial of

Saldana’s motion to suppress and remanding to the district

court for fact finding on whether Saldana was in custody

when he made these statements to the police. We deferred

submission of the rest of the appeal pending the district

court’s fact finding. See United States v. Cazares, 517 F.

App’x 597 (9th Cir. 2013). The district court later issued and

filed with this Court seven pages of findings of fact in support

of the denial of Saldana’s motion to suppress.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 

We affirm on all issues.

DISCUSSION

I.

THE USE OF SHACKLES

Defendants contend their rights to due process were

violated by being shackled to their chairs during the trial. We

review the decision to shackle defendants during trial under

an abuse of discretion standard. Morgan v. Bunnell, 24 F.3d

49, 50 (9th Cir. 1994) (per curiam). We place restrictions,
UNITED STATES V. CAZARES 9

however, on that discretion in that: (1) “the court must be

persuaded by compelling circumstances that some measure

was needed to maintain the security of the courtroom”; and

(2) “the court must pursue less restrictive alternatives before

imposing physical restraints.” United States v. Fernandez,

388 F.3d 1199, 1245 (9th Cir. 2004) (quoting Jones v. Meyer,

899 F.2d 883, 885 (9th Cir. 1990)).

Factual Background Concerning Shackling

Before trial, counsel for Cazares submitted a declaration

expressing his concern that the defendants would be

handcuffed with shackles on their legs and chained to their

seats at trial. Counsel based his concern on the fact that the

trial was ordered to be held in the Roybal security courtroom

and that at prior proceedings in that courtroom the marshals

had handcuffed, shackled, and chained defendants to their

seats. Counsel for Cazares declared under oath that at each

court proceeding he attended the defendants had behaved as

gentlemen and had not exhibited any behavior or demeanor

that would indicate an intention to disrupt proceedings,

escape, or assault anyone. In initially ruling on the issue the

district court stated, “I wouldn’t be over here in this

courtroom if I was – this courtroom, I guess, was built by

taxpayers’ expense for cases like this, and so, at least at this

point, I’m going to deny that motion without prejudice, and

we’ll see.”

At the beginning of the trial, after it was called to the

court’s attention that some of the prospective jurors had seen

the defendants shackled on a video feed in a different

courtroom, the potential jurors were questioned and the few

that had possibly seen the shackles were excused. A threeand-a-half to four-foot barrier had been placed in the
10 UNITED STATES V. CAZARES

courtroom to prevent the jurors from seeing shackles or

handcuffs when the defendants were seated. A journalist,

however, saw that the defendants were shackled to their

chairs and reported in the Los Angeles Times that the

defendants were shackled but that when they were seated the

shackling was not visible. The district court called the article

to the attention of counsel and proposed cautioning the jury

again about not reading anything about the case and inquiring

whether any prospective juror had in fact read any articles

about the case. Defense counsel restated their objection,

moved for a mistrial, and moved to unshackle the defendants

from the chairs so they could stand at appropriate times. The

district court responded that he would talk to the marshals,

but noted that two of the defendants were serving life terms

for murder from state proceedings.

The district court took the shackles into his consideration

from the outset of the trial. If the voir dire had been

conducted at sidebar the jurors would likely have been able

to see the defendants’ shackles. The district court therefore

decided against doing individual juror questioning at sidebar. 

At the beginning of the voir dire process, the district court

said, “I think we will do this [i.e., voir dire] over 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 are going to do this over there.” In context, it is quite

clear that when the judge said that “there is a chance they

could see something back here” he was talking about

prospective jurors seeing defendants’ shackling from the

angle at which the sidebar would take place.

During the course of voir dire, counsel for the defendants

renewed their objection to the jury pool. The district court

denied the motion at the time because he did not find that
UNITED STATES V. CAZARES 11

there had been any taint of the prospective jurors, but advised

that he would take action if a level of taint was established. 

The district court continued to question potential jurors about

whether they had seen the defendants on the monitor. One of

the potential jurors responded that he had seen the defendants

escorted in the courtroom and that ‘[i]t looked like they had

handcuffs on behind their backs.” This potential juror also

stated, “I think we all just looked at it, and I don’t think

anybody really said anything.”

The district court dismissed all but six of the panel that

had been in the courtroom with the video monitor. Those six

were seated in the jury box and the district court concluded

that they had not seen the defendants on the monitor. Other

potential jurors denied seeing the defendants on the monitor

before voir dire commenced. A few stated that they had seen

the defendants on the monitor before voir dire commenced,

but that the defendants were seated. Another prospective

juror stated that he had seen on the monitor what he assumed

to be, possibly incorrectly, a defendant walking in 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 excused and that the

district court was satisfied that the panel was not tainted. The

district court again pointed out the placement of the barrier

that prevented the jurors from seeing any shackles or

handcuffs when the defendants were seated. Counsel

objected to the shackling, because it would prevent the

defendants from getting up and down during the trial, and

renewed the motion for mistrial. Counsel also moved the

district court for an order to unshackle the defendants from

their chairs, so that even though they were wearing leg

shackles they could stand up and down throughout the trial.

The district court responded to the renewed motion by stating
12 UNITED STATES V. CAZARES

that he would talk to the marshals and by again noting that at

least two of the defendants were serving life sentences for

murder. Based on the Los Angeles Times article referencing

the shackles, the district court then asked the potential jurors

if any had read a news report regarding the case, but none of

the potential jurors responded.

Applicable Law on Shackling

“[G]iven their prejudicial effect, due process does not

permit the use of visible restraints if the trial court has not

taken account of the circumstances of the particular case.” 

Deck v. Missouri, 544 U.S. 622, 632 (2005). The rationale

against shackling is that “[v]isible shackling undermines the

presumption of innocence and the related fairness of the

factfinding process.” Id. at 630. “In the presence of the jury,

[the defendant] is ordinarily entitled to be relieved of

handcuffs, or other unusual restraints, so as not to mark him

as an obviously bad man or to suggest that the fact of his guilt

is a foregone conclusion.” Stewart v. Corbin, 850 F.2d 492,

497 (9th Cir. 1988) (citation omitted). A trial court may

order that a defendant be shackled during trial only after the

trial court is “persuaded by compelling circumstances that

some measure is needed to maintain security of the

courtroom” and if the trial court pursues “less restrictive

alternatives before imposing physical restraints.” Duckett v.

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

and citation omitted).

In deciding whether less restrictive alternatives to

shackling exist, a trial court must begin by assessing the

disadvantages and limitations if shackles are applied to a

defendant. Spain v. Rushen, 883 F.2d 712, 721 (9th Cir.

1989). Such disadvantages and limitations include
UNITED STATES V. CAZARES 13

(1) reversal of the presumption of innocence, (2) impairment

of the defendant’s mental ability, (3) impeding of

communication between the defendant and his counsel,

(4) detraction from the decorum of the trial, and (5) pain. Id. 

“After considering these factors, the trial judge ‘must weigh

the benefits and [these] burdens of shackling against other

possible alternatives.’” Jones, 899 F.2d at 885 (9th Cir.

1990) (alteration in original) (quoting Spain, 883 F.2d at

721).

There are no explicit findings in the record regarding the

existence of compelling circumstances or the possibility of

less restrictive alternatives to shackling. “Yet we have never

held, and we refuse to hold now, that a trial court must

conduct a hearing and make findings before ordering that a

defendant be shackled.” Id. at 886.

The district court judge in this case was conducting a trial

in which all four defendants were members of a violent gang,

two of the defendants had already been sentenced to life

sentences in state court, and all of the defendants were facing

life sentences as a result of the federal charges. It is apparent

from the record that the district court judge consulted with the

marshals regarding the security considerations inherent in

shackling. We have held that a trial judge has wide discretion

to decide whether increased security measures are required

when dealing with a defendant who has a propensity for

violence. Morgan, 24 F.3d at 51. To reduce the risk of

prejudice from the shackling, the district court judge carefully

questioned the potential jurors during voir dire to preclude

seating jurors who had seen any defendants in shackles on the

monitor. In addition, the barrier that was placed in the

courtroom to prevent the jurors from seeing the shackles

minimized or eliminated the disadvantages of shackles
14 UNITED STATES V. CAZARES

regarding reversal of the presumption of innocence and

detraction from 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 Williams v. Woodford, 384 F.3d 567, 592 (9th

Cir. 2004) (“When the jury never saw the defendant’s

shackles in the courtroom, we have held that the shackles did

not prejudice the defendant’s right to a fair trial.”). 

Defendants have made no claims and presented no evidence

regarding the shackles affecting their mental abilities or

communications with counsel, or causing them pain. Even if

the district court did not fully state on the record his reasons

for shackling and his assessment of less restrictive

alternatives before ordering shackling in this case, the

defendants are not entitled to a reversal based on this record.

In Cox v. Ayers, we set forth four factors that 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). These four factors are (1) that the defendant was

physically restrained in the presence of the jury; (2) that the

shackling was seen by the jury; (3) that the physical restraint

was not justified by state interests; and (4) that he suffered

prejudice as result of the shackling. Id. (quoting Ghent v.

Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002)). These

factors are not present in this case.

Defendants acknowledge that it is not clear whether any

of the sitting jurors actually saw them in shackles. 

Defendants argue, however, that even if the jurors did not see

the leg and waist shackles, they had to believe the defendants

were dangerous based on the district court judge questioning

and based on the defendants’ immobility during a trial in a
UNITED STATES V. CAZARES 15

courtroom in which the marshals outnumbered the

defendants.

This argument is not persuasive. The voir dire

questioning did not suggest any characteristic of the

defendants. In addition, as the district court judge explained

in response to the request to unshackle the defendants, there

is no expectation of mobility of defendants in the courtroom

during a trial. The shackles were not visible and the

defendants’ due process rights were not violated by the

shackling.

1

II.

VOIR DIRE CONDUCTED OUTSIDE THE

PRESENCE OF THE DEFENDANTS AND PUBLIC

Defendants contend their constitutional rights 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 that 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. 2014). “First, for us to reverse the jury

verdict in this case, there must be error that is plain.” Id. at

943 (emphasis omitted). Even then, we must find that the

error seriously affected “the fairness, integrity, or public

reputation of the judicial proceedings” before exercising

discretion to correct the error. Id. at 940 (quoting Puckett v.

United States, 556 U.S. 129, 135 (2009)).

1

In addition, the unconstitutional shackling of a defendant results in

prejudice only if the evidence of guilt is not “overwhelming.” Cox,

613 F.3d at 891. The evidence of guilt in this case was overwhelming.
16 UNITED STATES V. CAZARES

Factual Background on Right to be Present and to Public

Trial

Jury selection in this case took over five-and-one-half

days. Most of the voir dire took place outside the presence of

the defendants and the public in a jury room. Defense

counsel, however, was present. Although appearances,

instruction, admonitions, general voir dire, and exercise of

peremptory challenges took place in open court, substantial

questioning of prospective jurors regarding whether they had

seen or heard the defendants on the video monitor,

questioning regarding hardship and bias, and legal argument,

took place in the jury room outside the presence of the

defendants and the public. The trial transcript repeatedly

references that voir dire was being held in the jury room

outside the presence of the defendants.

The district court had a reason for not conducting voir

dire at sidebar. As was indicated in the previous discussion

concerning shackling, if the voir dire had been conducted at

sidebar, the prospective jurors would likely have been able to

see the defendants’ shackles. As a result, the district court

decided against hardship and other voir dire questioning at

sidebar. At the beginning of voir dire, the district judge said,

“I think we will do this [i.e., voir dire] over 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

are going to do this over there.” In context, it is quite clear

that when the judge said that “there is a chance they could see

something back here” he was talking about prospective jurors

seeing defendants’ shackling from the angle at which the voir

dire sidebar examination of prospective jurors would take

place.
UNITED STATES V. CAZARES 17

Neither defendants nor their counsel objected to the voir

dire taking place in the jury room outside the presence of the

defendants and the public. In fact, one of the defendant’s

counsel stated: “Ithink that the selection ought to be done the

same way as it was done earlier because it would look a little

odd if the new – the jurors already seated, having gone

through this rather extensive private interviews, now see that

the new batch doesn’t have that.”

At one point the district court advised of his intent to

question jurors about vacation time in another courtroom and

stated, “I guess I need to probably get a waiver from your

clients.” One of the defendant’s counsel responded, “Your

Honor, I can’t imagine my client would have an objection to

us going over and doing that.” Before the district court and

counsel moved to the other courtroom the district court

inquired of each defendant whether he objected to proceeding

in this manner. Each defendant consented orally on the

record to this plan. When jury selection was finished and

defense counsel was asked if there was any legal cause why

the jury panel should not be sworn, each defendant’s counsel

responded “no.”

Right to be Present at Voir Dire

Federal Rule of Criminal Procedure 43(a)(2) states that

unless provided otherwise a defendant must be present at

“every trial stage, including jury impanelment.” In United

States v. Gagnon, the Court explained the constitutional basis

of the right of a defendant to be present at his court

proceedings:

The constitutional right to presence is rooted

to a large extent in the Confrontation Clause
18 UNITED STATES V. CAZARES

of the Sixth Amendment, e.g., Illinois v.

Allen, 397 U.S. 337 (1970), but we have

recognized that this right is protected by the

Due Process Clause in some situations where

the defendant is not actually confronting

witnesses or evidence against him. In Snyder

v. Massachusetts, 291 U.S. 97 (1934), the

Court explained that a defendant has a due

process right to be present at a proceeding

“whenever his presence has a relation,

reasonably substantial, to the fulness of his

opportunity to defend against the charge . . . . 

[T]he presence of a defendant is a condition of

due process to the extent that a fair and just

hearing would be thwarted by his absence,

and to that extent only.” Id. at 105–06, 108;

see also Faretta v. California, 422 U.S. 806,

819 n.15 (1975). The Court also cautioned in

Snyder that the exclusion of a defendant from

a trial proceeding should be considered in

light of the whole record. 291 U.S. at 115.

470 U.S. 522, 526 (1985) (per curiam). Further, under the

Due Process Clause, “a defendant is guaranteed the right to

be present at any stage of the criminal proceeding that is

critical to its outcome if his presence would contribute to the

fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730,

745 (1987).

In Gomez v. United States, the Court discussed the

significance of voir dire:

[I]n affirming voir dire as a critical stage of

the criminal proceeding, during which the
UNITED STATES V. CAZARES 19

defendant has a constitutional right to be

present, the Court wrote: “‘[W]here the

indictment is for a felony, the trial

commences at least from the time when the

work of empanelling the jury begins.’” Lewis

v. United States, 146 U.S. 370, 374 (1892)

(quoting Hopt v. Utah, 110 U.S. 574, 578

(1884)). See Swain v. Alabama, 380 U.S. 202,

219 (1965) (voir dire “a necessary part of trial

by jury”); see also Ricketts v. Adamson,

483 U.S. 1, 3 (1987); United States v. Powell,

469 U.S. 57, 66 (1984). Jury selection is the

primary means by which a court may enforce

a defendant’s right to be tried by a jury free

from ethnic, 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. United States, 339 U.S.

162 (1950), or predisposition about the

defendant’s culpability, Irvin v. Dowd,

366 U.S. 717 (1961).

490 U.S. 858, 873 (1989). The right of a defendant to be

present during all critical stages of the court proceedings is

subject to harmless error analysis, unless that deprivation, by

its nature, cannot be considered harmless. Rushen v. Spain,

464 U.S. 114, 117–21 (1983) (per curiam) (holding that an

unrecorded ex parte communication between a trial judge and

juror was harmless error).

Right to a Public Trial

The Sixth Amendment provides, in relevant part, that

“[i]n all criminal prosecutions, the accused shall enjoy the
20 UNITED STATES V. CAZARES

right to a speedy and public trial.” The Sixth Amendment

right to a public trial extends beyond the actual proof

presented at a trial. See, e.g., Waller v. Georgia, 467 U.S. 39,

44–47 (1984) (pretrial suppression hearing must be open to

the public). The Supreme Court has held that the right to a

public trial extends beyond the accused and can be invoked

under the First Amendment. Press-Enterprise Co. v.

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

In Presley v. Georgia, the Court held that a defendant’s

Sixth Amendment right to a public trial was violated when

the trial court excluded the public from the voir dire of

prospective jurors. 558 U.S. 209, 213 (2010) (per curiam). 

In Presley, the trial court advised a courtroom observer, the

defendant’s uncle, that he would not be allowed in the

courtroom while the jury was selected but that he could come

in after jury selection. When counsel for the defendant

objected to the exclusion of the public from the courtroom,

the trial court explained that there was not space for the

public to sit in the audience and that there was “really no need

for the uncle to be present during jury selection.” Id. at 210. 

The Court concluded that the question of whether the Sixth

Amendment right to a jury trial extends to jury voir dire was

so well settled that it could proceed by summary disposition:

The point is well settled under PressEnterprise I and Waller. The extent to which

the First and Sixth Amendment public trial

rights are coextensive is an open question, and

it is not necessaryhere to speculate whether or

in what circumstances the reach or protections

of one might be greater than the other. Still,

there is no legitimate reason, at least in the

context of juror selection proceedings, to give
UNITED STATES V. CAZARES 21

one who asserts a First Amendment privilege

greater rights to insist on public proceedings

than the accused has. “Our cases have

uniformly recognized the public-trial

guarantee as one created for the benefit of the

defendant.” Gannett Co. v. DePasquale, 443

U.S. 368, 380 (1979). There could be no

explanation for barring the accused from

raising a constitutional right that is

unmistakably for his or her benefit. That

rationale suffices to resolve the instant matter.

Id. at 213.

The Supreme Court in Presley admonished that “[t]rial

courts are obligated to take every reasonable measure to

accommodate public attendance at criminal trials.” Id. at

215. Although the Supreme Court acknowledged

circumstances that would warrant closing voir dire to the

public, the Court directed that “in those cases, the particular

interest, and threat to that interest, must ‘be articulated along

with findings specific enough that a reviewing court can

determine whether the closure order was properly entered.’” 

Id. (quoting Press-Enterprise, 464 U.S. at 510).

The district court in this case stated that its “practice,

generally,” and especially in longer cases, was to conduct

hardship voir dire in the jury room. The district court

explained that addressing hardship issues in the adjacent

conference room “will just be easier and nobody will be able

to hear us.” The district court also stated that he was bringing

in the prospective jurors one at a time to the jury room to

consider hardship issues because “if people don’t get the idea

that people are getting out, it may keep it down to a
22 UNITED STATES V. CAZARES

reasonable number.” Had any of the defendants asserted their

rights to a public trial, the reasons stated by the district court

for holding most of voir dire in private would not be

sufficient to avoid a determination that the defendants’ rights

to a public trial were violated. The United States argues that

although the district court did not expressly make the Presley

finding, it was clear that the district court was conducting the

individual voir dire in private because of the nature of the

bias and hardship questions. The questions asked were not of

an intensely personal nature so that argument is not supported

by the record.

Harmless Error or Structural Error

In Arizona v. Fulminante, the Supreme Court divided

constitutional errors into two classes: trial errors and

structural defects. 499 U.S. 279, 307 (1991). Trial errors

“occurred during presentation of the case to the jury” and

their effect may “be quantitatively assessed in the context of

other evidence presented in order to determine whether [they

were] harmless beyond a reasonable doubt.” Id. at 307–08. 

Structural defects, however, “defy analysis by

‘harmless-error’ standards” because they “affect[] the

framework within which the trial proceeds,” and are not

“simply an error in the trial process itself.” Id. at 309–10. 

The denial of the right to public trial has been categorized as

a structural defect. United States v. Gonzalez-Lopez,

548 U.S. 140, 149 (2006) (citing Waller, 467 U.S. at 49, n.9). 

If the right to a public trial had not been waived, defendants

would have a persuasive argument that their right to a public

trial was violated when most of voir dire was conducted in

private.
UNITED STATES V. CAZARES 23

“The Supreme Court has never held that the exclusion of

a defendant from a critical stage of his criminal proceedings

constitutes a structural error.” Campbell v. Rice, 408 F.3d

1166, 1172 (9th Cir. 2005). In making this statement, we

relied on Rushen v. Spain, in which the Supreme Court found

that a juror’s ex parte communication with the trial judge was

harmless beyond a reasonable doubt. 464 U.S. at 117–21. In

United States v. Gagnon, the Supreme Court emphasized,

“[T]he presence of a defendant is a condition of due process

to the extent that a fair and just hearing would be thwarted by

his absence, and to that extent only.’” 470 U.S. at 526

(quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06

(1934)).

In Gagnon, the district court judge had a communication

with a juror who was concerned that one of the defendants

was sketching the juror. The district court advised in open

court that he was going to have this communication without

the defendants being present, and no objection was made. Id.

at 523. The Supreme Court characterized the communication

as follows:

The encounter between the judge, the juror,

and Gagnon’s lawyer was a short interlude in

a complex trial; the conference was not the

sort of event which every defendant had a

right personally to attend under the Fifth

Amendment. Respondents could have done

nothing had they been at the conference, nor

would they have gained anything by

attending.

Id. at 527. The private voir dire in the case at hand was not

“a short interlude” to the extent that it took place for most of
24 UNITED STATES V. CAZARES

the five-and-one-half days of voir dire. However, it is

difficult to see how the defendants’ presence would have

changed the composition of the jury panel, see Gray v.

Mississippi, 481 U.S. 648, 665 (1987), or otherwise affected

the outcome of the case. It is unclear what defendants would

have gained by attending the voir dire, especially since their

counsel was in attendance. Nonetheless, the defendants

should have been in attendance to view prospective jurors,

see the reactions, both oral and physical, of prospective jurors

to questioning, and consult with their defense counsel.

Waiver

We have recognized that “[a]lthough a defendant charged

with a felony has a fundamental right to be present during

voir dire, this right may be waived.” United States v.

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

v. Wood, 18 F.3d 662, 672–73 (9th Cir. 1994) (en banc)

(defendant in a capital case waived his right to be present

during voir dire by expressing his desire not to be present);

see also Gagnon, 470 U.S. at 529 (“We hold that failure by a

criminal defendant to invoke his right to be present under

Federal Rule of Criminal Procedure 43 at a conference which

he knows is taking place between the judge and a juror in

chambers constitutes a valid waiver of that right.”). The right

to a public trial can also be waived. See Levine v. United

States, 362 U.S. 610, 619 (1960) (“The continuing exclusion

of the public in this case is not to [be] deemed contrary to the

requirements of the Due Process Clause without a request

having been made to the trial judge to open the courtroom at

the final stage of the proceeding . . . .”).

“[C]ourts must indulge every reasonable presumption

against the loss of constitutional rights.” Illinois v. Allen,
UNITED STATES V. CAZARES 25

397 U.S. 337, 343 (1970) (citing Johnson v. Zerbst, 304 U.S.

458, 464 (1938)). In Campbell v. Wood, we explained:

A waiver is an “intentional relinquishment or

abandonment of a known right or privilege.” 

Johnson v. Zerbst, 304 U.S. 458, 464 (1938). 

The finding of a knowing and voluntary

waiver is a mixed question of law and fact

which we review de novo. Terrovona v.

Kincheloe, 852 F.2d 424, 427 (9th Cir. 1988). 

The ultimate issue of voluntariness is a legal

question requiring independent federal

determination. Arizona v. Fulminante,

499 U.S. 279, 286 (1991).

18 F.3d at 672.

Defendants contend without citing supporting authority

that “[b]y being shackled they could not possibly have

asserted their rights to be present.” The United States argues

that there is “no connection” between being shackled and

being able to assert their right to be present or to have an

open trial. There is arguably some connection between being

shackled and not asserting the right to be present in the jury

room for the private voir dire as there is no evidence that the

barrier which hid the shackles in the courtroom was available

in the jury room where most of the voir dire took place. Also,

as a matter of logistics, moving the shackled defendants may

have required some extra time and effort. If defendants had

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 the shackles. However, defendants

could have asserted their rights and “[t]he district court need

not get an express ‘on the record’ waiver from the defendant
26 UNITED STATES V. CAZARES

for every trial conference which a defendant may have a right

to attend.” Gagnon, 470 U.S. at 528. None of the defendants

nor their counsel ever requested that the defendants be

present at the portion of the voir dire that took place in the

jury room. When the district court requested a waiver of the

defendants’ presence for a portion of the voir dire, the

defendants each gave the waiver on the record. In addition,

counsel for one of the defendants requested that the private

voir dire continue in the manner it was proceeding. The facts

of this case support finding a valid waiver of the right to be

present at voir dire and a valid waiver of the right to a public

trial.

III.

WHETHER THE DISTRICT COURT COMMITTED

PREJUDICIAL ERROR IN ADMITTING HEARSAY

PURSUANT TO THE DOCTRINE OF FORFEITURE

BY WRONGDOING

The district court’s resolution of Confrontation Clause

claims is reviewed de novo. United States v. Berry, 683 F.3d

1015, 1020 (9th Cir. 2012). Additionally, “we review de

novo the district court’s construction of hearsay rules, but

review for abuse of discretion the court’s determination to

admit hearsay evidence.” United States v. Marguet-Pillado,

560 F.3d 1078, 1081 (9th Cir. 2009).

Factual Background on Doctrine of Forfeiture by

Wrongdoing Issue

One of the defendants, Porfirio Avila, , a/k/a “Dreamer,”

and another Avenues gang member, Rene Madel, had been

convicted of murder in state court for the murder of
UNITED STATES V. CAZARES 27

Christopher Bowser before the federal trial in this matter was

held. The assaults and later murder of Bowser were set forth

as overt acts in the Second Superseding Indictment. After

Bowser was assaulted and robbed on October 26, 2000,

Bowser reported the crimes to the Los Angeles Police

Department. Defendant Alejandro Martinez, a/k/a “Bird,”

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 contained in the state court

murder trial transcript and reviewed by the district court

before trial, Martinez then directed Avila and Madel to kill

Bowser. On December 11, 2000, Avila and Madel shot and

killed Bowser.

In presenting the evidence concerning Christopher

Bowser, the government elicited testimony from several

sources regarding out-of-court statements made by Bowser

implicating the Avenues, and Martinez in particular, in the

initial assaults and assault and robbery. Several witnesses

testified to Bowser having a long history of being harassed by

the Avenues. The government contended that Bowser’s

statements were admissible under the “forfeiture by

wrongdoing” exception to the hearsay rule. The district

court, over the defendants’ objections, allowed Bowser’s

statements to be admitted in evidence subject to a motion to

strike.

LAPD Officer Fernando Carrasco testified that on

October 26, 2000, he responded to a call on a robbery

investigation and spoke with Bowser who told him he had

been punched, kicked, and robbed of a necklace by two

Hispanic men while he was waiting at a bus stop. Officer

Carrasco also testified that Bowser told him he recognized

one of the Hispanic men as “Bird” from the Avenues and told
28 UNITED STATES V. CAZARES

Carrasco that he had had previous run-ins with “Bird.” 

Officer Carrasco testified that Bowser was initially hesitant

to press charges and stated that “he feared for his safety. He

feared retaliation.”

Officer John Padilla, a detective for the City of Los

Angeles, testified that he was assigned to do a follow-up

investigation on the assault and robbery against Bowser. 

Officer Padilla testified that on November 28, 2000, he

received a note at his desk that Bowser wanted to press

charges against “Bird” because “Bird” had driven by him in

a car and pointed a gun at him. Officer Padilla testified that

he went to Bowser’s house in Highland Park on

November 30, 2000, and interviewed Bowser. Officer Padilla

testified that at this interview Bowser said he was robbed by

“Bird” and another. Officer Padilla further testified that

Bowser stated he had been assaulted and called the N-word

by “Bird” on several occasions. Bowser then identified

“Bird” on a photo lineup and circled “Bird’s” photograph. 

Under the photograph Bowser, in the presence of Officer

Padilla, wrote, “‘Bird,’ No. 6, stole my chain and assaulted

me.” Bowser signed and dated the note. Martinez was

arrested on December 3, 2000. Bowser was shot and killed

on December 11, 2000.

Right to Confrontation, Forfeiture by Wrongdoing, and Rule

804(b)(6)

The Confrontation Clause of the Sixth Amendment

provides that, “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him.” In Crawford v. Washington, the Supreme Court

held out-of-court statements by witnesses that are testimonial

are barred, under the Confrontation Clause, unless the
UNITED STATES V. CAZARES 29

witnesses are unavailable and a defendant had a prior

opportunity to cross-examine the witnesses, regardless of

whether such statements are deemed reliable by the court. 

541 U.S. 36, 53–54 (2004). The decision in Crawford

abrogated Ohio v. Roberts, which allowed the admission of a

statement of a hearsay declarant who is unavailable for trial

if it bears “adequate ‘indicia of reliability.’” 448 U.S. 56, 66

(1980). In Crawford the Supreme Court held that statements

taken by police officers in the course of interrogations are

testimonial under even a narrow standard. 541 U.S. at 52. 

The Court held that the Confrontation Clause gives a

defendant the right to cross-examine witnesses who give

testimony against him, except in cases where an exception to

the right of confrontation was recognized at the time of the

founding. Id. at 53–54.

In Giles v. California, the Supreme Court examined the

“forfeiture by wrongdoing” doctrine. 554 U.S. 353 (2008). 

In Giles, California unsuccessfully argued that whenever a

defendant committed an act of wrongdoing that rendered a

witness unavailable, the defendant forfeited his right to object

to the witness’s testimony on confrontation grounds. Id. at

364–65. In rejecting this argument the Court stated,

“American courts never—prior to 1985—invoked forfeiture

outside the context of deliberate witness tampering.” Id. at

366.

In Giles, the Court cited to Crawford and the previous

acknowledgment of two forms of unconfronted testimonial

statements that were admitted at common law. The first

founding-era exception to the right of confrontation is

“declarations made by a speaker who was both on the brink

of death and aware that he was dying.” Id. at 358. The

second founding-era exception to the right of confrontation,
30 UNITED STATES V. CAZARES

and the one relevant to the case at hand, is forfeiture by

wrongdoing, a doctrine which permitted the admission of

“statements of a witness who was ‘detained’ or ‘kept away’

by the ‘means or procurement’ of the defendant.” Id. at 359.

In examining the history of the doctrine of forfeiture by

wrongdoing, the Court observed, “In cases where the

evidence suggested that the defendant had caused a person to

be absent, but had not done so to prevent the person from

testifying—as in the typical murder case involving

accusatorial statements by the victim—the testimony was

excluded unless it was confronted or fell within the

dying-declarations exception.” Id. at 361–62.

In Davis v. Washington, 547 U.S. 813 (2006), the

Supreme Court explained:

[W]hen defendants seek to undermine the

judicial process by procuring or coercing

silence from witnesses and victims, the Sixth

Amendment does not require courts to

acquiesce. While defendants have no duty to

assist the State in proving their guilt, they do

have the duty to refrain from acting in ways

that destroy the integrity of the criminal-trial

system. We reiterate what we said in

Crawford: that “the rule of forfeiture by

wrongdoing . . . extinguishes confrontation

claims on essentially equitable grounds.” 

541 U.S. at 62. That is, one who obtains the

absence of a witness by wrongdoing forfeits

the constitutional right to confrontation.

Id. at 833.
UNITED STATES V. CAZARES 31

The Supreme Court in Giles observed that in 1997 it had

approved Rule 804(b)(6), a rule “which codifies the forfeiture

doctrine.” 554 U.S. at 367 (quoting Davis, 547 U.S. at 833). 

Rule 804(b)(6) provides that a “statement offered against a

party that wrongfully caused—or acquiesced in wrongfully

causing—the declarant’s unavailability as a witness, and did

so intending that result” is not excluded by the rule against

hearsay if the declarant is unavailable as a witness. Causing

the declarant’s unavailability with the intent of doing so is

critical to the doctrine of forfeiture by wrongdoing. See

United States v. Leal-Del Carmen, 697 F.3d 964, 974 (9th

Cir. 2012) (holding videotape admissible under the forfeiture

by wrongdoing hearsay exception because the Government

was responsible for rendering the declarant unavailable as a

witness).

Rule 804(b)(6) applies to those who “acquiesced in

wrongfully causing—the declarant’s unavailability.” A

number of courts have ruled that a witness’s statement may

be admissible under Rule 804(b)(6) against a defendant

conspirator who did not directly procure the unavailability of

the witness, so long as a coconspirator had done so, the

misconduct was within the scope and in furtherance of the

conspiracy, and the misconduct was reasonably foreseeable

to the conspirator. See United States v. Cherry, 217 F.3d 811,

820 (10th Cir. 2000); United States v. Rivera, 292 F. Supp. 2d

827, 833 (E.D. Va. 2003). The factors supporting application

of Rule 804(b)(6) are to be determined based on a

preponderance of the evidence. Davis, 547 U.S. at 833;

Cherry, 217 F.3d at 821; United States v. Emery, 186 F.3d

921, 926 (8th Cir. 1999).
32 UNITED STATES V. CAZARES

District Court’s Application of Forfeiture by Wrongdoing

Doctrine

Defendants argue that the district court misconstrued the

scope of the forfeiture by wrongdoing doctrine and violated

theirConfrontation Clause rights because the Government did

not show that the defendants had Bowser killed for the

purpose of rendering him unable to testify. Defendants argue

that the court made no finding on the question whether Mr.

Bowser was killed for this purpose.

Immediately before the jury returned its verdict in this

case, the district court put on the record the basis for its

admission of the Bowser statements under the forfeiture by

wrongdoing doctrine. The district court stated: “I wanted to

set out some of the reasons why I found that there was a

preponderance of evidence that the defendants Avila and

Martinez and others directly engaged in wrongdoing that was

intended to and did render Chris Bowser unavailable as a

witness.” (Emphasis added.) The district court then stated

that the reasons for his ruling included, but were not limited

to: (1) That Bowser complained about being harassed by

members of the Avenues, including Martinez; (2) That

Bowser had been beaten by individuals wearing blue uniform

shirts that Avila and Martinez wore for employment; (3) That

Bowser reported to the police that Martinez had robbed him

and Martinez was then arrested for the assault; (4) That the

mother of Bowser’s child testified Bowser told her in the days

leading up to his death that he wanted to see his child because

the Avenues were after him; (5) That Bowser was killed eight

days after he told the police that Martinez had robbed him;

(6) That Bowser was killed execution style at the same bus

stop where he reported being robbed and assaulted; (7) That

the pattern of shots used in the Bowser murder was identical
UNITED STATES V. CAZARES 33

to that in another local murder of an African-American

(Anthony Prudhomme); (8) That the testimony given by

Mousey in People v. Avila set forth that Martinez had ordered

Avila and Madel to kill Bowser and that Avila had admitted

having done so to Mousey; (9) That the district court had

taken judicial notice of Avila’s convictions for murdering

Bowser and Prudhomme; and (10) That the district court had

taken judicial notice of Martinez’s conviction for the robbery

of Bowser and the fact that the Bowser murder was charged

as an overt act in furtherance of the conspiracy.

In addition to these reasons, the evidence at trial

established that five days after Bowser’s murder, a fellow

gang member who was incarcerated in state prison took part

in a recorded telephone conversation with Avila in which

Avila admitted that he and Martinez assaulted Bowser. In

this conversation Avila stated that Bowser reported the

assault and that the police raided Martinez’s residence. Avila

then commented, “That fool’s gone.” Also, Mousey testified

in the state court proceeding that Martinez’s order from the

jail to kill Bowser was also because of Bowser being a

witness against Martinez.

The district court acted properly in admitting the Bowser

statements at trial contingent upon proof of the elements for

admission by a preponderance of the evidence. See Emery,

186 F.3d at 926. The federal courts “have sought to effect the

purpose of the forfeiture-by-wrongdoing exception by

construing broadly the elements required for its application.” 

United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005). 

The government is not required to show that a defendant’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 record as a whole clearly
34 UNITED STATES V. CAZARES

support the application of the forfeiture by wrongdoing

doctrine with regard to defendants Avila and Martinez. The

fact that Mousey’s credibility and testimony was subject to

attack does not, as defendants argue, support the defendants’

position that the evidence was insufficient to support a

determination that Bowser’s murder was undertaken to

prevent him from giving testimony.

The district court should have articulated that the Bowser

murder was within the scope of and in furtherance of the

conspiracy, and that the murder was reasonably foreseeable

to the defendants other than Martinez and Avila so that the

forfeiture by wrongdoing doctrine applied to all who had

“acquiesced in wrongfully causing—the declarant’s

unavailability.” Cherry, 217 F.3d at 811; Fed. R. Evid.

804(b)(6). However, if there was any error in the failure to

do so, the error appears to be harmless. There was a plethora

of evidence other than Bowser’s statements that the Avenues

harassed blacks and Bowser in particular. Also, the

testimonial statements that Bowser made to the officers, for

the most part, implicated only Martinez. The admission of

the Bowser statements does not constitute reversible error.

IV.

WHETHER THE TESTIMONY OF THE

GOVERNMENT’S EXPERT WITNESS VIOLATED

RULE 703 AND DEFENDANTS’ CONFRONTATION

RIGHTS

We review the district court’s admission of expert

testimony for abuse of discretion. Estate of Barabin v.

AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014) (en

banc). “A district court’s rulings on the admissibility of
UNITED STATES V. CAZARES 35

expert testimony . . . will be reversed only if ‘manifestly

erroneous.’” United States v. Hankey, 203 F.3d 1160, 1167

(9th Cir. 2000) (quoting Gen. Elec. Co. v. Joiner, 522 U.S.

136, 142 (1997)). Defendants now challenge a portion of the

testimony of the gang expert on Confrontation Clause

grounds, but failed to object on those grounds before the

district court. We review de novo a district court’s admission

of evidence in alleged violation of the Confrontation Clause. 

However, if a defendant failed to object to the admission of

evidence under the Confrontation Clause, we review for plain

error. United States v. Hagege, 437 F.3d 943, 956 (9th Cir.

2006).

Factual Background on Expert Witness Lopez Issue

The government called LAPD Lt. Robert Lopez as an

expert on street gangs, including the Avenues, that reside in

the Northeast Division. At the time of trial Lopez was a 28-

year veteran of the LAPD with 25 years of working with

gangs. He was the detective in charge of the Northeast gang

unit. Lopez attended specialized training and seminars on

gangs, and had taught gang investigation. Lopez talked to

between 200 and 400 Avenues gang members over the years

and talked to other law enforcement officers who were in

contact with Avenues gang members. Lopez had either

investigated or supervised over 500 Avenues cases in the past

twelve years. The district court overruled defendants’

objections to the government’s offer of Lopez as an expert on

the Avenues gang. Then the district court instructed the jury

that opinion testimony should be judged like any other

testimony, and could be accepted, rejected, or given as much

weight as the jurors thought it deserved considering the

witness’s education, experience, and reasoning, as well as all

of the other evidence in the case.
36 UNITED STATES V. CAZARES

Lopez testified about the structure, membership

requirements, practices, graffiti, and slang of the Avenues

gang. Defendants contend that other testimony of Lopez

served merely to relay inadmissible hearsay to the jury. In

particular, defendants challenge the admission of Lopez’s

opinion about the racial attitudes of the Avenues gang. 

Defendants contend that the testimony regarding racial

attitudes consisted entirely of hearsay and was neither

admissible nor helpful to the jury as required by Rule 703.

Lopez testified as to his observation that with the increase

of black people moving into the Highland Park neighborhood

there was a change in the Avenues’ crimes, in that the

Avenues’ crimes targeted black individuals and families in

the area. Lopez testified that he talked to black people in the

neighborhood and to officers working the crimes about this

development. The government then asked, “Based on those

interactions, do you have any opinion about whether the

Avenues gang members had any racial attitudes?” The

defendants objected on the grounds that it was not the proper

subject of expert opinion in that it goes to one of the elements

charged, that there was inadequate foundation, that expert

testimony was not necessary in this area, and that it was

beyond Lopez’s expertise. After a sidebar conference the

prosecutor asked whether Lopez had an opinion as to how the

Avenues gang members felt about the increase in the black

population in Highland Park. Lopez testified that they hated

it. The district court allowed Lopez to testify as to the basis

of his opinion, and Lopez testified that based on interviews of

the community members, the Avenues gang members, and

detectives and officers assigned to his unit, it was his opinion

that black people moving in to the neighborhood was

changing the makeup of the neighborhood and the Avenues

gang members weren’t happy with it.
UNITED STATES V. CAZARES 37

While eliciting the testimony regarding the Avenues gang

members’ attitudes towards black people, the prosecutor

engaged in the following questioning:

Q: Just to be clear, Lieutenant Lopez, when

you talk about the Avenues’ attitudes towards

black people in the neighborhood, you are not

offering any opinion about whether any of

these defendants acted with racial intent on

any particular occasion; correct?

A: Correct.

Q: You are just talking in general terms?

A: Yes, ma’am.

Lopez’s testimony was not so general with regard to the

unofficial hierarchyof the Avenues gang. Lopez testified that

conversations he had with the Avenues gang members and

the officers assigned to the investigations of the Avenues led

him to conclude that the oldest and most violent members

would be revered and have extra clout. Lopez was then

allowed, over a defense relevancyobjection, to opine whether

any member of the Avenues 43 had that extra clout. Lopez

identified defendants Martinez and to a certain extent,

Saldana and Avila, as being in that category.

Gang Expert Testimony and Rule 703

Experts may be used to testify to matters outside the

expected knowledge of the average juror. Fed. R. Evid. 702;

see also Hankey, 203 F.3d at 1167. Expert witnesses may

rely on inadmissible hearsay in forming their opinions, so
38 UNITED STATES V. CAZARES

long as it is of a type reasonably relied upon by experts in

their field. Fed. R. Evid. 703; Hankey, 203 F.3d at 1169. In

Hankey, we upheld the admission of expert testimony of an

officer with experience and sources of information similar to

that possessed by Officer Lopez. As we explained:

Certainly the officer relied on “street

intelligence” for his opinions about gang

membership and tenets. How else can one

obtain this encyclopedic knowledge of

identifiable gangs? Gangs such as involved

here do not have by-laws, organizational

minutes, or any other normal means of

identification-although as [the officer]

testified, some wear colors, give signs, bear

tattoos, etc. [The officer] was repeatedly

asked the basis for his opinions and fully

articulated the basis, demonstrating that the

information upon which he relied is of the

type normally obtained in his day-to-day

police activity.

203 F.3d at 1169–70.

Defendants are challenging the testimony given by

Officer Lopez which extended beyond “general background

information about gangs” and “specialized testimony

regarding matters beyond the jury’s ken.” Defendants rely

upon United States v. Mejia, 545 F.3d 179 (2d Cir. 2008), as

authority that this expert witness was used as a subterfuge to

introduce otherwise inadmissible hearsay. In Mejia, a case in

which a police officer who was a member of a gang task force

testified as an expert in prosecution of gang members, the

Second Circuit cautioned:
UNITED STATES V. CAZARES 39

Yet despite the utility of, and need for,

expertise of this sort, its use must be limited

to those issues where sociological knowledge

is appropriate. An increasingly thinning line

separates the legitimate use of an officer

expert to translate esoteric terminology or to

explicate an organization’s hierarchical

structure from the illegitimate and

impermissible substitution of expert opinion

for factual evidence. If the officer expert

strays beyond the bounds of appropriately

“expert” matters, that officer becomes, rather

than a sociologist describing the inner

workings of a closed community, a chronicler

of the recent past whose pronouncements on

elements of the charged offense serve as

shortcuts to proving guilt. As the officer’s

purported expertise narrows from “organized

crime” to “this particular gang,” from the

meaning of “capo” to the criminality of the

defendant, the officer’s testimony becomes

more central to the case, more corroborative

of the fact witnesses, and thus more like a

summary of the facts than an aide in

understanding them.

Id. at 190.

Defendants also argue that Officer Lopez’s testimony

resulted in the prohibited disclosure of inadmissible hearsay

upon which he based some of his testimony. Rule 703

provides:
40 UNITED STATES V. CAZARES

An expert may base an opinion on facts or

data in the case that the expert has been made

aware of or personally observed. If experts in

the particular field would reasonably rely on

those kinds of facts or data in forming an

opinion on the subject, they need not be

admissible for the opinion to be admitted. But

if the facts or data would otherwise be

inadmissible, the proponent of the opinion

may disclose them to the jury only if their

probative value in helping the jury evaluate

the opinion substantially outweighs their

prejudicial effect.

(Emphasis added.)

We have recognized that to the extent that inadmissible

evidence is reasonably relied upon by an expert, a limiting

instruction typically is needed to limit the use of that

evidence. United States v. Grace, 504 F.3d 745, 759 n.7 (9th

Cir. 2007); United States v. 0.59 Acres of Land, 109 F.3d

1493, 1496 (9th Cir. 1997). No limiting instruction was

requested or given after the testimony in issue.

It was improper expert testimony and a violation of Rule

703 for Officer Lopez to identifyAvenues gang members and

the officers assigned to the investigations of the Avenues as

his source for characterizing defendants Martinez, Saldana,

and Avila as the most violent members of the Avenues and

the members with the most clout. The more general

testimony regarding the Avenues gang members’ attitudes

towards black people is permissible under Hankey.
UNITED STATES V. CAZARES 41

Harmless error on Admission of expert testimony

An error is harmless unless it results in actual prejudice,

which is demonstrated where “the error in question had a

‘substantial and injurious effect or influence in determining

the jury’s verdict.’” Winzer v. Hall, 494 F.3d 1192, 1201 (9th

Cir. 2007) (quoting Brecht v. Abramson, 507 U.S. 619, 623

(1993)). Defendants maintain that since Count One, the

conspiracy against rights charged under 18 U.S.C. § 241, and

Count Two, the interference with federally protected rights

charged under 18 U.S.C. § 245(b)(2)(B), required the jury to

find the Defendants acted based on their victims’ race, the

admission of Avenues gangmembers’ attitudes towards black

people could not be harmless error. Defendants also contend

that this testimony was not harmless because it corroborated

the disputed testimony of Diaz and De La Cruz, who the

defendants characterize as “highly unreliable,” on the issue of

whether all African-Americans, not just members of other

gangs, were subject to attack.

If there was error in allowing Lopez to testify regarding

the Avenues gang members’ attitudes towards black people,

it most likely did not have a substantial effect on the jury’s

verdict. Lopez clarified that he was not offering an opinion

on the racial attitudes of the individual defendants. Further,

there was abundant testimony from black residents of the

Highland Park area regarding the racial attitudes of the

Avenues gang members. Also, in light of the entire record,

one could not conclude that Officer Lopez’s brief testimony

characterizing defendants Martinez, Saldana, and Avila as the

most violent members of the Avenues and as the members

with the most clout, had a substantial and injurious effect on

the jury’s verdict.
42 UNITED STATES V. CAZARES

Confrontation Clause and Plain Error

The Confrontation Clause applies only to testimonial

hearsay. Crawford, 541 U.S. at 51. Statements are

testimonial when made in the course of police interrogation

when the “primary purpose of the interrogation is to establish

or prove past events potentially relevant to later criminal

prosecution.” Davis, 547 U.S. at 822. The record is deficient

in establishing Lopez’s primary purpose in gathering the

information regarding the defendants’ violent character and

role in the Avenues. Since defendants failed to object on

Confrontation Clause grounds, plain error review applies to

a Confrontation 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 DEFENDANT SALDANA’S MOTION TO

SUPPRESS STATEMENTS HE MADE TO THE

POLICE WITHOUT BEING GIVEN HIS MIRANDA

RIGHTS

The ultimate question of whether a confession is

voluntary and admissible is subject to de novo review, but the

district court’s underlying factual findings are reviewed for

clear error. United States v. Brobst, 558 F.3d 982, 995 (9th

Cir. 2009). Whether a person is “in custody” for purposes of

Miranda is a mixed question of law and fact that is reviewed

de novo. United States v. Kim, 292 F.3d 969, 973 (9th Cir.

2002).
UNITED STATES V. CAZARES 43

Factual Background of Suppression Issue

Saul Audelo, a suspect in the murder of Renee Cerda, was

interviewed by police. Audelo admitted owning a 9

millimeter Ruger and said he sold it to defendant Saldana

after the Cerda murder. Detectives investigating the Cerda

murder obtained a search warrant for Saldana’s residence in

order to find the gun.

At 7:00 a.m. on May 6, 1999, police officers executed the

search warrant at the home of Juana Saldana, Saldana’s

mother, where Saldana, his mother, brother, and sister lived. 

Saldana had just showered after returning home after working

a double shift at Vandenburg Air Force Base. The other

family members were sleeping. The 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 handcuffed at any time. That factual finding in the

face of conflicting evidence is not clearly erroneous. After

the search, Saldana was moved into a bedroom where officers

questioned him about the 9 millimeter Ruger. The officers

then led Saldana out of the house and into a car. Saldana was

given the option of driving his car to the police station or

riding with Detective Gabriel Rivas. That any choice was

given was denied by the defense, but the district court’s

factual finding is not clearly erroneous. Saldana rode with

the Detective to the Hollenbeck police station. Saldana was

questioned by two or three officers in an 8 by 10 interview

room at the station. A transcript of the recorded interview at

the station shows he was told that he was not under arrest. 

Saldana admitted to purchasing a 9 millimeter firearm from

Audelo, but said he no longer had the weapon. He was asked

to find the weapon and contact Detective Rivas, which he

agreed to do. During the police station questioning,
44 UNITED STATES V. CAZARES

detectives did not threaten or suggest to Saldana that he

would be placed under arrest or prosecuted, nor did they

brandish their weapons. The district court also found that no

pressure or coercive tactics were employed by the detectives

either during the search or the subsequent interviews. The

district court also found that Saldana was told during the

questioning he was free to leave the police station. There is

no dispute that Saldana was not given Miranda warnings. 

Saldana was permitted to leave the interview room and the

police station.

The police later were informed that Saldana had

participated in the Wilson murder and had used a 9 millimeter

gun he obtained from another gang member. Subsequently,

the gun was connected to both the Cerda and the Wilson

murders. Saldana filed a pre-trial motion to suppress his

statements made in the May 6, 1999 interview at the police

station. Witness declarations were submitted by the parties. 

The district court held hearings on the motion to suppress at

which Saldana, his brother, his sister, two detectives, and an

FBI agent testified. The day the government called Audelo

and Detective Rivas as witnesses at the trial of this case, the

district court denied the motion to suppress Saldana’s

statements without explanation. The court stated that it

would either write something or state its reasons later on the

record. The parties agree that was not done and the matter

was remanded to the district court. Thereafter, the district

court filed its seven page Findings of Fact in Support of the

Denial of Gilbert Saldana’s Motion to Suppress.

Applicable Law on Suppression of Statements

In Miranda v. Arizona, the Supreme Court established

that, when a person is “in custody,” procedural safeguards
UNITED STATES V. CAZARES 45

must be afforded that person before the person is questioned. 

Otherwise, the prosecution may not use what it learns through

its interrogation. 384 U.S. 436, 444 (1966). The Court

reasoned that the privilege against self-incrimination is

protected by adequately and effectively advising an

individual of his or her rights. Id. at 467. It is undisputed

that Saldana was not read or told of his Miranda rights before,

during, or after the interview on May 6, 1999.

The question is whether Saldana was “in custody” while

being questioned. “To determine whether an individual was

in custody, a court must, after examining all of the

circumstances surrounding the interrogation, decide whether

there [was] a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.”

Kim, 292 F.3d at 973 (alteration in original) (internal

quotation marks and citation omitted). The court must

“examine the totality of the circumstances surrounding the

interrogation.” United States v. Craighead, 539 F.3d 1073,

1082 (9th Cir. 2008). A defendant is in custody if a

“reasonable innocent person in such circumstances would

conclude that after brief questioning he or she would not be

free to leave.” United States v. Booth, 669 F.2d 1231, 1235

(9th Cir. 1981). The custody determination is objective and

is not based upon “the subjective views of the officers or the

individual being questioned.” Kim, 292 F.3d at 973.

Facts relevant to the determination of whether a person is

in custody “include the language used by the officers, the

physical characteristics of the place where the questioning

occurs, the degree of pressure applied to detain the individual,

the duration of the detention, and the extent to which the

person was confronted with evidence of guilt.” United States

v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007) (quoting
46 UNITED STATES V. CAZARES

United States v. Butler, 249 F.3d 1094, 1099 (9th Cir. 2001));

accord United States v. Hayden, 260 F.3d 1062, 1066 (9th

Cir. 2001) (“Factors relevant to whether an accused is ‘in

custody’ include the following: (1) the language used to

summon the individual; (2) the extent to which the defendant

is confronted with evidence of guilt; (3) the physical

surroundings of the interrogation; (4) the duration of the

detention; and (5) the degree of pressure applied to detain the

individual.”). “While determining whether a defendant is

constitutionally entitled to Miranda warnings is subject to de

novo review, it is nevertheless a fact-intensive inquiry.” 

United States v. Wright, 625 F.3d 583, 602 (9th Cir. 2010)

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

Discussion

There are factual disputes concerning the circumstances

of the interview at the police station. The record indicates

that the audiotape or recording of the interview may be

incomplete. Saldana was told “you were not under arrest,”

but the transcript of the recording does not reflect that

Saldana was told he was free to leave but on remand the

district court found that Saldana was told he was free to leave

while at the police station. The language used by the officers

in the taped interview at the police station was neutral even

though it did direct the questioning. There is no showing of

other language being used previously at the home of

Saldana’s mother where he lived. Three or four officers took

Saldana to another room for an initial questioning while the

search went on. There were at least 10 officers participating

in the search, with at least 7 of them in the house with a

number of police cars parked in the street. The police station

interview room was small, about 8 by 10 feet, and there were

two and sometimes three officers in the room. Saldana drank
UNITED STATES V. CAZARES 47

one cup of coffee and was offered a second cup of coffee. 

The recorded interview was about 10 minutes long and the

interview may have started before the recording device was

activated. Saldana was not confronted with evidence of guilt

as the officers stated they only wanted to get the gun. As a

convicted felon, Saldana would be incriminating himself by

merely admitting he had possessed the handgun. But that was

not the focus of the search nor of the questioning. The factual

finding on conflicting evidence is that there was no detention. 

It is about a 30 minute drive from the house to the police

station. Finally, there was no pressure applied to detain

Saldana.

Under the facts as found by the district court, and after

examining all of the circumstances surrounding the

questioning, there was no formal arrest or restraint of

freedom of movement of the degree associated with formal

arrest.

The defense claims it is inconceivable that the LAPD

would not place a convicted murderer in handcuffs while they

conducted an early morning search at his home. The district

court has the best opportunity to both hear and observe the

witnesses and to judge their credibility. Based upon the

findings of the district court, Defendant Saldana was never in

custody and was not entitled to a Miranda warning. His

statements to the LAPD were properly admissible.
48 UNITED STATES V. CAZARES

VI.

WHETHER DEFENDANTS’ RIGHTS UNDER THE

CONFRONTATION CLAUSE WERE VIOLATED BY

HEARSAY TESTIMONY OF SAUL AUDELO

REGARDING THE CERDA MURDERS AND THE

GUN USED TO COMMIT THOSE MURDERS

The district court’s resolution of Confrontation Clause

claims is reviewed de novo. Berry, 683 F.3d at 1020. 

Additionally, “we review de novo the district court’s

construction of hearsay rules, but review for abuse of

discretion the court’s determination to admit hearsay

evidence.” Marguet-Pillado, 560 F.3d at 1081. If a

defendant has both invited error and relinquished a known

right then the error is waived and the court can decline

review. United States v. Nguyen, 565 F.3d 668, 676 (9th Cir.

2009).

Factual Background of Audelo hearsay testimony issue

Saul Audelo, a former prison bunkmate of defendant

Gilbert Saldana, was convicted in state court of killing Jaime

and Rene Cerda. The Cerda murders occurred February 22,

1999. Audelo was a member of the Los Angeles White Fence

gang. After Audelo and Saldana were released from jail they

maintained a friendship and Audelo sold Saldana guns,

including “burnt” guns, or guns that had been used in a crime. 

Audelo was asked at his trial, “Did you sell the gun used in

the Serta (sic) murders to Gilbert Saldana?” The defendants

objected on foundation grounds and the district court

sustained the objection.
UNITED STATES V. CAZARES 49

The defendants contended that the onlywayAudelo knew

of what gun was used at the Cerda murders was through

hearsay since Audelo claimed he was not involved in the

Cerda murders, even though a jury in state court convicted

him of those murders. After a sidebar conference, the

prosecutor asked Audelo: “Did you have possession of the

firearm used during those [Cerda] murders?” Audelo

answered in the affirmative to that question, and to the

question of whether he sold that firearm to anyone. Audelo

testified that he sold the gun to Lucky (defendant Gilbert

Saldana). Audelo also testified that the gun in issue, a 9

millimeter Ruger, was one of about five weapons that he had

sold Saldana. Audelo testified that Saldana usually came

with defendant Martinez (Bird) and Merced Cambero

(Shadow) when the guns were sold. The government

maintains that the same 9 millimeter Ruger used in the Cerda

murders was used to kill Kenneth Wilson on April 18, 1999.

During cross examination of Audelo, Saldana’s attorney

elicited testimony from Audelo that he had claimed he was

not present at the Cerda murders. Saldana’s attorney then

asked: “So your claim that you made here today that the

weapon that you sold to Mr. Saldana was used in the Rene

Serta (sic) murder is based upon what someone else told you. 

Is that your claim?” Audelo answered: “By the shooter

himself, yes.” Saldana’s attorney followed with, “Well, you

say the murderer himself; Is that correct?” Audelo agreed.

Earlier, at a hearing outside the presence of the jury,

Audelo testified that after he sold the 9 millimeter Ruger to

Saldana, Ponyboy (Salvador Ramos) told him that he had

used the 9 millimeter Ruger in the Cerda murders. After the

hearing the district court overruled Saldana’s hearsay and

confrontation clause objections. The 9 millimeter Ruger was
50 UNITED STATES V. CAZARES

not produced at trial as it was not in the possession of the

government. A firearms examiner with the LAPD later

testified at trial that the bullets and bullet casings from the

Wilson murder were fired from the same gun as had been

used in the Cerda murders — a 9 millimeter Ruger. The

government never called Ramos to testify.

Confrontation Clause Argument

Defendants contend that there was a Confrontation Clause

violation when Audelo testified in response to a question

asked during cross examination that he heard from the

murderer that the gun sold to Saldana was used in the Cerda

murders (for which Audelo was convicted). The

Confrontation Clause, however, applies only to testimonial

hearsay. Crawford, 541 U.S. at 51. Statements are

testimonial when made “to establish or prove past events

potentially relevant to later criminal prosecution.” Davis,

547 U.S. at 822. A conversation between two gang members

about the journey of their burnt gun is not testimonial. In

addition, defense counsel clearly invited this testimony.

Defendants appear to be challenging the government

putting on a witness who claims not to have firsthand

knowledge of at least part of the testimony he is expected to

give. This argument is compromised to some degree by

Audelo’s murder conviction in the Cerda case. More

importantly, defendants fail to cite authority for this argument

and the cited authority does not support defendants’

confrontation clause argument. The failure to cite to valid

legal authority waives a claim for appellate review. See

Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992). 

For these reasons and the fact that error was invited,

defendants are not entitled to relief on this issue.
UNITED STATES V. CAZARES 51

VII.

WHETHER THE DISTRICT COURT DENIED

DEFENDANTS THEIR RIGHTS TO EFFECTIVE

CROSS-EXAMINATION AND CONFRONTATION

BY LIMITING AND PRECLUDING CROSS

EXAMINATION

“If the defendant raises a Confrontation Clause challenge

based on the exclusion of an area of inquiry, we review de

novo.” United States v. Larson, 495 F.3d 1094, 1101 (9th

Cir. 2007) (en banc). However, “[a] challenge to a trial

court’s restrictions on the manner or scope of

cross-examination on nonconstitutional grounds is . . .

reviewed for abuse of discretion.” Id.

General Principles

The Confrontation Clause of the Sixth Amendment

guarantees the right of an accused in a criminal prosecution

“to be confronted with the witnesses against him.” “The

main and essential purpose of confrontation is to secure for

the opponent the opportunity of cross-examination.” Davis

v. Alaska, 415 U.S. 308, 315–16 (1974) (quoting 5 J.

Wigmore, Evidence § 1395, at 123 (3d ed. 1940)). 

Improperly restricting defense counsel’s cross-examination,

when that examination is designed to show bias on the part of

a prosecution witness, violates a defendant’s Confrontation

Clause rights. Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). We, like the Supreme Court, have “‘emphasized the

policy favoring expansive witness cross-examination in

criminal trials.’” Larson, 495 F.3d at 1102 (quoting United

States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000)).
52 UNITED STATES V. CAZARES

This Court has also recognized:

The constitutional right to cross examine is

“[s]ubject always to the broad discretion of a

trial judge to preclude repetitive and unduly

harassing interrogation,” but that limitation

cannot preclude a defendant from asking, not

only “whether [the witness] was biased” but

also “to make a record from which to argue

why [the witness] might have been biased.”

United States v. Schoneberg, 396 F.3d 1036, 1042 (9th Cir.

2005) (quoting Davis v. Alaska, 415 U.S. at 316, 318)

(alterations in original) (footnotes omitted).

We have identified three factors to be considered in

determiningwhether a defendant’s right to cross-examination

has been violated: (1) whether the excluded evidence was

relevant; (2) whether other legitimate interests outweighed

the defendant’s interest in presenting the excluded evidence;

and (3) whether the exclusion of evidence left the jury with

sufficient information to assess the credibility of the witness

the defendant was attempting to cross-examine. Larson,

495 F.3d at 1103 (citing United States v. Beardslee, 197 F.3d

378, 383 (9th Cir. 1999)). The limitation on the

cross-examination of each witness is reviewed separately. Id.

Factual Background Concerning Cross-Examination and

Confrontation Issue

Defendants claimthat the district court improperlylimited

cross-examination of witnesses Jesse Diaz, Jose De La Cruz,

Saul Audelo, and Eneida Montano.
UNITED STATES V. CAZARES 53

Jesse Diaz: Jesse Diaz had been convicted of attempted

murder and was sentenced to 20 years in 1999. Diaz was an

Avenues gang member and testified about the gang’s

activities. Diaz testified that he was present with Defendants

Martinez, Cazares, and Saldana when Kenneth Wilson was

murdered and testified as to the details of that event. Diaz

had 10 years remaining on his state sentence at the time of

trial and testified on direct examination that the government

would be sending a letter to the state court judge and any

reduction would be up to the state court judge.

Defendants complain that Saldana’s counsel was not

allowed to cross-examine Diaz on the fact that he had been

outed as a snitch at a preliminary hearing. Saldana’s counsel,

in fact, cross-examined on this point. Defendants complain

that Saldana’s counsel could not explore Diaz’s knowledge of

whether he knew the punishment he could 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 to whether he made a deal with the

detective so he “would never be prosecuted by the State of

California for Murder.”

Defendants also complain that counsel for Saldana could

not explore whether Diaz 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, defense

counsel cross-examined Diaz extensively on his bias,

motives, and inconsistencies. There was no Sixth

Amendment violation with regard to Diaz.
54 UNITED STATES V. CAZARES

Jose De La Cruz: Jose De La Cruz had been a member of

the Cypress Avenues gang and was serving 45 years to life

for the murder of Kenneth Wilson. De La Cruz was also with

defendants Martinez, Cazares, and Saldana when Kenneth

Wilson was murdered and testified as to the details of that

event. De La Cruz had also spent time with the defendants

engaging in gang activities and testified to the details of these

activities.

Defendants contend their rights were violated when

counsel for Saldana was not allowed to question De La Cruz

about detectives telling De La Cruz that Saldana would take

the stand against him. Counsel for Saldana conducted the

following cross-examination in this area:

Q: Is part of what motivated you to cooperate

with the police the fact that they told you

that Gilbert Saldana was putting this thing

on you.

[objection overruled by district court]

A: That had nothing to do with it.

Q: So you thought it was okay that Gilbert

Saldana was putting the murder on you?

A: I knew he wasn’t.

Defendants contend their rights were violated when the

district court sustained an objection about De La Cruz having

a shank in prison. Counsel asked and De La Cruz answered

whether he had been arraigned on possession of a shank. 

Although further questioning about possession of the shank
UNITED STATES V. CAZARES 55

was objected to and disallowed based on Rule 609, counsel

asked without objection, “Well, were you concerned at that

time for your own personal safety in the county jail because

you knew that you had snitched out some of your fellow gang

members?”

Defendants contend their rights were violated when the

district court sustained an objection about De La Cruz never

having killed a black man before the murder of Kenneth

Wilson. Defendants make a meritless claim that the

“question goes directly to the indictment’s allegation that

there was an ongoing conspiracy among De La Cruz’s gang

to kill Black people.”

Defendants contend their rights were violated when the

district court sustained an objection to an incomplete question

about the FBI telling De La Cruz they were making a case

about Kenneth Wilson being killed because of racial hatred. 

However, before the objection was sustained the following

questioning took place:

Q: Now, it wasn’t until November of 2003

that you mentioned the motivation for

killing Mr. Wilson as being that he was

African American; isn’t that correct?

A: That’s right.

Q: And when the FBI spoke to you , they

made it very clear that they were

interested – that they were investigating a

case dealing with racial hatred; isn’t that

correct?
56 UNITED STATES V. CAZARES

A: That’s right.

Defendants contend their rights were violated when the

district court sustained objections to questions concerning

attorney communications and plea bargaining for the Wilson

homicide. Testimony was elicited from De La Cruz,

however, establishing that he was negotiating a better deal.

De La Cruz was also an important witness. However,

defense counsel cross-examined De La Cruz extensively on

his bias, motives, and inconsistencies. There was no Sixth

Amendment violation with regard to De La Cruz.

Saul Audelo: Saul Audelo was Saldana’s former prison

bunkmate. Audelo had been convicted in state court of

killing Jaime and Rene Cerda. Audelo testified to selling

Saldana the 9 millimeter Ruger the government contends was

used to kill Kenneth Wilson.

Defendants contend their rights were violated when the

district court sustained objections to questions concerning the

conditions of his confinement “in order to flesh out reasons

why he was cooperating.” Audelo, in fact, gave testimony in

cross-examination that it was difficult for his family to visit

him, that he had been in lock down a number of times, and

that he didn’t like being incarcerated and wanted to go home.

Audelo was also an important witness. Defense counsel

cross-examined him extensively on bias, motives, and

inconsistencies. There was no Sixth Amendment violations

concerning Audelo.

Eneida Montano: Eneida Montano had been Saldana’s

former girlfriend. She testified as to Saldana’s use of the N-
UNITED STATES V. CAZARES 57

word or “myate” (Spanish slang for the same). Defendants

contend their rights were violated because they could not

impeach Montano on whether she had stated Saldana used the

N-word or just the term “myate.” Defendants further contend

their rights were violated because they could not impeach

Montano regarding her inability to recall testimony to the

grand jury despite her training to be a deputy sheriff.

Montano was not an especially important witness and the

areas of restricted cross-examination were not that important. 

There was no Sixth Amendment violation with regard to

Montano.

There was extensive cross-examination of all the

witnesses in this case. Defendants have cited only a few

instances, and some are cited out of context, with regard to

limitations placed on cross-examination. With regard to each

of the witnesses listed above, very little evidence was

excluded from their cross-examinations and the exclusion of

this small amount of evidence still left the jury with sufficient

information to assess the credibility of the witness the

defendant was attempting to cross-examine. Larson,

495 F.3d at 1103.

VIII.

WHETHER THE DISTRICT COURT ABUSED ITS

DISCRETION BY PERMITTING THE

GOVERNMENT’S EXPERT TO TESTIFY THAT

HER FIREARM IDENTIFICATION FINDINGS

WERE MADE TO A “SCIENTIFIC CERTAINTY”

We review the district court’s admission of expert

testimony for abuse of discretion. Estate of Barabin,
58 UNITED STATES V. CAZARES

740 F.3d at 460. The government contends the defendants

failed to raise their objections properly and that plain error

applies.

Factual and Procedural Background on Firearms Expert

Testimony Issue

Defendants filed a motion in limine requesting the district

court exclude ballistics evidence in this case under Daubert

v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), and

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 gate-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 government’s ballistics expert on the

grounds that the expert’s conclusions concerning the matches

in the Wilson and Cerda murders and the Bowser and

Prudhomme murders lacked statistical reliability. Counsel

for Saldana argued: “So, at the very least, aside from keeping

out her testimony, I assume that your Honor is going to

overrule my objection, I would ask that she be precluded

from saying that this is an absolute match . . . .”

The government advised that the witness would conclude

she matched the evidence in her opinion to a scientific

certainty. The district court found that “tool mark

identification method, ballistics analysis employed essentially

by the government’s witness is reasonably reliable and will

likely be helpful to the jury,” and that the defense could

cross-examine on reliability. Although the district court

noted there had been criticism of tool mark identification by

some scholars, he felt the methodology was still accepted in
UNITED STATES V. CAZARES 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 government called Diana

Paul as an expert witness. Paul worked for the LAPD

Firearms Analysis Unit as a criminalist and firearms

examiner. Paul testified that she had been a firearms expert

for approximately 15 years, and that she had a Master of

Science degree in criminalistics. She further testified that the

majority of her training came from a two-year, on-the-job

training program with the LAPD Firearms Analysis Unit. 

She then passed a competency test which included both a

written and practical component. Paul engaged in ongoing

training in workshops and training seminars put on by

forensic organizations, including a class offered by the FBI at

Quantico, Virginia, designed specifically for forensic firearm

and tool mark examination. Paul subscribed to forensic

science journals and over the years she had analyzed

approximately 2500 cases in the LAPD Firearms Analysis

Unit. Paul had testified specifically in firearms analysis

between 200 and 250 times.

When the government offered Diana Paul as an expert in

the area of firearms analysis, defendant Saldana objected. 

The district court found Paul qualified and then instructed the

jury that opinion testimony should be judged like other

testimony, and that it could be accepted, rejected, or given as

much weight as the jury believed it deserved. Paul testified

that her standard, the Associates of Firearms and Toolmark

Examiners (AFTE) standard, was more conservative than that

of others and that “I am not comfortable writing a report or

reporting something that is not in my mind to a scientific

certainty.” Paul also testified during direct examination that

there is a subjective element to her job so she insures the
60 UNITED STATES V. CAZARES

quality of her work with four different areas of quality

control.

Paul examined fired shot shells, fired cartridge cases,

fired bullets, and shot shell components from the Kenneth

Wilson murder crime scene. Paul found the shot shells were

fired from the same gun. Paul examined fired casings with

the caliber designation of a 9 millimeter Luger from the

Kenneth Wilson murder crime scene and compared them to

the casings from the Rene Cerda murder and testified that

theywere fired from the same firearm. When the government

asked how confident Paul was that the casing left behind at

the Cerda murder was fired out of the same gun as was fired

in the Wilson murder, Saldana objected for lack offoundation

in terms of probability. The objection was initially sustained,

but over the objection of counsel Paul was allowed to testify

that the 9 millimeter Ruger could have fired the casings in

both scenes, though she could not be certain. Paul also

testified that she examined a bullet that was taken from

Kenneth Wilson’s body and compared it to bullets at the

scene and concluded they were fired from different firearms. 

She further testified, over defense objections on foundation

and speculation, that there were at least three firearms used in

the Kenneth Wilson crime. This testimony corresponds with

the testimony given by Diaz and De La Cruz.

In her testimony Paul also compared firearms evidence

from the Christopher Bowser murder of December 11, 2000,

and the Anthony Prudhomme murder of November 3, 2000. 

Another detective testified over defense objection at trial that

he observed “an immediate nexus” between the Bowser and

Prudhomme murder scenes, because Prudhomme was also a

black male Highlands Park area victim who was killed with

a gunshot wound to the back of the head just weeks before the
UNITED STATES V. CAZARES 61

Bowser murder. Paul examined three cartridge cases and

bullet evidence from the Bowser murder crime scene. Paul

testified that the three casings had a .25 auto caliber

designation and that they were fired from the same firearm. 

Paul further testified that she examined two casings from the

Prudhomme murder scene and concluded they were fired

from the same firearm. There were no objections to this

testimony. Paul also testified that she compared the bullet

evidence from the Bowser murder with the bullet evidence

from the Prudhomme murder, and concluded they were fired

from the same firearm. There was no objection made at the

time this testimony was given.

Paul was extensively cross-examined about her

methodology, analysis, and basis for conclusions. Paul

conceded during cross-examination that the conclusion that

a particular bullet was fired by the same firearm as another

bullet is ultimately a subjective evaluation. Paul also

conceded that there was no statistical database from which

she could prove that no other firearm could have fired the

particular bullet. On redirect examination, however, Paul

testified as follows (without objection) regarding her findings

in this case: “I am completely certain. If I was not

completely certain, I would have written a report saying that

it was inconclusive. I would not have said that it was a

match, the two were fired in the same gun.” She testified that

was the case in the Wilson and Cerda comparisons and the

Bowser and Prudhomme comparisons. Paul then testified,

without objection from the defense, that her findings were

made with a scientific certainty, but acknowledged, “There is

no absolute certainty in science.”

During closing arguments the prosecutor stated that “the

most important corroboration to Diaz’s and De La Cruz’s
62 UNITED STATES V. CAZARES

testimony that Saldana shot at Wilson’s car with a 9

millimeter gun he purchased from a White Fence gang

member was Paul’s testimony “to a scientific certainty.”

Toolmark Identification Expert Testimony

On September 26, 2012, defendants submitted

supplemental authority on the issue of whether the district

court erred by permitting the governments’s firearms expert

to testify to a scientific certainty about her firearms

identification findings. The authority, United States v. Otero,

849 F. Supp. 2d 425 (D.N.J. 2012), contains a thorough

discussion on the reliability offorensic toolmark examination

utilized to identify the firearm from which a discharged

ammunition originated. The district court issued its decision

after it conducted a three-day Daubert hearing. The decision

explains, “According to the theory of toolmark identification

espoused by the Association of Firearms and Toolmark

Examiners (‘AFTE’), individual characteristics ‘are unique to

that tool and distinguish it from all other tools.’” Id. at 428. 

In discussing the general acceptance of toolmark

identification, the court summarized:

Courts have observed that the AFTE theory of

firearms and toolmark identification is widely

accepted in the forensic community and,

specifically, in the community of firearm and

toolmark examiners. See United States v.

Diaz, No. 05-167, 2007 WL 485967, at *11

(N.D. Cal. Feb. 12, 2007). Even courts which

have criticized the bases and standards of

toolmark identification have nevertheless

concluded that AFTE theory and its

identification methodologyis widelyaccepted
UNITED STATES V. CAZARES 63

among examiners as reliable and have held

the expert identification evidence to be

admissible, albeit with limitations. United

States v. Taylor, 663 F. Supp. 2d 1170, 1178

(D.N.M. 2009); United States v. Monteiro,

407 F. Supp. 2d 351, 372 (D. Mass. 2006);

United States 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 existed general acceptance of the AFTE

theory among professional examiners as a reliable method of

firearms and toolmark identification. The government in the

Otero case, however, sought admission of the toolmark

identification testimony based on the standard of “to a

reasonable degree of certainty.” Id. at 429 n.3.

The issue in this appeal is not the general admissibility of

the toolmark identification testimony, but the “scientific

certainty” standard to which Paul testified.

In Diaz, the district court held that the theory of firearm

identification used by the SFPD Crime Lab was reliable

under Daubert. 2007 WL 485967 at *1. However, the judge

also acknowledged the subjectivity involved in a firearms and

toolmark examiner’s identification, and concluded, “The

record, however, does not support the conclusion that

identifications can be made to the exclusion of all other

firearms in the world. Thus, the examiners who testify in this

case may only testify that a match has been made to a

‘reasonable degree of certainty in the ballistics field.’” Id.
64 UNITED STATES V. CAZARES

Harmless Error

Even the government is not arguing on appeal that

“scientific certainty” is a proper characterization for toolmark

identification expert testimony. While there may be some

deficiency in the objections to the standard testified to by

Paul, it appears that the “scientific certainty” issue was

brought to the district court’s attention before and during

Paul’s testimony. A more thorough Daubert hearing could

have been helpful in handling the “scientific certainty” issue. 

The issue is then whether the “scientific certainty”

characterization was harmless error.

An error is harmless unless it results in actual prejudice,

which is demonstrated where “the error in question had a

‘substantial and injurious effect or influence in determining

the jury’s verdict.’” Winzer, 494 F.3d at 1201 (quoting

Brecht, 507 U.S. at 623). Although the firearms

identification evidence and expert testimony was important

in this case, the “scientific certainty” characterization was

subject to cross examination which resulted in

acknowledgment of subjectivity in the expert’s work. In

addition, the district court properly instructed as to the role of

expert testimony and there was substantial evidence

otherwise linking the defendants to the Wilson and Bowser

murders. We believe “a reasonable degree of certainty in the

ballistics field” is the proper expert characterization of

toolmark identification. Any error in this case from the

“scientific certainty” characterization was harmless.
UNITED STATES V. CAZARES 65

IX.

WHETHER 18 U.S.C. § 245(b)(2)(B), ON ITS FACE

AND AS APPLIED IN THIS CASE, IS A VALID

EXERCISE OF CONGRESSIONAL POWER

This Court “review[s] de novo questions of federal

constitutional law, as well as questions of statutory

construction.” United States v. Kaczynski, 551 F.3d 1120,

1123 (9th Cir. 2009) (citations omitted).

Defendants Saldana, Martinez, and Cazares argue that

their convictions on Count Two of the Second Superseding

Indictment should be vacated because 18 U.S.C.

§ 245(b)(2)(B) is unconstitutional on its face and as applied

to this case. Although defendants argue that Section

245(b)(2)(B) exceeds Congress’s powers under both Section

2 of the Thirteenth Amendment and the Commerce Clause,

defendants also acknowledge that these arguments were

rejected in United States v. Allen, 341 F.3d 870 (9th Cir.

2003). Defendants concede in their joint opening brief that

we are bound, to the extent applicable, to the holding in

United States v. Allen. Defendants state that the facial

constitutional challenge is raised to preserve 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) Whoever, whether or not acting under

color of law, by force or threat of force

willfully injures, intimidates or interferes
66 UNITED STATES V. CAZARES

with, or attempts to injure, intimidate or

interfere with–

. . .

(2) any person because of his race, color,

religion or national origin and because he is or

has been--

. . .

(B) participating in or enjoying any benefit,

service, privilege, program, facility, or

activity provided or administered by the

United States[.]

Count Two of the Second Superseding Indictment charges

defendants Saldana, Martinez, and Cazares with violating

18 U.S.C. § 245(b)(2)(B) because they “did willfully, by

force and threat of force, injure, intimidate, and interfere with

Kenneth Kurry Wilson, an African-American man, by

shooting him with firearms, because of Kenneth Kurry

Wilson’s race and color, and because he was and had been

enjoying facilities provided and administered by a

subdivision of the State, namely the public streets of Los

Angeles, California, in and around Avenue 52.”

Defendants argue that a street is not a facility within the

meaning of 18 U.S.C. § 245, so the statute could not be

applied to the facts of this case. Defendants argue that

Congress’s vague use of the “facility” sets few if any limits

on the statute’s reach. Defendants note that there are no

congressional findings that a hate crime victim’s use of a

street affects interstate commerce. Defendants also maintain
UNITED STATES V. CAZARES 67

that there is ambiguity with respect to the definition of

“facility” and that the rule of lenity thus requires interpreting

the statute as being inapplicable to the facts of the case at

hand. No court, however, has accepted these arguments.

In rejecting arguments similar to those made by the

defendants in this case, the Second Circuit presented the

following persuasive discussion of a street being included in

the term “facility”:

Defendants’ suggestions to the contrary

notwithstanding, the term “facility” clearly

and unambiguously includes city streets

within its meaning. A “facility” is

“something that promotes the ease of any

action, operation, transaction, or course of

conduct” or “something (as a hospital,

machinery, plumbing) that is built,

constructed, installed or established to

perform some particular function or facilitate

some particular end.” Webster’s Third

International Dictionary 812–13 (1966). And

a city street undoubtedly “promotes the ease

of” travel and transportation within the city

and is “built” and “constructed” to “perform

[the] function [and] facilitate [the] end” of

such travel and transportation. It therefore

unambiguously falls within the clear meaning

of the text of § 245(b)(2)(B).

United States v. Nelson, 277 F.3d 164, 193 (2d Cir. 2002)

(alterations in original); see also United States v. Mungia,

114 F.3d 1181 (5th Cir. 1997) (per curiam) (streets and

sidewalks qualify as facilities under 18 U.S.C.
68 UNITED STATES V. CAZARES

§ 245(b)(2)(B)); United States v. Three Juveniles, 886 F.

Supp. 934, 944 (D. Mass.1995) (same). Defendants fail to

provide a convincing argument that the street was not a

facility under § 245(b)(2)(B). Section 245(b)(2)(B) is

constitutional as applied to this case, and there was no error

in declining to dismiss Count Two of the Second Superseding

Indictment.

X.

WHETHER THERE WERE CUMULATIVE ERRORS

AT TRIAL WHICH DEPRIVED DEFENDANTS OF

THEIR FIFTH AMENDMENT DUE PROCESS

RIGHTS TO A FAIR TRIAL

There are some cases where the cumulative effect of

multiple errors may so prejudice a defendant as to require

reversal, even though no single trial error examined in

isolation is sufficiently prejudicial to warrant reversal. Relief

from the effects of cumulative error is appropriate in those

cases where government’s case is weak and a defendant is

more likely to be prejudiced by the effect of cumulative

errors. See United States v. Frederick, 78 F.3d 1370, 1381

(9th Cir. 1996). The government did not present a weak case

in the case at hand. The overall effect of any errors that were

committed do not violate the Defendants’ Due Process rights

to a fair trial.

AFFIRMED.