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Media Alerts - United States v. Hector Soto-Zuniga - Ninth Circuit
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November 4, 2016
  United States v. Hector Soto-Zuniga - Ninth Circuit
Headline: The Ninth Circuit panel held that the district court abused its discretion by denying defendant pretrial discovery of the arrest and search statistics of the San Clemente Border Patrol checkpoint to prove that the checkpoint is unconstitutional because its primary purpose is to detect evidence of drug trafficking, rather than to control immigration, and

Areas of Law: Criminal Law, Fourth Amendment, Criminal Procedure, Pre-Trial Discovery

Issues Presented: Whether the district court abused its discretion in denying defendant's discovery motion for San Clemente's checkpoint search and arrest statistics in order to determine the constitutionality of the checkpoint which turns on whether its "primary purpose" is to control immigration or rather to interdict drug trafficking and other "ordinary criminal wrongdoing."

Whether the district court erred in its finding that defendant's discovery request for the government's investigation into Christian Rios Campos' drug smuggling operation was not material to his defense and was therefore not discoverable.

Whether the district court erred in denying defendant's motion to suppress the drug evidence on the basis that the Border Patrol agents lacked probable cause to search defendant's car.

Whether the district court erred in instructing the jury, using the Ninth Circuit pattern jury instructions, that "[a] reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation" because this phrasing interferes with the presumption of innocence.

Whether defendant's knowledge of drug type and quantity is an element of possession with intent to distribute in violation of 21 U.S.C § 841.

Significance: Border Patrol checkpoints have long been a clear exception to the Fourth Amendment prohibition of unreasonable searches and seizures. However, the Supreme Court emphasized, in City of Indianapolis v. Edmond, that it had never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing as opposed to policing the border or ensuring roadway safety. Here, the Ninth Circuit panel affirmed that the primary purpose of border patrol checkpoints should be to control immigration and not to interdict drug trafficking and, therefore, defendant has the right to discover the checkpoint's arrest statistics.

Brief Summary: Hector Soto-Zuniga ("Soto-Zuniga") was arrested at a Border Control checkpoint in San Clemente, California after Border Patrol agents found 2.9 kilograms of methamphetamine on the floor of Soto-Zuniga's car during a search. On a defense motion to suppress drug evidence seized from defendant's car at the checkpoint, Soto-Zuniga argued that the San Clemente checkpoint was unconstitutional and requested discovery of the checkpoint's arrest and search statistics. The district court denied Soto-Zuniga's motions to suppress.

Soto-Zuniga testified that, prior to being stopped at the San Clemente checkpoint, he gave a ride to three teenagers whom he did not know as a favor to his cousin's husband, Christian Rios Campos ("Rios"). The government stipulated that Rios was a drug smuggler who was known to recruit juveniles to smuggle drugs into the United States, which was significant to Soto-Zuniga's defense that the teenagers had planted the drugs in his car without Soto-Zuniga's knowledge. Soto-Zuniga moved to discover the government's investigation into Rios's drug smuggling operation on grounds that such discovery might identify the three teenagers. The district court denied Soto-Zuniga's motion and Soto-Zuniga was convicted and sentenced to six years in prison.

On appeal, the Ninth Circuit panel held that: (1) the district court abused its discretion by denying Soto-Zuniga's discovery request for the search and arrest statistics of the San Clemente border checkpoint, concluding that discovery of the checkpoint's search and arrest statistics was pertinent to the issue whether the checkpoint was unconstitutional under the Fourth Amendment because its primary purpose was to advance the general interest in crime control rather than to control immigration; and (2) the district court abused its discretion by finding that the documents gathered during the government's investigation into Rios's drug smuggling operation were not material to the defense and were, therefore, not discoverable because they were inadmissible evidence. The panel concluded that there exists a likelihood that discovery of these documents would have identified the teenagers and changed the outcome of the trial.

Extended Summary: Appellant Hector Soto-Zuniga ("Soto-Zuniga") was arrested at a Border Control checkpoint in San Clemente, California after Border Patrol agents found 2.9 kilograms of methamphetamine on the floor of Soto-Zuniga's car during a search. Soto-Zuniga was charged with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Before trial, Soto-Zuniga filed a motion to suppress the drugs seized from his car on grounds that they were the fruits of an unlawful search and seizure because the Border Patrol agents at the San Clemente checkpoint lacked probable cause to detain him and search his car. In an unsuccessful attempt to support his motion to suppress, Soto-Zuniga also filed a motion which sought discovery of statistics relating to the number and types of arrests and vehicle searches at the San Clemente checkpoint.

The district court held an evidentiary hearing on Soto-Zuniga's pretrial motions during which Border Patrol Agent Rabreau ("Rabreau") testified that the primary purpose of the San Clemente checkpoint was immigration inspection and that ninety percent of the arrests made were related to immigration. Rabreau further testified as to the events that led to Soto-Zuniga's arrest including that the smell of marijuana coming from Soto-Zuniga's car was the reason Border Patrol Agent Favela ("Favela") initially sent Soto-Zuniga to secondary inspection at the San Clemente checkpoint.

Notwithstanding Soto-Zuniga's sworn declaration and testimony that Soto-Zuniga had not smoked marijuana in more than five years, the district court denied defendant's motions to suppress and compel discovery on grounds that: (1) the sequence of events in the Border Patrol Agents' reports were consistent; (2) there was probable cause based on several factors, including the smell of marijuana, Soto-Zuniga's reported nervousness, the air fresheners, the loose tobacco, the cigarillo wrappers, and Agent Rodgers's report that Soto-Zuniga admitted to him that he had smoked marijuana in the car; (3) while Agent Rabreau was the only agent who claimed to smell the marijuana, other agents reported that Agent Rabreau had told them he smelled marijuana at the scene so it was not "a post-arrest revelation; and (4) Rabreau's testimony was sufficient to lead the district court conclude that the San Clemente checkpoint's primary purpose was immigration.

During the first trial, Soto-Zuniga sought specific jury instructions that differed from the Ninth Circuit pattern jury instructions on reasonable doubt. The district court rejected defendant's jury instructions in favor of the pattern jury instructions. Soto-Zuniga's first trial resulted in a mistrial because the jury was unable to reach a unanimous verdict.

Before the second trial, Soto-Zuniga requested discovery of the government's investigation of Rios and Marisol Diaz ("Diaz"), including any relevant information regarding the three teenagers who were arrested for trafficking drugs at Rios's command. The district court denied defendant's motion to compel discovery on grounds that the evidence was: (1) collateral, (2) irrelevant, and (3) predominately inadmissible in their current form. The district court further ruled that the requested discovery would extend the litigation and present a Fed. R. Civ. P. 403 problem as well. Following the end of the second trial, the jury was instructed with the same jury instructions used in the first trial and the jury returned a guilty verdict.

The Ninth Circuit panel reviewed the district court's discovery rulings for abuse of discretion. To reverse Soto-Zuniga's conviction, the panel must find that the district court abused its discretion in denying Soto-Zuniga's discovery motions and that the error resulted in prejudice to Soto-Zuniga's substantial rights (i.e., that there was "a likelihood that the verdict would have been different had the government complied with the discovery rules").

The first issue on appeal was whether the district court abused its discretion by denying defendant's motion for discovery of the San Clemente checkpoint's search and arrest statistics. The panel held that the district court abused its discretion because this information could have revealed an unconstitutional seizure and lead to the suppression of the evidence of illicit drugs that were found in appellant's car.

The panel acknowledged that, while a search or seizure is unreasonable unless it rests on individualized suspicion of wrongdoing, there is an exception for checkpoint seizures that serve "special needs beyond the normal need for law enforcement" (see City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2006), provided that the purpose of the checkpoint was actually immigration control; (see United States v. Martinez-Fuerte, 428 U.S. 543, 556-64 (1976) (holding that immigration control is a valid purpose for stopping cars and posing questions without individualized suspicion)).

Because the primary purpose of checkpoints should not be to advance the general interest in crime control, the constitutionality of the San Clemente checkpoint turns on whether its "primary purpose" is either to control immigration or to interdict drug trafficking and other "ordinary criminal wrongdoing." Edmond, 531 U.S. at 41. If the checkpoint's primary purpose is to further the general interest in crime control, the checkpoint is per se invalid under the Fourth Amendment and evidence recovered from the illegal search must be excluded as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

Accordingly, the Ninth Circuit panel held that, "[w]hether the primary purpose of the checkpoint has evolved from controlling immigration to detecting 'ordinary criminal wrongdoing,' is a question that is subject to discovery under Rule 16" and Soto-Zuniga should not have to rely solely on the government's word that further discovery is unnecessary. Therefore, defendant has a right to discover the statistics of the number and type of arrests and vehicle searches at the San Clemente checkpoint on grounds that such evidence would have provided Soto-Zuniga with the opportunity to support his declaration that the checkpoint was used as a pretext to search for controlled substances rather than to control illegal immigration.

Since the records in question were not available to the Ninth Circuit panel, it could not determine the likelihood whether Soto-Zuniga's case would have had a different outcome had discovery been permitted. Thus, the panel reversed the district court's denial of the motion to compel discovery of the San Clemente checkpoint's arrest statistics and remanded to the district court to assess the constitutionality of the San Clemente checkpoint in further proceedings.

The second issue on appeal was whether the district court abused its discretion by denying Soto-Zuniga's motion requesting discovery of the government's investigation into Rios's drug smuggling operation. The panel held that the district court abused its discretion in concluding that the documents were irrelevant, inadmissible because they relied on hearsay, and that the requested discovery would unnecessarily extend the litigation in violation of Fed. R. Evid. 403. Adopting a broad interpretation of Rule 16(a) (1) (E) that entitled Soto-Zuniga to discover documents that are "material to preparing the defense," the panel explained that "[t]he test is not whether the discovery is admissible at trial, but whether the discovery may assist Soto-Zuniga in formulating a defense, including leading to admissible evidence." The panel concluded that the district court erred by finding that the documents were not material to the defense because they were not admissible since they would either corroborate or contradict Soto-Zuniga's defense that one or more of the teenagers placed the drugs in Soto-Zuniga's car without his knowledge. The panel therefore reversed the district court's denial of Soto-Zuniga's discovery motion, vacated the conviction and remanded with instructions to grant the motion.

The third issue on appeal was whether the district court erred in denying Soto-Zuniga's motion to suppress the drug evidence on the basis that the Border Patrol Agents lacked probable cause to search the car. The panel asserted that certainty is not required to support a search or seizure, but only probable cause based on a totality of the circumstances that a search may yield evidence of a crime: "Probable cause exists if there is a fair probability that contraband or evidence of a crime will be found in a particular place based on a totality of the circumstances." The panel held that, based on Soto-Zuniga's nervousness, agitation, and at least one agent's report that Soto-Zuniga had been smoking marijuana and saw marijuana paraphernalia in the car, "the district court's account of the evidence is plausible and that the totality of the circumstances supported probable cause for the search."

The fourth issue on appeal was whether the district court erred by instructing the jury using the Ninth Circuit pattern jury instructions, which stated that "[a] reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation." Soto-Zuniga contended that this phrasing interfered with the presumption of innocence. Finding that the Ninth Circuit has repeatedly upheld the use of the Ninth Circuit model jury instruction on reasonable doubt, the panel affirmed the district court's use of the Ninth Circuit's pattern jury instructions.

The fifth and final issue on appeal was Soto-Zuniga's contention that knowledge of the drug type and quantity is an element of possession with intent to distribute in violation of 21 U.S.C § 841. Rejecting this argument, the panel, citing United States v. Jefferson, 791 F.3d 1013, 1016 (9th Cir. 2015), held that the intent element only requires that Soto-Zuniga acted knowingly or intentionally, not that the he knew exactly the quantity and type of drugs he was transporting.

The panel vacated Soto-Zuniga's conviction and remanded the case for a new trial.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/16/14-50529.pdf

Panel: Before: Alex Kozinski, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

Argument Date: Argued and Submitted May 5, 2016

Date of Issued Opinion: September 16, 2016

Docket Number: 14-50529

Decided: Conviction vacated, discovery rulings reversed, and remanded with instructions.

Counsel: Paul Allen Barr (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Appellant-Appellant.

Kyle B. Martin (argued), Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Author of Opinion: Judge Ronald M. Gould

Case Alert Author: Prianca Murthi

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/04/2016 02:55 PM     9th Circuit  

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