United States v. Cazares

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 06-50677
Plaintiff-Appellee,
D.C. No.
v. CR-04-00415-PA
-04
FERNANDO CAZARES, AKA
SNEAKY,
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 06-50678
Plaintiff-Appellee,
D.C. No.
v. CR-04-00415-PA
-02
GILBERT SALDANA,
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 06-50679
Plaintiff-Appellee,
D.C. No.
v. CR-04-00415-PA
-01
ALEJANDRO MARTINEZ,
Defendant-Appellant.
2 UNITED STATES V. CAZARES

UNITED STATES OF AMERICA, No. 07-50037
Plaintiff-Appellee,
D.C. No.
v. CR-04-00415-PA
-05
PORFIRIO AVILA, AKA Dreamer,
Defendant-Appellant. 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 African-
American 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 by testimony, 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 Defendant-
Appellant 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 Kurry Wilson,
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 African-
American 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 three-
and-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: “I think 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 Press-
Enterprise 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 necessary here 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
their Confrontation 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 hierarchy of 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 relevancy objection, 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 identify Avenues 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 gang members’ 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 only way Audelo 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
determining whether 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 claim that the district court improperly limited
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
they were 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 of foundation
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 of forensic 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 methodology is widely accepted
 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.