United States v. Pineda-Doval

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-10240
Plaintiff-Appellee, D.C. No.
v.  2:06-cr-00778-
ADAN PINEDA-DOVAL, SMM-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding

Argued and Submitted
November 2, 2009—San Francisco, California

Filed August 10, 2010

Before: Betty B. Fletcher, William C. Canby, Jr., and
Susan P. Graber, Circuit Judges.

Opinion by Judge B. Fletcher

11303
11308 UNITED STATES v. PINEDA-DOVAL
COUNSEL

Jon M. Sands, Federal Public Defender, and Daniel L.
Kaplan, Assistant Federal Public Defender, Phoenix, Arizona,
for the defendant-appellant.

Diane J. Humetewa, United States Attorney, District of Ari-
zona; John R. Lopez IV, Deputy Appellate Chief; Joseph
Koehler, Raymond K. Woo, Dominic Lanza, Assistant United
States Attorneys, Phoenix, Arizona, for the plaintiff-appellee.

OPINION

B. FLETCHER, Circuit Judge:

Adan Pineda-Doval was convicted, after a seven-day jury
trial, on ten counts of transportation of illegal aliens resulting
in death, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv). The dis-
trict court sentenced him to a term of life imprisonment on
each count, sentences to be served concurrently. On appeal,
Pineda-Doval challenges his convictions, primarily on the
basis that the jury should have been instructed that it could
find the defendant guilty only if his conduct was the proxi-
mate cause of the ten charged deaths. In addition, he argues
that his conviction should be vacated because of improper
jury instructions regarding the lesser included offense of
transportation of illegal aliens, incorrect evidentiary rulings,
and prosecutorial misconduct at closing arguments. Finally,
Pineda-Doval challenges his sentence; he argues that the dis-
trict court did not find that he acted with malice aforethought
and therefore should not have calculated his recommended
Guidelines sentence using the second-degree murder guide-
line, and also that the district court should have applied the
heightened “clear and convincing” standard of proof at sen-
tencing. We affirm Pineda-Doval’s conviction, vacate his sen-
tence, and remand for re-sentencing.
 UNITED STATES v. PINEDA-DOVAL 11309
I.

Early in the morning on August 7, 2008, Pineda-Doval
loaded twenty men, women, and children into a Chevrolet
Suburban. The car was not equipped with rear seats or safety
belts. All of his passengers were illegal aliens. Eighteen of
them crowded into the back of the Suburban, and two preg-
nant women sat in the front seat next to Pineda-Doval, the
driver.

Customs and Border Patrol (“CBP”) Agent Corey Lindsay
was driving south on Red Cloud Mine Road, a remote dirt
road in southern Arizona that is believed by Border Patrol to
be popular with alien smugglers. He passed Pineda-Doval,
who was driving in the opposite direction, and saw that the
Suburban was crowded with passengers. Agent Lindsay
radioed for assistance and turned his car around to follow
Pineda-Doval. The defendant quickly realized that he was
being pursued, made a U-turn, and started driving towards
Mexico. Agent Lindsay did the same. Though Pineda-Doval
was forced to drive slowly because of the state of the road and
weight of his car, he tried to lose Agent Lindsay several times
by hitting the brakes or attempting to pull into the brush.
Some passengers grew frightened and yelled at the defendant
to stop. He refused.

Pineda-Doval then turned left onto the paved, two-lane
Martinez Lake Road. Heading east, he accelerated to about
50-55 miles per hour, occasionally reaching speeds of about
70 miles per hour. Agent Lindsay continued to trail him.

Meanwhile, Agent Clinton Russell responded to Agent
Lindsay’s request for assistance and drove west on Martinez
Lake Road, heading in the direction of the defendant and
Agent Lindsay. He carried with him a controlled tire deflation
device (“CTDD”), also called a “spike strip.” A CTDD is a
tool used by Border Patrol to stop fleeing vehicles. It consists
of a series of x-shaped plastic links that, when expanded, can
11310 UNITED STATES v. PINEDA-DOVAL
cover one lane of traffic. Hollow tubes are embedded along
the plastic strip. When a vehicle drives over an expanded
CTDD, the hollow tubes pierce the tires, causing air to gradu-
ally escape, disabling the vehicle.

Agent Russell had never used a CTDD before. Between
them, Agents Russell and Lindsay had witnessed over 100
CTDD deployments, many of them involving SUVs that were
overloaded with passengers. Neither of them had ever seen a
spiked vehicle roll over. Pineda-Doval had twice before been
the target of a spike strip. On both occasions he had been
transporting illegal aliens. The first time he managed to
swerve around the CTDD, but the next time he was success-
fully stopped and apprehended by Border Patrol.

Agent Russell stopped at a point on Martinez Lake Road
where the road was relatively flat and there was little traffic.
He placed the collapsed CTDD on one side of the road and
hid in the brush on the opposite side of the road, ready to pull
the CTDD across the pavement when Pineda-Doval
approached. Agent Russell radioed Agent Lindsay and
advised him of the location of the spike strip. About one and
a half miles from Agent Russell’s location, when Pineda-
Doval was traveling about 45 miles per hour, Agent Lindsay
turned on his vehicle’s lights and siren. When Pineda-Doval
did not yield, Agent Lindsay told Agent Russell to deploy the
spike strip.

Agent Russell waited until the Suburban was approxi-
mately 80 to 100 feet away and then yanked the spike strip
across the road. Pineda-Doval shouted to his passengers,
“Commend yourselves to God, because we are being pur-
sued.” He swerved across the westbound lane of traffic and
onto the dirt shoulder, trying to drive around the CTDD, but
it caught his right rear tire. He immediately swerved back
onto the paved road. The weight of his unsecured passengers
suddenly shifted, and the front edge of the Suburban “tripped”
into the asphalt. Passengers were thrown from the Suburban
 UNITED STATES v. PINEDA-DOVAL 11311
as it rolled once on its side and then once more end-to-end,
finally coming to rest right side up but facing the wrong direc-
tion. Five passengers died at the scene, and five more died at
hospitals as a result of injuries sustained in the crash.

Pineda-Doval was charged with ten counts of transportation
of illegal aliens resulting in death, 8 U.S.C.
§ 1324(a)(1)(A)(ii), (a)(1)(B)(iv), one count of transportation
of illegal aliens placing in jeopardy the life of any person, 8
U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iii), and one count of
reentry after deportation, 8 U.S.C. § 1326(a).

Before trial, the government submitted a motion in limine
to bar Pineda-Doval from offering evidence that the Border
Patrol agents had not complied with CBP policies for deploy-
ing spike strips. Over the defendant’s objection, the district
court granted the motion, concluding that such evidence was
irrelevant.

The trial lasted seven days. The Government called the
agents involved in the pursuit of Pineda-Doval, the immigra-
tion officer who interviewed Pineda-Doval after the crash,
two of the Suburban’s passengers, and an expert in car acci-
dent reconstruction. At the end of the Government’s case,
Pineda-Doval’s counsel renewed his request to submit evi-
dence of CBP policies on CTDDs. The court again refused.
Defense counsel rested, explaining that he had no evidence
because of the court’s ruling. The jury deliberated for about
an hour and a half before finding the defendant guilty on all
counts. The district court sentenced Pineda-Doval to life
imprisonment on each of the ten counts of transportation of
illegal aliens resulting in death, sentences to run concurrently.

Pineda-Doval now appeals his conviction and sentence.

II.

Pineda-Doval argues that his conviction must be vacated
because the jury instructions did not require the jury to find
11312 UNITED STATES v. PINEDA-DOVAL
that his transportation was the proximate cause of the deaths
of his ten passengers. “A proximate cause is one which played
a substantial part in bringing about the death, so that the death
was the direct result or a reasonably probable consequence of
the defendant’s speed or condition or manner of driving.”
United States v. Main, 113 F.3d 1046, 1050 (9th Cir. 1997).

[1] The defendant was charged and convicted of violating
8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv), which has five ele-
ments: The defendant must have (1) known or been in reck-
less disregard of the fact that the person he was transporting
was (2) an alien who was (3) in the United States illegally; (4)
the defendant must have transported the alien in order to help
him or her enter or remain in the United States illegally; and
(5) the defendant’s transportation must have resulted in the
death of some person. With respect to the final element, the
district court instructed the jury as follows:

As used in these instructions and the form of the ver-
dict, “resulted in death” means that the death of a
person occurred in the course of the transportation of
an illegal alien and was related to the transportation
of an illegal alien. You must find that during the
course of the transportation the defendant exposed
individuals to one or more life-threatening condi-
tions and the life-threatening condition(s) was a
cause in the deaths of those named in the enumer-
ated counts of the indictment.

(Emphasis added.)1
1
Pineda-Doval contends that the words “You must find” in the quoted
passage amounted to a directed verdict of guilty. This argument is merit-
less. In light of the instructions as a whole, Johnson v. Texas, 509 U.S.
350, 368 (1993), the jurors clearly would have understood this instruction
to be a statement of the facts that they “must find” in order to return a
guilty verdict.
 UNITED STATES v. PINEDA-DOVAL 11313
Pineda-Doval argues that this definition of “resulting in
death” misstated the law because the instructions should have
required the Government to prove that “the defendant
exposed” his passengers to life-threatening conditions and
that his transportation was the proximate cause of the ten
deaths.

a. Standard of Review

As a threshold matter, we consider whether this argument
was properly preserved. Generally, “[w]e review de novo
whether the jury instructions accurately define the elements of
a statutory offense.” United States v. Hicks, 217 F.3d 1038,
1045 (9th Cir. 2000) (citing United States v. Gergen, 172 F.3d
719, 724 (9th Cir. 1999); United States v. Iverson, 162 F.3d
1015, 1022 (9th Cir. 1998)). However, when the defendant
makes no objection to the jury instructions at the time of trial,
review is only for plain error. See Jones v. United States, 527
U.S. 373, 388 (1999). A party must state the specific grounds
for his or her objection. Fed. R. Crim. P. 30(d); Jones, 527
U.S. at 387. Making a non-specific objection and then offer-
ing an alternative instruction is sufficient only if it is clear
from the record that the district court was aware of the rea-
sons for the defendant’s objection. See Gulliford v. Pierce
County, 136 F.3d 1345, 1349 & n.5 (9th Cir. 1998).2

Defense counsel did object to the “resulting in death”
instructions, but he did not specifically state on the record that
the instructions were inadequate because they did not require
the jury to find proximate cause. Counsel instead argued that
the instructions on causation were incorrect because they
2
Arguably, an objection might not be required in this case. See United
States v. Houston, 406 F.3d 1121, 1123 n.3 (9th Cir. 2005) (considering
whether 21 U.S.C. § 841(b)(1)(C) contains a proximate cause requirement,
“[a]lthough the Government did not object to the district court’s jury
instruction below, . . . because we believe that answering this purely legal
question is necessary to fairly resolve this appeal” (citing United States v.
Patrin, 575 F.2d 708, 712 (9th Cir. 1978))).
11314 UNITED STATES v. PINEDA-DOVAL
made the defendant liable if he merely “allowed [his passen-
gers] to be around some sort of conditions that were life
threatening,” and that the instructions should be “more
strong” and include an “element of culpability.” Rather than
the “defendant exposed” language, he proposed the following
instruction: “You must find that during the course of the
transportation . . . the defendant created one or more life-
threatening conditions and the death was caused by these con-
ditions” (emphasis added). The Government disagreed, argu-
ing that the “defendant created” instruction was incorrect
because it did not cover the situation where ten passengers
died even though the defendant had not overloaded the Subur-
ban, the passengers were safely seated and belted, and the
defendant had driven slowly and obeyed all traffic laws. In
other words, the “defendant exposed” language was correct
because it required the jury to find Pineda-Doval guilty under
§ 1324(a)(1)(B)(iv) if his conduct was the but-for cause of the
charged deaths, no matter how unlikely those deaths were.
The district court agreed with the Government and overruled
Pineda-Doval’s objection.

While defense counsel’s objection could have been clearer,
it was sufficient to preserve the issue of whether
§ 1324(a)(1)(B)(iv) contains a proximate cause requirement.
Defense counsel did not use the words “proximate cause”
before the district court, but he did clearly argue that the stat-
ute requires a closer causal connection than that contemplated
by the Government’s “defendant exposed” language. The dis-
trict court understood that the Government’s language
required only but-for causation, and that the defendant’s posi-
tion was that the statute required more. Because Pineda-
Doval’s objection was specific enough to “bring into focus
the precise nature of the alleged error,” Palmer v. Hoffman,
318 U.S. 109, 119 (1943), review is de novo.

b. Proximate Cause

The district court relied on United States v. Matus-Leva,
311 F.3d 1214 (9th Cir. 2002), for its definition of “resulting
 UNITED STATES v. PINEDA-DOVAL 11315
in death.” This court in Matus-Leva considered the question
of whether § 1324(a)(1)(B)(iv) has a mens rea requirement.
We held that a defendant need not have intended his conduct
to have “resulted in death” to be guilty under
§ 1324(a)(1)(B)(iv). Id. at 1219. Rather, the defendant need
only have been aware that he was engaging in conduct that
allowed others “to be exposed to life-threatening conditions
during the smuggling process.” Id. (emphasis added). The
issue in Matus-Leva was mental state, not causation. To
answer the question of whether § 1324(a)(1)(B)(iv) requires
only but-for causation or also proximate causation, we must
look elsewhere.

[2] A “basic tenet of criminal law” is that, when a criminal
statute requires that the defendant’s conduct has resulted in an
injury, “the government must prove that the defendant’s con-
duct was the legal or proximate cause of the resulting injury.”
United States v. Spinney, 795 F.2d 1410, 1415 (9th Cir. 1986).
In Spinney, the defendant was convicted of conspiracy to
commit simple assault and fined for being convicted of a
“misdemeanor resulting in death.” 18 U.S.C. § 3623(a)(4)
(Supp. II 1985) (current version at 18 U.S.C. § 3571(b)(4)).
Spinney and a friend intended to scare the victim, but things
“got out of hand” and his co-conspirator shot and killed the
victim. Spinney, 795 F.2d at 1413. The defendant argued that
he was not guilty because his co-conspirator’s actions consti-
tuted a superseding cause of the victim’s death. Id. at 1415.
This court agreed that the statute required the Government to
prove proximate cause, but affirmed the defendant’s convic-
tion because the victim’s death was an “entirely foreseeable”
result of the conspiracy. Id. at 1416. Pineda-Doval argues
that, just as the offense “misdemeanor resulting in death”
includes a proximate cause requirement, so too should “trans-
portation of illegal aliens resulting in death.”

The decision in Spinney has been followed, most notably in
United States v. Main, 113 F.3d 1046 (9th Cir. 1997).3 In
3
See also United States v. Mendoza, 244 F.3d 1037, 1045 & n.4 (9th
Cir. 2001) (assuming without deciding that 18 U.S.C. § 32(6), which
11316 UNITED STATES v. PINEDA-DOVAL
Main, the court held that the involuntary manslaughter statute,
18 U.S.C. § 1112, required the “prosecution [to] prove that
the defendant’s act or omission was the proximate cause of
the death of the victim.” Id. at 1050. Other circuits have
employed the reasoning of Spinney and have interpreted “re-
sulting in death” statutory language as implying proximate
cause,4 although none has looked specifically at
§ 1324(a)(1)(B)(iv).

criminalizes acts of violence that endanger the safety of an aircraft in
flight, requires that the defendant’s conduct be the proximate cause of the
endangerment); United States v. Hicks, 217 F.3d 1038, 1048-49 (9th Cir.
2000) (interpreting the phrase “resulted from” in United States Sentencing
Guidelines (“U.S.S.G.”) § 1B1.3(a)(3) as requiring that the harm have
been caused directly or flowed naturally from the defendant’s conduct);
United States v. Hanousek, 176 F.3d 1116, 1124 (9th Cir. 1999) (interpret-
ing 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3), portions of the Clean
Water Act criminalizing the negligent discharge of pollutants into the nav-
igable waters of the United States, to require that the defendant’s conduct
be the proximate cause of the discharge).
4
See United States v. Martinez, 588 F.3d 301, 318-19 (6th Cir. 2009)
(holding that 18 U.S.C. § 1347(a), which provides for an enhanced sen-
tence if a health care fraud “results in death,” requires proximate cause);
United States v. Montgomery, 550 F.3d 1229, 1235-36 (10th Cir. 2008)
(holding that U.S.S.G. § 5K2.1, which calls for an upwards departure “[i]f
death resulted,” applies if the defendant should have foreseen that his con-
duct could result in death); United States v. Diaz, 285 F.3d 92, 100-01 (1st
Cir. 2002) (same); United States v. Fortier, 242 F.3d 1224, 1232-33 (10th
Cir. 2001) (“We have interpreted the words ‘resulted from’ in the Guide-
lines as permitting an increased sentence for harms that were a reasonably
foreseeable consequence of a defendant’s conduct. . . .” (some internal
quotation marks omitted)), superseded by statute on other grounds, PRO-
TECT Act of 2003, Pub. L. No. 108-21, 117 Stat. 650, 670-71; United
States v. Harris, 701 F.2d 1095, 1101 (4th Cir. 1983) (“[T]he phrase ‘if
death results’ [in 18 U.S.C. § 242] requires only that the death ensued as
a proximate result . . . .” (internal quotation marks omitted)); United States
v. Marler, 756 F.2d 206, 215-16 (1st Cir. 1985) (same); United States v.
Hayes, 589 F.2d 811, 820-21 (5th Cir. 1979) (same); United States v.
Guillette, 547 F.2d 743, 749 (2d Cir. 1976) (“We find the principle of
proximate cause embodied in [18 U.S.C.] § 241 through the phrase ‘if
death results.’ ”).
 UNITED STATES v. PINEDA-DOVAL 11317
[3] We presume that the Government must prove proxi-
mate cause whenever the charged offense requires a certain
result. This presumption can be rebutted. In United States v.
Houston, 406 F.3d 1121 (9th Cir. 2005), this court held that
“if death results” statutory language did not imply proximate
cause. The defendant was convicted of “knowingly or inten-
tionally . . . distribut[ing] . . . a controlled substance” under
21 U.S.C. § 841(a)(1). Id. at 1122. Section 841(b)(1)(C) pro-
vides that a 20-year minimum sentence applies “if death . . .
results from the use of such substance.” Id. The court distin-
guished Main:

Although we noted in United States v. Main that “[a]
basic tenet of criminal law is that the government
must prove that the defendant’s conduct was the
legal or proximate cause of the resulting injury[,]” it
was important in Main that proximate cause was
“implicit in the common understanding of the crime”
at issue (involuntary manslaughter).

Houston, 406 F.3d at 1123 (internal citations omitted) (alter-
ation in Houston). The court found that proximate cause is not
commonly understood to be an element of the drug trafficking
crimes defined in § 841(a)(1) and accordingly declined to
read such a requirement into the statute. Id. Except for the
Seventh Circuit, all other courts of appeals that have
addressed this question have agreed with Houston. See United
States v. De La Cruz, 514 F.3d 121, 137 (1st Cir. 2008) (col-
lecting cases), cert. denied, 129 S. Ct. 2858 (2009). But see
United States v. Hatfield, 591 F.3d 945, 950-51 (7th Cir.
2010) (criticizing the reasoning of Houston).

Sentencing factors applicable to drug crimes seem to be the
exception to the rule that the Government prove proximate
cause when the charging statute calls for a certain result, as
well as the related rule that the Government prove that the
defendant intended the conduct that the statute prohibits. In
such cases, “[i]t is by no means unusual to peg the sentence
11318 UNITED STATES v. PINEDA-DOVAL
to factors that were not known — or even foreseeable — to
the defendant at the time the crime was committed.” United
States v. Velasquez, 28 F.3d 2, 5 (2d Cir. 1994). For example,
the minimum and maximum authorized sentences vary
depending on the amount of drugs distributed, 21 U.S.C.
§ 841(b)(1), and “a defendant is responsible for the total
amount of drugs in his own possession, regardless of whether
the amount was foreseeable,” United States v. Mesa-Farias,
53 F.3d 258, 259 (9th Cir. 1995). A defendant who sells drugs
within 1000 feet of a school is subject to twice the maximum
penalties for drug distribution, even if he did not know or
could not have foreseen that he was within the proscribed dis-
tance. United States v. Pitts, 908 F.2d 458, 461 (9th Cir.
1990) (discussing 21 U.S.C. § 860(a)). The same is true for
defendants who employ a minor in drug trafficking; the maxi-
mum authorized sentence is doubled regardless of whether the
defendant knew or could have foreseen that the person under
his employ was a minor. United States v. Valencia-Roldan,
893 F.2d 1080, 1083 (9th Cir. 1990) (discussing 21 U.S.C.
§ 859b, now codified at 21 U.S.C. § 861). A 10-year mini-
mum sentence applies if a firearm is discharged during the
commission of a drug trafficking crime. 21 U.S.C.
§ 924(c)(1)(A)(iii). The defendant need not have intended or
have been able to foresee that the gun would go off. See Dean
v. United States, 129 S. Ct. 1849, 1855-56 (2009). Given the
prevailing sense in the courts that drug trafficking is a “strict
liability” offense, United States v. Soler, 275 F.3d 146, 152
(1st Cir. 2002), the decision in Houston is unsurprising.

[4] Unlike in Houston, there is no reason why the general
rule that the Government must prove proximate cause should
not apply to 8 U.S.C. § 1324(a)(1)(A)(ii) & (a)(1)(B)(iv), or
why we should depart from Spinney and Main. Therefore, we
hold that a defendant may be found guilty of transportation of
illegal aliens resulting in death only if the Government proves
beyond a reasonable doubt that the defendant’s conduct was
the proximate cause of the charged deaths.
 UNITED STATES v. PINEDA-DOVAL 11319
c. Harmless Error

The district court’s failure to instruct the jury on the proxi-
mate cause element of “resulting in death” is harmless “if we
conclude that it is ‘clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the
error.’ ” United States v. Gracidas-Ulibarry, 231 F.3d 1188,
1197 (9th Cir. 2000) (en banc) (quoting Neder v. United
States, 527 U.S. 1, 18 (1999)); see also United States v. Smith,
561 F.3d 934, 941 (9th Cir.) (en banc), cert. denied, 130 S.
Ct. 445 (2009). Although Pineda-Doval is correct that the dis-
trict court should have asked the jury to determine whether his
driving was the proximate cause of the deaths of ten of his
passengers, the district court’s error was harmless beyond a
reasonable doubt.

[5] Generally, “[t]o prove proximate cause, the govern-
ment must establish that the harm was a foreseeable result of
the conduct.” Hanousek, 176 F.3d at 1123 (citing Main, 113
F.3d at 1049). Proximate cause is drawn more broadly when
the intervening action was not a coincidence or unrelated to
the defendant’s prior conduct, but rather was a response to
that conduct. “Foreseeability is required as to the former, but
in the latter instance the question is whether the intervening
act was abnormal—that is, whether, looking at the matter with
hindsight, it seems extraordinary.” 2 Wayne R. LaFave, Sub-
stantive Criminal Law § 14.5(d), at 453 (2d ed. 2003); see
also People v. Schmies, 51 Cal. Rptr. 2d 185, 194 (Ct. App.
1996) (holding that officers’ conduct was in response to
defendant’s fleeing the scene, therefore officers’ conduct con-
stituted a superseding cause only if it was “unusual, abnormal,
or extraordinary”). The Border Patrol agents deployed the
CTDD in response to Pineda-Doval’s illegal actions, therefore
the question here is whether the actions of the Border Patrol
were extraordinary. At trial, the Government should have
been required to prove that “ ‘any variation between the result
intended [by Pineda-Doval] and the result actually achieved
[was] not so extraordinary that it would be unfair to hold the
11320 UNITED STATES v. PINEDA-DOVAL
defendant responsible for the actual result.’ ” Spinney, 795
F.2d at 1415 (quoting W. LaFave & A. Scott, Criminal Law
§ 35, at 246 (1972)).

[6] Pineda-Doval’s failed attempt to swerve around the
spike strip was the proximate cause of the deaths of ten indi-
viduals. It was entirely foreseeable that the Border Patrol
would deploy a CTDD against the defendant’s Suburban and
that Pineda-Doval’s dangerous driving would end in an acci-
dent. Pineda-Doval must have known that Agents Russell and
Lindsay would try to stop him by using a CTDD, since he had
been the target of a spike strip twice before. He also must
have known that he was in danger; when he saw the spike
strip being drawn across the road, he shouted to his passen-
gers, “Commend yourselves to God, because we are being
pursued.” Pineda-Doval was in a police chase, traveling at 45
miles per hour, in an overcrowded vehicle that lacked seat
belts — and then deliberately and sharply swerved off the
road. No reasonable jury could have found that a car accident
was an extraordinary result.

The defendant tries to pin some of the responsibility for the
accident on Border Patrol negligence, arguing that Agent Rus-
sell deployed the spike strip too early and thereby gave him
an opportunity to swerve. Had Agent Russell complied with
CBP policies governing spike strips and deployed the CTDD
just before the Suburban drove past, Pineda-Doval would not
have had time to react, and the accident would have been
averted. We cannot agree that the actions of Agents Lindsay
and Russell constituted a superseding cause of the accident.
The agents were both careful in deploying the spike strip. The
agents waited until Pineda-Doval had reached a straight
stretch of Martinez Lake Road with very little traffic, know-
ing that it would have been dangerous if they tried to stop him
earlier, where the road was more uneven.

[7] Even if we assumed that Agent Russell had been negli-
gent, Pineda-Doval’s conviction would still stand. Generally
 UNITED STATES v. PINEDA-DOVAL 11321
“a police officer’s conduct in pursuing a fleeing perpetrator,
even if it was negligently performed and resulted in the death
of the officer or a third party, is not deemed conduct so
unusual, abnormal or extraordinary as to constitute an [sic]
superseding cause.” 1 La Fave, supra, § 6.4(g)(2), at 491 (2d
ed 2003) (internal quotation marks omitted). “Occasional neg-
ligence” that should have been anticipated by the defendant
does not defeat proximate cause, Prosser and Keeton on Torts
§ 44, at 304 (5th ed. 1984), and mistakes and accidents during
police chases are hardly unexpected.5 If we assume that Agent
Russell made a mistake by pulling the CTDD across the road
several seconds too early, this mistake was not so extraordi-
nary as to break the chain of causation. Pineda-Doval created
the dangerous conditions on Martinez Lake Road and,
because he refused to pull over in response to Agent Lind-
say’s lights and sirens, forced the Border Patrol to use drastic
measures to stop him. The resulting deaths of his ten passen-
gers were tragic, but not unexpected. The error in the jury
instructions was harmless beyond a reasonable doubt.
5
The Fifth Circuit has observed that
the empirical evidence appears to support the “intuitive belief”
that fleeing by vehicle involves a serious potential risk of physi-
cal injury to others. We note that according to a study funded by
the Justice Department and collecting police pursuit data from
fifty-six law enforcement agencies in thirty states, 314 injuries
(including fatal injuries) to police and bystanders resulted from
7,737 reported pursuits.
United States v. Harrimon, 568 F.3d 531, 537 (5th Cir.) (citing Cynthia
Lum & George Fachner, Int’l Assoc. of Chiefs of Police, Police Pursuits
in an Age of Innovation and Reform 57 (2008)) (internal citations omit-
ted), cert. denied, 130 S. Ct. 1015 (2009); see also United States v. Spells,
537 F.3d 743, 752 (7th Cir. 2008) (“Taking flight calls the officer to give
chase, and aside from any accompanying risk to pedestrians and other
motorists, such flight dares the officer to needlessly endanger himself in
pursuit.”), cert. denied, 129 S. Ct. 2379 (2009); United States v. West, 550
F.3d 952, 969 (10th Cir. 2008), overruled on other grounds as recognized
in United States v. McConnell, 605 F.3d 822 (10th Cir. 2010); Schmies,
51 Cal. Rptr. 2d at 196 n.10 (“[V]ehicle pursuits and the danger created
thereby are . . . foreseeable . . . .”).
11322 UNITED STATES v. PINEDA-DOVAL
III.

In addition to finding fault with the district court’s causa-
tion instructions, Pineda-Doval also argues that there were
two errors in the instructions regarding the lesser included
offense of transportation of illegal aliens. First, he argues that
those instructions incorrectly required the jury unanimously to
find him not guilty of transportation of illegal aliens resulting
in death before jurors could consider the lesser included
offense of transportation of illegal aliens. Second, he argues
that the verdict form was confusing because it asked the jury
whether Pineda-Doval was guilty of the lesser included
offense of transportation of illegal aliens and then referred
them to the charges in the Indictment, which set forth the
greater-aggravated offense. We consider each of these argu-
ments in turn.

a. Unanimity Instruction

[8] In United States v. Jackson, 726 F.2d 1466 (9th Cir.
1984) (per curiam), the Ninth Circuit approved two methods
for instructing juries on lesser included offenses. First, a jury
may be instructed that it must unanimously acquit on the
greater charge before considering the lesser included charge.
Second, a jury may be instructed to consider the lesser
included charge if unable after reasonable effort to reach a
verdict on the greater offense. Id. at 1469. So long as the
defendant makes a “timely request,” id., he is entitled to his
choice of lesser included offense instruction.

[9] Pineda-Doval’s proposed instructions took the second
route; they told the jury that they could consider the lesser
included offense of transportation of illegal aliens “[if] any of
you are not convinced that the defendant, Adan Pineda-Doval,
caused the death of” (emphasis added) each of the aliens
named in the Indictment. After discussing the lesser included
instructions with the court, defense counsel agreed to the
Government’s proposed language, which told the jurors that
 UNITED STATES v. PINEDA-DOVAL 11323
they could consider the lesser included offense of transporta-
tion of illegal aliens only “[i]f you unanimously find the
Defendant not guilty” (emphasis added) of transportation
resulting in death. The district court adjourned for the day and
told the parties that they could raise any final objections to the
jury instructions or verdict form the next morning. When
court resumed, defense counsel did not renew his request for
his proposed “if any of you” instruction. Pineda-Doval
waived his right to the first formulation because he “consid-
ered the controlling law and, ‘in spite of being aware of the
applicable law, . . . accepted [the] instruction’ ” that he now
argues was incorrect. United States v. Burt, 143 F.3d 1215,
1217 (9th Cir. 1998) (quoting United States v. Perez, 116 F.3d
840, 845 (9th Cir. 1997) (en banc)). He cannot on appeal chal-
lenge the instruction that he affirmatively agreed to in the dis-
trict court.

b. Verdict Form

The second error in the lesser included offense instructions,
Pineda-Doval argues, is that the verdict form told the jury that
“transportation of illegal aliens” and “transportation of illegal
aliens resulting in death” are identical offenses. The form
asked the jurors to find Pineda-Doval guilty or not guilty of
“Transportation of Rosalva Rivas-Vasquez, an Illegal Alien,
Resulting in Death as charged in Count 1 of the Superseding
Indictment.” The form repeated this question ten times, once
for each deceased. If the jurors unanimously found the defen-
dant not guilty of the greater offense, the verdict form then
asked them to determine whether Pineda-Doval was guilty or
not guilty of “Transportation of an Illegal Alien, Rosalva
Rivas Vasquez, as charged in Count 1 of the Superseding
Indictment.” (Emphasis added.) Again, the form repeated this
question ten times, once for each deceased. Because the ver-
dict form for the lesser included offense referred the jurors
back to the Indictment, which charged the greater aggravated
offense, the defendant argues that the district court did not
11324 UNITED STATES v. PINEDA-DOVAL
actually ask the jurors whether he was guilty of the lesser
included offense.

Defense counsel did not object to the verdict form at trial,
therefore review is for plain error only. See United States v.
Reed, 575 F.3d 900, 926 (9th Cir.), cert. denied, 130 S. Ct.
1729 (2009). To determine whether the jury was misled, we
must consider the instructions and the verdict form together.
See Boggs v. Lewis, 863 F.2d 662, 666 (9th Cir. 1988) (citing
Maddox v. City of Los Angeles, 792 F.2d 1408, 1418 (9th Cir.
1986)).

[10] The jury was not given a copy of the Indictment, but
they each had a copy of the written instructions. The instruc-
tions clearly listed and defined the five elements of transpor-
tation of illegal aliens resulting in death, then told the jury that
they could consider the lesser included offense if they unani-
mously decided that Pineda-Doval’s conduct did not result in
the ten charged deaths, and finally listed and defined the four
elements of transportation of illegal aliens. The jurors, reading
the verdict form and the instructions together, must have
understood that the difference between the greater and lesser
offenses was that the lesser offense did not require that the
defendant’s conduct have resulted in the deaths of the ten
individuals named in the Indictment. Because there is no “rea-
sonable likelihood that the jury” thought the greater and lesser
offenses were equivalent, there was no error, let alone plain
error, in the verdict form. Estelle v. McGuire, 502 U.S. 62, 67
(1991). The defendant’s challenge to the lesser included ver-
dict form fails.

IV.

Pineda-Doval challenges the district court’s order exclud-
ing evidence of Customs and Border Patrol policies governing
CTDD deployment and evidence that Agents Lindsay and
Russell failed to comply with those policies. Orders to
exclude evidence are reviewed for abuse of discretion. See
 UNITED STATES v. PINEDA-DOVAL 11325
United States v. Chang Da Liu, 538 F.3d 1078, 1085 (9th Cir.
2008) (citing United States v. Plancarte-Alvarez, 366 F.3d
1058, 1062 (9th Cir. 2004)). A conviction may be reversed on
the basis of an incorrect evidentiary ruling “only if the error
more likely than not affected the verdict.” Id.

The district court concluded that the “resulting in death”
element of 8 U.S.C. § 1324(a)(1)(B)(iv) does not require that
the defendant’s conduct be the proximate or “immediate”
cause of the charged deaths, only the but-for cause of those
deaths. Accordingly, evidence of the intervening negligence
of the Border Patrol agents was irrelevant and thus inadmissi-
ble under Rule 401. The court went on to hold that, even if
evidence of the CBP’s policies on spike strips was relevant,
it should still be excluded under Rule 403 because it “would
cause jury confusion and would create a trial within a trial to
determine whether the agents complied with the tire spike
policy.”

[11] Contrary to the district court’s conclusion, evidence of
CBP policies on spike strips was relevant to the issue of cau-
sation. As we have already explained, 8 U.S.C.
§ 1324(a)(1)(B)(iv) does contain a proximate cause require-
ment. For a defendant to be found guilty of transportation of
illegal aliens resulting in death, the Government must prove
that the defendant’s criminal conduct was the but-for cause
and the proximate cause of the charged deaths. Evidence of
CBP policies governing spike strips, and Agent Lindsay’s and
Agent Russell’s compliance with those policies, is relevant
because it goes to the question of whether their actions were
extraordinary enough to break the chain of causation between
Pineda-Doval’s conduct and the deaths of ten of his passengers.6
6
To determine proximate cause, the question is not whether the actions
of the Border Patrol agents were reasonable, but rather if they were fore-
seeable or extraordinary. Evidence of negligence goes indirectly to the
question of foreseeability because we assume that people will generally
conduct themselves in a reasonable manner. That said, “occasional negli-
gence” that should have been anticipated by the defendant does not defeat
proximate cause. See Prosser and Keeton, supra, § 44, at 304.
11326 UNITED STATES v. PINEDA-DOVAL
See Spinney, 795 F.2d at 1415; 1 W. LaFave, supra,
§ 6.4(g)(2), at 491. The district court should not have
excluded that evidence under Rule 401.

Nor should the district court have excluded evidence of
CBP policies under Rule 403. The probative value of evi-
dence of the CBP policies was not “substantially outweighed”
by the risk of unfair prejudice, confusion, or waste of time.
Fed. R. Evid. 403. The only real factual dispute at Pineda-
Doval’s trial was whether his driving caused the ten charged
deaths. Evidence of the CBP policies had significant proba-
tive value because it went to the question of whether Agent
Russell’s conduct constituted a superseding cause of the acci-
dent. The excluded evidence posed no risk of unfair prejudice,
unnecessary delay, or jury confusion. The district court
abused its discretion by excluding the evidence under Rule
403. See United States v. Cohen, 510 F.3d 1114, 1127 (9th
Cir. 2007); United States v. Boulware, 384 F.3d 794, 808 (9th
Cir. 2004).

Furthermore, the improper exclusion of evidence of CBP
policies essentially deprived Pineda-Doval of all evidence in
his favor, and thus violated his constitutional right to “ ‘pres-
ent a complete defense.’ ” Holmes v. South Carolina, 547
U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S.
683, 690 (1986)). We review de novo whether an evidentiary
error rises to the level of a constitutional violation. See United
States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). The Ninth
Circuit has found such violations where the district court
incorrectly excluded evidence that was necessary for the
defendant to refute a critical element of the prosecution’s
case, see Boulware, 384 F.3d at 808 (excluded evidence that
showed defendant did not own the property for which he was
accused of failing to pay taxes); United States v. Whitman,
771 F.2d 1348, 1351 (9th Cir. 1985) (excluded evidence that
contradicted prosecution’s theory of motive), and evidence
that was essential to the defendant’s alternative theory of the
case, see Stever, 603 F.3d at 755-57 (excluded evidence that
 UNITED STATES v. PINEDA-DOVAL 11327
Mexican drug trafficking organizations had a practice of tres-
passing on farmland and planting marijuana).7

[12] By prohibiting Pineda-Doval from introducing evi-
dence of CBP policies on spike strip deployment and evi-
dence that the Border Patrol agents failed to comply with that
policy, the district court effectively denied the defendant the
only argument that he had. There was no question that
Pineda-Doval’s passengers were illegal aliens and that he was
transporting them as part of a smuggling operation.8 All that
was left to argue was causation. After the district court
ordered that evidence of CBP policies on spike strips could
not be introduced at trial, it allowed defense counsel to make
a proffer. Counsel indicated that he would have called Agents
Mario Reina and Roland Castellanos to the stand in support
of his argument that Agent Russell’s too-early deployment of
the CTDD constituted a superseding cause of the car accident.
They would have testified, according to the defendant’s prof-
7
The Supreme Court has found a violation of the right to present a com-
plete defense in cases where a state evidentiary rule, on its face, “signifi-
cantly undermined fundamental elements of the defendant’s defense,” but
did little or nothing to promote a legitimate state interest. United States v.
Scheffer, 523 U.S. 303, 315 (1998); see also Holmes, 547 U.S. at 324. For
example, the Supreme Court has struck down rules that “precluded a
defendant from testifying, excluded testimony from key percipient wit-
nesses, or excluded the introduction of all evidence relating to a crucial
defense.” Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). This case
falls into the last category. The Supreme Court cases summarized in
Moses are not directly on point because they all involved state evidentiary
rules that had been correctly applied by the trial court, whereas this case
involves an incorrectly applied federal rule. But they are nonetheless
instructive because they illustrate how badly a defendant’s case must be
handicapped before a violation of the right to present a defense will be
found.
8
Pineda-Doval half-heartedly contended at trial that he was not the
driver of the Suburban but he did not press this point. For good reason.
All of the testifying victims identified Pineda-Doval as the driver. Addi-
tionally, the INS officer who interviewed Pineda-Doval after the accident
testified that Pineda-Doval admitted to being the driver at that interview.
11328 UNITED STATES v. PINEDA-DOVAL
fer, that they had been formally taught how to use CTDDs,
and that their training and the manufacturer’s recommenda-
tions instructed that spike strips should be deployed in such
a fashion that the approaching vehicle is surprised and does
not have a chance to evade. The agents also would have testi-
fied that Agent Russell deployed the CTDD too early, which
allowed the Suburban to swerve and crash. This prohibited
evidence comprised the entirety of the defendant’s supersed-
ing cause argument. Because the district court incorrectly “ex-
cluded the introduction of all evidence relating to a crucial
defense,” Moses, 555 F.3d at 758, that evidentiary error
amounted to a deprivation of Pineda-Doval’s right to present
a complete defense.

[13] “A violation of the right to present a defense requires
reversal of a guilty verdict unless the Government convinces
us that the error was harmless beyond a reasonable doubt.”
Stever, 603 F.3d at 757. The district court’s decision to
exclude evidence of Border Patrol negligence was harmless
beyond a reasonable doubt for the same reasons that the error
in the jury instructions defining “resulting in death” was
harmless. To show that the actions of Agent Russell consti-
tuted a superseding cause that broke the chain of causation
between Pineda-Doval’s dangerous driving, that negligence
would have had to be “so extraordinary that it would be unfair
to hold the defendant responsible” for the resulting accident
and deaths. Spinney, 795 F.2d at 1415 (internal quotation
marks omitted). Even assuming that the defendant persuaded
the jury that timing was essential to the correct and safe
deployment of a CTDD and that Agent Russell made the mis-
take of pulling the spike strip across the road several seconds
too early,9 no reasonable jury could have found that Agent
9
Agent Russell testified that he pulled the CTDD across Martinez Lake
Road when the Suburban was 150 feet away. Evidence suggested that
Pineda-Doval was driving somewhere between 45 and 70 miles per hour.
If we assume the low end of that range, then it should have taken Pineda-
Doval just over two seconds to hit the spike strip. For the purposes of
harmless error analysis, we will assume that Agent Russell gave Pineda-
Doval several seconds of lead time.
 UNITED STATES v. PINEDA-DOVAL 11329
Russell’s actions were extraordinary and could not have been
foreseen by Pineda-Doval. See Schmies, 51 Cal. Rptr. 2d at
196 (“This illegal and dangerous act by defendant caused the
officers to pursue him and ultimately caused the fatal acci-
dent. It adds not one whit to say that the officers violated the
CHP pursuit guidelines.”); see also supra note 5 and accom-
panying text. The district court’s error in excluding evidence
of CBP policies on spike strips was harmless beyond a rea-
sonable doubt.

V.

During the trial, the district court permitted the jury to
leave the courtroom and view the crushed Suburban. The
judge also admitted photographs of Veronica Reyes-Bonilla
and the mother of Ana Rosales-Rivas, two of Pineda-Doval’s
passengers. Ana Rosales-Rivas’s mother died in the crash.
The defendant argues that the jury should not have been per-
mitted to view the Suburban or the photographs of the two
passengers because the evidence was not relevant and because
it inflamed the passions of the jury. Defense counsel objected
at trial to the viewing of the Suburban and the introduction of
the photographs, therefore we review the court’s decision to
admit the contested evidence for abuse of discretion. Chang
Da Liu, 538 F.3d at 1085.

Prior to trial Pineda-Doval agreed to stipulate, inter alia,
that the Suburban “was involved in a single-vehicle rollover
collision,” and that the ten deceased aliens were passengers in
the Suburban and died as a result of injuries sustained in the
crash. Attached to the stipulation were fifteen photographs of
the crushed Suburban taken from a variety of angles. In
exchange, the Government agreed “not [to] offer photographs
or electronic images that show victims of the rollover colli-
sion unless those photos are necessary to the testimony of a
witness and cannot be redacted to avoid showing the
victim(s).”
11330 UNITED STATES v. PINEDA-DOVAL
The Government did not agree that it would not ask that the
jury be allowed to view the crushed Suburban. Though the
parties stipulated to the fact that the Suburban had been
involved in a car accident, the defendant cannot complain that
the prosecution introduced tangible evidence of that accident
instead of relying on the stipulation’s dry statements of fact
and the attached pictures. The Government is entitled “ ‘to
present to the jury a picture of the events relied upon. To sub-
stitute for such a picture a naked admission might . . . rob the
evidence of much of its fair and legitimate weight.’ ” Old
Chief v. United States, 519 U.S. 172, 187 (1997) (quoting
Parr v. United States, 255 F.2d 86, 88 (5th Cir. 1958)). It can-
not be that, when a defendant agrees to stipulate to certain
facts in exchange for the Government’s promising not to
introduce certain evidence, the Government waives the right
to introduce that evidence as well as evidence of the stipulated
facts. Contrary to the defendant’s arguments, the stipulation
did not make evidence of the crash irrelevant and thus exclud-
able under Rule 401.

[14] Under Rule 403, evidence may be excluded if “it
makes a conviction more likely because it provokes an emo-
tional response in the jury or otherwise tends to affect
adversely the jury’s attitude toward the defendant wholly
apart from its judgment as to his guilt or innocence of the
crime charged.” United States v. Yazzie, 59 F.3d 807, 811 (9th
Cir. 1995) (internal quotation marks and emphasis omitted).
“As long as it appears from the record as a whole that the trial
judge adequately weighed the probative value and prejudicial
effect of proffered evidence before its admission, . . . the
demands of Rule 403 have been met.” Boyd v. City of San
Francisco, 576 F.3d 938, 948 (9th Cir. 2009) (internal quota-
tion marks omitted). The district court explained that it was
overruling the defendant’s objection because viewing the
crushed Suburban would help the jury understand the events
being recounted by the witnesses, and reasoned that the view-
ing would not be prejudicial so long as the Suburban was in
the same state as it was immediately after the crash. Cf.
 UNITED STATES v. PINEDA-DOVAL 11331
Hughes v. United States, 377 F.2d 515, 516 (9th Cir. 1967)
(jury’s viewing of premises of questionable value because
photographs of premises already admitted into evidence).
Because the Suburban was central to the prosecution’s story,
and viewing the Suburban would help the jury fully grasp
what happened on Martinez Lake Road on that fateful day, we
cannot say that the district court’s “decision lies beyond the
pale of reasonable justification under the circumstances.”
Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000) (citing
Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057
(9th Cir. 1998)).

[15] The photos of Reyes-Bonilla and Rivas-Vasquez, both
passengers in the Suburban, were covered by the letter of the
Government’s agreement not to introduce “photographs or
electronic images that show victims of the rollover collision
unless those photos are necessary to the testimony of a wit-
ness.” Where the Government violates a pre-trial promise not
to introduce certain evidence, the defendant’s conviction
should be reversed unless the violation was harmless. See,
e.g., United States v. Shapiro, 879 F.2d 468, 472 (9th Cir.
1989) (citing United States v. Hodges, 770 F.2d 1475, 1480
(9th Cir. 1985)). The photographs of Reyes-Bonilla and
Rivas-Vasquez were unremarkable. The picture of Reyes-
Bonilla, a passenger of the Suburban who testified at trial,
was taken soon after the accident. It depicts her sitting on
gravel, looking stunned and perhaps a little sad, but uninjured.
And the picture of Rivas-Vasquez, one of the passengers that
died, seems to be a family photograph taken well before the
accident. She is standing by herself with no expression on her
face. It is difficult to see what effect these pictures could have
had on the jury. The pictures should not have been admitted,
but we will not disturb Pineda-Doval’s conviction because
that error was harmless.

VI.

Pineda-Doval argues that the prosecutor committed mis-
conduct by misstating the law in his closing arguments.
11332 UNITED STATES v. PINEDA-DOVAL
Because the defendant objected and moved for a mistrial on
the basis of prosecutorial misconduct, this court reviews the
district court’s denial of his motion for abuse of discretion.
United States v. Cardenas-Mendoza, 579 F.3d 1024, 1029
(9th Cir. 2009) (citing United States v. Washington, 462 F.3d
1124, 1135 (9th Cir. 2006)).

During closing arguments, the prosecutor twice suggested
that “the law holds someone who commits a crime responsi-
ble for the foreseeable consequences of that crime,” and that
the actions of a third party are irrelevant so long as the ulti-
mate result was foreseeable. Pineda-Doval argues that this
was misconduct because a “prosecutor should not misstate the
law in closing argument.” United States v. Berry, 627 F.2d
193, 200 (9th Cir. 1980) (citing United States v. Artus, 591
F.2d 526, 528 (9th Cir. 1979)). Not only did the prosecutor
correctly state the law — “[t]o prove proximate cause, the
government must establish that the harm was a foreseeable
result of the conduct,” Hanousek, 176 F.3d at 1123 — he
essentially advocated the proximate cause argument that the
defendant now presses on appeal. There was no misconduct.

VII.

[16] Pineda-Doval argues that, even if the court finds that
the trial errors were harmless when viewed in isolation, those
errors taken together prejudiced the defendant. See Wooten v.
Kirkland, 540 F.3d 1019, 1022 n.1 (9th Cir.) (citing Whelchel
v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000)), cert.
dismissed, 129 S. Ct. 621 (2008), cert. denied, 129 S. Ct.
2771 (2009). We have found three errors below, all indepen-
dently harmless: the instructions should have defined “result-
ing in death” to require the government to prove proximate
causation, the defendant should have been allowed to intro-
duce evidence of CBP policies governing spike strips, and the
district court should not have permitted the Government to
introduce the photographs of Veronica Reyes-Bonilla and
Ana Rivas-Vasquez’s mother. Because the introduction of the
 UNITED STATES v. PINEDA-DOVAL 11333
photographs could only have had a de minimus impact on the
jury, and the two other errors are premised on the same incor-
rect legal conclusion, the district court effectively made only
one mistake: holding that the Government did not have to
prove proximate causation. As explained above, even if
Pineda-Doval had introduced all of the evidence he wanted
and the jury had been asked to find proximate cause, he would
not have been able to convince a reasonable jury that the rol-
lover was an extraordinary and abnormal result of his danger-
ous driving. There was no prejudice, cumulative or otherwise.
We affirm the defendant’s conviction.

VIII.

Pineda-Doval challenges his sentence of life imprisonment.
The Sentencing Guideline for transportation of illegal aliens
resulting in death directs the district court to apply the appro-
priate murder guideline if, had the transportation occurred in
federal territorial jurisdiction, the killing would have consti-
tuted murder. The defendant argues that the district court
should not have applied the second-degree murder guideline
because the court did not specifically find that he acted with
“malice aforethought,” as required by Federal Rule of Crimi-
nal Procedure 32.

[17] The crime of transportation of illegal aliens resulting
in death is covered by Section 2L1.1 of the Sentencing Guide-
lines, which instructs that “[i]f any person was killed under
circumstances that would constitute murder under 18 U.S.C.
§ 1111 had such killing taken place within the special mari-
time and territorial jurisdiction of the United States, apply the
appropriate murder guideline from Chapter Two, Part A, Sub-
part 1.” U.S.S.G. § 2L1.1(c).10 Following the cross-reference
to § 2A1, there are two potentially applicable murder guide-
10
All citations are to the 2005 version of the U.S. Sentencing Guide-
lines, which both parties agree applies to Pineda-Doval.
11334 UNITED STATES v. PINEDA-DOVAL
lines: first-degree murder (§ 2A1.1) and second-degree mur-
der (§ 2A1.2).

Defense counsel argued that the second-degree murder
Guideline did not apply to Pineda-Doval because he did not
act with malice aforethought. See United States v. Houser,
130 F.3d 867, 871 (9th Cir. 1997). Rather he drove recklessly,
a mental state contemplated by the Guideline applicable to the
transportation of illegal aliens, which provides for an upwards
adjustment for recklessness. U.S.S.G. § 2L1.1(b)(5). That
Guideline suggested a sentence between 168 and 210 months.

At the sentencing hearing, the district court stated that it
had considered Pineda-Doval’s written objections to the Pre-
Sentence Report, which it noted “extensively” argued “why
the cross-reference shouldn’t apply.” The court found that
Pineda-Doval’s “driving was reckless” and therefore “the
cross-reference applies.” Accordingly, it calculated the Guide-
lines sentence using the second-degree murder guideline,
U.S.S.G. § 2A1.2, which produced a recommended sentence
of life imprisonment.

a. Malice Aforethought

Murder is “the unlawful killing of a human being with mal-
ice aforethought.” 18 U.S.C. § 1111. First-degree murder
requires an additional element; the killing must either be
“willful, deliberate, malicious, and premeditated,” or be com-
mitted in the course of perpetrating one of the serious felonies
listed in § 1111. Id. “Any other murder is murder in the sec-
ond degree.” Id.

The Ninth Circuit has variously defined malice afore-
thought as “ ‘a callous and wanton disregard of human life,’ ”
Houser, 130 F.3d at 871 (quoting United States v. Celestine,
510 F.2d 457, 459 (9th Cir. 1975)); “ ‘extreme indifference to
the value of human life,’ ” United States v. Hernandez-
Rodriguez, 975 F.2d 622, 627 (9th Cir. 1992) (quoting United
 UNITED STATES v. PINEDA-DOVAL 11335
States v. Lesina, 833 F.2d 156, 159 (9th Cir. 1987)); “ ‘a wan-
ton and depraved spirit, a mind bent on evil mischief without
regard to its consequences,’ ” Lesina, 833 F.2d at 159 (quot-
ing Celestine, 510 F.2d at 459); and “the state of mind with
which one intentionally commits a wrongful act without legal
justification or excuse,” Celestine, 510 F.2d at 459.11

These flowery descriptions do not cast much light on mal-
ice aforethought. The legal meaning of the phrase “does not
even approximate its literal meaning.” 2 LaFave, supra,
§ 14.1, at 416. Malice aforethought was meant literally at
early common law; murder required “malice,” an intent to kill
and perhaps also an element of hatred, and “aforethought,”
advance planning or deliberation. Id. § 14.1(a). Courts gradu-
ally expanded the crime of murder to cover killings that,
while not specifically intended or planned, were grievous
enough to be considered murder. See Tison v. Arizona, 481
U.S. 137, 156-58 (1987) (discussing the expansion of malice
aforethought since early American common law). As a result,
in modern criminal law, malice aforethought covers four dif-
11
Several other circuits have described malice aforethought as conduct
that is “reckless and wanton, and a gross deviation from a reasonable stan-
dard of care, of such a nature that a jury is warranted in inferring that
defendant was aware of a serious risk of death or serious bodily harm.”
United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001) (internal quo-
tation marks omitted); accord United States v. Williams, 342 F.3d 350,
356 (4th Cir. 2003); United States v. Milton, 27 F.3d 203, 206 (6th Cir.
1994); United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978); United
States v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974). Other circuits describe
malice slightly differently. See United States v. Hicks, 389 F.3d 514, 530
(5th Cir. 2004) (“[A] defendant must have: (1) acted with gross negli-
gence, meaning a wanton or reckless disregard for human life, and (2) had
knowledge that his or her conduct was a threat to the life of another or
knowledge of such circumstances as could reasonably have enabled the
defendant to foresee the peril to which his or her act might subject anoth-
er.” (internal quotation marks and alterations omitted)); Gov’t of Virgin
Islands v. Lake, 362 F.2d 770, 774 (3d Cir. 1966) (“[A] wanton and
depraved spirit, a mind bent on evil mischief without regard to its conse-
quences.”).
11336 UNITED STATES v. PINEDA-DOVAL
ferent kinds of mental states: (1) intent to kill; (2) intent to do
serious bodily injury; (3) depraved heart (i.e., reckless indif-
ference); and (4) intent to commit a felony. 2 LaFave, supra,
§ 14.1, at 416.

The question here is whether Pineda-Doval is guilty of
depraved-heart murder.12 “[D]epraved-heart murder falls into
the second degree murder category.” Id. § 14.7(e), at 487. To
act with this type of malice aforethought, a defendant’s con-
duct must create a “very high degree of risk” of injury to other
persons, he must be aware of that risk,13 and he cannot have
a justifiable reason for taking that risk. Id. § 14.4 (emphasis
added). It is this aspect of malice aforethought — an aware-
ness of an extreme risk — that the Ninth Circuit has tried to
capture when it has described malice aforethought as “a cal-
lous and wanton disregard of human life,” Houser, 130 F.3d
at 871, and “an extreme indifference to the value of human
life,” Hernandez-Rodriguez, 975 F.2d at 627; see also United
States v. Serawop, 410 F.3d 656, 663 n.4 (10th Cir. 2005)
(“[W]e have . . . held that malice may be established by evi-
12
There is no evidence that Pineda-Doval intended to kill or injure his
passengers; in a misbegotten way, he was trying to help them. Although
he was in the process of committing a felony at the time of the killings,
transportation of illegal aliens is not one of the enumerated felonies that
can support a felony-murder conviction. See 18 U.S.C. § 1111 (listing
“arson, escape, murder, kidnapping, treason, espionage, sabotage, aggra-
vated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or
perpetrated as part of a pattern or practice of assault or torture against a
child or children”).
13
The circuits agree that malice aforethought is evinced by conduct cre-
ating a very high degree of risk of serious bodily injury or death. It is not
clear whether the defendant must realize that his conduct creates such a
risk. See 2 LaFave, supra, § 14.4(b), at 441-44. However, we understand
this court’s decisions to require subjective awareness. See Lesina, 833
F.2d at 159 (“ ‘The difference between that recklessness which displays
. . . such extreme and wanton disregard for human life as to constitute
‘malice’ and that recklessness that amounts only to manslaughter lies in
the quality of awareness of the risk.’ ” (quoting United States v. Dixon,
419 F.2d 288, 292-93 (D.C. Cir. 1969) (Leventhal, C.J., concurring))).
 UNITED STATES v. PINEDA-DOVAL 11337
dence of conduct which is reckless and wanton, and a gross
deviation from a reasonable standard of care, of such a nature
that a jury is warranted in inferring that the defendant was
aware of a serious risk of death or serious bodily harm. The
concepts of ‘depraved heart’ and ‘reckless and wanton, and a
gross deviation from the reasonable standard of care’ are
functionally equivalent in this context.” (internal citation and
quotation marks omitted)).

Grossly negligent conduct that creates a high — but not
very high — risk of injury to others can support a conviction
for involuntary manslaughter, but not murder. Involuntary
manslaughter requires proof

(1) that the defendant acted with “gross negligence,”
defined as “wanton or reckless disregard for human
life;” and (2) that the defendant had actual knowl-
edge that his conduct was a threat to the lives of oth-
ers, . . . or had knowledge of such circumstances as
could reasonably be said to have made foreseeable to
him the peril to which his acts might subject others.

United States v. Crowe, 563 F.3d 969, 973 (9th Cir. 2009)
(quoting United States v. Keith, 605 F.2d 462, 463 (9th Cir.
1979)) (alteration in Crowe). The difference between gross
negligence and malice aforethought is one of degree, not kind.
Both require “a wanton or reckless disregard for human life,”
but that disregard must be “extreme” to support a finding of
malice. See Lesina, 833 F.2d at 159; see also Hernandez-
Rodriguez, 975 F.2d at 627; United States v. Paul, 37 F.3d
496, 499 (9th Cir. 1994).

Classic examples of second-degree murder include shoot-
ing a gun into a room that the defendant knows to be occu-
pied, playing a game of Russian roulette, and driving a car at
very high speeds along a crowded main street. See Samuel H.
Pillsbury, Crimes of Indifference, 49 Rutgers L. Rev. 105, 124
(1996); 2 LaFave, supra, § 14.4(a), at 440-41; see also e.g.,
11338 UNITED STATES v. PINEDA-DOVAL
Hicks, 389 F.3d at 530 (finding malice aforethought where the
defendant intentionally fired his gun at a police cruiser, likely
knowing that it would be occupied); Nestlerode v. United
States, 122 F.2d 56, 59 (D.C. Cir. 1941) (finding malice
aforethought where defendant drove “at a reckless speed over
the busiest thoroughfares in the city of Washington” and
killed two pedestrians). Second-degree murder cases involv-
ing car accidents “have in common some form of exception-
ally reckless driving, of so dangerous a nature that the
possibility of a fatal collision would suggest itself to any rea-
sonable observor.” H.C. Lind, Annotation, Homicide by Auto-
mobile as Murder, 21 A.L.R.3d 116, 2[a]. Cases where the
defendant drove recklessly, but not wildly, generally fall into
the lesser categories of manslaughter or criminal negligence.
Id.; see also United States v. Fleming, 739 F.2d 945, 948 (4th
Cir. 1984) (“In the vast majority of vehicular homicides, the
accused has not exhibited such wanton and reckless disregard
for human life as to indicate the presence of malice on his
part.”).

The rule that merely reckless driving cannot provide the
basis for a second-degree murder conviction is illustrated by
United States v. Hernandez-Rodriguez, 975 F.2d 622 (9th Cir.
1992). The defendant in Hernandez-Rodriguez led Border
Patrol agents on a three-hour high-speed chase, with speeds
up to eighty miles per hour on the freeway and up to forty-
five to fifty miles per hour on surface streets. Id. at 624.
Though the court acknowledged that the defendant “did
speed, he did go through stop signs, and he did ignore other
traffic laws” while evading the police, it held that “something
more” was required to establish the malice aforethought nec-
essary to prove second-degree murder. Id. at 627.

b. Federal Rule of Criminal Procedure 32

Pineda-Doval argues that the district court did not specifi-
cally find that he acted with malice aforethought, and that
such a finding was required by Federal Rule of Criminal Pro-
 UNITED STATES v. PINEDA-DOVAL 11339
cedure 32 before the district court could apply the second-
degree murder Guideline at sentencing.

[18] A district court’s resolution of disputed matters relat-
ing to sentencing is governed by Federal Rule of Criminal
Procedure 32. Rule 32 provides that a sentencing court “may
accept any undisputed portion of the presentence report as a
finding of fact,” but must rule on “any disputed portion of the
presentence report or other controverted matter.” Fed. R.
Crim. P. 32(i)(3)(A)-(B). The Ninth Circuit requires “ ‘strict
compliance’ ” with Rule 32. United States v. Tam, 240 F.3d
797, 803 (9th Cir. 2001) (quoting United States v. Houston,
217 F.3d 1204, 1207 (9th Cir. 2000)). “If the district court
fails to make the required findings or determinations, the sen-
tence must be vacated and the defendant resentenced.” United
States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.
1990) (en banc); see also United States v. Gutierrez-
Hernandez, 94 F.3d 582, 584 (9th Cir. 1996). A district
court’s compliance with Rule 32 is reviewed de novo. United
States v. Herrera-Rojas, 243 F.3d 1139, 1142-43 (9th Cir.
2001) (citing United States v. Karterman, 60 F.3d 576, 583
(9th Cir. 1995)).

[19] In this case, Rule 32 required the district court to
make a specific finding of malice aforethought because the
existence of malice was disputed and determined whether the
cross-reference to the second-degree murder guideline
applied. See Fed. R. Crim. P. 32(c) (requiring district court to
rule on any “controverted” matter unless “unnecessary”). At
the sentencing hearing, the district court found that Pineda-
Doval’s “driving was reckless” and that the “cross-reference
applies.” As explained above, “reckless” driving can provide
a basis for either second-degree murder or involuntary man-
slaughter, depending on the degree of risk, the defendant’s
reasons for acting recklessly, and his awareness of the danger.
11340 UNITED STATES v. PINEDA-DOVAL
Therefore, the district court’s finding of “recklessness” is not
equivalent to a finding of “malice aforethought.”14

Because this court requires strict compliance with Rule 32,
we cannot give the district court the benefit of the doubt and
assume it meant “malice aforethought” when it said “reckless-
ness.” See, e.g., Houston, 217 F.3d at 1207 (ordering re-
sentencing where district court seemed to assume, but did not
explicitly decide, that death threats were attributable to defen-
dant); United States v. Thomas, 355 F.3d 1191, 1200 (9th Cir.
2004) (ordering re-sentencing because court incorrectly
assumed that defendant’s guilty plea encompassed the quan-
tity allegation in the indictment, when in fact quantity was
disputed). “Because the district court did not specifically
acknowledge the existence of the dispute over” whether
Pineda-Doval acted with malice aforethought or recklessness,
we are “left to guess whether the court was even aware of
such a dispute.” Houston, 217 F.3d at 1207. The court “dem-
onstrated no recognition” that second-degree murder required
a finding of extreme recklessness evincing disregard for
human life, not simple recklessness. Herrera-Rojas, 243 F.3d
at 1143. Perhaps the district court mistakenly believed that
malice aforethought and recklessness are one and the same.
We have interpreted Rule 32 strictly in order to avoid just this
sort of uncertainty on appeal. The district court did not find
“malice aforethought,” as required by Rule 32.
14
After the district court had decided that the cross-reference applied
and calculated the Guidelines sentence, defense counsel made a couple of
statements that suggested that he believed that the district court had specif-
ically found that Pineda-Doval acted with malice aforethought. This mis-
take, while unfortunate, was not enough to waive the defendant’s clear
written objection to the PSR’s conclusion that Pineda-Doval acted with
malice aforethought. See United States v. Perez, 116 F.3d 840, 845 (9th
Cir. 1997) (en banc) (defining waiver as “intentional relinquishment or
abandonment of a known right” (internal quotation marks omitted)).
 UNITED STATES v. PINEDA-DOVAL 11341
c. Clear and Convincing Evidence Standard

In addition to failing to address the question of malice
aforethought, the district court applied the incorrect burden of
proof when deciding whether Pineda-Doval acted with malice
aforethought. Counsel did not ask the district court to apply
a heightened standard of proof at sentencing; therefore, plain
error analysis applies. See United States v. Jordan, 256 F.3d
922, 926 (9th Cir. 2001). We can order re-sentencing only if
there is “(1) error, (2) that is plain, and (3) that affects sub-
stantial rights. If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
(internal quotation marks omitted).

The first requirement is met. The preponderance of evi-
dence standard is generally the appropriate standard for fac-
tual findings used for sentencing. However, the Ninth Circuit
requires “facts found in support of Guidelines enhancements
that turn out to have a disproportionate impact on the ultimate
sentence imposed to be established by clear and convincing
evidence.” United States v. Staten, 466 F.3d 708, 720 (9th Cir.
2006); see also Restrepo, 946 F.2d at 661. The defendant
argues that “malice aforethought” is such a fact. Had Pineda-
Doval been sentenced under § 2L1.1, the 2005 Sentencing
Guidelines would have suggested a sentencing range of 168
to 210 months.15 Instead, the district court calculated a recom-
15
The base offense level for transportation of illegal aliens is 12.
U.S.S.G. § 2L1.1(a)(2). After making adjustments for the number of aliens
transported, § 2L1.1(b)(2)(A), recklessly creating a substantial risk of
death, § 2L1.1(b)(5), causing the death of any person, § 2L1.1(b)(6)(4),
creating a substantial risk of death or bodily injury in the course of fleeing
from law enforcement, § 3C1.2, and multiple counts, § 3D1.4, the total
offense level would have been 33. Combined with the defendant’s Crimi-
nal History Level III, the recommended Guidelines sentence was 168 to
210 months.
11342 UNITED STATES v. PINEDA-DOVAL
mended Guidelines sentence of life imprisonment.16 In United
States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000),
vacated on other grounds, 532 U.S. 901 (2001), this court
outlined six factors to consider when deciding whether a sen-
tencing enhancement had an “extremely disproportionate”
effect, three of which apply here: the finding of malice afore-
thought more than doubled Pineda-Doval’s sentence (from
168-210 months to life imprisonment), increased his total
offense level by more than four (from 33 to 45), and provided
the basis for charging him with an entirely separate offense
(second-degree murder). The clear and convincing standard of
proof should have applied. See Jordan, 256 F.3d at 929
(requiring the clear and convincing standard where the nine-
level enhancement increased the defendant’s sentencing range
from 70-87 months to 151-188 months); United States v.
Mezas de Jesus, 217 F.3d 638, 643 (9th Cir. 2000) (nine-level
enhancement on the basis of an uncharged kidnaping
increased the defendant’s sentencing range from 21-27
months to 57-71 months); United States v. Hopper, 177 F.3d
824, 833 (9th Cir. 1999) (seven-level adjustment increased the
defendant’s sentencing range from 24-30 months to 63-78
months).

[20] We need not reach the remaining components of the
plain error analysis. We hold that the district court erred by
failing to apply the proper standard of proof. Because the
Rule 32 error requires us to remand for resentencing in any
event, a determination that the district court’s error was plain
—or that it was not—will have no effect in this case. Accord-
ingly, we decline to make that determination.
16
The base offense level for second degree murder is 38. U.S.S.G.
§ 2A1.2. After making adjustments for creating a substantial risk of death
or bodily injury in the course of fleeing from law enforcement, § 3C1.2,
and multiple counts, § 3D1.4, the district court arrived at a total offense
level of 45. Combined with the defendant’s Criminal History Level III, the
recommended Guidelines sentence was life imprisonment.
 UNITED STATES v. PINEDA-DOVAL 11343
[21] In sum, the district court did not specifically find that
Pineda-Doval acted with malice aforethought, as required by
Federal Rule of Criminal Procedure 32, and did not apply the
correct standard of proof at sentencing. We vacate Pineda-
Doval’s sentence and remand for re-sentencing. See Jordan,
256 F.3d at 934; United States v. Fernandez-Angulo, 897 F.2d
1514, 1517 (9th Cir. 1990) (en banc).

IX.

Pineda-Doval’s conviction is AFFIRMED, his sentence is
VACATED, and this case is REMANDED for the district
court to expressly find whether there is clear and convincing
evidence that Pineda-Doval acted with malice aforethought
when he undertook the charged conduct and to resentence the
Defendant in light of its finding.