United States v. Dominguez-Caicedo

40 F.4th 938

UNITED STATES of America, Plaintiff-Appellee,

v.Segundo Marcial DOMINGUEZ-CAICEDO, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Victor Gaspar Chichande, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Andrian Andres Cortez-Quinonez, aka Andrian Andres Quinonez-Cortez, Defendant-Appellant.

No. 19-50268

No. 19-50271

No. 19-50274

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 29, 2021 Pasadena, California

Filed July 18, 2022

Robert H. Rexrode III, Law Offices of Robert Rexrode, San Diego, California, for Defendant-Appellant Segundo Marcial Dominguez-Caicedo.

Michael Marks (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant Andrian Andres Cortez-Quinonez.

Mark F. Adams, Law Offices of Mark F. Adams, San Diego, California, for Defendant-Appellant Victor Gaspar Chichande.

D. Benjamin Holley (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: MILAN D. SMITH, JR. and KENNETH K. LEE, Circuit Judges, and EDUARDO C. ROBRENO,^* District Judge.

M. SMITH, Circuit Judge:

The defendants in these three consolidated cases—Adrian Andres Cortez-Quinonez, Segundo Marcial Dominguez-Caicedo, and Victor Gaspar Chichande—were convicted of conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting. In this appeal, they challenge the district court's denial of their pre-trial motions to dismiss the indictment. Defendants also argue that the prosecutor committed misconduct in his closing argument. Individually, Dominguez-Caicedo contends that the district court improperly excluded expert testimony that supported his duress defense. Cortez-Quinonez individually appeals the district court's decision not to suppress his post-arrest statements. He also argues that the prosecutor committed misconduct by arguing at his sentencing that Cortez-Quinonez was the ringleader, after arguing at trial that Dominguez-Caicedo was in charge. Finally, all three defendants argue that the district court erred by not granting them minor role reductions at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the defendants' convictions and Dominguez-Caicedo's and Cortez-Quinonez's sentences. We vacate Chichande's sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2017, the Coast Guard cutter Stratton spotted a suspicious vessel—a 30-to 40-foot "panga" boat—carrying the three defendants near the Galapagos Islands. The Coast Guard observed the vessel and determined that it had no indicia of nationality. From a Coast Guard helicopter, Officer Charles Arena activated the helicopter's blue law-enforcement lights and broadcast a message to the boat via maritime radio in English and Spanish, informing the vessel that the United States Coast Guard was ordering them to halt. When the panga did not stop, Arena ordered the "precision marksman" onboard the helicopter to fire warning shots into the water in front of the panga, some of which contained an orange tracer that makes the shots more visible. After discharging the warning shots, Arena observed "the occupants onboard start to throw items overboard," including "packages that were tied together." The Coast Guard later determined that the packages were attached to a "GPS buoy" that was also thrown overboard. When the panga still did not stop, the marksman fired two more warning shots into the water aft of the panga's engine, apparently to signal that those on board should move away from the engine, and then shot out the engine. Dominguez-Caicedo testified that by the time he saw the helicopter, it was shooting at the panga. He did not know that it was a U.S. Coast Guard helicopter. Cortez-Quinonez stated that he thought the shots from the helicopter were going to kill them.

Three officers from the Coast Guard then boarded the panga. Dominguez-Caicedo told the officers who boarded the panga that they had been out fishing. Cortez-Quinonez identified himself as the "master" of the vessel through an interpreter, to one of the Coast Guard officers. Cortez-Quinonez gave the officers his Ecuadorian identification card. The other two defendants said that they did not have any identification with them. The Coast Guard then detained the three defendants and transferred them to the Stratton. Several days later, on January 2, 2018, they were transferred to the Northland, another Coast Guard vessel, where they were detained until January 3.

On board the Stratton, according to Officer Welzant of the Coast Guard, the standard protocol dictates that each detainee is given an initial medical screening by the medical corpsman—essentially a nurse. They are not told where they are headed, they do not get an opportunity to contact their families, and they do not know how long they will be on board. Detainees are chained to a cable that runs the length of the deck inside the helicopter hangar (emptied of helicopters). Each detainee is chained to the cable using an eighteen-inch ankle shackle. The detainees remain chained at all times of the day and night, except for trips to the bathroom and approximately one hour per day of exercise time, during which the detainees are permitted to walk freely on the deck. Detainees can shower periodically. Cortez-Quinonez testified that he was forced to shower with the other two defendants while officers laughed at their "private parts and how [they] were naked," though it was not clear on which cutter this allegedly occurred. Welzant stated that there were no group showers on the Stratton. Welzant testified that detainees are escorted to use the restroom upon request, unless the crew is launching a helicopter or a small boat, which would take approximately ten minutes. However, the Stratton's detainee logbook showed that the three defendants were rarely taken to the restroom between 6:30 p.m. and 7:00 a.m. the next morning. When the three defendants in this case were detained, there were thirty-seven total detainees on board the Stratton.

Welzant testified that Defendants were provided with mats approximately half an inch thick on which to sleep. The Coast Guard confiscated the clothes that the defendants were wearing and gave them disposable Tyvek painters' coveralls to wear instead. These coveralls often ripped and exposed detainees. Each person also routinely receives a blanket. Detainees are fed three meals per day, primarily consisting of rice and beans, supplemented with fruit approximately every other day. A jug of water is accessible to detainees at all times. Welzant stated that the detainees are also provided with dominoes, cards, and Spanish-language Bibles. Officer Jordan Groff testified to the conditions aboard the Northland, which were substantially similar to those on board the Stratton, except that the detainees ate eggs, potatoes, toast, enchiladas, spaghetti, and chicken, rather than rice and beans.

On January 3, 2018, the defendants were transferred to another Coast Guard cutter, the Mohawk. The defendants were transferred to the Mohawk—which was heading for Florida—because the Coast Guard suspected that the Department of Justice would prosecute the case in Florida. On the Mohawk, the detainees were kept on the top deck, exposed to the elements. According to Coast Guard officer Kristopher Meyer, the crew erects a tent on that deck while detainees are on-board to provide some shelter from the elements. The Mohawk crew does not provide any sleeping mats, though they do give each detainee a blanket and a towel.

While the defendants were on the Mohawk, there were numerous rain squalls, which caused the deck to become wet. When it rained during the night, the detainees would either have to stand up or try to sleep while laying on the wet deck. On the Mohawk, detainees were served rice and beans for every meal. The defendants testified that the rice and beans were very undercooked, and that these meals resulted in them suffering gastrointestinal distress. The Mohawk's detainee log shows that Gaspar Chichande refused five meals in a row, and that Cortez-Quinonez and Dominguez-Caicedo refused three meals in a row. Cortez-Quinonez testified that he was denied medical care on board the Mohawk, despite complaining of pain.

The defendants were aboard the Mohawk for five days. On January 8, 2018, they were transferred back to the Stratton—which was heading to California—because the Department of Justice had designated the Southern District of California as the prosecuting district. If the defendants had remained on the Mohawk, they would have arrived in Florida on January 17, 2018. However, the Coast Guard determined that there was no aircraft available to fly the defendants from Florida to California to prosecute them in the designated district.

On January 16, 2018, the defendants were transferred from the Stratton to their final cutter, the Active. The conditions of confinement on the Active were similar to those on the Stratton, except that the area where the defendants were shackled was protected from the elements only by a canvas tarp, and the sleeping mats provided were an inch-and-a-half thick. In addition, the temperature dropped as low as 50 degrees during the time the defendants were onboard the Active. Dominguez-Caicedo testified that he was extremely cold on the Active.

Dominguez-Caicedo and Cortez-Quinonez testified that the shackles and living conditions onboard the cutters caused them significant physical pain. A psychologist, Dr. Julia Kuck, testified as an expert witness at the defendants' motion to dismiss hearing. Dr. Kuck had interviewed Gaspar Chichande and diagnosed him with post-traumatic stress disorder (PTSD) with dissociative symptoms and...