United States District Court, N.D. California
TRIAL ORDER NO. 9 REGARDING ALBERTO LAREZ’S
MOTION FOR DECLARATION OF MISTRIAL OR ALTERNATIVELY MOTION TO
DISMISS RE: DKT. NO. 1288
YVONNE
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
Currently
before the Court is defendant Alberto Larez’s motion
for declaration of mistrial or alternatively motion to
dismiss Counts One, Two, [1] Eighteen, Nineteen, and Twenty. (Dkt.
No. 1288, “Mtn.”)[2] Larez argues that he is entitled
to relief because the government presented to the grand jury
a theory of Martin Chacon’s murder that was unsupported
by the physical evidence; a theory that is now also
contradicted by the confession of Ruben Cruz to state
authorities. The government opposes, arguing that its
evolving theory of Larez’s role in the murder does not
entitle Larez to any relief. The Court having carefully
considered the papers submitted, the record in this case, and
oral argument held June 14, 2016 and June 30, 2016, hereby
Denies Larez’s motion.
I.
Background
In
January 2014, the government presented evidence related to
the murder of Martin Chacon to the grand jury through the
testimony of FBI Special Agent Russell Nimmo. The testimony
of Special Agent Nimmo was based on his review of forensic
analyses, physical evidence, and the statements of
cooperating witness Jesus a/k/a Jesse Cervantes, who claims
to have been present when Chacon was killed. Founded on the
statements of Jesse Cervantes, Special Agent Nimmo testified
that Larez was also present that day and had
“plans” to kill Chacon. Special Agent Nimmo
relied on his review of the forensic evidence to opine that
“the crime scene photos indicates [sic] that it’s
very likely” Larez shot Chacon with a .25 caliber gun
from the passenger seat inside of Chacon’s car while
Chacon was in the driver’s seat. He further testified
it was “very likely” that Chacon was dead when
Larez exited the car. Although Jesse Cervantes did not hear a
gunshot while Larez was inside the car with Chacon, Special
Agent Nimmo testified that was “not unusual”
given the small caliber firearm with which Larez allegedly
shot Chacon. Ultimately, Special Agent Nimmo testified it was
his opinion that Larez “committed this murder, or at
the very least aided and abetted this murder in order to
maintain or increase his position in the Nuestra
Familia.” Special Agent Nimmo further opined that
Larez directed another individual to shoot Chacon after he
was already dead to insure that the other individual would
not cooperate with the government against Larez.
Based
thereon, the grand jury returned a true bill charging Larez
with acting “together with others known and
unknown” to murder Chacon and use of a firearm in
connection with the murder of Chacon, with 18 U.S.C. section
2 - the aiding and abetting statute - expressly cited as to
each count. (Dkt. No. 355 ¶¶ 57-60.) That same
language appears in Counts Eighteen, Nineteen, and Twenty of
the third superseding indictment. (Dkt. No. 724,
“3SI” ¶¶ 55-58.)
In June
and July 2014, Ruben Cruz provided statements to the Santa
Clara District Attorney’s Office that Larez shot Chacon
from the back seat of Chacon’s car only after another
individual shot Chacon from outside the car. While this new
eyewitness testimony was inconsistent with Special Agent
Nimmo’s testimony to the grand jury as to Larez’s
placement in the car and the order of the shots, the
government did not present it to the grand jury then or when
the 3SI was presented in September 2015.
The
government represents that, as trial approached, it had
reservations regarding Cruz’s version of events.
(6/14/2016 Transcript at 5210:6-21.) Thus, the
government’s opening statement did not rely on
Cruz’s statement that Larez shot Chacon. (Id.
at 5210:22-23.) The government did not tell the jury that the
evidence would show Larez was one of the shooters of Chacon.
(Id.)
On June
9, 2016, local law enforcement officers re-interviewed Cruz
regarding the events that culminated in the death of Chacon
at the request of prosecutors in this case. During that
meeting, Cruz admitted for the first time that he shot
Chacon, and recanted his earlier statement that Larez pulled
the trigger on the .25 caliber shot. The government promptly
notified defense counsel of Cruz’s statement.
The
instant motion for mistrial, or in the alternative for
dismissal of certain counts, followed. Larez takes the
position that Cruz’s confession shows prejudice to him
in two ways. First, the theory presented to the grand jury -
that he shot Chacon and then directed another individual to
shoot Chacon as cover from prosecution - was false, highly
prejudicial, and likely tainted the consideration of all
charges against him. Second, until revelation of Cruz’s
confession, Larez tailored his trial strategy to the
government’s theory that he pulled the trigger on the
fatal .25 caliber shot, depriving him of the right to a full
defense.
II.
Motion for Mistrial
The
decision whether to grant a mistrial is “reserved to
the ‘broad discretion’ of the trial judge,
” and is in every case highly fact-dependent.
Renico v. Lett, 559 U.S. 766, 774 (2010) (quoting
Illinois v. Somerville, 410 U.S. 458, 462 (1973)).
The Supreme Court has long held that, “[w]here, for
reasons deemed compelling by the trial judge, who is best
situated intelligently to make such a decision, the ends of
substantial justice cannot be attained without discontinuing
the trial, a mistrial may be declared, ” regardless of
whether the defense moves for mistrial. Gori v. United
States, 367 U.S. 364, 368 (1961). “In deciding
whether to declare a mistrial, the district court should take
all relevant circumstances into account rather than apply an
abstract formula.” United States v.
Sommerstedt, 752 F.2d 1494, 1498 (9th Cir. 1985).
Larez
contends that a mistrial is warranted on two grounds, namely
that: (1) he has been deprived of his Sixth Amendment right
to effective counsel; and (2) the government’s
indictment on one set of facts and prosecution at trial on
another set of facts amounts to a constructive amendment, or
a variance, of the indictment. The Court considers these
arguments in turn:
First,
with respect to his Sixth Amendment argument, Larez contends
he was forced to switch his defense strategy mid-way through
trial, denying him effective representation of counsel.
See Sheppard v. Rees, 909 F.2d 1234, 1237-38 (9th
Cir. 1990). In Larez’s view, the “very
specific” narrative of the Chacon murder presented to
the grand jury encompassed not only the murder itself but
also Larez’s alleged role in the Nuestra
Familia and his relationship to other members of the
Nuestra Familia. Irrespective of the
government’s opening statement, government witness
Joseph O’Hara testified that the fatal shot to Chacon
came from a .25 caliber gun. (6/9/2016 Transcript at
4882:13-17.) Larez’s cross-examination of O’Hara
was premised on the notion that the government was pursuing
the same theory it presented to the grand jury. Said
otherwise, counsel for Larez crafted his cross-examination of
O’Hara to dismantle the government’s theory
before the grand jury that Larez fired the
“fatal” shot from the .25 caliber gun. Because
that cross-examination was complete before he learned that
Cruz admitted to firing the shot from the .25 caliber gun,
Larez argues he has been deprived of his Sixth Amendment
right to have a satisfactory opportunity to respond to the
“nature and cause of the accusation.”
Sheppard, 909 F.2d at 1236.
Sheppard
is readily distinguishable. In Sheppard, petitioner
sought habeas relief from a conviction by California, on
grounds that he was deprived of the right to prepare a proper
defense to a felony-murder charge. Id. at 1235.
Specifically, the State proceeded for the first after the
close of evidence and immediately before closing arguments,
on a theory of felony murder. On reconsideration before the
Ninth Circuit, the State even conceded that there was
“a pattern of government conduct affirmatively
misle[ading] the defendant, denying him an effective
opportunity to prepare a defense.” Id. at 1237
(emphasis removed). The Ninth Circuit agreed, finding a
violation of the petitioner’s Sixth Amendment rights.
Id. Here, by contrast, Larez was put on notice by
the 3SI (and, previously, the second ...