United States v. Cervantes

          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 ...