United States v. Muniz-Lopez ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1086
UNITED STATES OF AMERICA,
Appellee,
v.
MARIANO MUÑIZ-LÓPEZ, a/k/a Mito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Chief U.S. District Judge]
Before
Torruella, Selya, and Kayatta,
Circuit Judges.
Eric A. Vos, Federal Public Defender, Franco L.
Pérez-Redondo, Assistant Federal Public Defender, Supervisor,
Appeals Section, and Kevin E. Lerman, Research & Writing
Specialist, on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Antonio L. Pérez-Alonso, Assistant United States
Attorney, on brief for appellee.
October 1, 2020
KAYATTA, Circuit Judge. Mariano Muñiz-López appeals the
condition of his supervised release that he not contact his preteen
daughter for three years without approval from his probation
officer. He argues that the district court imposed the condition
based in part on an untranslated Spanish document in violation of
the Jones Act and that the condition is an unreasonable deprivation
of his liberty. Finding the Jones Act violation to be prejudicial,
we reverse the condition and remand for resentencing.
I.
In 2013, Muñiz-López was sentenced to a term of
imprisonment, to be followed by eight years of supervised release,
for federal drug offenses. In 2015, he began his supervised
release, with the standard conditions that he "not commit another
federal, state, or local crime," that he report to his probation
officer, that he follow the probation officer's instructions and
answer any inquiries truthfully, and that he notify the probation
officer of any change in residence or employment.
In early 2018, a magistrate judge found probable cause
that Muñiz-López had violated his supervised release after he
punched his then-girlfriend C.F. in the face.1 The district court
imposed an additional period of supervised release and added
1 The magistrate judge clarified that he "did not make any
finding that [Muñiz-López] punch[ed C.F.] in the face," only that
there was probable cause for the violation.
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conditions restricting Muñiz-López's contact with C.F. and
mandating anger-management counseling.
In April 2018, while still on supervised release,
Muñiz-López got into an argument with his then-eleven-year-old
daughter. She had asked him for some money. He gave her some,
and after she asked for more, he became upset and threw a half-
empty beer can in her direction. The can hit her in the face,
which caused bruising and swelling.
Shortly thereafter, the daughter's mother, S.R.,
reported the incident to Muñiz-López's probation officer, Ricardo
Cruz-Sanabria. Cruz-Sanabria interviewed S.R. and the daughter
about the incident. He visually observed the bruise on the
daughter's face. He also took a photograph with his phone of
another photo taken on the day of the incident that showed the
daughter's face immediately after being hit; however, Cruz-
Sanabria said that he lost the photo before any hearing on the
matter.
Cruz-Sanabria recommended that S.R. file a formal
complaint against Muñiz-López in Puerto Rico court regarding the
beer-can incident. S.R. eventually filed a petition for protective
order, written in Spanish. The Puerto Rico court scheduled a
hearing on the matter, but S.R. attended to say that "she was no
longer interested in going through" with the protective order. No
criminal charges were brought against Muñiz-López.
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Following the beer-can incident, the government moved
the district court to revoke Muñiz-López's supervised release on
the ground that he violated the condition that he not commit
another crime. The government subsequently notified the court
that Muñiz-López had violated additional conditions by, among
other things, failing to report to his probation officer.
The preliminary revocation hearing was referred to a
magistrate judge. The hearing focused mainly on the beer-can
incident. At first, it was unclear what crime the government
thought Muñiz-López had committed, but the government eventually
argued that he had committed "abuse" of a minor child in violation
of P.R. Laws Ann. tit. 8, § 1174. That statute punishes "[a]ny
father, mother, or person responsible for the well-being of a minor
or any other person who, through the intentional commission or
omission of an act, causes harm to a minor, or endangers his/her
health or physical, mental, or emotional integrity." P.R. Laws
Ann. tit. 8, § 1174. In support of this accusation, the government
relied on two sources of evidence: Cruz-Sanabria's testimony and
S.R.'s petition for protective order.
Cruz-Sanabria reported what S.R. and her daughter told
him during their interview and that he observed the bruise.
Muñiz-López's counsel objected that the testimony was speculative
and based on hearsay, but the magistrate judge overruled the
objections. The government sought to have S.R. herself testify,
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but she "d[id]n't want to go to a court again." So instead, the
government introduced the untranslated Spanish petition for
protective order. Muñiz-López's counsel objected that the
document was not in English. The magistrate judge granted the
government five days to file a translation, but the government
never did so. Muñiz-López's counsel went on to argue that the
document did not support a finding that Muñiz-López had committed
a crime. Providing an on-the-fly translation, she argued the
document said that Muñiz-López "threw a can and the can hit her,"
and not "he threw it at her," implying that he did not have the
requisite intent to hit his daughter.
Following the hearing and some additional briefing (to
which the government remarkably again appended the untranslated
petition), the magistrate judge issued an order finding probable
cause that Muñiz-López had committed the crime of abuse. As the
government now concedes, "the magistrate[ judge]'s determination
relied, in part, on [the] untranslated Spanish-language document."
The district court then held a final revocation hearing.
At the outset, the court told the government that Cruz-Sanabria's
testimony alone would not be enough to support a finding of
criminal conduct. "[F]or purposes of probable cause the probation
officer can testify," the court said, but S.R. and/or her daughter
would need to testify in person for revocation "because this would
involve probably an issue of credibility." The government
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responded that it was no longer pursuing revocation on the ground
that Muñiz-López had committed a crime, and was instead focusing
on the other violations (e.g., failure to report to the probation
officer), which Muñiz-López did not contest. When the court gave
Muñiz-López an opportunity to speak for himself, he requested that
the court assign him a different probation officer because
Cruz-Sanabria never ensured that he was attending his required
anger-management course. "God knows if I had gone to take that
anger management course this situation through which I am going
now may not have occurred," he said.
Based on the uncontested violations, the court revoked
Muñiz-López's supervised release and sentenced him to 160 days'
imprisonment, to be followed by three years of supervised release.
The district court also criticized Muñiz-López for blaming his
probation officer for his own shortcomings. The court then said,
"to avoid any issues, given what Mr. Muñiz[-López] has stated, I
will add some conditions of supervision." "[U]nless approved by
the probation officer," the court ruled, "you shall not have
contact with your daughter and your daughter's mother. If you
want to have physical contact, any type of physical contact, you
must inform the probation officer beforehand."
Muñiz-López's counsel asked the court to reconsider the
no-contact condition as to his daughter, but the court was firm.
"Based on what was probable cause before the magistrate judge I'm
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going to enter that directive at this time," the court said. "If
the local courts issue any directives, then you can ask me to
revisit. And, again, it's a condition I can remove at any time
but I'm doing this as a precaution for the time being and to allow
him to avoid any other problems."
The district court's written judgment states that,
"[u]nless approved by his U.S. Probation officer, [Muñiz-López]
shall not have any contact with . . . [his] daughter." Muñiz-López
timely appealed this condition on his supervised release.
II.
The Jones Act states that "[a]ll pleadings and
proceedings in the United States District Court for the District
of Puerto Rico shall be conducted in the English language."
48 U.S.C. § 864. When the government violates that requirement in
a criminal case, we look to see whether the defendant "suffer[ed]
any prejudice." United States v. Carela, 805 F.3d 374, 381 (1st
Cir. 2015). Such prejudice exists whenever the untranslated
submission had "the potential to affect" the disposition by the
district court of an issue raised on appeal. United States v.
Rivera-Rosario, 300 F.3d 1, 10 (1st Cir. 2002).
The government concedes that it caused a violation of
the Jones Act by submitting to the magistrate judge the protective-
order petition written in Spanish and then failing to supply an
English translation. It seems just as clear that the violation
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had the potential to affect the disposition of the question whether
Muñiz-López acted in a manner that warranted the no-contact
condition. The untranslated petition for protective order was
used in the proceeding before the magistrate judge, the magistrate
judge relied in part on that evidence in finding probable cause,
and the district court relied in substantial part on that finding
in imposing the no-contact condition.
The government argues that the district court would have
imposed the no-contact condition even without the magistrate
judge's probable cause finding. It points out that the court
initially imposed the condition in response to "what Mr. Muñiz
ha[d] stated" at the hearing -- i.e., that he needed anger-
management counseling and that his not attending that counseling
had gotten him into "this situation."2 But in response to
Muñiz-López's request for reconsideration, the district court said
it was imposing the condition "[b]ased on what was probable cause
before the magistrate judge." And the magistrate judge had found
probable cause that Muñiz-López had committed a crime -- including
the requisite mens rea -- not just that he needed anger management.
So, contrary to the government's assertion, the district court did
2 The government also suggests that the no-contact condition
may be based in part on Muñiz-López's history of abusing adult
women -- specifically, the incident in which he allegedly punched
C.F.
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indeed rely on the magistrate judge's probable cause finding in
imposing the no-contact condition.
The government also suggests that we might overlook this
reliance because Muñiz-López, while objecting to the magistrate
judge's reliance on the untranslated petition, did not object to
the district court's reliance on the magistrate judge's tainted
finding. However, we have previously held that "district court[s]
ha[ve] an 'independent duty' to ensure the proceedings [a]re
conducted in English, and so 'we relieve[] the parties of their
usual duty to contemporaneously object.'" United States v.
Román-Huertas, 848 F.3d 72, 76 (1st Cir. 2017) (quoting
Rivera-Rosario, 300 F.3d at 6–7). More importantly, even were we
to apply only clear error review, Muñiz-López would still prevail
given that the government concedes plain error, the prejudice is
also reasonably clear, and public policy -- as manifest in the
Jones Act -- weighs against letting a finding based on an
untranslated document stand. Cf. United States v.
Rivera-Rodríguez, 761 F.3d 105, 112 & n.7 (1st Cir. 2014)
(similarly noting, in the context of judicial interventions, that
the necessary showing of "prejudice" is "comparable" to the third
requirement of plain-error review, and that this sort of error
"necessarily" satisfies the fourth requirement).
So we turn to the question of remedy. Normally we would
ask whether the record minus the untranslated document would be
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sufficient to sustain the no-contact condition. See Rivera-
Rosario, 300 F.3d at 10. If so, we would vacate the order and
remand for reconsideration on the existing record without the
untranslated petition. See, e.g., id. at 11–13; see also
Román-Huertas, 848 F.3d at 78 ("The untranslated document was not
evidence, and so any certified translation would constitute new
evidence. In general, 'the district court may consider only such
new arguments or new facts as are made newly relevant by the court
of appeals' decision' on remand for resentencing." (quoting United
States v. Dávila-Félix, 763 F.3d 105, 110 (1st Cir. 2014))). If
not, we would simply reverse. See United States v. York, 357 F.3d
14, 20 (1st Cir. 2004) ("[T]he trial court's decision to impose
the challenged condition [of supervised release] must have
adequate evidentiary support in the record.").
Here, though, the district court -- not the
magistrate judge -- imposed the challenged no-contact condition,
while it was the magistrate judge -- not the district court -- that
relied on the untranslated petition in the first instance. So
perhaps we should direct our attention to the probable cause
determination? But even if we found that the magistrate judge
could have still found probable cause without the untranslated
petition (which is likely the case, see, e.g., Spinelli v. United
States, 393 U.S. 410, 412 (1969) ("[P]robable cause can be
satisfied by hearsay information . . . ."), abrogated on other
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grounds by Illinois v. Gates, 462 U.S. 213 (1983)), that would
leave open the question whether the district court still would
have found that probable cause determination based on
Cruz-Sanabria's testimony enough to rely on. In sum, this may be
an example of trying to put the toothpaste back in the tube.
Several factors suggest an alternative, more practical
solution. First, the district court expressed the view that the
government's case, relying on Cruz-Sanabria's testimony alone, was
not enough to support a finding of criminal conduct. And without
the untranslated petition, the government is left with only Cruz-
Sanabria's testimony. Second, Muñiz-López has already spent
approximately nineteen months restricted by the no-contact
condition. And the district court, too, recognized that the three-
year term might well be excessive, inviting Muñiz-López to return
to the court to seek the removal of the condition. Third, the
district court likely had the option of requiring additional
participation in an approved program for domestic violence.
The nature of the condition at issue also suggests that
the details of the beer-can incident were important. Ordering
that a father cannot have any contact with his daughter for three
years, save for permission from a probation officer, is a very
significant condition that interferes with family relationships.
See generally United States v. Del Valle-Cruz, 785 F.3d 48 (1st
Cir. 2015). Its duration likely exceeds the restrictions that a
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court more accustomed to dealing with the complexity of family
disputes likely would issue. Certainly such a court would demand
a substantial showing that such a condition was necessary and on
balance beneficial to the child.
Given all of this, we are convinced that the district
court would not have imposed the same condition if it had known
that the probable cause finding rested in part on the untranslated
petition. We therefore reverse the challenged special condition
to the extent it would otherwise continue to apply after the date
of this opinion, and remand for further proceedings consistent
with this opinion. On remand, the district court shall not
consider the petition, but may consider events that have occurred
since the prior hearing to the extent made relevant by this remand.
See Román-Huertas, 848 F.3d at 78. Because we are reversing the
no-contact condition on Jones Act grounds, we need not address
Muñiz-López's additional claim that the condition unreasonably
deprives him of his liberty interests.
III.
For the foregoing reasons, we reverse the condition on
supervised release and remand for resentencing consistent with
this opinion.
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