United States v. Cazares , 788 F.3d 956 ( 2015 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,              No. 06-50677
    Plaintiff-Appellee,
    D.C. No.
    v.                    CR-04-00415-PA
    -04
    FERNANDO CAZARES, AKA
    SNEAKY,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,              No. 06-50678
    Plaintiff-Appellee,
    D.C. No.
    v.                    CR-04-00415-PA
    -02
    GILBERT SALDANA,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,              No. 06-50679
    Plaintiff-Appellee,
    D.C. No.
    v.                    CR-04-00415-PA
    -01
    ALEJANDRO MARTINEZ,
    Defendant-Appellant.
    2                 UNITED STATES V. CAZARES
    UNITED STATES OF AMERICA,                          No. 07-50037
    Plaintiff-Appellee,
    D.C. No.
    v.                          CR-04-00415-PA
    -05
    PORFIRIO AVILA, AKA Dreamer,
    Defendant-Appellant.                   OPINION
    Appeal from the United States District Court
    for the Central District of California
    Percy Anderson, District Judge, Presiding
    Argued October 11, 2012
    Submitted May 14, 2015
    Pasadena, California
    Filed May 14, 2015
    Before: Harry Pregerson and William A. Fletcher, Circuit
    Judges, and Lawrence L. Piersol,* Senior District Judge.
    Opinion by Judge Piersol
    *
    The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
    District Court for South Dakota, sitting by designation.
    UNITED STATES V. CAZARES                            3
    SUMMARY**
    Criminal Law
    The panel affirmed the convictions of (1) Fernando
    Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio
    Avla, all members of the Avenues 43 Latino street gang, for
    violating 
    18 U.S.C. § 241
     by conspiring to intimidate
    African-American citizens in the Highland Park
    neighborhood of Los Angeles and to deprive them of their
    constitutional right to “purchase, lease and hold real and
    personal property, and the right to occupy a dwelling, free
    from intimidation based on race”; and (2) Cazares, Saldana,
    and Martinez for violating (a) 
    18 U.S.C. §§ 245
    (b)(2)(B), and
    2(a) by shooting Kenneth Kurry Wilson, an African-
    American man, because of his race and color and because
    he was enjoying facilities provided and administered by
    a subdivision of the State; and (b) 
    18 U.S.C. §§ 924
    (c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill
    Wilson while carrying out the charged conspiracy.
    The panel held that the defendants’ due process rights
    were not violated by their being shackled to their chairs
    during the trial.
    The panel wrote that the reasons stated by the district
    court for holding most of the voir dire in private would not be
    sufficient to avoid a determination that the defendants’ rights
    to a public trial were violated, but held that the defendants
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    4               UNITED STATES V. CAZARES
    validly waived their right to be present at voir dire and their
    right to a public trial.
    The panel held that admission of hearsay statements
    pursuant to the doctrine of forfeiture by wrongdoing was not
    reversible error.
    The panel held that it was improper expert testimony and
    a violation of Fed. R. Evid. 703 for an officer to identify
    Avenues gang members and the officers assigned to the
    investigations of Avenues as his source for characterizing
    Martinez, Saldana, and Avila as the most violent members of
    the Avenues and the members with the most clout. The panel
    held that more general testimony regarding the Avenues gang
    members’ attitudes towards black people is permissible, but
    that if there was error in allowing the officer to testify
    regarding those attitudes, it most likely did not have a
    substantial effect on the jury’s verdict. The panel held that
    the defendants cannot on this record establish that admission
    of the officer’s testimony constituted plain error under the
    Confrontation Clause.
    The panel held that the district court did not err in
    denying Saldana’s motion to suppress statements he made to
    the police without being given his Miranda rights, where
    Saldana was never in custody.
    The panel rejected as waived, and on the ground of
    invited error, the defendants’ claim that their rights under the
    Confrontation Clause were violated by testimony, in response
    to a question asked during cross-examination, regarding a
    non-testimonial conversation being gang members.
    UNITED STATES V. CAZARES                    5
    The panel rejected the defendants’ contention that the
    district court denied the defendants their rights to effective
    cross-examination and confrontation by limiting and
    precluding cross-examination of four witnesses.
    The panel held that any error in permitting the
    government’s expert to testify that her firearm identification
    findings were made to a “scientific certainty” was harmless.
    The panel held that § 245(b)(2)(B) is constitutional as
    applied to this case.
    The panel concluded that the overall effect of any errors
    that were committed do not violate the defendants’ due
    process rights to a fair trial.
    COUNSEL
    Verna Wefald (argued), Law Offices of Verna Wefald,
    Pasadena, California, for Defendant-Appellant Fernando
    Cazares.
    Wayne R. Young (argued), Law Office of Wayne R. Young,
    Santa Monica, California, for Defendant-Appellant Alejandro
    Martinez.
    Jonathan Libby (argued), Deputy Federal Public Defender,
    Sean K. Kennedy, Federal Public Defender, Federal Public
    Defender’s Office, Los Angeles, California, for Defendant-
    Appellant Gilbert Saldana.
    Karen L. Landau (argued), Law Office of Karen L. Landau,
    Oakland, California, for Defendant-Appellant Porfirio Avila.
    6               UNITED STATES V. CAZARES
    Thomas E. Chandler (argued) and Jessica Dunsay Silver,
    Attorneys, Thomas E. Perez, Assistant Attorney General,
    Department of Justice, Civil Rights Division, Appellate
    Section, Washington, D.C., for Plaintiff-Appellee.
    OPINION
    PIERSOL, Senior District Judge:
    A jury found defendants Fernando Cazares, Gilbert
    Saldana, Alejandro Martinez, and Porfirio Avila guilty of
    violating 
    18 U.S.C. § 241
     by conspiring to intimidate
    African-American citizens in the Highland Park
    neighborhood of Los Angeles and to deprive them of their
    constitutional right to “purchase, lease and hold real and
    personal property, and the right to occupy a dwelling, free
    from intimidation based on race.” The jury found defendants
    Cazares, Saldana, and Martinez guilty of violating 
    18 U.S.C. §§ 245
    (b)(2)(B), and 2(a) by shooting Kenneth Kurry Wilson,
    an African-American man, because of his race and color and
    because he was enjoying facilities provided and administered
    by a subdivision of the State, namely the public streets of Los
    Angeles. The jury also found defendants Cazares, Saldana,
    and Martinez guilty of violating 
    18 U.S.C. §§ 924
    (c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill
    Kenneth Kurry Wilson while carrying out the charged
    conspiracy.
    The defendants are members of the Avenues 43, a Latino
    street gang in the Highland Park area, an area inhabited
    predominantly by Latinos. One of the tenets of the Avenues
    43 was to harass and use violence to drive African-Americans
    out of the Highland Park area. The conspiracy charged in the
    UNITED STATES V. CAZARES                      7
    Second Superseding Indictment alleges overt acts continuing
    from 1995 through 2001 and involving racial slurs, threats,
    assaults, harassment, and murder directed at African-
    American residents of the Highland Park area, with the intent
    of causing the African-American residents to leave the
    Highland Park area.
    Several black residents and former residents of the
    Highland Park area testified as to the harassment and violence
    the black residents of the Highland Park area suffered at the
    hands of the Avenues 43 gang members. The government
    also relied heavily on the testimony of former Avenues gang
    members, Jesse Diaz and Jose De La Cruz, who were
    incarcerated on state convictions, for evidence specific to the
    defendants.
    The district court sentenced Saldana, Cazares, and
    Martinez each to two consecutive sentences of life
    imprisonment and sentenced Avila to life imprisonment.
    All of the defendants allege constitutional errors during
    trial based on their being shackled to their chairs, their not
    being present for most of the voir dire, the admission of
    hearsay, and the limiting of cross examination of several
    government witnesses. All of the defendants allege the
    district court abused its discretion by allowing improper gang
    expert testimony and by permitting another government’s
    expert to testify that her firearm identifications were made to
    a scientific certainty. Defendants Saldana, Cazares, and
    Martinez argue that Count Two of the Superseding
    Indictment should have been dismissed because 
    18 U.S.C. § 245
    (b)(2)(b) is unconstitutional on its face and as applied to
    this case because its enactment and enforcement in the case
    of a murder committed on a public street exceeds Congress’s
    8               UNITED STATES V. CAZARES
    limited powers. All of the defendants argue that the alleged
    cumulative errors at trial deprived them of their Fifth
    Amendment Due Process rights to a fair trial.
    Defendant Gilbert Saldana submitted a supplemental
    opening brief contending that the district court erred in
    denying his motion to suppress statements made without
    Miranda warnings. The district court denied Saldana’s
    suppression motion mid-trial without making findings or
    stating the basis of the ruling on the record. We issued an
    unpublished memorandum disposition reversing the denial of
    Saldana’s motion to suppress and remanding to the district
    court for fact finding on whether Saldana was in custody
    when he made these statements to the police. We deferred
    submission of the rest of the appeal pending the district
    court’s fact finding. See United States v. Cazares, 517 F.
    App’x 597 (9th Cir. 2013). The district court later issued and
    filed with this Court seven pages of findings of fact in support
    of the denial of Saldana’s motion to suppress.
    This Court has jurisdiction pursuant to 
    28 U.S.C. § 1291
    .
    We affirm on all issues.
    DISCUSSION
    I.
    THE USE OF SHACKLES
    Defendants contend their rights to due process were
    violated by being shackled to their chairs during the trial. We
    review the decision to shackle defendants during trial under
    an abuse of discretion standard. Morgan v. Bunnell, 
    24 F.3d 49
    , 50 (9th Cir. 1994) (per curiam). We place restrictions,
    UNITED STATES V. CAZARES                      9
    however, on that discretion in that: (1) “the court must be
    persuaded by compelling circumstances that some measure
    was needed to maintain the security of the courtroom”; and
    (2) “the court must pursue less restrictive alternatives before
    imposing physical restraints.” United States v. Fernandez,
    
    388 F.3d 1199
    , 1245 (9th Cir. 2004) (quoting Jones v. Meyer,
    
    899 F.2d 883
    , 885 (9th Cir. 1990)).
    Factual Background Concerning Shackling
    Before trial, counsel for Cazares submitted a declaration
    expressing his concern that the defendants would be
    handcuffed with shackles on their legs and chained to their
    seats at trial. Counsel based his concern on the fact that the
    trial was ordered to be held in the Roybal security courtroom
    and that at prior proceedings in that courtroom the marshals
    had handcuffed, shackled, and chained defendants to their
    seats. Counsel for Cazares declared under oath that at each
    court proceeding he attended the defendants had behaved as
    gentlemen and had not exhibited any behavior or demeanor
    that would indicate an intention to disrupt proceedings,
    escape, or assault anyone. In initially ruling on the issue the
    district court stated, “I wouldn’t be over here in this
    courtroom if I was – this courtroom, I guess, was built by
    taxpayers’ expense for cases like this, and so, at least at this
    point, I’m going to deny that motion without prejudice, and
    we’ll see.”
    At the beginning of the trial, after it was called to the
    court’s attention that some of the prospective jurors had seen
    the defendants shackled on a video feed in a different
    courtroom, the potential jurors were questioned and the few
    that had possibly seen the shackles were excused. A three-
    and-a-half to four-foot barrier had been placed in the
    10               UNITED STATES V. CAZARES
    courtroom to prevent the jurors from seeing shackles or
    handcuffs when the defendants were seated. A journalist,
    however, saw that the defendants were shackled to their
    chairs and reported in the Los Angeles Times that the
    defendants were shackled but that when they were seated the
    shackling was not visible. The district court called the article
    to the attention of counsel and proposed cautioning the jury
    again about not reading anything about the case and inquiring
    whether any prospective juror had in fact read any articles
    about the case. Defense counsel restated their objection,
    moved for a mistrial, and moved to unshackle the defendants
    from the chairs so they could stand at appropriate times. The
    district court responded that he would talk to the marshals,
    but noted that two of the defendants were serving life terms
    for murder from state proceedings.
    The district court took the shackles into his consideration
    from the outset of the trial. If the voir dire had been
    conducted at sidebar the jurors would likely have been able
    to see the defendants’ shackles. The district court therefore
    decided against doing individual juror questioning at sidebar.
    At the beginning of the voir dire process, the district court
    said, “I think we will do this [i.e., voir dire] over in the jury
    room across the hall there because there is a chance that they
    could see something back here. Okay. So I will just tell them
    we are going to do this over there.” In context, it is quite
    clear that when the judge said that “there is a chance they
    could see something back here” he was talking about
    prospective jurors seeing defendants’ shackling from the
    angle at which the sidebar would take place.
    During the course of voir dire, counsel for the defendants
    renewed their objection to the jury pool. The district court
    denied the motion at the time because he did not find that
    UNITED STATES V. CAZARES                     11
    there had been any taint of the prospective jurors, but advised
    that he would take action if a level of taint was established.
    The district court continued to question potential jurors about
    whether they had seen the defendants on the monitor. One of
    the potential jurors responded that he had seen the defendants
    escorted in the courtroom and that ‘[i]t looked like they had
    handcuffs on behind their backs.” This potential juror also
    stated, “I think we all just looked at it, and I don’t think
    anybody really said anything.”
    The district court dismissed all but six of the panel that
    had been in the courtroom with the video monitor. Those six
    were seated in the jury box and the district court concluded
    that they had not seen the defendants on the monitor. Other
    potential jurors denied seeing the defendants on the monitor
    before voir dire commenced. A few stated that they had seen
    the defendants on the monitor before voir dire commenced,
    but that the defendants were seated. Another prospective
    juror stated that he had seen on the monitor what he assumed
    to be, possibly incorrectly, a defendant walking in the
    courtroom. After voir dire was completed, the district court
    announced that all the potential jurors who had possibly seen
    the defendants in shackles had been excused and that the
    district court was satisfied that the panel was not tainted. The
    district court again pointed out the placement of the barrier
    that prevented the jurors from seeing any shackles or
    handcuffs when the defendants were seated. Counsel
    objected to the shackling, because it would prevent the
    defendants from getting up and down during the trial, and
    renewed the motion for mistrial. Counsel also moved the
    district court for an order to unshackle the defendants from
    their chairs, so that even though they were wearing leg
    shackles they could stand up and down throughout the trial.
    The district court responded to the renewed motion by stating
    12              UNITED STATES V. CAZARES
    that he would talk to the marshals and by again noting that at
    least two of the defendants were serving life sentences for
    murder. Based on the Los Angeles Times article referencing
    the shackles, the district court then asked the potential jurors
    if any had read a news report regarding the case, but none of
    the potential jurors responded.
    Applicable Law on Shackling
    “[G]iven their prejudicial effect, due process does not
    permit the use of visible restraints if the trial court has not
    taken account of the circumstances of the particular case.”
    Deck v. Missouri, 
    544 U.S. 622
    , 632 (2005). The rationale
    against shackling is that “[v]isible shackling undermines the
    presumption of innocence and the related fairness of the
    factfinding process.” 
    Id. at 630
    . “In the presence of the jury,
    [the defendant] is ordinarily entitled to be relieved of
    handcuffs, or other unusual restraints, so as not to mark him
    as an obviously bad man or to suggest that the fact of his guilt
    is a foregone conclusion.” Stewart v. Corbin, 
    850 F.2d 492
    ,
    497 (9th Cir. 1988) (citation omitted). A trial court may
    order that a defendant be shackled during trial only after the
    trial court is “persuaded by compelling circumstances that
    some measure is needed to maintain security of the
    courtroom” and if the trial court pursues “less restrictive
    alternatives before imposing physical restraints.” Duckett v.
    Godinez, 
    67 F.3d 734
    , 748 (9th Cir. 1995) (quotation marks
    and citation omitted).
    In deciding whether less restrictive alternatives to
    shackling exist, a trial court must begin by assessing the
    disadvantages and limitations if shackles are applied to a
    defendant. Spain v. Rushen, 
    883 F.2d 712
    , 721 (9th Cir.
    1989).    Such disadvantages and limitations include
    UNITED STATES V. CAZARES                     13
    (1) reversal of the presumption of innocence, (2) impairment
    of the defendant’s mental ability, (3) impeding of
    communication between the defendant and his counsel,
    (4) detraction from the decorum of the trial, and (5) pain. 
    Id.
    “After considering these factors, the trial judge ‘must weigh
    the benefits and [these] burdens of shackling against other
    possible alternatives.’” Jones, 
    899 F.2d at 885
     (9th Cir.
    1990) (alteration in original) (quoting Spain, 
    883 F.2d at 721
    ).
    There are no explicit findings in the record regarding the
    existence of compelling circumstances or the possibility of
    less restrictive alternatives to shackling. “Yet we have never
    held, and we refuse to hold now, that a trial court must
    conduct a hearing and make findings before ordering that a
    defendant be shackled.” Id. at 886.
    The district court judge in this case was conducting a trial
    in which all four defendants were members of a violent gang,
    two of the defendants had already been sentenced to life
    sentences in state court, and all of the defendants were facing
    life sentences as a result of the federal charges. It is apparent
    from the record that the district court judge consulted with the
    marshals regarding the security considerations inherent in
    shackling. We have held that a trial judge has wide discretion
    to decide whether increased security measures are required
    when dealing with a defendant who has a propensity for
    violence. Morgan, 
    24 F.3d at 51
    . To reduce the risk of
    prejudice from the shackling, the district court judge carefully
    questioned the potential jurors during voir dire to preclude
    seating jurors who had seen any defendants in shackles on the
    monitor. In addition, the barrier that was placed in the
    courtroom to prevent the jurors from seeing the shackles
    minimized or eliminated the disadvantages of shackles
    14              UNITED STATES V. CAZARES
    regarding reversal of the presumption of innocence and
    detraction from the decorum of the trial. Visibility of the
    shackles is critical to the determination of the due process
    issue. United States v. Mejia, 
    559 F.3d 1113
    , 1117 (9th Cir.
    2009); see also Williams v. Woodford, 
    384 F.3d 567
    , 592 (9th
    Cir. 2004) (“When the jury never saw the defendant’s
    shackles in the courtroom, we have held that the shackles did
    not prejudice the defendant’s right to a fair trial.”).
    Defendants have made no claims and presented no evidence
    regarding the shackles affecting their mental abilities or
    communications with counsel, or causing them pain. Even if
    the district court did not fully state on the record his reasons
    for shackling and his assessment of less restrictive
    alternatives before ordering shackling in this case, the
    defendants are not entitled to a reversal based on this record.
    In Cox v. Ayers, we set forth four factors that a criminal
    defendant must satisfy to establish that his shackling at trial
    amounted to a due process violation. 
    613 F.3d 883
    , 890 (9th
    Cir. 2010). These four factors are (1) that the defendant was
    physically restrained in the presence of the jury; (2) that the
    shackling was seen by the jury; (3) that the physical restraint
    was not justified by state interests; and (4) that he suffered
    prejudice as result of the shackling. 
    Id.
     (quoting Ghent v.
    Woodford, 
    279 F.3d 1121
    , 1132 (9th Cir. 2002)). These
    factors are not present in this case.
    Defendants acknowledge that it is not clear whether any
    of the sitting jurors actually saw them in shackles.
    Defendants argue, however, that even if the jurors did not see
    the leg and waist shackles, they had to believe the defendants
    were dangerous based on the district court judge questioning
    and based on the defendants’ immobility during a trial in a
    UNITED STATES V. CAZARES                           15
    courtroom in which the marshals outnumbered the
    defendants.
    This argument is not persuasive. The voir dire
    questioning did not suggest any characteristic of the
    defendants. In addition, as the district court judge explained
    in response to the request to unshackle the defendants, there
    is no expectation of mobility of defendants in the courtroom
    during a trial. The shackles were not visible and the
    defendants’ due process rights were not violated by the
    shackling.1
    II.
    VOIR DIRE CONDUCTED OUTSIDE THE
    PRESENCE OF THE DEFENDANTS AND PUBLIC
    Defendants contend their constitutional rights to a public
    trial and to be present at trial were violated when the district
    court conducted much of the voir dire in camera and outside
    their presence. Defendants concede that they did not object
    to voir dire being conducted in camera, so this Court reviews
    the issue for plain error. United States v. Mageno, 
    762 F.3d 933
    , 940 (9th Cir. 2014). “First, for us to reverse the jury
    verdict in this case, there must be error that is plain.” 
    Id. at 943
     (emphasis omitted). Even then, we must find that the
    error seriously affected “the fairness, integrity, or public
    reputation of the judicial proceedings” before exercising
    discretion to correct the error. 
    Id. at 940
     (quoting Puckett v.
    United States, 
    556 U.S. 129
    , 135 (2009)).
    1
    In addition, the unconstitutional shackling of a defendant results in
    prejudice only if the evidence of guilt is not “overwhelming.” Cox,
    
    613 F.3d at 891
    . The evidence of guilt in this case was overwhelming.
    16              UNITED STATES V. CAZARES
    Factual Background on Right to be Present and to Public
    Trial
    Jury selection in this case took over five-and-one-half
    days. Most of the voir dire took place outside the presence of
    the defendants and the public in a jury room. Defense
    counsel, however, was present. Although appearances,
    instruction, admonitions, general voir dire, and exercise of
    peremptory challenges took place in open court, substantial
    questioning of prospective jurors regarding whether they had
    seen or heard the defendants on the video monitor,
    questioning regarding hardship and bias, and legal argument,
    took place in the jury room outside the presence of the
    defendants and the public. The trial transcript repeatedly
    references that voir dire was being held in the jury room
    outside the presence of the defendants.
    The district court had a reason for not conducting voir
    dire at sidebar. As was indicated in the previous discussion
    concerning shackling, if the voir dire had been conducted at
    sidebar, the prospective jurors would likely have been able to
    see the defendants’ shackles. As a result, the district court
    decided against hardship and other voir dire questioning at
    sidebar. At the beginning of voir dire, the district judge said,
    “I think we will do this [i.e., voir dire] over in the jury room
    across the hall there, because there is a chance that they could
    see something back here. Okay. So I will just tell them we
    are going to do this over there.” In context, it is quite clear
    that when the judge said that “there is a chance they could see
    something back here” he was talking about prospective jurors
    seeing defendants’ shackling from the angle at which the voir
    dire sidebar examination of prospective jurors would take
    place.
    UNITED STATES V. CAZARES                     17
    Neither defendants nor their counsel objected to the voir
    dire taking place in the jury room outside the presence of the
    defendants and the public. In fact, one of the defendant’s
    counsel stated: “I think that the selection ought to be done the
    same way as it was done earlier because it would look a little
    odd if the new – the jurors already seated, having gone
    through this rather extensive private interviews, now see that
    the new batch doesn’t have that.”
    At one point the district court advised of his intent to
    question jurors about vacation time in another courtroom and
    stated, “I guess I need to probably get a waiver from your
    clients.” One of the defendant’s counsel responded, “Your
    Honor, I can’t imagine my client would have an objection to
    us going over and doing that.” Before the district court and
    counsel moved to the other courtroom the district court
    inquired of each defendant whether he objected to proceeding
    in this manner. Each defendant consented orally on the
    record to this plan. When jury selection was finished and
    defense counsel was asked if there was any legal cause why
    the jury panel should not be sworn, each defendant’s counsel
    responded “no.”
    Right to be Present at Voir Dire
    Federal Rule of Criminal Procedure 43(a)(2) states that
    unless provided otherwise a defendant must be present at
    “every trial stage, including jury impanelment.” In United
    States v. Gagnon, the Court explained the constitutional basis
    of the right of a defendant to be present at his court
    proceedings:
    The constitutional right to presence is rooted
    to a large extent in the Confrontation Clause
    18              UNITED STATES V. CAZARES
    of the Sixth Amendment, e.g., Illinois v.
    Allen, 
    397 U.S. 337
     (1970), but we have
    recognized that this right is protected by the
    Due Process Clause in some situations where
    the defendant is not actually confronting
    witnesses or evidence against him. In Snyder
    v. Massachusetts, 
    291 U.S. 97
     (1934), the
    Court explained that a defendant has a due
    process right to be present at a proceeding
    “whenever his presence has a relation,
    reasonably substantial, to the fulness of his
    opportunity to defend against the charge . . . .
    [T]he presence of a defendant is a condition of
    due process to the extent that a fair and just
    hearing would be thwarted by his absence,
    and to that extent only.” 
    Id.
     at 105–06, 108;
    see also Faretta v. California, 
    422 U.S. 806
    ,
    819 n.15 (1975). The Court also cautioned in
    Snyder that the exclusion of a defendant from
    a trial proceeding should be considered in
    light of the whole record. 
    291 U.S. at 115
    .
    
    470 U.S. 522
    , 526 (1985) (per curiam). Further, under the
    Due Process Clause, “a defendant is guaranteed the right to
    be present at any stage of the criminal proceeding that is
    critical to its outcome if his presence would contribute to the
    fairness of the procedure.” Kentucky v. Stincer, 
    482 U.S. 730
    ,
    745 (1987).
    In Gomez v. United States, the Court discussed the
    significance of voir dire:
    [I]n affirming voir dire as a critical stage of
    the criminal proceeding, during which the
    UNITED STATES V. CAZARES                    19
    defendant has a constitutional right to be
    present, the Court wrote: “‘[W]here the
    indictment is for a felony, the trial
    commences at least from the time when the
    work of empanelling the jury begins.’” Lewis
    v. United States, 
    146 U.S. 370
    , 374 (1892)
    (quoting Hopt v. Utah, 
    110 U.S. 574
    , 578
    (1884)). See Swain v. Alabama, 
    380 U.S. 202
    ,
    219 (1965) (voir dire “a necessary part of trial
    by jury”); see also Ricketts v. Adamson,
    
    483 U.S. 1
    , 3 (1987); United States v. Powell,
    
    469 U.S. 57
    , 66 (1984). Jury selection is the
    primary means by which a court may enforce
    a defendant’s right to be tried by a jury free
    from ethnic, racial, or political prejudice,
    Rosales-Lopez v. United States, 
    451 U.S. 182
    ,
    188 (1981); Ham v. South Carolina, 
    409 U.S. 524
     (1973); Dennis v. United States, 
    339 U.S. 162
     (1950), or predisposition about the
    defendant’s culpability, Irvin v. Dowd,
    
    366 U.S. 717
     (1961).
    
    490 U.S. 858
    , 873 (1989). The right of a defendant to be
    present during all critical stages of the court proceedings is
    subject to harmless error analysis, unless that deprivation, by
    its nature, cannot be considered harmless. Rushen v. Spain,
    
    464 U.S. 114
    , 117–21 (1983) (per curiam) (holding that an
    unrecorded ex parte communication between a trial judge and
    juror was harmless error).
    Right to a Public Trial
    The Sixth Amendment provides, in relevant part, that
    “[i]n all criminal prosecutions, the accused shall enjoy the
    20              UNITED STATES V. CAZARES
    right to a speedy and public trial.” The Sixth Amendment
    right to a public trial extends beyond the actual proof
    presented at a trial. See, e.g., Waller v. Georgia, 
    467 U.S. 39
    ,
    44–47 (1984) (pretrial suppression hearing must be open to
    the public). The Supreme Court has held that the right to a
    public trial extends beyond the accused and can be invoked
    under the First Amendment. Press-Enterprise Co. v.
    Superior Court of Cal., Riverside Cnty., 
    464 U.S. 501
     (1984).
    In Presley v. Georgia, the Court held that a defendant’s
    Sixth Amendment right to a public trial was violated when
    the trial court excluded the public from the voir dire of
    prospective jurors. 
    558 U.S. 209
    , 213 (2010) (per curiam).
    In Presley, the trial court advised a courtroom observer, the
    defendant’s uncle, that he would not be allowed in the
    courtroom while the jury was selected but that he could come
    in after jury selection. When counsel for the defendant
    objected to the exclusion of the public from the courtroom,
    the trial court explained that there was not space for the
    public to sit in the audience and that there was “really no need
    for the uncle to be present during jury selection.” 
    Id. at 210
    .
    The Court concluded that the question of whether the Sixth
    Amendment right to a jury trial extends to jury voir dire was
    so well settled that it could proceed by summary disposition:
    The point is well settled under Press-
    Enterprise I and Waller. The extent to which
    the First and Sixth Amendment public trial
    rights are coextensive is an open question, and
    it is not necessary here to speculate whether or
    in what circumstances the reach or protections
    of one might be greater than the other. Still,
    there is no legitimate reason, at least in the
    context of juror selection proceedings, to give
    UNITED STATES V. CAZARES                     21
    one who asserts a First Amendment privilege
    greater rights to insist on public proceedings
    than the accused has. “Our cases have
    uniformly recognized the public-trial
    guarantee as one created for the benefit of the
    defendant.” Gannett Co. v. DePasquale, 
    443 U.S. 368
    , 380 (1979). There could be no
    explanation for barring the accused from
    raising a constitutional right that is
    unmistakably for his or her benefit. That
    rationale suffices to resolve the instant matter.
    Id. at 213.
    The Supreme Court in Presley admonished that “[t]rial
    courts are obligated to take every reasonable measure to
    accommodate public attendance at criminal trials.” Id. at
    215.      Although the Supreme Court acknowledged
    circumstances that would warrant closing voir dire to the
    public, the Court directed that “in those cases, the particular
    interest, and threat to that interest, must ‘be articulated along
    with findings specific enough that a reviewing court can
    determine whether the closure order was properly entered.’”
    Id. (quoting Press-Enterprise, 
    464 U.S. at 510
    ).
    The district court in this case stated that its “practice,
    generally,” and especially in longer cases, was to conduct
    hardship voir dire in the jury room. The district court
    explained that addressing hardship issues in the adjacent
    conference room “will just be easier and nobody will be able
    to hear us.” The district court also stated that he was bringing
    in the prospective jurors one at a time to the jury room to
    consider hardship issues because “if people don’t get the idea
    that people are getting out, it may keep it down to a
    22               UNITED STATES V. CAZARES
    reasonable number.” Had any of the defendants asserted their
    rights to a public trial, the reasons stated by the district court
    for holding most of voir dire in private would not be
    sufficient to avoid a determination that the defendants’ rights
    to a public trial were violated. The United States argues that
    although the district court did not expressly make the Presley
    finding, it was clear that the district court was conducting the
    individual voir dire in private because of the nature of the
    bias and hardship questions. The questions asked were not of
    an intensely personal nature so that argument is not supported
    by the record.
    Harmless Error or Structural Error
    In Arizona v. Fulminante, the Supreme Court divided
    constitutional errors into two classes: trial errors and
    structural defects. 
    499 U.S. 279
    , 307 (1991). Trial errors
    “occurred during presentation of the case to the jury” and
    their effect may “be quantitatively assessed in the context of
    other evidence presented in order to determine whether [they
    were] harmless beyond a reasonable doubt.” 
    Id.
     at 307–08.
    Structural defects, however, “defy analysis by
    ‘harmless-error’ standards” because they “affect[] the
    framework within which the trial proceeds,” and are not
    “simply an error in the trial process itself.” 
    Id.
     at 309–10.
    The denial of the right to public trial has been categorized as
    a structural defect. United States v. Gonzalez-Lopez,
    
    548 U.S. 140
    , 149 (2006) (citing Waller, 
    467 U.S. at 49, n.9
    ).
    If the right to a public trial had not been waived, defendants
    would have a persuasive argument that their right to a public
    trial was violated when most of voir dire was conducted in
    private.
    UNITED STATES V. CAZARES                     23
    “The Supreme Court has never held that the exclusion of
    a defendant from a critical stage of his criminal proceedings
    constitutes a structural error.” Campbell v. Rice, 
    408 F.3d 1166
    , 1172 (9th Cir. 2005). In making this statement, we
    relied on Rushen v. Spain, in which the Supreme Court found
    that a juror’s ex parte communication with the trial judge was
    harmless beyond a reasonable doubt. 464 U.S. at 117–21. In
    United States v. Gagnon, the Supreme Court emphasized,
    “[T]he presence of a defendant is a condition of due process
    to the extent that a fair and just hearing would be thwarted by
    his absence, and to that extent only.’” 
    470 U.S. at 526
    (quoting Snyder v. Massachusetts, 
    291 U.S. 97
    , 105–06
    (1934)).
    In Gagnon, the district court judge had a communication
    with a juror who was concerned that one of the defendants
    was sketching the juror. The district court advised in open
    court that he was going to have this communication without
    the defendants being present, and no objection was made. Id.
    at 523. The Supreme Court characterized the communication
    as follows:
    The encounter between the judge, the juror,
    and Gagnon’s lawyer was a short interlude in
    a complex trial; the conference was not the
    sort of event which every defendant had a
    right personally to attend under the Fifth
    Amendment. Respondents could have done
    nothing had they been at the conference, nor
    would they have gained anything by
    attending.
    Id. at 527. The private voir dire in the case at hand was not
    “a short interlude” to the extent that it took place for most of
    24              UNITED STATES V. CAZARES
    the five-and-one-half days of voir dire. However, it is
    difficult to see how the defendants’ presence would have
    changed the composition of the jury panel, see Gray v.
    Mississippi, 
    481 U.S. 648
    , 665 (1987), or otherwise affected
    the outcome of the case. It is unclear what defendants would
    have gained by attending the voir dire, especially since their
    counsel was in attendance. Nonetheless, the defendants
    should have been in attendance to view prospective jurors,
    see the reactions, both oral and physical, of prospective jurors
    to questioning, and consult with their defense counsel.
    Waiver
    We have recognized that “[a]lthough a defendant charged
    with a felony has a fundamental right to be present during
    voir dire, this right may be waived.” United States v.
    Sherwood, 
    98 F.3d 402
    , 407 (9th Cir. 1996) (citing Campbell
    v. Wood, 
    18 F.3d 662
    , 672–73 (9th Cir. 1994) (en banc)
    (defendant in a capital case waived his right to be present
    during voir dire by expressing his desire not to be present);
    see also Gagnon, 
    470 U.S. at 529
     (“We hold that failure by a
    criminal defendant to invoke his right to be present under
    Federal Rule of Criminal Procedure 43 at a conference which
    he knows is taking place between the judge and a juror in
    chambers constitutes a valid waiver of that right.”). The right
    to a public trial can also be waived. See Levine v. United
    States, 
    362 U.S. 610
    , 619 (1960) (“The continuing exclusion
    of the public in this case is not to [be] deemed contrary to the
    requirements of the Due Process Clause without a request
    having been made to the trial judge to open the courtroom at
    the final stage of the proceeding . . . .”).
    “[C]ourts must indulge every reasonable presumption
    against the loss of constitutional rights.” Illinois v. Allen,
    UNITED STATES V. CAZARES                  25
    
    397 U.S. 337
    , 343 (1970) (citing Johnson v. Zerbst, 
    304 U.S. 458
    , 464 (1938)). In Campbell v. Wood, we explained:
    A waiver is an “intentional relinquishment or
    abandonment of a known right or privilege.”
    Johnson v. Zerbst, 
    304 U.S. 458
    , 464 (1938).
    The finding of a knowing and voluntary
    waiver is a mixed question of law and fact
    which we review de novo. Terrovona v.
    Kincheloe, 
    852 F.2d 424
    , 427 (9th Cir. 1988).
    The ultimate issue of voluntariness is a legal
    question requiring independent federal
    determination. Arizona v. Fulminante,
    
    499 U.S. 279
    , 286 (1991).
    
    18 F.3d at 672
    .
    Defendants contend without citing supporting authority
    that “[b]y being shackled they could not possibly have
    asserted their rights to be present.” The United States argues
    that there is “no connection” between being shackled and
    being able to assert their right to be present or to have an
    open trial. There is arguably some connection between being
    shackled and not asserting the right to be present in the jury
    room for the private voir dire as there is no evidence that the
    barrier which hid the shackles in the courtroom was available
    in the jury room where most of the voir dire took place. Also,
    as a matter of logistics, moving the shackled defendants may
    have required some extra time and effort. If defendants had
    objected to the voir dire being conducted in the jury room, the
    voir dire could have been held in the courtroom where there
    was a barrier which hid the shackles. However, defendants
    could have asserted their rights and “[t]he district court need
    not get an express ‘on the record’ waiver from the defendant
    26              UNITED STATES V. CAZARES
    for every trial conference which a defendant may have a right
    to attend.” Gagnon, 
    470 U.S. at 528
    . None of the defendants
    nor their counsel ever requested that the defendants be
    present at the portion of the voir dire that took place in the
    jury room. When the district court requested a waiver of the
    defendants’ presence for a portion of the voir dire, the
    defendants each gave the waiver on the record. In addition,
    counsel for one of the defendants requested that the private
    voir dire continue in the manner it was proceeding. The facts
    of this case support finding a valid waiver of the right to be
    present at voir dire and a valid waiver of the right to a public
    trial.
    III.
    WHETHER THE DISTRICT COURT COMMITTED
    PREJUDICIAL ERROR IN ADMITTING HEARSAY
    PURSUANT TO THE DOCTRINE OF FORFEITURE
    BY WRONGDOING
    The district court’s resolution of Confrontation Clause
    claims is reviewed de novo. United States v. Berry, 
    683 F.3d 1015
    , 1020 (9th Cir. 2012). Additionally, “we review de
    novo the district court’s construction of hearsay rules, but
    review for abuse of discretion the court’s determination to
    admit hearsay evidence.” United States v. Marguet-Pillado,
    
    560 F.3d 1078
    , 1081 (9th Cir. 2009).
    Factual Background on Doctrine of Forfeiture by
    Wrongdoing Issue
    One of the defendants, Porfirio Avila, , a/k/a “Dreamer,”
    and another Avenues gang member, Rene Madel, had been
    convicted of murder in state court for the murder of
    UNITED STATES V. CAZARES                   27
    Christopher Bowser before the federal trial in this matter was
    held. The assaults and later murder of Bowser were set forth
    as overt acts in the Second Superseding Indictment. After
    Bowser was assaulted and robbed on October 26, 2000,
    Bowser reported the crimes to the Los Angeles Police
    Department. Defendant Alejandro Martinez, a/k/a “Bird,”
    was subsequently arrested for the assault and robbery. As set
    forth in testimony of Avila’s former brother-in-law David
    Cruz, a/k/a “Mousey,” which was contained in the state court
    murder trial transcript and reviewed by the district court
    before trial, Martinez then directed Avila and Madel to kill
    Bowser. On December 11, 2000, Avila and Madel shot and
    killed Bowser.
    In presenting the evidence concerning Christopher
    Bowser, the government elicited testimony from several
    sources regarding out-of-court statements made by Bowser
    implicating the Avenues, and Martinez in particular, in the
    initial assaults and assault and robbery. Several witnesses
    testified to Bowser having a long history of being harassed by
    the Avenues. The government contended that Bowser’s
    statements were admissible under the “forfeiture by
    wrongdoing” exception to the hearsay rule. The district
    court, over the defendants’ objections, allowed Bowser’s
    statements to be admitted in evidence subject to a motion to
    strike.
    LAPD Officer Fernando Carrasco testified that on
    October 26, 2000, he responded to a call on a robbery
    investigation and spoke with Bowser who told him he had
    been punched, kicked, and robbed of a necklace by two
    Hispanic men while he was waiting at a bus stop. Officer
    Carrasco also testified that Bowser told him he recognized
    one of the Hispanic men as “Bird” from the Avenues and told
    28              UNITED STATES V. CAZARES
    Carrasco that he had had previous run-ins with “Bird.”
    Officer Carrasco testified that Bowser was initially hesitant
    to press charges and stated that “he feared for his safety. He
    feared retaliation.”
    Officer John Padilla, a detective for the City of Los
    Angeles, testified that he was assigned to do a follow-up
    investigation on the assault and robbery against Bowser.
    Officer Padilla testified that on November 28, 2000, he
    received a note at his desk that Bowser wanted to press
    charges against “Bird” because “Bird” had driven by him in
    a car and pointed a gun at him. Officer Padilla testified that
    he went to Bowser’s house in Highland Park on
    November 30, 2000, and interviewed Bowser. Officer Padilla
    testified that at this interview Bowser said he was robbed by
    “Bird” and another. Officer Padilla further testified that
    Bowser stated he had been assaulted and called the N-word
    by “Bird” on several occasions. Bowser then identified
    “Bird” on a photo lineup and circled “Bird’s” photograph.
    Under the photograph Bowser, in the presence of Officer
    Padilla, wrote, “‘Bird,’ No. 6, stole my chain and assaulted
    me.” Bowser signed and dated the note. Martinez was
    arrested on December 3, 2000. Bowser was shot and killed
    on December 11, 2000.
    Right to Confrontation, Forfeiture by Wrongdoing, and Rule
    804(b)(6)
    The Confrontation Clause of the Sixth Amendment
    provides that, “[i]n all criminal prosecutions, the accused
    shall enjoy the right . . . to be confronted with the witnesses
    against him.” In Crawford v. Washington, the Supreme Court
    held out-of-court statements by witnesses that are testimonial
    are barred, under the Confrontation Clause, unless the
    UNITED STATES V. CAZARES                     29
    witnesses are unavailable and a defendant had a prior
    opportunity to cross-examine the witnesses, regardless of
    whether such statements are deemed reliable by the court.
    
    541 U.S. 36
    , 53–54 (2004). The decision in Crawford
    abrogated Ohio v. Roberts, which allowed the admission of a
    statement of a hearsay declarant who is unavailable for trial
    if it bears “adequate ‘indicia of reliability.’” 
    448 U.S. 56
    , 66
    (1980). In Crawford the Supreme Court held that statements
    taken by police officers in the course of interrogations are
    testimonial under even a narrow standard. 
    541 U.S. at 52
    .
    The Court held that the Confrontation Clause gives a
    defendant the right to cross-examine witnesses who give
    testimony against him, except in cases where an exception to
    the right of confrontation was recognized at the time of the
    founding. 
    Id.
     at 53–54.
    In Giles v. California, the Supreme Court examined the
    “forfeiture by wrongdoing” doctrine. 
    554 U.S. 353
     (2008).
    In Giles, California unsuccessfully argued that whenever a
    defendant committed an act of wrongdoing that rendered a
    witness unavailable, the defendant forfeited his right to object
    to the witness’s testimony on confrontation grounds. 
    Id.
     at
    364–65. In rejecting this argument the Court stated,
    “American courts never—prior to 1985—invoked forfeiture
    outside the context of deliberate witness tampering.” 
    Id. at 366
    .
    In Giles, the Court cited to Crawford and the previous
    acknowledgment of two forms of unconfronted testimonial
    statements that were admitted at common law. The first
    founding-era exception to the right of confrontation is
    “declarations made by a speaker who was both on the brink
    of death and aware that he was dying.” 
    Id. at 358
    . The
    second founding-era exception to the right of confrontation,
    30              UNITED STATES V. CAZARES
    and the one relevant to the case at hand, is forfeiture by
    wrongdoing, a doctrine which permitted the admission of
    “statements of a witness who was ‘detained’ or ‘kept away’
    by the ‘means or procurement’ of the defendant.” 
    Id. at 359
    .
    In examining the history of the doctrine of forfeiture by
    wrongdoing, the Court observed, “In cases where the
    evidence suggested that the defendant had caused a person to
    be absent, but had not done so to prevent the person from
    testifying—as in the typical murder case involving
    accusatorial statements by the victim—the testimony was
    excluded unless it was confronted or fell within the
    dying-declarations exception.” 
    Id.
     at 361–62.
    In Davis v. Washington, 
    547 U.S. 813
     (2006), the
    Supreme Court explained:
    [W]hen defendants seek to undermine the
    judicial process by procuring or coercing
    silence from witnesses and victims, the Sixth
    Amendment does not require courts to
    acquiesce. While defendants have no duty to
    assist the State in proving their guilt, they do
    have the duty to refrain from acting in ways
    that destroy the integrity of the criminal-trial
    system. We reiterate what we said in
    Crawford: that “the rule of forfeiture by
    wrongdoing . . . extinguishes confrontation
    claims on essentially equitable grounds.”
    
    541 U.S. at 62
    . That is, one who obtains the
    absence of a witness by wrongdoing forfeits
    the constitutional right to confrontation.
    Id. at 833.
    UNITED STATES V. CAZARES                   31
    The Supreme Court in Giles observed that in 1997 it had
    approved Rule 804(b)(6), a rule “which codifies the forfeiture
    doctrine.” 
    554 U.S. at 367
     (quoting Davis, 
    547 U.S. at 833
    ).
    Rule 804(b)(6) provides that a “statement offered against a
    party that wrongfully caused—or acquiesced in wrongfully
    causing—the declarant’s unavailability as a witness, and did
    so intending that result” is not excluded by the rule against
    hearsay if the declarant is unavailable as a witness. Causing
    the declarant’s unavailability with the intent of doing so is
    critical to the doctrine of forfeiture by wrongdoing. See
    United States v. Leal-Del Carmen, 
    697 F.3d 964
    , 974 (9th
    Cir. 2012) (holding videotape admissible under the forfeiture
    by wrongdoing hearsay exception because the Government
    was responsible for rendering the declarant unavailable as a
    witness).
    Rule 804(b)(6) applies to those who “acquiesced in
    wrongfully causing—the declarant’s unavailability.” A
    number of courts have ruled that a witness’s statement may
    be admissible under Rule 804(b)(6) against a defendant
    conspirator who did not directly procure the unavailability of
    the witness, so long as a coconspirator had done so, the
    misconduct was within the scope and in furtherance of the
    conspiracy, and the misconduct was reasonably foreseeable
    to the conspirator. See United States v. Cherry, 
    217 F.3d 811
    ,
    820 (10th Cir. 2000); United States v. Rivera, 
    292 F. Supp. 2d 827
    , 833 (E.D. Va. 2003). The factors supporting application
    of Rule 804(b)(6) are to be determined based on a
    preponderance of the evidence. Davis, 
    547 U.S. at 833
    ;
    Cherry, 
    217 F.3d at 821
    ; United States v. Emery, 
    186 F.3d 921
    , 926 (8th Cir. 1999).
    32              UNITED STATES V. CAZARES
    District Court’s Application of Forfeiture by Wrongdoing
    Doctrine
    Defendants argue that the district court misconstrued the
    scope of the forfeiture by wrongdoing doctrine and violated
    their Confrontation Clause rights because the Government did
    not show that the defendants had Bowser killed for the
    purpose of rendering him unable to testify. Defendants argue
    that the court made no finding on the question whether Mr.
    Bowser was killed for this purpose.
    Immediately before the jury returned its verdict in this
    case, the district court put on the record the basis for its
    admission of the Bowser statements under the forfeiture by
    wrongdoing doctrine. The district court stated: “I wanted to
    set out some of the reasons why I found that there was a
    preponderance of evidence that the defendants Avila and
    Martinez and others directly engaged in wrongdoing that was
    intended to and did render Chris Bowser unavailable as a
    witness.” (Emphasis added.) The district court then stated
    that the reasons for his ruling included, but were not limited
    to: (1) That Bowser complained about being harassed by
    members of the Avenues, including Martinez; (2) That
    Bowser had been beaten by individuals wearing blue uniform
    shirts that Avila and Martinez wore for employment; (3) That
    Bowser reported to the police that Martinez had robbed him
    and Martinez was then arrested for the assault; (4) That the
    mother of Bowser’s child testified Bowser told her in the days
    leading up to his death that he wanted to see his child because
    the Avenues were after him; (5) That Bowser was killed eight
    days after he told the police that Martinez had robbed him;
    (6) That Bowser was killed execution style at the same bus
    stop where he reported being robbed and assaulted; (7) That
    the pattern of shots used in the Bowser murder was identical
    UNITED STATES V. CAZARES                   33
    to that in another local murder of an African-American
    (Anthony Prudhomme); (8) That the testimony given by
    Mousey in People v. Avila set forth that Martinez had ordered
    Avila and Madel to kill Bowser and that Avila had admitted
    having done so to Mousey; (9) That the district court had
    taken judicial notice of Avila’s convictions for murdering
    Bowser and Prudhomme; and (10) That the district court had
    taken judicial notice of Martinez’s conviction for the robbery
    of Bowser and the fact that the Bowser murder was charged
    as an overt act in furtherance of the conspiracy.
    In addition to these reasons, the evidence at trial
    established that five days after Bowser’s murder, a fellow
    gang member who was incarcerated in state prison took part
    in a recorded telephone conversation with Avila in which
    Avila admitted that he and Martinez assaulted Bowser. In
    this conversation Avila stated that Bowser reported the
    assault and that the police raided Martinez’s residence. Avila
    then commented, “That fool’s gone.” Also, Mousey testified
    in the state court proceeding that Martinez’s order from the
    jail to kill Bowser was also because of Bowser being a
    witness against Martinez.
    The district court acted properly in admitting the Bowser
    statements at trial contingent upon proof of the elements for
    admission by a preponderance of the evidence. See Emery,
    
    186 F.3d at 926
    . The federal courts “have sought to effect the
    purpose of the forfeiture-by-wrongdoing exception by
    construing broadly the elements required for its application.”
    United States v. Gray, 
    405 F.3d 227
    , 242 (4th Cir. 2005).
    The government is not required to show that a defendant’s
    sole purpose was to silence the declarant. See United States
    v. Dhinsa, 
    243 F.3d 635
    , 654 (2d Cir. 2001). The district
    court’s stated reasons and the record as a whole clearly
    34              UNITED STATES V. CAZARES
    support the application of the forfeiture by wrongdoing
    doctrine with regard to defendants Avila and Martinez. The
    fact that Mousey’s credibility and testimony was subject to
    attack does not, as defendants argue, support the defendants’
    position that the evidence was insufficient to support a
    determination that Bowser’s murder was undertaken to
    prevent him from giving testimony.
    The district court should have articulated that the Bowser
    murder was within the scope of and in furtherance of the
    conspiracy, and that the murder was reasonably foreseeable
    to the defendants other than Martinez and Avila so that the
    forfeiture by wrongdoing doctrine applied to all who had
    “acquiesced in wrongfully causing—the declarant’s
    unavailability.” Cherry, 
    217 F.3d at 811
    ; Fed. R. Evid.
    804(b)(6). However, if there was any error in the failure to
    do so, the error appears to be harmless. There was a plethora
    of evidence other than Bowser’s statements that the Avenues
    harassed blacks and Bowser in particular. Also, the
    testimonial statements that Bowser made to the officers, for
    the most part, implicated only Martinez. The admission of
    the Bowser statements does not constitute reversible error.
    IV.
    WHETHER THE TESTIMONY OF THE
    GOVERNMENT’S EXPERT WITNESS VIOLATED
    RULE 703 AND DEFENDANTS’ CONFRONTATION
    RIGHTS
    We review the district court’s admission of expert
    testimony for abuse of discretion. Estate of Barabin v.
    AstenJohnson, Inc., 
    740 F.3d 457
    , 460 (9th Cir. 2014) (en
    banc). “A district court’s rulings on the admissibility of
    UNITED STATES V. CAZARES                   35
    expert testimony . . . will be reversed only if ‘manifestly
    erroneous.’” United States v. Hankey, 
    203 F.3d 1160
    , 1167
    (9th Cir. 2000) (quoting Gen. Elec. Co. v. Joiner, 
    522 U.S. 136
    , 142 (1997)). Defendants now challenge a portion of the
    testimony of the gang expert on Confrontation Clause
    grounds, but failed to object on those grounds before the
    district court. We review de novo a district court’s admission
    of evidence in alleged violation of the Confrontation Clause.
    However, if a defendant failed to object to the admission of
    evidence under the Confrontation Clause, we review for plain
    error. United States v. Hagege, 
    437 F.3d 943
    , 956 (9th Cir.
    2006).
    Factual Background on Expert Witness Lopez Issue
    The government called LAPD Lt. Robert Lopez as an
    expert on street gangs, including the Avenues, that reside in
    the Northeast Division. At the time of trial Lopez was a 28-
    year veteran of the LAPD with 25 years of working with
    gangs. He was the detective in charge of the Northeast gang
    unit. Lopez attended specialized training and seminars on
    gangs, and had taught gang investigation. Lopez talked to
    between 200 and 400 Avenues gang members over the years
    and talked to other law enforcement officers who were in
    contact with Avenues gang members. Lopez had either
    investigated or supervised over 500 Avenues cases in the past
    twelve years. The district court overruled defendants’
    objections to the government’s offer of Lopez as an expert on
    the Avenues gang. Then the district court instructed the jury
    that opinion testimony should be judged like any other
    testimony, and could be accepted, rejected, or given as much
    weight as the jurors thought it deserved considering the
    witness’s education, experience, and reasoning, as well as all
    of the other evidence in the case.
    36              UNITED STATES V. CAZARES
    Lopez testified about the structure, membership
    requirements, practices, graffiti, and slang of the Avenues
    gang. Defendants contend that other testimony of Lopez
    served merely to relay inadmissible hearsay to the jury. In
    particular, defendants challenge the admission of Lopez’s
    opinion about the racial attitudes of the Avenues gang.
    Defendants contend that the testimony regarding racial
    attitudes consisted entirely of hearsay and was neither
    admissible nor helpful to the jury as required by Rule 703.
    Lopez testified as to his observation that with the increase
    of black people moving into the Highland Park neighborhood
    there was a change in the Avenues’ crimes, in that the
    Avenues’ crimes targeted black individuals and families in
    the area. Lopez testified that he talked to black people in the
    neighborhood and to officers working the crimes about this
    development. The government then asked, “Based on those
    interactions, do you have any opinion about whether the
    Avenues gang members had any racial attitudes?” The
    defendants objected on the grounds that it was not the proper
    subject of expert opinion in that it goes to one of the elements
    charged, that there was inadequate foundation, that expert
    testimony was not necessary in this area, and that it was
    beyond Lopez’s expertise. After a sidebar conference the
    prosecutor asked whether Lopez had an opinion as to how the
    Avenues gang members felt about the increase in the black
    population in Highland Park. Lopez testified that they hated
    it. The district court allowed Lopez to testify as to the basis
    of his opinion, and Lopez testified that based on interviews of
    the community members, the Avenues gang members, and
    detectives and officers assigned to his unit, it was his opinion
    that black people moving in to the neighborhood was
    changing the makeup of the neighborhood and the Avenues
    gang members weren’t happy with it.
    UNITED STATES V. CAZARES                   37
    While eliciting the testimony regarding the Avenues gang
    members’ attitudes towards black people, the prosecutor
    engaged in the following questioning:
    Q: Just to be clear, Lieutenant Lopez, when
    you talk about the Avenues’ attitudes towards
    black people in the neighborhood, you are not
    offering any opinion about whether any of
    these defendants acted with racial intent on
    any particular occasion; correct?
    A: Correct.
    Q: You are just talking in general terms?
    A: Yes, ma’am.
    Lopez’s testimony was not so general with regard to the
    unofficial hierarchy of the Avenues gang. Lopez testified that
    conversations he had with the Avenues gang members and
    the officers assigned to the investigations of the Avenues led
    him to conclude that the oldest and most violent members
    would be revered and have extra clout. Lopez was then
    allowed, over a defense relevancy objection, to opine whether
    any member of the Avenues 43 had that extra clout. Lopez
    identified defendants Martinez and to a certain extent,
    Saldana and Avila, as being in that category.
    Gang Expert Testimony and Rule 703
    Experts may be used to testify to matters outside the
    expected knowledge of the average juror. Fed. R. Evid. 702;
    see also Hankey, 
    203 F.3d at 1167
    . Expert witnesses may
    rely on inadmissible hearsay in forming their opinions, so
    38              UNITED STATES V. CAZARES
    long as it is of a type reasonably relied upon by experts in
    their field. Fed. R. Evid. 703; Hankey, 
    203 F.3d at 1169
    . In
    Hankey, we upheld the admission of expert testimony of an
    officer with experience and sources of information similar to
    that possessed by Officer Lopez. As we explained:
    Certainly the officer relied on “street
    intelligence” for his opinions about gang
    membership and tenets. How else can one
    obtain this encyclopedic knowledge of
    identifiable gangs? Gangs such as involved
    here do not have by-laws, organizational
    minutes, or any other normal means of
    identification-although as [the officer]
    testified, some wear colors, give signs, bear
    tattoos, etc. [The officer] was repeatedly
    asked the basis for his opinions and fully
    articulated the basis, demonstrating that the
    information upon which he relied is of the
    type normally obtained in his day-to-day
    police activity.
    
    203 F.3d at
    1169–70.
    Defendants are challenging the testimony given by
    Officer Lopez which extended beyond “general background
    information about gangs” and “specialized testimony
    regarding matters beyond the jury’s ken.” Defendants rely
    upon United States v. Mejia, 
    545 F.3d 179
     (2d Cir. 2008), as
    authority that this expert witness was used as a subterfuge to
    introduce otherwise inadmissible hearsay. In Mejia, a case in
    which a police officer who was a member of a gang task force
    testified as an expert in prosecution of gang members, the
    Second Circuit cautioned:
    UNITED STATES V. CAZARES                  39
    Yet despite the utility of, and need for,
    expertise of this sort, its use must be limited
    to those issues where sociological knowledge
    is appropriate. An increasingly thinning line
    separates the legitimate use of an officer
    expert to translate esoteric terminology or to
    explicate an organization’s hierarchical
    structure from the illegitimate and
    impermissible substitution of expert opinion
    for factual evidence. If the officer expert
    strays beyond the bounds of appropriately
    “expert” matters, that officer becomes, rather
    than a sociologist describing the inner
    workings of a closed community, a chronicler
    of the recent past whose pronouncements on
    elements of the charged offense serve as
    shortcuts to proving guilt. As the officer’s
    purported expertise narrows from “organized
    crime” to “this particular gang,” from the
    meaning of “capo” to the criminality of the
    defendant, the officer’s testimony becomes
    more central to the case, more corroborative
    of the fact witnesses, and thus more like a
    summary of the facts than an aide in
    understanding them.
    
    Id. at 190
    .
    Defendants also argue that Officer Lopez’s testimony
    resulted in the prohibited disclosure of inadmissible hearsay
    upon which he based some of his testimony. Rule 703
    provides:
    40              UNITED STATES V. CAZARES
    An expert may base an opinion on facts or
    data in the case that the expert has been made
    aware of or personally observed. If experts in
    the particular field would reasonably rely on
    those kinds of facts or data in forming an
    opinion on the subject, they need not be
    admissible for the opinion to be admitted. But
    if the facts or data would otherwise be
    inadmissible, the proponent of the opinion
    may disclose them to the jury only if their
    probative value in helping the jury evaluate
    the opinion substantially outweighs their
    prejudicial effect.
    (Emphasis added.)
    We have recognized that to the extent that inadmissible
    evidence is reasonably relied upon by an expert, a limiting
    instruction typically is needed to limit the use of that
    evidence. United States v. Grace, 
    504 F.3d 745
    , 759 n.7 (9th
    Cir. 2007); United States v. 0.59 Acres of Land, 
    109 F.3d 1493
    , 1496 (9th Cir. 1997). No limiting instruction was
    requested or given after the testimony in issue.
    It was improper expert testimony and a violation of Rule
    703 for Officer Lopez to identify Avenues gang members and
    the officers assigned to the investigations of the Avenues as
    his source for characterizing defendants Martinez, Saldana,
    and Avila as the most violent members of the Avenues and
    the members with the most clout. The more general
    testimony regarding the Avenues gang members’ attitudes
    towards black people is permissible under Hankey.
    UNITED STATES V. CAZARES                    41
    Harmless error on Admission of expert testimony
    An error is harmless unless it results in actual prejudice,
    which is demonstrated where “the error in question had a
    ‘substantial and injurious effect or influence in determining
    the jury’s verdict.’” Winzer v. Hall, 
    494 F.3d 1192
    , 1201 (9th
    Cir. 2007) (quoting Brecht v. Abramson, 
    507 U.S. 619
    , 623
    (1993)). Defendants maintain that since Count One, the
    conspiracy against rights charged under 
    18 U.S.C. § 241
    , and
    Count Two, the interference with federally protected rights
    charged under 
    18 U.S.C. § 245
    (b)(2)(B), required the jury to
    find the Defendants acted based on their victims’ race, the
    admission of Avenues gang members’ attitudes towards black
    people could not be harmless error. Defendants also contend
    that this testimony was not harmless because it corroborated
    the disputed testimony of Diaz and De La Cruz, who the
    defendants characterize as “highly unreliable,” on the issue of
    whether all African-Americans, not just members of other
    gangs, were subject to attack.
    If there was error in allowing Lopez to testify regarding
    the Avenues gang members’ attitudes towards black people,
    it most likely did not have a substantial effect on the jury’s
    verdict. Lopez clarified that he was not offering an opinion
    on the racial attitudes of the individual defendants. Further,
    there was abundant testimony from black residents of the
    Highland Park area regarding the racial attitudes of the
    Avenues gang members. Also, in light of the entire record,
    one could not conclude that Officer Lopez’s brief testimony
    characterizing defendants Martinez, Saldana, and Avila as the
    most violent members of the Avenues and as the members
    with the most clout, had a substantial and injurious effect on
    the jury’s verdict.
    42              UNITED STATES V. CAZARES
    Confrontation Clause and Plain Error
    The Confrontation Clause applies only to testimonial
    hearsay. Crawford, 
    541 U.S. at 51
    . Statements are
    testimonial when made in the course of police interrogation
    when the “primary purpose of the interrogation is to establish
    or prove past events potentially relevant to later criminal
    prosecution.” Davis, 
    547 U.S. at 822
    . The record is deficient
    in establishing Lopez’s primary purpose in gathering the
    information regarding the defendants’ violent character and
    role in the Avenues. Since defendants failed to object on
    Confrontation Clause grounds, plain error review applies to
    a Confrontation Clause claim. Hagege, 
    437 F.3d at 956
    .
    Error is plain when it is clear or obvious under the law.
    Defendants cannot establish plain error on this record.
    V.
    WHETHER THE DISTRICT COURT ERRED IN
    DENYING DEFENDANT SALDANA’S MOTION TO
    SUPPRESS STATEMENTS HE MADE TO THE
    POLICE WITHOUT BEING GIVEN HIS MIRANDA
    RIGHTS
    The ultimate question of whether a confession is
    voluntary and admissible is subject to de novo review, but the
    district court’s underlying factual findings are reviewed for
    clear error. United States v. Brobst, 
    558 F.3d 982
    , 995 (9th
    Cir. 2009). Whether a person is “in custody” for purposes of
    Miranda is a mixed question of law and fact that is reviewed
    de novo. United States v. Kim, 
    292 F.3d 969
    , 973 (9th Cir.
    2002).
    UNITED STATES V. CAZARES                   43
    Factual Background of Suppression Issue
    Saul Audelo, a suspect in the murder of Renee Cerda, was
    interviewed by police. Audelo admitted owning a 9
    millimeter Ruger and said he sold it to defendant Saldana
    after the Cerda murder. Detectives investigating the Cerda
    murder obtained a search warrant for Saldana’s residence in
    order to find the gun.
    At 7:00 a.m. on May 6, 1999, police officers executed the
    search warrant at the home of Juana Saldana, Saldana’s
    mother, where Saldana, his mother, brother, and sister lived.
    Saldana had just showered after returning home after working
    a double shift at Vandenburg Air Force Base. The other
    family members were sleeping. The officers moved all of the
    occupants into the living room where they were seated on the
    couch. The district court concluded on remand that Saldana
    was not handcuffed at any time. That factual finding in the
    face of conflicting evidence is not clearly erroneous. After
    the search, Saldana was moved into a bedroom where officers
    questioned him about the 9 millimeter Ruger. The officers
    then led Saldana out of the house and into a car. Saldana was
    given the option of driving his car to the police station or
    riding with Detective Gabriel Rivas. That any choice was
    given was denied by the defense, but the district court’s
    factual finding is not clearly erroneous. Saldana rode with
    the Detective to the Hollenbeck police station. Saldana was
    questioned by two or three officers in an 8 by 10 interview
    room at the station. A transcript of the recorded interview at
    the station shows he was told that he was not under arrest.
    Saldana admitted to purchasing a 9 millimeter firearm from
    Audelo, but said he no longer had the weapon. He was asked
    to find the weapon and contact Detective Rivas, which he
    agreed to do. During the police station questioning,
    44              UNITED STATES V. CAZARES
    detectives did not threaten or suggest to Saldana that he
    would be placed under arrest or prosecuted, nor did they
    brandish their weapons. The district court also found that no
    pressure or coercive tactics were employed by the detectives
    either during the search or the subsequent interviews. The
    district court also found that Saldana was told during the
    questioning he was free to leave the police station. There is
    no dispute that Saldana was not given Miranda warnings.
    Saldana was permitted to leave the interview room and the
    police station.
    The police later were informed that Saldana had
    participated in the Wilson murder and had used a 9 millimeter
    gun he obtained from another gang member. Subsequently,
    the gun was connected to both the Cerda and the Wilson
    murders. Saldana filed a pre-trial motion to suppress his
    statements made in the May 6, 1999 interview at the police
    station. Witness declarations were submitted by the parties.
    The district court held hearings on the motion to suppress at
    which Saldana, his brother, his sister, two detectives, and an
    FBI agent testified. The day the government called Audelo
    and Detective Rivas as witnesses at the trial of this case, the
    district court denied the motion to suppress Saldana’s
    statements without explanation. The court stated that it
    would either write something or state its reasons later on the
    record. The parties agree that was not done and the matter
    was remanded to the district court. Thereafter, the district
    court filed its seven page Findings of Fact in Support of the
    Denial of Gilbert Saldana’s Motion to Suppress.
    Applicable Law on Suppression of Statements
    In Miranda v. Arizona, the Supreme Court established
    that, when a person is “in custody,” procedural safeguards
    UNITED STATES V. CAZARES                     45
    must be afforded that person before the person is questioned.
    Otherwise, the prosecution may not use what it learns through
    its interrogation. 
    384 U.S. 436
    , 444 (1966). The Court
    reasoned that the privilege against self-incrimination is
    protected by adequately and effectively advising an
    individual of his or her rights. 
    Id. at 467
    . It is undisputed
    that Saldana was not read or told of his Miranda rights before,
    during, or after the interview on May 6, 1999.
    The question is whether Saldana was “in custody” while
    being questioned. “To determine whether an individual was
    in custody, a court must, after examining all of the
    circumstances surrounding the interrogation, decide whether
    there [was] a formal arrest or restraint on freedom of
    movement of the degree associated with a formal arrest.”
    Kim, 
    292 F.3d at 973
     (alteration in original) (internal
    quotation marks and citation omitted). The court must
    “examine the totality of the circumstances surrounding the
    interrogation.” United States v. Craighead, 
    539 F.3d 1073
    ,
    1082 (9th Cir. 2008). A defendant is in custody if a
    “reasonable innocent person in such circumstances would
    conclude that after brief questioning he or she would not be
    free to leave.” United States v. Booth, 
    669 F.2d 1231
    , 1235
    (9th Cir. 1981). The custody determination is objective and
    is not based upon “the subjective views of the officers or the
    individual being questioned.” Kim, 
    292 F.3d at 973
    .
    Facts relevant to the determination of whether a person is
    in custody “include the language used by the officers, the
    physical characteristics of the place where the questioning
    occurs, the degree of pressure applied to detain the individual,
    the duration of the detention, and the extent to which the
    person was confronted with evidence of guilt.” United States
    v. Hernandez, 
    476 F.3d 791
    , 796 (9th Cir. 2007) (quoting
    46              UNITED STATES V. CAZARES
    United States v. Butler, 
    249 F.3d 1094
    , 1099 (9th Cir. 2001));
    accord United States v. Hayden, 
    260 F.3d 1062
    , 1066 (9th
    Cir. 2001) (“Factors relevant to whether an accused is ‘in
    custody’ include the following: (1) the language used to
    summon the individual; (2) the extent to which the defendant
    is confronted with evidence of guilt; (3) the physical
    surroundings of the interrogation; (4) the duration of the
    detention; and (5) the degree of pressure applied to detain the
    individual.”). “While determining whether a defendant is
    constitutionally entitled to Miranda warnings is subject to de
    novo review, it is nevertheless a fact-intensive inquiry.”
    United States v. Wright, 
    625 F.3d 583
    , 602 (9th Cir. 2010)
    (citing Craighead, 
    539 F.3d at 1082, 1084
    ).
    Discussion
    There are factual disputes concerning the circumstances
    of the interview at the police station. The record indicates
    that the audiotape or recording of the interview may be
    incomplete. Saldana was told “you were not under arrest,”
    but the transcript of the recording does not reflect that
    Saldana was told he was free to leave but on remand the
    district court found that Saldana was told he was free to leave
    while at the police station. The language used by the officers
    in the taped interview at the police station was neutral even
    though it did direct the questioning. There is no showing of
    other language being used previously at the home of
    Saldana’s mother where he lived. Three or four officers took
    Saldana to another room for an initial questioning while the
    search went on. There were at least 10 officers participating
    in the search, with at least 7 of them in the house with a
    number of police cars parked in the street. The police station
    interview room was small, about 8 by 10 feet, and there were
    two and sometimes three officers in the room. Saldana drank
    UNITED STATES V. CAZARES                    47
    one cup of coffee and was offered a second cup of coffee.
    The recorded interview was about 10 minutes long and the
    interview may have started before the recording device was
    activated. Saldana was not confronted with evidence of guilt
    as the officers stated they only wanted to get the gun. As a
    convicted felon, Saldana would be incriminating himself by
    merely admitting he had possessed the handgun. But that was
    not the focus of the search nor of the questioning. The factual
    finding on conflicting evidence is that there was no detention.
    It is about a 30 minute drive from the house to the police
    station. Finally, there was no pressure applied to detain
    Saldana.
    Under the facts as found by the district court, and after
    examining all of the circumstances surrounding the
    questioning, there was no formal arrest or restraint of
    freedom of movement of the degree associated with formal
    arrest.
    The defense claims it is inconceivable that the LAPD
    would not place a convicted murderer in handcuffs while they
    conducted an early morning search at his home. The district
    court has the best opportunity to both hear and observe the
    witnesses and to judge their credibility. Based upon the
    findings of the district court, Defendant Saldana was never in
    custody and was not entitled to a Miranda warning. His
    statements to the LAPD were properly admissible.
    48              UNITED STATES V. CAZARES
    VI.
    WHETHER DEFENDANTS’ RIGHTS UNDER THE
    CONFRONTATION CLAUSE WERE VIOLATED BY
    HEARSAY TESTIMONY OF SAUL AUDELO
    REGARDING THE CERDA MURDERS AND THE
    GUN USED TO COMMIT THOSE MURDERS
    The district court’s resolution of Confrontation Clause
    claims is reviewed de novo. Berry, 683 F.3d at 1020.
    Additionally, “we review de novo the district court’s
    construction of hearsay rules, but review for abuse of
    discretion the court’s determination to admit hearsay
    evidence.” Marguet-Pillado, 
    560 F.3d at 1081
    . If a
    defendant has both invited error and relinquished a known
    right then the error is waived and the court can decline
    review. United States v. Nguyen, 
    565 F.3d 668
    , 676 (9th Cir.
    2009).
    Factual Background of Audelo hearsay testimony issue
    Saul Audelo, a former prison bunkmate of defendant
    Gilbert Saldana, was convicted in state court of killing Jaime
    and Rene Cerda. The Cerda murders occurred February 22,
    1999. Audelo was a member of the Los Angeles White Fence
    gang. After Audelo and Saldana were released from jail they
    maintained a friendship and Audelo sold Saldana guns,
    including “burnt” guns, or guns that had been used in a crime.
    Audelo was asked at his trial, “Did you sell the gun used in
    the Serta (sic) murders to Gilbert Saldana?” The defendants
    objected on foundation grounds and the district court
    sustained the objection.
    UNITED STATES V. CAZARES                  49
    The defendants contended that the only way Audelo knew
    of what gun was used at the Cerda murders was through
    hearsay since Audelo claimed he was not involved in the
    Cerda murders, even though a jury in state court convicted
    him of those murders. After a sidebar conference, the
    prosecutor asked Audelo: “Did you have possession of the
    firearm used during those [Cerda] murders?” Audelo
    answered in the affirmative to that question, and to the
    question of whether he sold that firearm to anyone. Audelo
    testified that he sold the gun to Lucky (defendant Gilbert
    Saldana). Audelo also testified that the gun in issue, a 9
    millimeter Ruger, was one of about five weapons that he had
    sold Saldana. Audelo testified that Saldana usually came
    with defendant Martinez (Bird) and Merced Cambero
    (Shadow) when the guns were sold. The government
    maintains that the same 9 millimeter Ruger used in the Cerda
    murders was used to kill Kenneth Wilson on April 18, 1999.
    During cross examination of Audelo, Saldana’s attorney
    elicited testimony from Audelo that he had claimed he was
    not present at the Cerda murders. Saldana’s attorney then
    asked: “So your claim that you made here today that the
    weapon that you sold to Mr. Saldana was used in the Rene
    Serta (sic) murder is based upon what someone else told you.
    Is that your claim?” Audelo answered: “By the shooter
    himself, yes.” Saldana’s attorney followed with, “Well, you
    say the murderer himself; Is that correct?” Audelo agreed.
    Earlier, at a hearing outside the presence of the jury,
    Audelo testified that after he sold the 9 millimeter Ruger to
    Saldana, Ponyboy (Salvador Ramos) told him that he had
    used the 9 millimeter Ruger in the Cerda murders. After the
    hearing the district court overruled Saldana’s hearsay and
    confrontation clause objections. The 9 millimeter Ruger was
    50              UNITED STATES V. CAZARES
    not produced at trial as it was not in the possession of the
    government. A firearms examiner with the LAPD later
    testified at trial that the bullets and bullet casings from the
    Wilson murder were fired from the same gun as had been
    used in the Cerda murders — a 9 millimeter Ruger. The
    government never called Ramos to testify.
    Confrontation Clause Argument
    Defendants contend that there was a Confrontation Clause
    violation when Audelo testified in response to a question
    asked during cross examination that he heard from the
    murderer that the gun sold to Saldana was used in the Cerda
    murders (for which Audelo was convicted).                 The
    Confrontation Clause, however, applies only to testimonial
    hearsay. Crawford, 
    541 U.S. at 51
    . Statements are
    testimonial when made “to establish or prove past events
    potentially relevant to later criminal prosecution.” Davis,
    
    547 U.S. at 822
    . A conversation between two gang members
    about the journey of their burnt gun is not testimonial. In
    addition, defense counsel clearly invited this testimony.
    Defendants appear to be challenging the government
    putting on a witness who claims not to have firsthand
    knowledge of at least part of the testimony he is expected to
    give. This argument is compromised to some degree by
    Audelo’s murder conviction in the Cerda case. More
    importantly, defendants fail to cite authority for this argument
    and the cited authority does not support defendants’
    confrontation clause argument. The failure to cite to valid
    legal authority waives a claim for appellate review. See
    Acosta-Huerta v. Estelle, 
    7 F.3d 139
    , 144 (9th Cir. 1992).
    For these reasons and the fact that error was invited,
    defendants are not entitled to relief on this issue.
    UNITED STATES V. CAZARES                  51
    VII.
    WHETHER THE DISTRICT COURT DENIED
    DEFENDANTS THEIR RIGHTS TO EFFECTIVE
    CROSS-EXAMINATION AND CONFRONTATION
    BY LIMITING AND PRECLUDING CROSS
    EXAMINATION
    “If the defendant raises a Confrontation Clause challenge
    based on the exclusion of an area of inquiry, we review de
    novo.” United States v. Larson, 
    495 F.3d 1094
    , 1101 (9th
    Cir. 2007) (en banc). However, “[a] challenge to a trial
    court’s restrictions on the manner or scope of
    cross-examination on nonconstitutional grounds is . . .
    reviewed for abuse of discretion.” 
    Id.
    General Principles
    The Confrontation Clause of the Sixth Amendment
    guarantees the right of an accused in a criminal prosecution
    “to be confronted with the witnesses against him.” “The
    main and essential purpose of confrontation is to secure for
    the opponent the opportunity of cross-examination.” Davis
    v. Alaska, 
    415 U.S. 308
    , 315–16 (1974) (quoting 5 J.
    Wigmore, Evidence § 1395, at 123 (3d ed. 1940)).
    Improperly restricting defense counsel’s cross-examination,
    when that examination is designed to show bias on the part of
    a prosecution witness, violates a defendant’s Confrontation
    Clause rights. Delaware v. Van Arsdall, 
    475 U.S. 673
    , 679
    (1986). We, like the Supreme Court, have “‘emphasized the
    policy favoring expansive witness cross-examination in
    criminal trials.’” Larson, 
    495 F.3d at 1102
     (quoting United
    States v. Lo, 
    231 F.3d 471
    , 482 (9th Cir. 2000)).
    52              UNITED STATES V. CAZARES
    This Court has also recognized:
    The constitutional right to cross examine is
    “[s]ubject always to the broad discretion of a
    trial judge to preclude repetitive and unduly
    harassing interrogation,” but that limitation
    cannot preclude a defendant from asking, not
    only “whether [the witness] was biased” but
    also “to make a record from which to argue
    why [the witness] might have been biased.”
    United States v. Schoneberg, 
    396 F.3d 1036
    , 1042 (9th Cir.
    2005) (quoting Davis v. Alaska, 
    415 U.S. at 316, 318
    )
    (alterations in original) (footnotes omitted).
    We have identified three factors to be considered in
    determining whether a defendant’s right to cross-examination
    has been violated: (1) whether the excluded evidence was
    relevant; (2) whether other legitimate interests outweighed
    the defendant’s interest in presenting the excluded evidence;
    and (3) whether the exclusion of evidence left the jury with
    sufficient information to assess the credibility of the witness
    the defendant was attempting to cross-examine. Larson,
    
    495 F.3d at
    1103 (citing United States v. Beardslee, 
    197 F.3d 378
    , 383 (9th Cir. 1999)).           The limitation on the
    cross-examination of each witness is reviewed separately. 
    Id.
    Factual Background Concerning Cross-Examination and
    Confrontation Issue
    Defendants claim that the district court improperly limited
    cross-examination of witnesses Jesse Diaz, Jose De La Cruz,
    Saul Audelo, and Eneida Montano.
    UNITED STATES V. CAZARES                   53
    Jesse Diaz: Jesse Diaz had been convicted of attempted
    murder and was sentenced to 20 years in 1999. Diaz was an
    Avenues gang member and testified about the gang’s
    activities. Diaz testified that he was present with Defendants
    Martinez, Cazares, and Saldana when Kenneth Wilson was
    murdered and testified as to the details of that event. Diaz
    had 10 years remaining on his state sentence at the time of
    trial and testified on direct examination that the government
    would be sending a letter to the state court judge and any
    reduction would be up to the state court judge.
    Defendants complain that Saldana’s counsel was not
    allowed to cross-examine Diaz on the fact that he had been
    outed as a snitch at a preliminary hearing. Saldana’s counsel,
    in fact, cross-examined on this point. Defendants complain
    that Saldana’s counsel could not explore Diaz’s knowledge of
    whether he knew the punishment he could be subject to in the
    State of California for murder. Counsel for Saldana, in fact,
    was allowed to question Diaz whether he knew the
    punishment for murder and attempted murder. Counsel also
    questioned Diaz as to whether he made a deal with the
    detective so he “would never be prosecuted by the State of
    California for Murder.”
    Defendants also complain that counsel for Saldana could
    not explore whether Diaz knew Sam Salinas. Counsel for
    Saldana, in fact, asked Diaz about Sam Salinas and Diaz
    stated twice that he did not know Sam Salinas.
    Diaz was an important witness. However, defense
    counsel cross-examined Diaz extensively on his bias,
    motives, and inconsistencies.     There was no Sixth
    Amendment violation with regard to Diaz.
    54               UNITED STATES V. CAZARES
    Jose De La Cruz: Jose De La Cruz had been a member of
    the Cypress Avenues gang and was serving 45 years to life
    for the murder of Kenneth Wilson. De La Cruz was also with
    defendants Martinez, Cazares, and Saldana when Kenneth
    Wilson was murdered and testified as to the details of that
    event. De La Cruz had also spent time with the defendants
    engaging in gang activities and testified to the details of these
    activities.
    Defendants contend their rights were violated when
    counsel for Saldana was not allowed to question De La Cruz
    about detectives telling De La Cruz that Saldana would take
    the stand against him. Counsel for Saldana conducted the
    following cross-examination in this area:
    Q: Is part of what motivated you to cooperate
    with the police the fact that they told you
    that Gilbert Saldana was putting this thing
    on you.
    [objection overruled by district court]
    A: That had nothing to do with it.
    Q: So you thought it was okay that Gilbert
    Saldana was putting the murder on you?
    A: I knew he wasn’t.
    Defendants contend their rights were violated when the
    district court sustained an objection about De La Cruz having
    a shank in prison. Counsel asked and De La Cruz answered
    whether he had been arraigned on possession of a shank.
    Although further questioning about possession of the shank
    UNITED STATES V. CAZARES                    55
    was objected to and disallowed based on Rule 609, counsel
    asked without objection, “Well, were you concerned at that
    time for your own personal safety in the county jail because
    you knew that you had snitched out some of your fellow gang
    members?”
    Defendants contend their rights were violated when the
    district court sustained an objection about De La Cruz never
    having killed a black man before the murder of Kenneth
    Wilson. Defendants make a meritless claim that the
    “question goes directly to the indictment’s allegation that
    there was an ongoing conspiracy among De La Cruz’s gang
    to kill Black people.”
    Defendants contend their rights were violated when the
    district court sustained an objection to an incomplete question
    about the FBI telling De La Cruz they were making a case
    about Kenneth Wilson being killed because of racial hatred.
    However, before the objection was sustained the following
    questioning took place:
    Q: Now, it wasn’t until November of 2003
    that you mentioned the motivation for
    killing Mr. Wilson as being that he was
    African American; isn’t that correct?
    A: That’s right.
    Q: And when the FBI spoke to you , they
    made it very clear that they were
    interested – that they were investigating a
    case dealing with racial hatred; isn’t that
    correct?
    56              UNITED STATES V. CAZARES
    A: That’s right.
    Defendants contend their rights were violated when the
    district court sustained objections to questions concerning
    attorney communications and plea bargaining for the Wilson
    homicide. Testimony was elicited from De La Cruz,
    however, establishing that he was negotiating a better deal.
    De La Cruz was also an important witness. However,
    defense counsel cross-examined De La Cruz extensively on
    his bias, motives, and inconsistencies. There was no Sixth
    Amendment violation with regard to De La Cruz.
    Saul Audelo: Saul Audelo was Saldana’s former prison
    bunkmate. Audelo had been convicted in state court of
    killing Jaime and Rene Cerda. Audelo testified to selling
    Saldana the 9 millimeter Ruger the government contends was
    used to kill Kenneth Wilson.
    Defendants contend their rights were violated when the
    district court sustained objections to questions concerning the
    conditions of his confinement “in order to flesh out reasons
    why he was cooperating.” Audelo, in fact, gave testimony in
    cross-examination that it was difficult for his family to visit
    him, that he had been in lock down a number of times, and
    that he didn’t like being incarcerated and wanted to go home.
    Audelo was also an important witness. Defense counsel
    cross-examined him extensively on bias, motives, and
    inconsistencies. There was no Sixth Amendment violations
    concerning Audelo.
    Eneida Montano: Eneida Montano had been Saldana’s
    former girlfriend. She testified as to Saldana’s use of the N-
    UNITED STATES V. CAZARES                     57
    word or “myate” (Spanish slang for the same). Defendants
    contend their rights were violated because they could not
    impeach Montano on whether she had stated Saldana used the
    N-word or just the term “myate.” Defendants further contend
    their rights were violated because they could not impeach
    Montano regarding her inability to recall testimony to the
    grand jury despite her training to be a deputy sheriff.
    Montano was not an especially important witness and the
    areas of restricted cross-examination were not that important.
    There was no Sixth Amendment violation with regard to
    Montano.
    There was extensive cross-examination of all the
    witnesses in this case. Defendants have cited only a few
    instances, and some are cited out of context, with regard to
    limitations placed on cross-examination. With regard to each
    of the witnesses listed above, very little evidence was
    excluded from their cross-examinations and the exclusion of
    this small amount of evidence still left the jury with sufficient
    information to assess the credibility of the witness the
    defendant was attempting to cross-examine. Larson,
    
    495 F.3d at 1103
    .
    VIII.
    WHETHER THE DISTRICT COURT ABUSED ITS
    DISCRETION BY PERMITTING THE
    GOVERNMENT’S EXPERT TO TESTIFY THAT
    HER FIREARM IDENTIFICATION FINDINGS
    WERE MADE TO A “SCIENTIFIC CERTAINTY”
    We review the district court’s admission of expert
    testimony for abuse of discretion. Estate of Barabin,
    58              UNITED STATES V. CAZARES
    740 F.3d at 460. The government contends the defendants
    failed to raise their objections properly and that plain error
    applies.
    Factual and Procedural Background on Firearms Expert
    Testimony Issue
    Defendants filed a motion in limine requesting the district
    court exclude ballistics evidence in this case under Daubert
    v. Merrill Dow Pharmaceuticals, 
    509 U.S. 579
     (1993), and
    Rule 702. At a pretrial hearing the district court advised that
    he did not need a hearing on the ballistics issue at that point
    but that he would perform his gate-keeping function.
    During trial and outside the presence of the jury, counsel
    for Saldana renewed his motion in limine to preclude the
    testimony of the government’s ballistics expert on the
    grounds that the expert’s conclusions concerning the matches
    in the Wilson and Cerda murders and the Bowser and
    Prudhomme murders lacked statistical reliability. Counsel
    for Saldana argued: “So, at the very least, aside from keeping
    out her testimony, I assume that your Honor is going to
    overrule my objection, I would ask that she be precluded
    from saying that this is an absolute match . . . .”
    The government advised that the witness would conclude
    she matched the evidence in her opinion to a scientific
    certainty.    The district court found that “tool mark
    identification method, ballistics analysis employed essentially
    by the government’s witness is reasonably reliable and will
    likely be helpful to the jury,” and that the defense could
    cross-examine on reliability. Although the district court
    noted there had been criticism of tool mark identification by
    some scholars, he felt the methodology was still accepted in
    UNITED STATES V. CAZARES                     59
    criminal trials. The other defendants joined Saldana’s motion
    and the district court denied the motion.
    At the jury trial in this case the government called Diana
    Paul as an expert witness. Paul worked for the LAPD
    Firearms Analysis Unit as a criminalist and firearms
    examiner. Paul testified that she had been a firearms expert
    for approximately 15 years, and that she had a Master of
    Science degree in criminalistics. She further testified that the
    majority of her training came from a two-year, on-the-job
    training program with the LAPD Firearms Analysis Unit.
    She then passed a competency test which included both a
    written and practical component. Paul engaged in ongoing
    training in workshops and training seminars put on by
    forensic organizations, including a class offered by the FBI at
    Quantico, Virginia, designed specifically for forensic firearm
    and tool mark examination. Paul subscribed to forensic
    science journals and over the years she had analyzed
    approximately 2500 cases in the LAPD Firearms Analysis
    Unit. Paul had testified specifically in firearms analysis
    between 200 and 250 times.
    When the government offered Diana Paul as an expert in
    the area of firearms analysis, defendant Saldana objected.
    The district court found Paul qualified and then instructed the
    jury that opinion testimony should be judged like other
    testimony, and that it could be accepted, rejected, or given as
    much weight as the jury believed it deserved. Paul testified
    that her standard, the Associates of Firearms and Toolmark
    Examiners (AFTE) standard, was more conservative than that
    of others and that “I am not comfortable writing a report or
    reporting something that is not in my mind to a scientific
    certainty.” Paul also testified during direct examination that
    there is a subjective element to her job so she insures the
    60              UNITED STATES V. CAZARES
    quality of her work with four different areas of quality
    control.
    Paul examined fired shot shells, fired cartridge cases,
    fired bullets, and shot shell components from the Kenneth
    Wilson murder crime scene. Paul found the shot shells were
    fired from the same gun. Paul examined fired casings with
    the caliber designation of a 9 millimeter Luger from the
    Kenneth Wilson murder crime scene and compared them to
    the casings from the Rene Cerda murder and testified that
    they were fired from the same firearm. When the government
    asked how confident Paul was that the casing left behind at
    the Cerda murder was fired out of the same gun as was fired
    in the Wilson murder, Saldana objected for lack of foundation
    in terms of probability. The objection was initially sustained,
    but over the objection of counsel Paul was allowed to testify
    that the 9 millimeter Ruger could have fired the casings in
    both scenes, though she could not be certain. Paul also
    testified that she examined a bullet that was taken from
    Kenneth Wilson’s body and compared it to bullets at the
    scene and concluded they were fired from different firearms.
    She further testified, over defense objections on foundation
    and speculation, that there were at least three firearms used in
    the Kenneth Wilson crime. This testimony corresponds with
    the testimony given by Diaz and De La Cruz.
    In her testimony Paul also compared firearms evidence
    from the Christopher Bowser murder of December 11, 2000,
    and the Anthony Prudhomme murder of November 3, 2000.
    Another detective testified over defense objection at trial that
    he observed “an immediate nexus” between the Bowser and
    Prudhomme murder scenes, because Prudhomme was also a
    black male Highlands Park area victim who was killed with
    a gunshot wound to the back of the head just weeks before the
    UNITED STATES V. CAZARES                    61
    Bowser murder. Paul examined three cartridge cases and
    bullet evidence from the Bowser murder crime scene. Paul
    testified that the three casings had a .25 auto caliber
    designation and that they were fired from the same firearm.
    Paul further testified that she examined two casings from the
    Prudhomme murder scene and concluded they were fired
    from the same firearm. There were no objections to this
    testimony. Paul also testified that she compared the bullet
    evidence from the Bowser murder with the bullet evidence
    from the Prudhomme murder, and concluded they were fired
    from the same firearm. There was no objection made at the
    time this testimony was given.
    Paul was extensively cross-examined about her
    methodology, analysis, and basis for conclusions. Paul
    conceded during cross-examination that the conclusion that
    a particular bullet was fired by the same firearm as another
    bullet is ultimately a subjective evaluation. Paul also
    conceded that there was no statistical database from which
    she could prove that no other firearm could have fired the
    particular bullet. On redirect examination, however, Paul
    testified as follows (without objection) regarding her findings
    in this case: “I am completely certain. If I was not
    completely certain, I would have written a report saying that
    it was inconclusive. I would not have said that it was a
    match, the two were fired in the same gun.” She testified that
    was the case in the Wilson and Cerda comparisons and the
    Bowser and Prudhomme comparisons. Paul then testified,
    without objection from the defense, that her findings were
    made with a scientific certainty, but acknowledged, “There is
    no absolute certainty in science.”
    During closing arguments the prosecutor stated that “the
    most important corroboration to Diaz’s and De La Cruz’s
    62              UNITED STATES V. CAZARES
    testimony that Saldana shot at Wilson’s car with a 9
    millimeter gun he purchased from a White Fence gang
    member was Paul’s testimony “to a scientific certainty.”
    Toolmark Identification Expert Testimony
    On September 26, 2012, defendants submitted
    supplemental authority on the issue of whether the district
    court erred by permitting the governments’s firearms expert
    to testify to a scientific certainty about her firearms
    identification findings. The authority, United States v. Otero,
    
    849 F. Supp. 2d 425
     (D.N.J. 2012), contains a thorough
    discussion on the reliability of forensic toolmark examination
    utilized to identify the firearm from which a discharged
    ammunition originated. The district court issued its decision
    after it conducted a three-day Daubert hearing. The decision
    explains, “According to the theory of toolmark identification
    espoused by the Association of Firearms and Toolmark
    Examiners (‘AFTE’), individual characteristics ‘are unique to
    that tool and distinguish it from all other tools.’” 
    Id. at 428
    .
    In discussing the general acceptance of toolmark
    identification, the court summarized:
    Courts have observed that the AFTE theory of
    firearms and toolmark identification is widely
    accepted in the forensic community and,
    specifically, in the community of firearm and
    toolmark examiners. See United States v.
    Diaz, No. 05-167, 
    2007 WL 485967
    , at *11
    (N.D. Cal. Feb. 12, 2007). Even courts which
    have criticized the bases and standards of
    toolmark identification have nevertheless
    concluded that AFTE theory and its
    identification methodology is widely accepted
    UNITED STATES V. CAZARES                     63
    among examiners as reliable and have held
    the expert identification evidence to be
    admissible, albeit with limitations. United
    States v. Taylor, 
    663 F. Supp. 2d 1170
    , 1178
    (D.N.M. 2009); United States v. Monteiro,
    
    407 F. Supp. 2d 351
    , 372 (D. Mass. 2006);
    United States v. Green, 
    405 F. Supp. 2d 104
    ,
    122–24 (D. Mass. 2005).
    849 F. Supp. 2d at 435. The district court in Otero likewise
    concluded that there existed general acceptance of the AFTE
    theory among professional examiners as a reliable method of
    firearms and toolmark identification. The government in the
    Otero case, however, sought admission of the toolmark
    identification testimony based on the standard of “to a
    reasonable degree of certainty.” Id. at 429 n.3.
    The issue in this appeal is not the general admissibility of
    the toolmark identification testimony, but the “scientific
    certainty” standard to which Paul testified.
    In Diaz, the district court held that the theory of firearm
    identification used by the SFPD Crime Lab was reliable
    under Daubert. 
    2007 WL 485967
     at *1. However, the judge
    also acknowledged the subjectivity involved in a firearms and
    toolmark examiner’s identification, and concluded, “The
    record, however, does not support the conclusion that
    identifications can be made to the exclusion of all other
    firearms in the world. Thus, the examiners who testify in this
    case may only testify that a match has been made to a
    ‘reasonable degree of certainty in the ballistics field.’” 
    Id.
    64               UNITED STATES V. CAZARES
    Harmless Error
    Even the government is not arguing on appeal that
    “scientific certainty” is a proper characterization for toolmark
    identification expert testimony. While there may be some
    deficiency in the objections to the standard testified to by
    Paul, it appears that the “scientific certainty” issue was
    brought to the district court’s attention before and during
    Paul’s testimony. A more thorough Daubert hearing could
    have been helpful in handling the “scientific certainty” issue.
    The issue is then whether the “scientific certainty”
    characterization was harmless error.
    An error is harmless unless it results in actual prejudice,
    which is demonstrated where “the error in question had a
    ‘substantial and injurious effect or influence in determining
    the jury’s verdict.’” Winzer, 
    494 F.3d at 1201
     (quoting
    Brecht, 
    507 U.S. at 623
    ).              Although the firearms
    identification evidence and expert testimony was important
    in this case, the “scientific certainty” characterization was
    subject to cross examination which resulted in
    acknowledgment of subjectivity in the expert’s work. In
    addition, the district court properly instructed as to the role of
    expert testimony and there was substantial evidence
    otherwise linking the defendants to the Wilson and Bowser
    murders. We believe “a reasonable degree of certainty in the
    ballistics field” is the proper expert characterization of
    toolmark identification. Any error in this case from the
    “scientific certainty” characterization was harmless.
    UNITED STATES V. CAZARES                   65
    IX.
    WHETHER 
    18 U.S.C. § 245
    (b)(2)(B), ON ITS FACE
    AND AS APPLIED IN THIS CASE, IS A VALID
    EXERCISE OF CONGRESSIONAL POWER
    This Court “review[s] de novo questions of federal
    constitutional law, as well as questions of statutory
    construction.” United States v. Kaczynski, 
    551 F.3d 1120
    ,
    1123 (9th Cir. 2009) (citations omitted).
    Defendants Saldana, Martinez, and Cazares argue that
    their convictions on Count Two of the Second Superseding
    Indictment should be vacated because 
    18 U.S.C. § 245
    (b)(2)(B) is unconstitutional on its face and as applied
    to this case. Although defendants argue that Section
    245(b)(2)(B) exceeds Congress’s powers under both Section
    2 of the Thirteenth Amendment and the Commerce Clause,
    defendants also acknowledge that these arguments were
    rejected in United States v. Allen, 
    341 F.3d 870
     (9th Cir.
    2003). Defendants concede in their joint opening brief that
    we are bound, to the extent applicable, to the holding in
    United States v. Allen. Defendants state that the facial
    constitutional challenge is raised to preserve that issue for
    later review.
    
    18 U.S.C. § 245
    (b)(2)(B) in the Context of a City Street
    
    18 U.S.C. § 245
    (b)(2)(B) provides as follows:
    (b) Whoever, whether or not acting under
    color of law, by force or threat of force
    willfully injures, intimidates or interferes
    66               UNITED STATES V. CAZARES
    with, or attempts to injure, intimidate or
    interfere with–
    ...
    (2) any person because of his race, color,
    religion or national origin and because he is or
    has been--
    ...
    (B) participating in or enjoying any benefit,
    service, privilege, program, facility, or
    activity provided or administered by the
    United States[.]
    Count Two of the Second Superseding Indictment charges
    defendants Saldana, Martinez, and Cazares with violating
    
    18 U.S.C. § 245
    (b)(2)(B) because they “did willfully, by
    force and threat of force, injure, intimidate, and interfere with
    Kenneth Kurry Wilson, an African-American man, by
    shooting him with firearms, because of Kenneth Kurry
    Wilson’s race and color, and because he was and had been
    enjoying facilities provided and administered by a
    subdivision of the State, namely the public streets of Los
    Angeles, California, in and around Avenue 52.”
    Defendants argue that a street is not a facility within the
    meaning of 
    18 U.S.C. § 245
    , so the statute could not be
    applied to the facts of this case. Defendants argue that
    Congress’s vague use of the “facility” sets few if any limits
    on the statute’s reach. Defendants note that there are no
    congressional findings that a hate crime victim’s use of a
    street affects interstate commerce. Defendants also maintain
    UNITED STATES V. CAZARES                     67
    that there is ambiguity with respect to the definition of
    “facility” and that the rule of lenity thus requires interpreting
    the statute as being inapplicable to the facts of the case at
    hand. No court, however, has accepted these arguments.
    In rejecting arguments similar to those made by the
    defendants in this case, the Second Circuit presented the
    following persuasive discussion of a street being included in
    the term “facility”:
    Defendants’ suggestions to the contrary
    notwithstanding, the term “facility” clearly
    and unambiguously includes city streets
    within its meaning.         A “facility” is
    “something that promotes the ease of any
    action, operation, transaction, or course of
    conduct” or “something (as a hospital,
    machinery, plumbing) that is built,
    constructed, installed or established to
    perform some particular function or facilitate
    some particular end.” Webster’s Third
    International Dictionary 812–13 (1966). And
    a city street undoubtedly “promotes the ease
    of” travel and transportation within the city
    and is “built” and “constructed” to “perform
    [the] function [and] facilitate [the] end” of
    such travel and transportation. It therefore
    unambiguously falls within the clear meaning
    of the text of § 245(b)(2)(B).
    United States v. Nelson, 
    277 F.3d 164
    , 193 (2d Cir. 2002)
    (alterations in original); see also United States v. Mungia,
    
    114 F.3d 1181
     (5th Cir. 1997) (per curiam) (streets and
    sidewalks qualify as facilities under 18 U.S.C.
    68               UNITED STATES V. CAZARES
    § 245(b)(2)(B)); United States v. Three Juveniles, 
    886 F. Supp. 934
    , 944 (D. Mass.1995) (same). Defendants fail to
    provide a convincing argument that the street was not a
    facility under § 245(b)(2)(B). Section 245(b)(2)(B) is
    constitutional as applied to this case, and there was no error
    in declining to dismiss Count Two of the Second Superseding
    Indictment.
    X.
    WHETHER THERE WERE CUMULATIVE ERRORS
    AT TRIAL WHICH DEPRIVED DEFENDANTS OF
    THEIR FIFTH AMENDMENT DUE PROCESS
    RIGHTS TO A FAIR TRIAL
    There are some cases where the cumulative effect of
    multiple errors may so prejudice a defendant as to require
    reversal, even though no single trial error examined in
    isolation is sufficiently prejudicial to warrant reversal. Relief
    from the effects of cumulative error is appropriate in those
    cases where government’s case is weak and a defendant is
    more likely to be prejudiced by the effect of cumulative
    errors. See United States v. Frederick, 
    78 F.3d 1370
    , 1381
    (9th Cir. 1996). The government did not present a weak case
    in the case at hand. The overall effect of any errors that were
    committed do not violate the Defendants’ Due Process rights
    to a fair trial.
    AFFIRMED.
    

Document Info

Docket Number: 06-50677, 07-50037, 06-50678, 06-50679

Citation Numbers: 788 F.3d 956, 2015 WL 2242519

Judges: Pregerson, Fletcher, Piersol

Filed Date: 5/14/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (68)

United States v. Brobst , 558 F.3d 982 ( 2009 )

46-fed-r-evid-serv-1122-97-cal-daily-op-serv-2515-97-daily-journal , 109 F.3d 1493 ( 1997 )

Snyder v. Massachusetts , 54 S. Ct. 330 ( 1934 )

Faretta v. California , 95 S. Ct. 2525 ( 1975 )

Puckett v. United States , 129 S. Ct. 1423 ( 2009 )

United States v. Green , 405 F. Supp. 2d 104 ( 2005 )

Alexander Stewart v. Robert Corbin , 850 F.2d 492 ( 1988 )

Percy Jones, Sr. v. Eddie Meyer , 899 F.2d 883 ( 1990 )

United States v. Charly Sion Hagege, United States of ... , 437 F. App'x 943 ( 2006 )

United States v. Lemrick Nelson, Jr. And Charles Price, ... , 277 F.3d 164 ( 2002 )

Rosales-Lopez v. United States , 101 S. Ct. 1629 ( 1981 )

Davis v. Alaska , 94 S. Ct. 1105 ( 1974 )

Daubert v. Merrell Dow Pharmaceuticals, Inc. , 113 S. Ct. 2786 ( 1993 )

United States v. Rivera , 292 F. Supp. 2d 827 ( 2003 )

United States v. Gurmeet Singh Dhinsa , 243 F.3d 635 ( 2001 )

Arizona v. Fulminante , 111 S. Ct. 1246 ( 1991 )

James Richard Terrovona v. Larry Kincheloe , 852 F.2d 424 ( 1988 )

United States v. Craighead , 539 F.3d 1073 ( 2008 )

Lewis v. United States , 13 S. Ct. 136 ( 1892 )

Illinois v. Allen , 90 S. Ct. 1057 ( 1970 )

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