2006 — Aug 7, SUV with 20 illegals flips while evading Border Patrol spike strip, ~Yuma, AZ– 10

–11  Center for Individual Freedom. “U.S. Border Patrol Attacked by Illegal…” 8-31-2006.[1]

–10  FBI. “Man Re-Sentenced to Life in Prison for Transporting Illegal Aliens…” 3-16-2011.

–10  National Highway Traffic Safety Administration. FARS 1975-2010 Fatality Analysis.

–10  The Sun. Yuma, AZ. “Rollover death toll reaches 10.” 8-12-2006, p. 11.

–10  US Court of Appeals, Ninth Circuit. [US] v. Adan Pineda-Doval… August 10, 2010.

–10  Yuma Sun. AZ. “Life sentence thrown out in deadly immigrant crash.” 8-10-2010.

—  9  The Sun, Yuma, AZ. “9 killed in rollover.” 8-8-2006, p. 1.

—  9  The Sun, Yuma, AZ. “Alleged driver of vehicle in deadly rollover charged.” 8-9-2006, 1.

—  9  The Sun, Yuma, AZ. “Illegal injured in rollover gives birth.” 8-11-2006, p. 8.

—  9  Week. “A Borderline dilemma. Supporting those who keep us….” Desert Warrior, 8-17-06

 

Narrative Information

 

Aug 8, The Yuma Sun: “An apparent immigrant smuggling attempt turned fatal north of Yuma Monday morning, killing nine suspected illegal immigrants and injuring 13 other illegal aliens who were all packed inside an SUV while fleeing from agents. U.S. Customs and Border Protection officials said a Chevrolet Suburban holding as many as 22 suspected illegal immigrants rolled over early in the morning on Martinez Lake Road after the vehicle swerved to avoid spike strips deployed by the agents to slow the Suburban.

 

“U.S. Border Patrol agents spotted the vehicle traveling on a dirt road near the Arizona-California border. A Border Patrol spokeswoman said the route is commonly used by smugglers to avoid a checkpoint on U.S. Highway 95. The driver of the Suburban tried to outrun the agents and ended up heading east on Martinez Lake Road toward U.S. Highway 95, but flipped over when it attempted to make a U-turn near milepost 4.

 

“Border Patrol spokeswoman Veronica Lozano did not know how fast the vehicles were traveling when the accident occurred. Agents immediately called for medical assistance. Yuma County Sheriffs Office spokesman Maj. Leon Wilmot said the individuals were stacked like “cord wood” inside the vehicle. “Having that many people in a Suburban, I don’t think they said. “They (smugglers) pack them in there so tight, there is no room.”….

 

“Five individuals were pronounced dead at the scene and 16 were taken to Yuma Regional Medical Center, according to some officials. Other estimates said 22 were involved in the accident. Four of the individuals transported later died at the Yuma hospital. Six, including a pregnant woman, were flown to a Phoenix hospital for care of more serious injuries. Three patients, one of which is in serious condition, remain hospitalized at YRMC. The other two patients are still being evaluated by the emergency department.  Three individuals were treated and released to federal officials.

 

“Rick Hays of Border Patrol’s Yuma sector said rollover accidents are unfortunately common because smugglers often overload their vehicles and flee at high rates of speed and lose control as they are trying to get away. However, Hays said that this accident was the worst he has ever seen in Yuma. “These smugglers try to get away and they don’t have any compassion for these people,” Hays said. “The smuggler’s main goal is to get them (immigrants) where he needs to get

them and collect his fee.”

 

“Spike strips are commonly deployed to slow a vehicle in a controlled fashion in order to minimize the risk to the public’s safety, but have led to several rollover accidents in the past.  Last March, a Suburban filled with 20 illegals rolled over on Interstate 8 when it attempted to avoid a spike strip while fleeing from Border Patrol. A 55-year-old Hispanic woman was ejected

from the vehicle and killed in the incident and three others were injured. Border Patrol agents must get the permission of a supervisor to deploy the spike strips, he said. “It is deployed when we have a vehicle that is posing a threat to the community and that by allowing them to continue would pose a greater threat,” Hays said. The strips puncture the tires and cause them to slowly deflate, which reduces the chances of the driver losing control of the vehicle. “That has happened in the past when they have been deployed and the individual sees it,” Hays said.” All we want to do is make sure that the general public is protected…. Imagine if that vehicle plows into a school bus or plows into a woman who has her baby in a minivan. Those spike strips are a tool that allow us to (prevent) that.”

 

“The incident remains under investigation by Yuma agents with Immigration, Customs and Enforcement and YCSO.”  (The Sun, Yuma, AZ. “9 killed in rollover.” 8-8-2006, pp. 1 and 6.)

 

Aug 9, Yuma Sun: “Authorities filed charges Tuesday against a man believed to be behind the wheel during a rollover that killed nine illegal immigrants and injured a dozen more 30 miles north of Yuma.  Accident survivors say the driver was 20-year-old Adan Pineda of Mexico.  He was in federal custody and charged with one count of transporting illegal aliens, said Russell Ahr, U.S. Immigration and Customs Enforcement spokesman. Ahr said the Investigation will determine whether more charges are warranted.

 

“An apparent human smuggling attempt turned fatal early Monday morning on Martinez Lake Road, near U.S. Highway 95, when a vehicle carrying 21 suspected illegals overturned while trying to elude U.S. Border Patrol agents.

 

“Miguel Escobar Valdez, the Mexican consul, in Yuma, said his office has identified five of the nine people who died in the wreck, and two of the six people who were taken to a Phoenix hospital….He said they came from various areas of Mexico, including Mexico City, Guanajuato, Michoacán and Puebla. Valdez said it appeared the migrants had first been held in a stash house in Yuma before beginning the trip, that ended with the accident. A stash house, or drop house, is used by smugglers to hold their clients before moving them to other destinations….

 

“According to YCSO, the driver swerved to avoid a spike strip put out by Border Patrol agents.  The vehicle rolled over, ejecting several of its occupants onto the road.” (The Sun, Yuma, AZ.  “Alleged driver of vehicle in deadly rollover charged.” 8-9-2006, p. 1.)

 

Aug 9, Yuma Sun: “….”The strategies that the Border Patrol uses to stop immigration are cruel, which causes accidents. They should be more humane. They don’t need to treat illegals as criminals. Border Patrol agents should treat people like human beings. It’s true they are breaking the law when crossing the border illegally, but they don’t need to be treated like animals. Everybody is guilty: Border Patrol, the coyotes and the (immigrants). It’s a mafia. (Immigrants) are guilty for (their) necessity. Coyotes are guilty for smuggling people and how they abused them. Border Patrol is guilty for how they treat people, feeling superior to the illegals.” Maria Guerrero.”  (The Sun, Yuma, AZ. “A Community Reacts.” 8-9-2006, p. 1.)

 

Aug 11, Yuma Sun: “An expectant mother injured earlier this week in the rollover of a smuggling vehicle carrying her and 20 other illegal immigrants has given birth to a baby girl. The baby, weighing 3 pounds, 11 ounces, was born by Caesarean section Tuesday in a Phoenix hospital, said Jorge Solchaga, head of the protection department of the Mexican Consulate in Phoenix. The mother gave birth during her seventh month of pregnancy. The baby, who has been nicknamed “Milagros,” or “Miracles,” was in satisfactory condition, Solchaga said, who has been monitoring the baby’s health for the Phoenix consulate. The mother, who remained unidentified, is still in critical condition, he said….

 

“The mother and four other injured aliens remained in Banner Good Samaritan Medical Center in Phoenix on Wednesday….

 

“The alleged driver of the Suburban, 20-year-old Adan Pineda-Doval, is in federal custody on a charge of felony transportation of illegal aliens. He may face additional charges pending a continuing investigation into the accident.

 

“A year ago, Pineda-Doval allegedly was trying to smuggle illegal aliens into the country when he was chased by Border Patrol agents and Arizona Department of Public Safety officers, according to documents in U.S. District Court in Yuma. The pursuit led from Yuma to Quartzsite, during which Pineda-Doval allegedly swerved toward officers, putting their lives and the lives of the aliens at risk, court documents stated. He was charged with multiple felony counts in that case, but pleaded guilty to a misdemeanor count of illegal entry in the case, according to court records.” (The Sun, Yuma. “Illegal injured in rollover gives birth.” 8-11-06, 8)

 

Aug 12, Yuma Sun: “A 17-year-old boy injured earlier this week in a rollover accident of a smuggling vehicle that was carrying 21 other illegal immigrants has died. According to Jorge Solchaga of the Mexican Consulate in Phoenix, the boy, who was among six illegal immigrants transported to Phoenix’s Banner Good Samaritan Medical Center following Monday’s accident died on Friday morning…. A total of 10 illegal immigrants have now died as a result of the accident, which also wounded 11 others….” (The Sun. Yuma, AZ. “Rollover death toll reaches 10.” 8-12-2006, 11.)

 

Week: “….On this trip, Pineda has 21 people packed into the white SUV. As Border Patrol follows closely behind, Pineda yells to his passengers, “Shut up! I need to think.” He white- knuckles the steering wheel and looks ahead. Pineda knows he has to make it to Mexican soil before the Suburban runs out of gas. It’s his only way out. Pineda sees two Border Patrol cruisers parked on the side of the road, the agents crouched behind them. “Look,” he hears someone from the back scream.

 

“Spike strips lay covering the road ahead. Pineda makes a sharp right — swerving the SUV – trying to avoid the strips. The tires of the vehicle make a large screeching sound and then the vehicle flips over. The SUV rolls over and over and over again, slamming into the hardened desert floor. When the Suburban rolls to a stop, it is almost unrecognizable….” (Week, Lance Cpl. Alec D. “A Borderline dilemma. Supporting those who keep us safe.” Desert Warrior (Serving Marine Corps Air Station Yuma), Vol. 5, No. 32, 8-17-2006, p. 12.)

 

Center for Individual Freedom: “On August 7, 2006, illegal immigrant Adan Pineda-Doval, 20, rolled a Chevrolet Suburban packed with twenty-one (yes, twenty-one) illegal immigrants while fleeing U.S. Border Patrol agents, killing eleven and injuring ten others.   According to victims’ relatives and a coalition of “human rights groups,” however, Mr. Pineda-Doval is not to blame – the U.S. Border Patrol is….

 

“The August 7 tragedy began when agents manning their El Centro Sector checkpoint near Yuma, Arizona spotted the Suburban driven by Mr. Pineda-Doval covertly maneuvering back roads.  The Suburban dangerously navigated extremely steep hills at approximately 45 miles per hour, and quickly accelerated when it reached an open stretch.  At that point, agents began following it.  Other agents waiting up the road from the pursuit laid a spike strip to safely deflate the tires and end the pursuit.  But Mr. Pineda-Doval had a different idea, and decided to jeopardize the lives of his occupants by swerving to avoid the spike strip at approximately 80 miles per hour.  Border Patrol Spokesman Lloyd Frers reported that the spike strips are “specifically designed to safely deflate a tire,” and the agents properly deployed them in this instance.  According to Agent Frers, however, “the driver saw them, quite obviously, and still crashed because he was trying to break the law and get away.  I absolutely, one hundred percent believe the spike strips were used in a safe manner.”

 

“The U.S. Attorney for Arizona quickly obtained an eleven-count federal grand jury indictment of Mr. Pineda-Doval, who now faces life in prison or the death penalty.”  (Center for Individual Freedom. “U.S. Border Patrol Attacked by Illegal Immigrants and Liberal Advocates – for Simply Doing Their Job.” 8-31-2006.)

 

“Adan Pineda-Doval was convicted, after a seven-day jury trial, on ten counts of transportation of illegal aliens resulting in death, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv). The district court sentenced him to a term of life imprisonment on each count, sentences to be served concurrently. On appeal, Pineda-Doval challenges his convictions, primarily on the basis that the jury should have been instructed that it could find the defendant guilty only if his conduct was the proximate

cause of the ten charged deaths. In addition, he argues that his conviction should be vacated because of improper jury instructions regarding the lesser included offense of transportation of illegal aliens, incorrect evidentiary rulings, and prosecutorial misconduct at closing arguments.

 

“Finally, Pineda-Doval challenges his sentence; he argues that the district court did not find that he acted with malice aforethought and therefore should not have calculated his recommended Guidelines sentence using the second-degree murder guideline, and also that the district court should have applied the heightened “clear and convincing” standard of proof at sentencing. We affirm Pineda-Doval’s conviction, vacate his sentence, and remand for re-sentencing. (p. 11308)

 

“I. Early in the morning on August 7, 2008, Pineda-Doval loaded twenty men, women, and children into a Chevrolet Suburban. The car was not equipped with rear seats or safety belts. All of his passengers were illegal aliens. Eighteen of them crowded into the back of the Suburban, and two pregnant women sat in the front seat next to Pineda-Doval, the driver.

 

“Customs and Border Patrol (“CBP”) Agent Corey Lindsay was driving south on Red Cloud Mine Road, a remote dirt road in southern Arizona that is believed by Border Patrol to be popular with alien smugglers. He passed Pineda-Doval, who was driving in the opposite direction, and saw that the Suburban was crowded with passengers. Agent Lindsay radioed for assistance and turned his car around to follow Pineda-Doval. The defendant quickly realized that he was being pursued, made a U-turn, and started driving towards Mexico. Agent Lindsay did the same. Though Pineda-Doval was forced to drive slowly because of the state of the road and weight of his car, he tried to lose Agent Lindsay several times by hitting the brakes or attempting to pull into the brush.

 

“Some passengers grew frightened and yelled at the defendant to stop. He refused.

 

“Pineda-Doval then turned left onto the paved, two-lane Martinez Lake Road. Heading east, he accelerated to about 50-55 miles per hour, occasionally reaching speeds of about 70 miles per hour. Agent Lindsay continued to trail him. Meanwhile, Agent Clinton Russell responded to Agent Lindsay’s request for assistance and drove west on Martinez Lake Road, heading in the direction of the defendant and Agent Lindsay. He carried with him a controlled tire deflation device (“CTDD”), also called a “spike strip.” A CTDD is a tool used by Border Patrol to stop fleeing vehicles. It consists of a series of x-shaped plastic links that, when expanded, can cover one lane of traffic. Hollow tubes are embedded along the plastic strip. When a vehicle drives over an expanded CTDD, the hollow tubes pierce the tires, causing air to gradually escape, disabling the vehicle.

 

“Agent Russell had never used a CTDD before. Between them, Agents Russell and Lindsay had witnessed over 100 CTDD deployments, many of them involving SUVs that were overloaded with passengers. Neither of them had ever seen a spiked vehicle roll over. Pineda-Doval had twice before been the target of a spike strip. On both occasions he had been transporting illegal aliens. The first time he managed to swerve around the CTDD, but the next time he was successfully stopped and apprehended by Border Patrol.

 

“Agent Russell stopped at a point on Martinez Lake Road where the road was relatively flat and there was little traffic. He placed the collapsed CTDD on one side of the road and hid in the brush on the opposite side of the road, ready to pull the CTDD across the pavement when Pineda-Doval approached. Agent Russell radioed Agent Lindsay and advised him of the location of the spike strip. About one and a half miles from Agent Russell’s location, when Pineda-Doval

was traveling about 45 miles per hour, Agent Lindsay turned on his vehicle’s lights and siren. When Pineda-Doval did not yield, Agent Lindsay told Agent Russell to deploy the spike strip.

 

“Agent Russell waited until the Suburban was approximately 80 to 100 feet away and then yanked the spike strip across the road. Pineda-Doval shouted to his passengers, “Commend yourselves to God, because we are being pursued.” He swerved across the westbound lane of traffic and onto the dirt shoulder, trying to drive around the CTDD, but it caught his right rear tire. He immediately swerved back onto the paved road. The weight of his unsecured passengers

suddenly shifted, and the front edge of the Suburban “tripped” into the asphalt. Passengers were thrown from the Suburban as it rolled once on its side and then once more end-to-end, finally coming to rest right side up but facing the wrong direction. Five passengers died at the scene, and five more died at hospitals as a result of injuries sustained in the crash.

 

“Pineda-Doval was charged with ten counts of transportation of illegal aliens resulting in death, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iv), one count of transportation of illegal aliens placing in jeopardy the life of any person, 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(iii), and one count of reentry after deportation, 8 U.S.C. § 1326(a).

 

“Before trial, the government submitted a motion in limine to bar Pineda-Doval from offering evidence that the Border Patrol agents had not complied with CBP policies for deploying spike strips. Over the defendant’s objection, the district court granted the motion, concluding that such evidence was irrelevant.

 

“The trial lasted seven days. The Government called the agents involved in the pursuit of Pineda-Doval, the immigration officer who interviewed Pineda-Doval after the crash, two of the Suburban’s passengers, and an expert in car accident reconstruction. At the end of the Government’s case, Pineda-Doval’s counsel renewed his request to submit evidence of CBP policies on CTDDs. The court again refused. Defense counsel rested, explaining that he had no evidence because of the court’s ruling. The jury deliberated for about an hour and a half before finding the defendant guilty on all counts. The district court sentenced Pineda-Doval to life imprisonment on each of the ten counts of transportation of illegal aliens resulting in death, sentences to run concurrently…. (Pp. 11309-11311)

 

“Pineda-Doval’s failed attempt to swerve around the spike strip was the proximate cause of the deaths of ten individuals. It was entirely foreseeable that the Border Patrol would deploy a CTDD against the defendant’s Suburban and that Pineda-Doval’s dangerous driving would end in an accident. Pineda-Doval must have known that Agents Russell and Lindsay would try to stop him by using a CTDD, since he had been the target of a spike strip twice before. He also must have known that he was in danger; when he saw the spike strip being drawn across the road, he shouted to his passengers, “Commend yourselves to God, because we are being pursued.” Pineda-Doval was in a police chase, traveling at 45 miles per hour, in an overcrowded vehicle that lacked seat belts — and then deliberately and sharply swerved off the road. No reasonable jury could have found that a car accident was an extraordinary result.

 

“The defendant tries to pin some of the responsibility for the accident on Border Patrol negligence, arguing that Agent Russell deployed the spike strip too early and thereby gave him an opportunity to swerve.  Had Agent Russell complied with CBP policies governing spike strips and deployed the CTDD just before the Suburban drove past, Pineda-Doval would not have had time to react, and the accident would have been averted. We cannot agree that the actions of Agents Lindsay and Russell constituted a superseding cause of the accident. The agents were both careful in deploying the spike strip. The agents waited until Pineda-Doval had reached a straight stretch of Martinez Lake Road with very little traffic, knowing that it would have been dangerous if they tried to stop him earlier, where the road was more uneven….  (p. 11320)

 

“Contrary to the district court’s conclusion, evidence of CBP policies on spike strips was relevant to the issue of causation. As we have already explained, 8 U.S.C. § 1324(a)(1)(B)(iv) does contain a proximate cause requirement. For a defendant to be found guilty of transportation of illegal aliens resulting in death, the Government must prove that the defendant’s criminal conduct was the but-for cause and the proximate cause of the charged deaths. Evidence of CBP policies governing spike strips, and Agent Lindsay’s and Agent Russell’s compliance with those policies, is relevant because it goes to the question of whether their actions were extraordinary enough to break the chain of causation between Pineda-Doval’s conduct and the deaths of ten of his passengers…

 

“See Spinney, 795 F.2d at 1415; 1 W. LaFave, supra, § 6.4(g)(2), at 491. The district court should not have excluded that evidence under Rule 401.

 

“Nor should the district court have excluded evidence of CBP policies under Rule 403. The probative value of evidence of the CBP policies was not “substantially outweighed” by the risk of unfair prejudice, confusion, or waste of time.  Fed. R. Evid. 403. The only real factual dispute at Pineda-Doval’s trial was whether his driving caused the ten charged deaths. Evidence of the CBP policies had significant probative value because it went to the question of whether Agent Russell’s conduct constituted a superseding cause of the accident. The excluded evidence posed no risk of unfair prejudice, unnecessary delay, or jury confusion. The district court abused its discretion by excluding the evidence under Rule 403. See United States v. Cohen, 510 F.3d 1114, 1127 (9^th Cir. 2007); United States v. Boulware, 384 F.3d 794, 808 (9^th Cir. 2004).

 

“Furthermore, the improper exclusion of evidence of CBP policies essentially deprived Pineda-Doval of all evidence in his favor, and thus violated his constitutional right to “ ‘present a complete defense.’ ” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986))….

 

“[12] By prohibiting Pineda-Doval from introducing evidence of CBP policies on spike strip deployment and evidence that the Border Patrol agents failed to comply with that policy, the district court effectively denied the defendant the only argument that he had. There was no question that Pineda-Doval’s passengers were illegal aliens and that he was transporting them as part of a smuggling operation… All that was left to argue was causation. After the district court ordered that evidence of CBP policies on spike strips could not be introduced at trial, it allowed defense counsel to make a proffer. Counsel indicated that he would have called Agents Mario Reina and Roland Castellanos to the stand in support of his argument that Agent Russell’s too-early deployment of the CTDD constituted a superseding cause of the car accident. They would have testified, according to the defendant’s proffer, that they had been formally taught how to use CTDDs, and that their training and the manufacturer’s recommendations instructed that spike strips should be deployed in such a fashion that the approaching vehicle is surprised and does not have a chance to evade. The agents also would have testified that Agent Russell deployed the CTDD too early, which allowed the Suburban to swerve and crash. This prohibited evidence comprised the entirety of the defendant’s superseding cause argument. Because the district court incorrectly “excluded the introduction of all evidence relating to a crucial defense,” Moses, 555 F.3d at 758, that evidentiary error amounted to a deprivation of Pineda-Doval’s right to present a complete defense…. (pp. 11325-11328)

 

“VIII. Pineda-Doval challenges his sentence of life imprisonment. The Sentencing Guideline for transportation of illegal aliens resulting in death directs the district court to apply the appropriate murder guideline if, had the transportation occurred in federal territorial jurisdiction, the killing would have constituted murder. The defendant argues that the district court should not have applied the second-degree murder guideline because the court did not specifically find that he acted with “malice aforethought,” as required by Federal Rule of Criminal Procedure 32….

 

“Defense counsel argued that the second-degree murder Guideline did not apply to Pineda-Doval because he did not act with malice aforethought. See United States v. Houser, 130 F.3d 867, 871 (9th Cir. 1997). Rather he drove recklessly, a mental state contemplated by the Guideline applicable to the transportation of illegal aliens, which provides for an upwards adjustment for recklessness. U.S.S.G. § 2L1.1(b)(5). That Guideline suggested a sentence between 168 and 210 months.

 

“At the sentencing hearing, the district court stated that it had considered Pineda-Doval’s written objections to the Pre-Sentence Report, which it noted “extensively” argued “why the cross-reference shouldn’t apply.” The court found that Pineda-Doval’s “driving was reckless” and therefore “the cross-reference applies.” Accordingly, it calculated the Guidelines sentence using the second-degree murder guideline, U.S.S.G. § 2A1.2, which produced a recommended sentence of life imprisonment.

 

“a. Malice Aforethought

 

“Murder is “the unlawful killing of a human being with malice aforethought.” 18 U.S.C. § 1111. First-degree murder requires an additional element; the killing must either be “willful, deliberate, malicious, and premeditated,” or be committed in the course of perpetrating one of the serious felonies listed in § 1111. Id. “Any other murder is murder in the second degree.” Id.

 

“The Ninth Circuit has variously defined malice aforethought as “ ‘a callous and wanton  disregard of human life,’ ” Houser, 130 F.3d at 871 (quoting United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1975)); “ ‘extreme indifference to the value of human life,’” United States v. Hernandez-Rodriguez, 975 F.2d 622, 627 (9th Cir. 1992) (quoting United States v. Lesina, 833 F.2d 156, 159 (9th Cir. 1987)); “ ‘a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences,’ ” Lesina, 833 F.2d at 159 (quoting Celestine, 510 F.2d at 459); and “the state of mind with which one intentionally commits a wrongful act without legal justification or excuse,” Celestine, 510 F.2d at 459…

 

“These flowery descriptions do not cast much light on malice aforethought. The legal meaning of the phrase “does not even approximate its literal meaning.” 2 LaFave, supra, § 14.1, at 416. Malice aforethought was meant literally at early common law; murder required “malice,” an intent to kill and perhaps also an element of hatred, and “aforethought,” advance planning or deliberation. Id. § 14.1(a). Courts gradually expanded the crime of murder to cover killings that, while not specifically intended or planned, were grievous enough to be considered murder. See Tison v. Arizona, 481 U.S. 137, 156-58 (1987) (discussing the expansion of malice aforethought since early American common law). As a result, in modern criminal law, malice aforethought covers four different kinds of mental states: (1) intent to kill; (2) intent to do serious bodily injury; (3) depraved heart (i.e., reckless indifference); and (4) intent to commit a felony. 2 LaFave, supra, § 14.1, at 416.

 

“The question here is whether Pineda-Doval is guilty of depraved-heart murder.[2]  “[D]epraved-heart murder falls into the second degree murder category.” Id. § 14.7(e), at 487. To act with this type of malice aforethought, a defendant’s conduct must create a “very high degree of risk” of injury to other persons, he must be aware of that risk… and he cannot have a justifiable reason for taking that risk. Id. § 14.4 (emphasis added). It is this aspect of malice aforethought — an awareness of an extreme risk — that the Ninth Circuit has tried to capture when it has described malice aforethought as “a callous and wanton disregard of human life,” Houser, 130 F.3d at 871, and “an extreme indifference to the value of human life,” Hernandez-Rodriguez, 975 F.2d at 627; see also United States v. Serawop, 410 F.3d 656, 663 n.4 (10th Cir. 2005) (“[W]e have . . . held that malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm. The concepts of ‘depraved heart’ and ‘reckless and wanton, and a gross deviation from the reasonable standard of care’ are functionally equivalent in this context.” (internal citation and quotation marks omitted)).

 

“Grossly negligent conduct that creates a high — but not very high — risk of injury to others can support a conviction for involuntary manslaughter, but not murder. Involuntary manslaughter requires proof

 

(1) that the defendant acted with “gross negligence,” defined as “wanton or reckless disregard for human life;” and (2) that the defendant had actual knowledge that his conduct was a threat to the lives of others, . . . or had knowledge of such circumstances as could reasonably be said to have made foreseeable to him the peril to which his acts might subject others….

 

“The rule that merely reckless driving cannot provide the basis for a second-degree murder conviction is illustrated by United States v. Hernandez-Rodriguez, 975 F.2d 622 (9th Cir. 1992).

The defendant in Hernandez-Rodriguez led Border Patrol agents on a three-hour high-speed chase, with speeds up to eighty miles per hour on the freeway and up to forty-five to fifty miles per hour on surface streets. Id. at 624. Though the court acknowledged that the defendant “did speed, he did go through stop signs, and he did ignore other traffic laws” while evading the police, it held that “something more” was required to establish the malice aforethought necessary

to prove second-degree murder. Id. at 627…. (Pp. 11333-11337.)

 

“[21] In sum, the district court did not specifically find that Pineda-Doval acted with malice aforethought, as required by Federal Rule of Criminal Procedure 32, and did not apply the correct standard of proof at sentencing.  We vacate Pineda-Doval’s sentence and remand for re-sentencing. See Jordan, 256 F.3d at 934; United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 (9th Cir. 1990) (en banc).

IX.

“Pineda-Doval’s conviction is AFFIRMED, his sentence is VACATED, and this case is REMANDED for the district court to expressly find whether there is clear and convincing evidence that Pineda-Doval acted with malice aforethought when he undertook the charged conduct and to resentence the Defendant in light of its finding.”  (p. 11343.)

 

(United States Court of Appeals for the Ninth Circuit. United States of America, Plaintiff-Appellee, v. Adan Pineda-Doval, Defendant-Appellant (No. 08-10240 D.C. No. 2:06-cr-00778 SMM-1 Opinion) Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding; Argued and Submitted November 2, 2009—San Francisco, California; Filed August 10, 2010 Before: Betty B. Fletcher, William C. Canby, Jr., and Susan P. Graber, Circuit Judges. Opinion by Judge B. Fletcher.)

 

Aug 10, 2010 Yuma Sun: “An appeals court has thrown out the life sentence of a suspected smuggler who was the driver during a August 2006 rollover crash on Martinez Lake Road that killed 10 illegal immigrants, including a pregnant woman. The 9th U.S. Circuit Court of Appeals in San Francisco ruled that the U.S. District Court in Arizona didn’t find that Adan Pineda-Doval planned the deaths or act with malice and it didn’t provide the correct standard of proof at his sentencing.

“In a decision filed Tuesday, the 9th Circuit affirmed Pineda-Doval’s conviction but vacated his life sentence and sent the case back to the Arizona court for re-sentencing. If the court finds Pineda-Doval acted with malice or planned the deaths, it could re-sentence him to life in prison.

“Pineda-Doval was driving a Chevrolet Suburban packed with 20 illegal immigrants on Martinez Lake Road on Aug. 7, 2006, when Border Patrol agents spotted him. He tried to get away, and the van crashed when he swerved to avoid a spike-strip agents had placed in the road. Several people were ejected from the vehicle and died on the scene. Among the 10 people who died was a 17-year-old pregnant woman and her unborn child.

“Pineda-Doval was convicted in 2008 of 10 counts of transporting illegal immigrants causing death and two lesser charges.

 

“This was not the first time Pineda-Doval tried to escape from law enforcement while smuggling illegal aliens.  According to court documents from the U.S. District Court in Yuma, he drove a truck from Yuma to Quartzsite on June 25, 2005, with Border Patrol agents and Arizona Department of Public Safety officers in pursuit. During the pursuit the defendant drove erratically, swerving toward DPS officers and Border Patrol agents, putting the lives of the agents and his passengers in danger,” said the statement of factual basis included with the complaint.

“The statement said Pineda-Doval entered the U.S. illegally near Andrade, Calif., the same day. Pineda-Doval was officially charged with illegal entry as a result of being stopped by Blythe Border Patrol agents near Parker.  The offenses of aggravated assault against a law enforcement officer, criminal damage, resisting arrest, unlawful flight from a law enforcement vehicle and endangerment — all stemming from the vehicle pursuit — were listed on the statement.  However, he was not charged with those offenses.

“In a previous Yuma Sun story, Arizona U.S. District Attorney’s Office spokeswoman Ann Harwood said smugglers who endanger those they are smuggling by trying to run from law enforcement, who smuggle children who are not their own or make other dangerous decisions, such as locking people in vehicle trunks while smuggling them, are normally prosecuted harshly by the office.

“However, in 2005 Pineda-Doval did run from law enforcement and was said to have endangered his passengers, but was convicted of only a single misdemeanor through a plea agreement. Harwood said she could not comment on whether Pineda-Doval should have faced more serious charges because she didn’t know the specifics of the case, such as the available evidence and the likelihood of a conviction. “Without knowing the circumstances, I can’t really say,” she said.

 

“According to court documents, on June 30, 2005, Pineda-Doval was sentenced to six months in a Bureau of Prisons facility and required to pay a $10 special assessment for illegal entry. The BOP Web site did not list Pineda-Doval as a former inmate, but court officials said the U.S. Marshals Office has the discretion to place convicted persons wherever there is available jail space, not only in BOP facilities.

 

“It appears Pineda-Doval was the recipient of what the U.S. Attorney’s Office calls a “flip-flop,” a prosecution method used because there are such a high number of smuggling cases, Harwood said. In a flip-flop, which are normally offered to smugglers who didn’t endanger those they were smuggling, prosecutors charge the smuggler with a felony and a misdemeanor and he or she accepts a plea agreement and is found guilty of only the misdemeanor.

 

“Harwood said recidivism is an issue throughout the legal system for all kinds of different offenders. She said there is a lot of money to be made in human smuggling, so some people will continue to do it even if they have been caught and punished.  “They’re making a livelihood off of it,” she said.” (Yuma Sun, AZ. “Life sentence thrown out in deadly immigrant crash.” (8-10-2010.)

 

March 16, 2011, FBI/U.S. Attorney’s Office, District of Arizona Press Release: “Phoenix — A federal judge on Monday re-sentenced convicted alien smuggler Adan Pineda-Doval to life in prison for his role in a vehicle crash that took the lives of 10 people, including a pregnant woman. Pineda-Doval, 25, of Michoacán, Mexico, originally received a life sentence on May 8, 2008. The Court of Appeals for the Ninth Circuit remanded the case on August 10, 2010, for specific findings regarding the defendant’s mental state at the time of the offense. U.S. District Judge Stephen M. McNamee pronounced his findings on February 28, 2011, and repeated them at the sentencing hearing on Monday.

 

“Pineda-Doval was found guilty by a federal jury on October 25, 2007, of 10 counts of transportation of illegal aliens resulting in death, one count of transportation of illegal aliens placing lives in jeopardy, and one count of re-entry after deportation. Judge McNamee re-imposed sentences of life imprisonment on the 10 counts of transportation of illegal aliens resulting in death to be served concurrently with each other and concurrently with sentences of 20 years’ of imprisonment for the count of transportation of illegal aliens placing lives in jeopardy and two years of imprisonment for the count of re-entry after deportation. If Pineda-Doval ever is released from the Bureau of Prisons, he will commence a term of supervised release of five years….” (Federal Bureau of Investigation (FBI), Phoenix Division, and U.S. Attorney’s Office, District of Arizona. “Man Re-Sentenced to Life in Prison for Transporting Illegal Aliens, Vehicle Crash That Resulted in 10 Deaths.” 3-16-2011 Press Release.)

 

Sources

 

Center for Individual Freedom. “U.S. Border Patrol Attacked by Illegal Immigrants and Liberal Advocates – for Simply Doing Their Job.” 8-31-2006. Accessed at:  http://www.cfif.org/htdocs/legislative_issues/federal_issues/hot_issues_in_congress/immigration/Border-Patrol-Attacked-Illegal-Immigrants-Liberal-Advocates.htm

 

Federal Bureau of Investigation (FBI), Phoenix Division, and U.S. Attorney’s Office, District of Arizona. “Man Re-Sentenced to Life in Prison for Transporting Illegal Aliens, Vehicle Crash That Resulted in 10 Deaths.” 3-16-2011 Press Release. Accessed 8-23-2015 at: https://www.fbi.gov/phoenix/press-releases/2011/px031611.htm

 

National Highway Traffic Safety Administration. Partial Data Dump of Crashes Involving 10 or More Fatalities, by Year, Fatality Analysis Reporting System (FARS) 1975-2009 Final and 2010 ARF. Washington, DC: NHTSA, pdf file provided to Wayne Blanchard, 1-26-2012.

 

The Sun, Yuma, AZ. “9 killed in rollover.” 8-8-2006, p. 1. Accessed at:  http://www.newspaperarchive.com/the-yuma-sun/2006-08-08/page-1/

 

The Sun, Yuma, AZ. “Alleged driver of vehicle in deadly rollover charged.” 8-9-2006, p. 1. Accessed at: http://newspaperarchive.com/the-yuma-sun/2006-08-09/page-1/

 

The Sun, Yuma, AZ. “Illegal injured in rollover gives birth.” 8-11-2006, p. 8. Accessed at:  http://newspaperarchive.com/the-yuma-sun/2006-08-11/page-8/

 

The Sun, Yuma, AZ. “Rollover death toll reaches 10.” 8-12-2006, 11. Accessed at:  http://newspaperarchive.com/the-yuma-sun/2006-08-12/

 

United States Court of Appeals for the Ninth Circuit. United States of America, Plaintiff-Appellee, v. Adan Pineda-Doval, Defendant-Appellant (No. 08-10240 D.C. No. 2:06-cr-00778 SMM-1 Opinion) Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding; Argued and Submitted November 2, 2009—San Francisco, California; Filed August 10, 2010 Before: Betty B. Fletcher, William C. Canby, Jr., and Susan P. Graber, Circuit Judges. Opinion by Judge B. Fletcher. Accessed 2-2-2012 at: http://www.ca9.uscourts.gov/datastore/opinions/2010/08/10/08-10240.pdf

 

Week, Lance Cpl. Alec D. “A Borderline dilemma. Supporting those who keep us safe.” Desert Warrior (Serving Marine Corps Air Station Yuma), Vol. 5, No. 32, 8-17-2006, p. 12. Accessed at: http://www.yuma.usmc.mil/desertwarrior/2006/08/17/issue.pdf

 

Yuma Sun. AZ. “Life sentence thrown out in deadly immigrant crash.” 8-10-2010. Accessed at:  http://www.yumasun.com/articles/pineda-63033-doval-court.html

 

 

 

 

 

 

[1] Incorrect number for fatalities – there were ten.

[2] Footnote 12 in the original:  There is no evidence that Pineda-Doval intended to kill or injure his passengers; in a misbegotten way, he was trying to help them. Although he was in the process of committing a felony at the time of the killings, transportation of illegal aliens is not one of the enumerated felonies that can support a felony-murder conviction. See 18 U.S.C. § 1111 (listing “arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children”).