Opposition Brief — Victor Gaspar Chichande, Petitioner v. United States

No. 22-6409

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

VICTOR GASPAR CHICHANDE, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

WILLIAM A. GLASER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the district court erred in declining to dismiss the

indictment

based

on

petitioner’s

allegations

of

outrageous

government conduct in his detention on a Coast Guard ship while he

was transported to the United States for prosecution.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Cal.):

United States v. Cortez-Quinonez, No. 18-cr-421-1 (Aug. 23,

2019)

United States v. Dominguez-Caicedo, No. 18-cr-421-2 (Aug. 19,

2019)

United States v. Chichande, No. 18-cr-421-3 (Aug. 23, 2019)

United States Court of Appeals (9th Cir.):

United States v. Dominguez-Caicedo, No. 19-50268 (July 18,

2022)

United States Supreme Court:

Dominguez-Caicedo v. United States, petition

pending, No. 22-6461 (filed Dec. 27, 2022)

(II)

for

cert.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 22-6409

VICTOR GASPAR CHICHANDE, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A58 1) is

reported at 40 F.4th 938.

JURISDICTION

The judgment of the court of appeals was entered on July 18,

2022.

A petition for rehearing was denied on September 27, 2022

(Pet. App. B1-B2).

The petition for a writ of certiorari was filed

The petition has two unnumbered appendices; this brief

refers to the pages of the appendix containing the court of

appeals’ decision as “Pet. App. A_,” and to the other appendix as

“Pet. App. B_.”

1

2

on December 20, 2022.

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of California, petitioner was convicted

on one count of possessing five kilograms or more of cocaine with

intent to distribute on a vessel subject to the jurisdiction of

the United States, in violation of 46 U.S.C. 70503 and 18 U.S.C.

2, and one count of conspiring to possess with intent to distribute

five kilograms or more of cocaine on a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. 70503

and 70506(b). Judgment 1. The district court sentenced petitioner

to 180 months of imprisonment, to be followed by five years of

supervised release.

Judgment 2-3.

The court of appeals affirmed.

Pet. App. A1-A58.

1.

On

December

31,

2017,

the

United

States

Coast

Guard

encountered petitioner and two co-defendants near the Galapagos

Islands in a 30- to 40-foot panga boat that bore no indication of

nationality.

Pet. App. A10.

The boat’s occupants did not heed

warnings to stop and threw 1230 kilograms -- well over a ton -- of

cocaine,

along

apprehended.

with

a

GPS

buoy,

overboard

before

they

were

Id. at A11; C.A. E.R. 807-815, 968-971, 1003.

Given the size of the Coast Guard cutter and the location

where petitioner and his co-defendants were apprehended, it was

not possible to transport them by aircraft to the United States

3

for prosecution.

C.A. E.R. 1906-1908.

Consequently, petitioner

spent roughly three weeks on board four Coast Guard cutters headed

for

the

United

States,

ultimately

California on January 22, 2018.

arriving

in

Long

Beach,

Pet. App. A11-A15.

In order to prevent detainees on the cutters from jumping

off, each detainee was shackled to an 18-inch chain attached to a

cable that ran the length of the deck.

E.R. 1190.

Pet. App. A12; see C.A.

The detainees were unshackled for an hour of exercise

each day and when they asked to use the restroom.

Pet. App. A12.

On one cutter, the detainees were under the cover of an enclosed

helicopter hangar; on the others, they were under a tent or canvas

tarp.

Id. at A12-A14.

Although the temperatures largely remained

in the 70s and 80s, the detainees were at times exposed to rain

and a wet deck, and (for three nights) to temperatures around 50

degrees.

C.A. E.R. 1190; see Pet. App. A13-A14.

The detainees were provided with blankets and (on at least

two of the cutters) sleeping pads.

Pet. App. A12-A13.

They had

constant access to drinking water and received three meals a day.

Ibid.

On some of the cutters, the detainees received items like

eggs, chicken, fruit, pasta, and potatoes; at other times, they

received rice and beans, which petitioner alleges were often

undercooked.

Ibid.; see C.A. E.R. 1189, 1869, 1969, 2021, 2029.

The detainees received periodic showers and were provided with

toiletries, dominoes, cards, and Spanish-language Bibles.

App. A13.

Pet.

4

2.

A grand jury in the Southern District of California

charged petitioner with one count of possessing five kilograms or

more of cocaine with intent to distribute on a vessel subject to

the jurisdiction of the United States, in violation of 46 U.S.C.

70503 and 18 U.S.C. 2, and one count of conspiring to possess with

intent to distribute five kilograms or more of cocaine on a vessel

subject to the jurisdiction of the United States, in violation of

46 U.S.C. 70503 and 70506(b).

Petitioner

and

his

C.A. E.R. 19-20.

co-defendants

moved

to

dismiss

the

indictment on the theory (inter alia) that the conditions of their

detention on board the Coast Guard cutters constituted outrageous

government conduct violating due process.

Pet. App. A17.

The

district court convened a five-day evidentiary hearing at which

the defendants and ten other witnesses testified.

2038.

C.A. E.R. 1331-

The court excluded the testimony of one proffered expert

witness, a former Bureau of Prisons employee, because “her opinions

go way beyond her area of expertise,” and testimony comparing the

“apples and oranges” of custodial conditions in a federal prison

and custodial conditions on board an ocean vessel during transport

was not “probative or helpful.”

Id. at 1340-1341.

Following the

evidentiary hearing, the court denied the motion to dismiss,

finding no outrageous government conduct.

Id. at 1188-1192.

The district court observed that the length of petitioner’s

23-day transport was commensurate with the average of “20 days”

that it takes “to transport a detained individual from the Eastern

5

Pacific to the U.S.”

C.A. E.R. 1184.

The court found that, during

their transport, the detainees “were given regular use of the

restroom and occasional showers”; had “access to water at all

times”;

“were

supplied

with

toiletries,

including

soap,

toothpaste, toothbrush, and towels,” as well as “a blanket”; and

“would have been supplied with additional blankets if they had

asked for them.”

Id. at 1189.

And the court explained that while

the detainees were shackled to the deck railing for most of the

day, “the shackling was such that it allowed them to stand up, sit

down, move around in a small, confined area,” and “the shackles

were loosened” in response to complaints.

Id. at 1189-1190.

The district court also examined the vessels’ temperature

logs and observed that for most of the journey the temperature was

in the 70s and 80s -- except for one day when it ranged between

the 60s and 70s -- until the last three days, when “temperatures

dipped to the low 50s at night and up to 60s during the day.”

E.R. 1190.

C.A.

The court explained that the detainees “were moved

from the windy front of the ship to the more protected back of the

ship as the temperatures dropped,” and found “no evidence that the

temperature, either the heat or the cold, was life-threatening or

was in any way dangerous to the defendants’ health.”

Id. at 1190-

1191.

The district court also explained that while “there were

numerous periodic rain squalls resulting in a wet deck” during

“one three-day period,” that was “a period where the temperatures

6

were warmer” and “[t]he [C]oast [G]uard security watch standers

experienced the same conditions.”

C.A. E.R. 1191.

And although

the court faulted the government for not providing more information

to the detainees about where they were going and how long the

journey was going to take, see id. at 1192, the court rejected the

contention that the absence of such information “constitute[d]

outrageous governmental misconduct such that the indictment should

be dismissed,” ibid.

3.

court

The court of appeals affirmed.

observed

that

“to

show

Pet. App. A1-A58.

outrageous

government

The

conduct,

defendants must show conduct that violates due process in such a

way that

* * *

is ‘so grossly shocking and so outrageous as to

violate the universal sense of justice.’”

Id. at A17 (quoting

United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011),

cert. denied, 565 U.S. 1271, and 565 U.S. 1272 (2012)).

And the

court explained that to secure dismissal of an indictment, “a

defendant must show a nexus between the [allegedly outrageous]

conduct and either ‘securing the indictment or [] procuring the

conviction.’”

Id. at A17-A18 (quoting United States v. Nickerson,

731 F.3d 1009, 1015 (9th Cir. 2013) (brackets in original), cert.

denied 572 U.S. 1062 (2014)).

The court of appeals found the nexus proffered by petitioner

and his co-defendants -- that “if the Coast Guard had chosen to

treat [them] and other detainees humanely, they simply couldn’t

have conducted their Pacific operations” -- to be “not the type of

7

nexus that we generally consider sufficient.”

Pet. App. A18.

The

court noted that accepting such an argument could imply “that all

police actions have a nexus within the meaning of the outrageous

government conduct doctrine.” Id. at A19. And the court explained

that the “type of nexus at issue” in its only precedential decision

dismissing an indictment for outrageous government conduct -“‘suppl[ying] the equipment and raw material for a bootlegging

operation and [acting as] the defendant’s sole customer’” -- “[wa]s

not present in this case.”

Ibid. (quoting United States v. Mayer,

503 F.3d 740, 754 (9th Cir. 2007), and citing Greene v. United

States, 454 F.2d 783 (9th Cir. 1971)).

The

court

petitioner’s

of

appeals

convictions,

also

Pet.

rejected

App.

other

A20-A37,

challenges

but

vacated

to

his

sentence based on a Guidelines error and remanded for resentencing,

id. at A48-A52, A58.

That resentencing took place on February 6,

2023, see D. Ct. Doc. 249 (Feb. 6, 2023), and petitioner has

appealed, see D. Ct. Doc. 252 (Feb. 23, 2023).

ARGUMENT

Petitioner

renews

his

contention

(Pet.

11-12)

that

the

district court should have dismissed the indictment on the ground

that petitioner’s treatment while being transported to the United

States

for

process.” 2

prosecution

was

“‘outrageous’

and

violated

due

The interlocutory posture of the petition, however,

In a separate petition, petitioner’s co-defendants seek

review of a different determination by the court of appeals

applying Federal Rule of Criminal Procedure 5(a)(1)(B).

See

2

8

makes

this

question.

case

an

In

any

inappropriate

event,

the

vehicle

court

of

for

resolving

appeals’

that

fact-bound

determination that no violation of petitioner’s due process rights

occurred does not conflict with any decision of this Court or

another court of appeals.

No further review is warranted.

1. As a threshold matter, this case is in an interlocutory

posture because the court of appeals vacated petitioner’s sentence

and remanded for resentencing, Pet. App. A58, and petitioner’s

appeal of his new sentence is pending before the court of appeals,

see

D.

Ct.

Doc.

252.

The

interlocutory

posture

of

a

case

ordinarily “alone furnishe[s] sufficient ground for the denial” of

a petition for a writ of certiorari.

Hamilton-Brown Shoe Co. v.

Wolf Bros. & Co., 240 U.S. 251, 258 (1916); see Brotherhood of

Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R., 389

U.S. 327, 328 (1967) (per curiam) (observing that a case remanded

to the district court “is not yet ripe for review by this Court”);

see also Abbott v. Veasey, 137 S. Ct. 612, 613 (2017) (statement

of Roberts, C.J., respecting the denial of certiorari).

Consistent

with

that

general

rule,

this

denies interlocutory petitions in criminal cases.

Court

routinely

See Stephen M.

Shapiro et al., Supreme Court Practice 4-55 n.72 (11th ed. 2019).

That practice promotes judicial efficiency because, among other

things, it enables issues raised at different stages of lowerDominguez-Caicedo v. United States, No. 22-6461 (filed Dec. 27,

2022). Petitioner has not joined that petition or otherwise raised

that issue in this Court.

9

court proceedings to be consolidated into a single petition.

See

Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508

n.1 (2001) (per curiam) (“[W]e have authority to consider questions

determined in earlier stages of the litigation where certiorari is

sought from the most recent of the judgments of the Court of

Appeals.”).

Petitioner offers no reason to deviate from that

practice here.

2.

Even aside from the interlocutory posture of the case,

the court of appeals’ fact-bound application of the Due Process

Clause would not warrant this Court’s review.

See United States

v. Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a [writ

of] certiorari to review evidence and discuss specific facts.”);

see also Kyles v. Whitley, 514 U.S. 419, 456-457 (1995) (Scalia,

J., dissenting) (“[U]nder what we have called the ‘two-court rule,’

the policy [in Johnston] has been applied with particular rigor

when district court and court of appeals are in agreement as to

what conclusion the record requires.”) (citing Graver Tank & Mfg.

Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949)).

a.

In United States v. Russell, 411 U.S. 423 (1973), this

Court stated that it “may some day be presented with a situation

in which the conduct of law enforcement agents is so outrageous

that due process principles would absolutely bar the government

from invoking judicial processes to obtain a conviction.”

431-432.

Id. at

But the Court stressed that such conduct would have to

10

violate “fundamental fairness” and be “shocking to the universal

sense of justice.”

Accordingly,

Id. at 432 (citation omitted).

although

most

courts

of

appeals

accept

the

possibility of an outrageous-government-conduct defense in theory,

“in practice, courts have rejected its application with almost

monotonous regularity.”

(4th

Cir.

1993)

United States v. Jones, 13 F.3d 100, 104

(citation

omitted).

described the defense as “moribund.”

The

First

Circuit

has

United States v. Capelton,

350 F.3d 231, 243 n.5 (2003) (citation omitted), cert. denied, 541

U.S. 1092, and 543 U.S. 890 (2004).

The Tenth Circuit has

similarly observed that the defense “is often raised but is almost

never successful.”

(1984).

United States v. Gamble, 737 F.2d 853, 857

And 25 years ago, the Third Circuit described it as

“hanging by a thread.”

United States v. Nolan-Cooper, 155 F.3d

221, 230 (1998); see United States v. Jayyousi, 657 F.3d 1085,

1111 (11th Cir. 2011) (“We have never applied the outrageous

government conduct defense and have discussed it only in dicta.”),

cert. denied, 567 U.S. 946, and 567 U.S. 938 (2012).

Indeed, “only two reported court of appeals decisions -- both

from the 1970s --

* * *

have deemed the government’s conduct so

outrageous as to violate due process.”

United States v. Combs,

827 F.3d 790, 795 (8th Cir. 2016) (citing United States v. Twigg,

588 F.2d 373 (3d Cir. 1978), and Greene v. United States, 454 F.2d

783 (9th Cir. 1971)).

“In both cases the outrageous misconduct

was, in effect, the generation by police of new crimes merely for

11

the sake of pressing criminal charges against the defendant.”

United States v. Ramirez, 710 F.2d 535, 540 (9th Cir. 1983).

And

the courts that decided those cases have since narrowed those

decisions further.

The Ninth Circuit -- from which this case

arises -- has emphasized that its decision in Greene has “only

limited application.”

(1986).

United States v. Wiley, 794 F.2d 514, 516

And the Third Circuit “has repeatedly distinguished, and

even questioned,” its prior decision in Twigg.

United States v.

Fattah, 858 F.3d 801, 813 (2017) (footnote omitted).

b.

The government conduct at issue in this case involved

neither the “creation and maintenance of criminal operations,”

Greene, 454 F.2d at 787, nor the “generat[ion] [of] new crimes by

the defendant merely for the sake of pressing criminal charges

against him,” Twigg, 588 F.2d at 381.

either

the

investigation

criminal case.

or

the

And it did not occur in

prosecution

of

petitioner’s

Instead, the conduct at issue occurred in the

process of transporting petitioner from the high seas to the United

States for prosecution, and thus, like other claims that courts of

appeals have rejected, “served no investigatory purpose.” NolanCooper, 155 F.3d at 234.

Indeed, as the court of appeals observed, “the development of

the outrageous government conduct concept suggests that it does

not even apply to conditions of pre-trial detention.”

Pet. App.

A19; see Jayyousi, 657 F.3d at 1112 (reasoning that the concept

“does not apply” to a defendant’s “mistreatment

* * *

after the

12

conclusion of his criminal acts and prior to the indictment”).

For instance, this Court has rejected a due process challenge where

officers

allegedly

“forcibly

seized,

handcuffed,

[and]

blackjacked” the defendant in Illinois “and took him to Michigan”

for prosecution.

Frisbie v. Collins, 342 U.S. 519, 520, 522

(1952).

In addition, even if petitioner could show a sufficient nexus

between his treatment in Coast Guard custody and his indictment or

conviction, he does not identify a sound basis for disturbing the

district

court’s

determination

that

the

conditions

of

his

transportation do not shock the conscience (an issue that the court

of appeals had no need to address).

See C.A. E.R. 1188-1192.

The

district court found that the Coast Guard detainees “were fed three

meals a day”; had “access to water at all times”; “were supplied

with

toiletries,

including

soap,

toothpaste,

toothbrush,

and

towels”; “were given Bibles, playing cards, [and] dominoes”; had

“a foam pad for sleeping” and “a blanket”; and “would have been

supplied with additional blankets if they had asked for them.”

Id. at 1189.

regular

The court also found that the detainees “were given

medical

care”

occasional showers.”

and

Ibid.

“regular

use

of

the

restroom

and

And the court determined that the

detainees were not exposed to temperatures that were “in any way

dangerous to [their] health.”

Id. at 1191; see id. at 1190-1191.

The district court further observed that, while petitioner

and the other detainees were shackled for most of the day, that

13

measure was necessary because “they were detained on a small boat,”

“often” with “several prisoners being detained at once,” and “there

was no other method of restraining the [detainees] that could keep

them from jumping off the boat.”

C.A. E.R. 1190.

Moreover, “the

shackling was such that it allowed them to stand up, sit down,

[and] move around in a small, confined area,” and “the shackles

were loosened” when the detainees complained.

Id. at 1189-1190.

These conditions of temporary detention during transport on the

high seas did not require dismissal of petitioner’s indictment for

smuggling drugs on the high seas.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

WILLIAM A. GLASER

Attorney

APRIL 2023