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Click here for the full text of this decision FACTS:Richard Gonzales was the leader of a group of three deportation officers for an elite fugitive force for the Immigration and Naturalization Service. The other two officers were Louis Gomez and Carols Reyna. In March 2001, the three traveled to Bryan to conduct a raid of a house where illegal aliens with criminal records were thought to be. The team raided the house at 8 a.m., and within minutes, the officers had taken down Serafin Carrera, breaking his neck and paralyzing him. Despite Carrera’s pleas for help and cries for someone to kill him or take him to a hospital, the officers instead taunted him, called him names and invited others present to wipe their feet on him. After backing a van up closer to the house � so no one would “see what’s going on” � Gonzales, Gomez and two other officers dragged Carrera out of the house and into the van. As the van left, Reyna told the driver to give Carrera a “screen test,” meaning the driver should slam on his brakes so Carrera would be propelled into the screen in front of him. The van transported Carrera to a parking lot at the Brazos County jail, where INS officers processed illegal aliens before putting them on a bus to New Braunfels, then to Mexico. The officers dragged Carrera out of the van, hitting his head on the van door, and onto the bus, threatening to put him in the luggage compartment. Gonzales joked, “Let’s Mace the fucker, see if he budges.” Though no one saw what happened inside the bus � due to the tinted windows � when the officers exited, they were laughing and choking. Gonzales smirked and said he had an “accidental discharge” of his pepper spray. Meanwhile, with swollen eyes, foaming at mouth and unable to move, Carrera was left on the floor of the bus until the bus left at 11:30. The ride to New Braunfels took another three hours, but once the bus reached the Comal County jail, the intake nurse refused to take custody of Carrera without a medical evaluation. Someone called an ambulance and Carrera was then taken to the hospital. He died 11 months later. After that, Gonzales assured the other officers that they were “going to get through this.” He also verbally attacked the bus driver, who had already written a report about the incident. The bus driver refused to change his account to say that Carrera had assaulted them. The three officers were indicted. The indictment said all had acted under color of law and had engaged in the willful deprivation of Carrera’s civil rights while in their custody. The allegations stemmed from what happened after Carrera’s neck was broken. Gonzales was charged in Count 2 with use of unreasonable force by pepper spraying Carrera, and in Count 3 with by acting with deliberate indifference to Carrera’s serious medical needs. Gomez was charged in Count 5 with deliberate indifference to Carrera’s serious medical needs. Reyna was charged in Count 1 with striking and using unreasonable force, and in Count 4 with acting with deliberate indifference to Carrera’s serious medical needs. The jury found them guilty of all offenses, except that it found Reyna not guilty on count 1. The district court sentenced Gonzales to concurrent terms of 78-months. Gomez was sentenced to 41 months, and Reyna was sentenced to 33 months. All got three years’ supervised release, too. HOLDING:Affirmed. The court first addresses Gonzales’ challenge to the sufficiency of the indictment on Count 3, and Reyna’s similar challenge to Count 4. Both complain that the indictment used the terms “deliberate indifference” and “willfully” in a way to improperly equate them. The court finds, however, that the two concepts are not necessarily inconsistent with each other. Furthermore, the validity of the indictment is based on its practical, not technical considerations. The court confirms that the district court’s jury that again included the same terms was accurate, too. The court then reviews the evidence supporting Gonzales’ conviction under Count 2. The court finds the evidence sufficient, despite Gonzales’ contention that the pepper spray accidentally discharged. The court takes note of Gonzales’ joke about Macing Carrera, and then making a joke of the “accidental discharge” when he exited the bus. There was no other evidence that the discharge was not done willfully. Gonzales argues that the government did not prove that this deprivation of Carrera’s rights � the willful use of the pepper spray � resulted in bodily injury. The court points out that in excessive-force cases, it has applied a “some injury” test, and that the test is met in this case where Carrera’s mouth was foaming and his eyes were swollen for at least three hours. The court next turns to assess the sufficiency of the evidence to support the officers’ convictions for the willful deprivation of Carrera’s due-process right to be free from deliberate indifference to his serious medical needs. The court first asks if the officers had actual awareness that Carrera had serious medical needs. Noting that Reyna and Gomez were trained in trauma management, which included instruction on identifying symptoms of spinal-cord injuries, plus the fact that all had extensive contact with Carrera, the court finds that they were all aware that Carrera had serious medical needs. Second, the court asks if Carrera faced a substantial risk of serious harm. Though a defense witness said Carrera’s spine likely locked into a stabilized position, the government’s witness doubted that, saying instead that Carrera would have benefited by being taken to a hospital. Additionally, Carrera was left on the bus after being pepper sprayed, risking his possible asphyxiation. Third, the court finds the evidence sufficient to permit a finding of deliberate indifference, despite Reyna’s contention that he did not have the ability or opportunity to respond. Fourth, the evidence supports a finding of bodily injury. The court adopts a definition of “bodily injury” used by the 1st and 11th U.S. Circuit Courts of Appeals: “(1) a cut, abrasion, bruise, burn, or disfigurement; (2) physical pain; (3) illness; (4) impairment of a function of a bodily member, organ, or mental faculty; or (5) any other injury to the body, no matter how temporary.” The court rejects their argument that Carrera’s injury was painless, instantaneous and irreversible, finding contrary evidence provided by the government. The court finds the district court did not err in allowing into evidence Carrera’s statements that he was hurt. They were admissible to prove that the officers had notice of Carrera’s injury, and did not violate the officers’ confrontation clause rights. Nor were Gonzales’ rights of compulsory process violated when the government deported two material witnesses. Because Gonzales did not object below, the issue is reviewed for plain error. The court acknowledges that United States v. Valenzuela-Bernal, 102 S.Ct. 3440 (1982), the U.S. Supreme Court ruled that when the government deports an illegal alien, before defense counsel has an opportunity to interview the alien, the constitutional right of compulsory process is implicated. The court also notes, however, that other circuits have refined the contours of Valenzuela-Bernal, even if this circuit has not. This circuit has only stated that to take advantage of Valenzuela-Bernal, a defendant must show prejudice to his case, which Gonzales has done by showing that the witnesses’ statements would have been material and favorable to his case, and not cumulative. Other circuits have also required that a defendant show that the government acted in bad faith, which Gonzales has not established. The court notes that Gonzales even participated in the deportation of the witnesses. Even though the court is not officially adopting this second element of Valenzuela-Bernal, it says that under a plain error review, Gonzales’ argument fails. The court rejects additional arguments regarding Brady evidence (finding that no evidence was withheld from Gonzales), ineffective assistance of counsel and the prosecution’s closing arguments, which did not contain any false statements. Gonzales also complains of the order in which he and the prosecution gave those closing arguments. He makes the conclusory statement that the prosecution was allowed to go first and last, and in the middle of the defense’s closing. He points to no specific examples of harm, though, and he does not cite any authority for the argument. Though F.R.Crim.P. 29.1 generally stipulates that the order should be government-defense-government, the court cannot find prejudice or harm from the district court’s actions. Noting that Gonzales was sentenced to the maximum term allowed, the court rejects his complaint under United States v. Booker, 125 S.Ct. 738 (2005). Though Gomez and Reyna were sentenced toward the bottom of the range, the court says that fact, by itself, does not justify a reversal. The court then reviews the sentences, and the upward departures the district court made. The departure for two or more participants was justified, as the officers were all in the kitchen when Carrera complained of being hurt, and they were all on the bus together when someone pepper sprayed him. An upward adjustment for being an organizer, leader, manager or supervisor was proper for Gonzales, the team leader of the unit. An upward departure for a vulnerable victim was also appropriate since Carrera was paralyzed, as well as an upward departure for restraint of a victim. As to that point, the court rejects Gonzales’ argument that because Carrera was paralyzed anyway, the use of handcuffs was not an improper restraint. Finally, the court approves of the upward departure for obstruction of justice. And it affirms the district court’s denial of Gonzales’ post-trial motion to amend and clarify the judgment and presentence report to more clearly reflect that the district court did not find for sentencing purposes that Gonzales was guilty of aggravated assault or of use of a dangerous weapon. OPINION:Garwood, J.; Garwood, Smith and DeMoss, JJ.

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