United States of America v. GERARDO GALVEZ-MACHADO, AKA Gerardo Galvez, AKA Gerardo Machado

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERARDO GALVEZ-MACHADO, AKA
Gerardo Galvez, AKA Gerardo Machado,
Defendant - Appellant.
No. 14-50138
D.C. No. 2:12-cr-00606-MWF-17
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted January 6, 2016
Pasadena, California
Before: GOODWIN, M. SMITH, and WATFORD, Circuit Judges.
1. The government introduced sufficient evidence from which a reasonable
jury could infer that Gerardo Galvez-Machado was aware of a high probability that
he was in possession of contraband and that he deliberately avoided learning the
FILED
JAN 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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truth. Strangers offered Galvez-Machado $200 to unload unidentified cargo off a
boat; he and other individuals rode in a van for hours to reach a deserted beach at
midnight; and a cooperating witness—Jose Gonzalez-Chavez—testified that there
were audible conversations in the van about the logistics of unloading marijuana.
A jury could reasonably conclude that failure to inquire or investigate under these
circumstances constitutes deliberate ignorance. See United States v. Heredia, 483
F.3d 913, 920–21, 923 (9th Cir. 2007) (en banc). The district court therefore did
not abuse its discretion by giving an instruction under United States v. Jewell, 532
F.2d 697 (9th Cir. 1976) (en banc).
2. The district court did not violate Galvez-Machado’s Confrontation Clause
or due process rights by limiting defense counsel’s cross-examination of Gonzalez-
Chavez or by redacting parts of his plea agreement. There was only one
potentially relevant provision of the plea agreement that the jury did not receive.
But Galvez-Machado did not challenge the redaction of that provision before it was
sent to the jury, and neither his lawyer nor any of the other defense lawyers
attempted to cross-examine Gonzalez-Chavez about that provision. The district
court limited defense counsel’s ability to explore some of the technical Guidelines
calculations set forth in the plea agreement, but those limitations did not unduly
constrict Galvez-Machado’s ability to explore Gonzalez-Chavez’s motivation to

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lie. The jury heard that Gonzalez-Chavez faced a ten-year mandatory minimum
sentence and that the government would recommend a sentence below the
mandatory minimum if he provided substantial assistance. The jury learned
sufficient information about the terms of the plea agreement to assess the
credibility and biases of Gonzalez-Chavez. See United States v. Larson, 495 F.3d
1094, 1103–06 (9th Cir. 2007) (en banc).
3. The district court did not plainly err in approving introduction of the
redacted plea agreement as an adequate means of correcting Gonzalez-Chavez’s
false testimony. When it became apparent during cross-examination that
Gonzalez-Chavez would continue to deny the terms of his plea agreement, all
parties agreed that his false statements needed to be corrected and that the “gist” of
the plea agreement’s terms needed to be accurately conveyed to the jury. The
parties further agreed that, given Gonzalez-Chavez’s recalcitrance on the stand, the
best means of conveying the plea agreement’s terms was to provide the jury with a
copy of the plea agreement itself. The government attempted to submit the entire
unredacted plea agreement to the jury, but the court ordered, at defense counsel’s
request, that a redacted version of the plea agreement be entered into evidence
instead. Galvez-Machado never requested that further action be taken, and the
redacted version of the plea agreement, together with the limited information

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elicited from Gonzalez-Chavez on the stand, conveyed to the jury the nature of the
benefits Gonzalez-Chavez would likely receive in exchange for his testimony. The
district court therefore did not commit clear or obvious error in concluding that any
potential Napue v. Illinois, 360 U.S. 264 (1959), violation had been adequately
addressed. See United States v. Houston, 648 F.3d 806, 813–15 (9th Cir. 2011).
AFFIRMED.

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