United States v. 2006-04-10 | 04-50392 | USA VSALAZAR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-50392
Plaintiff-Appellee, D.C. No.
v. CR-03-00026-  AHS-2LEONEL SALAZAR,
Defendant-Appellant. ORDER

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted
March 8, 2006—Pasadena, California
Filed April 10, 2006
Before: Susan P. Graber, Kim McLane Wardlaw, and
Johnnie B. Rawlinson, Circuit Judges.
Order;
Concurrence by Judge Rawlinson
COUNSEL
Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Nguyen-Hong K. Hoang, Assistant United States Attorney,
Santa Ana, California, for the plaintiff-appellee.
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ORDER
Leonel Salazar was convicted under 18 U.S.C. §§ 2(b) and
2071(a) on Counts 3 and 6 of an indictment charging him
with destroying and causing others to destroy documents filed
and deposited with the Immigration and Naturalization Ser-
vice (INS) at the California Service Center (CSC) in Laguna
Niguel, California. The CSC receives and processes applica-
tions and petitions for immigration from California, Arizona,
Nevada, Hawaii, and Guam. Count 3 of the indictment
charged Salazar with having willfully and unlawfully caused
the destruction of foreign passports, marriage and birth certifi-
cates, and INS applications on March 14 and 15, 2002; and
Count 6 of the indictment charged him with having willfully
and unlawfully caused the destruction of INS forms-797, INS
receipt notices, INS rejection notices, and return mail on April
3 and 4, 2002. Salazar was employed at the CSC as a senior
file room supervisor for the Service Center Operations Team
(SCOT), an administrative unit made up of employees from
three private companies under contract with the INS. As part
of an effort to reduce the filing backlog at the CSC, Salazar
and other members of SCOT from January to April 2002
shredded an estimated 90,000 INS documents, many of which
were intended to be placed in “A-files,” the permanent record
files the INS maintains for persons seeking to gain citizenship
in the United States. Because we find that there is sufficient
evidence in the record to support a reasonable inference that
Salazar willfully and unlawfully caused the destruction of
records or documents filed or deposited with a public office,
we affirm his conviction.
As a preliminary matter, we find that Salazar’s argument as
to the lack of sufficient evidence proving that he willfully and
unlawfully ordered the destruction of the specific documents
charged in the indictment was not waived because it was
made only “in passing” and without reasoned explanation, as
the Government asserts. Salazar “specifically and distinctly”
argued the issue in his opening brief, United States v. Kama,
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394 F.3d 1236, 1238 (9th Cir. 2005), and he presented ade-
quate authority to support his argument.
A conviction under 18 U.S.C. § 2071(a) requires the Gov-
ernment to prove that Salazar willfully and unlawfully
destroyed or caused another person to destroy or attempt to
destroy any record, paper, document, or other thing filed or
deposited in a public office or with any public officer of the
United States. Salazar contends that the Government must
also show that he willfully and knowingly destroyed the spe-
cific documents identified in the indictment. Because under
18 U.S.C. § 2071(a), “[t]he statutory requirement of willful-
ness is satisfied if the accused acted intentionally, with knowl-
edge that he was breaching the statute,” we reject this
contention. United States v. Simpson, 460 F.2d 515, 518 (9th
Cir. 1972) (alteration in original and internal quotation marks
omitted). As we held in United States v. Jenkins, 785 F.2d
1387, 1392 (9th Cir. 1986) (citations omitted):
[T]he government need not prove all facts charged in
an indictment; instead, only enough facts to prove
the essential elements of the crime must be demon-
strated at trial. Insofar as the language of an indict-
ment goes beyond alleging elements of the crime, it
is mere surplusage that need not be proved.
Had Congress included the specific documents destroyed as
an element of the offense, it would have created enforcement
problems because of the difficulty of identifying a shredded
document.
Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found Salazar
guilty beyond a reasonable doubt of the essential elements of
willfulness with respect to Counts 3 and 6 of the indictment.
United States v. LeVeque, 283 F.3d 1098, 1102 (9th Cir.
2002). First, Salazar acted intentionally in causing the
destruction of INS documents. As one of the supervisors in
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charge of reducing the interfiling backlog, he directed his file
room clerks to shred documents that should have been placed
in the A-files. Salazar admitted in his written statement, com-
posed only ten days after the last shredding incident, that he
and his group had increased the pace of the shredding to the
point where management should have realized that the docu-
ments were being shredded rather than being filed in their
respective A-files.
Second, Salazar knew that he was acting unlawfully in
causing the shredding of INS documents. Salazar admitted
that had the Deputy Site Manager acted when she saw the
abnormally high numbers in the production reports, “she
could have prevented and stopped the shredding of Federal
Documents,” and stated that he hoped “that at the end of this
investigation the responsible people will be dealt with as the
law indicates.” Salazar also told colleagues that he believed
the shredding was unlawful. In addition, when first questioned
by his superiors about the shredding, Salazar made false
exculpatory statements. See United States v. Perkins, 937 F.2d
1397, 1402 (9th Cir. 1991) (“false exculpatory statements . . .
properly could be considered as evidence of consciousness of
guilt”). Therefore, we affirm Salazar’s conviction.
IT IS SO ORDERED.
RAWLINSON, Circuit Judge, concurring:
I concur in the result.
3978 UNITED STATES v. SALAZAR

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