United States Court of Appeals For the First Circuit

No. 19-1086

UNITED STATES OF AMERICA,

Appellee,

v.

MARIANO MUÑIZ-LÓPEZ, a/k/a Mito,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Chief U.S. District Judge]

Before

Torruella, Selya, and Kayatta, Circuit Judges.

Eric A. Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, and Kevin E. Lerman, Research & Writing Specialist, on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Antonio L. Pérez-Alonso, Assistant United States Attorney, on brief for appellee.

October 1, 2020 KAYATTA, Circuit Judge. Mariano Muñiz-López appeals the

condition of his supervised release that he not contact his preteen

daughter for three years without approval from his probation

officer. He argues that the district court imposed the condition

based in part on an untranslated Spanish document in violation of

the Jones Act and that the condition is an unreasonable deprivation

of his liberty. Finding the Jones Act violation to be prejudicial,

we reverse the condition and remand for resentencing.

I.

In 2013, Muñiz-López was sentenced to a term of

imprisonment, to be followed by eight years of supervised release,

for federal drug offenses. In 2015, he began his supervised

release, with the standard conditions that he "not commit another

federal, state, or local crime," that he report to his probation

officer, that he follow the probation officer's instructions and

answer any inquiries truthfully, and that he notify the probation

officer of any change in residence or employment.

In early 2018, a magistrate judge found probable cause

that Muñiz-López had violated his supervised release after he

punched his then-girlfriend C.F. in the face.1 The district court

imposed an additional period of supervised release and added

1 The magistrate judge clarified that he "did not make any finding that [Muñiz-López] punch[ed C.F.] in the face," only that there was probable cause for the violation.

- 2 - conditions restricting Muñiz-López's contact with C.F. and

mandating anger-management counseling.

In April 2018, while still on supervised release,

Muñiz-López got into an argument with his then-eleven-year-old

daughter. She had asked him for some money. He gave her some,

and after she asked for more, he became upset and threw a half-

empty beer can in her direction. The can hit her in the face,

which caused bruising and swelling.

Shortly thereafter, the daughter's mother, S.R.,

reported the incident to Muñiz-López's probation officer, Ricardo

Cruz-Sanabria. Cruz-Sanabria interviewed S.R. and the daughter

about the incident. He visually observed the bruise on the

daughter's face. He also took a photograph with his phone of

another photo taken on the day of the incident that showed the

daughter's face immediately after being hit; however, Cruz-

Sanabria said that he lost the photo before any hearing on the

matter.

Cruz-Sanabria recommended that S.R. file a formal

complaint against Muñiz-López in Puerto Rico court regarding the

beer-can incident. S.R. eventually filed a petition for protective

order, written in Spanish. The Puerto Rico court scheduled a

hearing on the matter, but S.R. attended to say that "she was no

longer interested in going through" with the protective order. No

criminal charges were brought against Muñiz-López.

- 3 - Following the beer-can incident, the government moved

the district court to revoke Muñiz-López's supervised release on

the ground that he violated the condition that he not commit

another crime. The government subsequently notified the court

that Muñiz-López had violated additional conditions by, among

other things, failing to report to his probation officer.

The preliminary revocation hearing was referred to a

magistrate judge. The hearing focused mainly on the beer-can

incident. At first, it was unclear what crime the government

thought Muñiz-López had committed, but the government eventually

argued that he had committed "abuse" of a minor child in violation

of

. That statute punishes "[a]ny

father, mother, or person responsible for the well-being of a minor

or any other person who, through the intentional commission or

omission of an act, causes harm to a minor, or endangers his/her

health or physical, mental, or emotional integrity."

. In support of this accusation, the government

relied on two sources of evidence: Cruz-Sanabria's testimony and

S.R.'s petition for protective order.

Cruz-Sanabria reported what S.R. and her daughter told

him during their interview and that he observed the bruise.

Muñiz-López's counsel objected that the testimony was speculative

and based on hearsay, but the magistrate judge overruled the

objections. The government sought to have S.R. herself testify,

- 4 - but she "d[id]n't want to go to a court again." So instead, the

government introduced the untranslated Spanish petition for

protective order. Muñiz-López's counsel objected that the

document was not in English. The magistrate judge granted the

government five days to file a translation, but the government

never did so. Muñiz-López's counsel went on to argue that the

document did not support a finding that Muñiz-López had committed

a crime. Providing an on-the-fly translation, she argued the

document said that Muñiz-López "threw a can and the can hit her,"

and not "he threw it at her," implying that he did not have the

requisite intent to hit his daughter.

Following the hearing and some additional briefing (to

which the government remarkably again appended the untranslated

petition), the magistrate judge issued an order finding probable

cause that Muñiz-López had committed the crime of abuse. As the

government now concedes, "the magistrate[ judge]'s determination

relied, in part, on [the] untranslated Spanish-language document."

The district court then held a final revocation hearing.

At the outset, the court told the government that Cruz-Sanabria's

testimony alone would not be enough to support a finding of

criminal conduct. "[F]or purposes of probable cause the probation

officer can testify," the court said, but S.R. and/or her daughter

would need to testify in person for revocation "because this would

involve probably an issue of credibility." The government

- 5 - responded that it was no longer pursuing revocation on the ground

that Muñiz-López had committed a crime, and was instead focusing

on the other violations (e.g., failure to report to the probation

officer), which Muñiz-López did not contest. When the court gave

Muñiz-López an opportunity to speak for himself, he requested that

the court assign him a different probation officer because

Cruz-Sanabria never ensured that he was attending his required

anger-management course. "God knows if I had gone to take that

anger management course this situation through which I am going

now may not have occurred," he said.

Based on the uncontested violations, the court revoked

Muñiz-López's supervised release and sentenced him to 160 days'

imprisonment, to be followed by three years of supervised release.

The district court also criticized Muñiz-López for blaming his

probation officer for his own shortcomings. The court then said,

"to avoid any issues, given what Mr. Muñiz[-López] has stated, I

will add some conditions of supervision." "[U]nless approved by

the probation officer," the court ruled, "you shall not have

contact with your daughter and your daughter's mother. If you

want to have physical contact, any type of physical contact, you

must inform the probation officer beforehand."

Muñiz-López's counsel asked the court to reconsider the

no-contact condition as to his daughter, but the court was firm.

"Based on what was probable cause before the magistrate judge I'm

- 6 - going to enter that directive at this time," the court said. "If

the local courts issue any directives, then you can ask me to

revisit. And, again, it's a condition I can remove at any time

but I'm doing this as a precaution for the time being and to allow

him to avoid any other problems."

The district court's written judgment states that,

"[u]nless approved by his U.S. Probation officer, [Muñiz-López]

shall not have any contact with . . . [his] daughter." Muñiz-López

timely appealed this condition on his supervised release.

II.

The Jones Act states that "[a]ll pleadings and

proceedings in the United States District Court for the District

of Puerto Rico shall be conducted in the English language."

. When the government violates that requirement in

a criminal case, we look to see whether the defendant "suffer[ed]

any prejudice." United States v. Carela,

(1st

Cir. 2015). Such prejudice exists whenever the untranslated

submission had "the potential to affect" the disposition by the

district court of an issue raised on appeal. United States v.

Rivera-Rosario,

(1st Cir. 2002).

The government concedes that it caused a violation of

the Jones Act by submitting to the magistrate judge the protective-

order petition written in Spanish and then failing to supply an

English translation. It seems just as clear that the violation

- 7 - had the potential to affect the disposition of the question whether

Muñiz-López acted in a manner that warranted the no-contact

condition. The untranslated petition for protective order was

used in the proceeding before the magistrate judge, the magistrate

judge relied in part on that evidence in finding probable cause,

and the district court relied in substantial part on that finding

in imposing the no-contact condition.

The government argues that the district court would have

imposed the no-contact condition even without the magistrate

judge's probable cause finding. It points out that the court

initially imposed the condition in response to "what Mr. Muñiz

ha[d] stated" at the hearing -- i.e., that he needed anger-

management counseling and that his not attending that counseling

had gotten him into "this situation."2 But in response to

Muñiz-López's request for reconsideration, the district court said

it was imposing the condition "[b]ased on what was probable cause

before the magistrate judge." And the magistrate judge had found

probable cause that Muñiz-López had committed a crime -- including

the requisite mens rea -- not just that he needed anger management.

So, contrary to the government's assertion, the district court did

2 The government also suggests that the no-contact condition may be based in part on Muñiz-López's history of abusing adult women -- specifically, the incident in which he allegedly punched C.F.

- 8 - indeed rely on the magistrate judge's probable cause finding in

imposing the no-contact condition.

The government also suggests that we might overlook this

reliance because Muñiz-López, while objecting to the magistrate

judge's reliance on the untranslated petition, did not object to

the district court's reliance on the magistrate judge's tainted

finding. However, we have previously held that "district court[s]

ha[ve] an 'independent duty' to ensure the proceedings [a]re

conducted in English, and so 'we relieve[] the parties of their

usual duty to contemporaneously object.'" United States v.

Román-Huertas,

(1st Cir. 2017) (quoting

Rivera-Rosario, 300 F.3d at 6–7). More importantly, even were we

to apply only clear error review, Muñiz-López would still prevail

given that the government concedes plain error, the prejudice is

also reasonably clear, and public policy -- as manifest in the

Jones Act -- weighs against letting a finding based on an

untranslated document stand. Cf. United States v.

Rivera-Rodríguez,

, 112 & n.7 (1st Cir. 2014)

(similarly noting, in the context of judicial interventions, that

the necessary showing of "prejudice" is "comparable" to the third

requirement of plain-error review, and that this sort of error

"necessarily" satisfies the fourth requirement).

So we turn to the question of remedy. Normally we would

ask whether the record minus the untranslated document would be

- 9 - sufficient to sustain the no-contact condition. See Rivera-

Rosario,

. If so, we would vacate the order and

remand for reconsideration on the existing record without the

untranslated petition. See, e.g.,

at 11–13; see also

Román-Huertas,

("The untranslated document was not

evidence, and so any certified translation would constitute new

evidence. In general, 'the district court may consider only such

new arguments or new facts as are made newly relevant by the court

of appeals' decision' on remand for resentencing." (quoting United

States v. Dávila-Félix,

(1st Cir. 2014))). If

not, we would simply reverse. See United States v. York,

(1st Cir. 2004) ("[T]he trial court's decision to impose

the challenged condition [of supervised release] must have

adequate evidentiary support in the record.").

Here, though, the district court -- not the

magistrate judge -- imposed the challenged no-contact condition,

while it was the magistrate judge -- not the district court -- that

relied on the untranslated petition in the first instance. So

perhaps we should direct our attention to the probable cause

determination? But even if we found that the magistrate judge

could have still found probable cause without the untranslated

petition (which is likely the case, see, e.g., Spinelli v. United

States,

(1969) ("[P]robable cause can be

satisfied by hearsay information . . . ."), abrogated on other

- 10 - grounds by Illinois v. Gates,

(1983)), that would

leave open the question whether the district court still would

have found that probable cause determination based on

Cruz-Sanabria's testimony enough to rely on. In sum, this may be

an example of trying to put the toothpaste back in the tube.

Several factors suggest an alternative, more practical

solution. First, the district court expressed the view that the

government's case, relying on Cruz-Sanabria's testimony alone, was

not enough to support a finding of criminal conduct. And without

the untranslated petition, the government is left with only Cruz-

Sanabria's testimony. Second, Muñiz-López has already spent

approximately nineteen months restricted by the no-contact

condition. And the district court, too, recognized that the three-

year term might well be excessive, inviting Muñiz-López to return

to the court to seek the removal of the condition. Third, the

district court likely had the option of requiring additional

participation in an approved program for domestic violence.

The nature of the condition at issue also suggests that

the details of the beer-can incident were important. Ordering

that a father cannot have any contact with his daughter for three

years, save for permission from a probation officer, is a very

significant condition that interferes with family relationships.

See generally United States v. Del Valle-Cruz,

(1st

Cir. 2015). Its duration likely exceeds the restrictions that a

- 11 - court more accustomed to dealing with the complexity of family

disputes likely would issue. Certainly such a court would demand

a substantial showing that such a condition was necessary and on

balance beneficial to the child.

Given all of this, we are convinced that the district

court would not have imposed the same condition if it had known

that the probable cause finding rested in part on the untranslated

petition. We therefore reverse the challenged special condition

to the extent it would otherwise continue to apply after the date

of this opinion, and remand for further proceedings consistent

with this opinion. On remand, the district court shall not

consider the petition, but may consider events that have occurred

since the prior hearing to the extent made relevant by this remand.

See Román-Huertas,

. Because we are reversing the

no-contact condition on Jones Act grounds, we need not address

Muñiz-López's additional claim that the condition unreasonably

deprives him of his liberty interests.

III.

For the foregoing reasons, we reverse the condition on

supervised release and remand for resentencing consistent with

this opinion.

- 12 -