Jose L. Echavarria, Petitioner-Appellee/Petitioner-Appellant,
Timothy Filson, Warden; Adam Paul Laxalt, Attorney General, Respondents-Appellants/Respondents/Appellees.
and Submitted December 6, 2017 Pasadena, California
from the United States District Court No.
3:98-cv-00202-MMD-VPC for the District of Nevada Miranda M.
Du, District Judge, Presiding
Jeffrey Morgan Conner (argued), Deputy Attorney General; Adam
Paul Laxalt, Attorney General; Carson City, Nevada, for
Randolph Fiedler (argued), Sylvia A. Irvin, and Michael
Pescetta, Assistant Federal Public Defenders; Rene
Valladares, Federal Public Defender; Office of the Federal
Public Defender, Las Vegas, Nevada; for
Before: William A. Fletcher, Marsha S. Berzon, and Jacqueline
H. Nguyen, Circuit Judges.
panel affirmed the district court's grant of habeas
corpus relief to Jose Echavarria, who was convicted and
sentenced to death for killing FBI Special Agent John Bailey.
claimed that there was a constitutionally intolerable risk of
bias, based on the fact that several years earlier Agent
Bailey had investigated for possible criminal prosecution
Nevada District Judge Jack Lehman, who presided over
panel reviewed the Nevada Supreme Court's decision de
novo, rather than with AEDPA deference, because the
Nevada Supreme Court adjudicated only Echavarria's claim
of actual bias, not his distinct claim of risk of bias.
panel held that Echavarria's right to due process was
violated because for an average judge in Judge Lehman's
position there would have been a constitutionally intolerable
risk of bias.
FLETCHER, CIRCUIT JUDGE.
capital case, the State of Nevada appeals from a grant of
habeas corpus to Petitioner Jose Echavarria. Echavarria was
convicted and sentenced to death for killing an agent of the
Federal Bureau of Investigation ("FBI"). Several
years earlier, that same FBI agent had investigated for
possible criminal prosecution the judge who presided over
Echavarria's trial. Echavarria was never told of the
connection between the FBI agent and the judge. The district
court held that this unrevealed connection violated due
process by creating a constitutionally intolerable risk of
judicial bias. We agree.
to the evidence presented at trial, Echavarria attempted to
rob a Las Vegas bank on June 25, 1990. FBI Special Agent John
Bailey was at the bank on unrelated FBI business. Echavarria
tried to rob a teller at gunpoint. The teller screamed, and
Echavarria abandoned the robbery attempt. As Echavarria
walked toward the bank's front door, Agent Bailey drew
his gun, identified himself as an FBI agent, and ordered
Echavarria to stop. Echavarria continued walking. Agent
Bailey fired a shot that shattered the glass in the door.
Echavarria stopped and, at Agent Bailey's orders, dropped
his gun. Agent Bailey frisked Echavarria and asked a bank
employee to retrieve handcuffs from Agent Bailey's car.
Echavarria could be handcuffed, he knocked Agent Bailey to
the ground. Echavarria retrieved his gun and shot Agent
Bailey three times. Echavarria then ran out of the bank and
got into a car in which his getaway driver, Carlos Gurry, was
waiting. Gurry was apprehended by Las Vegas police that
afternoon. Echavarria drove the getaway car to Juarez,
Mexico, arriving there early the next morning.
Assistance to the Prosecution
immediately launched an investigation. FBI Agent Alvaro Cruz
testified at a suppression hearing in state court that he
agreed that the case was of "great importance" to
his office "because of the fact that it was a special
agent of the FBI, who was a victim of this homicide."
morning of June 26, the FBI contacted Jose Rubalcava,
Commandante of the Chihuahua State Judicial Police in Juarez,
Mexico, to ask for his assistance in locating and arresting
Echavarria. Commandante Rubalcava, who had a long-standing
cooperative arrangement with the FBI, assigned twenty-eight
agents to the task. Mexican authorities arrested Echavarria
that night at about 8:30 pm at the Juarez airport and took
him to the Juarez police station. After learning of
Echavarria's arrest, four agents from the FBI's El
Paso office, including Agent Cruz, drove across the border,
arriving at the Juarez police station at about 11:00 pm.
signed a confession the next morning. Before trial, he moved
for suppression of his confession, alleging that it was
obtained by torture.
Gordon, a former employee of the Drug Enforcement
Administration with experience working along the U.S.-Mexico
border, testified at the hearing on Echavarria's
Q: And what was the general reputation of law enforcement
agents in Mexico, for the use of physical abuse and torture,
to obtain statements from suspects and witnesses?
A: It was a common occurrence. It was a regular technique
used to entice the person or induce the person to say what
they wanted him to say . . . .
testified further that Mexican authorities used electrical
devices to administer shocks during interrogations. He
testified that devices with transformers, characterized by a
humming sound when turned on, generally did not leave marks.
Manuel Marquez, one of the four FBI agents who drove to
Juarez, denied knowing this general reputation. When asked
whether Mexican law enforcement authorities have a
"reputation among law enforcement agents, with whom you
interface, as obtaining statements through torture or
physical abuse," he responded, "Within the law
enforcement community, no." When asked about the
reputation "within the community in Juarez and El
Paso," Agent Marquez responded, "Yes."
testified at the suppression hearing that he was tortured by
the Mexican police. According to Echavarria, police officers
hit him while he was in the car on the way from the airport
to the police station. When they arrived at the station, he
was taken to the "Commandante," who advised him to
cooperate, or else Maria, Echavarria's former girlfriend
who had helped him when he arrived in Juarez, "would be
paying the consequences." When Echavarria refused to
cooperate, he was taken to the second floor of the police
station, where his clothes were taken off. He was told to
spread his legs. The Mexican police beat him in the face,
using an open hand to avoid leaving marks, and between the
legs. After about an hour or an hour and a half, Echavarria
was clothed and taken back down to the first floor. He was
put in a room with the Commandante and two FBI agents, one of
whom spoke Spanish. The agents "asked me then if I was
ready to make a confession." When Echavarria refused,
the Commandante "told his agent to take [Echavarria]
upstairs to the second floor again."
back on the second floor, Echavarria was again stripped. This
time, he was blindfolded. He was again beaten in the face and
between the legs. He heard someone cock a gun next to his
ear, and then felt the gun pressed against his head.
Echavarria was told he would be shot and thrown in the river.
Next, he heard what sounded like a welding machine being
turned on, and the officers shocked Echavarria's
"private parts." They kept asking "[i]f I was
ready to make a confession."
was then taken down to the first floor, where "there was
a tall white hair man who was a FBI of the United States . .
. [who] would ask me again whether I was going to cooperate
with them." Echavarria was also taken to the basement,
where his former girlfriend Maria and her sister were being
held. Police officers threatened to beat Maria and
"tighten her nipples, the breast nipples," and do
other "obscene things" to her.
been brought "up to the second floor twice and . . .
once down to the cell downstairs," Echavarria signed a
confession. He testified that he did so because "I had
prosecution called as witnesses at the suppression hearing
two of the four FBI agents who had driven together to Juarez.
Agent Cruz testified that he and the other agents met with
Commandante Rubalcava and several other Mexican police
officers, and that Echavarria was brought into the room.
Agent Cruz testified that they interviewed Echavarria for
about thirty minutes. He also testified that none of the four
FBI agents who went to Juarez had white hair. Agent Marquez
estimated that the interview took thirty to forty minutes. He
testified that he gave Miranda warnings to
Echavarria orally, but that Echavarria did not sign the usual
FBI form acknowledging the warnings because the FBI agents
did not have the form with them.
Cruz and Marquez both testified that they saw no marks on
Echavarria or other indications of physical abuse, and that
they never saw Echavarria again that night. Agent Cruz
testified, "I believe ...