NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 18 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2840 D.C. No. Plaintiff - Appellee, 3:20-mj-20580-MJS-WQH-1 v.

MEMORANDUM*

FELICIANO FELIPE-ZAVALA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted March 7, 2025 Pasadena, California

Before: SANCHEZ and H.A. THOMAS, Circuit Judges, and DONATO, District Judge.** Concurrence by Judge DONATO.

Feliciano Felipe-Zavala appeals the district court’s judgment of conviction,

by guilty plea, for misdemeanor illegal entry under 8 U.S.C. § 1325(a)(1). Felipe-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. Zavala asserts that his Sixth Amendment rights to conferral and confidential

communication with counsel were violated because he was able to communicate

with his attorney only in the presence of law enforcement officers and that

communication lasted for only an hour through time-intensive relay translation.

We review Sixth Amendment claims de novo. United States v. Martinez, 850 F.3d

1097, 1100 (9th Cir. 2017). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Felipe-Zavala argues that a defendant’s right to the assistance of his counsel

is violated “when (1) ‘the government deliberately interferes with the confidential

relationship between a criminal defendant and defense counsel,’ and (2) the

interference ‘substantially prejudices the criminal defendant.’” Nordstrom v. Ryan

(Nordstrom II), 856 F.3d 1265, 1271 (9th Cir. 2017) (citing Nordstrom v. Ryan

(Nordstrom I), 762 F.3d 903, 910 (9th Cir. 2014)).

The record here does not substantiate Felipe-Zavala’s assertion that the

government deliberately interfered with his confidential communication or

conferral rights. Felipe-Zavala references U.S. Marshals Service policies that

allegedly prohibit the use of cell phones in the jail or in “the tank” and require the

presence of law enforcement in the courtroom. Felipe-Zavala contends that he was

effectively deprived of the opportunity to communicate confidentially with his

counsel because of these policies. However, Felipe-Zavala does not offer these

2 23-2840 policies for the court’s review, nor does he show how they demonstrate “deliberate

interference” by the government. Instead, the record shows only that it was Felipe-

Zavala’s counsel’s belief that these policies would render futile additional steps to

request more time and ensure confidentiality.

The hearing transcript reflects that both the prosecution and the court were

previously unaware of the problems Felipe-Zavala raised at his hearing. Once

apprised of these translation and confidentiality issues, the magistrate judge offered

to continue the case several times to give Felipe-Zavala’s counsel more time to “do

more” under “circumstances in which [Felipe-Zavala’s counsel] deem[s] and the

court deems appropriate.” The record shows, at most, passive government

involvement in the issues Felipe-Zavala faced, which is insufficient to demonstrate

deliberate interference. Cf. Weatherford v. Bursey, 429 U.S. 545, 557 (1977).

Felipe-Zavala has similarly not demonstrated the requisite substantial

prejudice. Felipe-Zavala asserts that he need not show prejudice regarding his

claim because the deprivation of his right to confidential communication amounted

to structural error. Structural errors are “rare,” United States v. Knight, 56 F.4th

1231, 1235 (9th Cir. 2023), and where “the defendant had counsel and was tried by

an impartial adjudicator,” there is a “strong presumption” that other constitutional

errors are not structural and therefore subject to harmless error review. Id.

(quoting Neder v. United States, 527 U.S. 1, 8 (1999)). Here, Felipe-Zavala was

3 23-2840 provided counsel, an interpreter, and several opportunities to have additional time

to confer privately with his attorney. Because the facts of this case differ

significantly from those where structural errors have been found, Felipe-Zavala

does not overcome this “strong presumption.” Id.

“Substantial prejudice results from the introduction of evidence gained

through the interference against the defendant at trial, from the prosecution’s use of

confidential information pertaining to defense plans and strategy, and from other

actions designed to give the prosecution an unfair advantage at trial.” Williams v.

Woodford, 384 F.3d 567, 585 (9th Cir. 2004) (citing United States v. Irwin, 612

F.2d 1182, 1187 (9th Cir. 1980)). Although Felipe-Zavala pled, rather than going

to trial, no analogous circumstances of prosecutorial advantage have been

demonstrated here. Rather, the record reflects that the magistrate judge offered to

continue the hearing, but Felipe-Zavala instead asked to enter a guilty plea. On

this record, Felipe-Zavala has not demonstrated the requisite prejudice to succeed

on his Sixth Amendment claims.

Although Felipe-Zavala has not demonstrated a violation of his Sixth

Amendment rights, the magistrate judge’s cursory treatment of serious questions

regarding Felipe-Zavala’s ability to speak privately with his counsel is concerning.

It bears repeating that the right to counsel “is a fundamental component of our

criminal justice system,” United States v. Cronic, 466 U.S. 648, 653 (1984), and

4 23-2840 “the right to privately confer with counsel is nearly sacrosanct.” Nordstrom I, 762

F.3d at 910. An alleged violation of this right warrants a thorough inquiry into the

factual circumstances underlying this claim and the proactive use of the remedial

tools available to judges to ensure that conferral rights and confidential

communication are safeguarded.

AFFIRMED.

5 23-2840

FILED

APR 18 2025

United States v. Felipe-Zavala, No. 23-2840

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DONATO, District Judge, concurring:

Defendant Feliciano Felipe-Zavala is a native speaker of Purépecha, a rare

language of an indigenous people in Mexico. He does not speak Spanish, and so

his communications with his attorney required a relay interpretation from

Purépecha to Spanish, and Spanish to English. Because the only available

Purépecha-to-Spanish interpreters resided in Mexico, the Purépecha-to-Spanish

portion of the relay interpretation needed to occur over the phone. Because

telephones were not permitted at the jail where Felipe-Zavala was in custody or in

the U.S. Marshals’ holding area in the courthouse, Felipe-Zavala was able to

communicate with his appointed counsel only in the courtroom. And because

Felipe-Zavala was an in-custody defendant, deputy marshals and border patrol

agents were present in the courtroom the entire time he was talking with his

lawyer. On top of all that, Felipe-Zavala had just one hour or so in total to talk

with his lawyer.

All of this raises serious concerns about whether Felipe-Zavala had a full

and fair opportunity to privately confer with his attorney about his criminal

defense, a right we have aptly described as “nearly sacrosanct.” Nordstrom v.

Ryan, 762 F.3d 903, 910 (9th Cir. 2014) (citation omitted). I concur in the majority

disposition because Felipe-Zavala’s arguments and the record before the Court do

1 not support a different outcome. I write separately to state my views about the

boundaries of our decision, and to highlight a lesson drawn from the district court’s

conduct.

To start, I do not view the Nordstrom decisions as necessarily the final word

on a criminal defendant’s right under the Sixth Amendment to confidential

communication with a lawyer when challenging a conviction. The Nordstrom case

was a civil case brought under 42 U.S.C. § 1983 that concerned an Arizona state

prison practice of allowing prison guards to open and read inmate mail to lawyers

to establish the absence of contraband and ensure the content of the mail was legal

in nature. Nordstrom v. Ryan (Nordstrom I), 762 F.3d 903 (9th Cir. 2014);

Nordstrom v. Ryan (Nordstrom II), 856 F.3d 1265 (9th Cir. 2017). In this context,

the original panel found it “obvious” that “a policy or practice permitting prison

officials to not just inspect or scan, but to read an inmate’s letters to his counsel is

highly likely to inhibit the sort of candid communications that the right to counsel

and the attorney-client privilege are meant to protect.” Nordstrom I at 910

(emphasis in original). The panel concluded that the plaintiff had stated a civil

rights claim for a violation of the Sixth Amendment. See id. at 911. Nordstrom II

reversed the district court’s subsequent dismissal of the Sixth Amendment claim,

holding that the Arizona Department of Corrections’ “‘inspection’ policy does not

satisfy the standard articulated in . . . Nordstrom I” nor “satisfy the four-part test

2 identified in Turner v. Safley, 482 U.S. 78, 89–91 (1987).” Nordstrom II, 856 F.3d

at 1268.1

This case is different from Nordstrom. It entails a challenge to a conviction

based on an alleged intrusion into the attorney-client relationship and

communications, a circumstance which both Nordstrom panels took pains to

distinguish. See Nordstrom I, 762 F.3d at 911 (stating what the panel would have

considered “[w]ere Nordstrom challenging a conviction following an improper

intrusion into the attorney-client relationship”); Nordstrom II, 856 F.3d at 1269

(noting case “did not arise from alleged prejudice that [Nordstrom] suffered related

to his conviction”).

In addition, the alleged deprivation here of the Sixth Amendment right to

communicate confidentially with an attorney arose from starkly different causes.

In Nordstrom, a prison guard read the plaintiff’s letter to his counsel and the

Arizona Department of Corrections affirmatively defended that practice.

Nordstrom I, 762 F.3d at 905–07. Here, the allegation is not that law enforcement

officers actively tried to listen in on Felipe-Zavala’s communications with his

counsel, but that an unusual set of circumstances -- the need for relay

interpretation, a portion of which had to occur over the phone; a policy that barred

1 The four-part test in Turner goes to the reasonableness of prison regulations which are alleged to impinge on inmates’ constitutional rights. 482 U.S. at 90. 3 use of a phone in the jail or in the holding cell; and the restraint on Felipe-Zavala’s

ability to be outside of law enforcement presence in the courtroom -- combined to

create a situation where Felipe-Zavala arguably had a constitutionally insufficient

opportunity to communicate with his counsel privately prior to pleading guilty.

Felipe-Zavala himself fully and repeatedly embraced the deliberate

interference and prejudice standard stated in the Nordstrom cases, and our decision

today correctly concludes that standard is not met on this record. But I do not read

our decision to decide that the Nordstrom standard is, in fact, the correct standard

to evaluate confidential-communication claims under the Sixth Amendment on

direct appeal from a judgment of conviction. Nor do I read our decision to suggest

that, if a defendant advanced a different argument more directly grounded in the

text of the Constitution, he or she could not succeed on appeal with a record like

this one. The Sixth Amendment plainly states that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the assistance of counsel for his

defense.” U.S. Const. amend. VI. This guarantee has little substance if it does not

safeguard a criminal defendant’s right to communicate with a lawyer privately and

outside the presence of government agents, with fair accommodation of linguistic

barriers and time. See United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). If

similar circumstances arise again in the future, a criminal defendant seeking to set

aside a conviction may be well advised to make the case that a defendant need not

4 demonstrate deliberate interference by the government which substantially

prejudiced his defense.

Some cautionary lessons can also be drawn from the conduct of the district

court. I agree with the majority that the district court was by no means cavalier

with respect to Felipe-Zavala’s situation. Even so, it should have done more to

provide him with a secure setting to talk with his lawyer privately, with relay

interpretation, free of the presence of government agents or other third parties. The

better practice would have been to order a short continuance of the proceedings to

ensure the integrity of those communications, irrespective of Felipe-Zavala’s

comments on the fly during a hearing. A little extra effort along these lines would

have made all the difference with respect to the right to counsel.

Consequently, although I concur on the record before us that Felipe-Zavala

has not shown a reversible error, I conclude that further development of the right to

private communication with counsel may be warranted in the context of a post-

conviction appeal.

5