United States v. Hernandez, 711 F.3d 1194

Defendants Rosalez, Ruelas, and Hernandez, all federal inmates, were tried for conspiracy to assault and second-degree murder in connection with Zuniga-Garcia’s death.
Zuniga-Garcia was a Sureños gang member; Hernandez allegedly led the attack plan, with Rosalez as Hernandez’s lieutenant.
Attack occurred in Zuniga-Garcia’s prison cell after an agreement among Sureños members; multiple attackers used padlocks as weapons.
Video and physical/DNA evidence tied the attackers to the crime and to the victim; several inmates sustained injuries during the events.
Count 1 charged conspiracy; Count 2 charged second-degree murder; trial ended with guilty verdicts on Counts 1–2 for several defendants; sentences varied, with some consecutive terms.
The appeals follow Rosalez’s, Ruelas’s, and Hernandez’s challenges to jury instructions, evidentiary rulings, and confrontation rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Conspiracy/accomplice liability instructions for murder	Rosalez argues the court erred in Instructions 19 and 20, misstating liability.	Rosalez contends instructions allowed Pinkerton liability without proper scope/intent.	No reversible error; instructions correctly stated governing law.
Constructive amendment/fatal variance to Count 2	Rosalez claims Pinkerton theory constructively amended the indictment.	Government urged Pinkerton theory was permitted as alternate theory.	No constructive amendment or fatal variance; Pinkerton theory permitted.
Admission of suppression hearing testimony (self-incrimination)	Ruelas argues admission violated Fifth Amendment rights.	District court properly admitted testimony under applicable rules.	Harmless error; admission did not affect substantial rights given other evidence.
Confrontation rights regarding Ocon testimony	Hernandez asserts denial of right to cross-examine Ocon violated Sixth Amendment.	Court improperly restricted cross-examination against a witness called by another defendant.	Harmless error; testimony was not pivotal and corroborated by other witnesses.

Pinkerton v. United States, 328 U.S. 640 (1946) (establishes conspirator liability for crimes within scope or reasonably foreseeable)
United States v. Evans, 970 F.2d 663 (10th Cir. 1992) ( Pinkerton-based liability for conspirators; scope/foreseeability)
United States v. Russell, 963 F.2d 1320 (10th Cir. 1992) (conspirators liable for acts within scope or reasonably foreseeable)
United States v. Comeaux, 955 F.2d 586 (8th Cir. 1992) (Pinkerton liability; indictment need not plead government’s theory)
United States v. Bowen, 527 F.3d 1065 (10th Cir. 2008) (Aiding and abetting and Pinkerton liability are alternative theories)
United States v. Zackery, 494 F.3d 644 (8th Cir. 2007) (indictments can omit government’s theory of liability; Pinkerton theory valid)
Nye & Nissen v. United States, 336 U.S. 613 (1949) (establishes aiding-and-abetting standard; intent required)