United States v. Marciano Vasquez
899 F.3d 363
| 5th Cir. | 2018Background
- Marciano Millan Vasquez was a Zetas cartel "plaza boss" in Piedras Negras (Mexico) who directed large-scale drug trafficking into the U.S. and ordered/committed numerous murders to protect the enterprise.
- A federal grand jury indicted Vasquez on ten counts, including 21 U.S.C. § 848(e)(1)(A) (killing while engaged in certain drug-trafficking offenses) and multiple drug- and firearms-related conspiracy counts; jury convicted on all counts.
- Post-verdict, Vasquez argued (for the first time) that § 848(e)(1)(A) does not apply extraterritorially, that convicting him under § 848 and the underlying drug statutes violated double jeopardy (multiplicity), and that the district court’s jury instruction failed to require a “substantive connection” between murders and drug offenses.
- The Fifth Circuit held Vasquez’s preservation failures meant review was for plain error, summarized the plain-error standard (Olano/Puckett), and considered the three disputed issues under that deferential standard.
- The court concluded § 848(e)(1)(A) applies extraterritorially to the same extent as its predicate drug offenses, the jury instruction did not constitute plain error, and convictions under § 848(e)(1)(A) and the predicate drug statutes are not multiplicitous because Congress intended cumulative punishment.
Issues
| Issue | Plaintiff's Argument (Vasquez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Extraterritoriality of § 848(e)(1)(A) | § 848(e)(1)(A) lacks an explicit statement applying abroad and therefore does not reach murders in Mexico | § 848 applies extraterritorially because its predicate drug statutes (e.g., §§ 841, 959/960) do and Congress indicated that by tying § 848 to those predicates | § 848(e)(1)(A) applies extraterritorially to the same extent as its predicate offenses; presumption overcome (plain-error review failed) |
| Sufficiency of jury instruction on "engaging in" element | District court should have defined "engaging in" to require a substantive (not merely temporal) connection between murders and drug offenses | Instruction tracking statutory language was adequate; no obvious error given circuit uncertainty and overwhelming evidence of substantive connection | No plain error in failing to further define "engaging in"; any error would not have affected outcome |
| Spillover prejudice to other counts from alleged § 848 error | An improper § 848 conviction tainted the rest of the convictions via spillover prejudice | There was no reversible error on § 848, and the remaining convictions were supported separately | Court did not reach this in detail because § 848 conviction was upheld; no reversal warranted |
| Double jeopardy / multiplicity (convicting on § 848 and predicate drug counts) | Drug offenses are lesser-included of § 848; multiple convictions violate Double Jeopardy | § 848(e)(1)(A) is a separate substantive offense ‘‘in addition to’’ predicate penalties; Congress intended cumulative punishment | No plain error; Congress clearly authorized cumulative punishments and § 848 is a distinct offense from its predicates |
Key Cases Cited
- RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (clear‑indication test for extraterritoriality; look to predicates and statutory context)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (presumption against extraterritoriality explained)
- Olano v. United States, 507 U.S. 725 (plain‑error doctrine for forfeited objections)
- Puckett v. United States, 556 U.S. 129 (requirements for establishing plain error)
- Missouri v. Hunter, 459 U.S. 359 (congressional intent governs cumulative punishments; cumulative punishment allowed if Congress so intended)
- Blockburger v. United States, 284 U.S. 299 (same‑elements test for determining whether two offenses are the same)
- United States v. Villarreal, 963 F.2d 725 (5th Cir. holding § 848(e)(1) creates an offense separate from its predicates; supports cumulative punishment)