UNITED STATES of America, Plaintiff-Appellee, v. Alexsi LOPEZ, a/k/a Alexis Lopez, Defendant-Appellant.
No. 15-4573
United States Court of Appeals, Fourth Circuit.
Argued: January 26, 2017. Decided: June 19, 2017
860 F.3d 201
VI.
For the foregoing reasons, Wolf‘s convictions and sentence are hereby affirmed.
AFFIRMED
Before MOTZ, KING, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz and Judge King joined.
PAMELA HARRIS, Circuit Judge:
In 2007, two young men robbed a brothel in Langley Park, Maryland, raping one victim and killing another. Several years later, DNA testing identified appellant Alexsi Lopez as a suspect, and Lopez was indicted in 2013, more than six years after the crime. Though Lopez was 17 years old at the time of the robbery, he was over 21 when indicted, and thus tried as an adult. A jury convicted Lopez of two counts under the Hobbs Act,
The gap of over six years between crime and indictment is the primary focus of Lopez‘s appeal. Lopez argues, first, that because he was under 18 when the robbery was committed, he should have been tried as a juvenile notwithstanding the passage of time before his indictment, and that to the extent the Juvenile Delinquency Act,
We agree with the district court that Lopez‘s timing-related arguments are without merit. We also agree that the government established the connection to interstate commerce necessary to sustain a Hobbs Act conviction. And we find no error in the evidentiary rulings challenged on appeal, or in Lopez‘s sentencing. Accordingly, we affirm.
I.
A.
The Langley Park area of Prince George‘s County, Maryland, includes several apartment complexes that house illegal businesses, including a network of brothels. Because those businesses are illegal, they are frequent targets of La Mara Salvatrucha, a gang, better known as MS-13; among other things, MS-13 seeks to impose weekly “rent” charges on these underground establishments.
The events giving rise to this case occurred at a Langley Park brothel on February 28, 2007. The brothel, located in a first-floor apartment, was staffed on that day by two workers: Adelaida Garcia-Calderon, who regularly traveled from her home in New York to work as a prostitute; and a doorman, who collected money from customers. Two men entered the apartment and demanded money. After tying the doorman‘s hands and feet with the electric cord of a fan, they searched the apartment. One of the intruders, brandishing a knife, forced Garcia-Calderon into a bedroom, and then raped her at knife-point. Although the man placed a pillow over much of Garcia-Calderon‘s face, Garcia-Calderon was able to see the sheath of the knife on a table by the bed.
While Garcia-Calderon was in the bedroom, a man named Carlos Cordon inadvertently walked in on the robbery, and began to yell and plead with the man in the living room not to harm him. When Cordon would not “shut up” as instructed, the assailant repeatedly stabbed him. J.A. 110.1 Cordon, whose body was discovered the next day behind the apartment building, died as a result of multiple sharp force injuries. Garcia-Calderon and the doorman survived the robbery: After the intruders left the premises, Garcia-Calderon untied the doorman and then, shocked and frightened, escaped through a window in the apartment.
The Prince George‘s County Police Department (“PGCPD“) directed the ensuing investigation. Garcia-Calderon was unable to identify either robber, including her rapist. But state investigators collected over 40 pieces of physical evidence from the crime scene, including the knife sheath from the table next to the bed where Garcia-Calderon was raped. Because the PGCPD did not have a DNA lab in operation at the time, it out-sourced DNA testing to a private lab in Baltimore; and in light of the costs of private testing, the PGCPD followed a “triage process,” J.A. 571, under which it conserved resources by first sending only the five most important items to be tested. Although the five items selected by investigators did not initially return any results, in September of 2011, the PGCPD was informed that the DNA of Miguel Ramon Cerros-Cruz, an MS-13 member, was found on the electric cords used to bind the doorman during the 2007 robbery.
Having identified Lopez as a suspect, the PGCPD investigated further to confirm Lopez‘s involvement in the robbery. In May 2013, it secured the testimony of a confidential informant, a member of MS-13 serving a prison sentence. In late 2007, the informant overheard Lopez—then incarcerated in the same facility—tell another inmate that he and Cerros-Cruz had robbed a brothel and killed a man who refused to cooperate.
With this additional information in hand, the government formally charged Lopez, and on July 15, 2013, more than six years after the robbery, a grand jury indicted both Lopez and Cerros-Cruz for one count of conspiracy to commit Hobbs Act robbery and one count of Hobbs Act robbery. See
Lopez elected to go to trial. Under the Juvenile Delinquency Act, which removes juveniles from the adult criminal justice system, the government generally may not try a juvenile in federal court.
B.
1.
Before trial, Lopez moved to dismiss the indictment against him, arguing that the Juvenile Delinquency Act (“JDA” or “Act“) prohibited the government from initiating proceedings in federal court. And to the extent that the JDA does not treat him as a juvenile, Lopez contended, the Act is unconstitutional under the due process and equal protection components of the Fifth Amendment as well as the Eighth Amendment. The district court denied Lopez‘s motion. Relying on United States v. Blake, 571 F.3d 331 (4th Cir. 2009), the court held that under the plain language of the JDA, “if charges are brought against the defendant . . . [when] he is 21 or older, even if the conduct [was] committed as a juvenile,” the prosecution falls outside the scope of the statute. J.A. 42. The court then rejected Lopez‘s constitutional challenge to the JDA so construed, noting that other courts have rejected similar challenges and that no authority supported Lopez‘s position.
Lopez also moved to dismiss based on pre-indictment delay, raising two distinct claims. First, he maintained that the charges against him, filed more than six years after the offense, were barred by the five-year statute of limitations that applies to the Hobbs Act. The district court rejected that claim, relying on
2.
The case proceeded to trial, where one of the government‘s key witnesses was the confidential informant who had been incarcerated with Lopez in 2007. The informant told the jury about the conversation he overheard between his cellmate, an MS-13 gang member, and Lopez, in which Lopez boasted about committing a robbery and murder at a brothel. He also testified that the MS-13 gang enforced strict rules against its members, and treated cooperation with law enforcement as punishable by death.
The government also introduced the DNA evidence linking Lopez to the knife sheath recovered from the bedroom. Lopez moved to strike the evidence, on the ground that a stain on the bag containing the sheath could have contaminated the DNA sample. But the DNA lab analyst testified that the stain did not affect testing, as the interior of the bag had not been compromised. The district court admitted the evidence conditionally, instructing the jury to consider the evidence only if it found that the DNA had not been contaminated so as to influence the results of the analysis.
In his closing argument, Lopez took on the testimony of the government‘s confidential informant, and questioned why the government had not called the informant‘s cellmate as a witness, in order to corroborate the testimony. The government responded in its rebuttal argument, explaining that alerting the MS-13 cellmate would have placed the informant in danger and reminding the jury that “MS-13 retaliates” against those who cooperate with law enforcement. S.A. 261. Lopez did not object. At the conclusion of closing arguments, the jury began deliberations, and the next day returned with a guilty verdict.
3.
Following the verdict, Lopez filed a motion for a new trial or for a judgment of acquittal notwithstanding the jury‘s verdict. As primary grounds for an acquittal, Lopez argued that the government failed to present sufficient evidence that the robbery interfered with interstate commerce, as required for a conviction under the federal Hobbs Act. The district court disagreed. Analogizing to United States v. Taylor, 754 F.3d 217, 224 (4th Cir. 2014), in which we held that robbery of an illegal drug enterprise run from a private home satisfies the jurisdictional predicate of the Hobbs Act, the court reasoned that robbery of a brothel is “no different,” as both drug dealing and prostitution are “inherently economic” activities that “affect[ ] interstate commerce.” J.A. 779.
The court also rejected Lopez‘s arguments for a new trial. Lopez claimed, first, that the government had improperly bolstered
At sentencing, in applying the
Lopez timely appealed.
II.
Lopez‘s appeal focuses primarily on the six-year delay between the 2007 robbery and his 2013 indictment, and the consequences of the delay for these proceedings. Because of the delay, Lopez argues, he was tried as an adult and not as a juvenile, and the provision of the Juvenile Delinquency Act authorizing that outcome is unconstitutional. Lopez also renews his claims that his 2013 prosecution is outside the statute of limitations and that the delay in charging him violates his due process rights. We review the legal questions raised by these contentions de novo, and the district court‘s associated factual findings for clear error. See United States v. Brehm, 691 F.3d 547, 550 (4th Cir. 2012). As explained below, we affirm.
A.
The Juvenile Delinquency Act removes juvenile offenders from the ordinary criminal justice process and puts them in a separate, age-appropriate system focused on treatment and rehabilitation. See Blake, 571 F.3d at 344 (describing JDA). Those safeguards apply only to the prosecution of a “juvenile,” a term defined in
For the purposes of this chapter, a “juvenile” is a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under this chapter for an alleged set of juvenile delinquency, a person who has not attained his twenty-first birthday[.]
The problem with Lopez‘s argument is that its premise is false: The JDA is not concerned exclusively, or even primarily, with the moral culpability of offenders at the time of their crimes. Rather, the JDA is intended to ensure that at the time they are brought into the criminal justice process, juveniles will have the benefit of a system that is tailored to their special needs and vulnerabilities and, in particular, to their special receptivity to rehabilitation. See United States v. Juvenile Male, 554 F.3d 456, 459 (4th Cir. 2009) (purpose of JDA is “to remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation“) (internal quotation marks omitted). It is because juveniles are “presumptively capable of rehabilitation,” that is, that they are made subject to the JDA and its underlying “rehabilitative philosophy.” United States v. Juvenile, 347 F.3d 778, 785 (9th Cir. 2003). Thus, the statute‘s “remedial scheme” focuses primarily on “the offender‘s current prospects for rehabilitation . . . and only secondarily on the offender‘s age at the time of the alleged offense.” United States v. Welch, 15 F.3d 1202, 1206-07 n.4 (1st Cir. 1993) (emphasis in original).
In light of this statutory purpose, it is entirely rational to define as juveniles protected by the JDA only those who are younger than 21 when they are indicted, regardless of the age at which they are alleged to have committed their offenses. What matters under the JDA is whether a defendant will benefit from a separate delinquency system that is specially geared toward the needs and the unique rehabilitative capacity of juveniles. And the answer to that question will depend on the age of the defendant at the time he or she is brought into the criminal justice process. Thus, there is nothing irrational about Congress‘s decision, codified in
Lopez fares no better by reframing his argument as a due process claim, contending that
Instead, we agree with the Second Circuit, which rejected precisely this due process challenge to
Finally, there is no merit to Lopez‘s claim that
In sum, we agree with the district court that Lopez‘s constitutional challenge to
B.
Lopez also contends that the six-year gap between the 2007 robbery and his 2013 prosecution runs afoul of the five-year statute of limitations that ordinarily
Under
In a case in which DNA testing implicates an identified person in the commission of a felony, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.
Lopez, on the other hand, argues that he was “implicate[d]” for purposes of
Whether
Like the district court, which relied on Hagler in its decision, we agree with the Seventh Circuit. The statutory text is plain: The new limitations period is triggered when “DNA testing implicates an identified person” in a felony,
This plain reading of
In light of the plain text and purpose of
C.
Lopez‘s final delay-related claim is that the more than six-year gap that elapsed between the 2007 robbery and his 2013 indictment violated his due process rights. In order to prevail on a due process claim based on pre-trial delay, a defendant first must show that he suffered actual prejudice. United States v. Uribe-Rios, 558 F.3d 347, 358 (4th Cir. 2009). If that threshold requirement is met, then a court will consider the government‘s reasons for the delay, to evaluate whether there has been a violation of “fundamental concepts of justice or the community‘s sense of fair play and decency.” Id. (internal quotation marks omitted); see Howell v. Barker, 904 F.2d 889, 895 (4th Cir. 1990). The district court held that Lopez could satisfy neither prong of this standard, and again, we agree.
As to prejudice, the district court properly applied circuit case law requiring a showing of “actual substantial prejudice,” described as a “heavy burden.” See Jones v. Angelone, 94 F.3d 900, 907 (4th Cir. 1996). After a careful review of the facts of this case, the court concluded that Lopez could not meet that burden by identifying specific witness testimony or evidence that was lost to him as a result of the passage of time. Nor, the district court held in the alternative, had the government unreasonably delayed Lopez‘s indictment under the second prong of the analysis. Any delay in DNA testing of the knife sheath, the district court found, was attributable to limited resources for private testing and the “triage system” adopted as a consequence. J.A. 769. And once DNA testing implicated Lopez, the court determined, the government reasonably searched for additional evidence and then brought its case to the grand jury as quickly as that evidence—in the form of testimony from a confidential informant—materialized.
We have no reason to second-guess the district court‘s determination that Lopez failed to establish actual prejudice stemming from pre-trial delay, nor its finding that the time between offense and charge was a result of continued reasonable investigation rather than any government misconduct. Accordingly, we affirm the denial of Lopez‘s motion to dismiss on this ground, as well.
III.
We turn now to the district court‘s denial of Lopez‘s motion for a new trial or judgment of acquittal. Finding no error in the district court‘s rulings on Lopez‘s claims, we affirm.
A.
Lopez first maintains that the government failed to present sufficient evidence that the robbery of the Langley Park brothel interfered with interstate commerce as required under the Hobbs Act, and that the district court erred in
The Hobbs Act criminalizes robbery or extortion that “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce[.]”
Like the district court, we think the same principle applies here. An illegal brothel “is a commercial establishment that deals in the business of prostitution,” J.A. 779—an “inherently economic enterprise” under Williams and Taylor. And this particular business, as the district court recognized, was significantly facilitated by interstate commerce, as women, like Garcia-Calderon, regularly moved across state lines from their homes in order to work at the brothel. The government also put on evidence that the brothel routinely used condoms manufactured outside the state of Maryland as part of its business, and that Lopez and Cerros-Cruz targeted the brothel because it was an illegal business taking in cash from its customers.
A reasonable jury could find from that evidence that robbery of the Langley Park brothel would have at least a de minimis effect on interstate commerce—and, aggregated with other similar acts, a measureable impact on commerce. See Williams, 342 F.3d at 354-55 (“The question is not simply whether one particular offense has a measurable impact upon interstate commerce, but whether the relevant class of acts has such an impact.“). That is sufficient to sustain Lopez‘s Hobbs Act conviction.4
B.
Lopez also argues that he is entitled to a new trial as a result of certain statements made by the government in its closing argument. In particular, Lopez points to what he contends was improper bolstering of a witness in the government‘s
Though Lopez did not object at trial to the government‘s statement, he did argue to the district court in his post-verdict motion that the statement was grounds for a new trial. The district court rejected that claim. First, the district court held, the government did not go outside the evidence before the jury and improperly vouch for the confidential informant, but instead asked the jury to draw from evidence introduced at trial—the testimony of the confidential witness—the “sensible inference” that safety concerns would have been raised by interviewing the informant‘s MS-13 cellmate. J.A. 781. And in the alternative, the court concluded, even had the government‘s comment been improper, it was not so prejudicial as to warrant a new trial.
This court reviews a district court‘s ruling on an objection made during closing argument for abuse of discretion, and will reverse only where an abuse of discretion constitutes prejudicial error. See United States v. Green, 599 F.3d 360, 379 (4th Cir. 2010). And here, because Lopez did not raise an objection at trial, our review is more limited still: We may review only for plain error, see United States v. Young, 470 U.S. 1, 14 (1985), and grant relief only if there was a plain error that affected Lopez‘s substantial rights and would seriously affect the fairness, integrity or public reputation of judicial proceedings, see United States v. Olano, 507 U.S. 725, 732 (1993).
We need not decide whether the government‘s response to Lopez‘s closing argument was improper, because we agree with the district court that any hypothetical error did not prejudice Lopez so as to deny him due process and require a new trial. See United States v. Lighty, 616 F.3d 321, 359 (4th Cir. 2010) (closing argument violates due process rights only if it is improper and also “so prejudice[s] the defendant‘s substantial rights that the defendant was denied a fair trial“). To evaluate whether comments during a closing argument are prejudicial to the point of denying a fair trial, we consider:
(1) the degree to which the prosecutor‘s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters; . . . (5) whether the prosecutor‘s remarks were invited by improper conduct of defense counsel; and (6) whether curative instructions were given to the jury.
Id. at 361 (internal quotation marks and citations omitted). Applying those factors to the government‘s statement here, as the district court concluded, “it is apparent that Lopez was not so severely prejudiced as to warrant a new trial.” J.A. 782.
First, as the district court explained, the statement did not have any tendency to mislead the jury, as the jury reasonably could have inferred the same conclusion from testimony regarding MS-13 threats to members who cooperated with law en-
In sum, and weighing all of the relevant factors, we agree with the district court that Lopez cannot establish that any error “so prejudiced [his] substantial rights” that a new trial is warranted. See Lighty, 616 F.3d at 359. It follows a fortiori that Lopez cannot prevail on plain error review, where he must establish both an effect on substantial rights and an error of the kind that calls into question the fairness, integrity or public reputation of judicial proceedings. Accordingly, we affirm the district court‘s denial of Lopez‘s motion for a new trial on this ground.5
C.
Lopez raises additional grounds for a new trial with which we may dispense more briefly. First, Lopez argues that his due process rights were violated when the government proceeded on inconsistent theories of the case, originally pursuing Cerros-Cruz as the rapist and then arguing at Lopez‘s trial that it was Lopez who had raped Garcia-Calderon. As the district court recognized, we have stated that “the Due Process Clause prohibits the government from presenting mutually inconsistent theories of the same case against different defendants.” United States v. Higgs, 353 F.3d 281, 326 (4th Cir. 2003). But see DeCastro v. Branker, 642 F.3d 442, 458 (4th Cir. 2011) (qualifying Higgs statement as dicta). But as the court went on to explain, “here, there were no conflicting claims . . . regarding who was the sexual attacker“: Cerros-Cruz pleaded guilty to Hobbs Act conspiracy, and “at no point during the proceedings against Cerros-Cruz or Lopez did the government commit itself to the position that Cerros-Cruz was the rapist.” J.A. 780. That is sufficient to dispose of Lopez‘s claim.
Lopez also renews his objection to the district court‘s conditional admission of the DNA evidence taken from the knife sheath at the scene of the rape. As described above, Lopez moved to strike that evidence, arguing that a stain that developed on the brown paper bag holding the sheath could have contaminated the sample. The government‘s DNA expert witness testified that the stain did not affect the knife sheath itself and that it did not appear that the interior of the bag had been compromised; even if the interior had been compromised, she testified that the stain could not affect the DNA analysis unless the stain itself was caused by a “biological fluid that contained a lot of DNA.” J.A. 634.
We review the district court‘s evidentiary ruling for abuse of discretion, see United States v. Hornsby, 666 F.3d 296, 307 (4th Cir. 2012), and find no such abuse here. Under Rule 104(b), when the relevance of evidence—here, the DNA testing results—turns on a conditional fact—here, that the DNA sample had not been contaminated—the evidence is admitted and the determination of the conditional fact left to the jury, so long as the “jury could reasonably find the conditional fact . . . by a preponderance of the evidence.” Huddleston v. United States, 485 U.S. 681, 690 (1988). We have no reason to doubt the district court‘s determination that the government introduced sufficient evidence to allow a reasonable jury to conclude that the DNA sample was uncontaminated by the stain in question.6
IV.
We turn finally to Lopez‘s challenge to his sentence. Lopez contends that his 20-year sentence is unreasonable, as compared to the ten-year sentence of his “more culpable co-defendant,” Cerros-Cruz. Br. of Appellant at 54. In other words, Lopez asserts that his sentence is substantively unreasonable because of a sentencing disparity. We review the substantive reasonableness of a sentence for an abuse of discretion, United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010), and presume the reasonableness of a sentence, like Lopez‘s, that is within the Guidelines range, United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). We find no abuse of discretion here.
In United States v. Allmendinger, 706 F.3d 330, 344 (4th Cir. 2013), we rejected a sentencing disparity claim much like Lopez‘s. There, the defendant argued that his 540-month sentence for seven offenses relating to mail and securities fraud was substantively unreasonable because it was significantly higher than the ten-year sentence of his co-conspirator. Id. at 344. We concluded that Allmendinger and his co-conspirator were situated differently, given that the co-conspirator had “admitted his culpability” by entering into a plea agreement with the government and as a result had been permitted to plead guilty to only two conspiracy charges. Id. at 344. Absent a showing of “invidious discrimination by the government,” we held we could not “second guess the government‘s exercise of its prosecutorial dis-
Lopez and Cerros-Cruz are likewise in dissimilar positions: Cerros-Cruz admitted to his culpability, and consequently was permitted to plead guilty to only one count of conspiracy, with an agreed-upon sentence of ten years. Lopez, on the other hand, opted, as was his right, to be tried by a jury, and was convicted of both the robbery and conspiracy counts against him. Lopez makes no showing—and we discern no trace—of any “invidious discrimination” in the government‘s charging decisions. See id. And like the district court in Allmendinger, id., the district court in this case gave careful consideration to Lopez‘s argument regarding a potential disparity between his sentence and that of Cerros-Cruz, explaining why it did not believe it was required to impose identical sentences on the two defendants. Accordingly, we conclude that the district court was within its discretion in sentencing Lopez as it did.
V.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED
PAMELA HARRIS
UNITED STATES CIRCUIT JUDGE