UNITED STATES of America, Plaintiff-Appellee,
v.
Frank FERNANDEZ, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Roy Gavaldon, aka Spider, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
David Gonzales-Contreras, aka David Contreras-Gonzalez, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Dominick Shewmaker Gonzales, aka Solo, aka Dominick Gonzales, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Jimmy Sanchez, aka Seal D, aka Smokey, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Suzanne Schoenberg Sanchez, Defendant-Appellant.
No. 01-50082.
No. 01-50162.
No. 01-50088.
No. 01-50373.
No. 01-50126.
No. 01-50513.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 5, 2004.
Filed October 27, 2004.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Kenneth M. Stern, Law Offices of Kenneth M. Stern, Woodland Hills, CA, for defendant-appellant Frank Fernandez.
Darlene M. Ricker, Malibu, CA, for defendant-appellant Roy Gavaldon.
Philip Deitch, Law Offices of Philip Deitch, Los Angeles, CA, for defendant-appellant David Gonzales-Contreras.
Cara DeVito, West Hills, CA, for defendant-appellant Dominick Gonzales.
Karyn H. Bucur, Laguna Hills, CA, for defendant-appellant Jimmy Sanchez.
Verna Wefald, Pasadena, CA, for defendant-appellant Suzanne Schoenberg-Sanchez.
Robert E. Dugdale, Janet C. Hudson, Fred A. Rowley, Jr., Assistant United States Attorneys, United States Department of Justice, Los Angeles, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. Nos. CR-99-00083-DOC-01, CR-99-00083-DOC-09, CR-99-00083-DOC, CR-99-00083-DOC-20, CR-99-00083-DOC-4, CR-99-00083-DOC-25.
Before: B. FLETCHER, CANBY, and RAWLINSON, Circuit Judges.
BETTY B. FLETCHER, Circuit Judge:
Appellants Frank Fernandez ("Fernandez"), Roy Gavaldon ("Gavaldon"), David Gonzales-Contreras ("Contreras"), Dominick Gonzales ("Gonzales"), Jimmy Sanchez ("Sanchez"), and Suzanne Schoenberg-Sanchez ("Schoenberg") (collectively "Appellants") were convicted on a variety of RICO and drug-trafficking charges relating to their participation in or involvement with the Mexican Mafia or "the Eme." They appeal their convictions on numerous grounds. Four of the Appellants also raise challenges to their sentences. We affirm the convictions of all six defendants; affirm the sentences of Fernandez, Gavaldon and Schoenberg; and remand for resentencing in the cases of Contreras, Gonzales, and Sanchez. We will, however, stay the issuance of the mandate as to all appellants except Sanchez pending the Supreme Court's resolution of the impact of Blakely v. Washington, ___ U.S. ___,
The district court had jurisdiction over these cases pursuant to 18 U.S.C. § 3231. We have jurisdiction over the consolidated appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). All Appellants filed timely notices of appeal.1
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, a grand jury in Los Angeles filed a twenty-nine-count First Superseding Indictment ("the indictment"), which charged Appellants and eighteen others with a number of racketeering, conspiracy and related counts. Fernandez, Contreras, Gonzales and Sanchez were charged in count one with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c).2 All Appellants were charged in count two with conspiracy to violate RICO under 18 U.S.C. § 1962(d), and in count three with conspiracy to aid and abet drug trafficking in violation of 21 U.S.C. § 846. Fernandez, Sanchez, and Schoenberg were charged in count four with conspiracy to aid and abet drug distribution within the Los Angeles County Jail ("LACJ") and other California prisons. Fernandez was charged in counts fourteen, fifteen, eighteen and twenty-one with violations of the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute, 18 U.S.C. § 1959, namely, conspiracies to murder four different individuals. Sanchez was charged with two VICAR counts (fifteen and nineteen), also for conspiracy to commit murder. Finally, Gonzales was charged with one VICAR count (twenty-one) for conspiracy to commit murder, and one count (twenty-nine) of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The jury eventually convicted Appellants on all counts, except that it found Sanchez not guilty on VICAR count nineteen and it hung on VICAR count eighteen against Fernandez.
Although the indictment had originally charged twenty-four individuals, the district court severed a number of death eligible defendants from the non-capital defendants, the latter group including Appellants. Ultimately, eleven defendants including Appellants were tried together in the district court.3
The "Eme" 4
Max Torvisco was an important Eme member who testified for the prosecution about the structure and activities of the organization. Torvisco testified that the Eme is the "gang of all gangs." It is an organization that wields a significant amount of control over several California prisons and jails as well as street gangs in the Los Angeles area. The Eme asserts its control through violence and intimidation.
Torvisco testified that the Eme has both full members and associates. An individual becomes a member of the organization by receiving the votes of three members and by showing loyalty to the organization through committing murder, assault, extortion or drug distribution. The Eme has a number of important rules: (1) members are not to testify against each other; (2) members are not to engage in homosexual acts; (3) members are not to engage in sexual activities with the wives or girlfriends of other members; and (4) no one, not even a member, should attempt to kill or harm a member of the Eme without the vote of three members.
Torvisco testified that the key to the Eme's power was its ability to threaten the members of smaller gangs as well as others with assault and even death if they did not comply with the Eme's demands. In particular, the Eme's power within the prison system gave it leverage even over gang members outside of prison: gang members who did not cooperate with the Eme when they were outside could be dealt with if they ever landed in jail — and many of them did. An Eme member or an associate could place an individual or even a whole gang on the "green light" list, which meant that the individual or gang was targeted for any form of assault up to and including murder. There was also a "hard candy" list, which meant that the individual or gang was targeted for death.
Torvisco testified that Eme members outside of the prison system were engaged in attempts to "organize" street gangs in various parts of the Los Angeles area. A group of Eme members or associates would meet with the members of smaller gangs and explain the Eme's "program:" the gang was to stop engaging in violence without the Eme's approval and would receive a measure of protection from the organization. The gang would also have to pay a "tax"5 on the proceeds from their drug sales. The amount of the tax depended on the size of the gang's territory and the amount of drugs its members were selling. The Eme actually strove to minimize inter-gang violence so each gang would be more efficient in its drug-selling activities and would pay more taxes to the Eme. However, if a gang did not comply with the Eme's demands, it would be placed on the "green light" list. Torvisco testified at trial about the progress the Eme had made in organizing the gangs in East Los Angeles and the west side area of Los Angeles in the mid- to late 1990s.
Evidence Regarding the Appellants
Appellants Fernandez and Sanchez were identified as members of the Eme. Gavaldon, Contreras and Gonzales were identified as associates. Schoenberg was described as being "associated" with the Eme because she was married to Sanchez.
The government presented evidence that all of the appellants were involved in different aspects of the Eme's taxing of drug trafficking by street gangs. Fernandez, co-defendant Martinez and Torvisco led an effort to "organize" the street gangs in the San Fernando Valley in late 1998. Gonzales, who was Fernandez's stepson, and Contreras were responsible for collecting tax money from gangs in the Valley on behalf of Fernandez and the Eme. Gavaldon was involved in other efforts by Martinez and Torvisco to organize the gangs in the southeast area of Los Angeles, and again, to collect taxes for the Eme. Although Sanchez was incarcerated during the relevant time period, he was able to collect tax payments from gangs on the outside through the help of Torvisco. Torvisco testified that Schoenberg would deliver the payments to Sanchez during her visits to her husband in prison. In addition to testimony by Torvisco and former co-defendant Jesus Rochin, the government presented hundreds of taped conversations which corroborated the appellants' efforts to organize and tax the drug distribution of street gangs.
The government presented evidence that some of the appellants were also involved, not just in the drug taxing schemes, but in direct drug distribution themselves. Fernandez, Contreras, Gonzales and Gavaldon were shown to be engaged in drug trafficking, particularly by supplying drugs to sellers. Evidence was also presented that appellants Fernandez, Sanchez and Schoenberg had engaged in efforts to smuggle drugs into the LACJ, conduct for which they were charged in count four.
Finally, the government presented evidence of conspiracies to commit murders that underlay both the RICO and VICAR counts. Some of these charges related to a conflict — Torvisco described it as a "war" — that developed between two factions of the Eme early in 1998. One faction, led by John "Stranger" Turscak6 and his associate Jesse "Shady" Detevis, confronted another which was led by Martinez, Fernandez, Sanchez, Torvisco and others. The government presented evidence that Martinez, Fernandez and Sanchez had approved the murders of Turscak and Detevis and had discussed plans to carry them out. On Easter Sunday in 1998, Torvisco, Rochin and others actually made an unsuccessful attempt to murder Turscak. The government also presented evidence of a conspiracy to commit murder unrelated to the Turscak dispute. That conspiracy involved Fernandez, Martinez and Gonzales, who discussed killing James "Bouncer" Lopez because of Lopez's interference with the collection of drug taxes in the Valley.
The jury reached a verdict on most counts in October 2000. The jury convicted Appellants on most of the counts charged. Both Fernandez and Sanchez were sentenced to life imprisonment. The remaining appellants were sentenced to the following terms of imprisonment: Gavaldon, 262 months; Contreras, 150 months; Gonzales, 210 months; Schoenberg, 51 months. Each appellant filed a timely notice of appeal.
DISCUSSION
I. Challenges to the indictment
Except as indicated below, Appellants did not challenge the validity or sufficiency of the indictment in the district court. While challenges to the indictment can be raised at any time, we review for plain error when no objection was raised below. United States v. Cotton,
"Before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Lillard,
A. Counts One and Two of the indictment (RICO Counts) adequately pled a nexus to interstate commerce
Appellants argue that the indictment failed to allege facts supporting the required nexus to interstate commerce for counts one and two (the two RICO counts). They concede that the indictment stated that the Mexican Mafia was an enterprise, "which is engaged in, and whose activities affect, interstate and foreign commerce," but they claim that the indictment must also allege facts supporting this "conclusory pleading."
The indictment adequately pled the interstate nexus required by the RICO statute. "Generally, an indictment is sufficient if it sets forth the elements of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged." Rodriguez,
Appellants rely on United States v. ORS, Inc.,
We conclude that ORS represents the exception rather than the general rule on pleading requirements in the indictment. Because our precedents have previously drawn parallels between the jurisdictional requirements of the RICO statute and the Hobbs Act, see Juvenile Male,
B. Counts Three and Four of the Indictment did not need to plead a nexus to interstate commerce
Appellants challenge the sufficiency of the indictment as to counts three and four (the drug conspiracy counts) because it fails to plead a nexus to interstate commerce. Although they recognize that an interstate nexus is not a statutory element of the charged offense under 21 U.S.C. §§ 841 or 846,8 Appellants argue that under recent Supreme Court precedents on the Commerce Clause, an effect on interstate commerce is an implicit element that must be pled in the indictment.
This challenge to the indictment is without merit. We have long held that "no proof of an interstate nexus is required in order to establish jurisdiction of the subject matter" in most prosecutions under 21 U.S.C. § 841(a). United States v. Montes-Zarate,
C. Counts Fourteen, Fifteen and Twenty-One (VICAR Counts) adequately pled motive and intent
Appellants Fernandez, Gonzales and Sanchez argue that the indictment was insufficient because it failed to plead adequately motive and intent elements of counts fourteen, fifteen and twenty-one, counts brought under 18 U.S.C. § 1959, the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute. The government points out that the indictment made a general allegation that the challenged counts, among others, were committed for the "purpose of maintaining and increasing the position of the specified defendants in the Mexican Mafia," see
Appellants' arguments fail for the same reasons that their attacks on counts one and two of the indictment fail. We have held that an indictment setting forth the elements of the offense is generally sufficient. See Woodruff,
D. Counts Fourteen, Fifteen and Twenty-One (VICAR Counts) adequately pled the element of a nexus to interstate commerce
Appellants' final collective challenge to the indictment is that it failed to plead adequately an interstate nexus with regard to the VICAR counts. The jurisdictional element of 18 U.S.C. § 1959 requires that the "enterprise" in question be one "which is engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1959(b)(2); see also Riddle,
E. The district court properly declined to dismiss the RICO charges against Sanchez
Sanchez argues that the district court erred in denying his motion to dismiss the indictment because it failed to charge him properly with conspiracy to murder Nicholas Navarro. Because Sanchez raised this challenge to the indictment in the district court, we review the district court's decision de novo. United States v. San Juan-Cruz,
The district court properly rejected Sanchez's motion to dismiss the indictment. The indictment did not charge Sanchez with conspiracy to murder Navarro, and the government was therefore not required to set out the elements of that offense in the indictment. To the extent that the allegations regarding Navarro do not qualify as overt acts supporting the conspiracy count, they are simply surplusage. See Bargas v. Burns,
II. Sufficiency of the evidence
When a claim of insufficient evidence is preserved by making a motion for acquittal at the close of the evidence, we review de novo the district court's denial of the motion. United States v. Carranza,
A. Count One: Racketeering (Substantive Violations)
Title 18 U.S.C. § 1962(c) provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(emphasis added). Thus, a violation of 18 U.S.C. § 1962(c) is established by "proof of `(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.'" Howard v. America Online Inc.,
1. Predicate Acts (Conduct of Enterprise's Affairs)
Fernandez, Sanchez and Gonzales argue that there was insufficient evidence to support their racketeering convictions because the only predicate acts found by the jury were the conspiracies to murder Turscak, Detevis and Lopez, which were not part of the conduct of the enterprise's affairs, but rather the acts of individuals who had personal feuds with the intended victims. As such, they assert, the conspiracies could not be substantive RICO violations.
First, contrary to Appellants' arguments, the jury specifically found that Fernandez and Sanchez had committed two predicate acts in addition to the charged murder conspiracies — the drug trafficking conspiracies in Los Angeles and in jail. Thus, even if there were insufficient evidence on the murder conspiracies, the jury found the requisite minimum of two predicate acts for these two Appellants.12
Second, the argument that conspiracies to murder other members of the enterprise could not be part of the enterprise's affairs is a variation on a theme reprised throughout Appellants' briefs, the central assertion of which is that any violence between factions within an organization either proves that the group was not a RICO enterprise, or that the violence could not be considered a predicate act of the enterprise's racketeering activity. See, e.g.,
In United States v. Orena,
Moreover, in another Mexican Mafia case, we upheld the convictions of several Eme members against insufficient evidence challenges, where one count of the indictment charged five defendants with conspiracy "to kill [another member] because he was politicking against other members, threatening to kill other members, claimed to have made an individual a member without following the proper procedure, and for generally causing dissension within the organization." Shryock,
The evidence presented at trial showed that despite the violent dispute between the Martinez/Torvisco/Fernandez and Turscak/Detevis factions, members of the group still identified themselves as members or associates of the Eme; still invoked the reputation and power of the group as a whole when dealing with people outside the organization; and expected the entire organization to endure beyond the `war,' after which relationships and methods of operation would return to normal. Despite the dispute between two factions within the organization, therefore, the evidence clearly established a single Eme enterprise.
2. Existence of RICO enterprise: ad hoc decision-making13
Appellants argue that the government did not meet its burden of proving substantive violations of the RICO statute because the evidence adduced at trial demonstrated only ad hoc decision-making. This challenge to the sufficiency of the evidence is based on the second element identified in Sedima as necessary to proving a violation of § 1962(c): that the racketeering activity be conducted by an "enterprise."
Under Supreme Court and Ninth Circuit precedent, establishing the existence of an associated-in-fact enterprise requires proof (1) of an ongoing organization, formal or informal, (2) which exhibits a hierarchical or consensual decision-making structure beyond that inherent in the alleged racketeering activity, and (3) in which the various associates function as a continuing unit. United States v. Turkette,
In their brief, Appellants support their characterization of the Eme as "an anarchy,"
First, as discussed above, the mere existence of a dispute between rival factions within an organization is not dispositive of whether it qualifies as an associated-in-fact enterprise. Second, as the Second Circuit has noted, "[c]ommon sense suggests that the existence of an association-in-fact is often-times more readily proven by what it does, rather than by abstract analysis of its structure." Coonan,
In this case there was evidence of more than the racketeering acts and conspiracies. Wiretap evidence showed, and several witnesses testified, that the Eme was a criminal organization of long standing, with a well-defined set of rules that were enforced by violence or the threat of violence,15 consistent procedures for recruitment and advancement, and the overall goal of controlling Latino gangs in southern California by maintaining and projecting its power both inside and outside of prison.
3. Sanchez: Predicate Act Not Proved Under California Law16
The indictment alleged that "[b]eginning on a date unknown to the Grand Jury and continuing at least until January 1999," several defendants including Sanchez "conspired to murder John Turscak, aka `Stranger,' and a co-conspirator committed an overt act in furtherance of the conspiracy, in violation of California Penal Code Sections 182 and 187." Sanchez claims that there was insufficient evidence at trial to convict him of the conspiracy to murder John Turscak because under California law, he committed no crime: neither he nor Martinez committed an overt act between November 1998 (the date that he joined the conspiracy) and February 1999. His arguments in support of this claim fail, because it is clear under California conspiracy law that he bears responsibility for the actions of his co-conspirators.
Under California law, "[a] conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit" a specified crime, "with the further specific intent to commit that crime ..., followed by an overt act committed in this state by one (or more) of the parties for the purpose of accomplishing the object of the agreement." CAL. JURY INSTRUCTIONS, CRIMINAL (7th ed.2004) 6.10; see also People v. Heredia,
California law does not require that each defendant charged with conspiracy have committed an overt act; it is sufficient that at least one co-conspirator have committed an overt act in furtherance of the conspiracy. See CAL. PENAL CODE § 184 (overt act must be committed "by one or more of the parties to such agreement"); People v. Russo,
Even if the overt act must have been committed while Sanchez was a member of the conspiracy, his contention that no such act was committed between November 1998 and February 1999 is not supported by the evidence. In December 1998, Martinez followed Turscak's wife home on the freeway in order to determine where the Turscaks lived, so that Turscak could be killed after he was released from prison. This overt act, committed after it was clear that Sanchez had joined the conspiracy, is the last necessary element that establishes Sanchez was a member of a conspiracy to murder Turscak. Both his challenge to his conviction on count fifteen (which alleged that he participated in this conspiracy for a particular purpose) and his challenge to count one (which included this conspiracy as one of the predicate acts in which Sanchez participated) fail.
B. Counts Two, Three and Four: RICO Conspiracy, Drug `Taxing' Conspiracy, Drug Trafficking in Jail Conspiracy
1. Existence of single interdependent conspiracy in each count
Whether a single conspiracy has been proved is a question of the sufficiency of the evidence. United States v. Duran,
A single conspiracy can only be demonstrated by proof that an overall agreement existed among the conspirators. Furthermore, the evidence must show that each defendant knew, or had reason to know, that his benefits were probably dependent upon the success of the entire operation. Typically, the inference of an overall agreement is drawn from proof of a single objective ... or from proof that the key participants and the method of operation remained constant throughout the conspiracy. The inference that a defendant had reason to believe that his benefits were dependent upon the success of the entire venture may be drawn from proof that the coconspirators knew of each other's participation or actually benefitted from the activities of his coconspirators.
Appellants assert that instead of the single conspiracies charged in counts two, three and four, the evidence at trial proved only the existence of multiple smaller conspiracies.18 With regard to count three, which alleged a drug trafficking and taxing conspiracy in the greater Los Angeles area, Appellants concede that "these many conspiracies often involved some of the same people," but assert that "they were separate territorial activities, the success of each of which was not dependent upon the success of any others."
This challenge focuses on the problem of variance between the indictment and the proof at trial: if the indictment alleges a single conspiracy, but the evidence at trial establishes only that there were multiple unrelated conspiracies, there is insufficient evidence to support the conviction on the crime charged, and the affected conviction must be reversed. See United States v. Antonakeas,
In count three, the indictment alleged that all six appellants participated in a conspiracy to sell drugs on the street and demand taxes from "narcotics traffickers and street gangs ... in order to continue their narcotics trafficking activities free of interference from the Mexican Mafia," and that "failure to pay the taxes would result in retribution, both on the streets and in penal institutions, by the Mexican Mafia."
While Appellants are correct that there were different sub-groups operating in different areas of Los Angeles, the method of operation remained constant, and included the demand for payment of tributes or taxes, the promise of protection and support in exchange for payment, and the threat of or use of violence if payment was not made. Moreover, the operation of different Eme groups in different areas of town does not contradict the existence of a single conspiracy, as the jury could reasonably have concluded (especially given the evidence presented to this effect) that the actions of the enterprise's members were co-ordinated, so as to ensure that no two groups were taxing in the same area. Last, even Appellants' description of the conspiracies reveals the common participation of key senior Eme members, another factor supporting the conclusion of a single conspiracy in which senior members of the enterprise co-ordinated and managed the operations of their subordinates. See
In count four, the indictment alleged that Fernandez, Sanchez and Schoenberg conspired to smuggle narcotics "into the Los Angeles County Jail and other California penal facilities" where one-third would be sent to Eme members, and that "a portion of the profits from the sale of [these] narcotics" would be sent to these defendants and other Eme members. Here again, the evidence adduced at trial showed consistent methods for smuggling drugs into jail. More importantly, there was an established system for the distribution and sale of drugs once inside a jail, which involved the standard tribute given to Eme members, the advertisement of drugs for sale, the method of payment, and the threat of violence for nonpayment.
Appellants' arguments in support of a theory of multiple conspiracies are meritless. First, although they concede that Ramirez testified that "some of the drugs belonged to the Mexican Mafia," and that he had agreed to "sell drugs within state prison for Mr. Fernandez, as would others associated with the Mexican Mafia,"
For each of the conspiracies alleged in counts three and four, the evidence showed not only that members and associates knew of the activities of others within the group, but that the entire operation of the drug taxing and jail distribution schemes was heavily dependent on the reputation and strength of the Mexican Mafia as an entire organization, and that each scheme was intended to benefit all members and associates within the enterprise. The evidence at trial established a single interdependent conspiracy for each of counts three and four. See Kotteakos,
2. Schoenberg's challenge to Count Two: no conspiracy because no agreement to direct Eme's affairs
Relying on the governing case in this circuit on RICO conspiracy, Neibel v. Trans World Assur. Co.,
Title 18 U.S.C. § 1962(d) provides, in relevant part: "It shall be unlawful for any person to conspire to violate any of the provisions of subsection ... (c) of this section." In Reves v. Ernst & Young,
In Neibel, we adopted the reasoning of the Third Circuit in United States v. Antar,
[W]e believe that a distinction can be drawn between, on the one hand, conspiring to operate or manage an enterprise, and, on the other, conspiring with someone who is operating or managing the enterprise. Liability under section 1962(d) would be permissible under the first scenario, but, without more, not under the second.
Antar,
In Salinas, a unanimous decision handed down almost nine months after Neibel, the Supreme Court held that a sheriff's deputy could be convicted of conspiracy under § 1962(d) for his role in a scheme that violated the federal bribery statute even though he neither committed nor agreed to commit the predicate acts that are required for a substantive violation of § 1962(c). After outlining "certain well-established principles" of the law on conspiracies that were equally applicable to RICO conspiracies,
In response, over three years later, the Third Circuit stated unequivocally:
[W]e hold that any reading of United States v. Antar to the effect that conspiracy liability under section 1962(d) extends only to those who have conspired personally to operate or manage the corrupt enterprise, or otherwise suggesting that conspiracy liability is limited to those also liable, on successful completion of the scheme, for a substantive violation under section 1962(c), is inconsistent with the broad application of general conspiracy law to section 1962(d) as set forth in Salinas.
Smith v. Berg,
We now agree with the Third Circuit that the rationale underlying its distinction in Antar, and our holding in Neibel, is no longer valid after the Supreme Court's opinion in Salinas. Accordingly, this case presents a situation similar to Miller v. Gammie, in which we held that "where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled."
Schoenberg's role in the activities of the Eme enterprise is enough to justify her § 1962(d) conspiracy conviction. See Howard,
3. Sanchez's challenge to Count Two: general insufficiency
Like his arguments in relation to count one, Sanchez's challenge to his conviction of RICO conspiracy in count two also focuses on whether or not certain overt acts were committed. The government construes these arguments as assertions that Sanchez must have committed some overt act in order to be convicted of conspiracy, and correctly argues that the prosecution was not required to prove that he committed any such act with respect to count two. See
To the extent, however, that Sanchez's arguments are simply directed toward the sufficiency of the evidence that he even conspired to violate RICO, they are belied by the evidence adduced at trial, which established Sanchez's role in the enterprise's activities, including collecting drug taxes, drug distribution in jail, and the conspiracy to murder Turscak. Moreover, his arguments are inconsistent with governing RICO case law, under which a defendant convicted of a substantive violation of § 1962(c) is also guilty of a § 1962(d) conspiracy to violate RICO, as long as the separate elements of the crime of conspiracy are met. See, e.g., United States v. Starrett,
4. Gavaldon's challenge to Count Two: Not an Eme "member"
Roy Gavaldon argues that there was insufficient evidence at trial to support his conviction for participation in the racketeering conspiracy because he was not a member of the enterprise. Gavaldon's arguments confuse the factual particularities of the enterprise in this case with the legal standards for participation in a racketeering enterprise: the fact that he was not a "member" of the Eme, i.e., did not have decision making authority within the group, did not mean that he did not conspire to participate in the conduct or operation of the enterprise. As an Eme associate who was ordered to handle the southeast Los Angeles gangs, and to assault someone who had "burned" Eme members, and who collected payments on behalf of Eme members, Gavaldon shared the liability of other individuals within the enterprise, even if he was not a leader within the group. See Salinas,
C. Counts Fourteen, Fifteen and Twenty-One: VICAR Murder Conspiracies
The federal statute on violent crimes in aid of racketeering activity ("VICAR statute") provides in relevant part:
Whoever, [1] as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or [2] for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished[.]
18 U.S.C. § 1959(a) (emphasis added).
The statute clearly contemplates two alternative theories of motive for the commission of VICAR offenses: either the defendant received something of pecuniary value from the racketeering enterprise to commit the crime ("quid pro quo crime" or "murder for hire"); or the crime was committed to achieve, maintain or increase the defendant's status in the enterprise ("status crime"). It is the second motive that was alleged by the government in this case.
Fernandez, Sanchez and Gonzales raise five challenges to the evidence supporting their VICAR convictions: (1) no substantial evidence was adduced to prove the commission of crimes for quid pro quo consideration; (2) a status crime must be committed to "enhance one's position in the eyes of the organization itself, not just ... in the eyes of individuals associated with, or factions of, the organization,"
First, the indictment clearly alleged that "the defendants specified below committed the offenses specified below, each such offense having been committed for the purpose of maintaining and increasing the position of the specified defendants in the Mexican Mafia." The government's theory of the case—from the terms of the indictment to the evidence presented at trial—was that the participants in the VICAR murder conspiracies intended to commit status crimes, not quid pro quo crimes. No evidence was presented to support an allegation that was never made by the prosecution. Appellants' first challenge thus provides no basis for reversing the VICAR convictions.
Appellants cite no case (nor can one be found) to support their second contention, that the motive for committing a status crime must be to enhance one's position in the eyes of the enterprise itself, not individuals or factions within the enterprise. See, e.g., United States v. Tse,
Appellants' third argument—that the alleged motive of a status crime is nonsensical because the intended victims were themselves members of the enterprise—is a repackaged version of the assertion that an enterprise cannot exist where different factions fight for control. It is equally meritless. Conspiring to kill members of a rival faction within the enterprise is perfectly consistent with an attempt to maintain or increase one's position in the group, especially when the intended victims were not leaders in the group and the conspiracy takes place in the context of a power struggle within the group.
Contrary to the Appellants' assertions in their fourth challenge to their VICAR convictions, the government need not prove that the status-crime was committed on behalf of the organization itself, rather than to benefit the individual conspirators. That requirement is relevant only to allegations of quid pro quo crimes. Compare Vasquez-Velasco,
Last, in their fifth claim, Appellants challenge the evidence supporting the individual motives ascribed to them in their murder conspiracy convictions. Relying on the leading Second Circuit case on status crime VICAR convictions, they assert that there was no evidence that the enterprise expected Gonzales, Sanchez and Fernandez to commit the crimes; or that they knew the enterprise expected them to commit these crimes; or that the commission of these crimes would actually maintain or enhance their positions within the Eme. See Concepcion,
For all the reasons explored above—the importance of individuals within an associated-in-fact enterprise, the violent methods used to enforce the Eme's strict rules, and the fact that maintenance of an individual's position within an organization that contains two rival factions can hinge on eliminating threats to one's power and prestige within the group—we hold that a rational trier of fact could have found that these defendants conspired to murder their rivals in order to secure their own positions within the Eme and maintain its overall cohesion as a single organization. We reject Appellants' challenge to their VICAR convictions.
III. Motions to suppress wiretap evidence and requests for an evidentiary hearing
A. Probable cause and necessity to support the wiretaps
Appellants argue that the district court erred in failing to suppress evidence gathered by the government through the wiretapping of the home phone lines of Fernandez ("Line 6") and co-defendant Martinez ("Line 7"). Appellants claim that the wiretap applications contained false and misleading statements and omitted important information, so that probable cause would not have been established if the applications had been prepared properly. Appellants argue that, at a minimum, they made a sufficient showing of misrepresentations in the wiretap applications to require the district court to conduct a hearing under Franks v. Delaware,
"A district court's denial of a motion to suppress evidence is reviewed de novo and underlying factual issues are reviewed for clear error." United States v. Lynch,
Appellants filed or joined a number of separate motions at the district court challenging the validity of the wiretap applications for Lines 6 and 7, and for a cell phone used by Detevis ("Line 1") to the extent that it provided the basis for the applications for Lines 6 and 7. The district court denied all the motions.
The government applications for the three lines in question were supported by affidavits from FBI Special Agent David Olsen ("Olsen affidavits"). Although much of the language used in the Olsen affidavit for Line 1 is repeated verbatim in the later affidavits, the latter do build on the information developed through the earlier wiretaps.
1. Standing and lack of objection
The government argues that Appellants lack standing to challenge the validity of the wiretap as to Line 1 because none of them was targeted under that line. Even assuming this is the case, any meritorious challenges raised by Appellants would apply equally to the wiretap applications for Lines 6 and 7, and the government does not appear to challenge Appellants' standing regarding those lines. The government also argues that Contreras did not join in any of the motions to suppress the evidence gathered through wiretaps. The district court record, however, reflects that Contreras did join in co-defendants Mercado and Nieto's motion regarding Line 1 and Martinez's motion regarding Lines 6 and 7. We therefore consider the merits of the claims as to all appellants.
2. Material misstatements or omissions and probable cause
Appellants argue that the facts omitted from the Olsen affidavits, if considered with the rest of the information provided, would not establish probable cause for the wiretaps. In order to issue a wiretap order, the district court must find probable cause to believe "(1) that an individual is committing, has committed, or is about to commit specified offenses, ... (2) that communications relevant to that offense will be intercepted through the wiretap, and (3) that the individual who is the focus of the wiretap investigation will use the tapped phone." United States v. Meling,
Appellants first claim that the Olsen affidavit for Line 6 failed to mention that Fernandez was a federal fugitive and that the government had never attempted to arrest him. The government appears to concede that this fact was omitted from the Olsen affidavits, but argues that the fact was not material because, if anything, it made it more likely that Fernandez was engaged in criminal behavior. The district court agreed, noting that Fernandez's fugitive status would have increased the showing of probable cause, not diminished it. We agree with the district court's determination as it relates to probable cause. However, the district court's analysis does not defeat Appellants' arguments that the omission was material to the necessity requirement. We address those arguments in the next section.
Appellants' second claim is that the Olsen affidavits failed to mention that the person Confidential Witness # 2 ("CW # 2") claimed was Fernandez's associate was, in fact, CW # 2's associate. At the district court, Appellants claimed that the associate was an individual named Debra Wood Farris or "Deb," and provided evidence that this person was in fact CW# 2's—rather than Fernandez's—associate. The government, however, submitted the affidavit of FBI Special Agent Franklin Davis, who stated that the individual referred to in the affidavit was co-defendant Robert Cervantes, who was in fact Fernandez's associate. Appellants provided no evidence to rebut this assertion, and the district court agreed with the government that the reference was to Cervantes. The Olsen affidavits were therefore neither false nor misleading on this point. Appellants have pointed to nothing in the record that would lead us to conclude that the district court's finding was clearly erroneous.
Finally, Appellants argue that the Olsen affidavits failed to mention that "CW # 2 personally facilitated the purchase of drugs to be taken into the Los Angeles County Jail."
In sum, none of the omissions alleged by the appellants undermines the district court's finding that probable cause existed to approve the wiretaps.
3. The necessity requirement
Appellants claim that the wiretap applications failed to make the required showing of necessity. In order to obtain a court-approved wiretap, the government must submit an application that includes, among other things, "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c). Our court has adopted
a `common sense approach' in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success. Though the wiretap should not ordinarily be the initial step in the investigation, ... law enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap.
United States v. Canales Gomez,
Appellants' arguments regarding the necessity requirement lack merit. Appellants first claim that the government's use of two confidential informants, CW # 1— now known to be John Turscak—and CW # 2, obviated the need for a wiretap because they were able to provide significant information regarding the activities of the Eme. We have recently rejected similar arguments under virtually identical circumstances. In Shryock,
[T]he Mexican Mafia is a broad-based organization with several hundred members and an unknown number of associates. Several informants—including former members of the Mexican Mafia...—could not possibly reveal the full nature and extent of the enterprise and its countless, and at times disjointed, criminal tentacles.
Id. (citations omitted). Our holding in Shryock is controlling here and defeats Appellants' arguments regarding the informants. See also Canales Gomez,
Appellants also argue that the fact that the Olsen affidavits failed to disclose Fernandez's status as a federal fugitive undermines the district court's finding of necessity. We conclude, however, that this omission was not material because the inclusion of the omitted information would not have affected the district court's determination of necessity. See Meling,
Appellants' most compelling argument is that the generalized averments made in the Olsen affidavits as to why normal investigative techniques would not work in this case were not sufficient to establish necessity. Some aspects of the Olsen affidavits are indeed problematic in this regard, especially in light of our precedent in Blackmon,
In the end, however, we cannot conclude that the district court abused its discretion in finding that the Olsen affidavits satisfied the necessity requirement set out in 18 U.S.C. § 2518(1)(c). This case is distinguishable from Blackmon because our holding in that case was premised on a finding that the affidavits supporting the wiretap applications were plagued by material misrepresentations and omissions. See Blackmon,
B. The district court's failure to conduct a Franks hearing
Appellants argue that the district court erred in failing to conduct a hearing under Franks v. Delaware,
A defendant is entitled to a Franks hearing where he or she makes "a substantial preliminary showing that a false statement was (1) deliberately or recklessly included in an affidavit submitted in support of a wiretap, and (2) material to the district court's finding of necessity." Shryock,
IV. Outrageous government conduct
Appellants argue that the district court erred in failing to dismiss the indictment because of outrageous government conduct in the process of investigating this case. Appellants claim that various aspects of the government's involvement with and reliance on informant John "Stranger" Turscak resulted in conduct so improper that their due process rights have been violated. They also argue that the district court should have dismissed the indictments under its supervisory power as a sanction for the government misconduct. Appellants Fernandez, Gonzales, Sanchez and Schoenberg all joined a motion by co-defendant Cervantes raising this claim at the district court. We review the due process claim as to these appellants de novo, United States v. Gurolla,
"The defense of outrageous government conduct is limited to extreme cases in which the government's conduct violates fundamental fairness and is shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment." Gurolla,
We do not find such conduct here. Appellants claim that the government engaged in outrageous conduct in this case because it used Turscak as a confidential informant even as he continued to engage in illegal conduct and, particularly, as he continued to discuss a potential attack on co-defendant Martinez with other Eme members and associates. The district court found, however, that "[a]lthough the Government was aware that Turscak was talking about a conspiracy to murder Martinez, Turscak was cooperating with the investigation so there was no reason to believe that he actually intended to carry out the murder." The district court further found that it could not be established that Turscak carried out an attempt on Martinez's life in December 1997. Appellants offer no argument about why these findings are clearly erroneous. Regarding other aspects of Turscak's illegal conduct, the government was, at worst, negligent in its handling of Turscak as an informant, but its conduct does not rise to the level required for a finding of a due process violation. See United States v. Barrera-Moreno,
For the same reasons, we also conclude that the district court did not abuse its discretion in failing to dismiss the indictment under its supervisory powers. "A court may exercise its supervisory powers to dismiss an indictment in response to outrageous government conduct that falls short of a due process violation." United States v. Ross,
Appellant Sanchez raises some additional issues which, he argues, make the claim of outrageous government conduct particularly strong in his case. Sanchez argues that Turscak engaged in a concerted effort to have Sanchez join a conspiracy to murder Martinez, and that the government sought to keep this information from the defense. Sanchez's claims may have had some merit had the government charged him with conspiracy to murder Martinez. The government did not, however, and there is therefore no basis for Sanchez's claim that Turscak created the crimes with which he was charged. None of the conversations between Turscak and Sanchez regarding Martinez was used for any purpose by the government, so we fail to see how Sanchez could have been prejudiced by their occurrence. Nor do we find any merit to Sanchez's claim that the government concealed relevant information: Sanchez conceded that the government provided him with the actual tape of the conversations between Turscak, Detevis and Sanchez (Consensual Tape # 142), and Sanchez has not disputed the government's reasonable explanation for not providing him with a transcript. Moreover, Sanchez quoted extensively from that tape in his mid-trial motion for a dismissal of the indictment, which undermines any claim that he was deprived of relevant evidence. For these reasons, we conclude that the district court properly rejected Sanchez's request for dismissal of the indictment based on outrageous government conduct.
V. Denial of mistrial
Appellants argue that the district court abused its discretion in failing to grant their motion for a mistrial based on co-defendant Roland Ramirez's mid-trial decision to plead guilty and testify for the government. We review the denial of a motion for a mistrial under the abuse of discretion standard. United States v. Prime,
Appellants' first argument is that Ramirez and/or his counsel were present during defense strategy sessions at the same time that they were negotiating a plea deal with the government.26 Appellants assert that this situation violated their Sixth Amendment right to counsel, particularly since—they claim—"[t]here is no doubt that Ramirez ... informed the Government of the appellants' discussions and strategies."
In order to show that the government's alleged intrusion into the attorney-client relationship amounted to a violation of the Sixth Amendment, a defendant must show, at a minimum, that the intrusion was purposeful, that there was communication of defense strategy to the prosecution, or that the intrusion resulted in tainted evidence. United States v. Danielson,
Appellants' second claim is that their rights to a fair and impartial jury were violated because Ramirez's counsel was actively involved in the jury selection process and struck one juror who had been accepted by Appellants. The district court rejected this claim because it made a factual finding that Ramirez had not entered into any cooperative agreement with the government at the time of jury selection, and because of the presumption that each defendant's attorney was protecting his or her individual client's interests. Because Appellants have not attempted to challenge the district court's factual findings as clearly erroneous, we conclude that Ramirez and his counsel were well within their rights to strike jurors from the jury. Appellants cannot point to any case supporting the proposition that the right to an impartial jury is violated when a co-defendant who was active during jury selection decides to plead guilty during the trial, nor has our research revealed such a case.
We conclude that the district court did not abuse its discretion in denying Appellants' motion for a mistrial.
VI. Denial of motions for severance
The district court's denial of a motion to sever is reviewed for an abuse of discretion. United States v. Pitner,
Inquiry into the prejudicial effect of a joint trial involves consideration of several factors, including: (1) whether the jury may reasonably be expected to collate and appraise the individual evidence against each defendant; (2) the judge's diligence in instructing the jury on the limited purposes for which certain evidence may be used; (3) whether the nature of the evidence and the legal concepts involved are within the competence of the ordinary juror; and (4) whether Appellants could show, with some particularity, a risk that the joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Id. at 1387-89; United States v. Hanley,
The indictment in this case contained twenty-nine counts, charging twenty-four individuals with racketeering, racketeering conspiracy, conspiracy to aid and abet narcotics trafficking, VICAR offenses, and a single felon-in-possession count. After all the defendants moved to sever the joint trial, the district court severed Martinez and eight other death-eligible defendants, because it "believe[d] there's a heightened scrutiny and requirement in death penalty matters."28 Specifically, the district judge found that "there's a big difference between violence and murder and attempted murder, and narcotics charges or conspiracy charges involving just narcotics."
Appellants point to three district court rulings to support their assertion that the district court abused its discretion in severing only the death-eligible defendants from the remaining eleven defendants. Although Appellants decline to argue that any of these three rulings was itself erroneous, they ask us to consider the cumulative effect of the decisions: (1) the grant of the government's motion for empaneling an anonymous jury; (2) the grant of the government's request that the nine incarcerated defendants be shackled; and (3) the admission of photographs of certain tattoos on some of the defendants in order to demonstrate their membership in and allegiance to the Eme. Although Appellants do not specifically allege that a particular trial right was violated as a result of these rulings or the failure to sever the joint trial of the eleven non-capital defendants,29 their arguments are most closely related to part of the fourth factor identified in Baker—the risk that the joint trial would prevent the jury from making a reliable judgment about guilt or innocence. As such, these arguments will be considered last, after the other Baker factors.
A. Jury's ability to compartmentalize evidence
We have previously noted that a joint trial is particularly appropriate where the co-defendants are charged with conspiracy, because the concern for judicial efficiency is less likely to be outweighed by possible prejudice to the defendants when much of the same evidence would be admissible against each of them in separate trials. See Cruz,
Given the multiplicity of counts facing the eleven co-defendants—alleging different conspiracies with different goals, as well as several predicate RICO or stand-alone VICAR offenses involving different sub-groups of the co-defendants—the jury's ability to evaluate the evidence against each defendant independently was certainly put to the test. Nevertheless, to the extent that the ability to compartmentalize is demonstrated by acquittal or failure to convict all defendants on all counts, see Baker,
B. Use of limiting instructions
We have repeatedly held that a district court's careful and frequent limiting instructions to the jury, explaining how and against whom certain evidence may be considered, can reduce or eliminate any possibility of prejudice arising from a joint trial. See Hanley,
[A] separate crime is charged against one or more of the defendants in each count. The charges have been joined for trial. You must decide the case of each defendant on each crime charged against the defendant separately. Your verdict on any count as to any defendant ... should not control your verdict on any other count or as to any other defendant.
Combined with its detailed instructions on the law governing conspiracies, and on substantive RICO violations, the district court's explanatory and limiting instructions to the jury are more than sufficient to guard against the possibility of prejudice to the defendants. See Hanley,
C. Nature of evidence and legal concepts involved
Baker's reference to the competence of the ordinary juror came from its consideration of a Second Circuit case on severance, where that court opined:
There is no support in caselaw or in logic for the proposition that a lengthy trial, a large number and variety of charges, and numerous defendants violate due process without a showing that the issues were actually beyond the jury's competence. No such showing was made in the instant matter. The crimes here may have been large in number and variety, but they were rather ordinary in nature, except in their viciousness. The evidence could also be understood without difficulty, the alleged complexity stemming more from the abundance of evidence than from the subtlety of the analysis needed to consider it.
DiNome,
D. Possibility of unreliable verdict
As discussed above, Appellants point to three district court rulings—empaneling an anonymous jury, shackling nine of eleven co-defendants, and admitting photos of tattoos—which they assert have the combined effect of undermining the presumption of innocence in such a large joint trial. Schoenberg, in particular, contends that in light of her joint trial with her incarcerated, shackled, and heavily tattooed co-defendants, the jury could not possibly have deliberated on her individual culpability.
1. Anonymous jury
A district court's decision to empanel an anonymous jury is reviewed for an abuse of discretion. Shryock,
(1) the defendants' involvement with organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment.
Shryock,
The record reveals that all five factors were met in this case. Moreover, the district judge was careful to offer neutral justifications for the jury's anonymity that focused on juror confidentiality and suggested that such procedures are routine. Similarly neutral explanations, suggesting virtually identical reasons for anonymity, have been viewed by this and other circuits as adequate guards against the possibility of prejudice. See, e.g., Shryock,
2. Shackling most of the defendants
A decision to shackle defendants is reviewed for an abuse of discretion. Morgan v. Bunnell,
Even in light of the limitations placed on district courts' discretion, Appellants' assertion of prejudice based on the shackling of nine of the eleven co-defendants is meritless. See Morgan,
3. Admission of gang-related tattoos
Appellants' last argument, that the admission of photographs of their tattoos undermined the presumption of innocence, is equally meritless. The district court found photographs of tattoos that were relevant to the charges in the indictment probative and admissible, in that they tended to prove gang membership, which the government alleged was a precursor to membership in the Mexican Mafia. The court ruled that some of the tattoos in the photos were irrelevant and prejudicial and therefore inadmissible, because they did not indicate gang membership. The balance between probative value and prejudicial effect was fairly struck by the district court, and we conclude that the admission of the relevant tattoo photographs and stipulations did not unfairly prejudice the appellants.
To support their challenge to the denial of their motions for severance, Appellants rely heavily on our extensive discussion in Baker, where, despite upholding the district court's decision not to sever, we expressed our concerns about the great potential for prejudice to defendants that is inherent in "such mega-trials." See
Last, contrary to Appellants' arguments, the district court did consider the possible prejudicial effect of a joint trial on each defendant. Indeed, the court spent a great deal of time considering the motions to sever, and evaluating each defendant's alleged offenses and role in the alleged enterprise, before ruling on the motions. We therefore hold that the district court did not abuse its discretion when it denied the non-capital defendants' motions to sever.
VII. Jury instructions
A. Failure to instruct the jury on the meaning of the phrase "ad hoc"
Appellants argue that the district court erred by failing to define the term "ad hoc" in its instructions regarding the definition of a RICO enterprise. We review the district court's formulation of jury instructions for an abuse of discretion. United States v. Franklin,
In its instructions regarding what constitutes an "enterprise" under the RICO statute, the district court explained to the jury that an enterprise "must have a structure for making decisions." It then instructed the jury that"[t]he structure must provide a mechanism for controlling and directing the affairs of the entity on an ongoing continuous basis, rather than an ad hoc basis." (emphasis added). The district court did not further define the term "ad hoc."
"In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation." Shryock,
We conclude that the district court did not abuse its discretion in failing to instruct the jury on the definition of "ad hoc."
B. Failure to instruct the jury on multiple conspiracies
Appellants did not object to the conspiracy instructions given to the jury, so we review this claim for plain error. Jones v. United States,
We hold that the jury instructions given by the district court fairly and adequately covered the defense theory of the case. In addition to instructing the jury on what it must find in order to conclude that the conspiracies charged in counts two, three, and four existed, the district court also told the jury:
With regard to each of the conspiracies charged in the First Superseding Indictment, you must decide whether the conspiracy charged in the indictment existed and, if it did, who at least some of its members were. If you find that the conspiracy charged did not exist, then you must return a not guilty verdict even though you may find that some other conspiracy existed. Similarly, if you find that any defendant was not a member of the charged conspiracy, you must find that defendant not guilty, even though that defendant may have been a member of some other conspiracy.
Although the district court did not specifically use the term "multiple conspiracies," the instruction is sufficient to cover the Appellants' theory of the case—that the evidence offered at trial did not establish the single overarching conspiracy alleged in each of counts two, three, and four, but rather several smaller and unrelated conspiracies. The district court's detailed instructions on the elements of a conspiracy further support this conclusion: the jury was instructed on the legal definition of a conspiracy, with its required elements of an agreement among the participants with the specific intent to agree; specific intent to commit the particular crime charged; and overt acts to further or accomplish the object of the conspiracy. Given these instructions, the jury could decide that the large overarching conspiracy charged by the government in each count did not exist, but that other unrelated conspiracies did; or that a particular defendant did not participate in the overall conspiracy, but rather in a different and unrelated conspiracy.34 The district court did not commit plain error.
C. Challenge to instructions on the interstate nexus elements of Counts One and Two
Fernandez argues that the district court erred in instructing the jury that it could find the required nexus with interstate commerce for the RICO counts if it found that the enterprise had a de minimis effect on interstate commerce.35 Under United States v. Lopez,
Fernandez's challenge to the jury instructions is foreclosed by our recent decision in Shryock. In that case, we described and rejected the same argument Fernandez raises in this appeal:
Appellants argue that the district court erroneously instructed the jury that [the interstate nexus element of the RICO counts] could be satisfied if the "the activities of the enterprise affect interstate commerce in some minimal way." According to Appellants, the correct standard requires the jury to find that the enterprise had a "substantial" effect on interstate commerce.... In United States v. Juvenile Male, we held that "all that is required to establish federal jurisdiction in a RICO prosecution is a showing that the individual predicate racketeering acts have a de minimis impact on interstate commerce."
The district court therefore properly instructed the jury on the interstate nexus requirement for counts one and two.
D. Failure to instruct the jury that Counts Three and Four required a nexus with interstate commerce
Appellants argue that the district court erred in failing to instruct the jury that it must find a nexus with interstate commerce in order to convict on counts three and four, the drug conspiracy counts under 21 U.S.C. § 846. Because Appellants did not raise this objection before the district court, we review for plain error. Jones,
As we explained earlier, an effect on interstate commerce is not an element of a drug conspiracy offense under 21 U.S.C. § 846. Cf. United States v. Visman,
E. Failure to instruct the jury that Counts Fourteen, Fifteen and Twenty-One required a nexus to interstate commerce as to the underlying act
Appellants argue that the district court erred by failing to instruct the jury that the specific violent acts charged in VICAR counts fourteen, fifteen and twenty-one must have had an effect on interstate commerce. Because the appellants did not raise this objection to the jury instructions before the district court, we review the claim for plain error. Jones,
Appellants concede that § 1959 does not itself require a nexus between interstate commerce and the specific act of violence charged. The statute does require that the "enterprise" in relation to which the violent acts are committed be one that "is engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1959(b)(2). Appellants argue, however, that the acts that allegedly violate that statute must themselves have a nexus to interstate commerce. Their claim relies on the holding of one district court. See United States v. Garcia,
F. Challenge to the instructions regarding the quid pro quo theory of motive for Counts Fourteen, Fifteen and Twenty-One
Appellants argue that the district court's instruction on the motive element of the VICAR counts was misleading and an incorrect statement of the law. Because Appellants did not object to the instruction at the district court, we review for plain error. Jones,
As we explained earlier, the VICAR statute, 18 U.S.C. § 1959, contemplates two different motive theories for commission of a VICAR offense: a "quid pro quo crime" theory and a "status crime" theory. Although it is clear that the government has prosecuted all of the VICAR counts in this case under the "status crime" theory of the statute, the district court, in addition to instructing on the "status crime" theory, did instruct the jury on the alternative "quid pro quo crime" motive theory. Appellants have not, however, met their burden of showing that any error in the quid pro quo crime instruction violated their substantial rights as is required under plain error review. See Olano,
VIII. Failure to order a competency hearing sua sponte
Since Fernandez raises the issue of his competence for the first time on appeal, we review for plain error the district court's failure to order a competency hearing sua sponte. Cf. United States v. Lorenzo,
Fernandez "was entitled to a hearing on his competency to stand trial if a reasonable judge would have ... a `bona fide doubt' [about his] competence." Torres,
Although Fernandez is correct that a trial judge should order a competency hearing on its own motion if it has a good faith doubt about the defendant's competence to stand trial, there must be "substantial evidence of incompetence." Deere v. Woodford,
Fernandez asserts that the trial judge's remarks, where he noted there were times when Fernandez either nodded off or had difficulty staying awake, indicate that the court was aware of facts that should have triggered a competency hearing. The government counters that the only evidence offered in support of Fernandez's claim of incompetence is the court's offhand comment about him made at the sentencing of a co-defendant. Fernandez offers no medical opinions of his mental competence at any time, much less during any period relevant to his trial. Nor is there evidence that he behaved irrationally at any time during the pre-trial, trial, or sentencing phases of the criminal proceedings. On the contrary, to the extent that it is possible to conclude anything about Fernandez's competence in the absence of medical reports, the record suggests that he understood the nature and consequences of the proceedings, communicated with his attorney, and was able to assist in his defense.
The only apparent reference during the trial to Fernandez's sleepiness occurred when defense counsel asked for his client to be excused on one day of the trial because he was falling asleep. When asked by the court, counsel explained that "[Fernandez is] more than sleepy ... he's sick. And he's got a very bad headache that they gave him medication for this morning." The court informed Fernandez of his right to be present at stages of the criminal proceeding, offered him the option of remaining in court, and told him that he could leave but that he must personally consent to his absence. In a short exchange with the court, Fernandez then asked to be excused for the day because he felt "pretty sick," and indicated that he understood that he could request to be brought back to court at any time.
Since the only evidence offered by Fernandez is the trial court's comment on his sleepiness, and there was no other evidence during his trial to suggest incompetence, we hold that the district court did not commit plain error by failing to order a competency hearing. See Williams v. Woodford,
IX. Denial of motions to suppress evidence obtained from residential search
A. Probable cause
We review the issuance of a search warrant by a magistrate judge for clear error, in order "to determine whether the magistrate had a substantial basis to conclude that the warrant was supported by probable cause." United States v. Celestine,
In January 1999, FBI Special Agent Samuel Spencer submitted an affidavit ("the Spencer affidavit") to the District Court for the Central District of California, requesting the issuance of a search warrant for a residence located on Rambler Avenue in Palmdale, California ("the Rambler residence"). In addition to identifying the place to be searched and the items to be seized, Agent Spencer recounted his experience in investigating organized criminal enterprises, and his participation in a previous investigation of the Mexican Mafia. The affidavit stated that his conclusions were based on "[his own] training and experience, communications with other law enforcement officers, [his] review of reports prepared by law enforcement personnel, and [his] review of recordings, and summaries of recordings prepared by law enforcement personnel, of intercepted communications."
Much of the Spencer affidavit, which was based on a two-year multi-agency task force investigation, contained general information on the Mexican Mafia, including its structure, members, illegal activities, and methods of operation. Agent Spencer attached the initial indictment to the affidavit, and asserted that it provided "probable cause for each defendant's association with the Mexican Mafia, and participation in the Mexican Mafia's criminal activities." At several places in the affidavit, he discussed his knowledge of the practices of Mexican Mafia members, using it (along with his training and experience) to explain the relevance of the items he expected to find in the residence to the charges in the indictment. He stated the reasons he believed that Fernandez and Gonzales both lived in the house. Last, he recited information, culled from the wiretaps, which he believed established probable cause that firearms and narcotics would be found at the Rambler residence, including Gonzales' statements that he had firearms, and particularly that "he has enough guns at his house"; Fernandez's statement that he possessed a gun; and repeated references to Fernandez's trafficking in narcotics. The Spencer affidavit did not mention Turscak or any other confidential informant. The warrant issued and was executed. The district court denied both Fernandez's motion to suppress the evidence recovered at the Rambler residence, and his motion for a Franks evidentiary hearing.36
Gonzales and Fernandez raise two arguments in their challenge to the Spencer affidavit. First, they claim that the general descriptions of the Mexican Mafia and its activities are insufficient to establish probable cause, because they provide no basis for a magistrate to find probable cause that contraband, firearms, or evidence would be found at the Rambler residence. Second, they argue that the intercepted calls are also insufficient to provide probable cause because the wiretaps were invalid. Even if the intercepts were valid, however, Gonzales and Fernandez contend that those communications are stale and do not support the inferences the government attempted to draw from them, because they did not establish that the guns, narcotics, and other potentially relevant items were at the house, or still on the premises, even if they had been there at some time in the past.37 These arguments are unavailing, because the information in the affidavit was sufficient to establish probable cause under well-settled circuit law.
We have repeatedly held that an issuing magistrate may draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense alleged. See, e.g., United States v. Garza,
While probable cause that a resident of the location has committed a crime is in itself insufficient to satisfy the standard, Gil,
For probable cause to exist, a magistrate need not determine that the evidence sought is in fact on the premises to be searched, or that the evidence is more likely than not to be found where the search takes place. The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.
United States v. Peacock,
Last, this Court has concluded that in cases involving ongoing narcotics businesses, lapses of several months—and up to two years in certain circumstances— are not sufficient to render the information in an affidavit too stale to support probable cause. See Pitts,
Agent Spencer's statements about the likelihood that the Rambler residence contained contraband or evidence relevant to the crimes charged, which were based on his own professional experience of the Mexican Mafia, combined with the information from the wiretaps, were sufficient to give the magistrate judge a substantial basis to conclude that the items sought were at the residence.38 The issuance of the search warrant was not clearly erroneous.
B. Franks hearing
The same standards of review outlined above in connection with Appellants' motions for a Franks hearing on the wiretaps apply here. The two appellants argue that the district court erred when it denied Fernandez's motion for a Franks hearing, and allege two material omissions or misstatements: (1) contradictions between agent Spencer's claims that guns or drugs would be found inside the residence, and the intercepted telephone conversations which do not suggest that guns or drugs are anywhere in particular; and (2) the affidavit's failure to discuss Turscak's "astounding number" of criminal acts while working for the government, and the government's alleged acquiescence in it.
For all the reasons explored above with regard to the denial of the motion to suppress, the first argument fails. The alleged contradictions are not factual, but rather represent a difference of opinion between the Appellants and the issuing magistrate on whether an inference that the guns and drugs were in the house was reasonable. The magistrate judge's conclusion that the Spencer affidavit established probable cause to search the Rambler residence was not clearly erroneous. Given the legal insufficiency of the claim before it, and the paucity of supporting factual allegations, the district court did not err in denying the motion for a Franks hearing.
Gonzales' and Fernandez's second allegation, that the affidavit's failure to describe Turscak's criminal activity warranted an evidentiary hearing, is a claim that they did not raise before the district court when requesting the hearing. It is the general practice of our court not to entertain such challenges, unless failure to do so will result in manifest injustice. See, e.g., United States v. Ullah,
Even if we entertained this claim, Appellants would lose, because they cannot show materiality. "In determining materiality, `the pivotal question is whether an affidavit containing the omitted material would have provided a basis for a finding of probable cause.'" United States v. Chavez-Miranda,
X. Failure to strike witness testimony against Sanchez
Sanchez argues that the district court erred in failing to strike testimony offered by prosecution witness Torvisco in violation of the court's protective order. We review for an abuse of discretion both the district court's denial of a motion to strike evidence, United States v. Little,
Before the trial, Judge Tevrizian issued a written order limiting the government in its presentation of evidence of "bad acts" by the appellants to those "referenced in the First Superseding Indictment." Sanchez claims that the testimony by witness Torvisco violated that order because it introduced evidence of Sanchez's participation in ten conspiracies to commit murder or assault, even though he was not charged with such conduct in the indictment.39 The government points out that eight of these conspiracies were alleged in the indictment, but concedes that Sanchez was not alleged to have participated in them. The district court ruled that the conspiracies raised by Torvisco were "within the genre of the indictment." It also found that the government had not intended to hide anything from the defense and that any damage from Torvisco's testimony was "minimal."
Even if the district court abused its discretion in refusing to strike Torvisco's testimony regarding the uncharged conspiracies, any error was harmless. We analyze Sanchez's arguments under the harmless error standard used to review non-constitutional evidentiary rulings: we must reverse a conviction based on an erroneous evidentiary ruling, "unless it is more probable than not that the error did not materially affect the verdict." United States v. Morales,
Torvisco's testimony about the uncharged conspiracies was relevant to two counts, since the conspiracies he described could be seen by the jury as either predicate acts for the substantive RICO violation alleged in count one, or overt acts to support the conspiracy charged in count two. The jury specifically found, however, that Sanchez participated in two other conspiracies —the conspiracy to murder Turscak, and a conspiracy to distribute narcotics —which independently constituted both predicate acts for the substantive count and overt acts for the conspiracy count. Therefore, even if the district court had struck Torvisco's testimony about the uncharged conspiracies, it is certain that the jury would still have convicted Sanchez on the relevant counts. Moreover, to the extent that Torvisco's testimony may have had an impact on the jury's consideration of the other counts with which Sanchez was charged, we conclude that any error in the admission of the testimony was harmless.
XI. Cumulative error
In nearly every instance in which the Appellants claimed error in the proceedings leading to their convictions, we have found that the district court did not err. To those claims, cumulative error is simply inapplicable. See United States v. Martinez-Martinez,
XII. Sentencing Challenges
Appellants Fernandez, Gavaldon, Contreras, Gonzales and Sanchez raise individual challenges to their sentences. We address the challenges raised by Fernandez and Sanchez below. Contreras and Gonzales have submitted post-briefing filings arguing that their sentences should be reconsidered in light of the decisions by the Supreme Court in Blakely v. Washington, ___ U.S. ___,
Gavaldon has also filed a motion seeking to raise a Blakely challenge to his sentence. After reviewing the record, however, we do not find Blakely to be implicated in Gavaldon's case. Therefore, we do not vacate Gavaldon's sentence. Because of the potential broad-ranging implications that the Supreme Court's decisions in Booker and Fanfan may have in federal sentencing, however, we will, out of an abundance of caution, order that the mandates as to all appellants except Sanchez be stayed until further order of the court.42 See United States v. Lenoci,
A. Fernandez's constitutional challenges to his life sentences
Fernandez argues that the life sentences imposed on him because of his convictions on the RICO counts (counts one and two) violate the Eighth Amendment because they are grossly disproportionate to the sentence he might have received if convicted in another state. We review de novo whether a sentence violates the Eighth Amendment. United States v. Bland,
Fernandez's life sentence is not so grossly disproportionate that it violates the Eighth Amendment. In Harmelin v. Michigan, the Supreme Court held that a sentence of life without parole for the crime of possessing 672 grams of cocaine did not violate the Eighth Amendment.
Fernandez also argues that Congress did not intend to incorporate sentencing disparities across different states into the RICO statute, and that we should not read the RICO statute to allow such disparities. We conclude, however, that the plain structure of the relevant RICO provisions establishes that Congress did intend sentences to be based on state law. Title 18 U.S.C. § 1961(1) provides that predicate racketeering acts include offenses under state law punishable by more than a year, and § 1963(a) provides that the maximum sentence for a RICO violation is life imprisonment "if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment." The RICO statute therefore contemplates that both the acts charged and the sentences imposed may vary according to the law of the state where the acts occurred. This situation is different from that presented in cases like Ye v. INS,
Finally, Fernandez raises an equal protection challenge based on the fact that under RICO, similar criminal conduct is sentenced differently depending on the law of the state in which the acts took place. We rejected a similar challenge to the incorporation of state law into a federal statute in United States v. Sacco, and concluded that "[t]he fact that [18 U.S.C. §] 1955 applies only in states where gambling is illegal does not result in a denial of equality under the law guaranteed by the due process clause of the fifth amendment. The absence of national uniformity does not render § 1955 unconstitutional."
B. Fernandez's challenge to his life sentence on Count Two
Fernandez argues that he was incorrectly sentenced to life imprisonment on the RICO conspiracy count, because conviction on that count did not require a finding that he had committed any particular act, much less the murder conspiracy that justified a life sentence under California law. Fernandez is correct that a § 1962(d) conviction does not require a substantive violation under § 1962(c) to have been established, in that the prosecution need not prove that the necessary predicate acts have been successfully completed. See Salinas,
Fernandez's further contention that there was no finding that he had in fact conspired to commit murder, at least as a predicate for count two, is incorrect. It is a well-established principle of RICO law that a murder conspiracy can be a predicate racketeering act under § 1962(c), see, e.g., Shryock,
C. The district court's failure to consider making Sanchez's life sentence concurrent with his state term of imprisonment
Sanchez argues that the district court erred in finding that it lacked discretion to make his federal life sentence concurrent with his current state term of imprisonment.47 The government concedes that the district court erred in finding it had no discretion,
CONCLUSION
We affirm the convictions of all Appellants, and the sentences of Fernandez and Schoenberg. We vacate the sentences of Contreras and Gonzales, and remand those cases for resentencing consistent with the Supreme Court's eventual decisions in Booker and Fanfan. We also vacate Sanchez's sentence and remand for re-sentencing in accordance with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RE-SENTENCING IN PART. The Clerk shall stay the issuance of the mandate in all cases, except No. 01-50373 (Sanchez), until further order of the court.48
Notes:
Notes
Throughout this opinion, we cite to the following briefs by the parties, which are available through the Westlaw database: the Appellants' Joint Opening Brief,
The district court dismissed the charge in count one against Contreras on the government's motion prior to trial
In addition to Appellants, the other defendants were Robert Cervantes, Juan Garcia, Adrian Nieto, Sally Peters and Roland Ramirez. On the twentieth day of trial, Roland Ramirez pled guilty and eventually cooperated with the government. The jury acquitted or hung on several of the charges against Garcia, Nieto and Peters
We have previously described testimony regarding the Eme inUnited States v. Shryock,
Torvisco testified that while the forced payments from the gangs were really "taxes" on them, he had encouraged gangs to refer to them as "contributions" or "donations" because of prior RICO prosecutions against the Eme
Turscak became an informant for the FBI around April 1997 and provided a great deal of information about the activities of the Eme. Some of the recordings he made of his conversations with other Eme members and associates were played at trial, although Turscak himself did not testify
In the RICO context, both the First and Fifth Circuits have approved the conclusory statement of effect on interstate commerce that Appellants challenge hereUnited States v. Doherty,
Section 846 is the provision of the Controlled Substances Act ("CSA") making unlawful a conspiracy to violate other provisions of the CSA. The indictment charged that the appellants had conspired to violate 21 U.S.C. § 841(a)(1), which forbids the distribution of controlled substances
Although all of the challenges to the VICAR counts are relevant only to appellants Fernandez, Gonzales and Sanchez, we will also refer to this sub-group of VICAR Appellants as "Appellants."
Although neitherBracy nor Vasquez-Velasco referred to the element of a nexus to interstate commerce, the statute clearly requires it. See 18 U.S.C. § 1959(b)(2); see also United States v. Riddle,
Two predicate acts are necessary, but not sufficient, to prove a violation of § 1962(c): the pattern element also requires proof of "relatedness" and "continuity."H.J. Inc. v. Northwestern Bell Tel. Co.,
The jury found only two racketeering acts for Gonzales, one of which was the conspiracy to murder the member of a rival faction
Since the contemplated or actual existence of a RICO enterprise is also a necessary element of a § 1962(d) conspiracy to violate § 1962(c), this challenge is also related to count two of the indictment
Fernandez in particular asserts that thedecision-making must occur on an ongoing basis, and that the fact that the Eme is an ongoing organization with an intricate set of rules, or a code of conduct is insufficient to establish it as an enterprise. To the extent that Appellants' arguments focus on whether the decision-making process was ad hoc or continuous, they are based on a fundamental misconception of the governing law. As the quotation from Chang illustrates, it is the "mechanism for controlling and directing the affairs of the group,"
In this context, witness testimony and wiretap transcripts showed that the "green light" list was used to enforce the rules of the organization, and to force gang members to pay their taxes to the Mexican Mafia — both clearly objectives of the enterprise as a whole, not merely individuals within the organization
Sanchez makes the same argument about his conviction on count fifteenSee Sanchez Opening Br. at 8. The discussion in this section applies equally to his conviction on that count, as both are based on the same underlying conduct, the conspiracy to murder Turscak.
People v. Van Houten,
Appellants' multiple conspiracies arguments are focused on counts three and four. They also claim, however, that the evidence underlying their convictions on count two was simply a conglomeration of the evidence presented on counts three and four. This argument is flatly contradicted by the prosecution's case, which involved evidence of numerous predicate conspiracies and overt acts unrelated to the drug taxing and trafficking conspiracies charged in counts three and four
Even if Appellants had raised an accurate multiple conspiracies challenge to count two, it would be unavailing. The several conspiracies that were predicate acts for the substantive RICO violations of § 1962(c) were also evidence of the overall § 1962(d) conspiracy to violate RICO. What matters for a sufficiency of the evidence inquiry is that there was adequate proof of an overall conspiracy to participate, directly or indirectly, in the conduct of the Eme's affairs through a pattern of racketeering activity. In this case, the pattern included predicate acts that were themselves constitutive conspiracies.
But cf. Oki Semiconductor Co. v. Wells Fargo Bank,
Although not explicitly labeled as such, the Neibel approach has been applied by at least one other Ninth Circuit panel, in another case involving the Mexican Mafia. Shryock,
Schoenberg's challenge to count three is essentially a reprisal of the joint opening brief's multiple conspiracies argument. For the reasons discussed above, we reject this challenge
Gavaldon's argument on count three, that there was insufficient evidence to convict him of participation in the drug taxing conspiracy, is directly contradicted by the evidence presented at trial
Appellants argue also that the Olsen affidavits failed to note that Gonzales was subject to parole searches that could have yielded important information. This omission, however, was not material to the necessity requirement. As the government points out, we had made clear long before the events at issue here thatprobation searches could not be conducted as a subterfuge for a criminal investigation. See United States v. Richardson,
Appellants make also a half-hearted argument that the Olsen affidavits failed to address why the government could not rely on intercepts of telephone conversations by Eme members in California prisons. As the appellants themselves recognize, however, at the time of the investigation of this case, California decisional law did not allow monitoring of telephone conversations by inmates for purposes of investigating criminal activity, as opposed to maintaining security in the facility. See De Lancie v. Superior Court,
The most problematic aspects of the Olsen affidavits are the sections purporting to explain why pen registers, trap and trace devices, and trash searches would be unsuccessful investigative techniques simply because of their inherently limited nature
The district court did not make factual findings in denying the motions to dismiss the indictment as to the appellants in this case. It did, however, make such findings in ruling on a similar motion by co-defendant Martinez. Since the factual and legal bases for the motions were all the same, we deem it appropriate to rely on the factual findings the district court made in Martinez's caseSee United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,
In addition, because the district court did make factual findings regarding the events underlying this claim in its order in the Martinez case, we do not need to remand to the district court for the evidentiary hearing Appellants request
Appellants are somewhat inconsistent in their allegations as to who was present at the defense strategy sessions: their argument at the district court referred to Ramirez's counsel's presence, and they mention that presence again in their opening brief,
It is somewhat unclear what precedential effect other holdings inBaker may have. See United States v. Nordby,
After the government decided to seek the death penalty against Martinez alone, the district court severed him from the other previously death-eligible defendants
Schoenberg alleges generally that her right to due process was violated by the denial of her motion to sever, but that does not appear to be the kind of specific violationBaker contemplates. See
Nieto, Garcia and Peters are not among the six Appellants in these consolidated appeals, but were among the total of eleven non-capital co-defendants in the trial that is the subject of this appeal
Even though Appellants do not argue that each of these decisions was in error, we consider the relevant standards of review as guidelines to our analysis, because they establish the limits of trial courts' discretion to fashion remedies that balance judicial efficiency, reliability of criminal proceedings, and possible prejudice to defendants
We note this passage of Fernandez's counsel's closing statements, in which he discussed the jury instructions regarding the definition of an enterprise:
Did, in fact, [the Eme] have rules that were followed? Did it have a mechanism for making decisions on anything other than an ad hoc basis[?]
Do you know what "ad hoc" means? It means that people get together to make decisions, but it's not continuous. When you have ad hoc committees and organizations, you set up the committee to deal with a particular problem. Once that problem is solved it dissolves. That's what "ad hoc" means.
The question of whether an instruction on multiple conspiracies is warranted is related to the issues of "spillover" or transference of guilt that are raised by trial severance, as discussed aboveSee Anguiano,
Our precedents require a multiple-conspiracies instruction only in the event that the evidence showed other conspiracies that wereunrelated to or separate from the conspiracy charged, because it is well-established that "a single conspiracy may involve several subagreements or subgroups of conspirators." Bibbero,
The district court instructed the jury as follows:
The fourth and final element which the government must prove as to Count One is that the enterprise itself, or the racketeering activities of those associated with it, had some effect upon interstate commerce. This effect upon interstate commerce could have occurred in any way and it need only have been minimal.
Gonzales joined in Fernandez's motions
Gonzales and Fernandez also argue that the affidavit omitted critical information that would have established the absence of probable cause. We discuss this argument below, in connection with theirFranks claim.
Moreover, this Court has held that information as old as eight months or twenty-two months was not stale when considered in light of more recent information in the affidavit, which served to `update' the earlier informationSee United States v. Collins,
The testimony referred to conversations discussing plans to murder or assault Jesse "Shady" Detevis, "Angel" from Rockwood, "Smokey from Hazard," "Joker from Glassell Park," "Little Man from Burlington," "Stranger from 213," "Shorty from Laguna Park," "Sparkey from Temple," "Chino from Geraghity," and Mariano Martinez
In both of these cases, the district court enhanced the appellants' sentences based on conduct which was neither found by a jury nor admitted by the appellants. UnderAmeline, such enhancements constitute a violation of the Sixth Amendment. See Ameline,
Our review of the record indicates that none of theBlakely issues raised by Contreras or Gonzales would affect the portion of the sentences that those appellants would serve between now and the Supreme Court's disposition in Booker and Fanfan. If our reading of the record is incorrect, however, the appellants may file motions requesting that we remand the matter to the district court for re-sentencing prior to the decisions in Booker and Fanfan.
As explained below, we will remand Sanchez's case for re-sentencing on an issue independent ofBlakely.
The fact that the sentences for conspiracy to murder in other states may be substantially lower does not change the result. Under 18 U.S.C. § 1963(a), Fernandez would have faced a maximum of 20 years had he been convicted of the same offenses in a state that did not punish conspiracy to murder with a life sentence. Given the seriousness of the crime and Fernandez's criminal history, the discrepancy is not sufficient to establish that Fernandez's life sentence was grossly disproportionateSee Harmelin,
We note that the need for national uniformity is not as compelling in the context of criminal law—which has been traditionally a subject of state law—as it is in other contexts which are regulated primarily by the federal governmentSee Cazarez-Gutierrez v. Ashcroft,
This logic holds true even though a conspiracy to violate RICO and a conspiracy to commit a substantive RICO violation are legally distinctSee, e.g., Corrado,
Moreover, noBlakely issue is presented by Fernandez's challenge to his RICO conspiracy conviction. As the district court noted during sentencing, "the jury did find defendant guilty of conspiracy to commit murder, in violation of [California] penal code section[s] 182 and 187, violations which carry the possibility of a life sentence."
Sanchez has been serving a state sentence of thirty-seven-years-to-life since September 1990
We note that the usual deadlines for the filing of petitions for rehearing will apply: any such petitions must be filed within fourteen days from the filing of this opinion absent an extension granted by the courtSee Fed. R.App. P. 40(a)(1).