Filed: Sep. 17, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 99-50279 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESSE “CHANGO” GOMEZ, JR., also known as Changito Gomez; PETE CARRION; REMIGIO “TITO” GOMEZ; ROBERT “ROBE” HERRERA, also known as Rove Herrera, Jr.; JUAN “JON JON” JOHNS; MARTIN “PANCAKE” ORTEGON; ROBERT “BEAVER” PEREZ; VICTOR “TITO” PENA; MICHAEL PEREZ; LOUIS “BIG LOU” MORALES, Defendants-Appellants. _ Appeal from the United States District Court for the Western Dist
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 99-50279 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESSE “CHANGO” GOMEZ, JR., also known as Changito Gomez; PETE CARRION; REMIGIO “TITO” GOMEZ; ROBERT “ROBE” HERRERA, also known as Rove Herrera, Jr.; JUAN “JON JON” JOHNS; MARTIN “PANCAKE” ORTEGON; ROBERT “BEAVER” PEREZ; VICTOR “TITO” PENA; MICHAEL PEREZ; LOUIS “BIG LOU” MORALES, Defendants-Appellants. _ Appeal from the United States District Court for the Western Distr..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50279
_____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
JESSE “CHANGO” GOMEZ, JR., also
known as Changito Gomez; PETE
CARRION; REMIGIO “TITO” GOMEZ;
ROBERT “ROBE” HERRERA, also
known as Rove Herrera, Jr.;
JUAN “JON JON” JOHNS; MARTIN
“PANCAKE” ORTEGON; ROBERT
“BEAVER” PEREZ; VICTOR “TITO”
PENA; MICHAEL PEREZ; LOUIS
“BIG LOU” MORALES, Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-98-CR-265-6)
_________________________________________________________________
September 16, 2002
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:1
This appeal arises from convictions of drug traffickers
alleged to be members of the “Texas Mexican Mafia.” The record is
replete with evidence of murders, extortion, drug dealing and
robberies. Jesse Gomez, Jr., Pete Carrion, Remigio Gomez, Robert
Herrera, Juan Johns, Martin Ortegon, Robert Perez, Victor Pena,
Michael Perez, and Louis Morales (“Appellants”) were convicted of
racketeering and racketeering conspiracy. Each was sentenced to
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
life imprisonment. They appeal their convictions and sentences on
numerous grounds. Finding no reversible error, we AFFIRM.
I
Appellants were indicted, along with six other individuals,
for racketeering and racketeering conspiracy, in violation of 18
U.S.C. § 1962(c) and (d). The indictment alleged 22 racketeering
acts, including 15 murders, two attempted murders, two robberies,
and possession with intent to distribute marijuana, cocaine, and
heroin; and 35 overt acts in furtherance of the racketeering
conspiracy. Appellants were alleged to be members of the Texas
Mexican Mafia, headquartered in San Antonio. The Mexican Mafia had
a written constitution that described its purposes and activities,
which expressly included drug dealing, assassination, prostitution,
“robberies of the highest degree,” gambling, extortion, weapons,
“or any and every other thing criminally imaginable.”
Appellant Robert Perez, the “General,” allegedly carried out
the wishes of unindicted co-conspirator Huerta, the President of
the Mexican Mafia, who was in prison throughout the time of the
alleged racketeering activity. The remaining Appellants were
alleged to have held the following positions in the Mexican Mafia:
Herrera was a Captain; Morales and Ortegon were Lieutenants; Jesse
and Remigio Gomez and Johns were Sergeants; and Pena, Michael
Perez, and Carrion were Soldiers.
Five of the persons indicted pleaded guilty before trial, and
one during trial. The ten remaining defendants (Appellants) were
2
convicted of both counts after a six-week trial. All were
sentenced to concurrent life terms on each count.
II
Appellants raise the following issues on appeal: (1) the
district court clearly erred in rejecting their challenge to the
Government’s strike of a prospective juror; (2) the district court
abused its discretion by denying defense motions for severance; (3)
the district court abused its discretion by denying defense motions
for transfer of venue and a hearing on the motions; (4) the
district court abused its discretion by admitting gang expert
testimony that did not satisfy Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993); (5) the district court
committed plain error by instructing the jury that the Government
need only show a minimal effect on interstate commerce; (6) the
evidence is insufficient to prove that the defendants participated
in a pattern of racketeering activity and conspired to do so, and
to prove venue and the requisite effect on interstate commerce; (7)
their convictions must be reversed because of violations of Brady
v. Maryland,
373 U.S. 83 (1963), Giglio v. United States,
405 U.S.
150 (1972), and the Jencks Act, 18 U.S.C. § 3500; (8) the district
court abused its discretion by not submitting a special verdict
form; (9) the district court committed plain sentencing error under
Apprendi v. New Jersey,
530 U.S. 466 (2000); and (10) the district
court abused its discretion by denying Ortegon a hearing on his
3
motion for a new trial.2 With the exception of the first issue
listed above, the remaining issues are without merit and we shall
dispose of them with very little discussion.
A
Peremptory Strike
Appellants objected to the Government’s peremptory strike of
Hispanic veniremember De La O.3 When asked to explain the reason
for the strike, the prosecutor stated that De La O had a very
strong accent and the Government was concerned about his ability to
communicate with other jurors, as well as the facts that he is
single and is a special education teacher. The Government’s sworn
written response stated that four persons seated at the
Government’s counsel table believed that De La O and the court had
difficulty communicating during voir dire, and that the prosecution
believed that, as a special education teacher, De La O would be
particularly sensitive and sympathetic to the circumstances of the
defendants. The district court, after reviewing the Government’s
written reasons, accepted them as race-neutral, stating:
The Court has reviewed the reasons given by
the Government as to the challenges, the
written responses of the Government. The
2
Appellants each adopt most of the issues raised by the
others.
3
Appellants also objected to other peremptory challenges by
the Government, but the only strike they raise on appeal is that of
De La O. Remigio Gomez adopts this issue despite the fact that his
counsel expressly opted out of the objection at trial; he claims
ineffective assistance of counsel.
4
court is sensitive to this matter, my parents
telling me that they are Hispanic and that
more likely that might make me one as well,
the Court is extra sensitive to that issue.
The Court recalls the questions that the Court
itself asked and responses, and the Court is
satisfied the reasons given by the Government
are not based on any racial grounds, but were
legitimate reasons for striking these
individuals and will deny the Defense motion
with regard to those five strikes that were
made by the Government as to five gentlemen
that appear to be of Latino or Hispanic
descent.
The jury was composed of eight whites and four Hispanics.
Appellants argue that the prosecutor’s reasons for striking De
La O are not race-neutral, because his Spanish accent is
intrinsically intertwined with his Hispanic ethnicity and thus
should be viewed as a surrogate for his ethnicity. They argue that
the Government’s reliance on his accent is a pretext for
discrimination, because De La O did not have any difficulty in
understanding the questions asked by the judge or communicating his
answers during voir dire, and he was a trained professional
educator who spoke fluent English. They observe that the
Government did not strike four unmarried jurors, one of whom is
also a teacher.
We review the district court’s determination that the
Government did not engage in purposeful discrimination under the
clearly erroneous standard. E.g., United States v. Pofahl, 990
F.2d 1456, 1466 (5th Cir. 1993). “Unless a discriminatory intent
is inherent in the prosecutor’s explanation, the reason offered
5
will be deemed race neutral.” Hernandez v. New York, 500 U.S. 352,
357 (1991). Great deference is given to the district court’s
finding, because it is based primarily on an evaluation of the
credibility or demeanor of the attorney who exercises the
challenge.
Id. at 365.
The Ninth Circuit recently addressed a similar situation in
United States v. Murillo, 288 F.3d 1126, 1135-37 (9th Cir. 2002),
petition for cert. filed (Jul. 24, 2002) (No. 02-5778). In that
case, the defendant, a Filipino, challenged the prosecution’s
exercise of a peremptory strike of a Filipino prospective juror.
Id. at 1135. The prosecutor offered the following reasons for the
strike: the prospective juror’s background as a casino employee,
her statement that she had never read a book, her statement that
her favorite television show was “Judge Judy,” and her difficulty
in communicating.
Id. The Ninth Circuit stated that “the various
reasons offered by the prosecution did not inherently suggest a
discriminatory intent, and indeed, were race-neutral.”
Id. at
1136. The court rejected the defendant’s contention that
“difficulty communicating implies an inherent discriminatory
intent,” noting that it had previously held that “‘[s]o long as the
prosecutor . . . can convince the district court that the potential
juror who is being struck in fact has difficulty with English, the
justification is race-neutral.’”
Id. (brackets and italics in
6
original; quoting United States v. Changco, 1 F.3d 837, 840 (9th
Cir. 1993)).
We agree with the Ninth Circuit’s observations regarding the
deference that an appellate court must give to the district court’s
factual determination when ruling on the credibility of a
prosecutor’s strike based on a juror’s difficulty in communicating:
The trial judge is in a unique position
to determine whether a witness has difficulty
communicating, and therefore we grant a high
level of deference to the district court’s
finding on this point. It is difficult to
ascertain from a transcript the level of a
juror’s command of spoken English. . . . How
slowly she spoke, whether she hesitated, how
thick her accent was, and what her body
language revealed are not recorded in a
transcript, yet these are aspects of
communication that may be considered by the
trial judge.
Id. In this case, giving due deference to the district court’s
opportunity to hear and observe both the prosecutor and De La O, we
cannot conclude that the district court clearly erred in finding
that the Government’s reasons for peremptorily striking of De La O
were not pretextual. The Government did not strike De La O because
he had a Spanish accent. Instead, the strike was based on the
prosecutors’ asserted belief that his heavy accent would cause
communication difficulties with other jurors during deliberations.
This reason is ethnically-neutral. The district court observed the
prosecutor’s demeanor. It listened to De La O during voir dire.
It was therefore in the best position to determine the credibility
of the prosecutor’s explanation and to make the ultimate finding as
7
to whether the prosecutor’s reasons for striking De La O were
pretextual.4 We will not disturb its ruling.
B
Severance
Ortegon, Carrion, Michael Perez, and Morales argue that the
district court erred by denying their motions for severance. They
maintain that they were prejudiced by the spillover effect of the
evidence of their co-defendants’ violent crimes (especially the
“French Place” murders, described as one of the worst mass murders
in recent San Antonio history) and drug dealing. Furthermore, they
argue, the district court’s instructions to the jury to consider
the evidence against each defendant separately were inadequate to
ameliorate the prejudice.
The Government responds that the alleged prejudicial evidence
would have also been admissible in separate trials to show the
existence of the enterprise, overt acts, motives for the murders
with which they were involved, and the position of trust they held
in the organization. The Government also notes that the district
court allowed the jurors to take notes to assist them in keeping
the evidence against each defendant separate. Furthermore, the
4
We find no abuse of discretion by the district court in
refusing to permit Appellants’ counsel to cross-examine the
prosecutor or look at the prosecutor’s voir dire notes. See United
States v. Clemons, 941 F.2d 321, 323 (5th Cir. 1991) (district
court has discretion to formulate procedure for testing
prosecutor’s reasons, and has discretion to limit scope and
duration of inquiry).
8
Government points out that defense counsel argued in closing that
the jury should consider the evidence against each defendant
separately.
We find no abuse of discretion. Appellants have not shown any
ground for disregarding the presumption that the jurors followed
the district court’s instructions to consider the evidence against
each defendant separately. See United States v. Cihak, 137 F.3d
252, 259 (5th Cir. 1998) (jury is presumed able to follow
instructions to consider evidence against each defendant
separately).
C
Transfer of Venue
Appellants argue that the district court abused its discretion
by denying defense motions for transfer of venue and a hearing on
their motions. They maintain that they were denied a fair trial in
San Antonio because of pervasive, prejudicial pretrial publicity.
In support of their motions, they presented 69 broadcast summaries
from San Antonio television stations, newspaper articles, and a
transcript from a state court venue proceeding, including expert
testimony about the saturation of media coverage. They note that
the publicity occurred within close proximity to the trial; that it
contained inflammatory accounts of the crimes, characterizing the
defendants as blood-thirsty and describing the French Place murders
as a slaughter, bloodbath, execution, and the worst mass murder in
recent San Antonio history; and that it included matters
9
inadmissible in evidence, such as the anticipated sentences, the
guilty pleas of co-defendants, and the statement by one defense
attorney that the other defendants were probably guilty.
Prejudice will be presumed if the defendant establishes that
it is virtually impossible to obtain an impartial jury because
prejudicial, inflammatory publicity about the case has saturated
the community from which the jury is drawn. United States v.
Parker, 877 F.2d 327, 330-31 (5th Cir. 1989). The Government may
rebut the presumption of prejudice by demonstrating that voir dire
resulted in the impaneling of an impartial jury.
Id. at 331.
Alternatively, a defendant may obtain relief if he establishes that
pretrial publicity created a significant possibility of prejudice
and that the voir dire procedure failed to provide a reasonable
assurance that prejudice would be discovered. United States v.
Beckner,
69 F.3d 1290, 1292 (5th Cir. 1995). The defendant is
entitled to an evidentiary hearing when the allegations are
“sufficiently definite, specific, detailed, and nonconjectural to
enable the court to conclude that a substantial claim is
presented.” United States v. Smith-Bowman,
76 F.3d 634, 637 (5th
Cir. 1996) (internal quotation marks and citation omitted).
Appellants argue that they have established presumptive
prejudice. Alternatively, they contend that they demonstrated a
significant possibility of prejudice. They note that 85 percent of
the prospective jurors admitted that they had been exposed to
pretrial publicity; a majority of those had heard about the trial
10
and the French Place murders within the week preceding the trial;
and 11 of the 12 jurors selected said that they had been exposed to
pretrial publicity concerning the trial, the Mexican Mafia, and the
French Place murders. As proof of the inadequacy of the voir dire
procedure, they observe that the court did not allow questioning by
counsel or the use of a jury questionnaire. They also point out
that, prior to the jury being sworn, one of the jurors who had been
selected approached the district court and said that she could not
be fair because she had been influenced negatively by pretrial
publicity. (She was excused.)
Although the question may be close, we conclude that there was
no abuse of discretion. Even assuming that Appellants established
presumptive prejudice, the presumption was rebutted by the
selection of a fair jury. The district court first questioned the
venire as a group, and excused those who said that they might be
affected by pretrial publicity. It then questioned each remaining
veniremember individually, excusing for cause all who indicated
that they might have been affected. All of the jurors selected
indicated that they had not been affected by the publicity; and all
jurors stated that they would accord the presumption of innocence
to all of the defendants. Contrary to the Appellants’ argument,
that one of the jurors approached the district court and said that
she could not be fair demonstrates the effectiveness of the voir
dire procedure in revealing prejudice.
D
11
Admission of Testimony About Gangs
Appellants argue that their convictions must be reversed
because the district court admitted gang expert testimony that did
not satisfy the requirements of Daubert. They argue that the
expert was unable to point to any peer-reviewed articles or other
literature in the field and had no formal education in gang-related
activities. The Government asks us to strike this argument because
Appellants do not specify what testimony they believe was admitted
in error or how it prejudiced them. The Government notes that the
witness, a San Antonio Police Department detective with 31 years of
experience, testified on a variety of subjects, including the
activities and purposes of the Mexican Mafia, and he offered a
translation of correspondence between Mexican Mafia members about
Mexican Mafia activities. The Government did not offer the witness
as an expert, and it argues that most of his testimony was factual
and dealt with information he had learned in his capacity as a law
enforcement officer. To the extent he expressed any opinions, the
Government argues that they are admissible as lay opinions under
Federal Rule of Evidence 701, because they are based on personal
knowledge of the facts. Alternatively, the Government argues that
any error is harmless because the witness would have qualified as
an expert witness under Federal Rule of Evidence 702 and, in any
event, his testimony was cumulative.
We find no abuse of discretion by the district court. Even
assuming this issue was adequately briefed (which is marginal), and
12
further assuming that the testimony was admitted erroneously,
Appellants have not demonstrated that their substantial rights were
affected. See FED. R. EVID. 103(a).
E
Jury Instructions
Appellants argue that the district court erred by instructing
the jury that the Government need only show a minimal effect on
interstate commerce. They maintain that the Government was
required to demonstrate that their activities had a substantial
effect on interstate commerce. The Government notes that none of
the Appellants objected to the instruction, none of them submitted
proposed instructions requiring the jury to find a substantial
effect on interstate commerce, and two of them (Remigio Gomez and
Robert Perez) proposed instructions requiring only a minimal effect
and thus invited the error of which they complain. See United
States v. Baytank (Houston), Inc., 934 F.2d 599, 606-07 (5th Cir.
1991). The Government contends that even if there was an error, it
was not plain and, in any event, it was harmless because the
evidence shows a substantial effect on interstate commerce.
Five circuits have held that it is not necessary to show that
a RICO enterprise’s effect on interstate commerce is substantial.5
5
United States v. Marino, 277 F.3d 11, 34-35 (1st Cir.)
(rejecting contention that government was required to show that
enterprise’s activity had a substantial effect on interstate
commerce and approving instruction that “[t]he evidence need not
show any particular degree of or effect on interstate commerce.
All that is required is some effect on interstate commerce.”),
13
Neither the Supreme Court nor our court has decided this issue.
See United States v. Robertson, 514 U.S. 669, 670-72 (1995)
(leaving open question whether RICO enterprise’s activities must
“substantially affect” interstate commerce where enterprise was
engaged in commerce). Under the circumstances of this case, we
need not decide whether the instruction was erroneous, because even
assuming that it was, any error would not be plain given the
unsettled state of the law both in the Supreme Court and in this
circuit, and the overwhelming evidence of drug trafficking involved
in this RICO enterprise. Accordingly, we hold that the district
court did not commit plain error by instructing the jury that the
Government need prove only a minimal effect on interstate commerce.
F
Sufficiency of the Evidence
cert. denied, 122 S. Ct. 2639 (2002); United States v. Riddle,
249
F.3d 529, 537 (6th Cir.) (“de minimis connection suffices for a
RICO enterprise that ‘affects’ interstate commerce”), cert. denied,
122 S. Ct. 292 (2001); United States v. Juvenile Male,
118 F.3d
1344, 1348 (9th Cir. 1997) (“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”); United States v. Miller,
116 F.3d 641, 673-
74 (2d Cir. 1997) (approving instructions in RICO case that effect
of enterprise’s activities on interstate commerce does not need to
be substantial and that a minimal effect is sufficient); United
States v. White,
116 F.3d 903, 926 & n.8 (D.C. Cir. 1997)
(approving instruction that “evidence need not show any particular
degree of effect on interstate commerce” and explaining that,
because RICO enterprise was engaged in drug trafficking, there was
a substantial effect on or relation to commerce; therefore, fact
that district court did not require jury to find that conspiracy
affected interstate commerce to any particular degree was
irrelevant).
14
Appellants contend that the Government presented insufficient
evidence that they participated in a pattern of racketeering
activity and conspired to do so, and to prove venue and the
requisite effect on interstate commerce. We address each of these
contentions separately. We note at the outset, however, that
Appellants’ insufficient evidence arguments are based largely on
challenges to the credibility of Mexican Mafia members who
testified against them. They argue that the testimony of admitted
psychotic, hallucinogenic, and drug-addicted co-defendants
(Estrada, Carrasco, and Torres) who were seeking entry into the
federal witness protection program was not credible. We reject
these challenges to the credibility of the Government’s witnesses.
“It is well settled that credibility determinations are the sole
province of the jury.” United States v. Cathey, 25 F.3d 365, 368
(5th Cir. 2001). “The jury has responsibility for determining the
weight and credibility of testimony and evidence, even from co-
conspirators.” United States v. Green,
293 F.3d 886, 895 (5th Cir.
2002).
1
Pattern of Racketeering Activity
Appellants argue that the evidence is insufficient to prove
that they engaged in a pattern of racketeering activity, because
the evidence of the predicate racketeering acts is insufficient.
We consider each challenged predicate act separately.
a
15
Ortegon: Possession with Intent to Distribute Cocaine
We reject Ortegon’s contention that the evidence was
insufficient to prove that he possessed cocaine with the intent to
distribute it. A bag full of cocaine, as well as plastic bags used
to package cocaine, were found in a car driven by Herrera, under
the passenger seat occupied by Ortegon, who had a fully loaded
revolver tucked in his waistband. Ortegon argues that the evidence
was insufficient to prove that he knew the cocaine was under his
seat. He notes that Herrera pleaded guilty to possession of the
cocaine in state court, while the charges against him were
dismissed. In the light of other evidence that Ortegon was a drug
dealer and a gang leader, the jury reasonably could have concluded
that Ortegon knew the cocaine was present and was armed to protect
it.
b
Ortegon: Murder of Peralez
Ortegon also argues that the evidence was insufficient to
prove his involvement in the murder of Peralez. Former Mexican
Mafia member Estrada testified that Appellant Herrera ordered him
and Ortegon to murder Peralez; and that, on a signal from Herrera,
he (Estrada) shot Peralez, but Ortegon did not fire his weapon.
Ortegon argues that Estrada’s testimony is not credible. We
conclude that the evidence was sufficient to find Ortegon guilty of
murder under the law of the parties, on which the jury was
instructed. Estrada’s admission that he was the only one who shot
16
Peralez lends credibility to his testimony that Ortegon was with
him. In any event, such credibility determinations are for the
jury, not this court, to make.
c
Ortegon and Michael Perez: Murder of Adames
Ortegon and Michael Perez contest the sufficiency of the
evidence offered by the Government to prove that they were guilty
of the murder of Adames.
Estrada testified: Michael Perez and Ortegon were present at
a meeting at Robert Perez’s house during which the murder of Adames
was planned; Michael Perez drove the car to the scene and blocked
Adames’s means of escape; Ortegon got out of the car with a gun;
Estrada shot Adames and heard a lot of other gunshots; and after
the shooting, Michael Perez drove the shooters to a truck, where
they unloaded their weapons. Carrasco, who was also present,
testified that everyone (Herrera, Ortegon, Estrada and himself)
except Michael Perez got out of the car and shot at Adames. The
medical examiner found that Adames had been shot 11 times with
three different weapons. Ortegon and Michael Perez argue that
Carrasco and Estrada were not credible witnesses, inasmuch as they
were drug addicts testifying in exchange for leniency. In
addition, Michael Perez relies on defense witness Sanchez’s
testimony that Michael Valdez, not Michael Perez, was the driver of
the car involved in the Adames murder. He also notes that the
Government substituted his name for that of Michael Valdez in a
17
search warrant only after he refused to cooperate against his uncle
(Appellant Robert Perez).
We conclude that the evidence was sufficient to convict
Ortegon and Michael Perez under the law of the parties, as to which
the jury was instructed. We repeat: Decisions about the
credibility of witnesses are for the jury.
d
Ortegon and Michael Perez: Murder of Ybarra
Ortegon and Michael Perez also challenge the sufficiency of
the evidence that they murdered Ybarra. They assert that Estrada’s
and Carrasco’s testimony that Ortegon shot Ybarra, and that Michael
Perez drove the car to and from the murder scene, is not credible.
The jury was entitled to determine the credibility of
Estrada’s and Carrasco’s testimony. In addition to their
testimony, the Government presented other corroborating evidence,
including the in-court identification of Ortegon as the shooter by
eyewitness Marco Gonzalez. The Government also presented evidence
that Michael Perez was present at the meeting when the murder was
planned; that he drove the vehicle to the scene of the murder; and
that, after the shooting, he drove the shooters to a truck, where
they unloaded their weapons.
e
Carrion and Morales: Possession with Intent
to Distribute Marijuana
18
Carrion and Morales argue that the evidence was insufficient
to prove that they possessed marijuana with the intent to
distribute it. Former Mexican Mafia member Jesse Torres testified:
he saw 50 pounds of marijuana at Morales’s mother’s home; Morales,
Carrion, and Escalante had been told by Robert Perez to steal the
marijuana from someone; after they stole the marijuana, someone
else called Robert Perez to have him come pick it up; when Robert
Perez arrived at Morales’s mother’s house, Morales, Carrion, and
Escalante were weighing and dividing it; Robert Perez gave each of
them a pound and then sold the rest to someone in Houston. Carrion
and Morales argue that this evidence is insufficient because Torres
was a liar and heroin addict and thus his testimony was not
credible. We reject that contention. It was up to the jury
whether to believe Torres’s testimony.
f
Carrion and Morales: Murder of De Los Santos
Carrion and Morales challenge the sufficiency of the evidence
offered to prove their participation in the murder of De Los
Santos.
Munoz testified: he instructed Flores to have his crew kill
De Los Santos because he was talking to outsiders about the French
Place murders; Munoz drove De Los Santos to a bar under the guise
of having him assist Morales and Carrion with a hijacking;
Carrion’s rental car was parked outside the bar and Morales and
Carrion were inside; he left the bar five-ten minutes later,
19
leaving De Los Santos with Morales and Carrion; later, Flores told
him that De Los Santos was dead. Munoz admitted that he did not
see De Los Santos murdered and did not know who had killed him.
Although Munoz testified that he did not see Torres at the
bar, Torres testified that he was there, along with Davila and
Flores, when Munoz and De Los Santos arrived. Torres testified
further that Flores later told him De Los Santos had been killed;
and that he later heard Morales bragging about the murder and
laughing about how he had choked De Los Santos. The medical
examiner testified that the cause of death was most likely a
combination of blunt injuries to the head and strangulation,
although the injuries that appeared to be caused by strangulation
could have been caused by blunt trauma from being hit by a vehicle.
The manager of the rental car agency testified that, when Carrion’s
rental car was returned, there were no signs of damage consistent
with it having hit a person.
Morales and Carrion argue that there is no physical evidence
to connect them to the murder; no one saw De Los Santos murdered;
and both Munoz and Torres testified that they did not know who
killed De Los Santos. Morales notes that Carrion testified at
trial that Morales did not kill De Los Santos. For the first time
in his reply brief, Morales states that, after trial, Carrion
obtained an affidavit in which co-defendant Pena admitted murdering
De Los Santos.
20
Although circumstantial, the evidence was sufficient.
Appellants’ challenges are based primarily on their contention that
the testimony of Munoz and Torres was not credible. We refuse to
consider Morales’ claim that Pena murdered De Los Santos, raised
for the first time in his reply brief. See United States v.
Garcia-Abrego, 141 F.3d 142, 168 n.14 (5th Cir. 1998).
g
Johns: Attempted Murder of Castillo
Johns contends that the evidence is insufficient to prove that
he attempted to murder Castillo. Johns and Castillo were
cellmates. Castillo was a member of a different, rival gang.
While Castillo was sleeping, Johns stabbed him 22 times in the head
and neck with a shank that had a two and one-half inch blade.
Castillo fought back and held onto Johns’ legs until prison guards
arrived. As Castillo held Johns down, Johns said, “If you let me
go, ----, I’ll stab you again.” In a search of the cell after the
incident, guards found a torn-up note in the toilet that included
the instruction to “hit to kill.” Johns argues that the evidence
is insufficient to convict him of attempted murder because the
evidence does not prove that he intended to kill Castillo or that
he inflicted serious bodily injury on Castillo. He notes that
Castillo was able to walk to the infirmary, that none of his stab
wounds required sutures, and that there was no evidence that
Castillo was in danger of death from his wounds. Johns admits that
he used a deadly weapon, and that specific intent to kill may be
21
inferred from such use; but he claims that the manner in which he
used the weapon makes it reasonably apparent that he did not intend
to cause death or serious bodily injury.
We conclude that the evidence is sufficient to prove that
Johns attempted to murder Castillo. The fact that Castillo’s
struggle prevented Johns from inflicting a fatal wound does not
preclude the jury from inferring, based on all of the
circumstances, that Johns acted with specific intent to kill. The
Government was not required to prove that Johns caused serious
bodily injury because that is not an element of attempted murder.
h
Michael Perez: Association with Enterprise and
Participation in Its Affairs
Michael Perez argues that the evidence is insufficient to
prove that he associated with the enterprise and participated in
its affairs. He contends that the Government failed to prove that
he was a member of the Mexican Mafia; instead, it showed only a
familial relationship with his uncle, Appellant Robert Perez. He
argues that there is no evidence that he was employed by or
associated with the enterprise or that he intentionally
participated in its affairs. Although there was testimony that he
was present at meetings at which murders were discussed, and that
he drove the murderers to and from the scenes of at least two of
the murders, he argues that there is no evidence that he
22
participated in the meetings or that he was there for any other
reason than that he is the nephew of Robert Perez.
We conclude that the evidence is sufficient. Carrasco and
Estrada both testified that Michael Perez was a member of the
Mexican Mafia. The Government also introduced a photograph of
Michael Perez with Mexican Mafia members Herrera, Ortegon, and
Carrasco. There was also evidence that he helped clean bullets
used in the murders. The jury was entitled to infer that he would
not have been allowed to be present at murder-planning meetings and
to drive the shooters to and from the scenes of the murders unless
he was a member of the Mexican Mafia.
i
Remigio Gomez: Attempted Murder of Grant
Remigio Gomez contends that the evidence is insufficient to
prove that he attempted to murder Grant. Mexican Mafia member
Tavitas testified that Remigio Gomez shot Grant during a hijacking
conducted by a crew led by Appellant Jesse Gomez. Another Mexican
Mafia member, Munoz, testified that Jesse Gomez told him that
Remigio Gomez shot Grant. Remigio Gomez argues that this evidence
is insufficient to prove that he committed attempted murder. He
argues that Texas law requires the prosecution to prove that the
act was intentional rather than an accident; yet the Government has
conceded that he panicked when he shot Grant. He claims that
Grant’s appearance surprised him, and that he panicked and
accidentally discharged the shotgun in Grant’s direction when Grant
23
reached out to push the weapon away. He concedes, however, that at
trial he presented an identity defense and did not argue that the
shooting was an accident. The Government notes that there is no
evidence that Grant touched the shotgun or attempted to push it
away. It also notes that the photograph of Grant’s wounds does not
support the theory that the gun accidentally discharged; instead,
it appears that Grant had been pushed down onto his knees and then
shot.
We conclude that the evidence is sufficient. As the
Government notes, the fact that Remigio Gomez panicked is not
relevant to the issue of his intent, and the jury reasonably could
have concluded that he intended to kill Grant when he pointed the
shotgun at him and pulled the trigger.
2
Racketeering Conspiracy
Appellants’ challenges to the sufficiency of evidence of
conspiracy are, again, based primarily on their attacks on the
credibility of the Government’s witnesses. In addition, some of
them argue that the Government failed to prove each overt act
alleged in the indictment. Finally, some of them argue that their
participation in the various overt and predicate racketeering acts
is insufficient to prove that they knew of and agreed to the
overall objectives of the enterprise.
We conclude that the evidence is sufficient. As stated,
credibility choices are for the jury. The Government was not
24
required to prove each overt act alleged in support of the
racketeering conspiracy. See 18 U.S.C. § 1962(d); Salinas v.
United States, 522 U.S. 52, 62 (1997) (RICO conspiracy statute, 18
U.S.C. § 1962(d), does not require proof of overt act). There is
sufficient evidence to show that each Appellant participated in at
least some of the predicate and overt acts. This evidence,
together with their membership in the Mexican Mafia, whose written
constitution describes the illegal purposes and objectives of the
organization, is indeed evidence that they knew of and agreed to
the overall objectives of the enterprise.
3
Effect on Interstate Commerce
Appellants contend that the Government presented insufficient
evidence that the activities of the enterprise had a substantial
effect on interstate commerce. Alternatively, they argue that,
even if only a minimal effect on interstate commerce is required,
the Government failed to prove any effect. They argue that all of
the alleged criminal acts took place in and around San Antonio, and
that the evidence of interstate communication (written and
telephonic) was, at best, incidental to the operation of the
enterprise.6
6
As we have earlier noted, Appellants did not object to the
jury instructions, which required the jury to find only a minimal
effect on interstate commerce. In cases in which the Government
fails to object to jury instructions, we have held that the
unobjected-to instructions, even if erroneous, become the law of
the case, and we have judged the sufficiency of the evidence in
25
The Government responds that, although only a minimal effect
is required, it proved that the activities of the enterprise had a
substantial effect on interstate commerce. The Government relies
on the following evidence: The Mexican Mafia engaged in drug
trafficking and extorted a ten percent “tax” from drug dealers.
Those who did not pay the tax were robbed or murdered. The money
and property collected and stolen were used to finance the purchase
of money orders that were mailed to Mexican Mafia members, many of
whom were in prison, some in states outside of Texas. A letter
from a Mexican Mafia member to Appellant Robert Perez referred to
the availability of pure, uncut cocaine from Colombia. Mexican
accordance with the law established in the jury instructions. See
United States v. Spletzer, 535 F.2d 950, 954 (5th Cir. 1976)
(element of specific intent became law of the case where defendant
was indicted for “knowingly, wilfully and unlawfully escaping” and
court instructed jury, without objection, that specific intent was
required for conviction; therefore, court did not need to decide
whether specific intent was an element of the offense; conviction
reversed because Government failed to present sufficient evidence
of specific intent); United States v. Taylor,
933 F.2d 307, 310
(5th Cir. 1991) (although statute did not require proof of specific
intent, it became an element under law of the case doctrine when
defendant was indicted for willfully escaping federal custody and
government failed to object when court instructed jury that
specific intent was an element; evidence was sufficient to prove
specific intent).
We have not found any cases applying this principle in cases
in which the defendant fails to object to a jury instruction and
then challenges the sufficiency of the evidence on a ground that is
not consistent with the jury instructions. Were we to apply the
principle established in those cases in this case, evidence that
the enterprise’s activities had a minimal effect on interstate
commerce would be sufficient. We do not reach that question,
however, in the light of our conclusion that the Government
presented evidence sufficient to establish that the enterprise’s
activities had a substantial effect on interstate commerce.
26
Mafia business was conducted by mail, including through letters
from Mexican Mafia president Huerta, who was in prison in Kansas
and then in Colorado, that were mailed to Texas. Mexican Mafia
members used telephones and pagers to communicate Mafia business,
and some of the telephone calls were placed from Texas to Mexican
Mafia members in out-of-state prisons. Membership in the Mexican
Mafia was not limited to Texas residents or Texas prisoners; some
members were from California.
As we have previously noted, neither the Supreme Court nor our
court has decided whether a RICO enterprise’s activities must
“substantially” affect interstate or foreign commerce, or whether
proof of a minimal effect is sufficient. It is not necessary for
us to decide that issue in this case because the Government
presented evidence that the activities of the Mexican Mafia satisfy
the interstate commerce requirement for constitutionality of the
act.
At the outset, we note that Congress has made persuasive
findings that organized crime and drug trafficking, both of which
are activities in which the Mexican Mafia was engaged, have a
substantial effect on interstate commerce. In enacting RICO,
Congress made the following findings regarding the effect of
organized crime on interstate commerce:
. . . organized crime in the United States
annually drains billions of dollars from
America’s economy by unlawful conduct and the
illegal use of force, fraud, and corruption; .
. . organized crime activities in the United
27
States weaken the stability of the Nation’s
economic system, . . . [and] seriously burden
interstate and foreign commerce.
Congressional Statement and Findings of Purpose, Organized Crime
Control Act, Pub. L. No. 91-452, 84 Stat. 922, 922-23 (1970).
Congress has also found that drug trafficking substantially
affects interstate commerce:
(3) A major portion of the traffic in
controlled substances flows through interstate
and foreign commerce. Incidents of the
traffic which are not an integral part of the
interstate or foreign flow, such as
manufacture, local distribution, and
possession, nonetheless have a substantial and
direct effect upon interstate commerce
because--
(A) after manufacture, many controlled
substances are transported in interstate
commerce,
(B) controlled substances distributed
locally usually have been transported in
interstate commerce immediately before their
distribution, and
(C) controlled substances possessed
commonly flow through interstate commerce
immediately prior to such possession.
(4) Local distribution and possession of
controlled substances contribute to swelling
the interstate traffic in such substances.
(5) Controlled substances manufactured
and distributed intrastate cannot be
differentiated from controlled substances
manufactured and distributed interstate.
Thus, it is not feasible to distinguish, in
terms of controls, between controlled
substances manufactured and distributed
interstate and controlled substances
manufactured and distributed intrastate.
28
(6) Federal control of the intrastate
incidents of the traffic in controlled
substances is essential to the effective
control of the interstate incidents of such
traffic.
21 U.S.C. §§ 801(3)-(6). See United States v. Lopez, 2 F.3d 1342,
1366 n.50 (5th Cir. 1993) (noting “the now unchallenged federal
authority over intrastate as well as interstate narcotics
trafficking,” and observing that “all drug trafficking, intrastate
as well as interstate, has been held properly subject to federal
regulation on the basis of detailed Congressional findings that
such was necessary to regulate interstate trafficking”), aff’d,
514
U.S. 549 (1995); see also
White, 116 F.3d at 926 & n.8 (substantial
effect on interstate commerce established where RICO enterprise was
engaged in drug trafficking).
The activities of the Mexican Mafia -- narcotics trafficking,
extortion from individuals engaged in narcotics trafficking, and
committing other organized crime, including murders, to extort
money and avoid detection -- clearly are among the kinds of
activities that Congress has found to have a substantial effect on
interstate commerce. The record contains overwhelming evidence
that the Mexican Mafia engaged in drug trafficking, as well as
extortion from drug dealers. The murders alleged as predicate acts
were closely related to the enterprise’s drug trafficking and
extortion activities. There is evidence that at least some of the
illegal drugs were obtained from sources outside the State of
Texas. Instrumentalities of interstate commerce were used to
29
conduct the business of the Mexican Mafia, and some of that
business was conducted across state lines. Thus, the evidence
presented in this case is sufficient to establish the interstate
commerce element of the RICO charges.
4
Venue
Appellants argue that the Government failed to prove that any
of the acts took place in the Western District of Texas, as alleged
in the indictment. They do not argue that venue was improper.
In denying motions for acquittal on this ground, the district
court, relying on maps of the areas where various acts took place,
and noting that many of the acts occurred within the city limits of
San Antonio, took judicial notice of the fact that San Antonio is
in the Western District of Texas. Appellants argue that the
evidence was insufficient for the court to take judicial notice of
venue. We disagree. The evidence showed that San Antonio was the
headquarters of the Mexican Mafia and the area in which it
operated. As Appellants acknowledge, most of the predicate acts
took place in San Antonio. In the light of this evidence, as well
as the maps of the area that were admitted into evidence, the
district court did not err by taking judicial notice of the fact
that San Antonio is in the Western District of Texas.
G
Brady, Giglio, and Jencks
30
Appellants argue that their convictions must be reversed
because of violations of Brady, Giglio, and the Jencks Act.7 They
contend that the Government violated due process and the Jencks Act
by failing timely to provide to the defense the following items:
(a) letters drafted by or on behalf of Government witness Estrada;
(b) Estrada’s immunity agreement; (c) papers signed by Estrada; (d)
a written statement provided to police by Frank Rios; (e) a written
statement provided to police by Mario Sanchez; and (f) a report
written by Detective Bellamy. They contend that they were
prejudiced because the failure timely to provide these documents
prevented defense counsel from conducting effective cross-
examination. We address each item in turn.
1
Estrada Letters
Estrada sent FBI Agent Appleby three letters, the first of
which was lost. Agent Appleby testified that the first letter was
written for Estrada by another inmate. In it, Estrada offered to
cooperate by providing information about the Mexican Mafia. He
also related a threat that the Mexican Mafia had made against his
life. The second letter listed homicides about which Estrada had
information. Both this second and the third letters were provided
to defense counsel during trial. After the letters were provided,
7
Although Appellants also refer to violations of Brady and
Giglio, their arguments focus primarily on alleged Jencks Act
violations.
31
defense counsel were allowed to question Agent Appleby about them.
The district court denied defense motions to strike Estrada’s
testimony. Estrada then was recalled to the stand and defense
counsel were allowed to further cross-examine him. The Government
concedes that there is no good-faith exception to the Jencks Act,
but argues that the district court, in refusing to strike Estrada’s
testimony, implicitly found that the first letter, which was lost,
was not material or important to the defense.
Appellants have not demonstrated that they were harmed by the
delay in producing the second and third letters, because they were
allowed to cross-examine Agent Appleby and Estrada after receiving
them. The district court did not err by refusing to strike
Estrada’s testimony because of the failure to produce the first
letter, because Agent Appleby’s testimony about that letter shows
that it was not material to the defense. In any event, even if
there was error, it was harmless.
2
Estrada Immunity Agreement
The Government asserts that, although it is clear that Estrada
was granted immunity (he testified about it), there is no evidence
of the existence of a written immunity agreement. Even assuming
such an agreement exists, it is not a statement of a witness and
thus is not covered by Jencks. In the light of Estrada’s testimony
about his grant of immunity, Appellants were not prejudiced by the
failure to produce a written agreement (assuming it exists).
32
3
Papers Signed by Estrada
Estrada testified that he had signed some papers when he met
with Agent Appleby, but he did not know the contents of the papers
because he does not read or write. At a Jencks hearing, Agent
Appleby testified that he never had Estrada sign any statements.
The Government notes that Appellants did not ask the district court
to make a ruling after the Agent’s testimony. Appellants have
failed to demonstrate that the papers existed or that, if they
exist, they are statements covered by the Jencks Act or that they
were material to the defense.
4
Rios Statement
Government witness Rios testified that he had given a written
statement to a detective when he was arrested on a motion to revoke
his probation, but that the statement did not address the matters
covered in his testimony at Appellants’ trial. Pena’s counsel
acknowledged receipt of the statement after Rios had testified.
The only Appellant who asked to have Rios re-called was Johns, who
has not raised this issue on appeal. The Government asserts that
this issue was not preserved for appeal because defense counsel
failed to submit a copy of the statement for the record.
Even assuming the issue was preserved, there is no showing
that Appellants were prejudiced by the delay in receiving the
33
statement. The statement is not covered by the Jencks Act, because
it is not related to the subject matter of Rios’s testimony.
5
Sanchez Statement
Mario Sanchez was a defense witness called by Michael Perez.
During cross-examination, the Government referred to his sworn
statement, and defense counsel claimed they had not received it.
Although the Government stated that it had provided a copy along
with the police report, the district court ruled that the
Government could not use the statement for impeachment and ordered
the Government to provide it to defense counsel. The Government
did so the next day. The only Appellant who asked to re-call the
witness was Johns, who does not raise this issue on appeal.
The Jencks Act does not cover statements of defense witnesses.
Appellants do not allege, nor did they obtain a ruling, that the
statement contains material exculpatory information. In any event,
Appellants do not assert that the delay in receiving the document
prejudiced them.
6
Detective Bellamy’s Notes
The Government provided defense counsel with four or five
pages of Detective Bellamy’s notes, with some deletions.
Appellants sought the entire document. Because it named
informants, the Government asked the district court to review it in
camera to determine whether it contained impeachment or exculpatory
34
information. The district court denied defense counsel’s request
for the entire document, explaining that it was not Jencks material
because Bellamy was not a witness, and that it did not contain any
Brady or Giglio material. We find no error by the district court
in this ruling.
H
General Verdict Form
Appellants contend that, in this complex criminal RICO trial
involving multiple defendants, dozens of alleged predicate acts,
and considerable opportunity for juror confusion and disagreement,
the district court violated their due process rights by submitting
a general verdict form, which asked only whether each of the
defendants was guilty of the crimes charged in counts 1 and 2 of
the indictment. The Appellants concede that the district court
instructed the jurors that they must reach a unanimous verdict as
to each racketeering act alleged to have been committed by each
defendant. They argue, however, that the general verdict form did
not adequately ensure that the jury recognize that it must
unanimously agree as to each defendant’s involvement in the same
two or more specific predicate racketeering acts. They contend
that a special verdict form was required by due process as a
safeguard to ensure that the jury followed the court’s
instructions. Some of the Appellants also argue that a special
verdict form was necessary for the conspiracy count so that the
jury could specify which overt acts each defendant had committed.
35
The Government responds that special verdicts traditionally have
been disfavored in criminal cases, and that the use of a general
verdict form did not result in due process violations at
sentencing.
We find no abuse of discretion or due process violation in the
use of a general verdict form in this case. The district court
instructed the jury that, to convict on the substantive count, it
had to agree unanimously that each defendant committed at least two
predicate acts, and that it must unanimously agree as to which two
or more specific predicate acts each defendant committed. It
further instructed the jury that it was not sufficient that some of
the jurors find that the defendant under consideration committed
two of the acts, while other jurors find that the defendant
committed different acts.
The record here indicates that the district court’s
instructions were clear, and that Appellants were not prejudiced by
the use of a general verdict form. Appellants have offered no
basis for disregarding the presumption that the jury followed its
instructions. Because commission of an overt act is not an element
of RICO conspiracy, see Salinas, 522 U.S. at 62, the district court
did not abuse its discretion by not submitting a special verdict
requiring the jury to designate the overt acts committed by each
defendant.
I
Apprendi
36
Appellants argue that their sentences were imposed in
violation of Apprendi (decided a year after they were sentenced),
because the district court enhanced their sentences to life
imprisonment, in excess of the statutory maximum 20-year term, on
the basis of facts (murder, attempted murder, and aggravated
robbery) not alleged in the indictment, presented to the jury, and
found by the jury beyond a reasonable doubt. Appellants contend
that, because they were charged with more racketeering acts than
the two necessary for conviction, some of which are not punishable
by life imprisonment, the general verdict form makes it impossible
to tell whether the jury found them guilty of predicate acts
punishable by life imprisonment. Some of the Appellants argue that
the district court committed Apprendi error by failing to submit to
the jury the drug quantity element of the predicate acts involving
marijuana and cocaine. Some of them also argue that the district
court did not instruct the jury on the elements of the predicate
racketeering acts.
There is no Apprendi indictment error, because the indictment
alleged the facts of the racketeering acts that were the basis of
the enhanced sentences. There is no Apprendi instructional error,
because the district court instructed the jury on the elements of
each of the predicate racketeering acts and instructed that the
jury’s verdict must be unanimous as to each of the two or more
specific racketeering acts alleged to have been committed by each
defendant. Because there were no sentence enhancements based on
37
the drug racketeering acts, the district court did not violate
Apprendi by failing to submit the drug quantity element to the
jury. Finally, the district court did not err by failing to
instruct the jury as to overt acts, because proof of overt acts is
not necessary for a RICO conspiracy conviction. See Salinas, 522
U.S. at 62. There was no Apprendi sentencing error, because the
jury necessarily found that each Appellant committed at least one
predicate act punishable by life imprisonment, as explained below
for each Appellant.
Appellant Carrion was charged with three racketeering acts:
possession with intent to distribute marijuana and two murders.
Because the jury found him guilty of racketeering, which requires
finding that he committed at least two racketeering acts, the jury
necessarily found that he committed at least one murder, which is
punishable by life imprisonment.
Ortegon was charged with four racketeering acts: possession
with intent to distribute cocaine and three murders. Thus, the
jury necessarily found that he committed at least one murder, which
is punishable by life imprisonment.
Morales was charged with only two racketeering acts, one of
which was murder. Thus, the jury necessarily found that he
committed murder, which is punishable by life imprisonment.
Jesse Gomez was charged with seven racketeering acts, one of
which was robbery and the remainder of which were murders. Thus,
38
the jury necessarily found that he committed at least one murder,
which is punishable by life imprisonment.
Because Remigio Gomez was charged with only two racketeering
acts (attempted murder and aggravated robbery), the jury
necessarily found that he committed both. Aggravated robbery is
punishable by life imprisonment.
Because Michael Perez was charged with only two racketeering
acts (both murders punishable by life imprisonment), the jury
necessarily found that he committed both.
Herrera was charged with seven racketeering acts: five
murders, one attempted murder, and possession with intent to
distribute cocaine. Because Herrera had prior felony convictions,
the attempted murder is punishable by life imprisonment. Thus, the
jury necessarily found that he committed at least one predicate act
punishable by life imprisonment.
Because Johns was charged with only two racketeering acts, one
of which was aggravated robbery, the jury necessarily found that he
committed at least one act punishable by life imprisonment.
Robert Perez was charged with eight racketeering acts: six
murders, one attempted murder (punishable by life imprisonment
because he has a prior felony conviction), and possession with
intent to distribute marijuana. Thus, the jury necessarily found
that he committed at least one act punishable by life imprisonment.
39
Because Pena was charged with only two racketeering acts
(murder and aggravated robbery), the jury necessarily found that he
committed an act punishable by life imprisonment.
J
Ortegon: Denial of Motion for New Trial
Ortegon argues that the district court abused its discretion
by denying him a hearing on his motion for new trial. He sought a
new trial on the grounds that the verdict was against the weight of
the evidence, newly discovered evidence, and perjured testimony.
He argues that the district court erred by failing to make findings
of fact independently weighing the evidence and assessing
credibility. His argument regarding newly-discovered evidence
pertains to the Estrada letters that are the subject of the Jencks
Act claim discussed above. He claims that the lost Estrada letter
was written by Ramos and that, by the time the defense was put on
notice of the lost letter, it was too late to secure Ramos as a
witness and, in any event, neither the defense nor the prosecution
knew Ramos’s whereabouts. He maintains that the testimony of Ramos
about the contents of the letter would have been material to his
guilt, but he does not indicate what Ramos’s testimony would have
been. He claims that Estrada committed perjury by testifying that
the murder of Emilio Alejandro was ordered by the Mexican Mafia.
He bases this claim on Carrasco’s knowledge that Estrada killed
Alejandro because of a personal vendetta. He also claims that his
girlfriend, Loera, committed perjury when she testified that he had
40
used heroin at her house. Finally, he asserts that the district
court should have conducted an evidentiary hearing on his motion.
The Government observes that the motion referred to an affidavit of
Loera offered to prove that she had committed perjury, but the
affidavit was not attached and is not in the record.
We find no abuse of discretion. The verdict was not against
the weight of the evidence. There is no support for the claim that
Loera committed perjury; but even if Loera’s affidavit had been
attached to the motion, and assuming its truth, the fact that she
lied when she testified that Ortegon used heroin did not affect the
outcome of the trial. There is little support for Ortegon’s
assertion that Estrada lied about his reasons for killing Alejandro
-- he might have had more than one motive. In any event, Ortegon
fails to explain how he was prejudiced.
III
For the foregoing reasons, the Appellants’ convictions and
sentences are
A F F I R M E D.
41
