United States v. Gomez

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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.