FILED NOT FOR PUBLICATION JUL 19 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10632
Plaintiff-Appellee, D.C. No. 3:08-cr-00730-WHA-6 v.
JONATHAN CRUZ-RAMIREZ, AKA MEMORANDUM* Soldado,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-10635
Plaintiff-Appellee, D.C. No. 3:08-cr-00730-WHA-4 v.
MORIS FLORES, AKA Slow, AKA Slow Pain,
UNITED STATES OF AMERICA, No. 11-10638
Plaintiff-Appellee, D.C. No.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v. 3:08-cr-00730-WHA-10
ERICK DAVID LOPEZ, AKA Spooky,
UNITED STATES OF AMERICA, No. 11-10644
Plaintiff-Appellee, D.C. No. 3:08-cr-00730-WHA-3 v.
ANGEL NOEL GUEVARA, AKA Peloncito,
UNITED STATES OF AMERICA, No. 11-10645
Plaintiff-Appellee, D.C. No. 3:08-cr-00730-WHA-2 v.
MARVIN CARCAMO, AKA Cyco, AKA Psycho, AKA Syco,
UNITED STATES OF AMERICA, No. 12-10051
Plaintiff-Appellee, D.C. No. 3:08-cr-00730-WHA-5
2 v.
GUILLERMO HERRERA, AKA Shorty, AKA Sparky,
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding
Argued December 4, 2018 Submission Vacated January 11, 2019 Resubmitted July 17, 2019 Seattle, Washington
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
Defendants Jonathan Cruz-Ramirez, Moris Flores, Erick Lopez, Angel
Guevara, Marvin Carcamo, and Guillermo Herrera appeal their judgments of
convictions for their participation in RICO and VICAR conspiracies and associated
crimes in furtherance of the criminal street gang La Mara Salvatrucha (“MS-13”).1
We vacate Lopez’s conviction on Count 8 and Cruz-Ramirez’s and Herrera’s
convictions on Count 15 and remand for resentencing because these convictions
are lesser-included offenses of Counts 7 and 14, respectively. We vacate Cruz-
Ramirez’s conviction on Count 16, Lopez’s conviction on Count 9, and Carcamo’s,
1 The parties are familiar with the facts, so we need not repeat them here. 3 Guevara’s, and Flores’ convictions on Count 4 and remand for resentencing in
light of United States v. Davis, 139 S. Ct. 2319, 2336 (2019), which held that 18
U.S.C. § 924(c)(3)(B) is unconstitutionally vague. We affirm all other convictions.
1. The government concedes that the district court erred by sentencing
Lopez, Cruz-Ramirez, and Herrera to concurrent terms of life imprisonment for
their convictions under 18 U.S.C. § 924(c) and 18 U.S.C. § 924(j)—premised on
the same murders—because their convictions under § 924(c) were lesser-included
offenses of their convictions under § 924(j). Accordingly, we vacate Lopez’s
§ 924(c) conviction on Count 8 and Cruz-Ramirez’s and Herrera’s § 924(c)
convictions on Count 15 and remand for resentencing.
2. Defendants’ challenge to the constitutionality of 18 U.S.C.
§ 924(c)(3)(B) was resolved by Davis, 139 S. Ct. at 2336. Accordingly, we vacate
Cruz-Ramirez’s conviction on Count 16, Lopez’s conviction on Count 9, and
Carcamo’s, Guevara’s, and Flores’ convictions on Count 4, and remand for
resentencing.
3. The district court did not abuse its discretion by allowing the
government to introduce expert testimony on rebuttal regarding Lopez’s and
Herrera’s cell-site location information. See United States v. Koon, 34 F.3d 1416,
1429 (9th Cir. 1994) (noting the wide discretion of district courts to permit the
4 government to introduce in its rebuttal case evidence that might have been
presented in the case-in-chief), rev’d in part on other grounds, 518 U.S. 81 (1996).
This expert testimony did not prejudice the remaining defendants because the
government appropriately argued inferences in closing argument that were
premised solely on cell-site location records and testimony admitted during the
government’s case-in-chief.
4. Under the particular facts of this case, the district court permissibly
excluded Dr. Davis’ expert testimony. Pursuant to Federal Rule of Evidence 403,
the court acted within its discretion in balancing the probative value of the
proffered testimony against the risk of wasted time and juror confusion. See
United States v. Rincon, 28 F.3d 921, 925–26, 925 n.6 (9th Cir. 1994). Assuming
Herrera and Guevara preserved their Sixth Amendment objection, excluding Dr.
Davis did not infringe their Sixth Amendment right to present a defense. Several
problems with eyewitness testimony were evident from the record, which
permitted Guevara and Herrera to “present the substance of” their misidentification
defense through cross-examination and logical inferences. United States v. Waters,
627 F.3d 345, 354 (9th Cir. 2010).
5. The district court did not abuse its discretion by admitting the
Hernandez poem. The court permissibly determined the poem was not hearsay
5 because it was not offered to prove the truth of the matter asserted, and the court
appropriately exercised its discretion pursuant to Rule 403. See United States v.
Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc) (noting that a court’s Rule
403 ruling is entitled to great deference). The poem was minimally probative
because it made it somewhat more likely that Guevara was present when a crime
was committed by MS-13, or that the poem described crimes committed by MS-13.
The poem was not specifically connected to any charged crime, but other evidence
established that 20th Street clique members were violent against their rivals, that
Hernandez was a member of an affiliated gang, that she was Guevara’s girlfriend,
and that she was near him on the night of December 26, 2007. The poem only
posed a slight risk of unfair prejudice to Guevara and no risk of unfair prejudice to
other defendants. Even assuming that the poem was improperly admitted as to
Guevara, its admission was harmless because, as noted, the eyewitness
identifications of Hernandez were strong and evidence from the cell-site location
records connected both Guevara and Hernandez to the December 26, 2007
stabbings.
6. Herrera challenges four evidentiary rulings. First, we agree that the
court erred when it allowed an agent to testify about Roberto Acosta’s description
of a telephone call he received from Herrera immediately after the Estrada
6 shooting. See United States v. Fryberg, 854 F.3d 1126, 1130 (9th Cir. 2017)
(reviewing de novo alleged violations of the Confrontation Clause). This call was
testimonial because Acosta was an informant who was routinely reporting
information to law enforcement, and the circumstances objectively demonstrate
that Acosta did not make his statements to the agent during an ongoing emergency.
See United States v. Brooks, 772 F.3d 1161, 1168 (9th Cir. 2014) (citation
omitted). Nor was Acosta’s call an excited utterance. See Bemis v. Edwards, 45
F.3d 1369, 1373 (9th Cir. 1995) (“[T]he excited utterance exception is only
available if the declarant has firsthand knowledge of the subject matter of [his]
statement.”). Nonetheless, the district court’s error was “harmless beyond a
reasonable doubt,” United States v. Bustamante, 687 F.3d 1190, 1195 (9th Cir.
2012), because Acosta’s testimony described cryptic, equivocal statements from
Herrera that did not directly implicate him in criminal activity, and cell-site
location evidence and other co-conspirator testimony implicated Herrera in the
Estrada shooting.
The district court did not abuse its discretion by excluding Cruz-Ramirez’s
recorded statement in which he arguably described shooting a gun that later
jammed. See United States v. Estrada-Eliverio, 583 F.3d 669, 672 (9th Cir. 2009)
(reviewing a ruling concerning the authentication of evidence for abuse of
7 discretion). Acosta allegedly recorded Cruz-Ramirez’s statement on a wire that he
wore, but no witness was called to authenticate this recording. Acosta was
uniquely untrustworthy in light of his perjury charges, and there was at least one
incident in these proceedings in which a recorded statement was erroneously
identified. The court also observed that questions remained about how Acosta’s
recordings were created. Therefore, the court did not abuse its discretion by
concluding that the portion of the recording Herrera sought to introduce lacked a
proper foundation. See United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir.
2014) (“[T]he party offering the evidence must make a prima facie showing of
authenticity so that a reasonable juror could find in favor of authenticity or
identification.” (internal quotation marks omitted)).
Next, assuming Herrera timely objected, the court did not abuse its
discretion by admitting cooperator Jose Alvarado’s testimony describing Cruz-
Ramirez’s accounts of his participation in the Estrada shooting. The court properly
admitted this testimony under Federal Rule of Evidence 801(d)(2)(E) because
Cruz-Ramirez’s jailhouse statements furthered the conspiracy insofar as they
apprised Alvarado of the gang’s ongoing conflicts with the Nieros and of Cruz-
Ramirez’s “work” on behalf of the conspiracy. United States v. Moran, 493 F.3d
1002, 1010 (9th Cir. 2007) (per curiam) (“When offered against a party, a
8 statement by a coconspirator of a party during the course and in furtherance of the
conspiracy is not barred by the hearsay rule.” (internal quotation marks omitted));
see United States v. Tamman, 782 F.3d 543, 553 (9th Cir. 2015) (“[S]tatements
made to keep coconspirators abreast of an ongoing conspiracy’s activities satisfy
the ‘in furtherance of’ requirement.” (internal quotation marks omitted)).
The court did not abuse its discretion by admitting informant Walter Palma’s
testimony that he did not believe Cruz-Ramirez when Cruz-Ramirez claimed
responsibility for the Estrada shooting. See United States v. Mendoza-Paz, 286
F.3d 1104, 1113 (9th Cir. 2002) (reviewing admission of lay opinion testimony for
abuse of discretion). Palma testified only as to his own belief in response to Cruz-
Ramirez’s statement, and did not testify about whether Cruz-Ramirez was
generally credible. Finally, any error was harmless; the jury heard testimony that
Cruz-Ramirez claimed he was the shooter in the Estrada murder, but also heard
testimony that Cruz-Ramirez claimed he drove the van.
7. The district court did not err when it declined to dismiss Juror 57.
Juror 57 unequivocally reassured the court that he would follow instructions and be
fair. Because Juror 57 gave repeated assurances and the court was able to observe
his demeanor and assess his credibility, we are not firmly convinced that the
court’s factual findings regarding Juror 57’s truthfulness and impartiality were
9 wrong.2 United States v. Olsen, 704 F.3d 1172, 1190 (9th Cir. 2013). Defendants
therefore fail to demonstrate actual bias. See id. at 1189. Next, because the district
court plausibly found that Juror 57 did not conceal information during voir dire,
and its finding was not clearly erroneous, defendants fail to demonstrate
McDonough bias. See Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en
banc). Last, Juror 57’s past experiences being “checked” by gang members fail to
demonstrate the extreme circumstances necessary to find implied bias. See United
States v. Kechedzian, 902 F.3d 1023, 1028 (9th Cir. 2018).
8. The district court did not abuse its discretion by conducting a joint
trial, nor plainly err by providing hundreds of limiting instructions. See United
States v. Barragan, 871 F.3d 689, 701–02 (9th Cir. 2017) (reviewing decision to
conduct a joint trial for abuse of discretion), cert. denied, 138 S. Ct. 1565, and cert.
denied, 138 S. Ct. 1572 (2018). Joint trials are “particularly appropriate where the
co-defendants are charged with conspiracy,” and here, the jury acquitted one
defendant entirely and partially acquitted Cruz-Ramirez, “demonstrating its ability
to compartmentalize” and give each defendant individual consideration. Id. at 702.
2 Nor did the court abuse its discretion by investigating Juror 57 over several hearings and concluding that Juror 57 responded truthfully to questions asked during voir dire. We cannot say that this investigation extended “beyond permissible limits of inquiry.” See United States v. Simtob, 485 F.3d 1058, 1064–65 (9th Cir. 2007). 10 The limiting instructions were given to “reduce or eliminate any possibility of
prejudice arising from a joint trial,” United States v. Fernandez, 388 F.3d 1199,
1243 (9th Cir. 2004), and the predicate crimes underlying the RICO and VICAR
counts were “well within the ability of the ordinary juror to understand.” See id. at
1244. Accordingly, the joint trial was not “manifestly prejudicial” and was not an
abuse of discretion. Id. at 1241.
9. The government did not violate its obligations under Brady v.
Maryland, 373 U.S. 83 (1963). To prevail on a Brady claim, a “defendant must
show: (1) the evidence was exculpatory or impeaching; (2) it should have been, but
was not produced; and (3) the suppressed evidence was material to his guilt or
punishment.” United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011)
(internal quotation marks omitted). Evidence that Sergeant Molina thought Walter
Palma was involved in the Marquez murder and that Sergeant Molina connected
the Marquez detective with an Assistant United States Attorney for further
investigation was discussed in open court during trial. Even if this evidence had
been suppressed, it had minimal impeachment value given that Palma testified that
he committed multiple violent crimes, including attempted murder, and because the
evidence concerning Sergeant Molina shows that he encouraged—rather than
stifled—further investigation of Palma’s involvement in the Marquez murder.
11 Likewise, the government did not violate its Brady obligations by failing to
disclose material witness warrants issued for the three eyewitnesses to the
December 26 stabbings. The record is clear that these witnesses were afraid to
testify against MS-13 and that they testified only on threat of arrest or actual arrest.
The resulting warrants do not constitute exculpatory information, and there is no
reasonable probability that the result of the trial would have been different had
Guevara questioned these witnesses about their fear of testifying.
10. The district court did not abuse its discretion when it declined to
consider Flores’ untimely motion to suppress records containing his cell-site
location information. See United States v. Tekle, 329 F.3d 1108, 1113 (9th Cir.
2003) (“The decision whether to grant an exception to a Rule 12 waiver lies in the
discretion of the district court.”). The deadline for filing suppression motions was
July 27, 2010. The court granted in part Flores’ July 27 motion and suppressed
“cell phone records predating May 1, 2008.” The government moved for
clarification on the grounds that “cell phone records” could include cell-site
location information, and the court clarified that “cell phone records” only referred
to “text messages and other materials containing content of the communications.”
Flores did not seek additional clarification or reconsideration of the order, and the
court’s denial of Flores’ subsequent and untimely motions to suppress during trial
12 was not an abuse of discretion.
11. The district court did not err when it permitted the late disclosure of
Jaime Martinez’s testimony detailing Flores’ alleged admissions to uncharged acts
in response to Flores’ asserted entrapment defense. See United States v. Loftis, 843
F.3d 1173, 1176 n.1 (9th Cir. 2016) (reviewing admission of “other crimes”
evidence for abuse of discretion and reviewing de novo whether evidence
constitutes other crimes evidence). Furthermore, Flores was not harmed by the late
disclosure because the court postponed his cross-examination of Martinez so that
Flores could conduct additional investigation, and Flores does not demonstrate
prejudice resulting from his alleged inability to investigate the late-disclosed acts.
12. The district court did not err by admitting evidence of Flores’ alleged
juvenile conduct. See United States v. Camez, 839 F.3d 871, 877 (9th Cir. 2016)
(concluding defendant’s conviction “must stand” where the district court instructed
the jury that it could convict defendant “only if it found that [d]efendant continued
his participation [in the criminal enterprise] after turning 18”). The district court’s
jury instruction here was just as restrictive as the one given in Camez, permitting
conviction on conspiracy charges only if Flores continued in the conspiracy after
he turned 18 and only if the government proved “all elements of the crime as of or
after the defendant’s 18th birthday.”
13 13. The district court did not circumvent Federal Rule of Evidence 404(b)
and did not abuse its discretion by admitting evidence of Flores’ uncharged acts.
See United States v. Rizk, 660 F.3d 1125, 1131–32 (9th Cir. 2011) (reviewing a
decision to admit evidence for abuse of discretion). Evidence of Flores’ uncharged
acts was evidence “directly related to, or inextricably intertwined with, the crime
charged in the indictment,” and was therefore not subject to Rule 404(b)’s notice
requirement. Id. at 1131 (internal quotation marks omitted). The court was not
required to strike testimony about Flores’ uncharged juvenile acts even after it
declined to give an entrapment instruction, because this testimony was admissible
as “proof on the full scope of the conspiracy.” Id.
14. The district court did not abuse its discretion by declining to instruct
the jury on entrapment. See United States v. Spentz, 653 F.3d 815, 818 (9th Cir.
2011) (reviewing for abuse of discretion the denial of an entrapment instruction
due to insufficient evidence). Flores was the leader of the 20th Street clique by
2008, and given the dearth of evidence concerning his lack of predisposition,
Flores fails to point to even slight evidence satisfying the elements of an
entrapment defense.
15. The district court did not abuse its discretion by denying as untimely
Flores’ motion to sever his trial and group him for trial with Manuel Franco.
14 Motions filed after the deadline set pursuant to Federal Rule of Criminal Procedure
12(b)(3) are untimely. Fed. R. Crim. P. 12(c)(3). In his only timely motion to
sever, Flores requested severance from “all other defendants” and said nothing
about his desire to be grouped with Franco. The court properly declined to
consider Flores’ subsequent and untimely motion to be tried with Franco. See
Tekle, 329 F.3d at 1113.
16. The district court did not err by limiting Flores’ cross-examination of
witness Ana Ramos. See United States v. Larson, 495 F.3d 1094, 1102 (9th Cir.
2007) (en banc). The probative value of Ramos’ alleged affair with Flores was
minimal and substantially outweighed by the threat of a mini-trial on the issue.
The jury had sufficient information to assess the credibility of Ramos and
informant Jaime Martinez, particularly because Martinez admitted that he told
Ramos to lie to federal agents by saying that she was being stalked.
17. The district court did not abuse its discretion by denying Lopez’s
motion for a mistrial. See United States v. Banks, 514 F.3d 959, 973 (9th Cir.
2008) (reviewing a denial of a motion for a mistrial for abuse of discretion).
Assuming a Massiah violation occurred, cooperator Oliver Marota’s testimony was
“harmless beyond a reasonable doubt,” see Chapman v. California, 386 U.S. 18, 24
(1967), because three additional witnesses offered the same substantive testimony
15 that Lopez stated he was arrested in possession of a gun linked to two murders.
One witness in particular testified that Lopez admitted he was responsible for the
killings—testimony far more damaging than anything Marota said.
18. Lopez argues that federal agents searched his cellular telephone in
violation of the Fourth Amendment because the applicable state search warrant did
not authorize federal law enforcement officers to execute the search. However,
“[a]n otherwise properly issued search warrant is not rendered void for Fourth
Amendment purposes merely because it was executed by law enforcement officers
who lacked warrant-executing authority under state law.” United States v. Artis,
919 F.3d 1123, 1130 (9th Cir. 2019). Thus, the district court did not err by
admitting photographs taken from federal agents’ search of Lopez’s cellular
telephone. Even assuming the warrant was not “otherwise properly issued,” any
error in admitting the photographs was harmless beyond a reasonable doubt. The
only evidence from Lopez’s telephone admitted at trial was twelve photographs
showing Lopez and other individuals making gang symbols, and tattoos and
writings featuring characters such as “MS” and “13.” To the extent the photos
showed Lopez’s involvement in MS-13, they were cumulative of other witnesses’
testimony.
19. Carcamo argues that his first counsel was ineffective. This argument
16 is premature and insufficiently supported by the present record. It may be
addressed in a petition filed pursuant to 28 U.S.C. § 2255. See United States v.
McGowan, 668 F.3d 601, 605 (9th Cir. 2012) (“Challenge [of ineffective
assistance of counsel] by way of a habeas proceeding is preferable because it
permits the defendant to develop a record as to what counsel did, why it was done,
and what, if any, prejudice resulted.” (internal quotation marks omitted)).
20. The district court did not abuse its discretion when it denied
Carcamo’s request to continue trial or for severance. See United States v. Turner,
897 F.3d 1084, 1101 (9th Cir. 2018) (reviewing the denial of a motion for a
continuance for abuse of discretion), cert. denied, 139 S. Ct. 1234 (2019). The
court offered a reasoned explanation that after several continuances, another
continuance threatened witnesses’ memory loss and exacerbated the ongoing
danger to witnesses. The court permitted defendants to apply for additional
resources if necessary to analyze newly-produced discovery, and to seek
continuances to prepare for cross-examination during trial. Accordingly, the
court’s denial was neither “unreasoning” nor arbitrary. See id. at 1102.
21. Besides the two errors for which we vacate defendants’ convictions
(sentencing based on lesser-included offenses and the unconstitutionality of 18
U.S.C. § 924(c)(3)(B)), any errors committed by the district court were marginal,
17 and they do not cumulatively warrant a new trial. See United States v. de Cruz, 82
F.3d 856, 868 (9th Cir. 1996) (discussing cumulative error).
VACATED AND REMANDED IN PART, AFFIRMED IN PART.