United States v. Santos Fernandez

526 F. App'x 270
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 14, 2013
Docket11-4458, 11-4319, 11-4320, 11-4300, 11-4418, 11-4284
StatusUnpublished
Cited by6 cases

This text of 526 F. App'x 270 (United States v. Santos Fernandez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Santos Fernandez, 526 F. App'x 270 (4th Cir. 2013).

Opinions

No. 11-4284 affirmed in part, reversed in part, and remanded; No. 11-4300, No. 11-4319, No. 11-4320, No. 11-4418, and No. 11-4458 affirmed by unpublished PER CURIAM opinion. Chief Judge TRAXLER wrote a separate opinion concurring in part and dissenting in part.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

I.

La Mara Salvatrucha (“MS-13”) is a worldwide street gang with Los Angeles [274]*274origins. It was formed in the 1980’s by refugees fleeing to the United States from war-torn Central American countries. While MS-13 was originally formed for protection of its members, its current objective is to amass wealth, power, and territory.

There are six Appellants in this matter, all members of MS-13: (1) Santos Aníbal Caballero Fernandez (“Caballero Fernandez”); (2) johnny Elias Gonzales (“Gonzales”); (3) Elvin Pastor Fernandez-Grad-is (“Fernandez-Gradis”); (4) Julio Cesar Rosales Lopez (“Lopez”); (5) Carlos Roberto Figueroa-Pineda (“Figueroa-Pine-da”); and (6) Juan Gilberto Villalobos (“Villalobos”). In June, 2008, Appellants, along with 20 other MS-13 members, were tried and convicted of various crimes related to their participation in the gang in the United States. The convictions relevant to this appeal are: (1) each Appellant’s conviction for conspiracy to commit racketeering; (2) Appellant Caballero Fernandez’s conviction as an accessory after-the-fact to the murder of Ulysses Mayo; and (3) Appellant Figueroa-Pineda’s two convictions of possession of marijuana with intent to distribute and conviction of possession of a firearm in furtherance of a drug trafficking crime.1 Appellant Villalobos also appeals the district court’s decision to apply an obstruction of justice enhancement to his sentence.

Appellants collectively challenge their convictions on several fronts. First, Appellants argue the evidence was insufficient to establish that they each entered into an agreement to commit two predicate acts of racketeering as required for a conviction of conspiracy to commit racketeering. Second, Appellants argue that the district court failed to adopt adequate safeguards to minimize the prejudice of its use of an anonymous jury. Third, Appellants argue that the district court erred in failing to give a “multiple conspiracy” instruction to the jury. Finally, Appellants argue that, even if the first three errors are individually harmless, the combined effect of those errors triggers the cumulative error doctrine, compelling reversal.

As noted, several Appellants also individually challenge their respective convictions and sentences. Specifically, Appellant Caballero Fernandez challenges his conviction for accessory-after-the-fact to murder, arguing that the evidence does not establish beyond a reasonable doubt that he knew the victim was dead or dying. Appellant Figueroa-Pineda challenges his convictions for possession "with intent to distribute and for possession of a firearm in furtherance of a drug trafficking offense, arguing that the evidence established neither intent to distribute nor use of a weapon “in furtherance” of drug trafficking offenses. Finally, Appellant Villa-lobos argues the evidence was insufficient to establish that he obstructed justice.

We affirm as to each issue on appeal, with the exception of Appellant Caballero Fernandez’s conviction for accessory-after-the-fact, which we reverse. We also remand Appellant Caballero Fernandez’s case for resentencing.

II.

A.

Conspiracy to Commit Racketeering

1.

Each Appellant was convicted of engaging in a conspiracy to commit racketeering [275]*275beginning at least in or about 2008. Following these convictions, each Appellant filed a motion for a judgment of acquittal. These motions were denied and this appeal followed.

2.

We review the denial of a motion for judgment of acquittal de novo. United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir.2011). Where a defendant challenges the sufficiency of the evidence to support a jury’s guilty verdict, we view all evidence and draw all inferences in favor of the government. Id. We will sustain the verdict as long as any rational fact finder would find the essential elements beyond a reasonable doubt. United States v. Higgs, 353 F.3d 281, 313 (4th Cir.2003).

3.

The conspiracy provision to the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), makes it a crime to conspire to violate any one of RICO’s three substantive provisions.2 Here, Appellants were convicted of conspiracy to violate § 1962(c), which contains three elements: (1) the conduct, (2) of an enterprise, (3) through a pattern of racketeering.3 RICO defines an “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A “pattern of racketeering” requires a defendant to commit at least two predicate acts of “racketeering activity.” 18 U.S.C. § 1961(5). “Racketeering activity” includes, inter alia, any act or threat involving murder, robbery, extortion, or dealing in a controlled substance chargeable under state law and punishable by imprisonment for more than one year. 18 U.S.C. § 1961(1).

Generally, to be convicted of “conspiracy” to commit a federal crime, a defendant must commit an overt act in furtherance of the object of the conspiracy. 18 U.S.C. § 371. There is no such requirement under RICO. Salinas v. United States, 522 U.S. 52, 63, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (“The RICO conspiracy provision, then, is even more comprehensive than the general conspiracy offense in § 371.”). A defendant is guilty of conspiracy under RICO if he “ ‘knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering acts.’ ” United States v. Mouzone, 687 F.3d 207, 218 (4th Cir.2012) (quoting United States v. Wilson, 605 F.3d 985, 1018-19 (D.C.Cir.2010)).

Naturally, direct evidence of such an agreement is often scarce. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (“By its very nature, a conspiracy is clandestine and covert, thereby frequently resulting in little direct evidence of such an agreement.”). ■ As such, conspiracy is typically proven by circumstantial evidence. Id. at 857-58.

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Cite This Page — Counsel Stack

Bluebook (online)
526 F. App'x 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santos-fernandez-ca4-2013.