and Submitted June 9, 2017 Pasadena, California
from the United States District Court for the Southern
District of California, Nos. 3:12-cr-00236-IEG-5,
3:12-cr-00236-IEG-3 Irma E. Gonzalez, Senior District Judge,
C. Lemon (argued), San Diego, California, for
Defendant-Appellant Jesus Barragan.
S. Johnson (argued) and Emerson Wheat, San Diego, California,
for Defendant-Appellant Hector Fernandez.
Sobti (argued), U.S. Law Center, Corona, California, for
Defendant-Appellant Francisco Gutierrez.
P. Gurcham, Burcham & Zugman, San Diego, California, for
Defendant-Appellant Pablo Franco.
H. Hong (argued), Assistant United States Attorney, Chief,
Appellate Section, Criminal Division, United States
Attorney's Office, San Diego, California, for
Before: Kermit V. Lipez, [*] Carlos T. Bea, and Andrew D.
Hurwitz, Circuit Judges.
panel affirmed Jesus Barragan's, Pablo Franco's,
Francisco Gutierrez's, and Hector Fernandez's
convictions for conspiracy in violation of the Racketeering
Influenced Corrupt Organizations Act; affirmed Barragan's
conviction for drug crimes; affirmed Barragan's,
Franco's, and Fernandez's sentences; but vacated
Gutierrez's sentence and remanded for resentencing.
panel rejected Gutierrez's arguments (1) that suppression
of wiretap evidence was required because the affidavit
supporting the application failed to show necessity, and (2)
that a Franks hearing was required because the
affidavit contained false information.
panel held that the district court's failure to try
Fernandez separately from his co-defendants was not
manifestly prejudicial to him.
panel held that the district court did not abuse its
discretion in allowing a former Mexican Mafia member to
testify on direct examination about his past crimes, nor in
finding that the probative value of the evidence was not
substantially outweighed by any prejudice. The panel found no
error arising from the prosecutor's blaming, in rebuttal,
the defense for bringing up the former Mafia member's
panel held that the district court did not abuse its
discretion in admitting as lay opinion case agents'
testimony about the meaning of code words used by the
panel held that the district court did not abuse its
discretion in admitting tapes of conversations between a
confidential informant and alleged conspirators. The panel
explained that the informant's statements on the tapes,
which were offered only for context and not for their truth,
were not hearsay, and their admission did not offend the
panel held that the government presented sufficient evidence
of Fernandez's participation in the RICO conspiracy to
sustain his conviction.
panel held that the prosecutor's remarks in closing
argument, emphasizing the violent nature of the
defendants' crimes and repeatedly urging the jury to say
"no more, " were improper because they invited the
jury to convict for a non-evidentiary reason: to protect the
community against future violence. The panel concluded,
however, that the remarks did not have a probable effect on
the jury's verdict in light of the entire record.
panel held that the district court did not abuse its
discretion in refusing to give Fernandez's requested jury
instructions (1) that he could not be convicted of conspiring
with a government informant; (2) that his mere purchase of
drugs did not establish participation in a conspiracy; and
(3) that the government prove he was not a victim of
extortion. The panel found no plain error in the district
court's failure to give jurors an explanation for their
Barragan's sentence, the panel held (1) that a conviction
under Calif. Penal Code § 211-which necessarily involves
either generic robbery or generic extortion-was categorically
a "crime of violence" for purpose of the career
offender guideline in effect at the time of his sentencing;
and (2) that, after reviewing the judicially noticeable
records of Barragan's prior conviction under California
Health and Safety Code § 11379, a divisible statute, the
district court properly concluded that the conviction was for
selling a controlled substance offense under the career
government conceded that the district court erred in
calculating Gutierrez's sentence as a career offender
because his conviction in this case was not for a crime of
violence or a controlled substance. The panel agreed,
vacating Gutierrez's sentence and remanding for
resentencing on an open record.
panel held that in finding certain RICO conspiracy predicate
acts attributable to each defendant pursuant to U.S.S.G.
§ 2E1.1, the district court (1) was permitted to
attribute to a defendant predicate acts that the jury
verdicts did not so attribute and/or of which a defendant was
acquitted or not formally charged; and (2) was permitted to
find facts relating to the extent of the conspiracy by a
preponderance of the evidence.
HURWITZ, CIRCUIT JUDGE:
Barragan, Pablo Franco, Francisco Gutierrez, and Hector
Fernandez were convicted of conspiracy in violation of the
Racketeer Influenced and Corrupt Organizations Act
("RICO"); Barragan was also convicted of drug
crimes. They appeal their convictions and sentences. Although
we find a portion of the prosecutor's closing argument
improper, we conclude that prejudice has not been shown and
affirm the convictions. We affirm the sentences of Barragan,
Franco, and Fernandez, but vacate Gutierrez's sentence
and remand for resentencing.
Investigation and Indictment
2010, a joint federal and state task force undertook an
investigation of extortion and drug trafficking by the
Mexican Mafia ("Mafia") and local street gangs in
San Diego County. In January 2012, an indictment was filed
charging forty alleged Mafia members and associates with
engaging in an racketeering conspiracy in violation of RICO,
18 U.S.C. § 1962(d).
indictment alleged that the Mafia imposed a "tax"
on Southern California gangs in return for allowing them to
sell drugs and conduct other illegal activities. If a gang
failed to pay the tax, the Mafia announced a "green
light" authorizing violence toward gang members, both in
prison and on the streets, until the tax was paid. Because
the Mafia had only 125 official members, it relied on
associates- usually members of local Hispanic gangs-to
collect taxes. Low-level associates were known as
"surenos, " higher-level associates as
"camaradas, " and official Mafia members as
"carnales." The leader of each local gang was
responsible for ensuring payment of taxes. Gangs raised tax
money by selling drugs and robbing other drug dealers.
some of the indicted defendants entered guilty pleas, two
superseding indictments were filed charging some of the
remaining defendants with additional crimes. Eight
defendants, including Barragan, Franco, Gutierrez, and
Fernandez, eventually opted for trial.
trial of appellants and four co-defendants lasted six weeks.
The government called over seventy witnesses and introduced
tapes of hundreds of intercepted phone conversations, among
other evidence. We summarize the evidence against each
Evidence against Barragan
gang members and drug dealers testified that Barragan was the
leader of the West Side gang, responsible for collecting
Mafia taxes. Barragan's statements in phone conversations
confirmed his association with the Mafia.West Side gang
member Everst Cruz testified that Barragan instructed the
gang to raise tax money by selling drugs and robbing other
drug dealers, and that Barragan gave him a handgun "to
collect the money and for whatever popped up."
testified that he regularly sold drugs and gave the proceeds
to Barragan. Intercepted phone conversations and text
messages revealed that Barragan supplied drugs to West Side
members. On two occasions, members of the task force observed
Barragan selling drugs.
also testified that he and other West Side members robbed
local drug dealers and gave the money to Barragan. In phone
conversations, Barragan told gang members whom to rob. Cruz
recounted one occasion where Barragan went to a drug
dealer's house, "slapped him around, " and took
drugs and money. In a subsequent phone call, the drug dealer
lamented that Barragan had robbed him.
also testified that after members of a rival gang, the
Diablos, beat up and stabbed West Side members, Barragan said
"something needed to be done" and "he
didn't care what we had to do." Cruz then shot a
Diablos member with the handgun Barragan had given him.
Evidence against Franco
was a high-ranking member of the Varrio Fallbrook Locos gang
and an associate of the Mafia, according to intercepted phone
conversations and his tattoos. Before the task force
investigation began, Franco was in custody at the Vista
detention facility. While there, his statements in phone
conversations indicated that he used his sister to smuggle
drugs into the facility and to deliver money to the
the task force investigation, Franco was incarcerated in
state prison. A fellow inmate, Alfonso Mata, testified that
he helped Franco collect taxes from drug-dealing inmates on
behalf of the Mafia. At Franco's direction, Mata sent tax
proceeds to Franco's mother, who then forwarded the money
to a Mafia member. Receipts confirmed that Mata sent money to
Franco's mother. Intercepted phone calls, taped
conversations, and a bank statement confirmed that
Franco's mother and sister then forwarded the money to a
his incarceration, Franco declared in a letter that the town
of Fallbrook belongs to him and that his "amigo" in
charge on the outside "has all our support." Mata
also testified that Franco mentioned that his friend
"Bullet" was dealing drugs "out in the
Evidence against Gutierrez
phone conversations revealed that "Bullet" was
Gutierrez. Like Franco, Gutierrez belonged to the Varrio
Fallbrook Locos gang and was a Mafia associate, as
demonstrated by phone conversations, his tattoos, and
markings on his property.
the task force investigation began, Gutierrez was in custody
at the Vista detention facility. While Gutierrez was there,
the Mafia announced a green light against West Side members
in the facility. Two inmates then assaulted Cruz. Cruz
testified that an inmate told him that Gutierrez ordered the
assault. Three weeks after the assault, Gutierrez told an
inmate in a recorded conversation that the green light was
released, Gutierrez took orders from Franco. Recorded phone
conversations indicated that Gutierrez helped smuggle drugs
into the Vista detention facility, collected tax money from
inmates, and delivered that money to Franco. In one call,
Gutierrez instructed an inmate to silence another inmate who
was starting to talk to law enforcement.
Evidence against Fernandez
conceded that he belonged to the Diablos gang. A former
Diablos leader testified that in the fall of 2010, a Mafia
member convened a meeting of Diablos members, instructing
them to collect money from local drug dealers, using violence
April 2011 phone conversation, Fernandez scheduled a meeting
with the Diablos leader (Miguel Grado), the leader of the
Varrio San Marcos gang (Ivan Dunayevich), and a Varrio San
Marcos member who was a government informant. The informant
secretly audio-recorded the meeting. During the meeting,
Fernandez and Grado informed Dunayevich that a drug dealer
was using his name to avoid paying taxes. Dunayevich
expressed surprise, stating that the drug dealer had only
sent him payment "maybe one time." Fernandez then
suggested: "Let's touch him up." In a phone
call seven days later, Grado told Barragan to rob the drug
dealer and to "tell that fool that he's gonna start
paying us." Later that day, the drug dealer stated in a
phone call that Barragan had robbed him.
2011, the informant secretly audio-recorded a meeting in
which Fernandez sold him heroin. After handing over the
drugs, Fernandez told the informant that he will have more
heroin later and that he also has "crystal." In
June 2011, the informant secretly audio- and video-recorded a
meeting in which Grado sold him methamphetamine. Although
Fernandez cannot be seen on the video, a detective testified
that he can be heard saying "What's up man" as
the informant enters the room. In July 2011, Fernandez told a
fellow gang member in a recorded call that he wanted to
"try" some methamphetamine and asked how much it
witnesses testified that in June 2011, a group of masked men
who called themselves "Diablos" robbed them with a
bat. The men fled after police were called. In a photo
lineup, four of the witnesses failed to identify Fernandez as
one of the attackers, but the fifth witness said she was
"almost positive" that Fernandez was there.
Intercepted calls from Fernandez's phone that night
indicated that he participated in the robbery.
Convictions and Sentences
was convicted of the RICO conspiracy, conspiracy to
distribute methamphetamine and cocaine, and two counts of
distributing methamphetamine, but acquitted of assault,
attempted murder, and discharge of a firearm in relation to a
crime of violence. Franco and Gutierrez were convicted of the
RICO conspiracy, the only charge against them. Fernandez was
convicted of the RICO conspiracy, but acquitted of conspiracy
to distribute methamphetamine.The district court sentenced
Barragan to 320 months in prison, Franco to 240 months,
Gutierrez to 240 months, and Fernandez to 151 months. This
timely appeal followed.
the task force investigation, the district court authorized a
wiretap of seven phones, including one used by Gutierrez. The
wiretap application was supported by the affidavit of FBI
agent Mathew Zeman, which described the suspected conspiracy,
identified the investigative techniques the task force had
used to date, and explained the limitations of these and
other potential techniques.
moved to suppress the wiretap evidence and for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978),
on whether Zeman's affidavit was materially misleading.
The district court denied both motions. Gutierrez argues that
(1) suppression was required because the affidavit failed to
show that a wiretap was necessary, and (2) a Franks
hearing was required because the affidavit contained false
Necessity of wiretap
government must show that every wiretap it seeks is
necessary." United States v. Christie, 825 F.3d
1048, 1066 (9th Cir. 2016). An affidavit in support of a
wiretap application must contain "a full and complete
statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous."
18 U.S.C. § 2518(1)(c). The district court may authorize
a wiretap only after determining that "normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be
too dangerous." Id. § 2518(3)(c).
review de novo whether an affidavit satisfies §
2518(1)(c). Christie, 825 F.3d at 1066. If the
affidavit complies, we review for abuse of discretion a
district judge's finding of necessity under §
2518(3)(c) and decision to authorize the wiretap.
Full and complete statement
affidavit was sufficient under § 2518(1)(c). Twenty-four
pages of the affidavit detailed the evidence the task force
had uncovered during seven months of
investigation. Another sixteen pages described the
techniques used to date-including three confidential
informants, two undercover officers, physical surveillance of
suspects, review of recorded jail calls, pen registers,
vehicle tracking devices, grand jury subpoenas, and mail
covers-and explained why further use of these techniques
would not reveal the full conspiracy.
argues that Zeman's affidavit merely gave boilerplate
excuses for not using certain techniques. See United
States v. Blackmon, 273 F.3d 1204, 1210 (9th Cir. 2001)
(affidavit must describe more than "inherent limitations
of normal investigative procedures"). But Zeman's
reasons were largely case-specific. For example, the
affidavit stated that the spouse of one confidential
informant was exposed as a government source, and the
introduction of another informant caused conspirators to
scale back their interactions with a third informant.
Informants also faced the Mafia's penchant for violence;
the affidavit recounted evidence that the Mafia (and
Gutierrez) had recently arranged the stabbing of an informant
in a different case. Suspects were justifiably afraid to talk
to police; an inmate identified as a possible source of
information refused to cooperate with prosecutors after an
assault by Mafia associates. Although undercover officers
were able to buy drugs from conspirators, they could not
infiltrate the Mafia because its members do not trust
outsiders. Investigators conducted physical surveillance of
conspirators, but could not get close enough to hear
conversations, and the conspirators took counter-surveillance
precautions such as meeting in enclosed spaces and making
U-turns while driving. Pen registers revealed phone numbers
the conspirators called, but many numbers were registered to
sure, the Zeman affidavit also contained some boilerplate.
"Some boilerplate language, however, is not fatal as we
evaluate 'the level of detail in the affidavit as a
whole.'" United States v.
Rodriguez, 851 F.3d 931, 942 (9th Cir. 2017) (quoting
Christie, 825 F.3d at 1068). Overall, the Zeman
affidavit explained "in reasonable detail" why
traditional investigative procedures had reached their limit.
Id. at 943 (quoting United States v.
Rivera, 527 F.3d 891, 899 (9th Cir. 2008)).
also argues that many of the investigatory techniques used by
the task force were not utilized against him in particular.
But no such requirement exists. It was sufficient for Zeman
to explain "why certain techniques would be unproductive
or too dangerous in regard to all of the target subjects . .
. due to alleged associations with the Mexican Mafia."
Id. at 940.
also attacks Zeman's affidavit because it did not mention
that Gutierrez was monitored as a condition of his parole.
But the fact that Gutierrez knew that he was being monitored
suggests, if anything, that he would have been more discreet
in communicating with conspirators, reinforcing the need for
a wiretap. Zeman's omission of the monitoring was not
"fatal to the affidavit as a whole" given its
"detailed discussion of most of the other investigative
techniques." Rivera, 527 F.3d at 901.
Finding of necessity
accord district judges "considerable discretion in
finding necessity, particularly when the case involves the
investigation of a conspiracy." Rodriguez, 851
F.3d at 944 (quoting United States v. Reed, 575 F.3d
900, 909 (9th Cir. 2009)). The district court did not abuse
that discretion here. Zeman's affidavit showed that the
government used a "range of traditional techniques"
and explained why continuing to do so "would be
unproductive or dangerous given specific facts about the
Mexican Mafia and the particular case." Id. The
fact that the task force had "some degree of
success" without a wiretap did not "extinguish the
need for a wiretap." Id. at 943 (quoting
United States v. Bennett, 219 F.3d 1117, 1122 (9th
obtain a Franks hearing, Gutierrez was required to
make a substantial preliminary showing that (1) Zeman's
affidavit deliberately or recklessly included a false
statement, and (2) the statement was material to the
necessity finding. Christie, 825 F.3d at 1069. We
review the denial of a Franks hearing de novo.
did not show that Zeman's affidavit included a material
false statement. Contrary to Gutierrez's assertions,
Zeman's affidavit made clear that the target phone
belonged to someone other than Gutierrez and that calls from
the local jail were recorded. Although the affidavit omitted
the fact that Gutierrez was subject to monitoring as a
condition of his parole, "the district court would still
have been reasonable to find the wiretap necessary" had
this fact been included. See United States v.
Shryock, 342 F.3d 948, 977 (9th Cir. 2003). And,
Gutierrez does not challenge the district court's finding
that he failed to show that the omission was deliberate or
district court denied Fernandez's motions to try him
separately from his co-defendants. On appeal, Fernandez
argues that the joint trial prejudiced him because most of
the evidence implicated his co-defendants, not him.
district court's denial of a motion to sever is reviewed
for an abuse of discretion." United States v.
Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004).
"The test for abuse of discretion by the district court
is whether a joint trial was so manifestly prejudicial as to
require the trial judge to exercise his discretion in but one
way, by ordering a separate trial." Id.
(quoting United States v. Baker, 10 F.3d 1374, 1386
(9th Cir. 1993)).
trial was not manifestly prejudicial. A "joint trial is
particularly appropriate where the co-defendants are charged
with conspiracy." Id. at 1242. The district
court instructed the jury to consider each defendant
separately, reducing the possibility of prejudice.
Id. at 1243. And the jury partially acquitted
several defendants, including Fernandez, demonstrating its
ability to compartmentalize. Id. at
Testimony of Former Mafia Member
trial, the government moved in limine to allow former Mafia
member Rene Enriquez to testify about the organization's
structure and operation. The defense objected, arguing that
Enriquez's testimony about the Mafia's violent