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United States v. Barragan

United States Court of Appeals, Ninth Circuit

September 8, 2017

United States of America, Plaintiff-Appellee,
Jesus Barragan, AKA Chito, Defendant-Appellant. United States of America, Plaintiff-Appellee,
Hector Fernandez, AKA Evil, Defendant-Appellant. United States of America, Plaintiff-Appellee,
Francisco Gutierrez, AKA Ammo, AKA Bullet, Defendant-Appellant. United States of America, Plaintiff-Appellee,
Pablo Franco, AKA Casper, AKA Dwarf, Defendant-Appellant.

          Argued and Submitted June 9, 2017 Pasadena, California

         Appeals from the United States District Court for the Southern District of California, Nos. 3:12-cr-00236-IEG-5, 3:12-cr-00236-IEG-14, 3:12-cr-00236-IEG-6, 3:12-cr-00236-IEG-3 Irma E. Gonzalez, Senior District Judge, Presiding

          John C. Lemon (argued), San Diego, California, for Defendant-Appellant Jesus Barragan.

          Knut S. Johnson (argued) and Emerson Wheat, San Diego, California, for Defendant-Appellant Hector Fernandez.

          Sanjay Sobti (argued), U.S. Law Center, Corona, California, for Defendant-Appellant Francisco Gutierrez.

          Gary P. Gurcham, Burcham & Zugman, San Diego, California, for Defendant-Appellant Pablo Franco.

          Helen H. Hong (argued), Assistant United States Attorney, Chief, Appellate Section, Criminal Division, United States Attorney's Office, San Diego, California, for Plaintiff-Appellee.

          Before: Kermit V. Lipez, [*] Carlos T. Bea, and Andrew D. Hurwitz, Circuit Judges.


         Criminal Law

         The 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.

         The 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.

         The panel held that the district court's failure to try Fernandez separately from his co-defendants was not manifestly prejudicial to him.

         The 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 violent past.

         The 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 conspirators.

         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 Confrontation Clause.

         The panel held that the government presented sufficient evidence of Fernandez's participation in the RICO conspiracy to sustain his conviction.

         The 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.

         The 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 anonymity.

         Affirming 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 offender guideline.

         The 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.

         The 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.



         Jesus 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.

         I. BACKGROUND

         A. Investigation and Indictment

         In 2010, a joint federal and state task force undertook an investigation of extortion and drug trafficking by the Mexican Mafia ("Mafia")[1] 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).

         The 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.

         After 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.

         B. Trial

         The 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 appellant below.

         1. Evidence against Barragan

         Local 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.[2]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."

         Cruz 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.

         Cruz 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.

         Cruz 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.

         2. Evidence against Franco

         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.[3] 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 Mafia.[4]

         During 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 Mafia member.[5]

         Despite 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 neighborhood."

         3. Evidence against Gutierrez

         Intercepted 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.[6]

         When 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 lifted.

         Once 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.[7] In one call, Gutierrez instructed an inmate to silence another inmate who was starting to talk to law enforcement.

         4. Evidence against Fernandez

         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 if necessary.

         In an 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.

         In May 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 would cost.

         Five 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.[8]

         C. Convictions and Sentences

         Barragan 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.[9]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.


         A. Wiretap Evidence

         During 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.

         Gutierrez 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 information.

         1. Necessity of wiretap

         "The 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).

         We 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. Id.

         a. Full and complete statement

         Zeman's 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.[10] 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.

         Gutierrez 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 false names.

         To be 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)).

         Gutierrez 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.

         Gutierrez 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.

         b. Finding of necessity

         We 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 Cir. 2000)).

         2. Franks hearing

         To 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. Id.

         Gutierrez 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 reckless.

         B. Joint Trial

         The 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.

         "The 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)).

         This 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 1242-43.[11]

         C. Testimony of Former Mafia Member

         Before 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 history ...

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