342 F.3d 948 (9th Cir. 2003), 97-50468, U.S. v. Shryock

Docket Nº:97-50468
Citation:342 F.3d 948
Party Name:U.S. v. Shryock
Case Date:September 04, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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342 F.3d 948 (9th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond SHRYOCK, a/k/a Huero Shy, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Jesse Moreno, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Ruben Hernandez, a/k/a Tupi, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Alex Aguirre, aka, Pee Wee, aka Howard, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Juan Arias, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Randy Therrien, a/k/a Cowboy, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Ruben Castro, aka Nite Owl, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Daniel Barela, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

David Gallardo, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Raymond Mendez, aka Champ, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Joe Hernandez, aka Shakey Joe, Defendant-Appellant.

Nos. 97-50468, 97-50470, 97-50473, 97-50475, 97-50476, 97-50479, 97-50480, 97-50482, 97-50483, 97-50486, 97-50487.

United States Court of Appeals, Ninth Circuit

September 4, 2003

Argued and Submitted June 2, 2003.

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Jay L. Lichtman, Law Offices of Jay L. Lichtman, Los Angeles, California, for defendant-appellant Raymond Shryock.

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Phillip A. Trevino, Los Angeles, California, for defendant-appellant Jesse Moreno.

Joseph Francis Walsh, Los Angeles, California, for defendant-appellant David Gallardo.

Karen L. Landau, Oakland, California, for defendant-appellant Joe Hernandez.

Maria E. Stratton, Federal Public Defender, Los Angeles, California, for defendant-appellant Alex Aguirre.

Sonia E. Chahin, La Canada, California, Darlene M. Ricker, Malibu, California, for defendant-appellant Ruben Hernandez.

Michael J. Treman, Santa Barbara, California, for defendant-appellant Juan Arias.

Morton H. Boren, Los Angeles, California, for defendant-appellant Randy Therrien.

Robert Ramsey, Jr., Ramsey & Price, Los Angeles, California, for defendant-appellant Ruben Castro.

Gail Ivens, Glendale, California, for defendant-appellant Raymond Mendez.

Elana Shavit Artson, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Patrick J. Fitzgerald, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Andrea L. Russi, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. Nos. CR-95-00345-RSWL-16, CR-95-00345-RSWL-10, CR-95-00345-RSWL-08, CR-95-00345-RSWL-1, CR-95-00345-RSWL, CR-95-00345-RSWL-17, CR-95-00345-RSWL-4, CR-95-00345-RSWL-03, CR-95-00345-RSWL-5, CR-95-00345-RSWL-9 and CR-95-00345-RSWL-20.

Before THOMPSON, TROTT, and TALLMAN, Circuit Judges.

TROTT, Circuit Judge.

In these consolidated appeals, Defendants Appellants Alex Aguirre ("Aguirre"), Juan Arias ("Arias"), Daniel Barela ("Barela"), Ruben Castro ("R. Castro"), David Gallardo ("Gallardo"), Joe Hernandez ("J.Hernandez"), Ruben Hernandez ("R. Hernandez"), Raymond Mendez ("Mendez"), Jesse Moreno ("Moreno"), Raymond Shryock ("Shryock"), and Randy Therrien ("Therrien"), (collectively "Appellants"), appeal from their convictions and sentences following an eight-month jury trial. Appellants were charged with various offenses arising from their involvement with the Mexican Mafia, also know as La Eme.

The jury convicted each Appellant of a substantive violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C. § 1962(c), conspiracy to violate RICO under 18 U.S.C. § 1962(d), and--except Moreno--conspiracy to aid and abet narcotics trafficking in violation of 21 U.S.C. § 846.

The jury also convicted individual Appellants of other crimes. For murder to maintain or increase their position in a RICO enterprise, in violation of 18 U.S.C. § 1959(a)(1) and (2), the jury convicted Aguirre of one count, Gallardo of three counts, Shryock of one count, and Therrien of two counts. For assault with a deadly weapon to maintain or increase their position in a RICO enterprise, in violation of 18 U.S.C. § 1959(a)(2) and (3), the jury convicted Aguirre of one count, Arias of one count, Gallardo of two counts, J. Hernandez of one count, and Shryock of two counts. For conspiracy to commit murder to maintain or increase their position in a RICO enterprise, in violation of 18 U.S.C.

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§ 1959(a)(5) , the jury convicted Aguirre of one count, Barela of four counts, R. Castro of five counts, Gallardo of two counts, J. Hernandez of two counts, Mendez of one count, Moreno of two counts, Shryock of four counts, and Therrien of two counts. For knowingly carrying and using a firearm during and in relation to the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1), the jury convicted Aguirre of one count, Arias of one count, Barela of two counts, and Gallardo of two counts. For knowingly or intentionally possessing with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), the jury convicted Aguirre of one count, Barela of two counts, and Therrien of one count. The jury convicted J. Hernandez of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and found money or property of his subject to forfeiture pursuant to 18 U.S.C. § 924(d)(1) as a result.

The indictment also sought forfeitures in connection with the RICO charges, under 18 U.S.C. § 1963, and in connection with the conspiracy to aid and abet narcotics trafficking charge, under 21 U.S.C. § 853. The district court dismissed these counts except as to Aguirre, Mendez, and Therrien. After the district court held a bifurcated trial on these counts, the jury returned forfeiture verdicts against the property of all charged Appellants.

The district court imposed the following sentences: (1) 384 months for Arias and J. Hernandez; (2) life imprisonment for Barela, R. Castro, R. Hernandez, Mendez, Moreno, Shryock, and Therrien; (3) life plus sixty months for Aguirre; and (4) life plus 300 months for Gallardo.

On appeal, Appellants raise numerous challenges to their convictions and sentences. Appellants principally contend that the district court (1) erred by empaneling an anonymous jury and limiting the scope of a hearing on juror misconduct; (2) violated their constitutional right to a public trial; (3) erred by denying their motions to suppress wiretap and videotape evidence; (4) erred in several trial rulings; (5) erred in discovery rulings; (6) erred in several jury instructions; and (7) erred in the sentences imposed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Ultimately, we affirm Appellants' convictions and sentences, except that we vacate R. Hernandez's sentence and remand for re-sentencing of R. Hernandez only.

BACKGROUND

We provide only a general factual background at this preliminary juncture. Additional facts necessary to the discussion of the several issues are contained in the portions of this opinion in which those issues are addressed. The factual recitals are based on trial testimony and other evidence that the jury could reasonably have credited in reaching its verdicts.

Appellants were named in a thirty-one-count superseding indictment charging them and ten others. 1 The charges stemmed from Appellants' involvement with the Mexican Mafia. At trial, the government presented voluminous evidence, including: (1) approximately 275 audiotapes of conversations between the defendants and their coconspirators, including wiretaps on the phones of J. Hernandez, consensual recordings of telephone conversations and face-to-face meetings, and recordings

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made at the Los Angeles County Jail and Pelican Bay State Prison in California; (2) approximately 125 witnesses, including law enforcement officers, forensic experts, former Mexican Mafia members Ernesto Castro ("E. Castro") and Johnny Torres ("Torres"), and former Mexican Mafia associate James Prado ("Prado"); and (3) fourteen videotapes of meetings between Mexican Mafia members.

A. The Mexican Mafia's Structure and Operation

Los Angeles County Sheriff's Deputy Richard Valdemar ("Deputy Valdemar"), an expert witness, testified that the Mexican Mafia is a prison gang formed in the 1950s by Hispanic street gang members incarcerated at the Deuel Vocational Institution, located in Tracy, California. The founding members formed the organization to protect Hispanics from other such gangs within California's jails and prisons. By using violence, the Mexican Mafia eventually gained significant power and control over illegal activities in the California prison system. As members were released from state custody, they extended their influence outside the prison system to control drug distribution--principally by "taxing" drug dealers--in parts of Southern California.

At the time of trial, Deputy Valdemar testified that the Mexican Mafia had 250 to 300...

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