388 F.3d 1199 (9th Cir. 2004), 01-50082, United States v. Fernandez

Docket Nº:01-50082, 01-50162, 01-50088, 01-50373, 01-50126, 01-50513.
Citation:388 F.3d 1199
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank FERNANDEZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Roy Gavaldon, aka Spider, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. David Gonzales-Contreras, aka David Contreras-Gonzalez, Defendant-Appellant. United States of America, Plaintiff-Appel
Case Date:October 27, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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388 F.3d 1199 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frank FERNANDEZ, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Roy Gavaldon, aka Spider, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

David Gonzales-Contreras, aka David Contreras-Gonzalez, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Dominick Shewmaker Gonzales, aka Solo, aka Dominick Gonzales, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Jimmy Sanchez, aka Seal D, aka Smokey, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Suzanne Schoenberg Sanchez, Defendant-Appellant.

Nos. 01-50082, 01-50162, 01-50088, 01-50373, 01-50126, 01-50513.

United States Court of Appeals, Ninth Circuit

October 27, 2004

Argued and Submitted Aug. 5, 2004.

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Kenneth M. Stern, Law Offices of Kenneth M. Stern, Woodland Hills, CA, for defendant-appellant Frank Fernandez.

Darlene M. Ricker, Malibu, CA, for defendant-appellant Roy Gavaldon.

Philip Deitch, Law Offices of Philip Deitch, Los Angeles, CA, for defendant-appellant David Gonzales-Contreras.

Cara DeVito, West Hills, CA, for defendant-appellant Dominick Gonzales.

Karyn H. Bucur, Laguna Hills, CA, for defendant-appellant Jimmy Sanchez.

Verna Wefald, Pasadena, CA, for defendant-appellant Suzanne Schoenberg-Sanchez.

Robert E. Dugdale, Janet C. Hudson, Fred A. Rowley, Jr., Assistant United States Attorneys, United States Department of Justice, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. Nos. CR-99-00083-DOC-01, CR-99-00083-DOC-09, CR-99-00083-DOC, CR-99-00083-DOC-20, CR-99-00083-DOC-4, CR-99-00083-DOC-25.

Before: B. FLETCHER, CANBY, and RAWLINSON, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Appellants Frank Fernandez ("Fernandez"), Roy Gavaldon ("Gavaldon"), David Gonzales-Contreras ("Contreras"), Dominick Gonzales ("Gonzales"), Jimmy Sanchez ("Sanchez"), and Suzanne Schoenberg-Sanchez ("Schoenberg") (collectively "Appellants") were convicted on a variety of RICO and drug-trafficking charges relating to their participation in or involvement with the Mexican Mafia or "the Eme." They appeal their convictions on numerous grounds. Four of the Appellants also raise challenges to their sentences. We affirm the convictions of all six defendants; affirm the sentences of Fernandez, Gavaldon and Schoenberg; and remand for re-sentencing in the cases of Contreras, Gonzales, and Sanchez. We will, however, stay the issuance of the mandate as to all appellants except Sanchez pending the Supreme Court's resolution of the impact of Blakely v. Washington, --- U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on the federal sentencing guidelines.

The district court had jurisdiction over these cases pursuant to 18 U.S.C.§ 3231. We have jurisdiction over the consolidated appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). All Appellants filed timely notices of appeal. 1

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, a grand jury in Los Angeles filed a twenty-nine-count First Superseding

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Indictment ("the indictment"), which charged Appellants and eighteen others with a number of racketeering, conspiracy and related counts. Fernandez, Contreras, Gonzales and Sanchez were charged in count one with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). 2 All Appellants were charged in count two with conspiracy to violate RICO under 18 U.S.C. § 1962(d), and in count three with conspiracy to aid and abet drug trafficking in violation of 21 U.S.C. § 846. Fernandez, Sanchez, and Schoenberg were charged in count four with conspiracy to aid and abet drug distribution within the Los Angeles County Jail ("LACJ") and other California prisons. Fernandez was charged in counts fourteen, fifteen, eighteen and twenty-one with violations of the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute, 18 U.S.C.§ 1959, namely, conspiracies to murder four different individuals. Sanchez was charged with two VICAR counts (fifteen and nineteen), also for conspiracy to commit murder. Finally, Gonzales was charged with one VICAR count (twenty-one) for conspiracy to commit murder, and one count (twenty-nine) of being a felon in possession of a firearm under 18 U.S.C. § 922(g) (1). The jury eventually convicted Appellants on all counts, except that it found Sanchez not guilty on VICAR count nineteen and it hung on VICAR count eighteen against Fernandez.

Although the indictment had originally charged twenty-four individuals, the district court severed a number of death eligible defendants from the non-capital defendants, the latter group including Appellants. Ultimately, eleven defendants including Appellants were tried together in the district court. 3

The "Eme" 4

Max Torvisco was an important Eme member who testified for the prosecution about the structure and activities of the organization. Torvisco testified that the Eme is the "gang of all gangs." It is an organization that wields a significant amount of control over several California prisons and jails as well as street gangs in the Los Angeles area. The Eme asserts its control through violence and intimidation.

Torvisco testified that the Eme has both full members and associates. An individual becomes a member of the organization by receiving the votes of three members and by showing loyalty to the organization through committing murder, assault, extortion or drug distribution. The Eme has a number of important rules: (1) members are not to testify against each other; (2) members are not to engage in homosexual acts; (3) members are not to engage in sexual activities with the wives or girlfriends of other members; and (4) no one, not even a member, should attempt to kill or harm a member of the Eme without the vote of three members.

Torvisco testified that the key to the Eme's power was its ability to threaten the members of smaller gangs as well as others with assault and even death if they did not comply with the Eme's demands. In

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particular, the Eme's power within the prison system gave it leverage even over gang members outside of prison: gang members who did not cooperate with the Eme when they were outside could be dealt with if they ever landed in jail--and many of them did. An Eme member or an associate could place an individual or even a whole gang on the "green light" list, which meant that the individual or gang was targeted for any form of assault up to and including murder. There was also a "hard candy" list, which meant that the individual or gang was targeted for death.

Torvisco testified that Eme members outside of the prison system were engaged in attempts to "organize" street gangs in various parts of the Los Angeles area. A group of Eme members or associates would meet with the members of smaller gangs and explain the Eme's "program:" the gang was to stop engaging in violence without the Eme's approval and would receive a measure of protection from the organization. The gang would also have to pay a "tax" 5 on the proceeds from their drug sales. The amount of the tax depended on the size of the gang's territory and the amount of drugs its members were selling. The Eme actually strove to minimize inter-gang violence so each gang would be more efficient in its drug-selling activities and would pay more taxes to the Eme. However, if a gang did not comply with the Eme's demands, it would be placed on the "green light" list. Torvisco testified at trial about the progress the Eme had made in organizing the gangs in East Los Angeles and the west side area of Los Angeles in the mid- to late 1990s.

Evidence Regarding the Appellants

Appellants Fernandez and Sanchez were identified as members of the Eme. Gavaldon, Contreras and Gonzales were identified as associates. Schoenberg was described as being "associated" with the Eme because she was married to Sanchez.

The government presented evidence that all of the appellants were involved in different aspects of the Eme's taxing of drug trafficking by street gangs. Fernandez, co-defendant Martinez and Torvisco led an effort to "organize" the street gangs in the San Fernando Valley in late 1998. Gonzales, who was Fernandez's stepson, and Contreras were responsible for collecting tax money from gangs in the Valley on behalf of Fernandez and the Eme. Gavaldon was involved in other efforts by Martinez and Torvisco to organize the gangs in the southeast area of Los Angeles, and again, to collect taxes for the Eme. Although Sanchez was incarcerated during the relevant time period, he was able to collect tax payments from gangs on the outside through the help of Torvisco. Torvisco testified that Schoenberg would deliver the payments to Sanchez during her visits to her husband in prison. In addition to testimony by Torvisco and former co-defendant Jesus Rochin, the government presented hundreds of taped conversations which corroborated the appellants' efforts to organize and tax the drug distribution of street gangs.

The government presented evidence that...

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