U.S. v. Delgado

Decision Date16 February 2005
Docket NumberNo. 03-41379.,03-41379.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jimmy DELGADO, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Mark Michael Dowd (argued), Brownsville, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

David Kenneth Sergi (argued), Sergi & Associates, San Marcos, TX, Randall Barrera, Law Office of Randall Barrera, Corpus Christi, TX, for Delgado.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Defendant Jimmy Delgado appeals his criminal conviction for conspiracy to conduct a racketeering enterprise in violation of 18 U.S.C. § 1962(d) and conducting a racketeering enterprise in violation of 18 U.S.C. § 1962(c). We affirm the conviction.

BACKGROUND

The Texas Mexican Mafia ("TMM") is a criminal organization which originated within the Texas prison system in the 1980s. It provides protection to its members from other prisoners or prison gangs and otherwise furthers the interests of its members. As members are released from prison, they must maintain contact with the organization and assist both free and incarcerated members. TMM provides direction, advice, organization and protection for its members' various criminal ventures. In exchange for membership, TMM members send 10% of their illegal proceeds ("the dime") to TMM headquarters. Members must also collect "the dime" from non-member drug dealers and remit that money to TMM headquarters.

Appellant Jimmy Delgado was a TMM member living in Victoria, Texas. As such, he participated in the affairs of TMM's Victoria chapter, which had been founded by Joe Pena upon his release from prison. As TMM members were released from prison, they reported to Pena, who tasked them in the sale of drugs and in collecting "the dime" from other drug dealers. Victoria Chapter TMM members participated in periodic meetings to discuss ongoing cocaine sales, the collection of drug debts, the collection of "the dime," and retaliation against members of other gangs. While Delgado participated in drug-dealing, his most significant contribution to TMM affairs was his collection of drug debts and intimidation of individuals who posed problems to TMM members.

The Indictment

In December of 2001, Delgado, along with eight other defendants, was indicted for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C. § 1962(d) and a substantive violation of RICO under 18 U.S.C. § 1962(c).

With respect to the first count, the indictment alleged that TMM was a continuing racketeering enterprise that engaged in and affected interstate commerce by engaging in criminal activity, especially the purchase and sale of illegal drugs that were obtained and sold in interstate commerce. It alleged that the purposes of TMM were to enrich its members through criminal activity and protect its interests through violence and threats of violence. It further alleged that Delgado knew of and agreed to TMM's purposes.

Under the second count of the indictment, the grand jury further charged the defendants with knowingly and intentionally participating in the conduct of the affairs of TMM through a pattern of racketeering activity consisting of seven acts. The racketeering acts charged were (1) conspiracy to distribute cocaine, (2) murder of Gilbert Vasquez, (3) attempted murder of Troy Jenkins, (4) robbery at the home of Leonardo Ramos, (5) murder of Alfonso Sanchez, (6) murder of Chris Vasquez, and (7) murder of Jason Ramos. Delgado was alleged to have participated personally in all acts but the murder of Jason Ramos.

Evidence at Trial

At trial, several of Delgado's co-defendants, who had entered into plea-agreements with the government, testified against Delgado. Their testimony showed that Delgado was an active member of TMM and that he participated in the organization's criminal activities. More specifically, the government presented evidence of Delgado's involvement in the predicate acts listed in the indictment. Witnesses testified to the following acts related to the collection of debts: Delgado directed and participated in the search for and murder of Gilbert Vasquez, who owed Delgado $300 for cocaine. He also directed, participated in, and authorized the murder of Chris Vasquez, who also owed money for cocaine. Delgado was assigned to collect drug debts that Joseph Canales, a TMM "associate," turned over to TMM as payment of "the dime."

Witnesses also testified to Delgado's effective intimidation of members of the Hermanos Pistoleros Latinos ("HPL"), a rival gang, and other individuals with whom TMM had disputes: In December of 1999, Delgado advised Paul Cortez, a TMM member, that they would be killing Richard Velez, an individual with whom a ranking member of TMM had been in a fight. However, Delgado and Cortez mistakenly entered the apartment of Troy Jenkins, a neighbor of Velez. Delgado stabbed Jenkins several times.

The government presented evidence incriminating Delgado in other TMM crimes: In January of 2000, shortly after his promotion to "sergeant" in TMM, Delgado pressured Pineda, a TMM member, into killing a member of HPL with whom Pineda had experienced problems. In February of 2000, Delgado and a TMM associate robbed Leonardo Ramos, a member of HPL who had not paid "the dime."

Delgado took the stand and testified that he was a member of TMM, that he met with other TMM members in Victoria, and that he had held a position of leadership in TMM's Victoria chapter. Delgado stated that he did not share other TMM members' belief in pursuing the interests of TMM through murder, extortion, and other crimes. Rather, he found TMM to be a benevolent brotherhood or support group. Delgado admitted having been convicted of the murder of Chris Vasquez, one of the predicate acts charged in the indictment, but denied any involvement in that act or any other predicate acts charged.

After a trial, the jury returned a verdict of guilty against Delgado on both RICO counts. The jury found Delgado guilty of six of the seven racketeering acts charged in the indictment.

DISCUSSION

Delgado claims that the following errors warrant reversal of his conviction: (1) a fundamental variance exists between the indictment and the proof offered at trial that violated Delgado's right to prepare for trial; (2) the evidence at trial was insufficient to prove Delgado's guilt beyond a reasonable doubt; (3) the district court erred in admitting hearsay statements of co-conspirators under Federal Rule of Evidence 801(d); (4) the district court violated Delgado's right to confront witnesses against him by admitting hearsay statements contained in the testimony of Michael Martinez; (5) the district court erred in failing to give a limiting instruction concerning co-conspirators' guilty pleas; and (6) the district court erred in allowing the government to introduce evidence of appellant's prior conviction. We discuss each in turn.

I. Material Variance

Delgado first argues that there is a material variance between the indictment and the evidence that was presented at trial such that he was denied his Sixth Amendment rights. We reject his argument.

A variance arises when the proof at trial depicts a scenario that differs materially from the scenario charged in the indictment but does not modify an essential element of the charged offense. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); United States v. Puig-Infante, 19 F.3d 929, 935 (5th Cir.1994). A variance necessitates reversal only when it has prejudiced the defendant's substantial rights. Id. at 935-36.

According to Delgado, the indictment alleged that he was involved in TMM's drug business, but the evidence presented at trial sought to associate Delgado with the personal drug business of Joe Pena. We reject this contention. While Joe Pena did indicate during cross-examination that he personally profited from the sale of drugs and considered his drug business to be his own, he also testified on direct examination that he was a member of TMM; that he collected "the dime" for TMM from other drug dealers; that he purchased drugs from TMM members; that TMM members reported to him to sell drugs for him; and that TMM members collected debts owed to him. The testimony of several other witnesses confirmed a strong connection between Joe Pena's drug business and TMM. Thus, the government presented evidence of the very scenario alleged in the indictment. There was no material variance between the indictment and the proof offered at trial.

II. Sufficiency of the Evidence

Delgado next contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt.

"In reviewing sufficiency of the evidence we view the evidence and all inferences to be drawn from it in the light most favorable to the verdict to determine if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Posada-Rios, 158 F.3d 832, 855 (5th Cir.1998) (citing United States v. Sneed, 63 F.3d 381, 385 (5th Cir.1995)). After reviewing the record, we conclude that the jury heard sufficient evidence to find Delgado guilty on both the substantive and conspiracy counts.

A. Conspiracy Offense

The RICO Act criminalizes conspiracy to violate any of its substantive provisions. 18 U.S.C. § 1962(d). "To prove a RICO conspiracy, the government must establish (1) that two or more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed to the overall objective of the RICO offense." Posada-Rios, 158 F.3d at 857-58. These elements may be established by circumstantial evidence. Id. Each requirement is met here.

First, there is sufficient evidence for a jury to find that two or more peopl...

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