46 F.3d 885 (9th Cir. 1995), 93-50375, United States v. Santiago

Docket Nº:93-50375.
Citation:46 F.3d 885
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard SANTIAGO, a/k/a
Case Date:January 24, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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46 F.3d 885 (9th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Richard SANTIAGO, a/k/a "Chuco", Defendant-Appellant.

No. 93-50375.

United States Court of Appeals, Ninth Circuit

January 24, 1995

Argued and Submitted Oct. 3, 1994.

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[Copyrighted Material Omitted]

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Mark R. Lippman, La Jolla, CA, for defendant-appellant.

David C. Scheper, Asst. U.S. Atty., and David F. Taylor, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: D.W. NELSON, NORRIS, and BOGGS, [*] Circuit Judges.

D.W. NELSON, Circuit Judge:

Richard Santiago appeals his conviction for the first degree murder of Johnny Estrada, a fellow inmate at the United States Penitentiary at Lompoc, California ("USP-Lompoc"). Santiago argues that the district court erred in admitting evidence relating to the Mexican Mafia, a prison gang at USP-Lompoc, because it should have been excluded under Federal Rule of Evidence 404(b) and because it violated his equal protection rights. He also asserts that the prosecution improperly bolstered witness testimony, that the government's closing argument constituted prosecutorial misconduct, and that the court improperly denied his request for discovery of inmate witnesses' prison records.

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We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.


In the early afternoon of January 25, 1989, Johnny Estrada, an inmate at USP-Lompoc, was stabbed to death in the prison kitchen bathroom. Another inmate had seen Santiago, on duty as a kitchen worker, enter the bathroom shortly after Estrada and emerge soon thereafter. After dropping a metal object into a sink and washing a large item of clothing, Santiago returned to his cellblock.

In the ensuing investigation, prison staff found a knife in the kitchen sink and a damp sweatshirt stained with human blood near the kitchen door. Guards discovered blood-stained garments, consistent with Santiago's clothing, in a trash can one level above Santiago's cell and in the shower in his cell range. During examinations of inmates after the murder, a guard noticed a fresh cut on Santiago's right hand. Laboratory tests revealed that some of the blood on the clothing matched Santiago's blood type, and some matched that of Estrada. In addition, DNA tests on the clothing established that Santiago was among those (only two percent of the population) whose blood was consistent with the blood on the clothing.

At trial in January 1993, inmate Martin Ybarra testified that two weeks prior to the murder, Santiago had told him that "there is going to be a body." Ybarra also stated that on the morning of the murder, in accordance with instructions from another inmate, he delivered two metal knives from the prison paintshop to the kitchen area for use by Santiago. Shortly before the murder, Ybarra saw another inmate deliver one of these knives to Santiago.

Carlos Sanchez, Santiago's cellmate, testified that several weeks before the killing, Santiago had asked him what was required to become a member of a prison gang. Sanchez's response was that an inmate would have to kill someone in prison before a gang would accept him. Some time later, Santiago told Sanchez that he had to kill somebody in order to become a member of a gang known as the Mexican Mafia. The night before the murder, Sanchez saw and heard Santiago discussing a "hit" with George Bustamonte, a member of the Mexican Mafia. Soon after the murder, Sanchez saw Santiago cutting up a glove and putting the pieces in the toilet. At that time, Santiago acknowledged to Sanchez that he "did it."

On January 21, 1993, the jury found Santiago guilty of first degree murder, 18 U.S.C. Sec. 1111, and possession of a weapon by a prison inmate, 18 U.S.C. Sec. 1791. On May 6, 1993, Santiago was sentenced to life imprisonment for the murder and to 60 months' imprisonment on the possession charge, with the sentences to run concurrently. This appeal followed.


Santiago contends that his conviction must be overturned because the district court improperly admitted evidence relating to the role of the Mexican Mafia gang in the murder. He argues that such admission was impermissible under Federal Rule of Evidence 404(b), which excludes evidence of other crimes by the defendant, and that the testimony should have been excluded for lack of foundation to link Santiago to the Mexican Mafia. We reject these arguments.

A. Standard of Review

We review de novo the issue of whether evidence relates to "other crimes" under Federal Rule of Evidence 404(b). United States v. Warren, 25 F.3d 890, 895 (9th Cir.1994). The decision to admit evidence under Rule 404(b) is reviewed for abuse of discretion, United States v. Khan, 993 F.2d 1368, 1376 (9th Cir.1993), as is the issue of whether evidence is supported by a proper foundation, United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.1987).

B. Rule 404(b)

The prosecution elicited testimony relating to the Mexican Mafia at several points during the trial. Inmate Courtney Murray testified that he had been introduced to Santiago by a member of the gang, that Santiago and a gang member had walked him around the

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prison yard to indicate to other inmates that Murray was an "associate" of the gang, and that he had seen Santiago carve the initials of the Mexican Mafia into cell bars. In addition, Martin Ybarra admitted to being an associate of the gang and identified one of the persons who met with Santiago the night before the killing as a Mexican Mafia member. Carlos Sanchez testified that the defendant asked him what was required to join a prison gang, and that Santiago later told him that he needed to kill someone to join a gang. Finally, Ybarra, Sanchez, and another inmate expressed fear that the Mexican Mafia would harm them because they testified against Santiago. None of this testimony violated Rule 404(b) because (1) it did not relate to "other crimes," and (2) it falls within the Rule's exception for evidence relating to motive.

Under Rule 404(b), "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). Evidence is not considered to relate to "other crimes" if it is "inextricably intertwined" with, and "part of the same transaction" as, the crime for which the defendant was charged. United States v. Mundi, 892 F.2d 817, 820 (9th Cir.1989), cert. denied, 498 U.S. 1119, 111 S.Ct. 1072, 112 L.Ed.2d 1178 (1991); United States v. Soliman, 813 F.2d 277, 278 (9th Cir.1987). Unlike other cases involving a Rule 404(b) challenge, see, e.g., United States v. Mills, 704 F.2d 1553, 1558 (11th Cir.1983) (addressing witness testimony that the Aryan Brotherhood was engaged in the drug trade), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984), the record reveals no evidence of any specific, wrongful acts by either the Mexican Mafia or Santiago that are unrelated to the murder of Johnny Estrada. Evidence of gang links to the procurement of the murder weapon and to the planning of the crime relates directly to the crime for which Santiago was indicted. It therefore does not constitute "other crimes" evidence subject to Rule 404(b).

Moreover, the evidence relating to the Mexican Mafia is admissible "as proof of motive, opportunity, intent, preparation, [or] plan." Fed.R.Evid. 404(b). This court specifically has admitted evidence relating to gangs and other organizations when relevant to the issue of motive. See, e.g., United States v. Winslow, 962 F.2d 845, 850 (9th Cir.1992) (admitting testimony on Aryan Nation as relevant to bombing of gay bar by group members); United States v. Skillman, 922 F.2d 1370, 1374 (9th Cir.1990) (admitting testimony, over Rule 403 objection, that defendant asked to attend a "skinhead" picnic as relevant on issue of racial animus in civil rights case); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986) (admitting evidence of affiliation with Aryan Nation to show defendant's motive to hire hit man to kill persons who might testify against the group).

Furthermore, the Eleventh Circuit upheld admission of gang testimony under circumstances strikingly similar to the present case. See United States v. Mills, 704 F.2d 1553, 1559 (11th Cir.1983), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984). In Mills, the court admitted testimony relating to the organization and dealings of the Aryan Brotherhood prison gang to show motive--revenge on behalf of a fellow member--for a prison inmate to kill a stranger, and to show how intricate preparation involving inmates in different prisons could occur. Id. In the present case, the testimony relating to the Mexican Mafia was necessary to explain the reason that Santiago would kill a stranger--to be accepted into the gang--and to show how and why other inmates assisted him in obtaining the weapon.

Santiago's reliance on United States v. Roark, 924 F.2d 1426 (8th Cir.1991), is misplaced. Whereas broad testimony in Roark on the organization of the Hell's Angels could not be linked to the defendant's motive to engage in the drug trade, see id. at 1434, the gang-related evidence in the present case applied directly to motive and preparation. Unlike in Roark, the Mexican Mafia was not "the entire theme of the trial," so as to infect the trial with the threat of "guilt[ ] by association." Roark, 924 F.2d at 1434. The record simply does not support Santiago's allegation that the government's linkage of the evidence to motive and preparation was a

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pretense to smuggle in the evidence to condemn Santiago merely for affiliation with a prison gang.

Although Santiago correctly notes that some of the gang-related testimony only addressed witnesses'...

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