484 F.3d 745 (5th Cir. 2007), 05-51209, United States v. Valles

Docket Nº:05-51209.
Citation:484 F.3d 745
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juan Victor VALLES, also known as Smiley; Johnny Garcia-Esparza, also known as Gira; Sammy Garcia, also known as Spiderman; Jimmy Zavala, also known as Panson, also known as Gordo, Defendants-Appellants.
Case Date:April 12, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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484 F.3d 745 (5th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Juan Victor VALLES, also known as Smiley; Johnny Garcia-Esparza, also known as Gira; Sammy Garcia, also known as Spiderman; Jimmy Zavala, also known as Panson, also known as Gordo, Defendants-Appellants.

No. 05-51209.

United States Court of Appeals, Fifth Circuit.

April 12, 2007

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[Copyrighted Material Omitted]

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Joseph H. Gay, Jr., Asst. U.S. Atty., Ellen A. Lockwood (argued), San Antonio, TX, for U.S.

Edward L. Bravenec (argued), McKnight & Bravenec, San Antonio, TX, for Valles.

Bowen W. Sutton (argued), Law Offices of Bowen W. Sutton, San Antonio, TX, for Garcia-Esparza.

Vincent Dennis Callahan, III, San Antonio, TX, for Garcia.

Adrienne Urrutia Wisenberg (argued), Solomon L. Wisenberg, PLLC, Washington, DC, for Zavala.

Appeals from the United States District Court for the Western District of Texas.

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:

Defendants-Appellants Juan Victor Valles, Johnny Garcia-Esparza, Sammy Garcia, and Jimmy Zavala were indicted for numerous illegal acts stemming from their involvement in the Texas Mexican Mafia ("TMM"). After a lengthy trial, a jury returned guilty verdicts against each defendant on each count of their respective indictments. The district court sentenced the defendants to lengthy terms of imprisonment. The defendants now appeal their convictions and sentences. Concluding that the district court committed no error, we affirm the defendants' convictions and sentences.

I. FACTS AND PROCEEDINGS

A. Origins of the TMM

The TMM--officially named "Mexikanemi" (Spanish for "free-Mexicans") and often referred to as "La Eme" (a phonetic reference to "Mexikanemi")--was formed in the mid-1980s by Heriberto Huerta, while he was imprisoned in a federal penitentiary. He did so after he obtained permission from the Mexican Mafia of California to establish a similar organization in Texas. According to the TMM constitution, which has remained virtually unchanged since it was drafted in the mid-1980s, the TMM is a criminal organization functioning in "whatever aspect or criminal interest for the benefit of advancement of Mexikanemi" and willing to "traffic in drugs, contract murders, prostitution, major robberies, gambling, arms and anything else [it] can imagine."

The TMM originally operated exclusively inside prisons, both federal and state. As TMM members were released or paroled from prison, however, the TMM spread outside prison to cities within Texas, including San Antonio, Houston, Dallas, Midland, Odessa, and El Paso. It now has a significant presence in the federal prison system, the Texas state prison system, and throughout the state of Texas.

B. Internal Structure of the TMM

The TMM is organized in a hierarchical military structure. At the top are a president and vice president, "who are responsible for all that occurs in the Mexikanemi." Huerta, who is now incarcerated in a different federal penitentiary, is still president of the TMM. Benito Alonzo, a prisoner in a Texas state penitentiary, is the vice president.

Serving directly under the president and vice president are the TMM generals, who

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"are responsible for all that happens in the region of which they are in charge" and for "maintaining communication with the president and vice president so that everything will always be organized because [the TMM is] an organization." Immediately under the generals are the captains and then the lieutenants, who are responsible for the city where they reside or the prison where they are incarcerated, as the case may be. Under the lieutenants are the sergeants, who "are responsible for maintaining order wherever they are." At the bottom of this pyramid are the rank-and-file soldiers, who have the obligation "to attempt to do the best possible in [the TMM's] objective to progress and to advance everything with the Mexikanemi."

Despite any hierarchical differences within the TMM, its constitution expressly establishes that all TMM members "have the obligation of serving and obeying all the rules equally just like any other soldier or brother because all [TMM members] are soldiers and all [TMM members] are Mexican and all [TMM members] are equal." This notion of equality is further exemplified in the TMM's punitive recourse, which provides that "[a]ny member of the Mexikanemi, and it does not matter if it is the president, vice president, general, lieutenants or sergeants or soldiers, that violate the rules of the Mexikanemi must suffer the consequences." These consequences usually constitute death and always do so in the case of disloyalty or treason.

Even though the TMM is a single organization, its hierarchical structure is divided into two separate and distinct chains of command. The TMM's ranking system is split between those members in prison and those outside of prison or "on the street." Thus, there are TMM prison generals, captains, lieutenants, sergeants, and soldiers, and there are street generals, captains, lieutenants, sergeants, and soldiers. TMM prison members only have authority over the TMM's activities within prison, and TMM street members only have authority over activities outside of prison.

Because of this dichotomy, the TMM has developed a policy governing TMM members who are released or paroled from prison. When a TMM prison member is released, he is given a certificate of good-standing from the ranking TMM prison official and must then report to the city where he formerly resided. On his return, the TMM member must present his certificate to the sergeant in charge of the section of the city where the returning member formerly resided. The TMM officials in that area must then investigate the returning member to ensure that he is in good standing. Once it has been determined that the returning member has met the necessary requirements, he becomes a street member of the TMM, starting at the rank of soldier, regardless of what his rank had been in prison. Similarly, a street member who is convicted and sent to prison surrenders his street rank and starts anew in prison. The president and vice president, however, retain their rank and corresponding authority whether they are in prison or on the street.

C. Membership in the TMM

Membership in the TMM was originally limited to convicts while they were in prison. As the organization evolved, the TMM began to allow non-convicts to become members, but only sparingly.

The TMM constitution designates that all TMM members "are responsible for recruiting soldiers and each member which recommends a soldier will be responsible for his recommendation even though the recommendation results as an honorable one or one who deceives." Under this system, a prospective member--referred

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to as a "prospecto"--must be recommended for membership by a current member, who is designated as a sponsor or "padrino" (Spanish for "godfather"). If the prospecto fouls up after he is initiated, his sponsor is responsible for resolving the matter, killing the prospecto if necessary. In recommending a prospecto, the sponsor must submit the prospecto's name to the entire membership to acquire as much background information on the prospecto as possible. If the prospecto is found to be acceptable, he begins a six-month probation period, at the end of which he will be accepted as a member, barring any setbacks.

TMM members refer to each other as "carnal" (Spanish for "brother") or "merecido" (Spanish slang for "a true, hard-core Mafia guy"), and commonly use tattoos for identification. At first, the tattoos were mandatory for TMM members, but they are no longer required, because they hindered the TMM's ability to infiltrate rival gangs and made its members easy targets for law enforcement. Nonetheless, they are still commonly displayed.

There are several tattoos that are common among TMM members. One of these tattoos is the sequence of the arabic numerals "5, 13, 5" or the Roman numerals "V, XIII, V." The "5" or the "V" represent the fifth letter in the alphabet, "E." The "13" or the "XIII" represent the thirteenth letter in the alphabet, "M." This sequence therefore spells "Eme," the abbreviation for Mexikanemi. Another tattoo is shaped like a spider, with two "E"'s forming the legs of the spider and one "M" forming the body. Other popular tattoos comprise the Aztec symbol of an eagle clutching a snake and the word "Mexikanemi" spelled out.

D. The TMM in San Antonio

San Antonio is the capital of the TMM, with a membership of approximately 500. It is divided into four "eschenas" (Spanish for "corners"), North, South, East, and West. The West corner is the strongest. A lieutenant commands each corner, with a captain overseeing the four lieutenants and a general ultimately responsible for the entirety of San Antonio.

In the late 1990s, the TMM in San Antonio increased its involvement in drug trafficking by forcing non-TMM drug dealers to share the heroin and cocaine they received from Mexico. The higher ranking TMM officials would receive the drugs and distribute them down the chain of command to the lieutenants, who would then distribute to the sergeants, who would then distribute to the soldiers. Between 1998 and 2004, as a result of the TMM's newly established supply source, the TMM imported and distributed large amounts of heroin and cocaine, moving at least one kilogram of heroine and one to two kilograms of cocaine a week.

Not only did the TMM in San Antonio make money from directly distributing drugs, but they controlled drug distribution by extorting a street tax--known as "the dime" or "el daime" (Spanish for "the dime")--from rival drug dealers. When the presence of a non-TMM drug dealer came to the attention of the TMM, it would send a member to confront the drug dealer and inform him that he had to pay ten percent of his drug proceeds to...

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