U.S. v. Flores, No. 08-10775.

• Decision Date: 29 June 2009
• Docket Number: No. 08-10775.
• Citation: 572 F.3d 1254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge FLORES, a.k.a. Alfonso Medina Hernandez, a.k.a. Juan Diaz-Jasso, a.k.a. Shadow, Armando Prudente, a.k.a. Armando Balaco, a.k.a. Charra, Roberto Sandoval, a.k.a. Charrita, Ricardo Gama, a.k.a. Kiwi, Israel Cruz, a.k.a. Najeiza Cruz, a.k.a. Mananitas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

572 F.3d 1254

UNITED STATES of America, Plaintiff-Appellee, v. Jorge FLORES, a.k.a. Alfonso Medina Hernandez, a.k.a. Juan Diaz-Jasso, a.k.a. Shadow, Armando Prudente, a.k.a. Armando Balaco, a.k.a. Charra, Roberto Sandoval, a.k.a. Charrita, Ricardo Gama, a.k.a. Kiwi, Israel Cruz, a.k.a. Najeiza Cruz, a.k.a. Mananitas, Defendants-Appellants.

No. 08-10775.

United States Court of Appeals, Eleventh Circuit.

June 29, 2009.

Lynn Gitlin Fant (Court-Appointed), Waco, GA, William A. Morrison (Court-Appointed), Jones, Morrison & Wormack, P.C., Richard A. Grossman (Court-Appointed), Jay L. Strongwater (Court-Appointed), Dietrick, Evans, Scholz & Williams, L.L.C., Atlanta, GA, Michael H. Saul (Court-Appointed), Marietta GA, for Defendants-Appellants.

Paul Rhinehart Jones, Kim S. Dammers, John Andrew Harn, Atlanta, GA, for Plaintiff-Appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

This is a criminal appeal from the convictions and sentences of five members of the Hispanic street gang "Sureños-13" ("Sur-13"). Armando Prudente, Roberto Sandoval, Israel Cruz, Jorge Flores, and Ricardo Gama (collectively "the defendants") were charged with thirteen others in a 31-count indictment for crimes involving, inter alia, conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., two murders, possession of firearms, and possession of drugs with intent to distribute. The five defendants were tried together and were convicted of various counts of the indictment. They now appeal several aspects of their convictions and sentences.

On appeal, the defendants raise the following arguments: (1) the district court abused its discretion by dismissing for cause a juror who suffered from untreated attention deficit disorder; (2) the defendants were deprived of the presumption of innocence when one potential juror, in the presence of the venire, commented that during his employment as a corrections officer, he had "dealt" with one or more of the defendants; (3) the evidence was insufficient to establish that Flores was an accomplice in the murder of Rogelio Guzman; (4) the court impermissibly admitted a codefendant's hearsay statements that were not made in furtherance of the conspiracy; (5) the district court abused its discretion by not requiring the government to disclose the identity of a confidential informant; (6) the district court abused its discretion by not instructing the jury on the defense of justification; (7) the district court erred by instructing the jury that drug distribution, by law, satisfies the interstate nexus element of a RICO conspiracy charge; (8) Prudente's sentence is unconstitutionally cruel and unusual, in violation of the Eighth Amendment; (9) Sandoval's sentence, because it was enhanced for a crime of "juvenile delinquency," exceeds the statutory maximum; and (10) Sandoval's sentence is unreasonable.

I. Facts and Background

The defendants' trial lasted four weeks and included testimony by Sur-13 members and law enforcement officers, along with evidence obtained from wiretaps and surveillance videos. The evidence adduced at trial established the following:¹

Sur-13 is a gang with chapters in several U.S. cities, including Atlanta. The gang is hierarchical, with a three-tiered structure that groups members based on age and status. When Sur-13 initiates a new member, the individual is "jumped in" through a beating by three other gang members. A member can then improve his status within Sur-13 by "putting in work" for the gang through, among other things, participating in drive-by shootings, robberies, burglaries, and violent confrontations with members of rival gangs.

In 1996, Prudente was the second ranking member in Sur-13's Atlanta chapter, behind the chapter's founder, "Chico." When Chico was not present, Prudente acted as the gang's leader.² In his role as leader, Prudente had discretion to order attacks on rival gangs and to impose beatings on fellow Sur-13 members for violations of the gang's rules.

On April 24, 1999, Sergio Escutia, a Sur-13 member, was standing in a parking lot outside of an apartment complex as he spoke on his cell phone with Prudente. Escutia was approached by members of "La Gran Familia," a coalition of gangs that includes Sur 13's rivals, the "Brown Side Locos." The rival gang members, apparently seeking a violent confrontation, made gang signs with their hands and exposed weapons, but Escutia did not "throw back" his gang sign because children were present. Escutia left the scene and, at Prudente's direction, came to Prudente's Atlanta apartment.

At Prudente's apartment, Escutia told Prudente and some other Sur-13 members about the confrontation with La Gran Familia. Prudente left the room and returned with two TEC-9 semi-automatic firearms, saying he was angry with the Brown Side Locos for a drive-by shooting that they allegedly conducted the day before, which resulted in damage to two of Prudente's cars. Prudente assembled a group for a "payback" mission, comprised of Flores, Sandoval, Escutia, and an individual nicknamed "Smiley." Prudente handed the TEC-9 firearms to Flores and Sandoval.

The group loaded into Escutia's red Mustang, with Escutia in the driver's seat, Flores in the front passenger's seat, and Sandoval and Smiley in the rear passengers' seats. The guns were placed underneath the backseat and Sandoval directed Escutia to Gwinnett County, which was considered the Brown Side Locos' turf. Once there, Sandoval directed Escutia to follow a brown Impala. The Impala pulled into a store parking lot and the occupants spoke with the occupants of a nearby white Monte Carlo. The Sur-13 members believed the two cars contained members of the Brown Side Locos because the cars "fit the type of cars that we usually would look for like with spoked rims, low rider style...." After about fifteen minutes, the Impala pulled out of the parking lot, followed by the Monte Carlo. Sandoval ordered Escutia to follow the Monte Carlo and a gun was passed to Flores from one of the occupants of the backseat. Escutia, again at Sandoval's direction, pulled up next to the Monte Carlo and Flores leaned out of the window and fired at the Monte Carlo, killing the driver of the vehicle, Rogelio Guzman. After two shots, Flores's gun jammed and Escutia drove off.

The group returned to Prudente's apartment, where Flores and Sandoval bragged about the night's events. Prudente collected the firearms and instructed those present not to discuss the shooting with anyone else. Another gang member heard Prudente on the telephone a day or two later trying to sell two TEC-9 firearms.

Prudente ordered Escutia to dispose of the car used in the Guzman killing; approximately one week after the shooting, Escutia drove his car to Calhoun, Georgia and left it with a friend. Two or three weeks later, Escutia's mother told him that the police were looking for him and that they were asking questions about his car and a shooting. Escutia relayed this information to Prudente. In order to protect his nephew, Sandoval, from going to jail, Prudente ordered Escutia to frame two Sur-13 members, known as "Sleepy" and "Dundee," for the Guzman killing. Escutia thereafter told police that the passengers in the car on the night of the killing were Flores, Sleepy, and Dundee. The car was recovered by police and Sleepy and Dundee later pleaded guilty to the April 24th shooting.

The jury also heard testimony about a second Sur-13 killing. On the night of December 12, 2003, some Sur-13 members, including Cruz, attended a party in a clubhouse open to the public. The party's organizers hired two security guards to monitor the venue's door. Sometime after midnight, members of the rival gang "Vatos Locos" arrived at the party. Inside the clubhouse, members of the two gangs argued and a fight broke out, which included members of the gangs throwing beer bottles at each other. The security guards "shut the whole party down" and "ushered everybody out" the clubhouse's front door. Once outside, Cruz and others stood on the steps of the building, arguing with party-goers on the ground below and threatening to shoot them. Cruz pulled a pistol out of his jacket pocket and fired it towards the crowd. He fatally shot Florentine Marcial, who was not a gang member, in the back.

The jury convicted the defendants of many, but not all, of the charges in the superceding indictment. The jury's findings most relevant to this appeal are the following: The jury found Prudente and Flores guilty of the Guzman murder and Cruz guilty of the Marcial murder, both violent crimes in aid of racketeering. See 18 U.S.C. § 1959(a)(1). The jury issued special findings as to the RICO conspiracy charges, finding that Prudente and Sandoval both committed the Guzman murder, an overt act in furtherance of a pattern of racketeering activity. See 18 U.S.C. §§ 1961(1), (5), 1962(c), (d). The district court sentenced Prudente, Flores, and Cruz to life plus 120 months' imprisonment, Sandoval to life imprisonment, and Gama to 51 months' imprisonment. All five defendants appealed.

II. Discussion

After reviewing each of the defendants' arguments on appeal and finding no error, we affirm their convictions and sentences.

A. Juror Dismissal

At voir dire, Ms. Fisher, a potential juror, informed the court that she suffered from attention deficit disorder ("ADD") and was not on medication because she did not presently have insurance. She explained that this untreated condition could "cause [her] mind to wander." The district court initially responded, "Okay. Well if you get selected and you have a problem, let me know. I didn't mean to embarrass you." Despite the defendants' objections, however, the district court subsequently excused Fisher for cause, citing "her health problems and her [lack of] medication."

A...