657 F.3d 811 (9th Cir. 2011), 08-50141, United States v. Martinez

Docket Nº:08-50141, 08-50142, 08-50145, 08-50147, 08-50150, 08-50151, 08-50152.
Citation:657 F.3d 811
Opinion Judge:NOONAN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ricardo MARTINEZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Cesar J. Abarca, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Joshua Cruz, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. George Fernandez, Defendant-Appellant. Unit
Attorney:Gordon S. Brownell, St. Helena, CA, for defendant-appellant Ricardo Martinez. Debra A. DiIorio, San Diego, CA, for defendant-appellant Cesar J. Abarca. Alex L. Landon, San Diego, CA, for defendant-appellant Joshua Cruz. Arza Feldman, Uniondale, NY, for defendant-appellant George Fernandez. David ...
Judge Panel:Before: JOHN T. NOONAN and KIM McLANE WARDLAW, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.[*]
Case Date:June 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 811

657 F.3d 811 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ricardo MARTINEZ, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Cesar J. Abarca, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Joshua Cruz, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

George Fernandez, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Richard Valenzuela, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Eduardo Gonzalez-Gallegos, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Thomas Durkin, Defendant-Appellant.

Nos. 08-50141, 08-50142, 08-50145, 08-50147, 08-50150, 08-50151, 08-50152.

United States Court of Appeals, Ninth Circuit.

June 22, 2011

Argued and Submitted May 4, 2011.

Amended Sept. 14, 2011.

Page 812

[Copyrighted Material Omitted]

Page 813

[Copyrighted Material Omitted]

Page 814

Gordon S. Brownell, St. Helena, CA, for defendant-appellant Ricardo Martinez.

Debra A. DiIorio, San Diego, CA, for defendant-appellant Cesar J. Abarca.

Alex L. Landon, San Diego, CA, for defendant-appellant Joshua Cruz.

Arza Feldman, Uniondale, NY, for defendant-appellant George Fernandez.

David A. Schlesinger, San Diego, CA, for defendant-appellant Richard Valenzuela.

Stephen D. Lemish, El Cajon, CA, for defendant-appellant Gonzalez-Gallegos.

Jerald L. Brainin, Los Angeles, CA, for defendant-appellant Thomas Durkin.

Todd W. Robinson, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. Nos. 3:06-cr-01243-DMS-3, 3:06-cr-01243-DMS-11, 3:06-cr-01243-DMS-17, 3:06-cr-01243-DMS-5, 3-06-01243-DMS-10, 3:06-01243-DMS-4, 3:06-cr-01243-DMS-6.

Before: JOHN T. NOONAN and KIM McLANE WARDLAW, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.[*]

ORDER

NOONAN, Circuit Judge:

The opinion filed on June 22, 2011 is amended as follows:

At slip op. at 8462, lines 24-28: Change ‹ Her motion ... › to ‹ His motion was denied, and he now appeals the denial. The district court did not abuse its discretion under the circumstances, given the impending trial date, the length and security requirements of the trial, and the likelihood of serious inconvenience for witnesses and jurors. Abarca now contends that he was prejudiced by the denial of a continuance because his counsel had inadequate time to prepare for trial given the late notice that the government would not seek the death penalty. This argument may be more appropriately addressed ...›

With this amendment, the panel votes to deny the petitions for rehearing. Judge Wardlaw votes to deny the petitions for rehearing en banc, and Judges Noonan and Korman so recommend.

The full court has been advised of the petitions for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for rehearing are DENIED and the petitions for rehearing en banc are DENIED.

No further petitions for rehearing or for rehearing en banc will be entertained from any appellant other than Abarca.

OPINION

Ricardo Martinez, Thomas Durkin, Eduardo Gonzalez-Gallegos, George Fernandez, Cesar J. Abarca, Joshua Cruz, and Richard Valenzuela appeal their convictions of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § 1962(d), and their sentencing enhancement for carrying out the conspiratorial agreement by

Page 815

acts subjecting them to life imprisonment. We affirm the judgment of the district court.

PROCEEDINGS

On June 6, 2006, a federal grand jury indicted twenty-two persons including the seven defendants on a single count of conspiracy in violation of 18 U.S.C. § 1962(d). A number of those indicted pleaded guilty. Several were severed to be tried separately. The seven defendants went to trial on October 15, 2007. The jury returned a verdict of guilty on January 4, 2008. Each defendant was sentenced to imprisonment for life.

This appeal followed. Conscientious counsel for the seven defendants make a multitude of points on their behalf.

FACTS

Martinez is a member of the Mexican Mafia. Durkin, Gonzalez, and Fernandez are high-level associates in the Mexican Mafia. Abarca, Cruz, and Valenzuela are soldiers in this organization.

The history and activities of the Mexican Mafia have been well set out by Judge Trott in United States v. Shryock, 342 F.3d 948 (9th Cir.2003). Beginning as members of a street gang incarcerated at Deuel Vocational Institution in Tracy, California in the 1950s, the Mexican Mafia became a presence in California prisons and in federal prisons within California. The organization had an ethnic identity: Hispanic. It had a form: hierarchical. The leaders— known as members— were chosen by existing members. Associates were aspirants to membership. The soldiers took orders. The objectives of the organization were power in the prisons and the control of drug trafficking within and outside the prisons. Despite the efforts of the authorities, the Mexican Mafia has survived for half a century. It enforces its will by violence including murder.

These characteristics of the Mexican Mafia, already observed in Shryock, were set before the jury in this case by the testimony of a government expert on the organization and by the testimony of a former member. Its presence in Southern California was particularly emphasized. No witness disputed this evidence. The government also established beyond challenge...

To continue reading

FREE SIGN UP