66 F.3d 1420 (5th Cir. 1995), 94-50290, United States v. Krout

Docket Nº:94-50290.
Citation:66 F.3d 1420
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas William KROUT, a/k/a Mark William Danford, a/k/a Doug Kraus, a/k/a Doug Lopez, Cynthia Ann Vargas, Solis Huerta, Sofia Aguire Nanez, Rogelio Roger Perez Zamora, Heriberto Herbert Huerta, Rogelio Roy Medina Arce, and Hector Campos Alvarez, Defendants-Appellants.
Case Date:October 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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66 F.3d 1420 (5th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Douglas William KROUT, a/k/a Mark William Danford, a/k/a

Doug Kraus, a/k/a Doug Lopez, Cynthia Ann Vargas, Solis

Huerta, Sofia Aguire Nanez, Rogelio Roger Perez Zamora,

Heriberto Herbert Huerta, Rogelio Roy Medina Arce, and

Hector Campos Alvarez, Defendants-Appellants.

No. 94-50290.

United States Court of Appeals, Fifth Circuit

October 6, 1995

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John Fahle, III, Goldstein, Goldstein & Hilley (Court-appointed), San Antonio, TX, for Krout.

Richard Emil Langlois, Kosub & Langlois, San Antonio, TX, for Zamora & H.H. Huerta.

Ricardo J. Navarro (Court-appointed), San Antonio, TX, for Arce.

Thomas C. Hall (Court-appointed), San Antonio, TX, Rudolph R. Willmann, Jr. (Court-appointed co-counsel), San Antonio, TX, for Alvarez.

Manuel G. Escobar (Court-appointed), San Antonio, TX, for C. Huerta & Nanez.

Pamela Ann Mathy, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

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

Before POLITZ, Chief Judge, JONES and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This is a consolidated appeal arising from the conviction of seven defendants for participating in a continuing enterprise of murder, drug distribution, and firearm offenses as members and conspirators in a Texas prison gang referred to as the "Mexican Mafia." The principal offenses proved at trial involved an elaborate cocaine and heroin distribution scheme within state prisons and on the streets of San Antonio. Most of the inevitable differences among the confederates were resolved by murders either approved or executed by some of these defendants. Although the evidence adduced at trial was overwhelming, 1 the defendants have raised multiple grounds for reversing their convictions. Of these grounds, the challenges to jury anonymity and the imposition of consecutive sentencing are the most significant. We find no reversible error and affirm.

I. Evidentiary Challenges

A. Wiretap Evidence

The assorted defendants begin their attack with challenges to the evidence-gathering techniques employed by the government. Specifically, they present three objections to the evidence seized pursuant to court authorized electronic surveillance. Defendants Huerta and Zamora argue that because the terms of the initial wiretap order, entered on September 17, 1992, limited the period of surveillance to ten days, interceptions recorded after these first ten days must be suppressed (as well as the fruits of these conversations). 2 Solis Huerta, Nanez and Alvarez argue that the wiretap applications and affidavits failed to make the required showing that normal investigative procedures were tried and failed or reasonably appeared unlikely to succeed or too dangerous. Finally, Alvarez argues that the interception of the conversations between Huerta and his wife Solis Huerta violated their expectation of privacy.

The first order entered by the district court is slightly awkward in syntax. 3 Nonetheless, the most plausible reading of the order authorizes interception until either the authorized objectives were obtained or for a period of thirty days, whichever event occurs first. The thirty days, in turn, are measured from "the earlier of the day on which investigative or law enforcement officers first begin to conduct an interception under this Order or ten (10) days after the Order is entered." To read the language of the order otherwise (i.e., with a strict limit of ten days), as the defendants suggest, would impermissibly fail to effectuate the thirty-day period referred to in the termination provision because there are no circumstances in which interception may extend beyond ten days. Moreover, the defendants' argument ignores the intent of the issuing judge who obviously anticipated some significance to the thirty day period since he required ten, twenty, and thirty day progress reports to be filed, and authorized continued interception on any changed phone number occurring within this thirty day window.

Title 18 U.S.C. Sec. 2518(1)(c) and (3)(c) require the applicant for a wiretap order to verify--and the issuing judge to find--that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." "What is required is a showing that in the particular investigation normal investigative techniques employing a normal

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amount of resources have failed to make the case within a reasonable period of time." United States v. Alfonso, 552 F.2d 605, 612 (5th Cir.), cert. denied, 434 U.S. 857, 98 S.Ct. 179, 54 L.Ed.2d 129 (1977) (quotation omitted). Here the affidavits contained detailed accounts of the investigative techniques that were used by the agencies investigating the Mexican Mafia.

Specifically, the affidavits asserted that informants or undercover agents could not infiltrate the conspiracy at high enough levels to obtain sufficient evidence to prosecute managers of the organization. This court has previously affirmed wiretap orders based upon similar affidavits. See United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir.), cert. denied, 502 U.S. 917, 112 S.Ct. 322, 116 L.Ed.2d 263 (1991); United States v. Webster, 734 F.2d 1048, 1055 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). These affidavits amply established an inability to fully develop a case from informants' knowledge, inability to infiltrate with undercover agents, lack of access to primary targets, the limited value of searches in proving these offenses, and informants' fear and unwillingness to testify. 4

B. Evidence of Murders

Huerta, Zamora, Solis Huerta and Nanez challenge the admission of evidence about the murders of Rangel, "Chepo" Hernandez, "Pancho" Canales, and the attempted murder of "Tye" Morales. Huerta and Zamora argue that the evidence was offered to prove bad character in violation of Rule 404(b); all four defendants argue that the evidence was unduly prejudicial.

Yet "[e]vidence of an uncharged offense arising out of the same transactions as the offense charged in the indictment is not extrinsic evidence within the meaning of Rule 404(b)." United States v. Maceo, 947 F.2d 1191, 1199 (5th Cir.1991), cert. denied, 503 U.S. 949, 112 S.Ct. 1510, 117 L.Ed.2d 647 (1992). Huerta, Zamora, Arce and Alvarez were charged in the superseding indictment with a RICO offense and RICO conspiracy. That indictment specifically alleged that members and associates of the criminal enterprise engaged in the actual and threatened use of violence, including murder, to further the objectives of the enterprise, to obtain money, and protect the organization from law enforcement investigations. These murders and attempted murder were not introduced as character evidence but as acts committed by members of the Texas Mexican Mafia in furtherance of the RICO offenses.

The government is not limited in its proof of a conspiracy or racketeering enterprise to the overt or racketeering acts alleged in the indictment. United States v. Wilson, 657 F.2d 755, 763 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982). Morales, Rangel, Hernandez and Canales had all served as "generals" in the Texas Mexican Mafia, commanding the members outside of prison in San Antonio. Evidence of how disputes were settled with these members or how they were treated if believed to be cooperating with law enforcement was properly admitted to prove the allegation in the indictment that murder and extreme violence were part of the organization's pattern of racketeering activities. See United States v. Finestone, 816 F.2d 583, 587 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987); United States v. Hawkins, 681 F.2d 1343, 1346 (11th Cir.), cert. denied, 459 U.S. 994, 103 S.Ct. 354, 74 L.Ed.2d 391 (1992).

C. Coconspirator Testimony

Zamora challenges the district court's admission of two recorded conversations between Rangel's wife, Emily Mendoza, and her son, Edward, in which Mendoza discusses the efforts to kill a bookie, Ramirez, to whom Rangel and Zamora owed money. Zamora argues that because Mendoza was not a conspirator and the statements were not made in furtherance of the conspiracy,

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these statements were inadmissible hearsay. This court reviews the district court's admission of evidence under Rule 801(d)(2)(E) for abuse of discretion. United States v. Triplett, 922 F.2d 1174, 1181 (5th Cir.), cert. denied, 500 U.S. 945, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991). The district court's determinations that the statement was made by a coconspirator and in furtherance of the conspiracy are findings of fact reversible only if clearly erroneous. United States v. Stephens, 964 F.2d 424, 434 (5th Cir.1992).

Although debatable, the district court's decision that Mendoza's comments were made by a coconspirator and in furtherance of that conspiracy were not clearly erroneous. First, Mendoza was with Rangel when he explained the details of the plan to kill Ramirez, and she suggested an improvement to the plan. ("You should have paid Edward instead.") Second, she also attempted to get the job of murdering Ramirez assigned to her son as part of an effort to recruit someone to actually commit the murder that was initially bungled. Although this could be explained as an independent endeavor to find work for her son, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

In any event, these conversations were merely...

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