People v. Gonzalez

• Decision Date: 29 May 2003
• Docket Number: Docket No. 223401,Docket No. 223402.
• Citation: 256 Mich. App. 212,663 N.W.2d 499
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Israel J. GONZALEZ, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. David Anthony Guerra, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

663 N.W.2d 499

256 Mich. App. 212

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Israel J. GONZALEZ, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. David Anthony Guerra, Defendant-Appellant.

Docket Nos. 223401, 223402.

Court of Appeals of Michigan.

Submitted January 15, 2003, at Detroit.

Decided April 8, 2003, at 9:10 a.m.

Released for Publication May 29, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Timothy J. Cassady, Chief, Research, Training, and Appeals, and Michael A. Tesner, Assistant Prosecuting Attorney, for the people.

Patrick K. Ehlmann, Lansing, for Israel J. Gonzalez.

Neil C. Szabo, Flint, for David A. Guerra.

Before: WHITE, P.J. and KIRSTEN FRANK KELLY and R.S. GRIBBS,¹ JJ.

KIRSTEN FRANK KELLY, J.

In these consolidated appeals from a joint jury trial, defendants Israel J. Gonzalez (Docket No. 223401) and David A. Guerra (Docket No. 223402) appeal as of right.

Defendant Gonzalez appeals his convictions of operating a criminal enterprise (racketeering),² M.C.L. § 750.159i(1); and soliciting a person to possess with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7407a(2). The trial court sentenced defendant Gonzalez as a second-offense habitual offender, M.C.L. § 769.10, to consecutive prison terms of thirteen years and four months to thirty years in prison for the racketeering conviction, and five to forty years in prison for the soliciting conviction.

Defendant Guerra appeals his convictions of racketeering,³ M.C.L. § 750.159i(1); possession with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); maintaining a drug house, M.C.L. § 333.7405(1)(d); and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. The trial court sentenced defendant Guerra to thirteen years and four months to twenty years in prison for the racketeering conviction, eight to twenty years in prison for the conviction of possession with intent to deliver cocaine, one year and four months to two years in prison for the conviction of maintaining a drug house, and two years for the felony-firearm conviction. The sentences for racketeering and maintaining a drug house run concurrently; the other sentences run consecutively.

We affirm.

I. Basic Facts and Procedural History

A Crime Area Target Team of the Flint Police Department, which had been investigating gang activity for several years, discovered that the Spanish Cobras, a gang originating in Chicago, had been active in Flint since the early 1990s. The Spanish Cobras were primarily drug traffickers, but also committed larcenies, burglaries, thefts, extortion, fencing of stolen property, and assaults.

As part of an investigation of the Spanish Cobras, Michigan State Trooper Dale Girke made several undercover drug transactions to discover the drug source. Some of these transactions were surveilled by Flint police officers, who ultimately searched Jose Diaz's home finding a safe containing $3,600. Marked bills from the drug transactions with Trooper Girke were also traced to Diaz. In March 1998, Flint police executed a search warrant at Diaz's home where they found firearms and various items exhibiting gang colors and symbols, as well as photographs of gang members, including defendants, wearing gang paraphernalia and making gang signs.

In June 1998, Flint police officers executed felony arrest warrants regarding eleven individuals, including defendant Guerra. During the execution of defendant Guerra's arrest warrant, Lieutenant Gary Hagler approached defendant Guerra's house and saw him run from the front door. Defendant Guerra did not run straight for the back door, but ran through other rooms of the house. He was arrested on the back patio. During what the prosecutor argues was a protective sweep of the house, officers observed marijuana. On the basis of this observation and other information, the police obtained a search warrant. Pursuant to the search warrant, police seized two bags containing over ten grams of cocaine, a nine-millimeter, semiautomatic pistol, a quilt with gang symbols and colors, other gang-related material and photographs, and drug paraphernalia. Defendants, as well as three other individuals,⁴ were charged with racketeering, M.C.L. §750.159i(I), in connection with their alleged membership and participation in the illegal activities of the Spanish Cobras.

II. Evidentiary Issues

A. Standard of Review and Generally Applicable Law

The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. People v. Snider, 239 Mich.App. 393, 419, 608 N.W.2d 502 (2000). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. Id. A decision on a close evidentiary question ordinarily cannot be an abuse of discretion. People v. Sabin (After Remand), 463 Mich. 43, 67, 614 N.W.2d 888 (2000). Decisions regarding the admission of evidence that involve a preliminary question of law, such as the interpretation of a rule of evidence, are reviewed de novo. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999).

Generally, all relevant evidence is admissible. MRE 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403. A determination of the prejudicial effect of evidence is "`best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony' by the trial judge." People v. Bahoda, 448 Mich. 261, 291, 531 N.W.2d 659 (1995), quoting People v. VanderVliet, Mich. 52, 81, 508 N.W.2d 114 (1993).

B. Criminal Activities of Others

Defendants first argue that the trial court abused its discretion in admitting evidence concerning the criminal activities of others. We disagree.

Defendants were convicted pursuant to M.C.L. § 750.159i(1): "A person employed by, or associated with, an enterprise shall not knowingly conduct or participate in the affairs of the enterprise directly or indirectly through a pattern of racketeering activity." MCL 750.159f(a) defines "enterprise" as "an individual, sole proprietorship, partnership, corporation, limited liability company, trust, union, association, governmental unit, or other legal entity or a group or persons associated in fact although not a legal entity. Enterprise includes illicit as well as licit enterprises." MCL 750.159g defines "racketeering," in relevant part, as follows:

As used in this chapter, "racketeering" means committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit an offense for financial gain, involving any of the following:

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(c) A felony violation of part 74 or section 17766a of the public health code, 1978 PA 368, M.C.L. § 333.7401 to 333.7461 and 333.7766a, concerning controlled substances or androgenic anabolic steroids.

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(r) A violation of section 213, concerning extortion.

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(ff) A violation of section 529, 529a, 530, 531, concerning robbery.

(gg) A felony violation of section 535, 535a, 536a, concerning stolen, embezzled, or converted property.

MCL 750.159f(c) defines a "pattern of racketeering activity" as follows:

"Pattern of racketeering activity" means not less than 2 incidents of racketeering to which all of the following characteristics apply:

(i) The incidents have the same or a substantially similar purpose, result, participant, victim, or method of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated acts.

(ii) The incidents amount to or pose a threat of continued criminal activity.

(iii) At least 1 of the incidents occurred within this state on or after the effective date of the amendatory act that added this section, and the last of the incidents occurred within 10 years after the commission of any prior incident, excluding any period of imprisonment served by a person engaging in the racketeering activity.

The statute was intended to create state racketeering law analogous to the Racketeering Influence and Corrupt Organizations Act (RICO), 18 USC 1961 et seq. House Legislative Analysis, HB 4367, January 12, 1996. RICO recognizes two types of enterprises. 18 USC 1962(a)-(c). The type that applies to this case is set forth in subsection 1962(c), conducting the affairs of an enterprise through a pattern of racketeering activity. Under this subsection, the enterprise is "the instrument through which illegal activity is conducted." United States v. Chance, 306 F.3d 356, 372-373 (C.A.6, 2002). To prove this type of enterprise under RICO, the government must show

(1) an ongoing organization with some sort of framework or superstructure for making and carrying out decisions; 2) that the members of the enterprise functioned as a continuing unit with established duties; and 3) that the enterprise was separate and distinct from the pattern of racketeering activity in which it engaged. [Id., citing Frank v. D'Ambrosi, 4 F.3d 1378, 1386 (C.A.6, 1993).]

Here, the challenged evidence was relevant to establish the existence of the enterprise and the participation of its members in a pattern of criminal activity. During the execution of the search warrant at Diaz's home on March 17, 1998, police officers discovered a photo album covered in green and black, the Spanish Cobras' colors. On...