750 F.3d 320 (4th Cir. 2014), 10-6, United States v. Umana

Docket Nº:10-6
Citation:750 F.3d 320
Opinion Judge:NIEMEYER, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO ENRIQUE RAMIREZ UMANA, a/k/a Wizard, a/k/a Lobo, Defendant - Appellant
Attorney:Vincent James Brunkow, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California, for Appellant. Adam Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Zandra L. Lopez, Janet C. Tung, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California; M...
Judge Panel:Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Judge Gregory wrote a dissenting opinion. GREGORY, Circuit Judge, dissenting
Case Date:April 23, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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750 F.3d 320 (4th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

ALEJANDRO ENRIQUE RAMIREZ UMANA, a/k/a Wizard, a/k/a Lobo, Defendant - Appellant

No. 10-6

United States Court of Appeals, Fourth Circuit

April 23, 2014

Argued, January 28, 2014

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Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:08-cr-00134-RJC-2).

ARGUED:

Vincent James Brunkow, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California, for Appellant.

Adam Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Zandra L. Lopez, Janet C. Tung, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego, California; Malcom Ray Hunter, Jr., Chapel Hill, North Carolina; David Weiss, COPELEY JOHNSON & GRONINGER PLLC, Durham, North Carolina, for Appellant.

Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Judge Gregory wrote a dissenting opinion.

OPINION

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NIEMEYER, Circuit Judge

Alejandro Enrique Ramirez Umaña shot and killed two brothers, Ruben and Manuel Salinas, at point-blank range in a restaurant in Greensboro, North Carolina, because Umaña perceived that the brothers had insulted Umaña's gang, Mara Salvatrucha, commonly known as MS-13. A jury convicted Umaña of all counts for which he was charged, including two counts charging him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and two counts charging him with committing murder while using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and (j)(1). The convictions on those charges subjected Umaña to a maximum sentence of death.

Following the verdict of conviction, the same jury returned a verdict that Umaña was death eligible on the four capital counts, as provided in 18 U.S.C. § § 3591-3596. The jury found that two statutory aggravating factors applied: (1) that Umaña had created a grave risk of death to one or more persons in addition to each victim, and (2) that he had killed more than one person in a single criminal episode.

Finally, in the sentence selection phase of trial, the jury imposed the death penalty, finding that four additional nonstatutory aggravating factors applied: (1) that Umaña had killed the two brothers to protect and maintain the reputation of MS-13 and to advance his position in that gang;

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(2) that Umaña had caused injury and loss to the brothers' family and friends; (3) that Umaña had earlier intentionally committed several murders in Los Angeles; and (4) that Umaña posed a continuing and serious threat to the lives and safety of others, as evidenced by his lack of remorse, his allegiance to MS-13, his lack of rehabilitation, and his pattern of violence. The jury also found several mitigating factors. After weighing the aggravating and mitigating factors, the jury imposed the death penalty.

On appeal, Umaña challenges every phase of the proceedings below. After carefully considering each of Umaña's arguments, we reject them and affirm the convictions and sentence.

I

Umaña, who was born in El Salvador in the early 1980s, illegally entered the United States in 2004 to live in Los Angeles. At the time, he had been a member of the MS-13 gang for several years, having joined in 2001, while he lived in El Salvador.

MS-13 was formed in Los Angeles in the 1980s by immigrants from Central America, predominantly El Salvador. To gain membership into MS-13, an individual must submit to a 13-second beating. The gang uses violence and extortion to gain and control territory, and for a member to build his reputation in MS-13, he has to be ready to attack rival gang members or anyone else who disrespects the gang. MS-13 punishes betrayal by putting the " green light" on the member, which constitutes an order that he be targeted for death.

While Los Angeles continues to be the mecca of MS-13 activity, MS-13 has become a transnational organization, with groups, or " cliques," across the United States, in Canada, and in Central America.

Umaña's activities in Los Angeles

During the sentence selection phase of Umaña's trial, the government introduced evidence implicating Umaña in several Los Angeles shootings: one on Fairfax Street on July 27, 2005, where two persons were shot and killed, and one in Lemon Grove Park on September 28, 2005, where a group of four persons were shot at and one was killed and two were injured.

On the occasion of the Fairfax Street murders, Umaña was in the passenger seat of a car with several other MS-13 members. The car pulled up alongside two males walking down the street, and the two groups began flashing gang signs at one another. The two males on the street were graffiti artists, or " taggers," and they made hand gestures that were perceived as challenging MS-13. Some or all of Umaña's group exited the car to confront the taggers. There were conflicting accounts about what happened next. Umaña's fellow MS-13 members claimed that Umaña shot the two taggers, but two civilian eye witnesses claimed that the driver of the car shot them.

On the occasion of the Lemon Grove Park murder, two men approached a group of four who had just finished playing basketball and were sitting on bleachers in the park. Without a word, the two men took out guns and opened fire on the group. One of the four basketball players was killed, while two others were wounded. The fourth, Freddie Gonzalez, who was apparently the target of the attack, escaped uninjured. Several pieces of evidence linked Umaña to this murder. First, Gonzalez identified Umaña in a photo lineup and confirmed the identification in court, although he admitted to some uncertainty. Also, Umaña admitted to driving the shooters to the basketball court, although he denied being a shooter

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himself. Finally, ballistics matched the gun used in the Fairfax Street murders with the gun used in the Lemon Grove Park murder, and there was no evidence that anyone but Umaña was present at both crime scenes.

Umaña's New York activities

Umaña left Los Angeles and, by the summer of 2007, was residing in New York. By this time, he had built up a substantial reputation within MS-13. One witness recalled that Umaña, who had taken on the moniker of " Wizard," was treated by his fellow gang members like he was " big time."

In the fall of 2007, an MS-13 leader in New York directed Umaña to travel to Charlotte, North Carolina, as the Charlotte MS-13 cliques had been experiencing significant infighting. Because of his experience and exposure to gang life in Los Angeles, Umaña was ordered to " set them straight" in North Carolina. This was confirmed by a Charlotte-based MS-13 member who stated that it was expected that Umaña would " take control" because he knew " how to run a gang."

Umaña's North Carolina activities

When he arrived in North Carolina, Umaña convened a meeting, during which he instructed the MS-13 members as to how they should be extorting money, selling drugs, and stealing cars. He inspected the gang members' guns; he emphasized to them the importance of respect; and he told them to merge the Charlotte cliques together. Over the course of the following months, Umaña conducted numerous meetings with MS-13 members in Charlotte.

On December 8, 2007, Umaña was in Greensboro, North Carolina, having dinner with several fellow MS-13 members at Las Jarochitas, a Mexican food restaurant. Also at the restaurant were Ruben and Manuel Salinas, regulars at Las Jarochitas, who were eating and drinking with several other men. The Salinas brothers were not affiliated with any gang.

Umaña and his associates were sitting near the jukebox, and they began selecting songs. This upset Manuel Salinas, who liked to listen to " corrida," a type of Mexican country music, whenever he visited Las Jarochitas. As one witness reported, the two groups then began " arguing and kind of like pushing each other." Perhaps fearing that the situation was getting out of hand, Manuel Salinas tried to calm things down by buying the MS-13 members a bucket of beers. The MS-13 members, however, rebuffed the peace offering, refusing to drink or even acknowledge the beers.

A concerned waitress asked the MS-13 members to leave the restaurant. As they were filing out, the groups were " exchanging words," and Ruben Salinas told the MS-13 members that he " wasn't scared of them." The gang members responded that Ruben Salinas should not " mess with them" because " they were from . . . MS." Ruben retorted that the gang was " fake to him."

All of the MS-13 members left the restaurant except for Umaña, who stayed behind. Upon realizing that Umaña was still in the restaurant, an MS-13 member named Spider came back inside. When the waitress tried to pull Umaña to the door, Spider grabbed her and told her not to touch him. It was at this point that Umaña pulled out his gun and pointed it at Ruben and Manuel, but he did not shoot right away. He held his gun sideways, while Manuel and Ruben stood motionless. No one said anything. After some time elapsed, perhaps as much as a minute, Umaña fired five shots at...

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