766 F.3d 970 (9th Cir. 2014), 08-50479, United States v. Rodriguez

Docket Nº:08-50479, 08-50483, 08-50485, 12-50121, 12-50132
Citation:766 F.3d 970
Opinion Judge:RAWLINSON, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OSCAR RODRIGUEZ, AKA Lonely, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE MURILLO, AKA Yogi, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEJANDRO MUJICA, AKA Slow, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OSCAR RODR
Attorney:Verna Wefald (argued), Pasadena, California, for Defendant-Appellant Oscar Rodriguez. Michael J. Treman, Santa Barbara, California, for Defendant-Appellant Jose Murillo. Ethan A. Balogh (argued) and Jay A. Nelson, Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant Alejandro ...
Judge Panel:Before: Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges, and Ivan L.R. Lemelle, District Judge.[*]
Case Date:September 08, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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766 F.3d 970 (9th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

OSCAR RODRIGUEZ, AKA Lonely, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSE MURILLO, AKA Yogi, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ALEJANDRO MUJICA, AKA Slow, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

OSCAR RODRIGUEZ, AKA Lonely, Defendant-Appellant

Nos. 08-50479, 08-50483, 08-50485, 12-50121, 12-50132

United States Court of Appeals, Ninth Circuit

September 8, 2014

Argued and Submitted, Pasadena, California August 28, 2013

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Central District of California. D.C. No. 5:05-cr-00069-VAP-3. D.C. No. 5:05-cr-00069-VAP-2. D.C. No. 5:05-cr-00069-VAP-4. D.C. No. 5:05-cr-00069-VAP-3. D.C. No. 5:05-cr-00069-VAP-2.

Verna Wefald (argued), Pasadena, California, for Defendant-Appellant Oscar Rodriguez.

Michael J. Treman, Santa Barbara, California, for Defendant-Appellant Jose Murillo.

Ethan A. Balogh (argued) and Jay A. Nelson, Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant Alejandro Mujica.

André Birotte, Jr., United States Attorney, Robert E. Dugdale, Chief Assistant United States Attorney, Antoine F. Raphael (argued), Assistant United States Attorney, Riverside, California, for Plaintiff-Appellee United States.

Before: Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges, and Ivan L.R. Lemelle, District Judge.[*]

OPINION

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ORDER

The Opinion filed June 19, 2014, is amended sua sponte to remove the language appearing on page 22, first full paragraph of the Slip Opinion, beginning with see also > and continuing through the end of the paragraph.

A copy of the amended opinion is attached to the Order and filed concurrently with the Order.

With this amendment, the panel has voted unanimously to deny the Petition For Rehearing En Banc filed by Alejandro Mujica on July 31, 2014. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter. See Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for panel rehearing or for rehearing en banc will be entertained.

AMENDED OPINION

RAWLINSON, Circuit Judge:

Appellants Oscar Rodriguez (Rodriguez), Jose Murillo (Murillo), and Alejandro Mujica (Mujica) challenge their convictions for conspiracy to commit murder and first degree murder stemming from the stabbing of a prison inmate, Peter Scopazzi (Scopazzi) at the United States Penitentiary at Victorville, California. Appellants contend that the district court abused its discretion in excluding evidence that medical negligence and Scopazzi's removal of his breathing tube during his hospitalization may have been the proximate cause of Scopazzi's death. Appellants also argue that the district court abused its discretion in admitting expert testimony concerning the relationship between two prison gangs--the Sureños and the Mexican Mafia--because Appellants were not members of the Mexican Mafia.

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Additionally, Appellants maintain that a new trial was warranted because the government failed to disclose, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), a tacit agreement with a key government witness that the government would seek a sentence reduction in exchange for the witness's favorable testimony, and that the witness was an informant for the Drug Enforcement Administration (DEA). Appellants further assert that the government violated Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by allowing the witness to falsely testify that there was no promise of a sentence reduction based on the witness's cooperation. We affirm Appellants' convictions and the district court's denial of their motion for a new trial.

I. BACKGROUND

In a second superseding indictment, Appellants, along with Danny Martinez (Martinez) and Walter Meneses (Meneses), were charged with " knowingly and willfully conspir[ing] and agree[ing] with each other to murder inmate David Fischer . . . aka Peter Scopazzi" in violation of 18 U.S.C. § 1111. The indictment alleged that Appellants armed themselves with prison-made knives (shanks) and murdered Scopazzi in his cell. Appellants were charged with " willfully, deliberately, and with premeditation and malice aforethought, unlawfully kill[ing] [Scopazzi]." Appellants were also charged with assaulting two other prison inmates, Timothy Ultsch (Ultsch) and Wayne Rondeau (Rondeau), with the intent to commit murder, and assault with a deadly weapon " with the intent to do bodily harm."

Prior to trial, the government filed a motion in limine to exclude evidence that medical negligence may have contributed to Scopazzi's death. The government maintained that Appellants " proffered no witness, expert or otherwise, nor any other evidence to the government that would indicate that [Scopazzi's] treatment by medical staff was somehow negligent. . . ." The government also asserted that such evidence was irrelevant because Appellants were liable for murder irrespective of any medical negligence and that the evidence might lead to juror confusion.

The government also filed a related motion in limine to preclude or limit the testimony of the defense's medical expert, Dr. Marshall Morgan, concerning medical negligence.1 The government asserted that the defense's notice did " not indicate that Dr. Morgan will state that [Scopazzi's] death was caused solely by the independent intervening acts of the medical staff's treatment. That [Scopazzi's] life may have been saved by more skillful medical treatment, even if true, is legally irrelevant . . . because even if this were true it would not relieve defendants of responsibility for [Scopazzi's] murder. . . ."

In his oppositions to the government's motions, Murillo responded that he did

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" not intend to introduce evidence of negligence as an affirmative defense to murder. . . ." Murillo maintained that the evidence of medical negligence and Dr. Morgan's testimony " would further explain that the injuries caused by the stab wounds would have been routinely repaired with proper medical care. The nature of [Scopazzi's] wounds and degree of force used to cause them may be circumstantial evidence of whether or not there was intent to kill. . . ."

In granting the government's motions, the district court held that medical negligence was not a defense to murder charges. The district court excluded Dr. Morgan's testimony because Murillo failed " to proffer expert testimony that [Scopazzi's] death was caused solely by the independent intervening acts of the medical staff's treatment. . . ." The district court held that " Dr. Morgan shall be allowed to testify regarding the nature of [Scopazzi's] wounds and the degree of force used to cause them as such testimony is relevant to the intent of the Defendants. . . ." However, Dr. Morgan was precluded from testifying " about medical negligence in this case as the probative value of such evidence outweighs the danger of confusing the jury." 2

In its trial memorandum, the government sought to introduce evidence that the motive for Appellants' murder of Scopazzi was Scopazzi's disrespect of Sureños gang members. The district court held that evidence of Appellants' Sureños membership and the Sureños' relationship with the Mexican Mafia was admissible as relevant to the government's theory that Appellants assaulted Scopazzi due to their Mexican Mafia connections. The district court held that the gang affiliation evidence was more probative than prejudicial and that the government was permitted to introduce " a limited number of photographs of [Appellants] posing with certain members of the Mexican Mafia, as such evidence may go to issues of planning and preparation of the alleged offenses, and the level of retribution called for under the tenets of the Sureños. . . ." Appellants declined the district court's offer to provide a limiting instruction concerning evidence related to the Mexican Mafia.

At trial, Ryan Davis (Davis), a former Victorville inmate imprisoned for being a felon in possession of a firearm and an armed career criminal, testified that he had prior convictions for burglary, providing false information to a police officer, attempting to[elude] a police officer and reckless driving, unlawful delivery of a controlled substance, and criminal mischief. While in prison, Davis " used marijuana, meth and heroin and drank," and was involved in an attack on another inmate.

According to Davis, he was not a gang member, but was affiliated with the Aryan Brotherhood and Nazi Low Riders and had several tattoos including swastikas and the phrase " white power" on his chest. Despite his lack of gang membership, Davis was " handed the keys for unit 4A," a prison housing unit. Davis was given this leadership position by a member of the Aryan Brotherhood. Davis related that he became the unit's key holder because there were no gang members in the unit capable of the position.

According to Davis, Rodriguez belonged to the Sureños and answered to the Mexican Mafia. Davis related that the Sureños and the white inmates generally got along

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well and " called each other comrades." Davis got along well with Rodriguez and the other Sureños. Davis testified that inmates would have to receive permission to assault members of another race " from the top person for their race on the yard." Otherwise, " their race would stab them in return."

On April 11, 2005, Davis noticed that Scopazzi, Ultsch, and Rondeau had been...

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