768 F.3d 351 (5th Cir. 2014), 13-50376 Cons. w/ 13-50379, United States v. Guerrero

Docket Nº:13-50376, 13-50379
Citation:768 F.3d 351
Opinion Judge:GREGG COSTA, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff -- Appellee v. JAVIER GUERRERO, also known as Javi, Defendant -- Appellant; UNITED STATES OF AMERICA, Plaintiff -- Appellee v. JAVIER GUERRERO, Defendant -- Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-50376): Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX. For JAVIER GUERRERO, also known as Javi, Defendant - Appellant (13-50376): Ge...
Judge Panel:Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
Case Date:September 11, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 351

768 F.3d 351 (5th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff -- Appellee

v.

JAVIER GUERRERO, also known as Javi, Defendant -- Appellant;

UNITED STATES OF AMERICA, Plaintiff -- Appellee

v.

JAVIER GUERRERO, Defendant -- Appellant

Nos. 13-50376, 13-50379

United States Court of Appeals, Fifth Circuit

September 11, 2014

Petition for certiorari filed at, 11/07/2014

Page 352

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

For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-50376): Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.

For JAVIER GUERRERO, also known as Javi, Defendant - Appellant (13-50376): Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (13-50379): Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.

For JAVIER GUERRERO, Defendant - Appellant (13-50379): Gerald Conway Moton, Esq., Moton Law Office, San Antonio, TX.

Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.

OPINION

Page 353

GREGG COSTA, Circuit Judge:

This is a consolidated appeal of two cases brought against Javier Guerrero, an individual the government alleged was the leader of the Texas Mexican Mafia in Uvalde. The first case, which involved racketeering charges including the commission of two murders in aid of racketeering, resulted in guilty verdicts and the imposition of five life sentences. As might be expected in a case with such high stakes on both sides, the appeal raises issues that run the gamut of a criminal proceeding. Guerrero raises a Fourth Amendment

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objection to cell tower records obtained during the investigation; challenges jurisdiction on the basis of his age; contends that the government engaged in discovery violations and constructively amended the indictment through the evidence it introduced at trial; objects to expert witnesses the government called at trial; and disputes that the evidence was sufficient to sustain one of the convictions.

While Guerrero was awaiting sentencing in the first case, he assaulted a correctional officer. That gave rise to his second federal criminal case. Because Guerrero pleaded guilty to the assault charge, his appeal in the second case focuses solely on the 210-month sentence he received.

Finding no error in either case, we affirm for the reasons discussed below.

I. Background Facts and Proceedings Below1

The bonds that tie a violent criminal operation together can be deadly to the general public. But when things go wrong internally, and those bonds fracture, the members of the operation are vulnerable to the fallout. This case is a prime illustration.

In the early 1980s, a group of Texas inmates formed a hierarchical criminal enterprise that they named the Texas Mexican Mafia.2 San Antonio is its " capital," but it operates throughout Texas. Operations are funded by extortion; small-bit drug dealers are forced to pay the Mexican Mafia a 10% " tax," or " dime," on all of their proceeds from illegal drug sales. In exchange, the Mexican Mafia guarantees the dealers protection and allows them to sell drugs in Mexican Mafia--dominated areas. The group itself also traffics in illegal drugs.

The Mexican Mafia takes its organizational structure and its rules very seriously. Following the omertà code of the original mafia, perhaps the most important rule is that members cannot cooperate with law enforcement. Often, enforcing this and other membership obligations means committing murder.

Javier Guerrero was born in Uvalde, Texas, on July 20, 1988. Three of his older brothers--Carlos, Miguel, and Orlando--were longstanding members of the Mexican Mafia. At sixteen, Guerrero began his affiliation with the Mexican Mafia, and he rose quickly through its ranks. By seventeen, he was a sergeant, in charge of all operations in Uvalde. In June 2006, just before he turned eighteen, he planned a brutal home invasion of Geraldo Gonzales, a local drug dealer who had refused to pay the " dime."

One of the perpetrators of the Gonzales home invasion was Guerrero's friend, Chris Mendez. Mendez's girlfriend, whose brother is a detective, encouraged Mendez to turn himself over to authorities after the Gonzales incident. Guerrero and another Mexican Mafia member, Valdomero " Oso" Hernandez, found out about Mendez's apparent cooperation with authorities, and considered him a snitch. (Incidentally, this was wrong--Mendez was actually taking the fall for the home invasion.) They asked for and received permission from William Davalos, the lieutenant ranked above Guerrero, to kill Mendez. Part of the reason this responsibility fell on Oso is

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that Oso was Mendez's sponsor, and according to Mexican Mafia policy, sponsors are required to kill their charges when such an act becomes necessary. Davalos was reluctant, but ultimately told them to " do what you need to do."

The Mendez murder occurred on December 2, 2006. That morning was the last time Mendez's girlfriend saw him alive. When Mendez and Guerrero came up to the drive thru at the restaurant where she worked, she noticed that Mendez was sad and avoided her gaze, and that Guerrero appeared uncharacteristically nervous. Mendez and Guerrero ordered coffees and left. At around 4:15 or 4:30 p.m. that day, Luis David Garza found Mendez's body in the middle of a road leading to Garza's ranch in Concan, Texas. Mendez had two bullet wounds in his head. Oso later told Nicholas Alvarez, another member of the Mexican Mafia, that he was the one who shot Mendez at close range. He also told Alvarez that Guerrero was with him and it annoyed him that Guerrero started making calls immediately after Mendez was shot.

Guerrero told two Mexican Mafia members who were beneath him in the hierarchy about the Mendez murder. He showed Chris Ortiz the criminal indictment in this case and said he was involved in " two of them," which Ortiz took to mean " murders." And he told Eli Valdez, who reported to Guerrero, that Valdez would be killed--like Mendez was--if he ever snitched.

Other evidence implicating Guerrero in the Mendez murder was introduced at trial. Historical cell site information indicated that Guerrero made five phone calls between 2:20 and 4:14 p.m. on the afternoon of the murder. One of the towers from which Guerrero's phone received service when he placed those calls is located 12.8 miles from the murder site. The phone records indicate that between 4:30 and 5:00 p.m., Guerrero was moving east, and by 5:42, he was receiving service in the San Antonio area. This coincides with testimony from Guerrero's brother, Orlando, stating that he, Guerrero, and Oso met up at a Wal-Mart in San Antonio in the late afternoon that day. When they went back to Orlando's house, Guerrero and Oso threw out their shoes and Oso's shirt. Later that night, Orlando heard Oso weeping on the phone, telling his girlfriend, " Nah, babe, I can't believe I killed him. I can't believe -- he's my road dog, carretera perro. We were so close together."

After authorities discovered Mendez's body, they discovered another dead body on the same ranch in Concan: Jesse " Pos Pos" Rodriguez. According to testimony at trial, Pos Pos was killed roughly a week before Mendez was and for the same reason. Orlando testified that he received orders to take out Pos Pos because Pos Pos was suspected of being an informant. But Guerrero was the one who orchestrated the murder.3 Guerrero and three other Mexican Mafia members, including Orlando, stabbed Pos Pos until he bled profusely. Guerrero ran from the scene while the other three members shoved Pos Pos--still breathing--into a hole in the ground. They mixed up concrete and cement,

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poured it over Pos Pos's head, and buried him alive.

Soon after these murders, Guerrero was promoted to lieutenant. He had several jobs: collecting the dime from drug dealers; seizing taxes from individuals bringing undocumented aliens into the United States; and supplying the Mexican Mafia with cocaine. In this new lieutenant role, he formally called a meeting on July 13, 2008, in Sabinal to discuss a problem: several drug dealers, including a man named Buck, were not paying the dime. Guerrero ordered a hit on Buck, and if the Mexican Mafia could not kill Buck, he told them, " fuck it, kill his brother Damian" Garza instead. He also ordered the murder of Valentin Mendoza, because he was not paying the dime, and Mexican Mafia member Jesse Carlos, because he was acting up and stealing. Five days later, Damian Garza was shot and killed by two Mexican Mafia members in front of his teenage daughter. The other hits Guerrero had ordered were thwarted. The plan to murder Mendoza was called off after one of the Mexican Mafia members assigned that task decided not to go through with it and alerted his probation officer to the plan.

On July 14, 2009, a federal grand jury indicted Guerrero and eleven others for various crimes related to the Mexican Mafia. All but two of those indicted--Guerrero and Victor " Youngster" Esquivel--pleaded guilty before trial. Guerrero and Esquivel were tried together.4

The five counts alleged against Guerrero were:

o Count One: Conspiracy to Conduct the Affairs of an Enterprise through a Pattern of Racketeering that included:

○ Murder of Christopher Mendez; ○ Murder of Jose Damian Garza; ○ Solicitation of Murder of Jesse Carlos; ○ Solicitation of Murder of Valentin Mendoza; ○ Conspiracy to Interfere with Commerce by Extortion; and ○ Conspiracy to Distribute Narcotics o Count Two: Murder of Christopher Mendez in Aid of Racketeering o Count Three: Conspiracy to Murder Christopher Mendez in Aid of Racketeering o Count Five:...

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