United States v. Barragan

• Decision Date: 08 September 2017
• Docket Number: Nos. 13-50516, 13-50518, 13-50525, 13-50531.,s. 13-50516, 13-50518, 13-50525, 13-50531.
• Citation: 871 F.3d 689
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesus BARRAGAN, AKA Chito, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Hector Fernandez, aka Evil, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Francisco Gutierrez, aka Ammo, aka Bullet, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Pablo Franco, aka Casper, akaDwarf, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

871 F.3d 689

UNITED STATES of America, Plaintiff–Appellee,

v.Jesus BARRAGAN, AKA Chito, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Hector Fernandez, aka Evil, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Francisco Gutierrez, aka Ammo, aka Bullet, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Pablo Franco, aka Casper, akaDwarf, Defendant–Appellant.

Nos. 13-50516, 13-50518, 13-50525, 13-50531.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2017—Pasadena, California

Filed September 8, 2017

John C. Lemon (argued), San Diego, California, for Defendant–Appellant Jesus Barragan.

Knut S. Johnson (argued) and Emerson Wheat, San Diego, California, for Defendant–Appellant Hector Fernandez.

Sanjay Sobti (argued), U.S. Law Center, Corona, California, for Defendant–Appellant Francisco Gutierrez.

Gary P. Gurcham, Burcham & Zugman, San Diego, California, for Defendant–Appellant Pablo Franco.

Helen H. Hong (argued), Assistant United States Attorney, Chief, Appellate Section, Criminal Division, United States Attorney's Office, San Diego, California, for Plaintiff–Appellee.

Before: Kermit V. Lipez,^* Carlos T. Bea, and Andrew D. Hurwitz, Circuit Judges.

OPINION

HURWITZ, Circuit Judge:

Jesus Barragan, Pablo Franco, Francisco Gutierrez, and Hector Fernandez were convicted of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"); Barragan was also convicted of drug crimes. They appeal their convictions and sentences. Although we find a portion of the prosecutor's closing argument improper, we conclude that prejudice has not been shown and affirm the convictions. We affirm the sentences of Barragan, Franco, and Fernandez, but vacate Gutierrez's sentence and remand for resentencing.

I. BACKGROUND

A. Investigation and Indictment

In 2010, a joint federal and state task force undertook an investigation of extortion and drug trafficking by the Mexican Mafia ("Mafia")¹ and local street gangs in San Diego County. In January 2012, an indictment was filed charging forty alleged Mafia members and associates with engaging in an racketeering conspiracy in violation of RICO, 18 U.S.C. § 1962(d).

The indictment alleged that the Mafia imposed a "tax" on Southern California gangs in return for allowing them to sell drugs and conduct other illegal activities. If a gang failed to pay the tax, the Mafia announced a "green light" authorizing violence toward gang members, both in prison and on the streets, until the tax was paid. Because the Mafia had only 125 official members, it relied on associates—usually members of local Hispanic gangs—to collect taxes. Low-level associates were known as "surenos," higher-level associates as "camaradas," and official Mafia members as "carnales." The leader of each local gang was responsible for ensuring payment of taxes. Gangs raised tax money by selling drugs and robbing other drug dealers.

After some of the indicted defendants entered guilty pleas, two superseding indictments were filed charging some of the remaining defendants with additional crimes. Eight defendants, including Barragan, Franco, Gutierrez, and Fernandez, eventually opted for trial.

B. Trial

The trial of appellants and four co-defendants lasted six weeks. The government called over seventy witnesses and introduced tapes of hundreds of intercepted phone conversations, among other evidence. We summarize the evidence against each appellant below.

1. Evidence against Barragan

Local gang members and drug dealers testified that Barragan was the leader of the West Side gang, responsible for collecting Mafia taxes. Barragan's statements in phone conversations confirmed his association with the Mafia.² West Side gang member Everst Cruz testified that Barragan instructed the gang to raise tax money by selling drugs and robbing other drug dealers, and that Barragan gave him a handgun "to collect the money and for whatever popped up."

Cruz testified that he regularly sold drugs and gave the proceeds to Barragan. Intercepted phone conversations and text messages revealed that Barragan supplied drugs to West Side members. On two occasions, members of the task force observed Barragan selling drugs.

Cruz also testified that he and other West Side members robbed local drug dealers and gave the money to Barragan. In phone conversations, Barragan told gang members whom to rob. Cruz recounted one occasion where Barragan went to a drug dealer's house, "slapped him around," and took drugs and money. In a subsequent phone call, the drug dealer lamented that Barragan had robbed him.

Cruz also testified that after members of a rival gang, the Diablos, beat up and stabbed West Side members, Barragan said "something needed to be done" and "he didn't care what we had to do." Cruz then shot a Diablos member with the handgun Barragan had given him.

2. Evidence against Franco

Franco was a high-ranking member of the Varrio Fallbrook Locos gang and an associate of the Mafia, according to intercepted phone conversations and his tattoos.³ Before the task force investigation began, Franco was in custody at the Vista detention facility. While there, his statements in phone conversations indicated that he used his sister to smuggle drugs into the facility and to deliver money to the Mafia.⁴

During the task force investigation, Franco was incarcerated in state prison. A fellow inmate, Alfonso Mata, testified that he helped Franco collect taxes from drug-dealing inmates on behalf of the Mafia. At Franco's direction, Mata sent tax proceeds to Franco's mother, who then forwarded the money to a Mafia member. Receipts confirmed that Mata sent money to Franco's mother. Intercepted phone calls, taped conversations, and a bank statement confirmed that Franco's mother and sister then forwarded the money to a Mafia member.⁵

Despite his incarceration, Franco declared in a letter that the town of Fallbrook belongs to him and that his "amigo" in charge on the outside "has all our support." Mata also testified that Franco mentioned that his friend "Bullet" was dealing drugs "out in the neighborhood."

3. Evidence against Gutierrez

Intercepted phone conversations revealed that "Bullet" was Gutierrez. Like Franco, Gutierrez belonged to the Varrio Fallbrook Locos gang and was a Mafia associate, as demonstrated by phone conversations, his tattoos, and markings on his property.⁶

When the task force investigation began, Gutierrez was in custody at the Vista detention facility. While Gutierrez was there, the Mafia announced a green light against West Side members in the facility. Two inmates then assaulted Cruz. Cruz testified that an inmate told him that Gutierrez ordered the assault. Three weeks after the assault, Gutierrez told an inmate in a recorded conversation that the green light was lifted.

Once released, Gutierrez took orders from Franco. Recorded phone conversations indicated that Gutierrez helped smuggle drugs into the Vista detention facility, collected tax money from inmates, and delivered that money to Franco.⁷ In one call, Gutierrez instructed an inmate to silence another inmate who was starting to talk to law enforcement.

4. Evidence against Fernandez

Fernandez conceded that he belonged to the Diablos gang. A former Diablos leader testified that in the fall of 2010, a Mafia member convened a meeting of Diablos members, instructing them to collect money from local drug dealers, using violence if necessary.

In an April 2011 phone conversation, Fernandez scheduled a meeting with the Diablos leader (Miguel Grado), the leader of the Varrio San Marcos gang (Ivan Dunayevich), and a Varrio San Marcos member who was a government informant. The informant secretly audio-recorded the meeting. During the meeting, Fernandez and Grado informed Dunayevich that a drug dealer was using his name to avoid paying taxes. Dunayevich expressed surprise, stating that the drug dealer had only sent him payment "maybe one time." Fernandez then suggested: "Let's touch him up." In a phone call seven days later, Grado told Barragan to rob the drug dealer and to "tell that fool that he's gonna start paying us." Later that day, the drug dealer stated in a phone call that Barragan had robbed him.

In May 2011, the informant secretly audio-recorded a meeting in which Fernandez sold him heroin. After handing over the drugs, Fernandez told the informant that he will have more heroin later and that he also has "crystal." In June 2011, the informant secretly audio- and video-recorded a meeting in which Grado sold him methamphetamine. Although Fernandez cannot be seen on the video, a detective testified that he can be heard saying "What's up man" as the informant enters the room. In July 2011, Fernandez told a fellow gang member in a recorded call that he wanted to "try" some methamphetamine and asked how much it would cost.

Five witnesses testified that in June 2011, a group of masked men who called themselves "Diablos" robbed them with a bat. The men fled after police were called. In a photo lineup, four of the witnesses failed to identify Fernandez as one of the attackers, but the fifth witness said she was "almost positive" that Fernandez was there. Intercepted calls from Fernandez's phone that night indicated that he participated in the robbery.⁸

C. Convictions and Sentences

Barragan was convicted of the RICO conspiracy, conspiracy to distribute methamphetamine and cocaine, and two counts of distributing methamphetamine, but acquitted of assault, attempted murder, and discharge of a firearm in relation to a crime of violence. Franco and Gutierrez were convicted of the RICO conspiracy, the only charge against them. Fernandez was convicted of the RICO conspiracy, but acquitted of conspiracy to distribute methamphetamine.⁹ The district court sentenced Barragan to 320 months in prison, Franco to 240 months, Gutierrez to 240 months, and Fernandez to 151 months. This timely appeal followed.

II. CONVICTION ISSUES

A. Wiretap Evidence

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