United States v. Vasquez

• Decision Date: 07 August 2018
• Docket Number: No. 17-50564,17-50564
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Marciano Millan VASQUEZ, also known as Chano, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

899 F.3d 363

UNITED STATES of America, Plaintiff-Appellee

v.Marciano Millan VASQUEZ, also known as Chano, Defendant-Appellant.

No. 17-50564

United States Court of Appeals, Fifth Circuit.

FILED August 7, 2018

REVISED August 24, 2018

Joseph H. Gay, Jr., Assistant U.S. Attorney, Elizabeth Berenguer, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Juan Manuel Gonzalez, Gonzalez & Otero, L.L.C., San Antonio, TX, for Defendant-Appellant.

Before KING, SOUTHWICK, and HO, Circuit Judges.

KING, Circuit Judge:

Just across the border from Eagle Pass, Texas, lies the city of Piedras Negras. A violent drug cartel, the Zetas, dominated the city. The cartel stocked vast warehouses in Piedras Negras with drugs and used the city as a base to smuggle them into the United States. The defendant, Marciano Millan Vasquez, was a hitman for the cartel and the so-called "plaza boss" of Piedras Negras. He directed the traffic in drugs and did whatever was required to protect the cartel’s bottom line. He kidnapped, tortured, and killed scores of men, women, and children—often in brutal fashion. The victims were informants, debtors, defectors, military, law enforcement, members of rival cartels, and anyone else unlucky enough to have drawn the cartel’s ire.

A tip led to Vasquez’s arrest and, ultimately, his trial on charges of drug trafficking and killing while engaged in various drug-trafficking crimes. The jury returned a verdict of guilty on all counts. Sentenced to seven lifetimes (plus 60 months) in prison, Vasquez appeals. On appeal, he raises an extraterritoriality challenge, claims a double jeopardy violation, and alleges that the district court botched its jury instructions. All of his challenges are subject to plain error review, and none of them surmount its high bar. At the center of this appeal is 21 U.S.C. § 848(e)(1), which punishes killing while engaged in certain major drug-trafficking crimes. Because the underlying drug-trafficking crimes reach extraterritorial conduct, we hold that § 848(e)(1) does too. And finding clear congressional intent to punish the killing in addition to the underlying drug trafficking, we hold that no double jeopardy violation occurs when a defendant is convicted for both. Vasquez’s grievances with the jury instructions are meritless. We AFFIRM.

I.

A.

The Zetas cartel is an international drug-trafficking organization based in Mexico. It got its start as the security arm of another cartel. Eventually, however, the two organizations fractured. The Zetas cartel then became a drug-trafficking organization in its own right, stocking vast warehouses in Mexico with marijuana, cocaine, and methamphetamine—all ready for importation into the United States. But drug trafficking was not its only line of business. Kidnapping, extortion, and murder generated additional revenue for the cartel and helped maintain control over its bases (or "plazas").

Marciano Millan Vasquez was a hitman and drug trafficker with the Zetas cartel.¹

Over the years, he worked his way up to become the "plaza boss" of Piedras Negras, Coahuila, a city across the border from Eagle Pass, Texas. The Zetas had near total control over the state of Coahuila, and, within that, Vasquez controlled Piedras Negras. As plaza boss, Vasquez directed the flow of drugs across the border and had the power to order executions. He was also responsible for maintaining control of Piedras Negras, which he did by bribing and murdering public officials and law enforcement officers.

During his reign as plaza boss, Vasquez routinely killed and ordered his underlings to kill. The victims were suspected informants, competitors, defectors, debtors, those close to them, and countless others who drew Vasquez’s ire for one reason or another.

Suspected informants were a frequent target. Rodolpho Reyes, Jr., a U.S. citizen, worked for the Zetas cartel but began cooperating with U.S. law enforcement in 2009. After law enforcement repeatedly intercepted shipments of drugs, Vasquez grew suspicious. He summoned Reyes to Mexico, where he tortured him until Reyes confessed and gave up the name of another informant. Vasquez then gave him some cocaine, told him to pray, shot him, dismembered his corpse, and burned it. Severino Abascal was another suspected informant. Vasquez, then just the deputy to the plaza boss, advised the then-plaza boss to kidnap and kill Abascal. After Abascal and his girlfriend disappeared, Abascal’s father asked a friend linked to the cartel to look into it. The friend called the plaza boss, who told the friend that he and Vasquez had just finished "cooking" them—meaning that they had dissolved the bodies in acid or diesel gasoline.

The Zetas cartel also orchestrated mass slaughters. Pancho Cuellar was once a high-ranking member of the cartel. According to one witness who worked with him, he "was in charge of all of the cocaine movement in Piedras Negras." Cuellar—rumored to be working with law enforcement and indebted to the Zetas to the tune of $10 million—fled to the United States and began cooperating with law enforcement. In retaliation, the Zetas organized, according to one trial witness, "one of the largest massacres that ha[s] happened in Coahuila." Members of the cartel swiftly rounded up more than 30 people,² including children, and took them to a vacant lot outside Piedras Negras, where they shot them and disposed of their bodies. Vasquez helped to plan, coordinate, and, ultimately, carry out the round-up and the slaughter. The Zetas then rounded up hundreds more in the nearby town of Allende and murdered them as well.

Vasquez and the cartel also used murder to punish and intimidate those who stole from and owed money to them. The Zetas killed a man who laundered its money, as well as his friend and his brother, when it suspected that he had stolen from the cartel.³ Another man, Jorge De Leon, smuggled drugs, firearms, and money for Vasquez but incurred a debt when he lost a shipment. When De Leon failed to pay by Vasquez’s deadline, Vasquez kidnapped him and held him hostage. Vasquez demanded that De Leon’s family and friends pay a $100,000 ransom.

He then showed De Leon what would happen to him if they failed. Over the 13 days he was held hostage, De Leon testified that he was forced to watch one brutal murder after another. Vasquez and his underlings first dismembered four men and one woman in front of him, burning their corpses afterward. Four children suspected of working for a rival cartel and two men were "cut up" while De Leon was forced to watch. Three Mexican military personnel were shot right in front of him. And he was forced to watch as Vasquez dismembered and then burned a six-year-old girl in front of her parents. After they watched their daughter die, Vasquez murdered the parents too. Vasquez finally released De Leon when his mother raised $20,000 by selling her home. If he failed to raise an additional $100,000, Vasquez told him, he would suffer through the same horrors yet again. De Leon failed to raise the money. Fearing for himself and his family, he fled to the United States and brought his wife, son, and father with him.

The U.S. Marshals Service arrested Vasquez in San Antonio in July 2015. Based on a tip, they tracked him to a house registered to his common law wife. When asked his name, Vasquez told the marshals that he was Rigoberto Sanchez and gave them a false identification card. Although the marshals told Vasquez that they knew who he was, he initially continued to insist that he was Rigoberto Sanchez but ultimately confessed his real identity.

B.

A grand jury in the Western District of Texas returned a ten-count indictment against Vasquez. Count one of the indictment charged Vasquez with killing while engaged in offenses punishable under 21 U.S.C. §§ 841(b)(1)(A) or 960(b)(1), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Counts two, six, and eight charged conspiracy to possess marijuana, cocaine, and methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Counts three, four, and seven charged conspiracy to import and distribute controlled substances, in violation of 21 U.S.C. §§ 952(a), 959(a), 960(a), 960(b)(1), and 963. Count five charged the employment of minors in drug operations, in violation of 21 U.S.C. § 861(a)(1) and 18 U.S.C. § 2. Count nine charged conspiracy to possess firearms in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1), (o). Count ten charged false statements, in violation of 18 U.S.C. § 1001(a)(2).

After an 11-day trial, a jury found Vasquez guilty on all counts. As for the murder charges, the jury returned a special verdict form finding Vasquez guilty of every charged murder.⁴

Vasquez filed a post-verdict motion for a judgment of acquittal. He argued for the first time that 21 U.S.C. § 848(e)(1)(A) does not apply extraterritorially. He also argued, again for the first time, that the drug trafficking offenses were lesser-included offenses of § 848(e)(1)(A), and thus double jeopardy precluded convicting him of both. The district court denied the motion.

The district court then imposed seven consecutive terms of life imprisonment on counts one, two, three, four, six, seven, and eight. It imposed concurrent sentences of ten years’ incarceration on count five and twenty years’ on count nine. Finally, it imposed a consecutive sentence of five years’ incarceration on count ten.

C.

Convicted and sentenced to more than seven lifetimes’ worth of imprisonment, Vasquez appeals. According to Vasquez, his murder convictions cannot stand because the statute under which he was convicted does not apply beyond the territory of the United States. He also argues that the district court flubbed its jury instruction on the murder counts, allowing the jury to convict him even if it found no "substantive connection" between the murders and Vasquez’s drug-trafficking crimes....