U.S. v. Cortinas
| Decision Date | 22 May 1998 |
| Docket Number | No. 96-50512,96-50512 |
| Parties | 49 Fed. R. Evid. Serv. 670 UNITED STATES of America, Plaintiff-Appellee, v. Ernest CORTINAS, also known as Neto; Ricardo Rodriguez, also known as Uncle Richard, also known as Mangas; Henry C. Villegas; Daniel Chavez Villegas, also known as El Gordo; Johnny Albert Martinez, also known as Red Rider; Linda Rodriguez, also known as Linda Rodriguez Mata; Eric Wayne Green, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard L. Durbin, Jr., Asst. U.S. Atty., Joan E.T. Stearns, Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for U.S.
Nancy Blair Barohn, Dallas, TX, for Ernest Cortinas and Eric Green.
Robert Thomas Swanton, Jr., Waco, TX, for Ricardo Rodriguez.
John Kuchera, Waco, TX, for Henry G. Villegas.
Gell R. Kingery, Waco, TX, for Daniel Chavez Villegas.
Scott Peterson, Waco, TX, for Johnny Albert Martinez.
Johnny Albert Martinez, Beaver, WV, pro se.
Van Galen Hilley, Goldstein, Goldstein & Hilley, Robert Otto Switzer, San Antonio, TX, for Linda Rodriguez.
Appeals from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and FITZWATER, * District Judge.
Ernest Cortinas, Ricardo Rodriguez, Henry C. Villegas, Daniel Chavez Villegas, Johnny Albert Martinez, Linda Rodriguez Mata, and Eric Wayne Green were convicted of conspiracy and various substantive offenses arising out of a marihuana distribution enterprise. They challenge on appeal, inter alia, the admissibility of certain evidence, the denial of various motions to sever, the sufficiency of the evidence, and the trial court's sentencing findings as to the amount of marihuana involved in the offenses. For the reasons assigned, we affirm in part and vacate and remand in part.
The appellants' convictions are related to a drug smuggling organization headed by Daniel Nieto. In 1984, Nieto began storing marihuana at Metro Transmissions, his place of business in San Antonio, and eventually expanded his involvement in the drug trade to become a major distributor of marihuana between San Antonio and Saginaw, Michigan. Nieto bought marihuana from Arturo Villareal which was delivered to Metro Transmissions by Rodriguez, Villareal's uncle. On several occasions members of Nieto's organization paid Mata, Villareal's sister, for the marihuana. The relationship between Nieto and Villareal ended in 1989 and Nieto acquired another marihuana source.
As his operations grew, Nieto hired a number of people, including Martinez, to transport the marihuana, using Dan's Paint and Body Shop, a San Antonio business, as a front. Employees of Dan's would fit vehicles with concealed compartments, do touch up paint and body work to conceal the compartments, and load and unload marihuana. Henry Villegas was the owner and Daniel Villegas was an employee of Dan's. Both were members of the Southsiders Bikers Club, a boot camp organization for the Bandido Nation Motorcycle Club.
In 1989, encountering problems collecting from some Michigan customers, Nieto enlisted the services of Cortinas, a small-time customer, and other members of the San Antonio Chapter of the Bandido Nation Motorcycle Club to assist in the collection effort. In the process of collecting one such account, in September 1991 Cortinas and fellow Bandido members Edward Salas and Green, reportedly "shot up" the house of a delinquent debtor. The shooting resulted in the death of a 14-year-old boy. The house was under the "protection" of a Michigan motorcycle club, the Outlaws, and in order to prevent retaliation the Bandidos obtained $25,000 from Nieto to give to the Outlaws. Nieto testified that the Bandidos eventually took over his business and that he acquiesced in that takeover because he feared for his life and the life of his family.
Nieto was arrested in May 1992 along with several confederates. Nieto and others plea bargained for reduced sentences in return for information and testimony against other members of the organization. In January 1995, 28 members of Neito's organization were indicted for conspiracy with intent to distribute marihuana, in violation of 21 U.S.C. § 841(a)(1) and § 846, and various other substantive offenses. A jury found all appellants guilty on the conspiracy count. 1 Mata was also convicted of conspiring to launder drug money proceeds in violation of 18 U.S.C. § 1956. The jury acquitted Martinez of conspiring with Edward Jesse Rodriguez 2 to distribute marihuana. The appellants timely appealed.
Appellants assert the following claims of error: (1) the district court abused its discretion in admitting evidence of the Bandido's methamphetamine trafficking, the Michigan shooting and the Bandido's tactics and philosophy; (2) the district court erred in refusing to sever the trials of Rodriguez, Mata, Henry Villegas, and Daniel Villegas; (3) the evidence was insufficient to support the convictions of Cortinas, Rodriguez, Daniel Villegas, Martinez, Mata, and Green; (4) the district court abused its discretion in denying Cortinas' request for an alibi jury instruction; (5) the government gave Cortinas and Green inadequate notice of its intention to seek an enhanced penalty under § 841(b) which constituted a denial of due process; (6) the quantity of marihuana for which Cortinas was held accountable was not properly determined; (7) the district court erred in enhancing Cortinas' sentence based upon his alleged leadership role in the conspiracy and for possession of a firearm; and (8) Henry Villegas' trial counsel rendered ineffective assistance. We consider these issues in that order.
Several of the appellants contend that some of the evidence presented at trial was inadmissible. They properly objected at trial, preserving error on these points, and we review applying the abuse of discretion standard. 3
A. Methamphetamine Trafficking
Cortinas and Green complain about the admission of testimony by Jay Lane Roberts, a Bandido National Officer, that he periodically sold to them methamphetamine in quantities sufficient for resale. 4 The admissibility of extrinsic evidence is governed by Fed.R.Evid. 404(b) which allows the introduction of such evidence for purposes other than to show that the defendant acted in conformity therewith. Interpreting that rule, we have applied a two-step test. 5
This evidence was admitted properly under Fed.R.Evid. 404(b) and 403. The extraneous drug evidence, trafficking in methamphetamine, necessarily entails the same knowledge or intent to traffick in marihuana, the controlled substance at issue herein. Furthermore, we previously have held that "proof of prior drug activities is more probative than prejudicial." 6 The district court did not abuse its discretion in admitting this evidence. 7
B. Bandido's Tactics and Philosophy
Cortinas, Rodriguez, and Martinez contest the admission of general testimony about the culture, activities, and tenets of the Bandidos. Roberts described the "gang" as being into He explained that the gang associated with "characters"--successful, nonmember criminals--and attempted to take control of their criminal enterprises and money. This testimony illustrated the "talents" of the Bandidos that led Nieto to employ the organization in his debt collection efforts. Additionally, it supports the reasonable inference that members of this gang could form the requisite intent to engage in an illegal enterprise. Thus, the district court did not abuse its discretion in admitting this testimony.
C. Michigan Shooting
In 1991, Frances O'Valle, one of Nieto's Michigan customers, owed Nieto for marihuana that had been "fronted" to her. 8 Nieto employed the Bandidos to collect this debt. O'Valle told of difficulties she was experiencing collecting from a customer and complained to Nieto about the debt collectors' strong arm tactics. Nieto promised O'Valle that she would be left alone if she would give the address of her delinquent customer, one Forest Zudell. The address was given and Zudell's house in Mount Morris Township, Michigan was "shot up," and a 14-year-old boy was killed. The police investigation determined that the shots had been fired by three gunmen from three different angles. The government maintained that Cortinas, Green, and co-defendant Salas were the three responsible for the shooting. The government introduced evidence of the debt, the shooting, and the results of the Mount Morris Police Department's investigation which led them to conclude that Cortinas, Green, and Salas were the gunmen.
Appellants contend that the district court abused its discretion in admitting this highly inflammatory and potentially prejudicial evidence. Although the district court did not allow evidence of the death that resulted from the shooting, appellants maintain that the testimony implied, and in fact led the jury to believe, that someone was killed in the incident. We are not persuaded.
The shooting incident was admitted properly as an intrinsic act in furtherance of the conspiracy. 9 The violence was part of the effort to collect money owed for marihuana that had been delivered to one of Nieto's customers. Additionally, and most importantly, any undue prejudice was avoided by disallowing evidence of the death of the 14-year-old boy. The court's admission of this evidence was not error.
Appellants who were not members of the Bandidos 10 contend that even if this evidence was...
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