U.S. v. Martinez, Nos. 08–50141

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtORDER
Citation657 F.3d 811,2011 Daily Journal D.A.R. 14055
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Ricardo MARTINEZ, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Cesar J. Abarca, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Joshua Cruz, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.George Fernandez, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Richard Valenzuela, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Eduardo Gonzalez–Gallegos, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Thomas Durkin, Defendant–Appellant.
Decision Date14 September 2011
Docket Number08–50142,08–50145,08–50147,08–50151,08–50152.,Nos. 08–50141,08–50150

657 F.3d 811
2011 Daily Journal D.A.R. 14,055

UNITED STATES of America, Plaintiff–Appellee,
v.
Ricardo MARTINEZ, Defendant–Appellant.United States of America, Plaintiff–Appellee,
v.
Cesar J. Abarca, Defendant–Appellant.United States of America, Plaintiff–Appellee,
v.
Joshua Cruz, Defendant–Appellant.United States of America, Plaintiff–Appellee,
v.
George Fernandez, Defendant–Appellant.United States of America, Plaintiff–Appellee,
v.
Richard Valenzuela, Defendant–Appellant.United States of America, Plaintiff–Appellee,
v.
Eduardo Gonzalez–Gallegos, Defendant–Appellant.United States of America, Plaintiff–Appellee,
v.
Thomas Durkin, Defendant–Appellant.

Nos. 08–50141

08–50142

08–50145

08–50147

08–50150

08–50151

08–50152.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2011.Filed June 22, 2011.Amended Sept. 14, 2011.


[657 F.3d 814]

Gordon S. Brownell, St. Helena, CA, for defendant-appellant Ricardo Martinez.Debra A. DiIorio, San Diego, CA, for defendant-appellant Cesar J. Abarca.Alex L. Landon, San Diego, CA, for defendant-appellant Joshua Cruz.Arza Feldman, Uniondale, NY, for defendant-appellant George Fernandez.David A. Schlesinger, San Diego, CA, for defendant-appellant Richard Valenzuela.Stephen D. Lemish, El Cajon, CA, for defendant-appellant Gonzalez–Gallegos.Jerald L. Brainin, Los Angeles, CA, for defendant-appellant Thomas Durkin.Todd W. Robinson, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. Nos. 3:06–cr–01243–DMS–3, 3:06–cr–01243–DMS–11, 3:06–cr–01243–DMS–17, 3:06–cr–01243–DMS–5, 3–06–01243–DMS–10, 3:06–01243–DMS–4, 3:06–cr–01243–DMS–6.Before: JOHN T. NOONAN and KIM McLANE WARDLAW, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.*
ORDER
NOONAN, Circuit Judge:

The opinion filed on June 22, 2011 is amended as follows:

At slip op. at 8462, lines 24–28: Change to ="" district="" court="" did="" not="" abuse="" its="" discretion="" under="" circumstances="" given="" impending="" trial="" date="" length="" security="" requirements="" of="" likelihood="" serious="" inconvenience="" for="" witnesses="" jurors.="" abarca="" contends="" that="" prejudiced="" by="" denial="" a="" continuance="" because="" his="" counsel="" had="" inadequate="" time="" to="" prepare="" late="" notice="" government="" would="" seek="" death="" penalty.="" this="" argument="" may="" be="" more="" appropriately="" addressed="" ...="">

With this amendment, the panel votes to deny the petitions for rehearing. Judge Wardlaw votes to deny the petitions for rehearing en banc, and Judges Noonan and Korman so recommend.

The full court has been advised of the petitions for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for rehearing are DENIED and the petitions for rehearing en banc are DENIED.

No further petitions for rehearing or for rehearing en banc will be entertained from any appellant other than Abarca.

OPINION

Ricardo Martinez, Thomas Durkin, Eduardo Gonzalez–Gallegos, George Fernandez, Cesar J. Abarca, Joshua Cruz, and Richard Valenzuela appeal their convictions of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and their sentencing enhancement for carrying out the conspiratorial agreement by

[657 F.3d 815]

acts subjecting them to life imprisonment. We affirm the judgment of the district court.
PROCEEDINGS

On June 6, 2006, a federal grand jury indicted twenty-two persons including the seven defendants on a single count of conspiracy in violation of 18 U.S.C. § 1962(d). A number of those indicted pleaded guilty. Several were severed to be tried separately. The seven defendants went to trial on October 15, 2007. The jury returned a verdict of guilty on January 4, 2008. Each defendant was sentenced to imprisonment for life.

This appeal followed. Conscientious counsel for the seven defendants make a multitude of points on their behalf.

FACTS

Martinez is a member of the Mexican Mafia. Durkin, Gonzalez, and Fernandez are high-level associates in the Mexican Mafia. Abarca, Cruz, and Valenzuela are soldiers in this organization.

The history and activities of the Mexican Mafia have been well set out by Judge Trott in United States v. Shryock, 342 F.3d 948 (9th Cir.2003). Beginning as members of a street gang incarcerated at Deuel Vocational Institution in Tracy, California in the 1950s, the Mexican Mafia became a presence in California prisons and in federal prisons within California. The organization had an ethnic identity: Hispanic. It had a form: hierarchical. The leaders—known as members—were chosen by existing members. Associates were aspirants to membership. The soldiers took orders. The objectives of the organization were power in the prisons and the control of drug trafficking within and outside the prisons. Despite the efforts of the authorities, the Mexican Mafia has survived for half a century. It enforces its will by violence including murder.

These characteristics of the Mexican Mafia, already observed in Shryock, were set before the jury in this case by the testimony of a government expert on the organization and by the testimony of a former member. Its presence in Southern California was particularly emphasized. No witness disputed this evidence. The government also established beyond challenge the relation of each defendant to the organization.

Among the crimes proved to be committed in furtherance of the conspiracy were the following:

The murder of Jabila Barragan. Barragan was imprisoned at High Desert State Prison. Barragan claimed to be a member of the Mexican Mafia. Authentic members found the claim false. At their direction, on June 24, 2002, Barragan was stabbed to death in the day room of the prison. Abarca and Valenzuela were found by prison officials showering themselves to wash off blood from his body. That the two had killed in order to eliminate a specious member of the Mexican Mafia was shown to be the motive for the murder.

The murder of Alvaro Hernandez. Hernandez came to the attention of Gonzalez as someone who was extorting money from individuals in the San Diego area in the name of the Mexican Mafia. Believing this claim of authority to be bogus, Gonzalez sought permission from the leadership to kill him. Durkin supported his request. Martinez granted it. Gonzalez arranged for Fernandez to carry out the deed. Fernandez delegated its execution to Cruz, who shot and killed Hernandez shortly after he had been lured from his house at 3:00 a.m., July 28, 2006. The government established the role of the murderer and the accessories to the murder by a number of intercepted telephone calls and intercepted correspondence.

[657 F.3d 816]

Methamphetamine trafficking. On August 7, 2005, Durkin was observed by government agents receiving a purchase of methamphetamine at his home. On August 15, 2005, another purchase of methamphetamine was planned by Durkin and Gonzalez and took place under the eyes of federal agents, who then arrested Durkin and found him in possession of 53 grams of the drug.

ANALYSIS

We turn to the seven briefs for the seven defendants. Often they join their co-defendants' issues.

Crimes justifying life imprisonment. The defendants question whether the life sentences were adequately supported. They did not request that the jury specifically identify the crimes justifying these sentences, but the jury's special verdict found them subject to the sentences, and the evidence before the jury established that Abarca and Valenzuela had acted for the conspiracy in the murder of Barragan and that Martinez, Durkin, Gonzalez, Fernandez, and Cruz had acted for the conspiracy in the murder of Hernandez. The sentences were justified under 18 U.S.C. § 1963(a).

Fernandez's lesser part. Fernandez notes that the evidence does not establish that he managed or participated in the operations of the conspiracy, and he invokes Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). However, in 2004 we held that to be convicted of RICO conspiracy it is enough that the defendant agreed to facilitate a scheme which included the operation or management of a RICO conspiracy. United States v. Fernandez, 388 F.3d 1199, 1230 (9th Cir.2004). Our Fernandez, not the defendant in the case just cited, was shown to have conspired in this way.

Fernandez further contends that he was not shown to have committed two overt acts. The government's burden was only to show his assent to the conspiracy and the acts furthering its end. Salinas v. United States, 522 U.S. 52, 63–66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). That the government did.

The government produced evidence that Fernandez was an aspirant to membership in the Mexican Mafia; that he put money on the books of its members who were in prison; and that he made two sales of methamphetamine, in one...

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26 practice notes
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 2020
    ...in its territory. Rodriguez , 851 F.3d at 936.984 F.3d 1316 The Mexican Mafia has a hierarchical structure. United States v. Martinez , 657 F.3d 811, 815 (9th Cir. 2011). At the top of the structure are the "made members" who are independently responsible for their own territory. Each made ......
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 2020
    ...and sell drugs in its territory. Rodriguez , 851 F.3d at 936.The Mexican Mafia has a hierarchical structure. United States v. Martinez , 657 F.3d 811, 815 (9th Cir. 2011). At the top of the structure are the "made members" who are independently responsible for their own territory. Each made......
  • United States v. Barragan, Nos. 13-50516, 13-50518, 13-50525, 13-50531.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 8, 2017
    ...as "La Eme," on several occasions. See, e.g., United States v. Rodriguez, 851 F.3d 931, 936 (9th Cir. 2017) ; United States v. Martinez, 657 F.3d 811, 815 (9th Cir. 2011) ; United States v. Fernandez, 388 F.3d 1199, 1215–16 (9th Cir. 2004) ; United States v. Shryock, 342 F.3d 948, 961 (9th ......
  • Scott v. Scribner, No. 2:10-cv-01220-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 1, 2012
    ...v. Superior Court, 770 P.2d 1119, 1120 (Cal. 1989). 113. Zafiro v. United States, 506 U.S. 534, 538-39 (1993); United States v. Martinez, 657 F.3d 811, 819-20 (9th Cir. 2011). 114. See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc). 115. Renico v. Lett, 130 S. Ct. 1855, 1862......
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25 cases
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 2020
    ...in its territory. Rodriguez , 851 F.3d at 936.984 F.3d 1316 The Mexican Mafia has a hierarchical structure. United States v. Martinez , 657 F.3d 811, 815 (9th Cir. 2011). At the top of the structure are the "made members" who are independently responsible for their own territory. Each made ......
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 2020
    ...and sell drugs in its territory. Rodriguez , 851 F.3d at 936.The Mexican Mafia has a hierarchical structure. United States v. Martinez , 657 F.3d 811, 815 (9th Cir. 2011). At the top of the structure are the "made members" who are independently responsible for their own territory. Each made......
  • United States v. Barragan, Nos. 13-50516, 13-50518, 13-50525, 13-50531.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 8, 2017
    ...as "La Eme," on several occasions. See, e.g., United States v. Rodriguez, 851 F.3d 931, 936 (9th Cir. 2017) ; United States v. Martinez, 657 F.3d 811, 815 (9th Cir. 2011) ; United States v. Fernandez, 388 F.3d 1199, 1215–16 (9th Cir. 2004) ; United States v. Shryock, 342 F.3d 948, 961 (9th ......
  • Scott v. Scribner, No. 2:10-cv-01220-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 1, 2012
    ...v. Superior Court, 770 P.2d 1119, 1120 (Cal. 1989). 113. Zafiro v. United States, 506 U.S. 534, 538-39 (1993); United States v. Martinez, 657 F.3d 811, 819-20 (9th Cir. 2011). 114. See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc). 115. Renico v. Lett, 130 S. Ct. 1855, 1862......
  • Request a trial to view additional results

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