United States v. Chavez

• Decision Date: 09 January 2018
• Docket Number: Case No. 15-CR-00285-LHK
• Citation: United States v. Chavez, Case No. 15-CR-00285-LHK (N.D. Cal. Jan 09, 2018)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DANIEL CHAVEZ, et al., Defendants.
• Court: U.S. District Court — Northern District of California

UNITED STATES OF AMERICA, Plaintiff, v. DANIEL CHAVEZ, et al., Defendants.

Case No. 15-CR-00285-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

January 9, 2018

ORDER DENYING WITH PREJUDICE IN PART AND WITHOUT PREJUDICE IN PART MOTIONS TO DISMISS COUNTS FOR FAILURE TO STATE AN OFFENSE

Re: Dkt. Nos. 259, 261, 262, 265, 268

Before the Court are Defendant Daniel Chavez's ("Chavez") five Motions to Dismiss Counts for Failure to State an Offense. ECF Nos. 259, 261, 262, 265, 268. Specifically, Chavez seeks to dismiss twelve of the twenty-six counts with which he is charged in the Superseding Indictment, ECF No. 40. Defendant Victor Skates ("Skates") joins in the Motions to Dismiss for the counts applicable to him. ECF No. 276. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court DENIES WITH PREJUDICE in part and WITHOUT PREJUDICE in part Chavez's Motions to Dismiss.

I. BACKGROUND

A three-count indictment was filed on May 27, 2015 against Defendants Skates, Antonio Cruz, and Anthony Lek. ECF No. 1. A seventy three-count superseding indictment was filed on October 28, 2015 against Defendants Chavez, Skates, Eduardo Lebron, Eder Torres, Julian Ruiz, Antonio Cruz, Terrell Golden, Anthony Lek, and Robert Loera. ECF No. 40 ("Superseding Indictment").

The main charges in the Superseding Indictment stem from Defendants' alleged participation or association in a racketeering enterprise. According to the Superseding Indictment, Defendants identify themselves as Norteños, Northern California gang members who pledged allegiance and loyalty to the Nuestra Familia prison gang. Superseding Indictment ¶¶ 4, 11-14. Each Defendant was either a member or an associate of one of three Norteño street gangs—East Las Casitas, Salinas East Market, or Santa Rita. Id. ¶¶ 17-26. Chavez and Skates belonged to East Las Casitas. Id. ¶¶ 17-18. The alleged enterprise was composed of gang members and associates of these three street gangs (including Defendants), as well as other Norteño gang members in Salinas, California. Id. ¶ 15. From 2009 and continuing through 2011, the enterprise would organize attacks on rival Sureño gang members and robberies of banks and other commercial establishments. Id. ¶¶ 14, 28. Perpetrating such activities was designed to, among other things, promote the enterprise and preserve its power, reputation, and profits. Id. ¶ 16. The Superseding Indictment further spells out Chavez's and Skate's (as well as the other Defendants') various roles in the enterprise. Id. ¶¶ 17-26.

Chavez is charged with twenty-six counts in the Superseding Indictment. He is charged with five conspiracies: (1) a conspiracy under the Racketeer Influenced and Corrupt Organizations Act ("RICO") (Count 1); (2) a conspiracy to commit murder in aid of racketeering (Count 2); (3) a conspiracy to commit assault with a dangerous weapon in aid of racketeering (Count 3); (4) a conspiracy to commit robbery under the Hobbs Act (Count 5); and (5) a conspiracy to commit armed bank robbery (Count 6). He is also charged with multiple murders (Counts 8, 11, 12, 21, and 46); multiple firearm offenses (Counts 4, 7, 9, 10, 13, 14, 22, 23, 47, 48, 67, and 73); attempted murder (Count 65); assault (Count 66); armed bank robbery (Count 71); and Hobbs Actrobbery (Count 72).

Skates is charged with fifty-four counts in the Superseding Indictment. He is charged with the same five conspiracies as Chavez: (1) a RICO conspiracy (Count 1); (2) a conspiracy to commit murder in aid of racketeering (Count 2); (3) a conspiracy to commit assault with a dangerous weapon in aid of racketeering (Count 3); (4) a conspiracy to commit robbery under the Hobbs Act (Count 5); and (5) a conspiracy to commit armed bank robbery (Count 6). He is also charged with multiple murders (Counts 8, 11, 12, 15, 21, 29, 32, 46, and 49); multiple firearm offenses (Counts 4, 7, 9, 10, 13, 14, 16, 17, 22, 23, 25, 30, 31, 33, 34, 44, 47, 48, 50, 55, 61, 64, and 70); multiple attempted murders (Counts 38, 39, 40, 51, and 52); multiple assaults (Counts 41, 42, 43, 53, and 54); multiple armed bank robberies (Counts 59, 62, and 68); and multiple Hobbs Act robberies (Counts 24, 60, 63, and 69).

On December 6, 2017, Chavez filed motions attacking the Superseding Indictment. Relevant here, he filed five Motions to Dismiss Counts for Failure to State an Offense. ECF Nos. 259, 261, 262, 265, 268. Skates joins in four of those five Motions to Dismiss. ECF No. 276. On December 20, 2017, the government filed its responses. ECF Nos. 279, 280. Chavez filed a reply on December 30, 2017, ECF No. 284, and filed a second reply on January 3, 2018, ECF No. 286.

II. LEGAL STANDARD

Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a defendant may move to dismiss a count in an indictment on the ground that the count "fail[s] to state an offense." Every count must "set forth all the elements necessary to constitute the offen[s]e intended to be punished." Hamling v. United States, 418 U.S. 87, 117 (1974) (quoting United States v. Carll, 105 U.S. 611, 612 (1882)). Therefore, where a count fails to recite an essential element of the offense, that count is facially defective and must be dismissed. See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001).

For purposes of ruling on a motion to dismiss a count in an indictment, courts are "bound by the four corners of the indictment." United States v. Lyle, 742 F.3d 434, 436 (9th Cir. 2014)(quoting United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002)). The Court accepts the allegations in the indictment as true and "analyz[es] whether a cognizable offense has been charged." Boren, 278 F.3d at 914. A motion to dismiss a count in an indictment can be determined before trial if it presents legal, rather than factual, issues. United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.), cert. denied, 478 U.S. 1007 (1986).

III. DISCUSSION

The Superseding Indictment charges Chavez with twenty-six counts. Chavez moves to dismiss twelve of those counts on the ground that they fail to state an offense. Chavez's challenges fall into two groups: (1) a challenge to the RICO conspiracy charge (Count 1), and (2) challenges to the firearm charges (Counts 4, 7, 9, 10, 13, 14, 22, 23, 47, 48, and 73).¹

The Court first considers Chavez's challenge to the RICO conspiracy charge, then considers Chavez's challenges to the firearm charges.

A. RICO Conspiracy Charge (Count 1)

The Court first addresses Chavez's challenge to the RICO conspiracy charge. Count 1 charges Chavez with RICO conspiracy under 18 U.S.C. § 1962(d). Section 1962(d) criminalizes conspiring to violate § 1962(c). Section 1962(c), in turn, makes it unlawful for "any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c). As the U.S. Supreme Court has held, there are three central elements for a subsection (c) violation: "(1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity." Salinas v. United States, 522 U.S. 52, 62 (1997).

Chavez contends that Count 1 fails to state an offense because it does not adequately allege an "enterprise." The term "enterprise" is defined by statute: it covers "any individual, partnership,corporation, association, or other legal entity" as well as "any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). The latter type of enterprise—i.e., the associated-in-fact enterprise—is the one at issue in the instant case. In general, an associated-in-fact enterprise is "a group of persons associated together for a common purpose of engaging in a course of conduct." Odom v. Microsoft Corp., 486 F.3d 541, 549 (9th Cir.) (en banc) (quoting United States v. Turkette, 452 U.S. 576, 583 (1981)), cert. denied, 552 U.S. 985 (2007). Thus, the U.S. Supreme Court has clarified that an associated-in-fact enterprise has "at least three structural features: [(1)] a purpose, [(2)] relationships among those associated with the enterprise, and [(3)] longevity sufficient to permit these associates to pursue the enterprise's purpose." Boyle v. United States, 556 U.S. 938, 946 (2009).

Chavez argues that the government's allegations are insufficient to establish the three structural features required for an associated-in-fact enterprise. The Court first analyzes the sufficiency of the "purpose" allegations, then analyzes the sufficiency of the "relationship" allegations, and finally analyzes the sufficiency of the "longevity" allegations.

1. "Purpose"

The Court first concludes that the Superseding Indictment sufficiently alleges that the defendants have associated for "a common purpose of engaging in a course of conduct." Turkette, 452 U.S. at 583. In the Superseding Indictment, the racketeering enterprise is described as the gang members and associates of East Las Casitas, Salinas East Market, and Santa Rita, as well as members of other Norteño gangs in Salinas, California. ECF 40 ¶¶ 14-15. The Superseding Indictment goes on to catalog the enterprise's purposes: preserving and protecting the enterprise's power, territory, reputation, and profits through violence; keeping community members in fear of the enterprise through violence; providing support and information to Nuestra Familia members and associates; and protecting the enterprise's members and associates who committed crimes by hindering law enforcement efforts. Id. ¶ 16. These allegations are sufficient to establish the enterprise's common purpose. United States v. Fernandez, 388F.3d 1199, 1224 (9th Cir. 2004)(noting a gang's objectives contained in a "well-defined set of rules that were enforced by violence"). Contrary to Chavez's arguments, these...