United States v. Collazo

• Citation: 984 F.3d 1308
• Decision Date: 02 December 2020
• Docket Number: No. 16-50195,No. 15-50509, No. 16-50117, No. 16-50345, No. 16-50048,15-50509
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert COLLAZO, aka Weasel, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lino Delgado-Vidaca, aka Leonard Delgado, aka Spanky, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Julio Rodriguez, aka Sniper, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Steven Amador, aka Gordo, aka Insane, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Isaac Ballesteros, aka Lazy, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

984 F.3d 1308

UNITED STATES of America, Plaintiff-Appellee,

v.Robert COLLAZO, aka Weasel, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Lino Delgado-Vidaca, aka Leonard Delgado, aka Spanky, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Julio Rodriguez, aka Sniper, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Steven Amador, aka Gordo, aka Insane, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Isaac Ballesteros, aka Lazy, Defendant-Appellant.

No. 15-50509

No. 16-50048

No. 16-50117

No. 16-50195

No. 16-50345

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc January 13, 2020 Pasadena, California

Filed December 2, 2020

Amended January 14, 2021

ORDER

The opinion filed on December 2, 2020, appearing at 982 F.3d 596 (9th Cir. 2020), is amended as follows:

At page 605, footnote 3, replace:

with

The district court assumed that the defense counsel for each defendant joined this argument.>.

At page 624, remove footnote 31.

***

Defendants-Appellants' Petition for Rehearing by Full Court (ECF No. 185) was circulated to the judges of the court, and no judge requested a vote for full court en banc consideration. The Petition for Rehearing by Full Court is DENIED . With this amendment, no further petitions for rehearing or rehearing en banc may be filed.

Dissent by Judge W. Fletcher

IKUTA, Circuit Judge:

Five defendants convicted of conspiracy to distribute controlled substances under 21 U.S.C. §§ 846 and 841 challenge jury instructions that required the jury to determine "whether the government proved beyond a reasonable doubt that the amount of [the specified drug] that was reasonably foreseeable to [each defendant] or fell within the scope of his particular agreement equaled or exceeded" a specified amount. We conclude that this instruction was erroneous. After a defendant is convicted of conspiracy under § 846 to distribute controlled substances in violation of § 841(a)(1), the government may establish that the defendant is subject to the penalties in § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) by proving beyond a reasonable doubt that the § 841(a)(1) offense involved the drug type and quantity set forth in the two penalty provisions. The government is not required to prove that the defendant knew (or had an intent) with respect to the drug type and quantity set forth in those penalty provisions in order for them to apply.

I

Robert Collazo, Lino Delgado-Vidaca, Julio Rodriguez, Steven Amador, and Isaac Ballesteros are members of the Mexican Mafia, "the largest prison gang in the United States." United States v. Rodriguez , 851 F.3d 931, 936 (9th Cir. 2017). It was "formed in the 1950s by Hispanic street gang members" for the purpose of protecting "Hispanics from other such gangs within California's jails and prisons." United States v. Shryock , 342 F.3d 948, 961 (9th Cir. 2003). Over time, it "gained significant power and control over illegal activities in the California prison system." Id. As members were released from prison, the organization extended its dominion to certain parts of Southern California. Id. Outside the prison walls, the Mexican Mafia demands payments (called "taxes") from local drug dealers and street gangs in exchange for allowing them to distribute 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 member has a "secretary" who ensures that the member's decisions are implemented. Further down the hierarchy are the "meseros" who are responsible for making tactical decisions, such as when to initiate prison riots, and for overseeing the organization's criminal activities within a particular prison yard. The lower level participants are referred to as "associates." The primary duty of an associate is to generate money for the Mexican Mafia through the distribution and sale of narcotics. Whether narcotics are sold in prison or on the street, every transaction is conducted on behalf of the made member who controls the particular territory.

The five defendants in this appeal worked for Luis "Boo-Boo" Garcia, a made member of the Mexican Mafia who is serving a life sentence at Pelican Bay State Prison in Northern California. Each defendant had a defined role in the organization. Robert Collazo was in charge of a prison yard at Donovan Prison, and was responsible for coordinating narcotics being smuggled into prison on a regular basis: methamphetamine was smuggled by the ounce (roughly 28 grams), and heroin was smuggled by the piece (roughly 24 grams). Once the narcotics were smuggled into prison, Collazo worked with various Mexican Mafia members, including Ballesteros, to transfer those narcotics throughout the prison. Collazo also sent Garcia $400 every month. Lino Delgado-Vidaca, a Mexican Mafia member who had been released from prison, collected taxes from drug dealers in San Diego and conveyed payments to Garcia through Garcia's fiancée. Julio Rodriguez was initially incarcerated at Lancaster State Prison and then transferred to Ironwood State Prison. He was responsible for smuggling heroin into both prisons. Rodriguez smuggled heroin in 50-gram increments; each delivery included one 25-gram bag and two 12.5-gram bags. Steven Amador, who was incarcerated at Centinela State Prison, served as Garcia's secretary. His primary responsibility was collecting rent on behalf of Garcia. Amador also helped smuggle narcotics into Centinela. Isaac Ballesteros was incarcerated at Donovan State Prison. As a mesero, he oversaw distribution and tax collection in one of the prison yards.

Following a significant investigation by a joint state and federal gang task force, the defendants were arrested and charged with two counts of conspiracy. We are concerned only with the second count: conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 841(b)(1)(B)(i), and 846.¹ The indictment did not charge any defendant with a substantive offense related to this conspiracy count.

After a ten-day trial, the parties agreed to jury instructions and verdict forms. For Count 2 (conspiracy to distribute controlled substances), the jury was instructed as follows:

The defendants are charged in Count 2 of the indictment with conspiracy to distribute controlled substances in violation of Section 841(a) and Section 846 of Title 21 of the United States Code. In order for a defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, beginning on a date unknown and continuing up to and including March 2013, there was an agreement between two or more persons to distribute methamphetamine or heroin; and

Second, the defendant joined in the agreement knowing of its purpose and intending to help accomplish that purpose.

If the jury found a defendant guilty of conspiracy to distribute controlled substances, the jury was instructed to make special findings regarding drug quantity:

If you find a defendant guilty of the charge in Count 2 of the indictment, you are then to determine as to that defendant whether the government proved beyond a reasonable doubt that the amount of methamphetamine that was reasonably foreseeable to him or fell within the scope of his particular agreement equaled or exceeded 50 grams of actual methamphetamine or 500 grams of a mixture containing methamphetamine in connection with his criminal activity. Your decision as to weight must be unanimous.

If you find a defendant guilty of the charge in Count 2 of the indictment, you are then to determine as to that defendant whether the government proved beyond a reasonable doubt that the amount of heroin that was reasonably foreseeable to him or fell within the scope of his particular agreement equaled or exceeded 100 grams of heroin in connection with his criminal activity. Your decision as to weight must be unanimous.

During deliberation, the jury returned a note asking for clarification on its duty to make special findings regarding drug quantity.² Only then did defense counsel raise his concern that the jury instructions were not in accordance with Ninth Circuit precedent. Relying on United States v. Ortiz , 362 F.3d 1274 (9th Cir. 2004), defense counsel argued that the drug-quantity instruction should be phrased in the conjunctive (reasonably foreseeable to him and fell within the scope of his particular agreement), rather than in the disjunctive (reasonably foreseeable to him or fell within the scope of his particular agreement).³ After a brief recess, the trial court ruled that Ortiz was not applicable, because it interpreted the United States Sentencing Guidelines (the "Guidelines"), rather than the relevant criminal statutes; therefore, the court declined to change the jury instructions.

The jury found each defendant guilty of conspiracy to distribute controlled substances.⁴ As for the special findings regarding drug quantity under § 841(b)(1)(A)–(B), the jury found the requisite methamphetamine amount for Collazo and Delgado-Vidaca, and the requisite heroin amount for Amador, Ballesteros, Collazo, and Rodriguez. Each defendant timely appealed, raising multiple claims of error, including a challenge to the jury instructions for Count 2.⁵

At the suggestion of the three-judge panel initially assigned the consolidated appeals, we voted to hear the appeals en banc to clarify our jury instructions for conspiracy under § 846 and the facts that trigger the penalties under § 841(b)(1)(A)–(B).⁶ As explained in more detail below, our prior decisions on this issue relied on the Guidelines' definition of "relevant conduct," see U.S.S.G. § 1B1.3 (1991), to determine a defendant's liability for conspiracy under 21 U.S.C. § 846 and the...