United States v. Herrera
| Decision Date | 26 April 2012 |
| Docket Number | No. 09-50323,09-50323 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAID FRANCISCO HERRERA, also known as Shorty; ARTURO ENRIQUEZ, also known as Tury; MANUEL CARDOZA, also known as Tolon; CARLOS PEREA, also known as Shotgun; EUGENE MONA, also known as Gino; BENJAMIN ALVAREZ, also known as T-Top, Defendants - Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SAID FRANCISCO HERRERA, also known as Shorty; ARTURO ENRIQUEZ,
also known as Tury; MANUEL CARDOZA, also known as Tolon; CARLOS
PEREA, also known as Shotgun; EUGENE MONA, also known as Gino;
BENJAMIN ALVAREZ, also known as T-Top, Defendants - Appellants.
No. 09-50323
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
FILED: April 26, 2012
Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
Said Francisco Herrera, Arturo Enriquez, Manuel Cardoza, Carlos Perea, Eugene Mona, and Benjamin Alvarez raise appeals relating to their respective convictions under one or more of the following statutes: §§ 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations Act (RICO) (prohibiting racketeering activity), § 1951(a) of the Hobbs Act (prohibiting extortion), 18
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U.S.C. §1956(h) (prohibiting money laundering), and 21 U.S.C. §§ 841(a) and 846 (prohibiting drug trafficking). Except for Mona's sentence, which we VACATE and REMAND for re-sentencing, the judgment of the district court is AFFIRMED.
The six appellants were all associated, in varying degrees, with the Barrio Azteca (BA) criminal enterprise.1 The BA is a prison gang that was founded in 1985 by inmates originally from El Paso, Texas, who were incarcerated in the Texas Department of Corrections (TDC) prison system. At the time of the appellants' trial in 2008, the BA's criminal operations and influence had grown to encompass various TDC and federal Bureau of Prisons (BOP) facilities, certain West Texas cities, and the city of Juarez, Mexico.
The BA's primary criminal activity involved the extortion of payments (known as "cuotas") from narcotics traffickers (known as "tiendas") who sold illegal drugs in BA territory. The BA ensured that the tiendas would pay the requisite cuotas through the threat and, if necessary, use, of violence, including murder. Once collected from the tiendas, cuotas would be converted into money orders so that they could be funneled into the prison commissary accounts of incarcerated BA leaders and senior members.
In addition to collecting cuotas, the BA also acted as a facilitator and enforcer of the illegal narcotics trade by: (1) serving as a source for tiendas to obtain additional supplies of narcotics; (2) collecting delinquent payments owed to tiendas; (3) restraining others from selling drugs in competition with the BA's cuota-paying tiendas; (4) engaging in sales of narcotics; (5) importing and transporting drugs for the La Linea drug cartel, which operates in Juarez,
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Mexico; and (6) committing assaults and other violent crimes on behalf of the La Linea cartel.
The BA was organized in a hierarchical, paramilitary manner. The most senior BA position was captain ("capo"), then lieutenant, sergeant, soldier ("soldado"), and, finally, prospective member ("esquina"). The capos, most of whom were incarcerated, ran the organization by directing orders, often through direct communication or coded letters known as "whilas" or "estucas," to lieutenants and sergeants, who would then carry out the capos' instructions or delegate the tasks to more junior members.
The appellants have all been convicted of illegal acts that occurred in association with the BA criminal enterprise between 2003 and 2008. Specifically, Manuel Cardoza, Benjamin Alvarez, and Carlos Perea, who were all capos, each received multiple life sentences for violating 18 U.S.C. §§ 1956(h), 1962(c), and 1962(d), and 21 U.S.C. §§ 841(a) and 846. Eugene Mona, who was a lieutenant, received a life sentence for violating 18 U.S.C. § 1962(d). Said Francisco Herrera, who was a sergeant, received multiple life sentences for violating 18 U.S.C. §§ 1951, 1962(c), and 1962(d), and 21 U.S.C. §§ 841(a) and 846. Arturo Enriquez, who was either a soldado or an esquina, received 180 months' imprisonment for violating 18 U.S.C. § 1951.
Collectively, the appellants raise fifteen issues on appeal. Cardoza, Alvarez, Mona, Herrera, and Enriquez challenge the sufficiency of the evidence underlying their respective convictions. Cardoza, Mona, and Herrera contend that the district court sentenced them to life imprisonment in violation of the Supreme Court's decision in Apprendi v. New Jersey.2 Cardoza and Alvarez argue that the district court's sentencing procedures ran afoul of the Supreme
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Court's decision in United States v. Booker.3 Cardoza, Alvarez, and Perea challenge the district court's denial of their motion for a new trial based on the allegedly extreme jury protection measures imposed by the district court. Cardoza and Perea maintain that the district court erred in denying their motion for a new trial based on the government's alleged suppression of evidence in contravention of Brady v. Maryland.4 Alvarez argues that the district court's admission of Government's Exhibits 353 and 354 violated the Sixth Amendment's Confrontation Clause. Perea contends that the district court erred in denying his motion for an evidentiary sentencing hearing. Herrera and Enriquez appeal the district court's alleged reliance on improper information contained in the pre-sentence report. Enriquez maintains that the district court erred in denying Enriquez's motion to suppress and motion for severance. Finally, Herrera claims that the district court erred in admitting various unspecified exhibits into evidence because such exhibits lacked the proper foundation.
Cardoza, Alvarez, Mona, Herrera, and Enriquez appeal the sufficiency of the evidence underlying their respective convictions. Where, as in this case, the appellant moved for judgment of acquittal before the district court, we review the sufficiency of the evidence to support a conviction by considering whether any "rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006). This review is "highly deferential to the verdict." United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (quoting United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002)). "It is not necessary that the evidence
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exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt." Valdez, 453 F.3d at 256 (quoting United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992)). We, therefore, do not consider whether the jury's verdict was correct, but instead focus upon the verdict's reasonableness. Moreno-Gonzalez, 662 F.3d at 372 (citing United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)). Finally, in conducting this inquiry, we view the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, and resolve all conflicts in the evidence in favor of the verdict. Id.
Cardoza and Alvarez challenge the sufficiency of the evidence underlying their convictions for violating 18 U.S.C. § 1956(h), which prohibits, among other things, participation in a conspiracy to engage in money laundering in violation of 18 U.S.C. § 1956(a). In order to prove a conspiracy under § 1956(a), the government must show that the defendant knew of the money laundering scheme, voluntarily joined it, and possessed the requisite intent to commit the underlying § 1956(a) offense. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996). Cardoza and Alvarez argue that the evidence was insufficient to show that they knew the money they admittedly received into their prison commissary accounts constituted the proceeds of unlawful activity. We disagree.
Through the testimony of multiple law enforcement and BA witnesses, the government established Cardoza's and Alvarez's positions as two of the leaders of a criminal enterprise designed to funnel extorted cuotas into the prison commissary accounts of high ranking BA members. This system involved two basic stages. First, the non-incarcerated BA members would extort weekly cuotas from narcotics traffickers operating in the BA's territory. Once collected, they would then transfer the cuota funds to the prison commissary accounts of
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senior BA members, generally in the form of money orders. These money orders would typically be sent under fictitious names and addresses in order to conceal the senders' identities and the illicit source of the funds. The evidence sufficiently demonstrated that Cardoza and Alvarez knowingly and voluntarily participated in this cuota-funneling enterprise.
In Cardoza's case, the evidence showed that he directed the distribution of cuota funds into the commissary accounts of other BA members and also personally received cuota money into his own commissary account. Cardoza transmitted directions regarding cuota deposits through heavily-coded messages, which were introduced by the government at trial. The government also introduced conversations between Cardoza and Mona, who served as Cardoza's "bridge" to the outside world, wherein Cardoza ordered that a certain BA member should no longer receive a share of the cuota collections due to the member's upcoming release from prison. Furthermore, a former BA member, Gerardo Hernandez, testified that Cardoza ordered him, upon...
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