United States v. Portillo
| Citation | 969 F.3d 144 |
| Decision Date | 05 August 2020 |
| Docket Number | No. 18-50793,18-50793 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. John Xavier PORTILLO, also known as John Portillo; Jeffrey Fay Pike, also known as Jeffrey Pike, also known as Jeffrey F. Pike, Defendants - Appellants |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Joseph H. Gay, Jr., Elizabeth Berenguer, Richard Louis Durbin, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
John F. Carroll, Attorney, San Antonio, TX, for Defendant-Appellant John Xavier Portillo.
Philip J. Lynch, San Antonio, TX, for Defendant-Appellant Jeffrey Fay Pike.
Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
In 2018, following a three-month-long jury trial, defendants-appellants Jeffrey Pike and John Portillo were convicted of multiple counts related to a RICO conspiracy. Their convictions arise out of their positions as high-ranking officials with the Bandidos Outlaws Motorcycle Club, a "one-percent" motorcycle club with deep roots in Texas. In this direct appeal, they urge a variety of errors related to the district court's pretrial procedures, the admissibility of certain evidence, and the sufficiency of the evidence. For the following reasons, we AFFIRM.
We begin with an overview of the evidence presented at trial, recounting the facts in the light most favorable to the jury's verdict. See United States v. Mahmood , 820 F.3d 177, 181–82 (5th Cir. 2016).
The Bandidos Outlaws Motorcycle Club ("Bandidos") is an international motorcycle club with approximately 1100 members worldwide. Members of the club describe it as a "one percent" motorcycle club—a designation that signifies loyalty, brotherhood, and commitment. According to Special Agent Scott Schuster, the government's expert witness, the "one percent" classification is a way for the Bandidos to "brand[ ] themselves as ... outlaw[s]." Johnny Romo, a member of the Bandidos, explained at trial that the "one percent" term means that "we're above all the other clubs." Though there are other one-percent motorcycle clubs in the country, the Bandidos consider themselves "the most dominant."
The Bandidos use a variety of symbols to identify themselves to one another and to outsiders. Members of the club wear a three-piece patch, which includes an emblem of a cartoon character known as "the fat Mexican." In the emblem, the character is depicted holding a semi-automatic pistol and a machete. The bottom section of the patch, known as the "bottom rocker," identifies "the territory that [each] Bandido is going to claim." In Texas, for example, the bottom rocker indicates that a member belongs to a Texas-based chapter. The Bandidos closely guard the integrity of the bottom rocker, and only allow full members of the club to wear the three-piece patch. Before becoming an official member, prospects can join support clubs, which are "a stepping stone to get closer to the Bandidos." Once an individual becomes a full member, he has "patched in."
Though the Bandidos have chapters across the world, the club has a particularly strong presence in Texas. The club was founded in March 1966 in San Leon, Texas. At the time of trial, there were between 35 and 40 Bandidos chapters in Texas, with about 400 Bandidos members statewide. The Bandidos is the only major one-percent motorcycle club in Texas.
The Bandidos maintain a highly-organized management structure. Several national officers are responsible for organizing regular events, including an annual summer run and a spring birthday run. Local chapters are self-governing and largely autonomous, though they are required to pay dues to the national office to support the cost of the group's events. The national office includes a President, Vice President, Secretary, Treasurer, and several Sergeants-at-Arms. In addition to organizing events, national officers control the selection and distribution of patches.
Patches are often distributed to acknowledge a member's sacrifices on behalf of the club.
Jeffrey Pike served as national President of the Bandidos from 2005 until 2016. Pike assumed this role after the group's former President, George Wegers, pleaded guilty to a RICO conspiracy. According to Schuster, the Bandidos President, also known as El Presidente, has "full authority to make decisions on a day-to-day basis." Some members of the Bandidos refer to the President's role as a "dictatorship." Pike disputes this characterization, and testified that the "individual chapters run themselves." Pike also testified that it was his goal as President to make the group "more mainstream" and "more family oriented" than it had been under Wegers's leadership.
In 2002, John Portillo was promoted from local chapter president of the San Antonio Bandidos chapter to national Sergeant-at-Arms. In that position, Portillo was responsible for protecting the group's national officers and managing relationships between local chapters and rival clubs. Pike selected Portillo as National Vice President, or El Vice Presidente, in 2013. Schuster testified that the Vice President's "purpose" was to provide the President "with plausible deniability." In one recorded conversation introduced at trial, Portillo explained that he thought of himself as "Jeff's guy." In another wiretapped conversation, Portillo was recorded explaining that he "don't make no majors without [Pike] knowing about it."
In 2001, Jay Negrete, a member of the San Antonio Bandidos chapter, was shot and killed. At the time of Negrete's death, Portillo was president of Negrete's local chapter. Magenta Winans learned that Robert Lara was responsible for the killing, and she reported the tip to the club. Portillo instructed a group of Bandidos members, including Richard Merla, to "take care of" Lara. Merla and several other Bandidos lured Lara to a park, where they were told to wait for Portillo to give them the order to kill Lara. Once they got the order, they shot Lara at least twelve times. They did not stay on the scene to see if Lara was "moving or if he was dead or alive." They got back in their truck and drove to the home of Portillo's brother, who was a member of a Bandidos support club. Lara was later found dead by the police.
When Merla next spoke with Portillo, Portillo told him that he could never talk about Lara's murder. Merla gave Portillo the gun used to shoot Lara, and Portillo burned it with a torch. Merla and the other Bandidos were awarded "Expect No Mercy patches," which were intended to honor members who "drew blood or shed blood for the club."
In 2005, Anthony Benesh and his friend Carl Michael Burford decided that they wanted to start the first Hell's Angels chapter in Texas. Hell's Angels, another one-percent motorcycle club, had chapters across the United States, but not in Texas. Benesh got a Hell's Angels tattoo on his back, painted his motorcycle red and white, and began wearing a motorcycle vest and jacket with an emblem that matched his tattoo. The patch on his vest identified him as "Vice President" of the Hell's Angels.
Burford testified that he traveled to Arizona to meet with Sonny Barger, the national president of the Hell's Angels, to get approval to start a Texas chapter. Barger denied this account, claiming that he would not have had the authority to approve a new Hell's Angels chapter. Benesh and Burford's actions quickly provoked anger from the Bandidos. Burford tried to avoid conflict by limiting his use of the Hell's Angels vest, but Benesh regularly wore his patch around Austin. Adrianna Faircloth, Benesh's girlfriend, testified that Benesh started receiving threatening calls about his display of the Hell's Angels patch.
Johnny Romo, a Bandidos member, testified that he learned about Benesh from Portillo. Portillo told him that there were two Hell's Angels "riding their bikes" in Austin. He explained that members of the local Austin chapter had "tried everything" to fix the problem, including "threats, intimidation, [and] fear." At the time, Portillo and Johnny were both Sergeants-at-Arms for the Bandidos national office. Portillo told Johnny that Pike had personally directed them to "take ... out" Benesh and Burford. Johnny testified that Portillo told him "This came from Jeff Pike, we need to take them out." Johnny interpreted this order to mean that Portillo and Pike wanted him to "kill [Benesh], murder, to get rid of him." Johnny explained that the club wanted to stop Benesh and Burford because there "shouldn't be no other one percenters but the Bandidos in Texas."
Johnny testified that Portillo told him to assemble a group of Bandidos members and go to Austin. Johnny picked a few people he trusted to accompany him, including Robbie Romo, his brother. At the time, Robbie was a prospective member of the Bandidos who had not yet "patched in."
The day before the murder, Johnny and the other men drove from San Antonio to Austin to look for Benesh. They stayed outside Benesh's house until dusk, and then drove home to San Antonio. They returned to Austin the following day, and Robbie brought a rifle with him. They drove to Benesh's house, waited until he exited, then followed him and his family to a restaurant, where they parked outside. About an hour later, Johnny saw Benesh coming out of the restaurant and alerted Robbie. Robbie got his rifle ready by positioning it outside of the passenger's side window, aimed it at the driver's side of Benesh's truck, and shot the back of Benesh's head. Benesh was dead when the police arrived. Faircloth, Benesh's girlfriend, told the officers that she had warned Benesh "not to set up a Hell's Angel's chapter here." Johnny and the crew quickly fled the scene and immediately called Portillo...
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