United States v. Rosalez

• Decision Date: 29 March 2013
• Docket Number: Nos. 11–1408,11–1404.,11–1406,s. 11–1408
• Citation: 711 F.3d 1194
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mark ROSALEZ, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Juan Martin Ruelas, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Justin Hernandez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

711 F.3d 1194

UNITED STATES of America, Plaintiff–Appellee,

v.Mark ROSALEZ, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Juan Martin Ruelas, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Justin Hernandez, Defendant–Appellant.

Nos. 11–1408, 11–1406, 11–1404.

United States Court of Appeals,Tenth Circuit.

March 29, 2013.

Peter R. Bornstein of Peter R. Bornstein Law Office, Greenwood Village, CO, for Defendant–Appellant, Mark Rosalez.

Elizabeth L. Harris, (Sudee M. Wright, with her on the briefs), of Husch Blackwell, LLP, Denver, CO, for Defendant–Appellant, Juan Martin Ruelas.

Lisa Fine Moses of Knight & Moses, Littleton, CO (Antony M. Noble of the Noble Law Firm, LLC, Lakewood, CO, with her on the briefs), for Defendant–Appellant, Justin Hernandez.

Hayley Reynolds, Assistant United States Attorney, (John F. Walsh, United States Attorney, and Patricia Davies, Assistant United States Attorney, with her on the consolidated brief), for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, MATHESON, Circuit Judge, and JOHNSON, District Judge ^*.

BRISCOE, Chief Judge.

Defendants Mark Rosalez, Juan Ruelas, and Justin Hernandez, all of whom were federal inmates at the time of the underlying crimes, were jointly tried and convicted by a jury of conspiracy to assault anotherinmate, in violation of 18 U.S.C. § 371, and murder in the second degree, in violation of 18 U.S.C. §§ 1111(a) and 2(a). All three of the defendants were sentenced to lengthy terms of imprisonment as a result of these convictions. Each defendant now appeals his convictions. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment in each appeal.

I

Factual background

On the morning of December 29, 2008, officials at the Federal Correctional Institution in Florence, Colorado (FCI–Florence) found inmate Pablo “Canicas” Zuniga–Garcia (Zuniga) dead in his cell. Zuniga's body was lying on the cell floor, partially covered with a mattress. Blood was spattered around the cell from floor to ceiling. An autopsy of Zuniga's body established that Zuniga had sustained approximately twenty-eight lacerations to his head caused by blunt force trauma, a fractured nose, broken teeth, a fractured middle left finger, and numerous other abrasions, contusions, and bruises. Zuniga was so severely beaten that dental records were used to confirm his identity. The cause of death was determined to be an accumulation of blows to Zuniga's head. In short, Zuniga was beaten to death.

A subsequent investigation by the Federal Bureau of Investigation and Bureau of Prison officials revealed the following facts. Zuniga was a member of the Sureños, an Hispanic prison gang. The leader of that gang at FCI–Florence, otherwise referred to by gang members as the “shot-caller” or “llavero,” was an inmate named Justin “Jay” Hernandez. In the weeks and days preceding Zuniga's death, Hernandez and Zuniga had argued over an unidentified matter and Zuniga had apparently questioned Hernandez's authority. Hernandez, believing that Zuniga had disrespected him, decided that Zuniga needed to receive a “beat down” from other Sureños members. Consequently, Hernandez, with the help of defendant Mark Rosalez, who was Zuniga's cellmate and the Sureños member in charge of the Pueblo Bravo housing unit where Zuniga was housed (and was effectively Hernandez's lieutenant), recruited four Sureños gang members, Jose Pluma, Daniel Morones, Rafael Alvarado, and Francisco Vasquez–Duran, to carry out the beating and two other Sureños members, Juan Ruelas and Victor Gonzalez, to act as lookouts during the beating. According to Alvarado, Hernandez stated that he wanted Zuniga “hurt bad, bad enough that he would ... get a medical transfer” out of FCI–Florence. Trial Tr. at 1998.

Per the instructions of Hernandez and Rosalez, the beating was carried out in the following manner. On the evening of Sunday, December 28, 2008, the four inmates who were to carry out the beating (Pluma, Morones, Alvarado, and Vasquez–Duran) were provided with combination locks which were tied to fabric belts. When the individual cell doors in the Pueblo Bravo and Alpha housing units were unlocked early the following morning at approximately 6:00 a.m., Rosalez, Alvarado, and Vasquez–Duran met in the cell of Vasquez–Duran. They were subsequently joined there by Morones and Pluma, both of whom resided in the Pueblo Alpha housing unit. Pluma, Morones, Alvarado, and Vasquez–Duran then walked directly to, and entered, Zuniga's cell. Ruelas and Gonzalez, the other two Sureños members recruited to assist, waited outside of Zuniga's cell to watch for correctional officers. Ruelas positioned himself directly outside of Zuniga's cell door, while Gonzalez positioned himself on a lower floor, but within sight of Ruelas.

Immediately prior to the attack, Zuniga was alone in his cell. Morones, who enteredthe cell first, swung his padlock and hit Zuniga in the face or head. Zuniga attempted to fight back, but the four attackers all began to hit him with their padlocks. Alvarado's padlock broke after a few blows, so Alvarado proceeded to grab or “hug” Zuniga around the torso while the other three attackers (Pluma, Morones, and Vasquez–Duran) continued to strike Zuniga with their padlocks. At some point, Zuniga slid down to the floor and Alvarado and Vasquez–Duran said to Morones and Pluma, “that's it, ya estuvo, that's enough.” Id. at 2443. Zuniga also said in Spanish, “Ya estuvo,” meaning that's enough. Id. But Morones said in response, “no, that's not. He [Zuniga] hasn't had enough yet.” Id. In turn, Morones and Pluma continued to beat Zuniga, and Morones also stabbed at Zuniga with a mop handle. Zuniga did not fight back. Alvarado and Vasquez–Duran ultimately left Zuniga's cell and attempted to dispose of their bloody clothing. When they left the cell, Zuniga was still breathing and making sounds. Several minutes later, Morones and Pluma left Zuniga's cell and returned to the Pueblo Alpha housing unit.

The two inmates who served as lookouts, Gonzalez and Ruelas, left the Pueblo Bravo housing unit after the assault and went to the cafeteria. There, they sat with Rosalez, who asked them “if everything was good.” Id. at 2845. Ruelas, who had been positioned directly outside of Zuniga's cell during the attack, and who had looked into the cell twice during the attack, responded, “I think he's gone. I think he's dead.” Id. at 2848.

After Zuniga's body was discovered later that morning, the entire facility was locked down so that prison and FBI officials could investigate and search for evidence. As part of this investigation, prison officials conducted “body checks” of inmates to determine who might have been involved in the attack. Id. at 847. Vasquez–Duran had swelling from the middle to little fingers on his left hand, redness on the middle finger of his right hand and associated knuckle, bruising to the center of his right shoulder blade, and bruising to the back of both of his hips. Alvarado had a vertical laceration to the upper lip on his left side, a contusion inside his upper lip, bruising around his right eye, multiple contusions on the back of his right hand, bruising to the back of his left hand, scratches on his left forearm and the right side of his lower jaw, and an abrasion to his right knee. Pluma was found to have a round red mark on one side of his ribs. Additionally, Pluma had scratches on his right shoulder blade, some redness on his right big toe, and redness on the knuckles of his left hand. Lastly, Morones was found to have abrasions on the knuckles of his left hand and the base of his right hand on the back side, as well as a minor contusion inside of his upper lip, all of which appeared to be fresh.

Prison officials also, as part of the investigation, examined video footage from the Pueblo Bravo and Alpha housing units. The video footage did not capture the actual attack, since that occurred inside of Zuniga's cell. But the video footage did show the four attackers (Pluma, Morones, Alvarado, and Vasquez–Duran) entering and subsequently exiting Zuniga's cell, and it also showed the actions of the two lookouts (Ruelas and Gonzalez).

Numerous items of physical evidence were collected by prison officials. For example, in the cell belonging to Alvarado and Ruelas, prison officials found: a nasal spray bottle that had liquid detergent in it; a pair of boots that were damp and had a red spot on them resembling blood; a wet t-shirt; wet boxer shorts; and a foul-weather coat with wet pockets and gloves in it. Similarly, in the cell belonging to Morones, prison officials found: a pair of boots with blood on them; a pair of damp dishwashing gloves with blood on them; a damp towel with possible blood spots on it; and a shirt that had red stains on it that appeared to be blood spots. Additional items of bloody clothing were found in a trash can located between the Pueblo Alpha and Pueblo Bravo housing units.

Forensic lab testing also produced incriminating evidence. For example, a mop handle found in Zuniga's cell had fingerprints on it that matched known fingerprints from Morones. Further, DNA analysis of various items tied Alvarado to one of the jackets and one of the sets of boxer shorts found in the trash, and also tied Vasquez–Duran to another jacket found in the trash. And the boots found in Morones's cell had blood on them that matched the DNA of Zuniga.

Procedural background

On October 7, 2009, a federal grand jury returned a superseding four-count indictment against Morones, Pluma, Ruelas, Rosalez, and Hernandez. Count 1, which charged all five defendants with conspiracy, alleged that the defendants “knowingly conspired with one another and others known and unknown to the Grand Jury to commit ... the assault of ... Zuniga,” in violation of 18 U.S.C. § 371. Dist. Ct. Doc. 99, at 1 (Superseding Indictment, filed on 10/7/09). Count 2, which charged all five defendants with...