United States v. Miguel Alvarado-Linares

Case: 13-14994 Date Filed: 06/20/2017 Page: 1 of 16

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-14994
________________________

D.C. Docket No. 1:10-cr-00086-RWS-ECS-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MIGUEL ALVARADO-LINARES,
a.k.a. Joker,
DIMAS ALFARO-GRANADOS,
a.k.a. Toro,
ERNESTO ESCOBAR,
a.k.a. Pink Panther,
a.k.a. Flaco,
JAIRO REYNA OZUNA,
a.k.a. Flaco,
Defendants - Appellants.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
________________________

(June 20, 2017)
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Before TJOFLAT, JULIE CARNES and MELLOY, ∗ Circuit Judges.

PER CURIAM:

Following several murders tied to MS-13 gang activity in and around
Atlanta, a jury convicted the defendants of RICO, Violent Crime in Aid of RICO
(“VICAR”), and/or firearm offenses. Individual defendants raise several
arguments on appeal challenging the sufficiency of the indictment, alleging Speedy
Trial Act violations, attacking one verdict as internally inconsistent, and
challenging the sentences imposed. In addition, defendants allege the district court
incorrectly instructed the jury as to the meaning of “aiding and abetting” and as to
the relative roles of the jury and the court in determining punishment. We affirm
in all respects.

I. Background

The four defendants in this appeal, Miguel Alvarado-Linares, Ernesto
Escobar, Dimas Alfaro-Granados, and Jairo Reyna-Ozuna, were members of a
local subgroup of the international MS-13 gang. Alvarado-Linares was the local
leader, and the local group shared a pool of “gang guns.” The jury answered
several specific questions as to each defendant for enhancement or conviction
purposes. Also, as to firearm counts, the jury determined whether each defendant
brandished a weapon and whether a death resulted. All four defendants were
convicted of RICO conspiracy with some being found to have an enhancement for
RICO involving murder. All four defendants also were convicted of different
accompanying individual counts for related VICAR and/or firearm offenses.

∗
Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
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Evidence at trial focused upon several individual violent crimes. In one
instance, Defendant Alvarado-Linares directed and participated in the execution-
style murder of a fellow gang member, Lal Ko, who was suspected of being a
police informant. A different gang member actually committed the shooting.
Defendant Alfaro-Granados also participated in this murder.

In another instance, a different gang member wanted to “calm down” or
leave the gang. Defendant Alvarado-Linares directed this gang member to perform
a murder as the price of being allowed to leave. Alvarado-Linares and Alfaro-
Granados selected a rival gang member to be murdered. These two defendants
followed in a separate car when, on a highway, the departing member shot and
killed one of the rival gang members and non-fatally shot a second rival gang
member.

In a third instance, Defendant Escobar and another gang member fought
with rival gang members at a gas station where the rival gang members worked.
After the fight, and after leaving the gas station, Escobar called Defendant Reyna-
Ozuna and reported the fight. Reyna-Ozuna purportedly held a leadership role at
the time. Reyna-Ozuna, Escobar, and other gang members later returned to the gas
station. Reyna-Ozuna provided a .45 caliber handgun, and Escobar and another
gang member took the gun to a secluded vantage point near the gas station. From
that vantage point, Escobar or the other gang member shot and killed one of the
participants from the earlier fight, a sixteen-year-old rival gang member.

The jury found Alvarado-Linares guilty on nine Counts, including RICO
conspiracy with an enhancement for murder, in violation of 18 U.S.C. § 1962(d);
multiple VICAR murders, in violation of 18 U.S.C. §§ 2 and 1959(a)(1); and
multiple firearm offenses. Alvarado-Linares received three life sentences and six
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terms of years with several of the terms to be served consecutive to the life
sentences.1

1
The jury found Alvarado-Linares guilty as follows:

Count 1: RICO conspiracy in violation of 18 U.S.C. § 1962(d);

Count 2: VICAR, namely, aiding and abetting the murder of fellow gang
member Lal Ko in violation of 18 U.S.C. §§ 2 and 1959(a)(1);

Count 3: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence (the VICAR offense of Count 2) in violation of
18 U.S.C. §§ 2 and 924(c)(1)(A)(iii);

Count 4: VICAR, namely, aiding and abetting the murder on the highway in
violation of 18 U.S.C. §§ 2 and 1959(a)(1);

Count 5: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence (the VICAR offense of Count 4) in violation of
18 U.S.C. §§ 2 and 924(c)(1)(C)(i);

Count 8: VICAR, namely, aiding and abetting the murder at the gas station
in violation of 18 U.S.C. §§ 2 and 1959(a)(3);

Count 9: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence (the VICAR offense of Count 8) in violation of
18 U.S.C. §§ 2 and 924(c)(1)(C)(i);

Count 10: VICAR, namely, aiding and abetting the murder of another gang
member in violation of 18 U.S.C. §§ 2 and 1959(a)(3);

Count 11: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence (the VICAR offense of Count 10) in violation
of 18 U.S.C. §§ 2 and 924(c)(1)(C)(i).

Alvarado-Linares was sentenced to concurrent life sentences on Counts 1, 2, and 4;
concurrent twenty-year sentences on Counts 8 and 10; a ten-year sentence on Count 3 and
twenty-five-year sentences on Counts 5, 9, and 11, with the ten- and twenty-five-year sentences
to be served consecutive to each other and to all other sentences.

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The jury found Escobar guilty on three Counts, including RICO conspiracy
with an enhancement for murder, a VICAR murder, and a weapons charge.
Escobar received two concurrent life sentences and a consecutive term of years. 2

The jury found Alfaro-Granados guilty on five Counts, including RICO
conspiracy with an enhancement for murder, two VICAR murders, and two firearm
Counts. Alfaro-Granados received three concurrent life sentences with two
consecutive terms of years. 3

2
The jury found Escobar guilty as follows:

Count 1: RICO conspiracy in violation of 18 U.S.C. § 1962(d);

Count 18: VICAR, namely, aiding and abetting murder in violation of 18
U.S.C. §§ 2 and 1959(a);

Count 19: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence in violation of 18 U.S.C. §§ 2 and
924(c)(1)(A)(iii).

Escobar was sentenced to concurrent life sentences on Counts 1 and 18 with a
consecutive ten-year sentence on Count 19.

3
The jury found Alfaro-Granados guilty as follows:

Count 1: RICO conspiracy in violation of 18 U.S.C. § 1962(d);

Count 2: VICAR, namely, aiding and abetting the murder of fellow gang
member Lal Ko in violation of 18 U.S.C. §§ 2 and 1959(a)(1);

Count 3: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence (the VICAR offense of Count 2) in violation of
18 U.S.C. §§ 2 and 924(c)(1)(A)(iii);

Count 4: VICAR, namely, aiding and abetting the murder on the highway in
violation of 18 U.S.C. §§ 2 and 1959(a)(1);

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Reyna-Ozuna was found guilty of RICO conspiracy but without an
enhancement for RICO conspiracy involving murder. He was found not guilty of
the VICAR murder at the gas station and not guilty of a § 924(j) charge alleging
the use or carrying of a firearm in relation to a violent crime resulting in death.
But, he was found guilty of a lesser-included § 924(c) charge for using or carrying
a firearm. In addition, the jury specifically found that Reyna-Ozuna did not
actually brandish a firearm. Reyna-Ozuna received a sentence of ninety-six
months on the RICO Conspiracy Count, and a consecutive sixty months for the
§ 924(c) firearm conviction.4 We present additional facts material to individual
arguments below.

Count 5: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence (the VICAR offense of Count 4) in violation of
18 U.S.C. §§ 2 and 924(c)(1)(C)(i).

Alfaro-Granados was sentenced to concurrent life sentences on Counts 1, 2, and 4; a ten-
year sentence on Count 3; and a twenty-five-year sentence on Count 5, with the ten- and twenty-
five-year sentences to be served consecutive to each other and to all other sentences.

4
The jury found Reyna-Ozuna guilty as follows:

Count 1: RICO conspiracy in violation of 18 U.S.C. §§ 1962(d), without an
enhancement for murder;

Count 19: Aiding and abetting the use and carrying of a firearm in relation to
a crime of violence in violation of 18 U.S.C. §§ 2 and
924(c)(1)(A)(i).

Reyna-Ozuna received a ninety-six-month sentence on the RICO count and a
consecutive sixty-month sentence for the firearm count.

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II. Discussion

a. Alvarado-Linares

Alvarado-Linares argues the district court lacked subject matter jurisdiction
over his case because the indictment failed to allege facts that could support the
existence of an “association in fact” for purposes of demonstrating a RICO
enterprise. He does not challenge the sufficiency of the evidence presented at trial
to establish this same element of the RICO offense. He also argues the indictment
alleged merely a series of intrastate, state-law offenses and failed to demonstrate a
substantial effect on interstate commerce. Having reviewed the detailed and
extensive indictment, we find these arguments to be wholly without merit and
affirm the judgment in this regard without further comment. See United States v.
Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009) (per curiam) (“An indictment is
considered legally sufficient if it: ‘(1) presents the essential elements of the
charged offense, (2) notifies the accused of the charges to be defended against, and
(3) enables the accused to rely upon a judgment under the indictment as a bar
against double jeopardy for any subsequent prosecution for the same offense.’”
(quoting United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002))); United
States v. Flores, 572 F.3d 1254, 1267–68 (11th Cir. 2009) (per curiam) (holding
that a RICO conspiracy as a whole must have an effect on interstate commerce and
finding the requisite nexus based upon participation in a national-scale gang).

Alvarado-Linares also alleges a violation of the Speedy Trial Act, 18 U.S.C.
§ 3161, arguing that the calculation of the time period in which he should have
been indicted by federal authorities should have started with his arrest on state
charges. Accordingly, he argues that the district court erred in refusing to dismiss
his indictment, and also in denying his request for an evidentiary hearing to

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explore the extent of cooperation between state and federal law enforcement
officials. Additional facts are necessary for examination of these arguments.

Alvarado-Linares was arrested on state charges on January 24, 2009. While
still in state custody, he was indicted federally on October 27, 2009, for being an
illegal alien in possession of a firearm. The State then dropped its charges and, on
November 4, 2009, he was taken into custody by federal authorities on the firearm
charge. Subsequently, on February 24, 2010, while still in federal custody, he was
indicted on the present counts, and the government dropped its initial firearm
charge.

The Speedy Trial Act requires that an individual arrested on federal charges
be indicted within thirty days from the date of the arrest. See § 3161(b). Alvarado-
Linares asserts that state and federal authorities communicated extensively during
his state custody and that the state was merely holding him on its charges until
federal authorities could indict him on federal charges. Based on the alleged
collaborative conduct between state and federal officials, Alvarado-Linares argues
that the date of his state arrest should have been treated as if it were a federal arrest
and he should have therefore been indicted by federal authorities within thirty days
of that state arrest, or by February 23, 2009. Because the federal authorities missed
this deadline for indicting him on federal charges that Alvarado-Linares imputes to
them, he asks that his indictment be dismissed or, in the alternative, that a hearing
be held to explore the state and federal prosecutors’ intentions, actions, and
communications.

Alvarado-Linares raised the Speedy Trial Act issue below. A magistrate
judge issued a report and recommendation denying relief. Alvarado-Linares
objected, and the district court adopted the recommendation. We therefore review

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de novo the denial of relief on Speedy Trial Act grounds. See United States v.
Williams, 314 F.3d 552, 556 (11th Cir. 2002) (per curiam); United States v. Twitty,
107 F.3d 1482, 1488 (11th Cir. 1997). We review for abuse of discretion the
district court’s denial of an evidentiary hearing. Diveroli v. United States, 803
F.3d 1258, 1262 (11th Cir. 2015).

It is long and well-settled in this Circuit that, notwithstanding any
coordination between state and federal officials, the time within which federal
authorities must indict a defendant under the Speedy Trial Act is measured by the
date of the federal arrest, not any state arrest. See United States v. Russo, 796
F.2d 1443, 1450–51 (11th Cir. 1986); United States v. Bell, 833 F.2d 272, 277
(11th Cir. 1987). Accord United States v. Lewis, 732 F.3d 6, 12 (1st Cir. 2013);
United States v. Woolfork, 399 F.3d 590, 595-96 (4th Cir. 2005).

Alvarado-Linares nonetheless argues that, for purposes of Speedy Trial Act
calculations, we should impute the state arrest date to federal authorities when the
state has held the defendant only as a “ruse” to give federal authorities time to
charge the defendant. It is true that we have recognized the possibility of a narrow
“ruse” exception for purposes of the Speedy Trial Act when federal immigration
officials detain an immigrant, “not to effectuate deportation, but rather as a ‘mere
ruse[] to detain a defendant for later criminal prosecution.’” United States v. Noel,
231 F.3d 833, 836 (11th Cir. 2000)); accord United States v. Drummond, 240 F.3d
1333, 1336 (11th Cir. 2001).

But this potential “ruse” exception is limited to a situation in which federal
immigration officials detain an immigrant ostensibly to remove him from the
country, while in reality they actually hold him solely for the purpose of bringing
federal criminal charges. The government correctly points out that Alvarado-

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Linares identifies no Supreme Court or Eleventh Circuit authority recognizing a
ruse exception in a situation like the present case: state confinement on state
charges followed by federal arrest and indictment on federal charges. Joint state
and federal investigations are the norm, and extensive discussion back and forth
between state and federal authorities is not uncommon. Because state authorities at
all times held sovereign discretion as to how they separately might handle their
own prosecution or non-prosecution for state offenses, it was not error to deny
relief as to this issue. And, given the strength of the government’s position in this
regard and the absence of authority to support Alvarado-Linares’s theory, the
district court did not abuse its discretion in denying an evidentiary hearing. See
Diveroli, 803 F.3d at 1263–64 (no abuse of discretion in denial of a hearing where
authority would not otherwise permit relief).

b. Escobar

Like Alvarado-Linares, Escobar challenges the indictment and alleges a
Speedy Trial Act violation. Escobar, however, did not raise either of these issues
below, so our review is merely for plain error. See United States v. Rodriguez, 398
F.3d 1291, 1298 (11th Cir. 2005) (“An appellate court may not correct an error the
defendant failed to raise in the district court unless there is: (1) error, (2) that is
plain, and (3) that affects substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion . . . only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
(citations omitted)). The facts Escobar asserts to support his Speedy Trial Act
argument are substantially similar to the facts Alvarado-Linares presents, and

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Escobar asserts no independent arguments regarding the indictment.5 Because we
find no error in Alvarado-Linares’s case even under de novo review, we find no
plain error in Escobar’s case. Without error, there cannot be plain error.

Escobar also asserts an Eighth Amendment challenge to his life sentence.
He argues the evidence at trial showed only that he was involved with the shooting
at the gas station, not that he actually fired the fatal shot. In fact, the jury
convicted him of aiding and abetting the use and carrying of a firearm in relation to
a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(iii), but did not
find him guilty of the greater offense of using a firearm to cause a death, § 924(j).
According to Escobar, the jury’s finding shows he did not fire the gun, and
therefore, it amounts to cruel and unusual punishment under a proportionality
principle to impose a life sentence.

We reject this argument. Regardless of the details of the jury’s findings, the
limited proportionality principle in the Eighth Amendment does not preclude the
imposition of a statutorily authorized life sentence for a non-shooter’s involvement
in a murder. See United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000)
(per curiam) (“[I]f it is grossly disproportionate, the court must then consider the
sentences imposed on others convicted in the same jurisdiction and the sentences
imposed for commission of the same crime in other jurisdictions.”); United States
v. Brant, 62 F.3d 367, 368 (11th Cir. 1995) (per curiam) (“In non-capital cases, the
Eighth Amendment encompasses, at most, only a narrow proportionality
principle.”). Life imprisonment for active participation in a gang-related execution
simply is not grossly disproportionate to the offense, regardless of whether the jury
5
Escobar was arrested on state charges on June 9, 2008. On October 27, 2009, he was indicted
federally for possessing a stolen firearm, and, on November 3, 2009, he was arrested on that
federal charge. He was indicted on the present charges on February 24, 2010, and the initial
federal firearm charge was dropped shortly thereafter.
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found Escobar or a different gang member actually fired the fatal shot. See 18
U.S.C. § 1963(a) (life sentence for RICO involving murder); 18 U.S.C.
§ 1959(a)(1) (life sentence for VICAR murder).

Finally, Escobar argues the district court erred because it instructed the jury
that punishment was an issue reserved for the court and that the jury’s role was
cabined to determining the facts and finding defendants guilty or not guilty of the
charged offenses. Escobar argues that, because his case involved mandatory
sentences, there remained no decisions for the court regarding punishment after
determinations of guilt, thus making the court’s description of roles inaccurate as
to this case. Again, we reject Escobar’s argument. The district court properly
instructed the jury using a model instruction that accurately described the relative
roles of the court and the jury. The fact that no actual discretion remained for the
court after the finding of guilt is immaterial. It was still proper to instruct the jury
that its role was to assess the facts and find the defendants guilty or not guilty. See
United States v. Thigpen, 4 F.3d 1573, 1577–78 (11th Cir. 1993) (holding that a
departure from this general instruction is not authorized even in cases involving
possible insanity defenses and resulting commitments to mental health facilities).

c. Alfaro-Granados

Alfaro-Granados challenges his life sentence as cruel and unusual
punishment pursuant to the Eighth Amendment. He acknowledges that success of
such a challenge is “exceedingly rare” under the limited proportionality principle
applicable to non-capital cases. Flores, 572 F.3d at 1268 (quoting United States v.
Raad, 406 F.3d 1322, 1323 (11th Cir. 2005)). He presents no argument illustrating
his case to be exceedingly rare nor does he distinguish his case from that of his

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codefendant Escobar. We therefore reject his challenge for the same reasons stated
above.

d. Reyna-Ozuna6

To review, Reyna-Ozuna was found guilty of Count 1 for RICO conspiracy
but was specifically found not guilty regarding RICO conspiracy involving murder.
He was found not guilty of Count 18—the VICAR murder at the gas station. And,
he was found not guilty of the § 924(j) charge in Count 19 regarding use of a
firearm in relation to a violent crime causing the death of another. But, he was
found guilty of what was, from an elements point of view, the lesser-included
§ 924(c) charge underlying Count 19: use of a firearm in relation to a crime of
violence (without specifying that the use caused the death of another). In addition,
the jury specifically found that Reyna-Ozuna did not actually brandish the firearm
in relation to this count.

Reyna-Ozuna argues it was inconsistent to find him guilty of the § 924(c)
count for aiding or abetting the use or carrying of a firearm in relation to a crime of
violence while acquitting him as to RICO conspiracy involving murder and finding
he did not brandish the firearm or cause a death. According to Reyna-Ozuna, the
only identified predicate violent crime was the VICAR murder of which he was

6
Reyna-Ozuna challenges his 156-month sentence as cruel and unusual under the Eighth
Amendment. We reject his challenge for the reasons previously stated. Further, Reyna-Ozuna
argues for the first time on appeal that the district court erroneously instructed the jury as to the
correct elements and intent requirement for “aiding and abetting.” He cites Rosemond v. United
States, 134 S. Ct. 1240, 1251–52 (2014), a case in which the Supreme Court held aiding and
abetting the use of a firearm in a drug transaction required a showing that the party not
brandishing the firearm have advance knowledge that the codefendant would be carrying the
firearm. Rosemond is factually inapposite for several reasons, primarily because the evidence in
Reyna-Ozuna’s case showed quite clearly he provided the firearm. In any event, our review is
for plain error and he has not made the showing required for relief under this stringent level of
review.
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acquitted (Count 18). Further, the jury found him not responsible for the death
resulting from the murder of Count 18 when the jury acquitted on the § 924(j)
charge of Count 19. See 18 U.S.C. § 924(j) (providing enhanced penalties for
causing the death of another person through use of a firearm “in the course of a
violation of” § 924(c)). He argues that, in the absence of some other predicate
violent crime, his § 924(c) conviction is a logical impossibility and creates an
inconsistency internal to one count.

In general, inconsistent verdicts as between counts are not grounds for relief
because a reviewing court can never know “whose ox has been gored.” United
States v. Powell, 469 U.S. 57, 65 (1984). If a mistake has occurred and the
verdicts do not actually reflect the jury’s true opinions, it cannot be known whether
the jury erred by unintentionally convicting on one of the two counts or by failing
to convict on one of the two counts. See Dunn v. United States, 284 U.S. 390, 393
(1932) (“The most that can be said in such cases is that the verdict shows that
either in the acquittal or the conviction the jury did not speak their real
conclusions, but that does not show that they were not convinced of the
defendant’s guilt.” (citation omitted)). Further, given the shield preventing
analysis of juror deliberations, it can never be known whether the jury, in fact,
purposefully engaged in jury nullification as to the acquitted count. See Powell,
469 U.S. at 66–67. In short, where a jury’s act of lenity can explain a purported
inconsistency, no relief is available. Id.

Reyna-Ozuna’s case, however, involves a twist. It may, in fact, be a
mislabeling of this issue to discuss it in terms of an internally inconsistent verdict.
What he specifically alleges is an inconsistency between an underlying offense
serving as a contemporaneous predicate, and a compound offense that depends
upon the jury’s conclusions as to the facts of the predicate. Regardless, what
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matters is not the presence of an arguable inconsistency; what matters is the
sufficiency of the evidence to support the actual count of conviction. Here, that
evidence is sufficient.

A similar situation was present in Powell, where the Court rejected the
theory of relief for inconsistent verdicts. The Court held firmly that an acquittal on
one count could be deemed an act of lenity and stated that independent review for
sufficient evidence looking at the facts rather than the outcomes ensured adequate
protection. There, the Court stated:

[R]espondent’s argument that an acquittal on a predicate offense
necessitates a finding of insufficient evidence on a compound felony
count simply misunderstands the nature of the inconsistent verdict
problem. Whether presented as an insufficient evidence argument, or
as an argument that the acquittal on the predicate offense should
collaterally estop the Government on the compound offense, the
argument necessarily assumes that the acquittal on the predicate
offense was proper—the one the jury “really meant.” This, of course,
is not necessarily correct; all we know is that the verdicts are
inconsistent. The Government could just as easily—and
erroneously—argue that since the jury convicted on the compound
offense the evidence on the predicate offense must have been
sufficient. The problem is that the same jury reached inconsistent
results; once that is established principles of collateral estoppel—
which are predicated on the assumption that the jury acted rationally
and found certain facts in reaching its verdict—are no longer useful.

Powell, 469 U.S. at 68. 7

7
The government argues any alleged inconsistency cannot serve as a basis for relief for Reyna-
Ozuna because Reyna-Ozuna requested the § 924(c) instruction, thus inviting any error that may
have arisen due to the use of that instruction. Because the inconsistent-verdict argument fails of
its own accord, it is unnecessary to address the invited error doctrine. Even if it were necessary
to address the issue, our review of the relevant transcript pages suggests Reyna-Ozuna may not
have requested the lesser-included instruction in such a specific manner as to make the alleged
error he now complains of invited error.
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Applying this standard, we conclude there was more than sufficient
evidence to convict Reyna-Ozuna of a violation of 18 U.S.C. § 924(c). The
alleged internal inconsistency is not inherent; it may be explained as a matter
of lenity or jury nullification, and therefore, relief is unavailable.

We affirm the judgment of the district court.

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