United States v. Mario Oliva

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 16-4232, 16-4237, 16-4239, 16-4252,
16-4267, 16-4302, 16-4321 & 16-4381
_______

UNITED STATES OF AMERICA

v.

MARIO OLIVA,
also known as Zorro,

Appellant in No. 16-4232

SANTOS REYES-VILLATORO,
also known as Mousey,

Appellant in No. 16-4237

ESAU RAMIREZ,
also known as Panda

Appellant in No. 16-4239

ROBERTO CONTRERAS,
also known as Demonio,

Appellant in No. 16-4252

JULIAN MOZ-AGUILAR,
also known as Humilde,
also known as Demente,
also known as Tio Felito,

Appellant in No. 16-4267
 HUGO PALENCIA,
a/k/a Taliban,

Appellant in No. 16-4302

JOSE GARCIA,
a/k/a Chucky
a/k/a Diabolico,

Appellant in No. 16-4321

CRUZ FLORES,
a/k/a Bruja,

Appellant in No. 16-4381

______________

On Appeal from the United States District Court
for the District of New Jersey
(D. C. Criminal Nos. 2-13-cr-00615-002/001/008/003/004/005/006/012)
District Court Judge: Honorable Stanley R. Chesler
______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
September 27, 2018
______________

Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges

(Opinion filed: October 16, 2019)

_______________________

OPINION*
_______________________

*
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.

2
McKEE, Circuit Judge.

In this consolidated appeal, Mario Oliva and seven other defendants appeal

various aspects of their convictions and sentences for criminal activity arising from their

participation in a faction of La Mara Salvatrucha (“MS-13”) gang in Plainfield, New

Jersey.1 For the reasons set for the below, we will affirm the convictions and sentences of

all defendants.

We will review each claim of error in turn, combining claims where appropriate.2

I.

A. Sufficiency of the Evidence for the Racketeering Conspiracy Convictions of
Oliva, Palencia, and Ramirez.3

“In order to be guilty of a RICO conspiracy, a defendant must either agree to

commit two [statutorily defined] predicate acts or agree to participate in the conduct of

1
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
2
Five of the Appellants included a blanket adoption of all of their co-appellants’
arguments to the extent applicable to them. See Oliva Br. at 20; Ramirez Br. at 16; Garcia
Br. at 16; Palencia Br. at 2; Reyes-Villatoro Br. at 2. Because a blanket adoption of all
issues raised by all of one’s co-appellants, without any specification of the discrete issues
to be adopted, fails to satisfy Fed. R. App. P. 28(a)(5)’s directive to identify the specific
issues for review, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), the
“referenced” arguments are waived to the extent an Appellant did not identify the specific
argument that he was adopting.
3
We review challenges to the sufficiency of the evidence de novo and “ask specifically
whether there is substantial evidence that, when viewed in the light most favorable to the
government, would allow a rational trier of fact to convict.” United States v. Lee, 612
F.3d 170, 178 (3d Cir. 2010) (internal citations omitted). We review unpreserved
sufficiency claims for plain error. Id.

3
the enterprise with the knowledge and intent that other members of the conspiracy would

commit at least two such predicate acts in furtherance of the enterprise.”4

1. Oliva

Oliva claims that there was insufficient evidence to convict him of the RICO

conspiracy charge because the government only proved his involvement with the murder

of Jessica Montoya. Oliva Br. at 18. He thus concedes his participation in one predicate

act but argues that no other predicate acts were proven. Id. at 18-20. The record

demonstrates otherwise. Witnesses testified that: (1) Oliva was one of three people with

authority to hand out “missions” to kill for the gang;5 (2) Oliva ordered Chicas-Ortiz and

Contreras to kill a member of the Blood gang;6 (3) Oliva relayed Reyes-Villatoro’s plan

to kill Latin Kings to other MS-13 members;7 and (4) Oliva was present and armed

during the hunt for Chavalas that led to the murder of Christian Tigsi.8 This evidence was

sufficient to allow the jury to conclude that Olivia participated in a statutorily defined

predicate act in addition to the murder of Jessica Montoya.

2. Palencia

In raising his unpreserved sufficiency claim, Palencia argues that of the five

predicate acts charged against him, the record evidence only arguably supports his

personal involvement or endorsement of one predicate act – the murder of Spencer

4
United States v. Nguyen, 255 F.3d 1335, 1341 (11th Cir. 2001).
5
A1362.
6
A1365-66.
7
A1400-03.
8
A1441-45.

4
Cadogan.9 According to Palencia, the only other incident the government could have

feasibly relied upon as the second predicate act was the attempted murder of Christian

Garcia, which the government never actually argued constituted a predicate act.10

However, there were at least three other acts that the jury could properly have found

constituted additional predicate acts. There was testimony that Palencia pulled out a gun,

aimed it at two MS-13 gang targets, Carmelo Soto and Kevin Veliz, and fired multiple

times.11 There was also testimony that Palencia plotted the murder of detective Edwin

Maldonado.12 Finally, the record demonstrates that Palencia had a gun and was present

during the attempted attack on Mario and Jose Abarca.13

3. Ramirez

Ramirez claims that the record does not demonstrate that he was anything more

than “merely present” for numerous gang-related acts. However, there was evidence that

Ramirez and Franklin Mejia actively discussed the details of their plot to murder

Detective Maldonado and burn down his mother’s house, as well as murder witnesses.14

Ramirez was also an active participant in the extortion of “retired” MS-13 gang member

Leo Martinez. Ramirez went to collect the payment and threatened to kill Martinez’s

siblings if he did not pay.15

9
Palencia Br. at 52-53.
10
Id. at 53-55.
11
A3178, 3728, 3585, 3589.
12
A5656-60.
13
A7750-53.
14
A8511–16; A9549–52, A9581–82, 9592.
15
A8126–28, 8131–32.

5
 Ramirez also challenges the sufficiency of the evidence for his murder-in-aid-of

racketeering charge. But there is testimony that Ramirez was one of two people who

identified the witnesses to be killed.16

B. Contreras’ Challenge to the Sufficiency of the Evidence for Being an
Accessory After the Fact.

There was ample circumstantial evidence that Contreras knew Montoya was killed

in aid of racketeering. “[A]ll the elements of a conspiracy charge, including intent and

knowledge of illicit purpose, ‘may be proven entirely by circumstantial evidence.’”17 At

least three different chains of evidence could have been credited by the jury to show

Contreras’ knowledge. For example, Contreras took over as the leader of the MS-13 gang

after Oliva fled to Maryland. In that leadership role, he informed others in the gang that

Montoya was killed because of orders from higher-ups in the gang.18 Chicas-Ortiz also

testified that Contreras discussed Montoya’s murder while helping him flee to

Maryland,19 and Contreras and Oliva made several calls to one another just before Oliva

drove Montoya to be killed.20

16
A8867–76, A9581–82, 9592.
17
United States v. Lore, 430 F.3d 190, 204 (3d. Cir 2005) (quoting United States v.
Schramm, 75 F.3d 156, 159 (3d Cir. 1996)).
18
A5049-50.
19
A1496-97.
20
A2379-80.

6
 C. The District Court did not Abuse its Discretion in Declining to Sever the Trial
of Cruz Flores.21

To prevail on this claim, Cruz Flores must show that there was “a serious risk that

a joint trial would compromise a specific trial right” of his “or prevent the jury from

making a reliable judgment about guilt or innocence.”22 He also must show that the

denial resulted in “clear and substantial prejudice resulting in a manifestly unfair trial.”23

Flores has not done so. He does not claim there was insufficient evidence to convict him

of murdering Julio Matute.24 He does not identify any other evidence that would not have

been admitted had his trial been severed. Moreover, as a member of a RICO enterprise,

evidence of the enterprise’s actions was directly relevant to the charges against him. The

district court issued appropriate limiting instructions each time he requested them.25

21
We review the denial of a motion to sever to prevent prejudice pursuant to Fed. R.
Crim. P. 14 for an abuse of discretion. United States v. Walker, 657 F.3d 160, 170 (3d
Cir. 2011). Even if the district court abused its discretion, “reversal is not required absent
a demonstration of clear and substantial prejudice resulting in a manifestly unfair trial.”
United States v. Reyeros, 537 F.3d 270, 286 (3d Cir. 2008) (internal citations omitted).
22
Zafiro v. United States, 506 U.S. 534, 539 (1993).
23
United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005) (internal citations omitted).
“[A] defendant is not entitled to a severance merely because evidence against a co-
defendant is more damaging than the evidence against the moving party.” Lore, 430 F.3d
at 205.
24
See Flores Br. at 8-21; A7315-27.
25
A2802, 3786, 5324, 5557, 10112.

7
 D. Moz-Aguilar’s Challenge to the District Court’s Finding that Murder in Aid
of Racketeering is a Crime of Violence Under § 924(c).26

Moz-Aguilar argues that the district court erred in concluding that murder in the

aid of racketeering qualified as a crime of violence under 18 U.S.C. § 924(c)(1)(A). The

claim is frivolous. The statute makes it illegal for a “person who, during and in relation to

any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm[.]” Section 924(c)(3), in turn, defines a crime of violence as “a

felony” that “has as an element the use, attempted use, or threatened use of physical force

against the person or property of another” (the elements clause); or, “that by its nature,

involves a substantial risk that physical force against the person or property of another

may be used in the course of committing the offense,” (the residual clause).27

Moz-Aguilar was convicted under 18 U.S.C. § 924(c) of discharging a firearm

during a “crime of violence,” and under § 924(j) for causing death in the course of doing

so. Those charges arose from the murder of Christian Tigsi. “[T]he determination of

whether a particular crime qualifies as a ‘crime of violence’ under § 924(c) depends upon

both the predicate offense . . . and the contemporaneous conviction under § 924(c).”28

Therefore, we have to “look at all the offenses before the jury to the extent that these

offenses shed light on whether physical force was used, attempted, or threatened in

26
“We exercise plenary review over questions of law, such as whether a crime is a crime
of violence.” United States v. Stinson, 592 F.3d 460, 462 n.1 (3d Cir. 2010).
27
18 U.S.C. § 924(c)(3).
28
United States v. Robinson, 844 F.3d 137, 143 (3d Cir. 2016).

8
committing the predicate offense.”29 “The discharge of a firearm, coupled with resulting

personal injury, qualifies as a use of physical force.”30 Christian Tigsi was shot and

killed. Accordingly, the element of physical force was present.

E. Moz-Aguilar’s Challenge to the District Court’s Failure to Dismiss his
Charge Pursuant to 18 U.S.C. § 924(j).31

Moz-Aguilar also argues that the district court erred in declining to dismiss his

charge pursuant to 18 U.S.C. § 924(j) pretrial. Aguilar Br. at 34. Because he cannot show

prejudice, his claim fails. As we have just explained, he was convicted under 18 U.S.C. §

924(c) and (j) for causing the death of a person with a firearm in the course of a violation

of § 924(c).32 He received a 120-month sentence for his § 924(c) conviction and a life

sentence for his conviction under § 924(j).33

The government concedes that although Moz-Aguilar did not raise this concern

before the district court, the sentence imposed violated the Double Jeopardy Clause

because the court should have merged the §§ 924(c) and (j) counts for purposes of Moz-

Aguilar’s judgment of conviction and sentencing.34 To be entitled to relief he must satisfy

all four prongs of the plain error standard of review. He must show: “(1) there is an

29
United States v. Galati, 844 F.3d 152, 155 (3d Cir. 2016).
30
Id.
31
We review issues of statutory interpretation de novo, United States v. Ferriero, 866
F.3d 107, 113 n.4 (3d Cir. 2017), and review unpreserved double jeopardy claims for
plain error. United States v. Miller, 527 F.3d 54, 60 (3d Cir. 2008).
32
A29-31, 11750.
33
Id.
34
Gov. Br. at 64–65.

9
‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the

error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it

‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’”35 The

government concedes that the first three prongs are satisfied here. However, as Moz-

Aguilar actually benefitted from his failure to raise the double jeopardy challenge at

sentencing, his claim fails.

Moz-Aguilar received a mandatory life sentence on the Violent Crime in Aid of

Racketeering murder count and a concurrent life sentence for the RICO conspiracy

conviction.36 Both sentences were appropriate, proper, and unchallenged. The conviction

he challenges – life under § 924(j) – was imposed concurrently with his two other

(concurrent) life sentences. Moz-Aguilar therefore received a total sentence of life plus

120 months’ imprisonment. If Moz-Aguilar had raised a double jeopardy issue, the

district court would have merged the § 924(c) count with the § 924(j) count. The merged

counts would have resulted in a mandatory consecutive life sentence pursuant to

§ 924(c)(1)(D)(ii). Stated differently, Moz-Aguilar should have received two consecutive

life sentences, not three concurrent life sentences and a consecutive 120-month sentence.

Accordingly, this claim fails.

35
United States v. Marcus, 560 U.S. 258, 262 (2010) (quoting Puckett v. United States,
556 U.S. 129, 135 (2009)).
36
A29-31; A11750.

10
 F. Ramirez’ Challenge to the District Court’s Admission of Evidence of His
Prior Weapon Possession.37

Ramirez argues that the district court abused its discretion under Fed. R. Evid. 403

and 404(b) when it admitted evidence of his prior arrest for possession of a shotgun.38

Courts have consistently declined to apply Rule 404(b) in the context of a RICO

enterprise.39 Moreover, even assuming that the rule did require the exclusion of this

evidence, it did not require exclusion of evidence that proves the charged offense.40 A

witness testified that the arrest for shotgun possession occurred during the commission of

a “mission” for the gang.41

G. The District Court Reasonably Limited Garcia’s Cross-Examination of
Detective Tippett.42

Garcia claims that the district court’s limitation of his cross-examination of

detective Troy Tippett violated the Sixth Amendment Confrontation Clause. We disagree.

37
We review a district court’s decision on the admissibility of evidence for an abuse of
discretion. United States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).
38
Ramirez Br. at 8–12.
39
See, e.g., United States v. Henley, 766 F.3d 893, 914–15 (8th Cir. 2014) (“[E]vidence
of uncharged crimes was admissible in a RICO prosecution as proof of an enterprise, of
the continuity of racketeering activity, and of the defendant’s knowledge of, agreement
to, and participation in the conspiracy.”) (internal quotations omitted).
40
United States v. Gibbs, 190 F.3d 188, 217–18 (3d Cir. 1999) (“In cases where the
incident offered is a part of the conspiracy alleged in the indictment, the evidence is
admissible under Rule 404(b) because it is not an ‘other’ crime. The evidence is offered
as direct evidence of the fact in issue, not as circumstantial evidence requiring an
inference as to the character of the accused.”).
41
A8508–09.
42
“We review the court’s decision to limit cross-examination for abuse of discretion[.]”
United States v. Ellis, 156 F.3d 493, 498 (3d Cir. 1998).

11
“While the Confrontation Clause guarantees a criminal defendant the right to confront

witnesses on cross-examination, a district court retains wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross-

examination[.]”43 Moreover, “a restriction will not constitute reversible error unless it is

so severe as to constitute a denial of the defendant’s right to confront witnesses against

him and it is prejudicial to [his/her] substantial rights.”44 The line of questioning that

Garcia was prevented from pursuing was irrelevant to any material issue. Garcia was

attempting to establish that, although he initially waived his Miranda rights and spoke

with officers at length, he was questioned again after he asked for the interview to

cease.45 This was not relevant, however, because each of his incriminating statements

occurred during the initial interview to which he voluntarily consented.46

H. Due Process Challenges to the Jury Charge and Verdict Sheet.47

Oliva contends that (1) the district court abused its discretion by denying his

requests for special interrogatories, and Moz-Aguilar (joined by Contreras) argues (2) the

43
United States v. Jimenez, 513 F.3d 62, 76 (3d Cir. 2008) (internal citations omitted).
44
United States v. Casoni, 950 F.2d 893, 918–19 (3d Cir. 1991).
45
Garcia Br. at 12–16.
46
See A6302 (District Court: “what you’re doing here doesn’t purport to indicate in any
way, shape, or form that the prior statements were in any way involuntary. All they end
up showing is that this man asked some additional questions.”).
47
We review a district court’s denial of a request for special interrogatories for an abuse
of discretion, see United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993), and
“exercise plenary review in determining whether the jury instructions stated the proper
legal standard.” United States v. Berrios, 676 F.3d 118, 136 (3d Cir. 2012) (internal
citations omitted).

12
court erred in instructing the jury on Pinkerton liability. We again disagree.

Appellate courts “commit the decision of whether and how to utilize special

interrogatories in [complex] cases to the broad discretion of the district court.”48 Here the

district court evaluated whether using such interrogatories would aid the jury, but

concluded that in an already complex multi-defendant case, special interrogatories would

only serve to confuse the jury.49

Similarly, the district court did not err in instructing the jury on Pinkerton liability.

To the extent that Moz-Aguilar contends Pinkerton liability instructions are generally

inappropriate in RICO conspiracy cases, this claim fails because the district court only

instructed the jury on Pinkerton liability insofar as that doctrine pertained to the VICAR

murder counts. The instruction was not given for the RICO conspiracy counts.50

Moreover, the government had no duty to provide notice of its intention to pursue the

Pinkerton liability theory.51 Finally, the argument that the Pinkerton charge resulted in

undue confusion and complexity that substantially influenced the verdict is without any

support in the record.

48
United States v. Ogando, 968 F.2d 146, 149 (2d Cir. 1992).
49
A11114–15 (noting jury already “ha[d] an extraordinarily difficult and complex task”
that the court was not going to “complicate[] and compound[]” by including “special
interrogatories that are not absolutely necessary”).
50
See A10515, 11378-85.
51
Id.

13
 I. Appellants’ Prosecutorial Misconduct Claims Fail.52

1. Challenge to the Scope and Duration of Rebuttal Summation

Flores claims that the government’s rebuttal summation “exceeded the proper

scope of such argument” because it was too long and repetitive.53 He does not, however,

cite to any persuasive authority to sustain this claim. Moreover, Flores does not allege

that the government developed any new arguments during rebuttal summation. In fact, his

primary claim is that rebuttal was too long because “[t]here was nothing in the

government’s rebuttal summation not already delivered once to the jury in the

government’s initial opening argument.”54 Indeed, even if this rebuttal (not unlike most

summations) was too long, the evidence against Flores was overwhelming, and Flores

does not claim that the prosecutor’s summation relied on facts not in evidence or misled

the jurors.

2. The District Court Did Not Clearly Err When, During Rebuttal
Summation, It Struck the Government’s Suggestion that Palencia Could
Have Called a Handwriting Expert and Issued a Curative Instruction to
the Jury.55

52
We review preserved claims of prosecutorial misconduct for an abuse of discretion and
unpreserved claims for plain error. United States v. Lee, 612 F.3d 170, 193 (3d Cir.
2010). For unpreserved claims, “[t]here must be an ‘error’ that is ‘plain’ and that
‘affect[s] substantial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993).
“‘Affecting substantial rights’ means that the error must have been prejudicial to the
defendant and have affected the outcome of the district court proceeding.” United States
v. Brennan, 326 F.3d 176, 182 n.2 (3d Cir. 2003) (quoting Olano, 507 U.S. at 734).
53
Flores Br. at 16–20.
54
Id. at 19.
55
Palencia concedes that he did not raise this issue before the district court, see Palencia
Br. at 34, so our review is for plain error. United States v. Thame, 846 F.2d 200, 204 (3d
Cir. 1988). We grant relief where the error is clear, prejudicial, and seriously affects the
fairness, integrity, or public reputation of the proceedings. See Olano, 507 U.S. at 732.

14
 A witness, Sean Williams, testified that Palencia gave him a handwritten note with

instructions to lie to law enforcement.56 In summation, Palencia’s counsel attacked

Williams’ credibility, suggesting that Williams himself wrote the note instead of

Palencia. Palencia’s counsel also attacked the government’s failure to hire a handwriting

expert to demonstrate that the letter was not, in fact, written by Williams.

The government, in rebuttal summation, reiterated that the burden of proof was

“completely on the government, always,” but noted that Palencia had called his own

expert witness, a former DEA special agent, but never brought up the note in question.

The prosecutor stated: “I would point out to you that they put on a case that consisted of .

. . a federal agent with 30 years of experience in law enforcement . . . . [And] [t]hey had

letters. Not one word from them, from their witness, about those letters.” The district

court quite correctly observed that this statement was “close to burden shifting” and so

struck the statement and issued an effective and appropriate curative instruction.57

Nevertheless, Palencia claims that the government’s statement improperly shifted

the burden and thereby “attack[ed] the integrity of defense counsel.”58 Citing our analysis

in United States v. Keller,59 the government argues that the statement was appropriate

because “[i]t is perfectly proper to comment on the failure of the defense to call a

potentially helpful witness, at least where, as here, the comment could not be construed

56
A5639-41.
57
A11200.
58
Palencia Br. at 39–41.
59
512 F.2d 182 (3d Cir. 1975).

15
as a comment on the failure of the defendant to testify.”60 We agree. Moreover, Palencia

has not cleared the high standard we utilize for plain error review. He has not shown that

the district court’s treatment of the government’s statement affected his substantial rights

or “seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.”61

3. The Government Appropriately Used Circumstantial Evidence to
Demonstrate Palencia’s Intent and Knowledge

Palencia argues that in summation and rebuttal summation, the government “used

acts of past misconduct as evidence that he had a propensity to commit murder.”62 He

cannot establish the requisite plain error.63 Propensity evidence is unquestionably

improper.64 However, “[k]nowledge, intent, and lack of mistake or accident are well-

established non-propensity purposes.”65 Palencia’s conclusory allegation that the

government used this evidence in summation, not for intent and knowledge, but for

60
Id. at 186. See also United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996) (The
government may “comment[] on the failure of [the defendant] to point to any evidence in
the record supporting his theory of what occurred. Such a comment does not implicate
any of the burden-shifting concerns that are raised when a prosecutor points to a
defendant’s failure to testify or improperly suggests that the defendant has the [] burden
of producing evidence.”).
61
Brennan, 326 F.3d at 182 n.2.
62
Palencia Br. at 41–43.
63
See id. at 34 (acknowledging plain error review applies to these unpreserved claims).
64
United States v. Caldwell, 760 F.3d 267, 275 (3d Cir. 2014) (discussing “the
longstanding concern that evidence of prior bad acts, when offered only to show the
defendant’s propensity to commit the charged crime, is said to weigh too much with the
jury and to so overpersuade them as to prejudice one with a bad general record and deny
him a fair opportunity to defend against a particular charge.”) (internal citations omitted).
65
United States v. Givan, 320 F.3d 452, 461 (3d Cir. 2003).

16
propensity is not enough to show that the court erred in declining to sua sponte raise and

sustain an objection.

4. Contreras’ Claim that the Government Constructively Amended the
Indictment in Summation Fails.

Contreras argues that a reference made by the government in summation

improperly suggested to jurors that they could also convict him of accessory after the fact

for the murder of Spencer Cadogan.66 The government stated that Contreras offered “the

same services”67 as those he offered after the murder of Jessica Montoya to other MS-13

members following the murder of Spencer Cadogan.

We “examine the prosecutor’s [alleged] offensive actions in context and in light of

the entire trial, assessing the severity of the conduct[] [and] the effect of [any] curative

instructions.”68 Here, aside from a single statement, the remainder of the government’s

summation properly referred only to Contreras’ actions following the Montoya murder as

evidence of his accessory after the fact charge. As the jury instructions did so as well, we

find no error.69

5. The Government Did Not Commit Prosecutorial Misconduct by Arguing
that Reyes-Villatoro Gave Away His Car for Free.

Reyes-Villatoro argues that the government relied on evidence which it “knew or

had good reason to know was” false, when it argued that Reyes-Villatoro gave away his

66
Contreras Br. at 15–16.
67
A10573.
68
United States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010) (quoting Moore v. Morton, 255
F.3d 95, 107 (3d Cir. 2001)).
69
A11404-05.

17
car for free.70 The government based this claim on the New Jersey Motor Vehicle

certificate of title for Reyes-Villatoro’s car that was admitted at trial by stipulation71 and

included: Reyes-Villatoro as the seller; “gift” as the “sale price”; and “3/24/09” as the

date of sale.72 This reliance on the title was proper. “[O]nce a piece of evidence has been

properly admitted the prosecution may ‘ask the jury to draw permissible inferences from

anything that appears in the record.’”73

Even if the government’s reliance on the title was improper, Reyes-Villatoro

cannot show prejudice. The government points out that it does not matter whether he

gave his car away for free or sold it after he learned that law enforcement suspected his

involvement in the murder. The jury could conclude that the fact that Reyes-Villatoro

found a way to get rid of the car demonstrated consciousness of guilt. The district court’s

consciousness of guilt instructions made that same point.74

II. CONCLUSION

For the reasons set forth above, we will affirm the judgment of the district court

for all claims by all defendants.

70
Reyes-Villatoro Br. at 30.
71
A2283-84.
72
A2291.
73
United States v. Sullivan, 803 F.2d 87, 91 (3d Cir. 1986) (quoting Oliver v.
Zimmerman, 720 F.2d 766, 770 (3d Cir. 1983) (per curiam)).
74
See A11316 (stating that “the disposal of property . . . may indicate that a specific
defendant thought he was guilty of the crime charged and was trying to avoid
punishment.”).
18