United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT April 12, 2007
_____________________ Charles R. Fulbruge III
Clerk
No. 05-51209
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN VICTOR VALLES, also known as
Smiley; JOHNNY GARCIA-ESPARZA,
also known as Gira; SAMMY GARCIA,
also known as Spiderman; JIMMY
ZAVALA, also known as Panson,
also known as Gordo,
Defendants-Appellants
----------------------
Appeals from the
United States District Court
for the Western District of Texas
----------------------
Before KING, WIENER, and OWEN, Circuit Judges.
Per Curiam:
Defendants-Appellants Juan Victor Valles, Johnny Garcia-
Esparza, Sammy Garcia, and Jimmy Zavala were indicted for
numerous illegal acts stemming from their involvement in the
Texas Mexican Mafia (“TMM”). After a lengthy trial, a jury
returned guilty verdicts against each defendant on each count of
their respective indictments. The district court sentenced the
defendants to lengthy terms of imprisonment. The defendants now
appeal their convictions and sentences. Concluding that the
district court committed no error, we affirm the defendants’
convictions and sentences.
I. FACTS AND PROCEEDINGS
A. Origins of the TMM
The TMM —— officially named “Mexikanemi” (Spanish for “free-
Mexicans”) and often referred to as “La Eme” (a phonetic
reference to “Mexikanemi”) —— was formed in the mid-1980s by
Heriberto Huerta, while he was imprisoned in a federal
penitentiary. He did so after he obtained permission from the
Mexican Mafia of California to establish a similar organization
in Texas. According to the TMM constitution, which has remained
virtually unchanged since it was drafted in the mid-1980s, the
TMM is a criminal organization functioning in “whatever aspect or
criminal interest for the benefit of advancement of Mexikanemi”
and willing to “traffic in drugs, contract murders, prostitution,
major robberies, gambling, arms and anything else [it] can
imagine.”
The TMM originally operated exclusively inside prisons, both
federal and state. As TMM members were released or paroled from
prison, however, the TMM spread outside prison to cities within
Texas, including San Antonio, Houston, Dallas, Midland, Odessa,
and El Paso. It now has a significant presence in the federal
prison system, the Texas state prison system, and throughout the
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state of Texas.
B. Internal Structure of the TMM
The TMM is organized in a hierarchical military structure.
At the top are a president and vice president, “who are
responsible for all that occurs in the Mexikanemi.” Huerta, who
is now incarcerated in a different federal penitentiary, is still
president of the TMM. Benito Alonzo, a prisoner in a Texas state
penitentiary, is the vice president.
Serving directly under the president and vice president are
the TMM generals, who “are responsible for all that happens in
the region of which they are in charge” and for “maintaining
communication with the president and vice president so that
everything will always be organized because [the TMM is] an
organization.” Immediately under the generals are the captains
and then the lieutenants, who are responsible for the city where
they reside or the prison where they are incarcerated, as the
case may be. Under the lieutenants are the sergeants, who “are
responsible for maintaining order wherever they are.” At the
bottom of this pyramid are the rank-and-file soldiers, who have
the obligation “to attempt to do the best possible in [the TMM’s]
objective to progress and to advance everything with the
Mexikanemi.”
Despite any hierarchical differences within the TMM, its
3
constitution expressly establishes that all TMM members “have the
obligation of serving and obeying all the rules equally just like
any other soldier or brother because all [TMM members] are
soldiers and all [TMM members] are Mexican and all [TMM members]
are equal.” This notion of equality is further exemplified in
the TMM’s punitive recourse, which provides that “[a]ny member of
the Mexikanemi, and it does not matter if it is the president,
vice president, general, lieutenants or sergeants or soldiers,
that violate the rules of the Mexikanemi must suffer the
consequences.” These consequences usually constitute death and
always do so in the case of disloyalty or treason.
Even though the TMM is a single organization, its
hierarchical structure is divided into two separate and distinct
chains of command. The TMM’s ranking system is split between
those members in prison and those outside of prison or “on the
street.” Thus, there are TMM prison generals, captains,
lieutenants, sergeants, and soldiers, and there are street
generals, captains, lieutenants, sergeants, and soldiers. TMM
prison members only have authority over the TMM’s activities
within prison, and TMM street members only have authority over
activities outside of prison.
Because of this dichotomy, the TMM has developed a policy
governing TMM members who are released or paroled from prison.
4
When a TMM prison member is released, he is given a certificate
of good-standing from the ranking TMM prison official and must
then report to the city where he formerly resided. On his
return, the TMM member must present his certificate to the
sergeant in charge of the section of the city where the returning
member formerly resided. The TMM officials in that area must
then investigate the returning member to ensure that he is in
good standing. Once it has been determined that the returning
member has met the necessary requirements, he becomes a street
member of the TMM, starting at the rank of soldier, regardless of
what his rank had been in prison. Similarly, a street member who
is convicted and sent to prison surrenders his street rank and
starts anew in prison. The president and vice president,
however, retain their rank and corresponding authority whether
they are in prison or on the street.
C. Membership in the TMM
Membership in the TMM was originally limited to convicts
while they were in prison. As the organization evolved, the TMM
began to allow non-convicts to become members, but only
sparingly.
The TMM constitution designates that all TMM members “are
responsible for recruiting soldiers and each member which
recommends a soldier will be responsible for his recommendation
5
even though the recommendation results as an honorable one or one
who deceives.” Under this system, a prospective member ——
referred to as a “prospecto” —— must be recommended for
membership by a current member, who is designated as a sponsor or
“padrino” (Spanish for “godfather”). If the prospecto fouls up
after he is initiated, his sponsor is responsible for resolving
the matter, killing the prospecto if necessary. In recommending
a prospecto, the sponsor must submit the prospecto’s name to the
entire membership to acquire as much background information on
the prospecto as possible. If the prospecto is found to be
acceptable, he begins a six-month probation period, at the end of
which he will be accepted as a member, barring any setbacks.
TMM members refer to each other as “carnal” (Spanish for
“brother”) or “merecido” (Spanish slang for “a true, hard-core
Mafia guy”), and commonly use tattoos for identification. At
first, the tattoos were mandatory for TMM members, but they are
no longer required, because they hindered the TMM’s ability to
infiltrate rival gangs and made its members easy targets for law
enforcement. Nonetheless, they are still commonly displayed.
There are several tattoos that are common among TMM members.
One of these tattoos is the sequence of the arabic numerals “5,
13, 5” or the Roman numerals “V, XIII, V.” The “5” or the “V”
represent the fifth letter in the alphabet, “E.” The “13” or the
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“XIII” represent the thirteenth letter in the alphabet, “M.”
This sequence therefore spells “Eme,” the abbreviation for
Mexikanemi. Another tattoo is shaped like a spider, with two
“E”’s forming the legs of the spider and one “M” forming the
body. Other popular tattoos comprise the Aztec symbol of an
eagle clutching a snake and the word “Mexikanemi” spelled out.
D. The TMM in San Antonio
San Antonio is the capital of the TMM, with a membership of
approximately 500. It is divided into four “eschenas” (Spanish
for “corners”), North, South, East, and West. The West corner is
the strongest. A lieutenant commands each corner, with a captain
overseeing the four lieutenants and a general ultimately
responsible for the entirety of San Antonio.
In the late 1990s, the TMM in San Antonio increased its
involvement in drug trafficking by forcing non-TMM drug dealers
to share the heroin and cocaine they received from Mexico. The
higher ranking TMM officials would receive the drugs and
distribute them down the chain of command to the lieutenants, who
would then distribute to the sergeants, who would then distribute
to the soldiers. Between 1998 and 2004, as a result of the TMM’s
newly established supply source, the TMM imported and distributed
large amounts of heroin and cocaine, moving at least one kilogram
of heroine and one to two kilograms of cocaine a week.
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Not only did the TMM in San Antonio make money from directly
distributing drugs, but they controlled drug distribution by
extorting a street tax —— known as “the dime” or “el daime”
(Spanish for “the dime”) —— from rival drug dealers. When the
presence of a non-TMM drug dealer came to the attention of the
TMM, it would send a member to confront the drug dealer and
inform him that he had to pay ten percent of his drug proceeds to
the TMM. In return for the dime, the TMM allowed drug dealers
the privilege of dealing and provided protection from other
dealers. In addition to charging the dime prospectively, the TMM
would impose a retroactive tax on the amount of drugs proceeds
that had already accrued.
If a rival drug dealer refused to pay the dime, the TMM
would conduct a “home invasion,” in which a large number of armed
TMM members would break into the drug dealer’s home and take
everything of value, including automobiles. If a drug dealer
refused to pay the dime after a home invasion, the TMM would then
have the drug dealer killed.
To further their drug trafficking and extortion practices,
the TMM maintained a vast storehouse of firearms, which were kept
in a secret location, known only to high ranking TMM officials.
If a soldier was sent to collect the dime, participate in a home
invasion, or execute a “green light” (i.e., a homicide), the TMM
8
would have their firearms custodian furnish the necessary
weaponry to the soldier. After the mission had been completed,
the soldier would return the weapon to the custodian, who would
either destroy the weapon or hide it in a different location.
Between the late 1990s and 2004, the TMM in San Antonio executed
numerous home invasions and murdered several people, including a
number of its own members.
E. The Defendants
Between the late 1990s and 2004, each of the defendants
served with the TMM in San Antonio. Following his initiation
into the TMM, Zavala served as lieutenant in the North corner and
subsequently was promoted to captain and then general of San
Antonio. Garcia-Esparza served as lieutenant in the North corner
after Zavala’s promotion from that same position. Valles was
initially a sergeant, but eventually was promoted to lieutenant
in the East corner. Garcia served as the third-man for the North
corner. As third-man, Garcia was an assistant to the sergeant of
the North corner and functioned as an intermediary between the
sergeant and the soldiers.
F. The Indictment
In August 2004, a federal grand jury returned a 33-count
indictment against 28 TMM members. Count One charged all 28 TMM
members with conspiring to distribute and to possess with the
9
intent to distribute a kilogram or more of heroin and five
kilograms or more of cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846. Count One alleged that between
August 1, 1999 and August 1, 2004, the TMM, through these 28
defendants, conspired among each other and agreed to distribute
and possess with the intent to distribute heroin and cocaine,
then committed the following overt acts in furtherance of the
conspiracy: (1) obtained heroin and cocaine in large quantities
and distributed it among members of the TMM for further
distribution and sale; (2) controlled the distribution of heroin
and cocaine by restricting drug trafficking among non-members of
the TMM, exclusively to those non-members who paid the dime to
the TMM; (3) protected authorized drug distributors from robbery,
violence, and competition; and (4) used violence to enforce the
TMM’s requirement that all drug distributors pay the dime.
Count Thirteen charged Valles and two other TMM members with
distributing a mixture and substance containing a detectable
amount of heroin on January 29, 2004, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2.
Count Seventeen charged Garcia-Esparza and another TMM
member with distributing a mixture and substance containing a
detectable amount of heroin on March 17, 2004, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.
10
Count Eighteen charged Garcia-Esparza and another TMM member
with distributing a mixture and substance containing a detectable
amount of heroin on March 23, 2004, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.
Count Nineteen charged Garcia-Esparza and another TMM member
with distributing a mixture and substance containing a detectable
amount of heroin on March 30, 2004, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.
Count Twenty charged Garcia-Esparza, Garcia, and another TMM
member with distributing a mixture and substance containing a
detectable amount of heroin on April 22, 2004, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2.
Count Twenty-One charged Zavala and another TMM member with
possessing with the intent to distribute five hundred grams or
more of a mixture and substance containing a detectable amount of
cocaine on April 22, 2004, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.
Count Thirty charged Zavala, Garcia-Esparza, and four other
TMM members with conspiring to knowingly use, carry, and posses
at least one of fifty individually listed firearms in furtherance
of a drug trafficking crime (Count One of the Indictment) from
August 1, 1999 to August 1, 2004, in violation of 18 U.S.C. §§
924(c), (o).
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Count Thirty-One charged Zavala, Garcia-Esparza, and four
other TMM members with knowingly using, carrying, and possessing
at least one of fifty individually listed firearms in furtherance
of a drug trafficking crime (Count One of the Indictment) on
April 29, 2004, in violation of 18 U.S.C. §§ 924(c), (o), and 18
U.S.C. § 2.
Count Thirty-Two charged Zavala, Valles, and Garcia with
knowingly using, carrying, and possessing a Taurus .9 millimeter
handgun, bearing serial number L20209; and a Davis Industries
.380 caliber handgun, bearing serial number AP355098, in
furtherance of a drug trafficking crime (Count One of the
Indictment), in violation of 18 U.S.C. §§ 924(c) and 2.
Count Thirty-Three charged all 28 defendants with conspiring
to conduct financial transactions that involved property which
was the proceed of unlawful activity, by collecting a mandatory
tax on the proceeds of narcotic sales in exchange for granting
the drug dealer authorization to sell narcotics, in violation of
18 U.S.C. § 1956(a)(1)(A)(I).
The trial of Zavala, Garcia-Esparza, Valles, and Garcia
commenced early in April 2005. More than two weeks later, the
jury returned guilty verdicts as to each defendant on each count.
In addition to the criminal charges, the verdict form
required the jurors to determine beyond a reasonable doubt
12
whether: (1) Zavala was a leader or organizer of the conspiracy
alleged in Count One, (2) Garcia was a leader or organizer of the
conspiracy alleged in Count One, (3) Garcia-Esparza was a leader
or organizer of the conspiracy alleged in Count One, (4) Zavala
committed a home invasion on Steve Pedraza on May 14, 2003, and
(5) Zavala intentionally and knowingly killed Jose Luis Moreno.
The jury answered interrogatories 1, 3, and 4, “yes,” and numbers
2 and 5, “no.” When the verdict was returned, Valles made an
oral motion for a new trial, which was denied.
In August 2005, the district court sentenced Zavala to life
imprisonment on Count One; 480 months imprisonment on Count
Twenty-One; and 240 months on each of Counts Thirty and Thirty-
Three, each to be served concurrently. The district court
further sentenced Zavala to 60 months imprisonment on Count
Thirty-One to be served consecutively to Counts One, Twenty-One,
Thirty, and Thirty-Three. The court also sentenced Zavala to 300
months imprisonment on Count Thirty-Two to be served
consecutively to Counts One, Twenty-One, Thirty, Thirty-One, and
Thirty-Three, and imposed a five year term of supervised release
as to Counts One, Twenty-One, Thirty-One, and Thirty-Two, and a
three year term of supervised release as to Counts Thirty and
Thirty-Three, each to be served concurrently.
In the same month, the district court sentenced Valles to
13
600 months imprisonment on Count One and 240 months imprisonment
on each of Counts Thirteen and Thirty-Three, each to be served
concurrently. The court also sentenced Valles to 60 months
imprisonment as to Count Thirty-Two, to be served consecutively
to the other sentences, and imposed a five year term of
supervised release on each of Counts One and Thirty-Two, and a
three year term on Counts Thirteen and Thirty-Three, each to be
served concurrently.
Also that month, the district court sentenced Garcia to 600
months imprisonment on Count One and 240 months imprisonment on
each of Counts Twenty and Thirty-Three, each to be served
concurrently. The court also sentenced Garcia to 60 months
imprisonment on Count Thirty-Two, to be served consecutively to
the other sentences, and imposed a five year term of supervised
release on each of Counts One and Thirty-Two, and a three year
term on each of Counts Twenty and Thirty-Three, each to be served
concurrently.
The following month, the district court sentenced Garcia-
Esparza to 660 months imprisonment on Count One and 240 months on
each of Counts Seventeen, Eighteen, Nineteen, Twenty, Thirty, and
Thirty-Three, each to be served concurrently. The court also
sentenced Garcia-Esparza to 60 months imprisonment on Count
Thirty-One to be served consecutively to the other counts, and
14
imposed a five year term of supervised release on each of Counts
One and Thirty-One, and a three year term of supervised release
on Counts Seventeen, Eighteen, Nineteen, Twenty, Thirty, and
Thirty-Three, each to be served concurrently.
Each defendant timely filed a notice of appeal.
II. LAW AND ANALYSIS
A. Garcia-Esparza’s Claim of Insufficiency of the Evidence
Garcia-Esparza claims that there was insufficient evidence
to support his conviction on any of Counts One, Seventeen,
Eighteen, Nineteen, Twenty, Thirty, and Thirty-Two.
1. Standard of Review
In reviewing the sufficiency of the evidence to support a
conviction, we ordinarily review the jury’s verdict by
determining whether a rational juror could have found the
elements of the offense proved beyond a reasonable doubt.1 In so
doing, we view the evidence in the light most favorable to the
government, with all reasonable inferences and credibility
choices made in support of the jury verdict.2 When a defendant
fails to move for a judgment of acquittal and thereby fails to
preserve the issue for appeal, however, we review to determine
only whether the conviction amounts to a manifest miscarriage of
1
United States v. Yi, 460 F.3d 623, 629 (5th Cir. 2006).
2
Id.
15
justice.3 Under this standard, we will reverse a conviction only
if the record is devoid of evidence pointing to guilt.4
2. Merits
As Garcia-Esparza failed to move for a judgment of acquittal
in the district court, we review for manifest miscarriage of
justice. Even a cursory review of the record illustrates that it
is not devoid of evidence of guilt. We affirm each of Garcia-
Esparza’s convictions.
B. The Defendants’ Motion for Mistrial
All four defendants contend that the district court abused
its discretion in denying their motions for a mistrial after
government witness Luis Adame, Jr. revealed his gun-shot wound
scars to the jury during his testimony.
In its case-in-chief, the government called Adame as a fact
witness regarding the TMM’s alleged attempt to murder him.
Moments into his testimony, Adame began having trouble answering
the government’s questions. He stated that he was nervous and,
after being asked by the government if wanted to continue
testifying at that time, Adame requested to “have a minute and
step out . . . .” After two additional questions from the
government regarding Adame’s fitness to testify, the court
3
United States v. Partida, 385 F.3d 546, 561 (5th Cir. 2004).
4
Id.
16
excused Adame, giving him time to overcome his nervousness.
After examining another witness, the government re-called
Adame. As soon as he took the stand, and before any questions
were asked on direct examination, Adame stated that he was having
a panic attack and again requested that he be allowed to step out
of the courtroom for a few minutes. The district court again let
Adame leave the courtroom.
After examining still another witness, the government again
re-called Adame to the witness stand. Before any examination of
Adame occurred, a brief bench conference took place, at which
counsel for Zavala brought the following information to the
court’s attention:
Apparently this witness’s father was murdered and
there’s some indication it might have been related to
the Mexican Mafia. Now I asked [the government] if
[it] had planned to go into that and [it] said [it]
did, and I’m going to object to it unless it’s tied to
one of our clients. It’s much more prejudicial than
probative especially in light of the fact that this man
has been in and out of the courtroom four times.
In response, the government stated that the information was
relevant because it explained why Adame was so emotional.
Finding the government’s explanation inadequate, the district
court granted Zavala’s request and told the government, “Don’t go
there.”
When Adame resumed, he testified that he had been a TMM
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member under the direct authority of Zavala and that, in March
2003, Zavala, Garcia-Esparza, and Valles came to his place of
employment —— a car lot —— and asked about purchasing five
kilograms of cocaine from him. After he and Zavala agreed on the
sale of five kilograms for $55,000.00, Adame had the five
kilograms delivered to the car lot. When the cocaine arrived,
Zavala took all five kilograms, but only paid $22,000.00,
deducting $33,000.00 as “tax.” According to Adame, he objected
that Zavala was effectively taking three kilograms without
paying. After then being surrounded by Zavala, Garcia-Esparza,
Valles, and the rest of the TMM members who were escorting them,
Adame acquiesced to Zavala’s demand. When asked by the
prosecution why this happened, Adame explained that he was being
punished for refusing to collect the dime in his neighborhood.
Adame further testified that, two weeks after the initial
incident, Zavala, Garcia-Esparza, and Valles returned to the car
lot with approximately thirteen or fourteen other TMM members,
demanding $30,000.00 in back taxes from him, accusing him of
under-reporting his drug sales. As Adame did not have $30,000.00
in his possession, Zavala took Adame’s Harley Davidson motorcycle
(worth approximately $28,000.00) and pickup truck (worth
approximately $9,000.00) as collateral, telling Adame that the
vehicles would be returned when Adame paid the $30,000.00.
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Adame testified that he called Zavala two hours later and
informed him that the $30,000.00 was available and that he
(Adame) would be at the car lot in twenty minutes. Zavala,
Garcia-Esparza, Valles, and an additional crew of thirteen or
fourteen TMM members then proceeded to the car lot, where Adame
gave Zavala the $30,000.00 and requested his motorcycle and truck
back. Instead of returning the vehicles as promised, though,
Zavala kept them as additional payment for back taxes.
Four weeks after the second incident, Adame told Zavala
during a telephone conversation that he was quitting the TMM.
Approximately two or three weeks after that, Adame received a
telephone call from Jesse Hernandez, a close friend of his and a
TMM member. During this telephone conversation, Hernandez told
Adame that Zavala had given Valles a “green light” on him,
meaning that Zavala had ordered Valles to murder him. After this
conversation, Adame became very cautious, even moving to a new
home.
In early September, as Adame was approaching the door to his
home, he heard a vehicle come to an abrupt stop behind him and,
after turning around, saw Valles jump out of a van and start
shooting at him, with a gun in each hand. Adame ran and called
the police on his cellular phone, telling them that he had been
shot several times and requesting help. In fact, he had been
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shot three times.
After the police arrived, Adame lost consciousness and was
taken to the hospital, where he remained for approximately a
month and a half. Because of his wounds, Adame was relegated to
a wheelchair and had to use a colostomy bag for approximately one
year.
On cross-examination, Garcia-Esparza’s counsel questioned
Adame about his father. Adame testified that his father was
killed by the TMM. At this point, defense counsel asked Adame
why he had joined the TMM if it was responsible for his father’s
murder. Adame explained that he joined because he did not want
to be killed himself. Defense counsel then proceeded to question
Adame about why he had quit the TMM, to which Adame answered that
he did so after the TMM began taking his possessions. Defense
counsel then posed the following question: “You didn’t get fed up
when they started shooting your family, killing your father. It
wasn’t until they started taking your stuff that you decided to
quit, you were fed up with this?” Adame explained that he had
not really known his father, who had been in prison most of
Adame’s life. Defense counsel then interrupted Adame, leading to
the following dialogue:
Q: You know, it is surprising how much trouble you
had talking earlier --
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A: In June --
Q: -- this morning but you can’t shut up now. Wait
till I ask you a question. Now was that all some
big act earlier that you came out here with that
production you made that you couldn’t talk?
A: Do you want to see my wounds?
Q: Did you hear what I asked you?
A: No, it wasn’t a big act.
Q: You were not wounded in a courtroom were you?
A: No.
Q: You weren’t wounded when you were surrounded by
U.S. Marshals, were you?
A: I was scared. I started getting anxiety attacks.
Q: You weren’t wounded by people on this jury, were
you?
A: No.
Q: But yet you made that big production out here this
morning that you couldn’t talk because these
people scared you?
A: No, because [the defendants] scared me.
The government began re-direct by asking Adame: “Just to
make sure you didn’t make up this whole shooting thing, will you
stand up and show us your scars?” Defense counsel objected, and
the district court sustained the objection.
On re-cross, Valles’s counsel, who had just obtained the
police report for the September 2003 shooting incident, began the
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following exchange:
Q: Do you remember talking to an Officer P. Joke
[phonetic], Badge No. 950, about this case?
A: At the scene?
Q: Yes.
A: Yes.
Q: Do you remember telling him —— and here the
complainant is you. Do you remember telling him
that you, Luis Adame: “Said he didn’t know any of
the people that got out of that van shooting at
him”? Do you remember saying that, yes or no?
A: The reason I said that is because ——
Q: Yes or no?
A: I wanted to get them myself.
Q: Yes or no?
A: I wanted him myself.
THE COURT: Wait, wait.
A: This is what he did to me.
THE COURT: Wait. Sit down.
A: He shot me.
THE COURT: Get him out of here. Out, out, out.
MARSHALL: Step this way, please.
THE COURT: I don’t have time for nonsense. Out.
And I’m going to tell the prosecution
don’t ever bring someone who’s just
going to show a lot of nonsense. Next
witness.
22
[VALLES’ COUNSEL]: May his testimony be --
THE COURT: It’s all struck. Let’s go.
[VALLES’ COUNSEL]: Motion to disregard.
THE COURT: Motion to disregard. Just pretend the
gentleman was never there.
[THE GOVERNMENT]: Dr. Kim Molina, Your Honor.
[VALLES’ COUNSEL]: I’m sorry, Your Honor. I need to
make a motion for mistrial.
THE COURT: I understand. That’s denied. Thank
you. The motion is made as to each
defendant and it’s denied as to each
defendant.
During this exchange, Adame had stood and shown the jury the
scars from his gun-shot wounds. It was at this point that the
court told Adame to sit down, then had him removed from the
courtroom, striking the entirety of his testimony.
As part of its jury charge, the district court instructed:
During the trial I sustained objections to certain
questions. You must disregard those questions
entirely. Do not speculate as to what the witness
would have said if permitted to answer the question.
As I told you during the trial, I also struck the
entire testimony of Luis Adame, and you are instructed
to disregard his testimony in its entirety. You shall
not consider any part of his testimony for any reason
whatsoever. Your verdict must be solely based on the
legally admissible evidence and testimony.
On appeal, the defendants contend that Adame’s revealing of
his scars necessitates a mistrial, because his actions were
23
unfairly prejudicial and incurable.5
1. Standard of Review
We review the denial of a motion for mistrial for abuse of
discretion.6 A new trial is required only when, after a review
of the entire record, it appears that there is a significant
possibility that the prejudicial evidence had a substantial
impact on the jury verdict.7 We give great weight to the trial
court’s assessment of the prejudicial effect of the evidence, and
5
The defendants also assert, albeit somewhat cryptically,
that the government knowingly presented false testimony and thus a
mistrial must be granted. The defendants apparently contend that
Adame’s prior inconsistent statement to the police —— that he did
not know any of the people who shot him —— rendered his testimony
false and, more importantly, this was known by the government when
it elicited Adame’s testimony. We disagree.
There is absolutely no evidence that the government
intentionally presented testimony known to be false. The
government presented Adame’s testimony surrounding the who, how,
and why of his shooting. Defense counsel was able effectively to
cross-examine Adame on his prior inconsistent statement regarding
the identity of his shooter. Adame responded that he gave an
intentionally false statement to police and was now giving truthful
testimony. The government did not ask Adame whether he made a
statement to the police or the substance of such a statement,
thereby allowing Adame to deny the existence or substance of the
statement. Instead, the prosecution asked fact questions (e.g.,
who shot you and how did it happen?), which was subjected to cross-
examination. In fact, at the time of its direct examination of
Adame, the government did not have the police report and had never
even seen it before. Thus, it is unclear how, on this basis, the
government knowingly and intentionally elicited false testimony.
6
United States v. Dupre, 117 F.3d 810, 823 (5th Cir. 1997).
7
United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998).
24
prejudice may be rendered harmless by a curative instruction.8
We also examine the context of the challenged statement to
determine whether the prejudicial comment was elicited by the
government or was a spontaneous act by the witness.9
2. Merits
Our review of the record on appeal satisfies us that the
district court did not abuse its discretion in denying the
defendants’ motions for mistrial. Adame’s showing of his scars
was not so prejudicial that it could not be cured with
instructions to the jury. He had already testified, without
objection, that he had been shot by Valles, had been
hospitalized, and had suffered severe injuries. His shooting,
hospitalization, and injuries were not in dispute; only the
identities of the responsible parties were in dispute. Revealing
his scars may well have been unwarranted drama, but his actions
did not present new, inadmissible evidence. It only tended to
confirm what was already known —— that Adame had been shot.
In addition, his actions were not elicited by the
government. First, during cross-examination, Adame asked Garcia-
Esparza’s counsel if he wanted to see Adame’s scars. True, the
8
United States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994).
9
United States v. Moreno, 185 F.3d 465, 472-73 (5th Cir.
1999).
25
government on re-direct examination had asked Adame to show the
jury his scars, the district court quickly sustained the
defense’s objection and prevented Adame from doing so. It was
only during defense counsel’s re-cross examination that Adame
autonomously revealed his scars. He did so when defense counsel
questioned him about the shooting and suggested that he did not
know who shot him. This occurred after an intense cross-
examination, during which Adame was questioned about his father’s
murder and was made to appear that he valued his possessions more
than his family. Given the timing and context of Adame’s actions
and the fact that he was the first to bring up the possibility of
revealing his scars, we cannot conclude that the government
elicited Adame’s actions.
More importantly, after Adame revealed his scars, the
district court quickly and authoritatively took command of the
situation, expelling Adame from the courtroom, striking his
entire testimony, and admonishing the prosecution. During the
jury charge, the district court again instructed the jury that it
could not consider any of Adame’s testimony. Based on the
limited prejudice suffered by the revealing of Adame’s scars and
the strong, immediate actions of the district court, we conclude
that the district court did not abuse its discretion in denying
the defendants’ motions for mistrial.
26
C. Garcia-Esparza’s Claim of Ineffective Assistance of Counsel
Garcia-Esparza contends that his trial counsel failed to
provide effective assistance of counsel because (1) he failed to
move for a mistrial after Adame’s testimony, and (2) he failed to
argue effectively against the district court’s decision to
sentence Garcia-Esparza to 720 months, as recommended in his Pre-
Sentence Investigation Report (“PSR”).
1. Standard of Review
To prevail on an ineffective assistance of counsel claim, a
defendant must show that (1) his counsel’s performance was
deficient, and (2) the deficient performance was prejudicial.10
To satisfy the first prong, the defendant must demonstrate that
the alleged errors were so serious that the assistance was below
the constitutional minimum guaranteed by the Sixth Amendment, as
measured under an objective standard of reasonableness.11 To
satisfy the second prong, the defendant must show that his
counsel’s performance prejudiced him to such an extent that the
trial or sentencing was fundamentally unfair or unreliable and
that, but for counsel’s errors, the result would have been
different.12
10
Strickland v. Washington, 466 U.S. 668, 687 (1984).
11
United States v. Faubion, 19 F.3d 222, 228 (5th Cir. 1994).
12
Id.
27
Our review is highly deferential to counsel and presumes
that counsel’s assistance was adequate.13 Moreover, we will not
resolve a claim of ineffective assistance of counsel on direct
appeal when the defendant fails to raise the issue in the
district court, except when a well developed record exists.14
2. Merits
Our review of the record convinces us that the performance
of Garcia-Esparza’s trial counsel was not deficient. As to
Adame’s testimony, immediately after Valles’ counsel orally moved
for a mistrial, the district court considered the mistrial motion
as having been made by each defendant and then denied it as to
each defendant. It would have been redundant and pointless ——
and not conceivably a constitutional violation —— for Garcia-
Esparza’s trial counsel to move personally for a mistrial.
As for sentencing, it is entirely unclear what Garcia-
Esparza contends was deficient. In his appellate brief, the
totality of his argument consists of the following: “Appellant’s
counsel failed to argue effectively the judge’s adherence to the
PSR. The PSR called for 720 months instead of the range above
noted, 352 to 425 months.” This claim simply lacks the requisite
13
Burger v. Kemp, 483 U.S. 776, 789 (1987).
14
United States v. Brewster, 137 F.3d 853, 859 (5th Cir.
1998).
28
specificity needed for appellate review, as it is unknown what
Garcia-Esparza claims to be error.
The most that we can decipher is that Garcia-Esparza takes
issue with the district court’s factual finding that he was
responsible for the distribution of over 150 kilograms of heroin
and 30 kilograms of cocaine. To the extent that this is Garcia-
Esparza’s argument, we note that his trial counsel objected in-
depth to the factual findings in the PSR, both to the probation
officer —— who relayed the objections to the district court prior
to the sentencing hearing —— and to the district court during the
sentencing hearing. One of his objections asserted that the PSR
incorrectly calculated the Guidelines range, claiming that it
should have been 352 to 425 months, because the district court
incorrectly found that Garcia-Esparza was responsible for the
distribution of over 150 kilograms of heroin and 30 kilograms of
cocaine, rather than the 1.6 kilograms of heroin and 2.3
kilograms of cocaine advocated by Garcia-Esparza. The district
court considered Garcia-Esparza’s objections prior to the
sentencing hearing, afforded trial counsel an opportunity to
argue the objections orally at the sentencing hearing, and then
denied the objections. We cannot see how the actions of Garcia-
Esparza’s trial counsel were deficient in any way.
If perchance this is not Garcia-Esparza’s argument of
29
ineffective assistance at sentencing, we rule that his argument
was waived for inadequate briefing.15
D. Valles’ Due-Process Claim
Valles contends that the district court violated his
constitutional right to due process by not allowing him to enter
his plea in front of the jury. Valles acknowledges that “he can
find no case supporting this proposition,” but insists that he
has a constitutional right to plead before the jury.
1. Standard of Review
The identification of a liberty interest that is protected
by the Due Process Clause is a question of federal constitutional
law and reviewed de novo.16 As Valles failed to raise this issue
before the district court, we review his claim for plain error.17
Under plain error review, we may exercise our discretion to
reverse a defendant’s conviction if there is (1) an error, (2)
that is plain, (3) that affects substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.18 An error is “plain” if it is clear
15
Int’l Truck & Engine Corp. v. Bray, 380 F.3d 231, 232 (5th
Cir. 2004).
16
Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).
17
United States v. Vargas-Garcia, 434 F.3d 345, 47 (5th Cir.
2005).
18
United States v. Lewis, 412 F.3d 614, 616 (5th Cir. 2005).
30
under current law.19
2. Merits
As Valles recognizes, there is no authority for the legal
holding that due process entitles a defendant to enter a plea in
front of a jury. Thus, even assuming without granting that
Valles had a constitutional right to enter his plea before the
jury, this right is not clear under current law and thus cannot
constitute plain error. Valles’ claim therefore fails.
E. Zavala’s Sentencing Challenge
Zavala asserts that the district court impermissibly found
for sentencing purposes that he was responsible for the murder of
Jose Luis Moreno. At the conclusion of trial, the jury was asked
if it found beyond a reasonable doubt that Zavala had
intentionally or knowingly killed Moreno. The jury answered in
the negative.
Notwithstanding the jury verdict, Zavala’s PSR concluded
that the information relevant to the murder of Moreno was
sufficiently reliable to support a finding that “it was
reasonably foreseeable that Zavala was responsible for [Moreno’s
murder] and should be held accountable for [this act].” Prior to
sentencing, Zavala objected to the PSR’s recommendation on this
19
United States v. Olano, 507 U.S. 725, 734 (1993).
31
point. At sentencing, the district court overruled Zavala’s
objection, found that he was responsible for Moreno’s murder, and
sentenced him accordingly.
On appeal, Zavala contends that United States v. Booker20
prevents the district court from sentencing a defendant on facts
not found by a jury or admitted in a guilty plea. Thus, Zavala
insists, the district court committed reversible error by
sentencing him based on facts of which he was acquitted by a
jury. Zavala argues, in the alternative, that there was
insufficient evidence to support the district court’s finding,
regardless of the standard, i.e., beyond a reasonable doubt or by
a preponderance of the evidence.
1. Standard of Review
We review a district court’s interpretation and application
of the Guidelines de novo and its factual findings in connection
with sentencing for clear error.21 We will find a district
court’s factual findings to be clearly erroneous only if, based
on the entirety of evidence, we are left with the definite and
firm conviction that a mistake has been made.22 A factual
finding is not clearly erroneous if it is plausible in light of
20
543 U.S. 220 (2005).
21
United States v. Parker, 133 F.3d 322, 328 (5th Cir. 1998).
22
United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006).
32
the entire record.23
In making its factual findings for sentencing, a district
court may adopt the findings of the PSR without additional
inquiry if those facts have an evidentiary basis with sufficient
indicia of reliability and the defendant does not present
rebuttal evidence or otherwise demonstrate that the information
is materially unreliable.24 The defendant has the burden of
showing that the information relied on by the district court in
the PSR is materially unreliable.25
2. Merits
Post-Booker, a district court may sentence a defendant on
facts not established by either a guilty plea or jury verdict, as
long as the conduct for which the defendant was acquitted has
been proven by a preponderance of the evidence.26 Thus, Valles’
argument that the district court’s fact finding was a per se
Booker violation is foreclosed. Accordingly, the real issue on
appeal is whether the district court’s finding by a preponderance
of the evidence that Zavala murdered Moreno was clearly
erroneous.
23
Id.
24
Id.
25
Id.
26
Id. at 264.
33
At trial, Bexar County Deputy Sheriff Sal Marin testified
about the investigation of Moreno’s death. According to Marin,
Moreno was reported missing and an investigation into his
whereabouts was commenced in July 2002. During the course of the
investigation, law enforcement officers learned that Moreno was a
TMM member and had rented a Sports Utility Vehicle (“SUV”) on
July 3, 2002. It was found burned on July 11, 2002. On October
15, 2003, skeletal human remains eventually identified as
Moreno’s were found on the property of Tomas Carrasco, who is the
father of TMM member Ray Carrasco. Based on his experience with
the TMM, Marin testified that the TMM usually disposes of
homicide victims by burying the remains in rural areas and that
the burial of Moreno’s body fit this pattern.
In addition, TMM member Joe Rene Tamayo testified that, one
morning in mid-July 2002, he got a telephone call from TMM member
Casper around 2:30 a.m. Casper told Tamayo that they needed to
do a “cook out,” which was TMM code for a procedure the TMM used
to dispose of evidence, such as a weapon or vehicle, by burning
it. According to TMM custom, the TMM member who used the weapon
at issue would present it to Tamayo, who would then destroy it by
burning it with a blow torch. To effectuate this cook out,
Casper and Tamayo arranged to meet that morning at a place in the
West side of San Antonio where they frequently performed cook
34
outs. After Tamayo arrived at the cook out, Zavala, who was not
a TMM member at the time, showed up, looking shaken and scared,
and gave a gun to Tamayo.
After torching the gun, Casper told Tamayo that they also
needed to dispose of a vehicle. Casper and Tamayo went to a gas
station and filled two gas cans with gasoline. Casper then had
Tamayo pick up the vehicle, which was a Jeep Cherokee SUV.
Tamayo knew the vehicle belonged to Moreno, because he recognized
it as Moreno’s and also saw receipts in the vehicle belonging to
Moreno. Tamayo drove Moreno’s SUV towards Castroville, Texas,
parked it on the side of the road, and burned it. Tamayo further
testified that he saw bloody hand prints sliding down the rear
windshield of the automobile. Tamayo never saw Moreno again.
Tamayo also testified that, prior to the murder, Zavala had
been associating with TMM members and wanted to become one. The
day before the cook out, Zavala had talked to Tamayo, indicating
that he did not trust Moreno, that Moreno was doing drugs, and
that Moreno was probably an informant. Shortly after the cook
out was performed, Zavala became a member of the TMM and was
given Moreno’s former position as lieutenant of the North corner.
Additional testimony indicated that it was rare for a person
who had not been in prison to be admitted to the TMM and that, to
make up for this, a non-convict prospecto —— such as Zavala ——
35
would often be required to commit a “cameo,” which meant killing
someone on the TMM’s behalf.
Given that (1) Moreno’s remains were found on the property
of a TMM member’s father, (2) the remains were buried in a rural
area, as customary with the TMM, (3) Moreno’s automobile was
found torched, (4) Tamayo admitted torching Moreno’s automobile
on the same night that he received a gun from Zavala for a “cook
out,” (5) TMM custom had the user of the gun present it to Tamayo
for torching, (6) there were bloody hand prints on the rear
windshield of Moreno’s SUV, (7) Zavala suspected Moreno of being
an informant, (8) Zavala became a TMM member, taking Moreno’s
position after his death, (9) Zavala wanted to become a TMM
member prior to Moreno’s death, and (10) TMM custom required a
non-convict prospecto to murder a person on behalf of the TMM
before being admitted into the TMM, the district court did not
commit clear error in finding by a preponderance of the evidence
that Zavala killed Moreno.
F. Garcia-Esparza’s Sentencing Challenge
Garcia-Esparza asserts that the district court sentenced him
in violation of Blakely v. Washington27 and Apprendi v. New
Jersey.28 He contends that the district court erred by
27
542 U.S. 296 (2004).
28
530 U.S. 466 (2000).
36
increasing his sentence based on judge-found facts, despite
failing to identify which facts are in contention. Regardless of
which facts are in contention, Garcia-Esparza’s claim is without
merit. A district court may sentence a defendant on the basis of
judge-found facts post-Booker.
G. Garcia’s Sentencing Challenge
Garcia insists that the district court committed error in
purporting to find by a preponderance of the evidence that Garcia
was a leader or organizer of the Count One conspiracy. At the
conclusion of trial, the jury was asked if it found beyond a
reasonable doubt that Garcia was a leader or organizer of the
overarching conspiracy alleged in Count One of the Indictment.
The jury answered in the negative.
Notwithstanding the jury verdict, Garcia’s PSR recommended
that the district court find that Garcia was an organizer or
leader of the conspiracy and enhance his Guidelines range
accordingly. Garcia objected to the PSR, but the district court
denied the objection and found by a preponderance of the evidence
that Garcia was an organizer or leader of the conspiracy.
On appeal, Garcia claims that his sentence violated Booker
and Blakely because the district court sentenced him based on
facts of which he was acquitted by the jury. As previously
noted, this claim is without merit and thus fails.
37
H. Valles’s Sentencing Challenge
Valles contends that the district court violated Booker in
finding that Valles distributed and possessed with the intent to
distribute a specified quantity of drugs and that he was a leader
or organizer of the Count One conspiracy. The jury was not asked
to find beyond a reasonable doubt the amount of drugs that Valles
was responsible for or whether Valles was a leader or organizer
of the conspiracy. Nonetheless, the district court enhanced
Valles’ sentence based on the drug quantity and on his status as
a leader or organizer. On appeal, Valles contends that the
district court’s actions violated Booker and Blakely. Once
again, as noted above, this claim is without merit and thus
fails.
III. CONCLUSION
Based on the applicable law and our extensive review of the
parties’ briefs and the record on appeal, we hold that the
district court did not commit any error. We therefore affirm the
defendants’ convictions and sentences.
AFFIRMED
38