United States v. Valles

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

2
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.

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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).

11
 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

17
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.

18
 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

19
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

21
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