United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 16, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_____________________
No. 03-41379
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JIMMY DELGADO
Defendant - Appellant
___________________
Appeal from the United States District Court
for the Southern District of Texas, Victoria
6:01-CR-108-3
___________________
Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Defendant Jimmy Delgado appeals his criminal conviction for conspiracy to conduct a
racketeering enterprise in violation of 18 U.S.C. § 1962(d) and conducting a racketeering
enterprise in violation of 18 U.S.C. § 1962(c). We affirm the conviction.
BACKGROUND
The Texas Mexican Mafia (“TMM”) is a criminal organization which originated within the
Texas prison system in the 1980s. It provides protection to its members from other prisoners or
prison gangs and otherwise furthers the interests of its members. As members are released from
1
prison, they must maintain contact with the organization and assist both free and incarcerated
members. TMM provides direction, advice, organization and protection for its members’ various
criminal ventures. In exchange for membership, TMM members send 10% of their illegal
proceeds (“the dime”) to TMM headquarters. Members must also collect “the dime” from non-
member drug dealers and remit that money to TMM headquarters.
Appellant Jimmy Delgado was a TMM member living in Victoria, Texas. As such, he
participated in the affairs of TMM’s Victoria chapter, which had been founded by Joe Pena upon
his release from prison. As TMM members were released from prison, they reported to Pena,
who tasked them in the sale of drugs and in collecting “the dime” from other drug dealers.
Victoria Chapter TMM members participated in periodic meetings to discuss ongoing cocaine
sales, the collection of drug debts, the collection of “the dime,” and retaliation against members of
other gangs. While Delgado participated in drug-dealing, his most significant contribution to
TMM affairs was his collection of drug debts and intimidation of individuals who posed problems
to TMM members.
The Indictment
In December of 2001, Delgado, along with eight other defendants, was indicted for
conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”) under 18
U.S.C. § 1962(d) and a substantive violation of RICO under 18 U.S.C. § 1962(c).
With respect to the first count, the indictment alleged that TMM was a continuing
racketeering enterprise that engaged in and affected interstate commerce by engaging in criminal
activity, especially the purchase and sale of illegal drugs that were obtained and sold in interstate
commerce. It alleged that the purposes of TMM were to enrich its members through criminal
2
activity and protect its interests through violence and threats of violence. It further alleged that
Delgado knew of and agreed to TMM’s purposes.
Under the second count of the indictment, the grand jury further charged the defendants
with knowingly and intentionally participating in the conduct of the affairs of TMM through a
pattern of racketeering activity consisting of seven acts. The racketeering acts charged were (1)
conspiracy to distribute cocaine, (2) murder of Gilbert Vasquez, (3) attempted murder of Troy
Jenkins, (4) robbery at the home of Leonardo Ramos, (5) murder of Alfonso Sanchez, (6) murder
of Chris Vasquez, and (7) murder of Jason Ramos. Delgado was alleged to have participated
personally in all acts but the murder of Jason Ramos.
Evidence at Trial
At trial, several of Delgado’s co-defendants, who had entered into plea-agreements with
the government, testified against Delgado. Their testimony showed that Delgado was an active
member of TMM and that he participated in the organization’s criminal activities. More
specifically, the government presented evidence of Delgado’s involvement in the predicate acts
listed in the indictment. Witnesses testified to the following acts related to the collection of debts:
Delgado directed and participated in the search for and murder of Gilbert Vasquez, who owed
Delgado $300 for cocaine. He also directed, participated in, and authorized the murder of Chris
Vasquez, who also owed money for cocaine. Delgado was assigned to collect drug debts that
Joseph Canales, a TMM “associate,” turned over to TMM as payment of “the dime.”
Witnesses also testified to Delgado’s effective intimidation of members of the Hermanos
Pistoleros Latinos (“HPL”), a rival gang, and other individuals with whom TMM had disputes: In
December of 1999, Delgado advised Paul Cortez, a TMM member, that they would be killing
3
Richard Velez, an individual with whom a ranking member of TMM had been in a fight.
However, Delgado and Cortez mistakenly entered the apartment of Troy Jenkins, a neighbor of
Velez. Delgado stabbed Jenkins several times.
The government presented evidence incriminating Delgado in other TMM crimes: In
January of 2000, shortly after his promotion to “sergeant” in TMM, Delgado pressured Pineda, a
TMM member, into killing a member of HPL with whom Pineda had experienced problems. In
February of 2000, Delgado and a TMM associate robbed Leonardo Ramos, a member of HPL
who had not paid “the dime.”
Delgado took the stand and testified that he was a member of TMM, that he met with
other TMM members in Victoria, and that he had held a position of leadership in TMM’s Victoria
chapter. Delgado stated that he did not share other TMM members’ belief in pursuing the
interests of TMM through murder, extortion, and other crimes. Rather, he found TMM to be a
benevolent brotherhood or support group. Delgado admitted having been convicted of the
murder of Chris Vasquez, one of the predicate acts charged in the indictment, but denied any
involvement in that act or any other predicate acts charged.
After a trial, the jury returned a verdict of guilty against Delgado on both RICO counts.
The jury found Delgado guilty of six of the seven racketeering acts charged in the indictment.
DISCUSSION
Delgado claims that the following errors warrant reversal of his conviction: (1) a
fundamental variance exists between the indictment and the proof offered at trial that violated
Delgado’s right to prepare for trial; (2) the evidence at trial was insufficient to prove Delgado’s
guilt beyond a reasonable doubt; (3) the district court erred in admitting hearsay statements of co-
4
conspirators under Federal Rule of Evidence 801(d); (4) the district court violated Delgado’s
right to confront witnesses against him by admitting hearsay statements contained in the testimony
of Michael Martinez; (5) the district court erred in failing to give a limiting instruction concerning
co-conspirators’ guilty pleas; and (6) the district court erred in allowing the government to
introduce evidence of appellant’s prior conviction. We discuss each in turn.
I. Material Variance
Delgado first argues that there is a material variance between the indictment and the
evidence that was presented at trial such that he was denied his Sixth Amendment rights. We
reject his argument.
A variance arises when the proof at trial depicts a scenario that differs materially from the
scenario charged in the indictment but does not modify an essential element of the charged
offense. Dunn v. United States, 442 U.S. 100, 105 (1979); United States v. Puig-Infante, 19 F.3d
929, 935 (5th Cir. 1994). A variance necessitates reversal only when it has prejudiced the
defendant’s substantial rights. Id. at 935-36.
According to Delgado, the indictment alleged that he was involved in TMM’s drug
business, but the evidence presented at trial sought to associate Delgado with the personal drug
business of Joe Pena. We reject this contention. While Joe Pena did indicate during cross-
examination that he personally profited from the sale of drugs and considered his drug business to
be his own, he also testified on direct examination that he was a member of TMM; that he
collected “the dime” for TMM from other drug dealers; that he purchased drugs from TMM
members; that TMM members reported to him to sell drugs for him; and that TMM members
collected debts owed to him. The testimony of several other witnesses confirmed a strong
5
connection between Joe Pena’s drug business and TMM. Thus, the government presented
evidence of the very scenario alleged in the indictment. There was no material variance between
the indictment and the proof offered at trial.
II. Sufficiency of the Evidence
Delgado next contends that the evidence was insufficient to prove his guilt beyond a
reasonable doubt.
“In reviewing sufficiency of the evidence we view the evidence and all inferences to be
drawn from it in the light most favorable to the verdict to determine if a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” United States v.
Posada-Rios, 158 F.3d 832, 855 (5th Cir. 1998) (citing United States v. Sneed, 63 F.3d 381, 385
(5th Cir.1995)). After reviewing the record, we conclude that the jury heard sufficient evidence
to find Delgado guilty on both the substantive and conspiracy counts.
A. Conspiracy Offense
The RICO Act criminalizes conspiracy to violate any of its substantive provisions. 18
U.S.C. § 1962(d). “To prove a RICO conspiracy, the government must establish (1) that two or
more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and
agreed to the overall objective of the RICO offense.” Posada-Rios, 158 F.3d at 857-58. These
elements may be established by circumstantial evidence. Id. Each requirement is met here.
First, there is sufficient evidence for a jury to find that two or more people agreed to
violate § 1962(c), which criminalizes racketeering activity and the collection of unlawful debts.
Evidence presented at trial showed that TMM had many members, including Delgado, who met
frequently to discuss the interests of their organization and plan its activities, including drug
6
trafficking, the collection of drug debts, murder, and robbery, as prohibited by RICO. Such
evidence supports the jury’s determination that two or more people agreed to violate §1962(c).
Second, there is ample evidence that Delgado agreed to the overall objective of the
conspiracy. Delgado argues that, because the evidence at trial did not prove that he performed or
agreed to perform at least two crimes in furtherance of TMM’s conspiracy, a reasonable jury
could not have found him guilty of conspiracy to violate RICO. However, Delgado’s
interpretation of the law is mistaken. The conspirator need not have committed or agreed to
commit the two predicate acts. Salinas v. United States, 522 U.S. 52, 61-66 (1997). Delgado
need only have known of and agreed to the overall objective of the RICO offense. See id.;
Posada-Rios, 158 F.3d at 857.
Here, there is more than sufficient evidence for a jury to find that Delgado knew of and
agreed to the RICO offense. At trial, Delgado himself testified that he was a member of TMM.
The jury was exposed to evidence showing that Delgado had attended TMM meetings at which
the organization’s drug enterprise was discussed. Moreover, the evidence showed that Delgado
actively directed TMM members to carry out several of the crimes that served as predicate acts of
the substantive RICO offense: The jury heard evidence that Delgado sold drugs for Joe Pena, the
founder of the Victoria chapter of TMM. Michael Martinez testified that Delgado had directed
and participated in the murder of Gilbert Vasquez, who owed Delgado money for cocaine. The
jury also heard evidence that Delgado had participated in and directed other TMM members in the
murder of Chris Vasquez, who also owed money for drugs. Paul Cortez testified that Delgado
instructed him to accompany Delgado to the home of Richard Velez to kill Velez and that, upon
mistakenly entering the wrong apartment, Delgado instructed Cortez to shoot Troy Jenkins, an
7
innocent occupant of the home.
B. Substantive Offense
The substantive RICO provision under which Delgado was charged, 18 U.S.C. § 1962(c),
prohibits “any person employed by or associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of
unlawful debt.” “To establish a violation of § 1962(c) the government must prove (1) the
existence of an enterprise that affects interstate or foreign commerce, (2) that the defendant was
‘employed by’ or ‘associated with’ the enterprise, (3) that the defendant participated in the
conduct of the enterprise’s affairs, and (4) that the participation was through ‘a pattern of
racketeering activity.’” Posada-Rios, 158 F.3d at 855 (citing United States v. Erwin, 793 F.2d
656, 670 (5th Cir. 1986)). As discussed below, the evidence presented at trial was sufficient for a
jury to find that each element was satisfied.
1. Enterprise Affecting Interstate Commerce
Delgado argues that there was insufficient evidence to show that TMM, the enterprise
discussed in the indictment, affected interstate commerce. We disagree. Here, witnesses testified
that TMM was directly involved in distributing and acquiring drugs that were produced in
Colombia and had arrived in the U.S. via Mexico. See United States v. Robertson, 514 U.S. 669,
671-72 (1995) (holding that an enterprise that produces, distributes, or acquires goods or services
in interstate commerce is engaged in interstate commerce). Moreover, evidence presented at trial
showed that TMM used Western Union, telephones, the U.S. Postal Service, and pagers to
transfer money and communicate with each other in furtherance of TMM’s criminal purposes. See
8
R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350, 1353 (5th Cir. 1985) (“The nexus with interstate
commerce required by RICO is “minimal.’”); United States v. Pipkins, 378 F.3d 1281 (11th Cir.
2004) (finding that RICO conspirators’ use of instrumentalities of interstate commerce, including
pagers, telephones, and mobile phones, affected interstate commerce). Thus, TMM was engaged
in and affected interstate commerce.
2. Defendant’s Employment by or Association with the Enterprise
Delgado was undoubtedly associated with TMM. As discussed earlier, Delgado
personally testified that he was a member of TMM, and several witnesses attested to his
association with and leadership role in TMM. See supra Part II A.
3. Defendant’s Participation in Conduct of Enterprise’s Affairs
The defendant must have participated in the operation or management of the enterprise
itself in order to fulfill this third requirement of a substantive RICO violation. Reves v. Ernst &
Young, 507 U.S. 170, 185 (1993). “An enterprise is ‘operated’ not just by upper management but
also by lower rung participants in the enterprise who are under the direction of upper
management.” Id. at 184. As discussed earlier in this opinion, Delgado’s attendance at TMM
meetings and participation in drug-dealing and other criminal activities was amply attested to at
trial. Thus, not only was there sufficient evidence to infer that Delgado participated in TMM’s
affairs, but there was significant evidence that he actually directed the commission of crimes in
furtherance of TMM’s purposes. See supra Part II A.
4. Participation through a Pattern of Racketeering Activity
In order to show the existence of a pattern of racketeering activity, the government must
establish (1) that the racketeering acts are related and (2) that they amount to or pose a threat of
9
continued criminal activity. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989).
Here, both requirements are met. The racketeering acts listed in the indictment are related
in that they were all shown to be committed in the furtherance of TMM business. The predicate
acts served to intimidate members of rival gangs, intimidate individuals who posed problems for
TMM members, collect drug debts owed to TMM members, and raise revenue for TMM
members. Delgado again raises the argument that the criminal activities proved at trial were the
personal business of Joe Pena and not those of TMM, as evidenced by the cross-examination
testimony of Joe Pena and Delgado’s own testimony. However, in light of the substantial
evidence to the contrary, see supra Part II A, we reject that argument.
The continuity prong is also met here. TMM’s practice of continuously collecting “the
dime” from TMM and non-TMM drug dealers evidenced a “specific threat of repetition extending
indefinitely into the future.” Id. at 242 (offering as an example of continuity a scenario in which
an individual collects “insurance” on a monthly basis from the neighborhood’s storekeepers to
cover them against intentional breakage of their windows).The number and frequency of predicate
acts committed by TMM evidence a threat of such activities continuing into the future. As
described in Part II A of this opinion, there was substantial evidence, including eye-witness
testimony, indicating that Delgado participated in six of the seven predicate acts alleged in the
indictment. We are convinced that a jury could have easily found that Delgado’s participation in
the enterprise was through a pattern of racketeering activity.
III. Admission of Co-conspirators’ Hearsay Statements
Delgado argues that the district court erred in admitting hearsay statements of co-
conspirators under Federal Rule of Evidence 801(d). We reject this argument.
10
We review the admission of evidence under Rule 801(d)(2)(E) for abuse of discretion.
United States v. Robinson, 367 F.3d 278, 291 (5th Cir. 2004) (quoting United States v. Solis, 299
F.3d 420, 443 (5th Cir. 2002)).
“[A] statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a
statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”
Fed. R. of Evid. 801(d)(2)(E). The government must prove by preponderance of the evidence
“(1) the existence of a conspiracy, (2) the statement was made by a co-conspirator of the party,
(3) the statement was made during the course of the conspiracy, and (4) the statement was made
in furtherance of the conspiracy.” Robinson, 367 F.3d at 291-92 (quoting Solis, 299 F.3d at 443).
Delgado fails to point to any specific statement that he can claim was improperly admitted
by the district court. Instead, he argues only that the evidence failed to show that he was part of
the conspiracy charged in the indictment, and thus any statements made in furtherance of that
conspiracy are not admissible. However, that is not a requirement of Rule 801(d)(2)(e). “The
conspiracy that forms the basis for admitting the coconspirators’ statements need not be the same
conspiracy for which the defendant is indicted.” United States v. Arce, 997 F.2d 1123, 1128 (5th
Cir. 1993). Thus, Delgado’s argument fails.
IV. Admission of Hearsay Statements in Violation of the Sixth Amendment
Delgado next argues that the district court improperly restricted his Sixth Amendment
right to confront witnesses against him by admitting the testimony of Michael Martinez, which
contained hearsay statements by co-conspirators.
“Alleged violations of the Confrontation Clause are reviewed de novo, but are subject to a
harmless error analysis.” United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004).
11
Delgado cites Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Under
Crawford, ex parte testimonial statements, which may include affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-examine, or police interrogations, id. at
1364, are categorically inadmissible. Id. at 1374.
Once again, Delgado fails to point to any specific statements he claims were improperly
admitted. A review of the record shows that the testimony of Michael Martinez to which
Delgado had a “running objection” at trial was testimony that contained hearsay statements made
during the course of and in furtherance of a conspiracy and was therefore admissible under
Federal Rule of Evidence 801. Michael Martinez testified as to statements given by fellow TMM
members regarding the sale of drugs, the collection and safekeeping of “the dime” from TMM
members, the collection of drug debts owed to TMM members, the commission of crimes to
collect debts, and the covering-up of crimes. Crawford is not applicable to those statements
because they are not testimonial hearsay statements. Accordingly, we find no error.
V. Instructions Concerning Co-conspirators’ Guilty Pleas
Delgado contends that the district court erred in failing to give a sufficient limiting
instruction concerning his co-conspirators’ guilty pleas.
Where, as here, the defendant did not request a limiting instruction at trial, we review
challenges to the sufficiency of a limiting instruction for plain error. See United States v. Newell,
315 F.3d 510, 523 (5th Cir. 2002); United States v. Martin, 332 F.3d 827, 834 (5th Cir. 2003).
“Plain error occurs only when the instruction, considered as a whole, was so clearly erroneous as
to result in the likelihood of a grave miscarriage of justice.” Id. (quoting United States v.
Lankford, 196 F.3d 563, 575 (5th Cir. 1999)). We find no plain error in the district court’s
12
treatment of the co-conspirators’ guilty pleas.
Defendants are entitled to have questions of guilt based on the evidence against them, “not
on whether a government witness or a codefendant has plead guilty to the same charge.” United
States v. Black, 685 F.2d 132, 135 (5th Cir. 1982) (quoting United States v. Fleetwood, 528 F.2d
528, 532 (5th Cir. 1976)). However, “under some circumstances the government might have a
legitimate evidentiary reason for bringing out testimony relating to its witnesses’ prior
convictions, even when those convictions are for charges similar or identical to those upon which
the defendant is being charged.” Id. (quoting Fleetwood, 528 F.2d at 532). When evaluating the
impact of a witness’s guilty plea, we consider four factors: “1) the presence or absence of a
limiting instruction; 2) whether there was a proper evidentiary purpose for introduction of the
guilty plea; 3) whether the plea was improperly emphasized or used as substantive evidence of
guilt; and 4) whether the introduction of the plea was invited by defense counsel.” United States
v. Murray, 988 F.2d 518, 523 (5th Cir. 1993).
Here, those factors weigh strongly in favor of a finding of no error. First, contrary to
Delgado’s assertion that the district court failed to give any instructions limiting the jury’s
consideration of the co-conspirators’ guilty pleas, the court did give such an instruction. The
district court specifically instructed the jury that the evidence was offered as potential
impeachment evidence of the witnesses, and for no other purpose. Compare United States v.
Harrell, 436 F.2d 606 (5th Cir. 1970) (finding plain error where district court did not give
limiting instruction regarding co-conspirator’s guilty plea). Second, the government offered
evidence of Delgado’s co-conspirators’ guilty pleas for a legitimate purpose. Rather than allow
the defense to impeach the witnesses’ credibility on cross-examination by questioning those
13
witnesses as to their guilty pleas and plea agreements, the prosecution elicited such information
during direct examination to avoid the appearance of an intent to conceal. See United States v.
Veltre, 591 F.2d 347, 349 (5th Cir. 1979) (“Where, as here, the codefendant is a witness at trial,
subject to the rigors of cross-examination, disclosure of the guilty plea to blunt the impact of
attacks on her credibility serves a legitimate purpose and is permissible.”) Third, the pleas were
not improperly emphasized by the prosecution. Rather, the government briefly asked each witness
whether he had pled guilty in this case, whether that plea was pursuant to an agreement, and what
the terms of the plea agreement were, sometimes admitting the plea agreement into evidence. The
emphasis was not on the witness’s admission of guilt, but on the witness’s self-serving reasons for
testifying. Finally, while Delgado did not invite introduction of the co-conspirators’ guilty pleas,
he took full advantage of that evidence in referring to it during cross-examination of a key
government witness and during closing argument to impeach the witnesses’ credibility.
VI. Admission of Delgado’s Prior Conviction
During the course of Delgado’s trial, counsel for Delgado informed the district court that
Delgado wished to testify. The government stated its intention to impeach Delgado’s credibility
by asking him whether he had any prior felony convictions. Over defense counsel’s objections,
the district court concluded that Federal Rule of Evidence 609(e) clearly allowed the introduction
of such evidence. During direct examination, defense counsel preemptively asked Delgado about
his prior convictions. Delgado disclosed the existence of his prior murder conviction, voluntarily
including the fact that the conviction was for the murder of Chris Vasquez, one of the predicate
acts alleged in the indictment. The next day, to curtail any prejudicial effect of the defendant’s
voluntary admission that the prior felony was a conviction for one of the very acts charged in the
14
indictment, the district court instructed the jury to disregard the conviction for any purpose.
Delgado now challenges the district court’s admission of his prior murder conviction. We
conclude that Delgado waived his objection to that ruling by introducing the prior conviction
during direct examination.
In Ohler v. United States, the Supreme Court addressed the consequences of
preemptively admitting a prior conviction during direct examination. 529 U.S. 754 (2000).
There, after the district court ruled that the government could ask the defendant about her prior
felony convictions, the defendant admitted on direct examination that she had previously been
convicted of possessing methamphetamine. Id. at 755. On appeal, Ohler challenged the district
court’s ruling allowing the government to use her prior conviction for impeachment purposes. Id.
The Supreme Court held “that a defendant who preemptively introduces evidence of a prior
conviction on direct examination may not on appeal claim that the admission of such evidence was
error.” Id. at 760.
Here, as in Ohler, the defendant offered testimony of his prior conviction before being
asked about it on cross-examination. By introducing the evidence in the first instance, even if
done to “remove the sting” of the conviction, Delgado has waived his appeal as to this matter.
Accordingly, we need not consider whether the district court’s admission of the evidence was
erroneous.
CONCLUSION
For the foregoing reasons, Delgado’s conviction is AFFIRMED.
15