United States v. John Portillo ( 2020 )

Case: 18-50793 Document: 00515516125 Page: 1 Date Filed: 08/05/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2020
No. 18-50793
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOHN XAVIER PORTILLO, also known as John Portillo; JEFFREY FAY
PIKE, also known as Jeffrey Pike, also known as Jeffrey F. Pike,
Defendants - Appellants
Appeals from the United States District Court
for the Western District of Texas
Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
In 2018, following a three-month-long jury trial, defendants-appellants
Jeffrey Pike and John Portillo were convicted of multiple counts related to a
RICO conspiracy. Their convictions arise out of their positions as high-ranking
officials with the Bandidos Outlaws Motorcycle Club, a “one-percent”
motorcycle club with deep roots in Texas. In this direct appeal, they urge a
variety of errors related to the district court’s pretrial procedures, the
admissibility of certain evidence, and the sufficiency of the evidence. For the
following reasons, we AFFIRM.
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I. General Factual Background
We begin with an overview of the evidence presented at trial, recounting
the facts in the light most favorable to the jury’s verdict. See United States v.
Mahmood, 820 F.3d 177, 181–82 (5th Cir. 2016).
A. The Bandidos Outlaws Motorcycle Club
The Bandidos Outlaws Motorcycle Club (“Bandidos”) is an international
motorcycle club with approximately 1100 members worldwide. Members of the
club describe it as a “one percent” motorcycle club—a designation that signifies
loyalty, brotherhood, and commitment. According to Special Agent Scott
Schuster, the government’s expert witness, the “one percent” classification is a
way for the Bandidos to “brand[] themselves as . . . outlaw[s].” Johnny Romo,
a member of the Bandidos, explained at trial that the “one percent” term means
that “we’re above all the other clubs.” Though there are other one-percent
motorcycle clubs in the country, the Bandidos consider themselves “the most
dominant.”
The Bandidos use a variety of symbols to identify themselves to one
another and to outsiders. Members of the club wear a three-piece patch, which
includes an emblem of a cartoon character known as “the fat Mexican.” In the
emblem, the character is depicted holding a semi-automatic pistol and a
machete. The bottom section of the patch, known as the “bottom rocker,”
identifies “the territory that [each] Bandido is going to claim.” In Texas, for
example, the bottom rocker indicates that a member belongs to a Texas-based
chapter. The Bandidos closely guard the integrity of the bottom rocker, and
only allow full members of the club to wear the three-piece patch. Before
becoming an official member, prospects can join support clubs, which are “a
stepping stone to get closer to the Bandidos.” Once an individual becomes a full
member, he has “patched in.”
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Though the Bandidos have chapters across the world, the club has a
particularly strong presence in Texas. The club was founded in March 1966 in
San Leon, Texas. At the time of trial, there were between 35 and 40 Bandidos
chapters in Texas, with about 400 Bandidos members statewide. The Bandidos
is the only major one-percent motorcycle club in Texas.
The Bandidos maintain a highly-organized management structure.
Several national officers are responsible for organizing regular events,
including an annual summer run and a spring birthday run. Local chapters
are self-governing and largely autonomous, though they are required to pay
dues to the national office to support the cost of the group’s events. The
national office includes a President, Vice President, Secretary, Treasurer, and
several Sergeants-at-Arms. In addition to organizing events, national officers
control the selection and distribution of patches. Patches are often distributed
to acknowledge a member’s sacrifices on behalf of the club.
Jeffrey Pike served as national President of the Bandidos from 2005 until
2016. Pike assumed this role after the group’s former President, George
Wegers, pleaded guilty to a RICO conspiracy. According to Schuster, the
Bandidos President, also known as El Presidente, has “full authority to make
decisions on a day-to-day basis.” Some members of the Bandidos refer to the
President’s role as a “dictatorship.” Pike disputes this characterization, and
testified that the “individual chapters run themselves.” Pike also testified that
it was his goal as President to make the group “more mainstream” and “more
family oriented” than it had been under Wegers’s leadership.
In 2002, John Portillo was promoted from local chapter president of the
San Antonio Bandidos chapter to national Sergeant-at-Arms. In that position,
Portillo was responsible for protecting the group’s national officers and
managing relationships between local chapters and rival clubs. Pike selected
Portillo as National Vice President, or El Vice Presidente, in 2013. Schuster
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testified that the Vice President’s “purpose” was to provide the President “with
plausible deniability.” In one recorded conversation introduced at trial, Portillo
explained that he thought of himself as “Jeff’s guy.” “I’m here to protect [Pike]
. . . . I’m gonna protect [him] from the fuckin bullshit that’s going on.” In
another wiretapped conversation, Portillo was recorded explaining that he
“don’t make no majors without [Pike] knowing about it.”
B. Murder of Robert Lara
In 2001, Jay Negrete, a member of the San Antonio Bandidos chapter,
was shot and killed. At the time of Negrete’s death, Portillo was president of
Negrete’s local chapter. Magenta Winans learned that Robert Lara was
responsible for the killing, and she reported the tip to the club. Portillo
instructed a group of Bandidos members, including Richard Merla, to “take
care of” Lara. Merla and several other Bandidos lured Lara to a park, where
they were told to wait for Portillo to give them the order to kill Lara. Once they
got the order, they shot Lara at least twelve times. They did not stay on the
scene to see if Lara was “moving or if he was dead or alive.” They got back in
their truck and drove to the home of Portillo’s brother, who was a member of a
Bandidos support club. Lara was later found dead by the police.
When Merla next spoke with Portillo, Portillo told him that he could
never talk about Lara’s murder. Merla gave Portillo the gun used to shoot Lara,
and Portillo burned it with a torch. Merla and the other Bandidos were
awarded “Expect No Mercy patches,” which were intended to honor members
who “drew blood or shed blood for the club.”
C. Murder of Anthony Benesh
In 2005, Anthony Benesh and his friend Carl Michael Burford decided
that they wanted to start the first Hell’s Angels chapter in Texas. Hell’s Angels,
another one-percent motorcycle club, had chapters across the United States,
but not in Texas. Benesh got a Hell’s Angels tattoo on his back, painted his
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motorcycle red and white, and began wearing a motorcycle vest and jacket with
an emblem that matched his tattoo. The patch on his vest identified him as
“Vice President” of the Hell’s Angels.
Burford testified that he traveled to Arizona to meet with Sonny Barger,
the national president of the Hell’s Angels, to get approval to start a Texas
chapter. Barger denied this account, claiming that he would not have had the
authority to approve a new Hell’s Angels chapter. Benesh and Burford’s actions
quickly provoked anger from the Bandidos. Burford tried to avoid conflict by
limiting his use of the Hell’s Angels vest, but Benesh regularly wore his patch
around Austin. Adrianna Faircloth, Benesh’s girlfriend, testified that Benesh
started receiving threatening calls about his display of the Hell’s Angels patch.
Johnny Romo, a Bandidos member, testified that he learned about
Benesh from Portillo. Portillo told him that there were two Hell’s Angels
“riding their bikes” in Austin. He explained that members of the local Austin
chapter had “tried everything” to fix the problem, including “threats,
intimidation, [and] fear.” At the time, Portillo and Johnny were both
Sergeants-at-Arms for the Bandidos national office. Portillo told Johnny that
Pike had personally directed them to “take . . . out” Benesh and Burford.
Johnny testified that Portillo told him “This came from Jeff Pike, we need to
take them out.” Johnny interpreted this order to mean that Portillo and Pike
wanted him to “kill [Benesh], murder, to get rid of him.” Johnny explained that
the club wanted to stop Benesh and Burford because there “shouldn’t be no
other one percenters but the Bandidos in Texas.”
Johnny testified that Portillo told him to assemble a group of Bandidos
members and go to Austin. Johnny picked a few people he trusted to
accompany him, including Robbie Romo, his brother. At the time, Robbie was
a prospective member of the Bandidos who had not yet “patched in.”
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The day before the murder, Johnny and the other men drove from San
Antonio to Austin to look for Benesh. They stayed outside Benesh’s house until
dusk, and then drove home to San Antonio. They returned to Austin the
following day, and Robbie brought a rifle with him. They drove to Benesh’s
house, waited until he exited, then followed him and his family to a restaurant,
where they parked outside. About an hour later, Johnny saw Benesh coming
out of the restaurant and alerted Robbie. Robbie got his rifle ready by
positioning it outside of the passenger’s side window, aimed it at the driver’s
side of Benesh’s truck, and shot the back of Benesh’s head. Benesh was dead
when the police arrived. Faircloth, Benesh’s girlfriend, told the officers that
she had warned Benesh “not to set up a Hell’s Angel’s chapter here.” Johnny
and the crew quickly fled the scene and immediately called Portillo from a pay
phone to tell him “it’s . . . done.”
When Johnny saw Pike a few months later, Pike gave him a hug and a
kiss and told him that he was “very proud” of him. After the murder, Robbie,
who was a prospect at the time of the shooting, was allowed to “patch[] in
early.” Johnny was permitted to start an “underground chapter” of the
Bandidos, the “Fat Mexican Crew,” which answered directly to Pike. Johnny
and the crew also received Expect No Mercy patches.
D. Rivalry with the Cossacks
The Cossacks are a motorcycle club based in North Texas. In 2014, Pike
gave the Cossacks permission to add a Texas bottom rocker symbol to their
patch. Pike believed this was a “natural transition for the club,” and he hoped
that the gesture would “open[] a line of communication between the two clubs.”
Eventually, however, the Bandidos became concerned that the Cossacks were
displaying the bottom rocker in a “disrespectful” manner. Portillo told Johnny,
“We’re not going to fuck around with them Cossacks, dude, it’s on.” Justin
Forster testified that he heard Portillo tell Pike that the group had to “do what
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we got to do” to deal with the Cossacks. Pike responded, “Whatever y’all do,
just be careful.”
At trial, the government introduced evidence pertaining to several
violent altercations between the Cossacks and the Bandidos.
• Fort Worth, December 2014: The Bandidos attacked Cossacks
members at a Fort Worth bar using guns, clubs, and flashlights. During
the attack, they took one man outside and shot and killed him. In a
recorded call between Romo and Portillo after the incident, Portillo
explained that the Bandidos were “at war with these mother fuckers.”
• Palo Pinto County, March 2015: Arthur David Young, a member of
the Cossacks, was at a gas station when he was approached by a group
of Bandidos in a black car. When he refused to remove his vest, they hit
him repeatedly in the head with a hammer.
• Port Aransas, August 2015: A group of Bandidos attacked several
Cossacks members and their wives with beer bottles, knives, and other
weapons. After the incident, Portillo was recorded saying that Pike
“knows a little bit about it.”
E. Trial and Sentencing
Following the government’s fourth superseding indictment, a grand jury
in the Western District of Texas returned a true bill charging Pike and Portillo
with the following thirteen counts:
• Count One: RICO Conspiracy, 18 U.S.C. § 1962(d) (Portillo and Pike)
• Count Two: Murder in Aid of Racketeering (for the murder of Robert
Lara), 18 U.S.C. §§ 1959(a)(1), 2 (Portillo)
• Count Three: Murder in Aid of Racketeering (for the murder of Anthony
Benesh), 18 U.S.C. §§ 1959(a)(1), 2 (Portillo and Pike)
• Count Four: Conspiracy to Commit Murder in Aid of Racketeering, 18
U.S.C. § 1959(a)(5) (Portillo and Pike)
• Count Five: Conspiracy to Commit Assault with a Dangerous Weapon
in Aid of Racketeering, 18 U.S.C. § 1959(a)(6) (Portillo and Pike)
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• Count Six: Assault with a Dangerous Weapon in Aid of Racketeering
(Palo Pinto County, Texas), 18 U.S.C. §§ 1959(a)(3), 2 (Portillo and Pike)
• Count Seven: Assault with a Dangerous Weapon in Aid of Racketeering
(Port Aransas, Texas), 18 U.S.C. §§ 1959(a)(3), 2 (Portillo and Pike)
• Count Eight: Using and Discharging a Firearm During and in Relation
to a Crime of Violence (murder of Robert Lara), 18 U.S.C. §§ 924(j)(1), 2
(Portillo)
• Count Nine: Using and Discharging a Firearm During and in Relation
to a Crime of Violence (murder of Anthony Benesh), 18 U.S.C. §§
924(j)(1), 2 (Portillo and Pike)
• Count Ten: Conspiracy to Distribute and Possession with Intent to
Distribute 500 Grams or More of Methamphetamine and Cocaine, 21
U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), (B) (Portillo)
• Count Eleven: Possession with Intent to Distribute Cocaine, 21 U.S.C.
§§ 841(a)(1) & 841(b)(1)(C) (Portillo)
• Count Twelve: Conspiracy to Interfere with Commerce by Threats or
Violence, 18 U.S.C. § 1951 (Portillo and Pike)
• Count Thirteen: Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1)
(Portillo)
The case proceeded to a three-month-long jury trial in 2018. On May 17,
2018, the jury returned a verdict finding Portillo and Pike guilty on all counts.
In 2018, Portillo was sentenced to two life sentences plus two consecutive terms
of ten years on counts eight and nine. Pike was sentenced to one life sentence,
plus a consecutive term of ten years on count nine. The defendants filed timely
notices of appeal from their judgments and sentences.
II. Discussion
A. Sixth Amendment Right to Counsel
Portillo was indicted on December 16, 2015 and arrested on January 6,
2016. On the day of his arrest, Portillo had an initial appearance before a
magistrate judge. Portillo argues that he was deprived of his Sixth Amendment
rights because he was not represented by counsel during this appearance.
i. Standard of Review
Sixth Amendment claims are typically subject to de novo review. See
United States v. Simpson, 645 F.3d 300, 307 (5th Cir. 2011). However, if a
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defendant could have argued to the district court that he was deprived of his
Sixth Amendment rights but failed to do so, we review the claim for plain error
only. See Burton v. United States, 237 F.3d 490, 501 (5th Cir. 2000). Here,
neither Portillo nor his counsel argued to the district court that he was
deprived of his Sixth Amendment rights during his initial appearance. To
establish plain error, a defendant must show a clear or obvious error that
affected his substantial rights. See United States v. Olano, 507 U.S. 725, 734–
35 (1993). If a defendant meets that standard, the court “should exercise its
discretion to correct the forfeited error if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1905 (2018) (internal quotation marks and
citation omitted).
ii. Analysis
“In all criminal prosecutions, the accused shall . . . have the Assistance
of Counsel for his defense.” U.S. CONST. amend. VI. “The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a defendant has the
assistance necessary to justify reliance on the outcome of the proceeding.”
United States v. Pleitez, 876 F.3d 150, 157 (5th Cir. 2017) (quoting Strickland
v. Washington, 466 U.S. 668, 691–92 (1984)). The Supreme Court has
explained that the right protected by the Sixth Amendment “is limited by its
terms: ‘it does not attach until a prosecution is commenced.’” Rothgery v.
Gillespie County, 554 U.S. 191, 198 (2008) (quoting McNeil v. Wisconsin, 501
U.S. 171, 175 (1991)). A prosecution commences with “the initiation of
adversary judicial criminal proceedings—whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.” Id. (quoting
United States v. Gouveia, 467 U.S. 180, 188 (1984)).
In Rothgery, the Supreme Court held that the Sixth Amendment right to
counsel attached at the time of a defendant’s “initial appearance before a
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judicial officer.” Id. at 199. As in Portillo’s case, the initial appearance in
Rothgery involved a formal notification of “the charge in the complaint, . . .
various rights in further proceedings,” and a determination of “the conditions
for pretrial release.” Id. (citing 1 W. LaFave, J. Israel, N. King, & O. Kerr,
Criminal Procedure § 1.4(g), p.135 (3d ed. 2007)). Portillo correctly relies on
Rothgery for his assertion that his Sixth Amendment right to counsel attached
during this hearing. See id.; Kirby v. Illinois, 406 U.S. 682, 689 (1972).
Though Portillo’s Sixth Amendment rights had attached by the time of
his initial appearance, he was not necessarily entitled to a lawyer during the
proceeding. Whether Sixth Amendment rights have attached is a separate
inquiry from whether “counsel must be present at a postattachment
proceeding.” Rothgery, 544 U.S. at 211 (emphasis added); see also Michigan v.
Jackson, 475 U.S. 625, 629 n.3 (1986), overruled on other grounds by Montejo
v. Louisiana, 566 U.S. 778 (2009). After attachment occurs, a defendant “is
entitled to the presence of appointed counsel during any ‘critical stage’ of the
postattachment proceedings.” Rothgery, 554 U.S. at 212.
“Neither the Supreme Court nor the Fifth Circuit have [sic] delineated
all of the critical stages at which a defendant is entitled to the presence of
counsel under the Sixth Amendment.” Pleitez, 876 F.3d at 157. However, both
courts have identified some general characteristics that help to determine
whether a proceeding gives rise to a Sixth Amendment right to counsel. A
critical stage is a “trial-like confrontation[] at which counsel would help the
accused in coping with legal problems or meeting his adversary.” Rothgery, 554
U.S. at 212 n.16 (cleaned up). During a critical stage, “the results of the
confrontation might well settle the accused’s fate and reduce the trial . . . to a
mere formality.” Gouveia, 467 U.S. at 189 (citation omitted). We have
explained that “[a] stage is . . . ‘critical’ where circumstances indicate that
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counsel’s presence is necessary to ensure a fair process.” Pleitez, 876 F.3d at
157–58.
Portillo’s initial appearance bears none of the markings of a critical
stage. During the hearing, the magistrate judge briefly recited the facts of the
indictment, the maximum penalties Portillo faced, and the government’s intent
to detain him without bond pending trial. The magistrate repeatedly warned
Portillo not to “talk about the facts” of his case and confirmed that Portillo
intended to hire his own attorney. Portillo was not forced to make any
potentially incriminating statements that could jeopardize his defense, and he
was not asked to make strategic decisions about his case. In short, Portillo’s
initial hearing did not pose the kind of difficult circumstances that “require[]
aid in coping with legal problems or assistance in meeting [a defendant’s]
adversary.” McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011) (citation
omitted).
We therefore hold that Portillo was not deprived of his Sixth Amendment
rights during his initial appearance. See United States v. Dohm, 597 F.2d 535,
543 (5th Cir. 1979) (“The Constitution does not require that an accused have
an attorney with him at his initial appearance before a magistrate.”), vacated
in irrelevant part by United States v. Dohm, 618 F.2d 1169, 1175 (5th Cir.
1980); United States v. Lopez, 426 F. App’x 260 (5th Cir. 2011); see also United
States v. Mendoza-Cecelia, 963 F.2d 1467, 1473–74 (11th Cir. 1992) (holding
that an initial appearance is not a critical stage because it serves a largely
administrative function), abrogated on other grounds as recognized by United
States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004).
B. Anonymous Jury
Both defendants appeal the district court’s decision to empanel an
anonymous jury and impose a variety of safety measures. The court’s order (1)
prohibited jurors from revealing “their names, addresses, or places of
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employment to the parties”; (2) required all jurors to be “kept together during
recesses” and accompanied by the United States Marshals Service during
lunch; and (3) ordered the United States Marshals to provide off-site parking
and transportation for jurors to and from the courthouse.
i. Standard of Review
A district court’s decision to empanel an anonymous jury is reviewed for
an abuse of discretion. See United States v. Krout, 66 F.3d 1420, 1426 (5th Cir.
1995). The district court must “base its decision on more than mere allegations
or inferences of potential risk.” Id. at 1427. In reviewing the district court’s
decision, the appeals court may refer to evidence elicited at trial, in addition to
evidence presented before trial. Id. “[T]he use of anonymous juries will be
upheld where evidence at trial supports the conclusion that anonymity was
warranted.” Id.
ii. Analysis
Empaneling an anonymous jury “is a drastic measure[] which should be
undertaken only in limited and carefully delineated circumstances.” Id. “[T]his
court [has] approved the use of anonymous juries only ‘when needed to ensure
against a serious threat to juror safety.’” United States v. Sanchez, 74 F.3d 562,
564 (5th Cir. 1996) (quoting Krout, 66 F.3d at 1427).
In Krout, we identified a set of factors that “may justify jury protection
by anonymity.” 66 F.3d at 1427. These include:
(1) the defendants’ involvement in organized crime; (2) the
defendants’ participation in a group with the capacity to harm
jurors; (3) the defendants’ past attempts to interfere with the
judicial process or witnesses; (4) the potential that, if convicted,
the defendants will suffer a lengthy incarceration and substantial
monetary penalties; and, (5) extensive publicity that could
enhance the possibility that jurors’ names would become public
and expose them to intimidation and harassment.
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Id. (citing cases). In evaluating whether the district court abused its discretion
in empaneling an anonymous jury, we look to the “totality of the
circumstances.” United States v. Branch, 91 F.3d 699, 724 (5th Cir. 1996)
(citation omitted). Certain factors—such as “evidence that the defendant has
in the past or intends in the future to tamper with the jury”—may be sufficient
on their own to warrant an anonymous jury. Id.; see also Krout, 66 F.3d at 1427
n.7 (observing that “[a] lesser showing” on some factors “might be adequate
where specific evidence exists linking the defendant to organized crime”);
United States v. Herrera, 466 F. App’x 409, 424 (5th Cir. 2012) (affirming use
of an anonymous jury even where there was no evidence on the third Krout
factor).
Here, all of the Krout factors support the district court’s decision to
impose jury safety measures. First, the indictment charged both defendants
with serving at the highest levels of an organized criminal group,
demonstrating that their involvement in organized crime was “both deeply
rooted and far-reaching.” The allegations about the Bandidos closely resemble
allegations about the Texas Mexican Mafia, the criminal group that was
prosecuted in Krout. See 66 F.3d at 1427–28. Like the Texas Mexican Mafia,
the Bandidos self-identify as “outlaws,” and the evidence at trial established
the highly structured nature of the organization, which frequently resorted to
violence to assure its power in Texas motorcycle society.
The district court likewise did not abuse its discretion in concluding that
the Bandidos had the capacity to harm jurors and had previously attempted to
interfere with the judicial process and intimidate witnesses. At trial, the
government introduced evidence that the Bandidos “instill a climate of fear of
reprisal” for witnesses who cooperate with law enforcement. The culture of the
Bandidos—including the “Expect No Mercy” patch and the group’s history of
encouraging violence against outsiders like Robert Lara and Anthony
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Benesh—further underscored the potential danger to jurors. See United States
v. Riggio, 70 F.3d 336, 340 n.22 (5th Cir. 1995) (holding that a history of
witness threats provided a “reasonable basis to conclude that similar threats
and attempts at intimidation were likely to be made to the jurors if their
identities were known”).
The fourth Krout factor—the potential that the defendants would face
lengthy sentences and large monetary penalties if convicted—was easily met
here. Six of the charges against the defendants carried maximum life
sentences.
Finally, the district court did not abuse its discretion in concluding that
there was a risk of significant media attention associated with this case. At the
time of the district court’s order, the case had already received considerable
press coverage. And as the government points out, that publicity continued
throughout trial. See, e.g., United States v. Edwards, 303 F.3d 606, 614 (5th
Cir. 2002) (citing “the intense media interest and highly charged emotional and
political fervor that surrounded the trial” as a basis for anonymity protections);
Branch, 91 F.3d at 724 (approving the use of anonymous jury where there was
an “enormous amount of world-wide media attention generated by the case”
and the trial “aroused deep passions” (cleaned up)).
In addition, the district court took care to provide a “neutral explanation”
for the anonymity procedures, thus minimizing the risk of potential prejudice.
See, e.g., Krout, 66 F.3d at 1426 n.5; Am. Jur. 2d Jury § 184 (explaining the
need to “giv[e] jurors a plausible and nonprejudicial reason for not disclosing
their identities”). The court explained that the measures were “routine” and
intended to ensure jurors’ privacy. We have observed that similar explanations
reduce the risk of prejudice to defendants. See Riggio, 70 F.3d at 340 n.23; see
also United States v. Ross, 33 F.3d 1507, 1521 (11th Cir. 1994) (holding that
the court’s “careful instruction” about the need for the protections “eviscerated
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any possible inference of Appellant’s guilt arising from the use of an
anonymous jury”). Likewise, the court required jurors to complete a
supplemental questionnaire and allowed additional voir dire questioning,
ensuring that the defendants “had access to a sufficient amount of information
concerning each of the prospective jurors.” Herrera, 466 F. App’x at 424; see
also Branch, 91 F.3d at 724 (noting that “there is no showing that refusing to
release the names and addresses of the jury prejudiced the defendants’ ability
to select an impartial jury”).
For the same reasons, the security measures ordered by the court were
not an abuse of discretion. In similar contexts, we have approved identical
precautions, including driving jurors to and from the courthouse, and we have
evaluated these measures using the same Krout factors identified above. See
Herrera, 466 F. App’x at 424 (affirming the use of “off-site parking and
transportation to-and-from the courthouse for the jury members”); see also
Ross, 33 F.3d at 1519 (affirming district court order requiring jurors to “meet
each morning in a central location to which federal marshals would return
them at the close of the court day”). We therefore hold that the district court
did not abuse its discretion in empaneling an anonymous jury and imposing
security measures to protect the jury.
C. Sufficiency of the Evidence
Pike argues that there was insufficient evidence presented at trial to
support his conviction. Because Pike preserved his challenge by moving for
acquittal under Federal Rule of Criminal Procedure 29, we review his claim de
novo. United States v. Oti, 872 F.3d 678, 686 (5th Cir. 2017). This review is
“highly deferential to the verdict.” Id. (quoting United States v. Cannon, 750
F.3d 492, 506 (5th Cir. 2014)). An appellate court “must affirm a conviction if,
after viewing the evidence and all reasonable inferences in the light most
favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.” United States v.
Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
i. Count Three
Count Three charged Pike with aiding and abetting Anthony Benesh’s
murder in support of a racketeering enterprise, a crime under the Violent
Crimes in Aid of Racketeering (“VICAR”) Act. 18 U.S.C. §§ 1959(a)(1), 2. In
order to establish a violation of this statute, the government must prove: “(1)
an enterprise engaged in racketeering; (2) the activities affected interstate
commerce; (3) a murder; and (4) the murder was committed for payment by the
enterprise or for the purpose of gaining entrance to or maintaining or
increasing position in an enterprise.” United States v. Owens, 724 F. App’x 289,
296 (5th Cir. 2018) (cleaned up); see also United States v. Velasquez, 881 F.3d
314, 332 (5th Cir. 2018).1
“Proof that a defendant was merely associated with a criminal, or that
[he] was present at the scene of a crime is not, without more, sufficient to
sustain a conviction for aiding and abetting a criminal venture.” United States
v. Longoria, 569 F.2d 422, 425 (5th Cir. 1978). “[A] person is liable . . . for aiding
and abetting a crime if (and only if) he (1) takes an affirmative step in
furtherance of that offense, (2) with the intent of facilitating the offense’s
commission.” Rosemond v. United States, 572 U.S. 65, 71 (2014).
There was sufficient evidence presented at trial for the jury to find Pike
guilty of Count Three. Johnny Romo testified that Portillo told him Benesh and
Burford were riding their motorcycles in Austin, and that an order had come
1Pike primarily argues that the government did not establish that he was personally
involved in Benesh’s murder. However, he also makes a cursory argument that the evidence
did not prove that he was involved in a racketeering enterprise, and he argues in his
challenge to Count Twelve that the Bandidos’ activities did not affect interstate commerce.
As we explain below, we find the evidence sufficient to establish these other elements of the
charges against Pike.
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directly from Pike to “take them out.” Johnny testified that he interpreted the
phrase “take out” to mean “to kill him, murder, to get rid of him.” Though Pike
argues that this term could have referred to a violent act other than murder,
it was within the province of the jury to interpret the meaning of the term and
to conclude that Pike directed the brothers to kill Benesh. See, e.g., United
States v. Jones, 839 F.2d 1041, 1048 (5th Cir. 1988) (“The jury was entitled to
interpret [the defendant’s] words as evidence of conspiracy.”). Robbie Romo,
Johnny’s brother, also testified that his brother told him that Pike was the
person who “wanted this Hell’s Angel killed.”
The government also introduced substantial circumstantial evidence
regarding Pike’s role in the organization and the responsibilities of the
Bandidos President. Portillo was recorded explaining that he “don’t make no
majors without [Pike] knowing about it.” Referring to another incident, Portillo
was recorded explaining that it would be “the end of me” if I “try to do that
without Jeff’s permission.” Justin Forster, another Bandidos member, testified
that “[a]ny significant decision making . . . falls on [the President].” There was
also evidence introduced at trial demonstrating that Pike expressed support
for Benesh’s murder after it occurred, including by personally approving the
creation of the “Fat Mexican Crew.” See Owens, 724 F. App’x at 296 (explaining
that the murder must be committed “for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise” (citation omitted)).
Collectively, this evidence was sufficient for a rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. See United States
v. Dovalina, 262 F.3d 472, 475 (5th Cir. 2001) (“Direct evidence of intent is not
necessary to support a defendant’s conviction.”).
ii. Count One
Count One charged Pike with a RICO conspiracy. To establish liability
under the RICO Act, the government must prove “(1) that two or more people
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agreed to commit a substantive RICO offense and (2) that the defendant knew
of and agreed to the overall objective of the RICO offense.” United States v.
Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998).
With respect to the first prong, there was sufficient evidence introduced
at trial to show that Pike and other Bandidos members agreed to engage in a
pattern of racketeering activity. 18 U.S.C. § 1962(c). Racketeering is defined in
the Act to include a number of offenses relevant here, including “murder,
robbery, . . . extortion, . . . or dealing in a controlled substance.” § 1961(1). A
pattern of racketeering activity is defined to include “at least two acts of
racketeering activity.” § 1961(5). There was ample evidence demonstrating
that Pike made an agreement with other Bandidos to support these activities.
This includes Romo’s statement regarding Pike’s order to murder Benesh and
Justin Forster’s testimony regarding Pike’s knowledge of, and support for, the
group’s rivalry with the Cossacks. There was also substantial evidence
introduced at trial showing that other Bandidos members met to discuss their
agreement to commit murder, deal drugs, and engage in other related activities
on behalf of the club. Even if Pike was not himself a party to these meetings,
he can still be held liable if there is evidence that he “knowingly and willfully
participated in the agreement.” Smith v. United States, 568 U.S. 106, 110
(2013); see also United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005) (en
banc); Posada-Rios, 158 F.3d at 857. These activities fit within the definition
of racketeering because they were intended to assure the supremacy of the
Bandidos through murder, extortion, and drug dealing. See, e.g., United States
v. Henley, 766 F.3d 893, 907–08 (8th Cir. 2014) (concluding that there was
sufficient evidence of “racketeering activity” where “all of the predicate acts
shared a similar purpose of asserting the dominance of the [group] and
punishing those who committed real or perceived transgressions against the
club or its members”).
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The evidence was also sufficient to establish that Pike knew of and
agreed to the objectives of the RICO offense. The government introduced
specific evidence establishing Pike’s involvement in the Bandidos’ criminal
activities, including Johnny’s statement about Pike’s ordering Benesh’s
murder and Pike’s endorsement of the war with the Cossacks. See Owens, 724
F. App’x at 296–97 (upholding a RICO conspiracy conviction where there was
evidence of the defendant’s “leadership role” in a criminal enterprise and his
“involvement in” criminal acts committed by the group). There is also evidence
in the record establishing that Pike ordered an “ass kicking” for Hell’s Angels
members in Connecticut who were causing conflict with the Bandidos. And, as
the government points out, Pike’s role as President placed him at the top of the
Bandidos organizational chart, which provided powerful circumstantial
evidence of his oversight of major decisions and activities taken by the group.
We have explained that evidence of this kind is often relevant and highly
probative in the context of a conspiracy charge. See Posada-Rios, 158 F.3d at
857–58. Although Pike identifies contrary evidence in the record suggesting
that he wanted to clean up the Bandidos’ image, this evidence does not refute
the persuasive evidence of guilt. See, e.g., United States v. Millsaps, 157 F.3d
989, 994 (5th Cir. 1998) (observing that it is the “responsibility of the trier of
fact fairly to resolve conflicts in testimony.” (citation omitted)).
iii. Count Nine
Count Nine charged Pike with aiding and abetting the discharge of a
firearm in furtherance of Benesh’s murder. 18 U.S.C. §§ 924(j)(1), 2. The jury
was instructed that it could find Pike guilty of this count on a Pinkerton theory
of liability. See Pinkerton v. United States, 328 U.S. 640, 645–48 (1946). Under
Pinkerton, Pike could be found guilty as long as the use of the firearm was both
reasonably foreseeable and in furtherance of the conspiracy. Id.; see also
United States v. Dean, 59 F.3d 1479, 1490 (5th Cir. 1995) (upholding § 924(c)(1)
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conviction under a Pinkerton theory of liability where there was no evidence
that the defendants were aware that their co-conspirator was armed before he
committed the crime).
As explained above, the evidence was sufficient for the jury to find Pike
guilty of a RICO conspiracy. Because the evidence also supports the conclusion
that Benesh was murdered as a punishment for a “real or perceived
transgression[] against the club or its members,” Henley, 766 F.3d at 907–08,
the evidence was sufficient to find that Benesh was murdered in furtherance
of the conspiracy. Finally, it was reasonably foreseeable that a firearm would
be used to murder Benesh. See United States v. Wilson, 105 F.3d 219, 221 (5th
Cir. 1997) (holding that a defendant can be held liable under Pinkerton
“regardless of whether he had knowledge of or participated in the substantive
acts”). As a result, there was sufficient evidence to support Pike’s conviction on
Count Nine.
iv. Counts Four through Seven
Counts Four through Seven charged Pike with VICAR offenses related
to the Bandidos’ rivalry with the Cossacks. See 18 U.S.C. §§ 1959(a)(3), (5), (6),
2. Pike was found guilty of conspiring to commit murder and assault with a
deadly weapon against Cossacks members in aid of racketeering (Counts Four
and Five), aiding and abetting the Bandidos’ assault of a Cossack in Palo Pinto
County (Count Six), and aiding and abetting the assault of another Cossack in
August 2015 in Port Aransas (Count Seven).
With respect to Counts Four and Five, there was sufficient evidence
introduced at trial to show that Pike was aware of the Bandidos’ disagreements
with the Cossacks and that he endorsed the group’s plans to address the
problem through violence. See Salinas v. United States, 522 U.S. 52, 63 (1997)
(“A conspiracy may exist even if a conspirator does not agree to commit or
facilitate each and every part of the substantive offense.”). When Portillo
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explained that he wanted to “turn up the heat” on the Cossacks, Pike
reportedly said “whatever y’all do, y’all be careful.” In the same conversation,
Pike agreed to “turn his back” on the Bandidos’ future retaliatory actions. And
in another conversation, Portillo explained that Pike told him to “play ball” and
“batter up motherfucker” when discussing the group’s plans for addressing the
problem with the Cossacks in Crystal City. The government also introduced
evidence of assaults and murders against Cossack members throughout Texas,
including the murder of a Cossack associate during the altercation in Fort
Worth and violent assaults in Port Aransas and Palo Pinto County. This
evidence was sufficient to convict Pike even if there is no evidence that Pike
agreed to the specific acts of the conspiracy. See id.; Velasquez, 881 F.3d at 332.
Evidence presented at trial supported the conclusion that Pike made all major
decisions for the group and therefore participated in the conspiracy. See United
States v. Salvatore, 110 F.3d 1131, 1137 (5th Cir. 1997), abrogated on other
grounds by Cleveland v. United States, 531 U.S. 12 (2000).
Likewise, the evidence was sufficient to find Pike guilty on Counts Six
and Seven. The specific instances of violence in Palo Pinto County and Port
Aransas were both reasonably foreseeable and in furtherance of the conspiracy.
See Pinkerton, 328 U.S. at 645–48. These acts of violence were intended to
punish the Cossacks for their perceived transgressions against the group. See
Henley, 766 F.3d at 907–08. As a result, these acts were “the very essence of,
and thus a reasonably foreseeable part of,” the conspiracy. United States v.
Maceo, 947 F.2d 1191, 1198 (5th Cir. 1991).
v. Count Twelve
Finally, Count Twelve charged Pike with conspiring to interfere with
interstate commerce by extortion or robbery, a violation of the Hobbs Act, 18
U.S.C. § 1951. To establish liability under this statute, the government need
only show that interstate commerce was affected “in any way or degree.” Id.
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The government introduced evidence at trial showing that Pike authorized a
plan for Bandidos to travel from Texas to New Mexico to violently confiscate
patches from members who were challenging his authority. Justin Forster
testified that Pike told him to “handle the problem” caused by these members.
Forster traveled with a few other Bandidos members to New Mexico, where
they “started beating everybody up” who refused to say that Pike was their
President. Forster testified that he forcefully confiscated sixteen patches from
defiant New Mexico Bandidos members, and they burned the majority of the
patches and paraphernalia. Even if the patches belonged to the Bandidos and
not to the disobedient individual members, this evidence was sufficient to
convict Pike. See United States v. Sturman, 49 F.3d 1275, 1284 (7th Cir. 1995)
(“One may be found guilty of extortion even for obtaining one’s own property.”);
Lucas Martin, Extortion, Blackmail, and Threats, 31A Am. Jur. 2d Extortion,
Blackmail, etc. § 96 (2020) (“A defendant’s claim of right to property is
irrelevant in an extortion case.”).
We therefore hold that the evidence was sufficient to support Pike’s
conviction on all counts.
D. Evidentiary Rulings
The defendants challenge several of the district court’s evidentiary
rulings, arguing that the district court improperly admitted certain evidence
and that the errors affected their substantial rights.
Where a defendant preserved his objection to the admissibility of the
evidence, we review the district court’s rulings for an abuse of discretion.
United States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999). “A district court
abuses its discretion if it bases its decision on an error of law or a clearly
erroneous assessment of the evidence.” United States v. Insaulgarat, 378 F.3d
456, 464 (5th Cir. 2004). In criminal cases, the court’s “review of evidentiary
rulings . . . is necessarily heightened,” and the court should ensure that the
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evidence is “strictly relevant to the particular offense charged.” United States
v. Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991) (citation omitted).
Where the defendant did not object to the admissibility of the evidence
at trial, we review the claim for plain error only. United States v. Bilbo, 19 F.3d
912, 916 (5th Cir. 1994). “We find plain error when: (1) there was an error; (2)
the error was clear and obvious; and (3) the error affected the defendant’s
substantial rights.” United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005).
If these elements are met, the court “should exercise its discretion to correct
the forfeited error if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Rosales-Mireles, 138 S. Ct. at 1905
(internal quotation marks and citation omitted).
i. Agent Schuster’s Expert Testimony
Over the defendants’ objections, the district court granted the
government’s motion to introduce expert testimony from Special Agent Scott
Schuster. The court explained that Schuster had taken time to develop his
understanding of the Bandidos through years of investigation and
conversations with insiders and outsiders, demonstrating that his
understanding of the group was “far above that of the general public.” Before
bringing the jury back to the courtroom, however, the court placed limitations
on Schuster’s testimony. The court warned the government that Schuster
would not be “allowed to give any direct opinion about the guilt or innocence .
. . of any defendant in this case.” If Schuster veered across that line, the court
warned the government that there would be grounds to declare a mistrial. At
trial, Schuster testified about the organizational structure of the Bandidos and
the roles of each national officer. After the verdict was announced, the
defendants moved for a new trial on the basis of Schuster’s testimony, and the
district court denied the motion.
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Pike and Portillo both argue that the district court abused its discretion
in admitting expert testimony from Schuster. They argue that (1) Schuster was
not qualified to testify as an expert; (2) Schuster impermissibly restated
inadmissible hearsay; and (3) Schuster violated Federal Rule of Evidence
704(b) by testifying to the specific mental state of the defendants.
First, the district court did not abuse its discretion when it held that
Schuster was qualified to testify as an expert. Under Federal Rule of Evidence
702, a witness “who is qualified as an expert by knowledge, skill, experience,
training, or education” may testify as long as (1) his “scientific, technical, or
other specialized knowledge . . . will help the trier of fact to understand the
evidence or to determine a fact in issue”; (2) “the testimony is based upon
sufficient facts or data”; (3) “the testimony is the product of reliable principles
and methods”; and (4) “he has reliably applied the principles and methods to
the facts of the case.” During voir dire, Schuster explained that he developed
his knowledge of the Bandidos over twelve years as an FBI special agent,
including eight years working on a task force investigating gangs and at least
five years investigating the Bandidos in particular. His knowledge was based
on interviews with current and former Bandidos members, document review,
and collaboration with confidential informants.
We have previously approved the qualifications of experts who use their
investigative training to testify about organized criminal enterprises like the
Bandidos. In United States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995),
we affirmed the qualifications of two government agents who testified as
experts about “the significance of certain conduct or methods of operation
unique to the drug distribution business.” Other circuits have similarly
affirmed the qualifications of experts who use their law enforcement training
to gain an understanding of insular criminal groups. See, e.g., United States v.
Rios, 830 F.3d 403, 413 (6th Cir. 2016); United States v. Mejia, 545 F.3d 179,
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194 (2d Cir. 2008). These cases clarify that a law enforcement expert does not
need “scientific” knowledge in order to be qualified as an expert; instead, “other
types of specialized knowledge,” including an investigative background, are
often far more applicable in the context of a criminal organization. Rios, 830
F.3d at 413. Schuster’s knowledge about the Bandidos was informed by years
of on-the-ground investigative training. This training made Schuster’s
testimony reliable and sufficiently supported to be admissible at trial. See id.
at 414; United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000).
Likewise, the district court did not abuse its discretion in concluding that
Schuster’s testimony would be helpful to the jury. In Washington, we held that
the testimony of an “experienced narcotics agent” regarding “the significance
of certain conduct or methods of operation unique to the drug distribution
business” would be “helpful in assisting the trier of fact understand the
evidence.” 44 F.3d at 1283. Schuster’s law enforcement expertise allowed him
to “impart[] evidence regarding the inner-workings of organized crime, which
has been held to be a proper subject of expert opinion.” Rios, 830 F.3d at 413
(cleaned up). Other courts have similarly allowed law enforcement experts to
testify about the structure of a criminal enterprise, including an insular
group’s insignia, history, culture, and organizational hierarchy. See id. at 413–
14 (observing that “an FBI agent in a case about organized crime may properly
give expert testimony on the structure, organization, and the rules of the
organized-crime entity” (cleaned up)); United States v. Kamahele, 748 F.3d 984,
998 (10th Cir. 2014); United States v. Van Dorn, 925 F.2d 1331, 1338–39 (11th
Cir. 1991).
Pike argues that Schuster impermissibly testified about easily verified
facts—an area courts have declared off-limits for expert witnesses. See Mejia,
545 F.3d at 190 (“An increasingly thinning line separates the legitimate use of
an officer expert to . . . explicate an organization’s hierarchical structure from
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the illegitimate and impermissible substitution of expert opinion for factual
evidence.”); see also United States v. Haines, 803 F.3d 713, 731 (5th Cir. 2015)
(observing that the “aura of special reliability” given to experts creates a risk
that the jury might place “undue weight” on the expert’s testimony based on
the “perception that the officer was privy to facts not presented at trial”
(citation omitted)). Pike notes that Schuster testified about specific historical
crimes committed by Bandidos, and argues that this testimony was fact-
specific and not helpful to the jury. As the government argues, however,
Schuster did not speak about “purely factual matters establishing the elements
of the charged crime.” See Mejia, 545 F.3d at 194–96 (holding that certain
expert testimony about the defendant’s alleged crimes was unhelpful because
it was “well within the grasp of the average juror”). Moreover, Schuster was
not the case agent who investigated Pike and Portillo, thus minimizing any
prejudice potentially caused by his testimony. See Haines, 803 F.3d at 730–31;
United States v. Sykes, 277 F. App’x 397, 398 (5th Cir. 2008) (dismissing claim
that expert erroneously testified as both an expert and fact witness where
there was no evidence that the “theoretical concerns” about a witness’s dual
roles prejudiced the defendants).
Second, Schuster did not impermissibly reveal hearsay during the course
of his testimony. Under Federal Rule of Evidence 703, an expert can base his
opinion on otherwise inadmissible facts and data, including hearsay, as long
as these sources are “reasonably rel[ied] on” by experts in the field. Here,
Schuster’s reliance on hearsay evidence, including statements made by
Bandidos members in interviews and intercepted phone calls, is “consistent
with the ordinary practices of law enforcement officers, who routinely and
reasonably rely upon hearsay in reaching their conclusions.” Mejia, 545 F.3d
at 197 (cleaned up). Schuster used his expertise to synthesize “various source
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materials,” rather than simply regurgitating information he learned from
those sources. See id.
For the same reason, Portillo’s Confrontation Clause argument also fails.
Portillo did not object to Schuster’s testimony on this basis, so we review this
claim for plain error only. Portillo does not identify any “testimonial
statements within the meaning of Crawford v. Washington, [541 U.S. 36
(2004),] or any impermissible hearsay at all, relayed by [Schuster’s]
testimony.” United States v. Akins, 746 F.3d 590, 603 (5th Cir. 2014). As long
as an expert forms his opinion by “amalgamating . . . potentially testimonial
statements,” his testimony does not violate the Confrontation Clause. Rios, 830
F.3d at 418 (emphasis added); see also Akins, 746 F.3d at 603.
Finally, the defendants argue that Schuster’s testimony impermissibly
opined on their mental states. Under Federal Rule of Evidence 704(b), an
expert witness in a criminal case “must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense.” We have interpreted Rule 704(b)
narrowly, explaining that it only prohibits statements that “directly opine[] on
the ultimate issue of [a defendant’s] mental state.” United States v. Dvorin, 817
F.3d 438, 448 (5th Cir. 2016) (emphasis added); see also United States v. Speer,
30 F.3d 605, 610 (5th Cir. 1994) (“Rule 704(b) is not strictly construed and
prohibits only a direct statement of the defendant’s intent.”); 29 Charles Alan
Wright & Victor James Gold, Federal Practice & Procedure § 6285, at 395
(1997) (“Rule 704(b) usually bars only a direct statement that defendant did or
did not have the required mental state.”).
Pike argues that Schuster violated Rule 704(b) when he testified about
the typical characteristics of the Bandidos President. According to Pike, this
testimony was impermissible because it communicated the opinion that Pike
“must have known of and participated in the charged offenses.” He relies upon
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our opinion in United States v. Gutierrez-Farias, 294 F.3d 657, 663 (5th Cir.
2002), where we held that a district court abused its discretion when it
permitted expert testimony about the knowledge typically possessed by drug
couriers. We explained that this testimony crossed the “borderline long
recognized . . . between a mere explanation of the expert’s analysis of the facts
and a forbidden opinion on the ultimate legal issue in the case.” Id. (cleaned
up). Pike argues that Schuster’s testimony veered across this line because it
suggested that Pike, as President of the Bandidos, necessarily had knowledge
of the activities of all of the club’s members. However, he fails to identify any
testimony from Schuster that “directly opined on the ultimate issue” of Pike’s
mental state. Dvorin, 817 F.3d at 448. In a similar context, we have held that
expert testimony about the typical mental state shared by individuals in a
specific criminal role does not violate the Rule 704(b) bar. See United States v.
Morin, 627 F.3d 985, 996 (5th Cir. 2010).
Even if it was an abuse of discretion for the district court to admit this
or any other part of Schuster’s testimony, any error was harmless. Under the
harmless error doctrine, “judgment will be affirmed . . . unless the error
affected a substantial right of the defendant.” United States v. Valencia, 600
F.3d 389, 423 (5th Cir. 2010). “An error affects substantial rights if there is a
reasonable probability that the improperly admitted evidence contributed to
the conviction.” United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). The
government bears the burden of establishing that the erroneous admission of
evidence was harmless beyond a reasonable doubt. United States v. Ebron, 683
F.3d 105, 131 (5th Cir. 2012). An “error is harmless if, in light of the whole
record, the contested evidence did not contribute to the verdict.” United States
v. Dixon, 185 F.3d 393, 398 (5th Cir. 1999).
Here, several other witnesses independently confirmed many statements
made by Schuster about the authority of the President, the history of the
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Bandidos, and the group’s organizational structure and operations. We have
explained that an error can be harmless when the improperly admitted
evidence merely duplicates other evidence in the record. See Akins, 746 F.3d
at 600 (“To the extent that certain portions of [the expert’s] testimony at times
crossed the line . . . it was cumulative of other testimony and therefore
harmless.”); United States v. El-Mezain, 664 F.3d 467, 513 (5th Cir. 2011);
Krout, 66 F.3d at 1433. Likewise, any erroneously admitted testimony
“constituted only a small portion of an otherwise strong case.” Gutierrez-
Farias, 294 F.3d at 663. The government introduced substantial evidence of
guilt, further supporting the conclusion that any error was harmless. See
Washington, 44 F.3d at 1283 (holding that an error is harmless if there is
“overwhelming evidence establishing [the defendant’s] guilt”). Against this
backdrop, any errors in the admission of Schuster’s testimony did not impact
the defendants’ substantial rights, and we therefore affirm.
ii. Prior Consistent Statements
The defendants argue that the district court erred when it admitted
three prior consistent statements during the trial. Pike and Portillo both argue
that the district court erred when it admitted: (1) Johnny Romo’s statement to
law enforcement after he was arrested for the murder of Anthony Benesh, and
(2) Robbie Romo’s confession to law enforcement after he was implicated by his
brother in Benesh’s murder. Separately, Portillo argues that the district court
erred when it admitted a confession Richard Merla gave to law enforcement
after he was arrested for the murder of Robert Lara.
a. Romo Brothers’ Statements
After he was arrested on federal narcotics charges in 2014, Johnny Romo
began cooperating with federal authorities. The government later learned that
Johnny and his brother Robbie were responsible for the murder of Anthony
Benesh, and they arrested Johnny on murder charges in March 2017. Johnny
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gave a lengthy statement confessing to his involvement in the murder and
implicating his brother as the shooter. The government later recorded a
conversation between Johnny and Robbie during which Johnny encouraged
Robbie to cooperate with the government. Immediately after that conversation,
Robbie confessed to his role as the shooter.
Both of the Romo brothers testified at trial. During direct examination,
they each implicated Pike and Portillo in Benesh’s murder. On cross
examination, the defendants cast doubt upon the reliability of the Romos’
testimony, suggesting that the brothers were fabricating their stories in order
to receive a benefit from the government.
Appellants point to no improper use by the government of the Romo
brothers’ prior consistent statements during direct examination. However,
during cross-examination, both defendants asked the brothers about their
confessions to law enforcement. During Portillo’s cross of Johnny, Johnny
admitted that he provided information about Portillo’s involvement in the
murder only after he communicated with Robbie. Pike’s counsel also used
portions of Johnny’s conversation with the authorities during his cross
examination, suggesting that Johnny had previously told the authorities that
he did not intend to murder Benesh and only wanted to beat him up. During
their cross of Robbie, the defendants used portions of Robbie’s recorded
confession to argue that Robbie had previously told law enforcement that he
did not go to Austin with the intent to kill Benesh, casting doubt on the
consistency of his story.
After Johnny testified, the district court granted the government’s
request to introduce Johnny’s confession. The court held that this recorded
statement was admissible as a prior consistent statement under Federal Rule
of Evidence 801(d)(1)(B). The government introduced the video recording and
the transcript of Johnny’s conversation with the agents during its direct
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examination of Chad Lloyd, one of the agents involved in the investigation of
the Benesh murder.
Later, the court addressed the admissibility of Robbie’s statement and
also found that it was admissible as a prior consistent statement. The
statement was introduced during the government’s direct examination of Jeb
Killian, another federal agent involved in the investigation.
b. Richard Merla’s Statement
Two years after Robert Lara was shot and killed in retaliation for killing
a Bandidos member, Richard Merla was arrested for killing another man.
While he was in jail, Merla confessed to killing Lara in 2002 and implicated
Portillo in Lara’s murder. On cross-examination, Portillo’s counsel attacked
Merla’s credibility, suggesting that he implicated Portillo only because he was
angry at him for expelling him from the Bandidos. Portillo also suggested that
Merla’s memory was unreliable and that there were inconsistencies between
his in-court testimony and his prison confession. During the government’s re-
direct of Merla, the court allowed the government to introduce Merla’s
confession as a prior consistent statement. In his one-page confession, Merla
stated that “[t]he murder of Robert Lara was planned and executed by Chapter
President John Portillo of the Southwest Chapter of Bandidos.”
c. Analysis
The government argues that all three statements were admissible under
Federal Rule of Evidence 801(d)(1)(B) or under Federal Rule of Evidence 106.
Federal Rule of Evidence 801(d)(1)(B) provides that a declarant-
witness’s prior consistent statement is not hearsay if “[t]he declarant testifies
and is subject to cross-examination about a prior statement,” and the prior
statement is offered for one of two reasons: “(i) to rebut an express or implied
charge that the declarant recently fabricated [his testimony] or acted from a
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recent improper influence or motive in so testifying; or (ii) to rehabilitate the
declarant’s credibility as a witness when attacked on another ground.”
First, the government argues that the Romo brothers’ statements were
admissible under 801(d)(1)(B)(i) to “rebut the implication that the Romo
brothers . . . had fabricated their testimony in the hopes of receiving a lower
sentence under the terms of their plea agreements.” In Tome v. United States,
513 U.S. 150 (1995), the Supreme Court explained that a prior consistent
statement is admissible under this rule if “the statement [was] made before the
alleged fabrication, influence, or motive came into being.” Id. at 156 (emphasis
added). If it was made after that motive arose, it is “inadmissible.” Id. “Prior
consistent statements may not be admitted to counter all forms of
impeachment or to bolster the witness merely because []he has been
discredited.” Id. at 157.
Here, the defendants’ cross-examinations implied that the Romos
created a falsified narrative in the hopes of receiving leniency from the
government. Because this claimed motive to fabricate also existed at the time
that the prior consistent statements were made, the admission of these
statements under Rule 801(d)(1)(B)(i) violated Tome. See id. at 700. When
Johnny and Robbie confessed to law enforcement, they were both arguably
motivated by a desire to shift the blame onto Pike and Portillo in order to
obtain the benefits of cooperation. Despite the government’s arguments to the
contrary, this motivation existed regardless of the fact that the brothers did
not have specific plea agreements until well after they made their confessions.
Indeed, at the time that Johnny spoke with law enforcement and implicated
himself and his brother in Benesh’s murder, Johnny had already told the
authorities that he wanted to help his brother get a plea deal, and both
brothers testified that they spoke with law enforcement with the full
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awareness that they may be able to reduce their sentences through
cooperation.
This same motivation—a desire to obtain the benefits of government
cooperation—persisted at trial, distinguishing this case from cases where we
have permitted the admission of prior consistent statements under Tome. In
United States v. Wilson, for example, we allowed the government to introduce
a letter written by a government cooperator years before his plea bargain, in
which the cooperator implicated the defendant in drug crimes. 355 F.3d 358,
361 (5th Cir. 2003). We noted that the letter was written before the cooperator
had a plea agreement; critically, however, it was also written “to a person who
could not directly help [the witness] avoid prison time,” thus eliminating the
cooperator’s motivation to lie. Id. (emphasis added). Unlike Wilson, the Romo
brothers’ prior statements were made to law enforcement—the same people
who could help the Romos get the benefits of cooperation. Because the motive
implied by the defendants—the brothers’ desire to obtain leniency from the
government—existed when the prior statements were made as well as at trial,
the prior statements were inadmissible under 801(d)(1)(B)(i). See United States
v. Williams, 264 F.3d 561, 575 (5th Cir. 2001).
In the alternative, the government argues that all three statements were
admissible under 801(d)(1)(B)(ii). Though it is not clear that the district court
relied on this portion of the rule when it found the statements admissible,
“[t]hat is not the end of our inquiry.”2 United States v. Jensen, 41 F.3d 946, 958
2In arguing that Johnny’s confession was admissible, the government explained that
Johnny’s credibility had been “attacked on a number of grounds,” but did not specifically cite
Rule 801(d)(1)(B)(ii). The court then discussed the history of the 2014 amendment, but did
not clearly indicate the basis for its admissibility holding. Later, when discussing the
admissibility of Robbie’s prior statement, the government explained that it was offering the
statement as a “prior consistent statement” after Robbie was “attacked thoroughly on cross-
examination,” but did not explain the specific portion of the rule that gave rise to its
argument.
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(5th Cir. 1994). “If the evidence was admissible on any ground, the district
court’s reliance on other grounds does not affect the defendant’s substantial
rights.” Id. Under 801(d)(1)(B)(ii), a prior consistent statement may be
admitted “to rehabilitate the declarant’s credibility as a witness when attacked
on another ground.” Id. Subsection ii was added to the rule in 2014 “to extend
substantive effect to consistent statements that rebut other attacks on a
witness—such as the charges of inconsistency or faulty memory.” Fed. R. Evid.
801 (Advisory Committee’s Note to 2014 Amendment); see also United States
v. Flores, 945 F.3d 687, 705 (2d Cir. 2019) (admitting prior consistent
statement where defendant argued that the witness could not be trusted
because the incident occurred long ago).
We do not agree that the Romo brothers’ statements were admissible
under 801(d)(1)(B)(ii). The government cites several instances where the
defendants identified inconsistencies between the brothers’ earlier statements
and their testimony at trial. Specifically, the defendants suggested that the
brothers’ earlier statements diverged from their testimony on several points,
including: (1) how Robbie got the gun, (2) how Robbie was selected to be the
shooter, (3) when Portillo gave the order to kill Benesh, and (4) whether the
plan was to kill Benesh or simply to threaten him. In all cases, however, these
inconsistencies were identified by the defendants in order to make a broader
point: that the brothers subsequently changed their stories in order to get
favorable deals from the government. Throughout the cross-examinations, the
defendants repeatedly suggested that the brothers coordinated their stories—
and clarified previous inconsistencies—because they believed that they would
only get “credit” if they could “point the finger at either John or Jeff or both.”
Put differently, the defendants accused the Romo brothers of inconsistency
only to support their claim that the brothers fabricated their stories—a motive
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that fits squarely within 801(d)(1)(B)(i), and not the alternative
801(d)(1)(B)(ii).
In the Advisory Committee’s Note to the 2014 Amendment, the
committee explained that “[t]he amendment does not change the traditional
and well-accepted limits on bringing prior consistent statements before the
factfinder for credibility purposes.” Fed. R. Evid. 801 (Advisory Committee’s
Note to 2014 Amendment); see also United States v. Magnan, 756 F. App’x 807,
818 (10th Cir. 2018). The Tome limitation predates Rule 801 and was a well-
established common law principle that was accepted by the drafters of the rule.
See Tome, 513 U.S. at 161–62 (recounting history of rule). In order to faithfully
give effect to the drafters’ intentions, courts must interpret Rule 801 with this
rule in mind. Id. (“The Notes disclose a purpose to adhere to the common law
in the application of evidentiary principles, absent express provisions to the
contrary.”). If the Tome limitation is mapped on to Rule 801(d)(1)(B)(ii), a
litigant may not introduce a prior consistent statement if that statement was
made at a time when the litigant allegedly had a motive to fabricate—even if
the litigant supplements his attack on the witness’s credibility by pointing to
other flaws in the declarant’s testimony.
Here, the plain language of 801(d)(1)(B)(ii) precludes the admission of
the prior consistent statements under these circumstances because the
defendants did not attack the Romo brothers on “another ground.” By
permitting the admission of a consistent statement when a witness is “attacked
on another ground” (emphasis added), the Rule necessarily restricts the
admissibility of a statement when the witness is attacked on a ground
specifically delineated in 801(d)(1)(B)(i): an accusation that the witness
“recently fabricated” a story, or is “act[ing] from a recent improper influence or
motive.” See 801(d)(1)(B)(i). Here, it is impossible to separate the defendants’
attack on the brothers’ motivations from their charges of inconsistency, making
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it difficult to hold that the brothers were attacked on “another ground.” See
Magnan, 756 F. App’x at 818–19; see also United States v. Purcell, --- F.3d ---,
2020 WL 4211555, at *27–28 (2d Cir. July 23, 2020) (affirming admission of
statements under Rule 801(d)(1)(B)(ii) where the declarant was accused of
making inconsistent statements and defense counsel never suggested “that the
accuracy of [declarant’s] trial testimony was marred by recent fabrication or a
recently created improper motive or influence”).
At least one circuit has noted that it is an open question whether the
Tome rule applies to 801(d)(1)(B)(ii), though that court ultimately declined to
hold that the district court had plainly erred in admitting the evidence under
subsection ii. See United States v. Davis, 896 F.3d 784, 789 (7th Cir. 2018). The
government identifies no cases in which our court or another court has
admitted a prior consistent statement under similar circumstances. There are
only a handful of circuit cases in which the admission of a prior consistent
statement under 801(d)(1)(B)(ii) has been affirmed, but all involve distinct
factual contexts. See, e.g., United States v. Cox, 871 F.3d 479, 487 (6th Cir.
2017) (admitting statement where declarant was repeatedly accused of “faulty
memory”); United States v. J.A.S., Jr., 862 F.3d 543, 545 (6th Cir. 2017)
(admitting statement after declarant’s credibility was attacked on “collateral
grounds”). The government likewise cites no cases where a court concluded
that a declarant was attacked on “another ground,” even though it was
undisputed that the declarant was primarily attacked on the basis of an
improper motivation. Cf. Purcell, --- F.3d ----, 2020 WL 4211555, at *27–28. In
light of the clear limitation in Tome and the defendants’ consistent attempts to
argue that the Romo brothers had a motivation to lie, we decline to hold that
801(d)(1)(B)(ii) permits such an end-run around the limitation in
801(d)(1)(B)(i). We therefore hold that the Romo brothers’ statements were not
admissible under 801(d)(1)(B)(ii).
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In contrast to the Romo brothers’ statements, the government identifies
at least one portion of Portillo’s cross examination of Merla where Portillo
questioned Merla’s memory of the events surrounding Robert Lara’s killing.
Portillo’s counsel stated that “[e]vents were fresher on [Merla’s] mind” closer
to the murder, and suggested that this was a basis for inconsistencies in his
testimony about whether Portillo gave the go-ahead to murder Lara. Portillo’s
attack on Merla’s memory was sufficient to justify the admission of his prior
consistent statement under Rule 801(d)(1)(B)(ii). See Flores, 945 F.3d at 705
(admitting prior consistent statements after a charge of faulty memory, even
though the faulty memory accusations “were brief and were not [defendants’]
main challenges” to the credibility of the witness). Because Merla was attacked
on a ground other than his alleged motive to fabricate, the district court did
not abuse its discretion in admitting this statement.
The government makes one final argument for the admissibility of the
statements, asserting that all three statements were admissible under the
common law rule of completeness. That rule, which has been “partially codified
. . . in Rule 106” of the Federal Rule of Evidence, allows a party to introduce
other portions of a written or recorded statement when the opposing side
introduced only a portion of that statement. Beech Aircraft Corp. v. Rainey, 488
U.S. 153, 171–72 (1988). The rule ensures that all parts of such a statement
are “considered contemporaneously,” id. at 172, and “guards against the
danger that an out-of-context statement may create such prejudice that it is
impossible to repair by a subsequent presentation of additional material,”
United States v. Burns, 162 F.3d 840, 853 (5th Cir. 1998) (internal quotation
marks and citation omitted). The rule operates independently from Rule
801(d)(1)(B) and allows the admission of such statements even when they are
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otherwise barred by the hearsay rules. See United States v. Mohr, 318 F.3d
613, 626 (4th Cir. 2003).
The government cites pages from the record where the defendants
referred to specific portions of the statements that were later introduced at
trial. But the government does not clearly explain why this questioning created
a misleading impression about the entirety of the prior consistent statements.
We have explained that the rule of completeness justifies admission of a
statement only where it is “necessary to qualify, explain, or place into context
the portion already introduced.” United States v. Branch, 91 F.3d 699, 728 (5th
Cir. 1996) (citation omitted); see also United States v. Sanjar, 876 F.3d 725,
739 (5th Cir. 2017) (“The rule comes into play . . . only when the additional
inquiry is needed to ‘explain, vary, or contradict’ the testimony already given.”
(quoting United States v. Pacquet, 484 F.2d 208, 212 (5th Cir. 1973)). The
government has not demonstrated that the statements admitted into evidence
were necessary to correct any misleading impressions created by the
defendants’ references to the prior statements. See United States v. Altvater,
954 F.3d 45, 49–50 (1st Cir. 2020) (rejecting a rule of completeness argument
where the proponent failed to meet his burden of showing that the full
statement was necessary to correct a misimpression).3
We therefore hold that the district court abused its discretion in
admitting the Romo brothers’ prior consistent statements. This conclusion does
3 The government makes the related argument that the prior consistent statements
were admissible in order to “contextualize[], clarif[y], or amplif[y] the meaning of” the
inconsistent testimony used by the defendants in their cross-examinations. See United States
v. Cotton, 823 F.3d 430, 437 (8th Cir. 2016). Even if this argument justified the admission of
some portion of the statements, the government does not explain why this rule justified the
admission of the entirety of the brothers’ confessions. However, the defendants’ affirmative
use of portions of the brothers’ confessions and the government’s avoidance of using the
confessions in its direct examinations of the brothers collectively add to our conclusion that
the district court’s error was harmless.
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not end our analysis, however. We must still affirm if the district court’s error
was harmless. See, e.g., United States v. Jones, 664 F.3d 966, 974 (5th Cir.
2011). Here, the improperly admitted prior statements duplicated the Romo
brothers’ “lengthy, specific, and detailed accounts” of Portillo’s and Pike’s
involvement in the two murders, which they repeated during trial. Magnan,
756 F. App’x at 819; Akins, 746 F.3d at 600. This stands in contrast to a
situation like Tome, where the prior consistent statements were considerably
more detailed and persuasive than the testimony introduced at trial—thus
adding to their prejudicial impact. Magnan, 756 F. App’x at 819. In addition,
the government introduced powerful circumstantial evidence to support the
defendants’ involvement in Benesh’s murder, including evidence about each
defendant’s role within the organization and evidence about the aftermath of
the murder and the defendants’ reactions. See, e.g., United States v. Sanders,
952 F.3d 263, 273 (5th Cir. 2020) (“Criminal conspiracies can be established on
circumstantial evidence alone.”); cf. Michalic v. Cleveland Tankers, Inc., 364
U.S. 325, 330 (1960) (“Circumstantial evidence is not only sufficient, but may
also be more certain, satisfying and persuasive than direct evidence.”). This
circumstantial evidence provided an additional basis to convict the defendants,
even without the Romo brothers’ testimony regarding the defendants’ direct
involvement in the murder. It is notable that the defendants do not point to
reliance by the government on these statements in its principal or rebuttal
closing arguments. Our own review of the closing arguments confirms that the
government did not heavily rely upon the Romo brothers’ confessions, making
it difficult for us to conclude that the inadmissible evidence “permeate[d] the
record.” United States v. Westmoreland, 841 F.2d 572, 579 (5th Cir. 1988). To
the contrary, the prior consistent statements were not themselves a crucial
part of the government’s case against the defendants. See United States v.
Whittington, 269 F. App’x 388, 408 (5th Cir. 2008) (holding error harmless
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where the improperly admitted evidence “was of minimal assistance” to the
government).
Given the totality of the evidence, we are unable to conclude that “there
is a reasonable probability that the improperly admitted evidence contributed
to the conviction.” Sumlin, 489 F.3d at 688. We therefore hold that the district
court’s error was harmless, and we affirm.
iii. Criminal Convictions of Former Bandidos Leaders
The district court allowed several witnesses to testify about the
conviction of George Wegers, who served as President of the Bandidos
immediately before Pike. Wegers pleaded guilty to a RICO indictment in 2005.
The court found this testimony relevant to the charges against both defendants
because Weger’s conviction occurred “during the period when the alleged
conspiracy took place.” However, the court simultaneously reminded the jury
that “the defendants here are not responsible for Mr. Wegers’s conduct and the
fact that he may have pled guilty is not to be considered by you as evidence of
the guilt of the defendants.”
When Pike testified at trial, he repeatedly denied any knowledge of other
Bandidos’ criminal activities and argued that the Bandidos became a “family-
oriented” club under his leadership. As a result, the court allowed the
government to question Pike about his knowledge of other members’ criminal
convictions. The court again cautioned the jury that this testimony was not,
“in any way, shape or form[,] . . . evidence against the defendants in this case.”
The court explained that the jury could only consider the evidence “as to the
state of mind of Mr. Pike when he joined and maintained his membership in
the Bandidos.” After the close of evidence, the court reminded the jury that
“[t]he defendants are not on trial for any act, conduct, or offense not alleged in
the indictment.” Pike and Portillo argue that this evidence was irrelevant and
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that the probative value of this evidence was substantially outweighed by the
risk of unfair prejudice.
“Evidence is relevant if . . . it has any tendency to make a fact more or
less probable . . . and . . . the fact is of consequence in determining the action.”
Federal Rule of Evidence 401. Rule 403 of the Federal Rules of Evidence allows
a court to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” “In reviewing Rule 403
findings, we give great deference to the court’s informed judgment and will
reverse only after a clear showing of prejudicial abuse of discretion.” United
States v. Peden, 961 F.2d 517, 521 (5th Cir. 1992) (internal quotation marks
and citation omitted).4
“[A] defendant’s guilt may not be proven by showing that he associates
with unsavory characters.’” United States v. Romo, 669 F.2d 285, 288 (5th Cir.
1982) (quoting United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. Unit
A 1981)). As a result, we have explained that evidence about a third party’s
criminal conviction—absent any evidence “connecting [that person] to [an]
alleged conspiracy”—is “irrelevant to any issue in th[e] case,” and is instead “a
highly prejudicial attempt to taint defendant’s character through ‘guilt by
association.’” United States v. Labarbera, 581 F.2d 107, 109 (5th Cir. 1978).
In the context of a conspiracy charge, however, evidence about a
defendant’s co-conspirators’ actions is often highly relevant. See, e.g., United
States v. Ocampo-Vergara, 857 F.3d 303, 307–08 (5th Cir. 2017). “[T]he
agreement, a defendant’s guilty knowledge and a defendant’s participation in
4 The government argues that Portillo did not contemporaneously object to all of the
challenged testimony, and therefore his challenge should be reviewed for plain error only. In
United States v. Love, 472 F.2d 490, 496 (5th Cir. 1973), however, we held that a defendant’s
failure to object is “excused” if his co-defendant objects, since an additional “motion or
objection would have been a useless formality.” We review both defendants’ Rule 403
challenge for an abuse of discretion.
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the conspiracy all may be inferred from the development and collation of
circumstances,” including evidence about the defendant’s “presence and
association with other members of a conspiracy.” Id. (internal quotation marks
and citations omitted). As a result, we have held that evidence about an
associate’s guilt is admissible as long as it has some tendency to establish the
elements of a conspiracy against the defendant himself. See, e.g., United States
v. Chavful, 100 F. App’x 226, 231 (5th Cir. 2004) (admitting gang letter where
it was “probative of [defendant’s] association with other members of the
conspiracy”); United States v. Rodriguez, 162 F.3d 135, 143 (1st Cir. 1998).
Here, the challenged evidence was relevant to the conspiracy charges
against Portillo and Pike. Wegers was convicted of a RICO conspiracy based
on his activities as the Bandidos President in 2005—the same time that Pike
assumed the role of National President. The dates of the charged conspiracy in
this case overlap with Wegers’s conviction. As the government argues, the
timing of Wegers’s racketeering conviction—which occurred when Pike was
National Vice President—undermines the defendants’ argument that they
were unaware that Bandidos members were engaged in criminal activity. See
United States v. Greenwood, 974 F.2d 1449, 1459 (5th Cir. 1992) (dismissing
defendants’ guilt by association argument where the evidence supported the
conclusion that the defendant was aware that the operation “he wished to join
was an on-going criminal enterprise”). It also casts doubt upon their claim that
the Bandidos was simply a family-friendly motorcycle club, not connected to
violence or criminal activities. The evidence of other Bandidos’ members
convictions was also relevant to rebut Pike’s defense, which rested on the
argument that he was unaware of criminal activity committed by other
Bandidos members. The Bandidos members whose criminal convictions were
discussed at trial were involved in similar racketeering activity during the
course of the defendants’ involvement in the club, undermining Pike’s claims
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that the club was more “mainstream” during his Presidency and that the club
itself existed simply for innocent entertainment purposes. See, e.g., Ocampo-
Vergara, 857 F.3d at 308 (explaining that no guilt by association problems
arise if “the defendant’s offense is connected to others’ conduct”); Chavful, 100
F. App’x at 231 (observing that letter from non-defendant was relevant because
it “served to rebut [defendant’s] attempt to distance himself from the gang and
the other members of the conspiracy”). Though evidence that can only be used
to establish guilt by association is “improper and highly prejudicial,” evidence
that is relevant on its own terms is admissible if “reasonable inferences”
regarding the defendants’ guilt “could be drawn . . . by a reasonable juror.”
United Sates v. Parada-Talamantes, 32 F.3d 168, 169–70 (5th Cir. 1994).
The district court likewise did not abuse its discretion in declining to
exclude this evidence under Rule 403. “Relevant evidence is inherently
prejudicial; but it is only unfair prejudice, substantially outweighing probative
value, which permits exclusion of relevant matter under Rule 403.” United
States v. Pace, 10 F.3d 1106, 1115–16 (5th Cir. 1993) (quoting United States v.
McRae, 593 F.2d 700, 707 (5th Cir. 1979)). Here, the district court’s repeated
limiting instructions reminded jurors that evidence about non-defendants’
criminal activity could not be used to prove the defendants’ guilt. We have held
that similar cautionary instructions can help to reduce the possibility of unfair
prejudice. See, e.g., United States v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003)
(“Under the Rule 403 standard, when the court issues a limiting instruction, it
minimizes the danger of undue prejudice.”). The court gave “extensive and
immediate limiting instructions” and reiterated those instructions after the
close of evidence. United States v. Juarez, 866 F.3d 622, 628–29 (5th Cir. 2017)
(citation omitted). These instructions reminded the jurors that evidence about
other Bandidos members did not prove the defendants’ guilt and could instead
only be used for “limited purposes.” United States v. Guerra, 402 F. App’x 973,
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976 (5th Cir. 2010). We therefore hold that the district court did not abuse its
discretion in admitting this evidence.
iv. Goodfella’s Comment
During his testimony, Agent Schuster explained that his knowledge of
the Bandidos was based on interviews with “patched-in” members and other
“associate[s]” of the group, including “hang-arounds or support club members.”
On cross-examination, the defendants used this testimony to suggest that
Schuster had only spoken to a handful of Bandidos members, rendering his
opinions unreliable and unsupported. The government objected, arguing that
the defendants’ questions misstated Schuster’s testimony regarding the basis
for his knowledge.
The district court agreed and sustained the government’s objection. The
court explained that Schuster’s testimony revealed that he had “two insider
informants,” but that he also spoke with a “bunch of hangers-on and other
people who were . . . not in the club itself, but nonetheless were involved in the
club.” To help explain the role of non-member “hangers-on,” the court
analogized to the movie Goodfellas:
Now, if I can use an example that maybe the jury might be familiar
with and I’m not for a moment suggesting that the Bandidos are
in any way, shape or form like this organization, but we all
remember maybe the movie Goodfellas. Remember that movie? . .
. [T]he main character in Goodfellas was Irish and there was
another guy named Burke who was also Irish. Those people were
not actually members of the mafia because you cannot become a
member of the mafia unless you are Italian and you can trace your
Italian lineage. They were Irish, but they worked with, for and
were involved [] deeply in mafia activities, but they were not
actually members of the mafia. So those people if we were trying
that case wouldn’t be members of the mafia, but they would be
people who were associated with them, okay. . . . I used that
example because it’s a very easy one to draw, not because I’m
suggesting that the people who were involved with the Bandidos
were like the two people who were involved in the movie.
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Neither of the defendants objected to the district court’s explanation.
Portillo argues that the district court’s comment was unfairly prejudicial.
Because he failed to object to this comment during trial, we review his
challenge for plain error only. United States v. Williams, 620 F.3d 483, 488–89
(5th Cir. 2010).
“A district judge in a jury trial is ‘governor of the trial for purposes of
assuring its proper conduct and of determining questions of law.’” Johnson v.
Helmerich & Payne, Inc., 892 F.2d 422, 425 (5th Cir. 1990) (quoting Quercia v.
United States, 289 U.S. 466, 469 (1933)). As a result, judges have both “the
right and the duty to comment on the evidence to ensure a fair trial.” Id.
Because judges have “enormous influence on the jury,” however, they “must
act with a corresponding responsibility” when making comments or
questioning witnesses. United States v. Williams, 809 F.2d 1072, 1086 (5th Cir.
1987); see also United States v. Middlebrooks, 618 F.2d 273, 277 (5th Cir. 1980)
(“It is well known that juries are highly sensitive to every utterance by the trial
judge.” (cleaned up)).
We do not agree that the district court committed plain error when it
made the Goodfellas statement. This stray statement was unnecessary.
However, the court was careful to provide the jury with limiting instructions.
The district judge explained that he was not suggesting that there was any
resemblance between the Bandidos and the mafia, reducing the risk that the
jury would have interpreted the judge as demonstrating a bias towards the
government. The court was also careful to explain at the close of evidence that
the jury should “disregard anything [the court] may have said during the trial
in arriving at your own verdict.” We have held that the prejudicial impact of a
district court’s comments may be “adequately cured by the trial court’s
instructions to the jury . . . to ignore his comments and to be the sole judge of
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the facts.” Johnson, 892 F.2d at 426. In United States v. Bermea, 30 F.3d 1539,
1571–72 (5th Cir. 1994), we approved nearly identical curative instructions,
holding that “a curative instruction such as this one can operate against a
finding of . . . error.”
Even if the statement was clear and obvious error, Portillo fails to
explain how it affected his substantial rights. When determining whether a
prejudicial court comment impacted the jury’s verdict, it is necessary to review
those actions in the context of “the entire trial record.” Rodriguez v. Riddell
Sports, Inc., 242 F.3d 567, 579 (5th Cir. 2001) (citation omitted). Here, the
court’s comment takes up just a page of the transcript in a three-month-long
trial. The relative insignificance of this one stray comment demonstrates that
any error “did not deprive the defendants of their rights to a fair trial.”
Williams, 809 F.2d at 1090.
v. Access to Psychiatric Records
Magenta Winans testified on behalf of the government about Robert
Lara’s murder. On direct examination, Winans also testified about her own
drug use and her mental health history. She explained that she had been
diagnosed with “PTSD, bipolar disorder two, anxiety, depression, ADHD, and
dyslexia,” and she testified that she “lost a lot of . . . memory” and “really forgot
all about everything” after her son died.
During cross-examination, Winans was asked to provide more detail
about her psychiatric treatment and medications. She told the jury that she
was on several medications that help “keep [her] calm” and “help [her] so [she]
can sleep and . . . keep the rage off.” At one point, she was taking as many as
eight medications a day. She sees a doctor once or twice a month and had been
seeing the same doctor since 2014. When the court asked if the medications
ever “affect[ed] [her] ability to think or reason,” she replied affirmatively,
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stating that they impact her thinking abilities and that she “couldn’t really
drive” while she was on the medications.
Before Winans was subjected to cross examination, Portillo moved for
production of her psychiatric, psychological, and counseling records. With
support of counsel, Winans opposed the disclosure of the material. The court
ordered the records produced to a magistrate judge for in camera review. After
reviewing the records, the magistrate judge held that the records were
protected by the psychotherapist-patient privilege and denied Portillo’s
motion.
“We review factual findings underlying a ruling of psychotherapist-
patient privilege for clear error, and we review application of the legal
principles de novo.” United States v. Murra, 879 F.3d 669, 680 (5th Cir. 2018)
(citing United States v. Auster, 517 F.3d 312, 315 (5th Cir. 2008)). “A district
court’s factual finding is clearly erroneous ‘if, on the entire evidence, we are
left with a definite and firm conviction that a mistake has been committed.’”
Id. (quoting United States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011)).
The psychotherapist-patient privilege was first identified by the
Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996). In that case, the Court
held that the privilege “promotes sufficiently important interests to outweigh
the need for probative evidence.” Id. at 9–10 (cleaned up). To obtain the
benefits of the privilege, the communication must be confidential, between a
licensed psychotherapist and her patient, and conducted “in the course of
diagnosis or treatment.” Id. at 15. Portillo makes two arguments to challenge
the court’s conclusion that the documents were privileged: (1) Winans waived
the privilege when she disclosed her “mental health treatment, diagnoses and
medications during her testimony,” and (2) as a criminal defendant, his
constitutional rights to confrontation and due process override the privilege.
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Neither of these arguments demonstrates that the court erred when it denied
Portillo’s motion to access the records.
First, Winans did not waive the privilege simply by testifying about her
psychiatric conditions and medication history. The privilege protects
confidential communications between a psychotherapist and a patient. Winans
testified about the facts of her medical diagnoses and medication history, but
she did not provide any details about the nature of her conversations with her
doctor. In Murra, we explained that a witness does not waive the privilege
merely by disclosing “facts” to “third parties and at trial.” 879 F.3d at 680.
Winans had a “reasonable expectation of confidentiality” in her confidential
communications with her psychotherapist, and her disclosure of the fact of that
relationship—as well as the nature of her medication regimen—does not
demonstrate that “any portion of those confidential communications was
revealed . . . to any third party.” Id. at 681 (citation omitted).
Our own independent review of Winans’s psychiatric records confirms
that Winans did not reveal confidential information at trial. Winans’s records
detail confidential discussions with her doctor about her treatment and
condition. Even though Winans’s current medication regimen falls outside of
the privilege, her forthcoming testimony about these details demonstrates that
there was “no relevant underlying fact discussed in [her] psychotherapy
sessions that was not fully explored during [her] testimony and cross-
examination at trial.” Id. at 680–81. She did not “attempt[] to hide behind the
privilege to avoid giving testimony about those facts,” id. at 681, and there was
therefore no basis to conclude that she waived the privilege or that disclosure
was necessary to reveal facts that are not subject to the privilege. See also id.
(“[The defendant] cannot be permitted . . . to review confidential
communications and then advise the court of the harm she suffered as a result
of the withholding.”).
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Similarly, we do not believe that Portillo’s constitutional rights were
violated by the court’s failure to disclose these records. With respect to
Portillo’s claim under the Confrontation Clause, there is no basis to conclude
that Portillo’s ability to cross-examine Winans was hampered by the denial of
his motion. Portillo’s counsel was permitted to ask Winans detailed questions
about her psychiatric treatment and medication regimen on cross-
examination, distinguishing this case from Davis v. Alaska, 415 U.S. 308
(1974); see also Pennsylvania v. Ritchie, 480 U.S. 39, 52–53 (1987) (plurality)
(explaining that the Confrontation Clause is not “a constitutionally compelled
rule of pretrial discovery,” but instead merely ensures the right of a defendant
to question an adverse witness). Likewise, Portillo’s Brady claim fails because
he has not demonstrated that the “prosecution team had access” to Winans’s
records—a necessary prerequisite for the claim to succeed. Summers v. Dretke,
431 F.3d 861, 874 (5th Cir. 2005).
We therefore hold that the district court did not abuse its discretion in
denying Portillo access to Winans’s psychiatric records.
vi. Sonny Barger’s Prior Convictions
When Barger testified on behalf of the defense, he explained that the
Hell’s Angels and the Bandidos had peacefully co-existed for decades. He
denied that the clubs were enemies, and he claimed that the Hell’s Angels was
simply a “fun-loving motorcycle club,” not a group predisposed to violence. Over
Pike’s objections, the district court allowed the prosecution to impeach Barger
with two prior convictions: (1) felony drug trafficking in 1973, and (2)
conspiracy to transport and receive explosives with the intent to kill and
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damage buildings in 1989. The defendants argue that the district court abused
its discretion when it admitted these convictions.5
“Extrinsic evidence, which includes prior convictions, is admissible
under the general standards of Rules 402 and 403 to contradict specific
testimony, as long as the evidence is relevant and its probative value is not
substantially outweighed by the danger of unfair prejudice.” United States v.
Lopez, 979 F.2d 1024, 1034 (5th Cir. 1992); see also United States v. Moon, 802
F.3d 135, 146 (5th Cir. 2015) (“Although [the defendant] invokes Rule 609 in
asserting that the evidence surrounding his 2001 robbery conviction was
improperly admitted, that rule is beside the point where, as here, the
challenged evidence was offered to contradict the specific testimony.”).
In several cases, we have affirmed the admissibility of a prior conviction
where the witness’s testimony either explicitly denied the conviction or created
a misleading impression that could only be corrected through admission of the
conviction. In United States v. Carter, 953 F.2d 1449 (5th Cir. 1992), we held
that a prior misdemeanor conviction was admissible to contradict the witness’s
statement that he was continuously employed during the period of time when
he was actually incarcerated. Id. at 1456, 1458. Likewise, in Lopez, we affirmed
the admission of evidence about a prior marijuana conviction when it was used
to contradict the witness’s testimony that he “never had seen and did not
recognize” the drug. 979 F.2d at 1034.
The government argues that Barger’s convictions were admissible to
contradict Barger’s testimony that the Hell’s Angels was simply a “fun-loving
5 Pike preserved this error when he objected during trial. Though Portillo did not
discuss this issue in his brief, he adopted Pike’s argument in his own brief. Federal Rule of
Appellate Procedure 28(i) permits this practice as long as the issue does not raise “fact-
specific challenges to [a defendant’s] own conviction or sentence.” United States v. Alix, 86
F.3d 429, 434 n.2 (5th Cir. 1996). The defendants’ challenge to the admission of Barger’s
convictions is not fact-specific or individual to either defendant.
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motorcycle club.” Barger’s 1989 conspiracy conviction was related to a “plot to
kill members of the Outlaw motorcycle club in Louisville, Kentucky,”
suggesting that the Hell’s Angels participated in violent retaliatory attacks—
not simply “fun-loving” entertainment. Likewise, Barger’s drug conviction cast
doubt upon his innocent characterization of the Hell’s Angels, suggesting that
the club and its members were involved in drug trafficking.
Even if the contradictions between Barger’s testimony and his prior
convictions are not as direct as the contradictions in Lopez and Carter, any
error in admitting these convictions was harmless. Barger’s testimony was
relatively brief, and it did little to challenge the elements of the charges against
the defendants. The government presented substantial evidence to dispute
Barger’s claim about the relationship between the Hell’s Angels and the
Bandidos and to establish the defendants’ responsibility for Benesh’s murder.
See United States v. Simmons, 374 F.3d 313, 321 (5th Cir. 2004) (holding error
harmless where there was “overwhelming direct and circumstantial evidence”
of the defendant’s guilt). Because Barger’s testimony played such a minor role
in the trial as a whole, the defendants are unable to show that “there is a
reasonable probability that the improperly admitted evidence contributed to
the[ir] conviction[s].” Sumlin, 489 F.3d at 688.
vii. Portillo’s Prior Statement
During Pike’s case-in-chief, he moved to admit a letter that Portillo had
written him ten months after the two defendants were indicted. In the letter,
Portillo wrote that he was “truly sorry about this mess.” He told Pike “[t]his is
bullshit,” and “I plan to fight this to the end + take what I got coming.” He also
told Pike “You had nothing to do with it. You or I cannot control what people
do 24-7. I hope to see you soon + not in a courtroom.”
The district court held that the letter was inadmissible. First, it was
inadmissible under Rule 806 to impeach Portillo’s recorded conversations
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because Portillo had never made any statements implicating Pike that would
have been inconsistent with the letter. The court also found that Pike was
trying to introduce the letter as substantive evidence, rather than
impeachment evidence. And because Portillo’s statement that Pike “had
nothing to do with it” was vague, the court found the letter “nebulous at best.”
The court also held that the letter should be excluded under Rule 403 because
it had “very little probative value given its obliqueness” but could “be extremely
damaging to Mr. Portillo if the Government is then able to argue that Mr.
Portillo . . . has basically admitted the entire case.”6
Federal Rule of Evidence 806 allows a party to attack the credibility of a
declarant whose hearsay statement has been admitted into evidence. Under
the rule, the party can impeach the hearsay declarant “by any evidence that
would be admissible for those purposes if the declarant had testified as a
witness.” Fed. R. Evid. 806. “The court may admit evidence of the declarant’s
inconsistent statement or conduct, regardless of when it occurred or whether
the declarant had an opportunity to explain or deny it.” Id.; see also United
States v. Moody, 903 F.2d 321, 328 (5th Cir. 1990); United States v. Graham,
858 F.2d 986, 990 (5th Cir. 1988).
In order to determine whether a statement is admissible under Rule 806,
the court must “first decide whether the proffered statement is actually
inconsistent with the hearsay statement already admitted.” Graham, 858 F.2d
at 990; see also United States v. Hale, 422 U.S. 171, 176 (1975) (“As a
preliminary matter . . . the court must be persuaded that the statements are
indeed inconsistent.”). As the Supreme Court stated in Hale, “the question
whether evidence is sufficiently inconsistent to be sent to the jury on the issue
6 For the purposes of reaching a decision, the court assumed that Pike would be able
to establish that the letter was in fact written and signed by Portillo.
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of credibility is ordinarily in the discretion of the trial court.” 422 U.S. at 180
n.7.
Pike argues that Portillo’s letter was admissible as impeachment
evidence under Rule 806 because it was inconsistent with statements made by
Portillo in a set of recorded phone conversations introduced at trial. Pike points
to a number of comments made by Portillo during the course of these
recordings: (1) “I was talking to the general manager, he said play ball. Said
batter up motherfucker;” (2) “I asked the guy in Houston to turn his back from
what I’m gonna do;” (3) “His word is final;” and (4) “I don’t make no majors
without him knowing about it.” Pike argues that these statements suggested
Pike was involved in specific decisions made by Portillo and by the Bandidos;
by contrast, he argues that Portillo’s letter, which stated that Pike “had
nothing to do with it,” was inconsistent with these comments because it
demonstrated Pike’s lack of knowledge about the Bandidos’ crimes.
The district court did not abuse its discretion when it held that Portillo’s
letter was not inconsistent with any of these statements. Portillo’s recorded
conversations suggest that Pike, as the President of the Bandidos, was aware
of some of the Bandidos’ criminal activities. But these specific comments are
not necessarily inconsistent with the vague and “nebulous” comments in
Portillo’s jailhouse letter. As the district court found, it is unclear from the
letter what “it” meant. Given this uncertainty, it is not inconsistent for Portillo
to have acknowledged Pike’s knowledge about Portillo’s major decisions, while
also stating that Pike was not affiliated with other specific and discrete crimes.
Even if it might have been within the district court’s discretion to find that the
statements here were inconsistent, that does not necessarily mean that the
court’s contrary conclusion was erroneous. See, e.g., Gonzalez v. Fresenius Med.
Care N.A., 689 F.3d 470, 480 (5th Cir. 2012).
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For similar reasons, the district court did not abuse its discretion when
it held, in the alternative, that the evidence was inadmissible under Rule 403.
Given the inconclusive nature of the inconsistency, the probative value of the
letter was minimal, especially when set against the high risk of prejudice. See
United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015) (“A district court’s
ruling regarding Rule 403 is reviewed with an especially high level of deference
to the district court, with reversal called for only rarely and only when there
has been a clear abuse of discretion.” (cleaned up)). As a result, we affirm the
district court’s decision to deny admission of Portillo’s letter.
E. Duplicative Special Assessments
The district court imposed a special assessment of $100 on each of
Portillo’s thirteen crimes of conviction. Portillo argues that the district court’s
imposition of duplicative special assessments violates the Double Jeopardy
Clause. Because he did not object to his sentence on this basis before the
district court, we review his challenge for plain error only. See United States v.
Danhach, 815 F.3d 228, 238 (5th Cir. 2016).
The imposition of multiple special assessments on concurrent counts of
conviction can violate the constitutional prohibition against imposing
“multiple punishments for the same act.” United States v. Kimbrough, 69 F.3d
723, 729 (5th Cir. 1995) (“[F]or double jeopardy purposes, sentences are not
truly concurrent where a mandatory special assessment is separately imposed
on each conviction.”). However, Kimbrough makes clear that separate special
assessments violate the double jeopardy clause only if the assessments were
imposed for the same criminal act. See, e.g., Whalen v. United States, 445 U.S.
684, 688 (1980). There is no double jeopardy problem if the special assessments
were imposed for “distinct criminal acts.” Danhach, 815 F.3d at 239.
Portillo was sentenced to concurrent sentences on counts 1, 4, 5, 6, 7, 10,
11, 12, and 13. Those counts charged him with: a racketeering conspiracy,
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conspiracy to commit murder in aid of racketeering, conspiracy to commit an
assault with a deadly weapon in aid of racketeering, assault with a dangerous
weapon in aid of racketeering in Palo Pinto, assault with a dangerous weapon
in aid of racketeering in Port Aransas, conspiracy to distribute and possession
with intent to distribute a controlled substance, possession with intent to
distribute cocaine, conspiracy to interfere with commerce by threats or
violence, and possession of a firearm as a felon. These crimes all involve
distinct offenses and required the jury to find distinct elements to convict.
Portillo fails to argue how those offenses “should be considered to constitute
the same offense.” Lopez, 426 F. App’x at 264. He has therefore failed to
establish plain error, and we affirm.7
III. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
7 The defendants also argue that the cumulative error doctrine requires reversal of
their convictions. Though we agree that the district court’s admission of the Romo brothers’
prior consistent statements was erroneous, this single harmless error does not require
reversal. See United States v. Ceballos, 789 F.3d 607, 621 (5th Cir. 2015) (holding that
reversal is required only when otherwise harmless “errors so fatally infected the trial that
they violated the trial’s fundamental fairness” (cleaned up)); United States v. Delgado, 672
F.3d at 343–44.
55