United States v. Martinez , 657 F.3d 811 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-50141
v.  D.C. No.
3:06-cr-01243-
RICARDO MARTINEZ, DMS-3
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-50142
v.  D.C. No.
3:06-cr-01243-
CESAR J. ABARCA, DMS-11
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-50145
v.  D.C. No.
3:06-cr-01243-
JOSHUA CRUZ, DMS-17
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-50147
v.  D.C. No.
3:06-cr-01243-
GEORGE FERNANDEZ, DMS-5
Defendant-Appellant.

8447
8448 UNITED STATES v. MARTINEZ
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-50150
v.  D.C. No.
3-06-01243-
RICHARD VALENZUELA, DMS-10
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-50151
v.  D.C. No.
3:06-01243-
EDUARDO GONZALEZ-GALLEGOS, DMS-4
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 08-50152
Plaintiff-Appellee, D.C. No.
v.  3:06-cr-01243-
THOMAS DURKIN, DMS-6
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
May 4, 2011—Pasadena, California
Filed June 22, 2011
Before: John T. Noonan and Kim McLane Wardlaw,
UNITED STATES v. MARTINEZ 8449
Circuit Judges, and Edward R. Korman,
Senior District Judge.*
Opinion by Judge Noonan
*The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, Brooklyn, sitting by designation.
8452 UNITED STATES v. MARTINEZ
COUNSEL
Gordon S. Brownell, St. Helena, California, for defendant-
appellant Ricardo Martinez.
Debra A. DiIorio, San Diego, California, for defendant-
appellant Cesar J. Abarca.
Alex L. Landon, San Diego, California, for defendant-
appellant Joshua Cruz.
Arza Feldman, Uniondale, New York, for defendant-appellant
George Fernandez.
David A. Schlesinger, San Diego, California, for defendant-
appellant Richard Valenzuela.
Stephen D. Lemish, El Cajon, California, for defendant-
appellant Gonzalez-Gallegos.
Jerald L. Brainin, Los Angeles, California, for defendant-
appellant Thomas Durkin.
Todd W. Robinson, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
OPINION
NOONAN, Circuit Judge:
Ricardo Martinez, Thomas Durkin, Eduardo Gonzalez-
Gallegos, George Fernandez, Cesar J. Abarca, Joshua Cruz,
UNITED STATES v. MARTINEZ 8453
and Richard Valenzuela appeal their convictions of conspir-
acy in violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and their
sentencing enhancement for carrying out the conspiratorial
agreement by acts subjecting them to life imprisonment. We
affirm the judgment of the district court.
PROCEEDINGS
On June 6, 2006, a federal grand jury indicted twenty-two
persons including the seven defendants on a single count of
conspiracy in violation of 18 U.S.C. § 1962(d). A number of
those indicted pleaded guilty. Several were severed to be tried
separately. The seven defendants went to trial on October 15,
2007. The jury returned a verdict of guilty on January 4, 2008.
Each defendant was sentenced to imprisonment for life.
This appeal followed. Conscientious counsel for the seven
defendants make a multitude of points on their behalf.
FACTS
Martinez is a member of the Mexican Mafia. Durkin, Gon-
zalez, and Fernandez are high-level associates in the Mexican
Mafia. Abarca, Cruz, and Valenzuela are soldiers in this orga-
nization.
The history and activities of the Mexican Mafia have been
well set out by Judge Trott in United States v. Shryock, 342
F.3d 948 (9th Cir. 2003). Beginning as members of a street
gang incarcerated at Deuel Vocational Institution in Tracy,
California in the 1950s, the Mexican Mafia became a pres-
ence in California prisons and in federal prisons within Cali-
fornia. The organization had an ethnic identity: Hispanic. It
had a form: hierarchical. The leaders — known as members
— were chosen by existing members. Associates were aspi-
rants to membership. The soldiers took orders. The objectives
of the organization were power in the prisons and the control
8454 UNITED STATES v. MARTINEZ
of drug trafficking within and outside the prisons. Despite the
efforts of the authorities, the Mexican Mafia has survived for
half a century. It enforces its will by violence including mur-
der.
These characteristics of the Mexican Mafia, already
observed in Shryock, were set before the jury in this case by
the testimony of a government expert on the organization and
by the testimony of a former member. Its presence in South-
ern California was particularly emphasized. No witness dis-
puted this evidence. The government also established beyond
challenge the relation of each defendant to the organization.
Among the crimes proved to be committed in furtherance
of the conspiracy were the following:
The murder of Jabila Barragan. Barragan was imprisoned
at High Desert State Prison. Barragan claimed to be a member
of the Mexican Mafia. Authentic members found the claim
false. At their direction, on June 24, 2002, Barragan was
stabbed to death in the day room of the prison. Abarca and
Valenzuela were found by prison officials showering them-
selves to wash off blood from his body. That the two had
killed in order to eliminate a specious member of the Mexican
Mafia was shown to be the motive for the murder.
The murder of Alvaro Hernandez. Hernandez came to the
attention of Gonzalez as someone who was extorting money
from individuals in the San Diego area in the name of the
Mexican Mafia. Believing this claim of authority to be bogus,
Gonzalez sought permission from the leadership to kill him.
Durkin supported his request. Martinez granted it. Gonzalez
arranged for Fernandez to carry out the deed. Fernandez dele-
gated its execution to Cruz, who shot and killed Hernandez
shortly after he had been lured from his house at 3:00 a.m.,
July 28, 2006. The government established the role of the
murderer and the accessories to the murder by a number of
intercepted telephone calls and intercepted correspondence.
UNITED STATES v. MARTINEZ 8455
Methamphetamine trafficking. On August 7, 2005, Durkin
was observed by government agents receiving a purchase of
methamphetamine at his home. On August 15, 2005, another
purchase of methamphetamine was planned by Durkin and
Gonzalez and took place under the eyes of federal agents,
who then arrested Durkin and found him in possession of 53
grams of the drug.
ANALYSIS
We turn to the seven briefs for the seven defendants. Often
they join their co-defendants’ issues.
[1] Crimes justifying life imprisonment. The defendants
question whether the life sentences were adequately sup-
ported. They did not request that the jury specifically identify
the crimes justifying these sentences, but the jury’s special
verdict found them subject to the sentences, and the evidence
before the jury established that Abarca and Valenzuela had
acted for the conspiracy in the murder of Barragan and that
Martinez, Durkin, Gonzalez, Fernandez, and Cruz had acted
for the conspiracy in the murder of Hernandez. The sentences
were justified under 18 U.S.C. § 1963(a).
[2] Fernandez’s lesser part. Fernandez notes that the evi-
dence does not establish that he managed or participated in
the operations of the conspiracy, and he invokes Reves v.
Ernst & Young, 507 U.S. 170 (1993). However, in 2004 we
held that to be convicted of RICO conspiracy it is enough that
the defendant agreed to facilitate a scheme which included the
operation or management of a RICO conspiracy. United
States v. Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004). Our
Fernandez, not the defendant in the case just cited, was shown
to have conspired in this way.
Fernandez further contends that he was not shown to have
committed two overt acts. The government’s burden was only
to show his assent to the conspiracy and the acts furthering its
8456 UNITED STATES v. MARTINEZ
end. Salinas v. United States, 522 U.S. 52, 63-66 (1997). That
the government did.
[3] The government produced evidence that Fernandez was
an aspirant to membership in the Mexican Mafia; that he put
money on the books of its members who were in prison; and
that he made two sales of methamphetamine, in one sale
attempting to recruit the buyer to the Mexican Mafia. In a
coded letter to a Mexican Mafia member in prison, inter-
cepted by the government and decoded by an expert, Fernan-
dez wrote that “we sent another drunk driver to sober up
forever for the relatives. That again was a favor for Thomas.”
Interpreted, the statement conveyed the information that at the
request of Thomas Durkin, he had killed a man for the sake
of the organization. The statement, together with other clues,
linked him to the murder of Hernandez.
[4] Fernandez objects to the admission of a recorded con-
versation between himself and one Orka. The conversation
contained no admissions as to his own part in the murder of
Hernandez but did show his knowledge of the murder and his
familiarity with the ways of the Mexican Mafia. It was admis-
sible because it was an effort to recruit his addressee to partic-
ipate in the conspiracy. The recording in its entirety was
admissible as providing the context of his effort.
The challenge to admission of the conversation as a viola-
tion of the Confrontation Clause fails. United States v.
Bridgeforth, 441 F.3d 864, 869 (9th Cir. 2006). Cruz’s Bruton
challenge also fails as there is a conspirator exception to the
Bruton rule. United States v. Larson, 460 F.3d 1200, 1213
n.12 (9th Cir. 2006).
[5] Statements incriminating Valenzuela. Part of the evi-
dence against Valenzuela was the statement of Raul Leon, a
Mexican Mafia member incarcerated at Pelican Bay prison,
made to another prisoner and referring to Barragan, “He was
saying he was a Carnal. So as soon as he got up there to the
UNITED STATES v. MARTINEZ 8457
High Desert, I had his ass killed.” The statement was admissi-
ble as that of a coconspirator advancing the conspiracy’s aim
to maintain power in the prisons. Valenzuela’s objection to
admission of the statement is meritless.
Valenzuela also objects to testimony of another inmate that
Abarca told this inmate to spread the word to Pelican Bay that
“the job was done,” a message calculated to enhance the
power of the conspiring and therefore also admissible under
Rule 801(d)(2)(E).
The witness with a double capacity. F.B.I. Special Agent
Allan Vitkosky was the case agent. He testified as a percipient
witness of some events and was recognized by the court as an
expert on the Mexican Mafia’s coded communications and in
that capacity was also a witness. The defendants’ language on
the telephone and in correspondence was laconic, elliptical, or
cryptic. As an expert, Vitkosky interpreted their coded mes-
sages. In the course of the trial, the court instructed the jury
three times on the difference between percipient and expert
testimony. The government was nearly always exact in speci-
fying when it was asking for his testimony as an expert.
[6] In dicta we have pointed out the danger of confusion
for the jury when a witness has such a dual role. United States
v. Freeman, 498 F.3d 893, 902-04 (9th Cir. 2007), but have
held that the trial court has discretion to accept a witness in
both capacities. Id. The district court did not abuse its discre-
tion when it admitted Vitkosky’s testimony properly identi-
fied as percipient or as expert. If, in the course of thirty-five
days of trial, there was testimony from him where the distinc-
tion was not made clear, the defendants have not identified
any testimony harmful to any of them.
The defendants do object to Vitkosky’s testimony that “to
drink a cup of tea” meant to be killed. As an expert, he
explained that he had reached this conclusion from his inqui-
ries among former members of the Mexican Mafia. They had
8458 UNITED STATES v. MARTINEZ
told him that a “cup of tea” was a common term in the Mexi-
can Mafia for approval of a “murder/assault.” Vitkosky then
interpreted “cup of tea” as short for “cup of green tea” and
stated that so interpreted it equaled “green light.”
[7] Vitkosky’s testimony consisted in two parts: (1) the
meaning of an expression used in the organization and (2) the
derivation of the meaning. As the defense pointed out, his tes-
timony as to the derivation made little sense. There are red,
white, and black teas as well as green. But Vitkosky’s guess
as to the phrase’s derivation did not destroy his testimony that
the phrase was part of the argot of the mob and that as used
by its members it could mean acts of ultimate violence. It was
proper for the jury to hear and assess the strength of his testi-
mony.
The defendants further challenge the adequacy and timeli-
ness of the government’s compliance with Fed. R. Crim. P. 16
in its disclosure of Vitkosky as an expert. Undoubtedly, the
government’s disclosure was not in the “timely fashion”
required by the advisory committee note to Rule 16. The dis-
closure was made five days before trial. However, the disclo-
sure was a month before Vitkosky testified as an expert, time
enough for the defense to prepare. See United States v.
Mendoza-Paz, 286 F.3d 1104, 1112 (9th Cir. 2002). Properly
exercising its discretion, the district court denied a defense
motion for a continuance to permit further exploration of the
expert’s credentials. See United States v. Mejia, 69 F.3d 309,
314 (9th Cir. 1995).
The record of an interview of Gonzalez. Gonzalez argues
that he was prejudiced by the government’s denial to him of
the record of a proffer meeting conducted in the office of the
United States Attorney on February 14, 2006. Gonzalez was
then awaiting trial on an unrelated immigration offense. He
hoped to receive a sentencing benefit in that case and so asked
to meet with the government. It was agreed that any statement
he made could not be used against him but could be used to
UNITED STATES v. MARTINEZ 8459
impeach him or to rebut any defense he might make. In the
course of the interview, Vitkosky asked him several questions
relating to the Mexican Mafia. The government made a record
of the interview.
Prior to trial in this case, the government disclosed to the
defense that in the interview Gonzalez had stated that Her-
nandez was killed as a result of a personal dispute. At trial,
the government also supplied a redacted version containing
Gonzalez’s statements regarding “a cup of tea.” The district
court’s refusal to require more is now assigned as error.
[8] Rule 16(a)(1)(B) requires the government to produce
upon request “any relevant oral statement” made by the
defendant “in response to interrogation” by a government
agent. We do not reach the question whether all statements
made in proffer interviews must be produced under Rule 16.
Gonzalez received what was relevant to his trial. His conten-
tion that not knowing the full contents of the report deterred
him from taking the stand in his own defense is not credible.
Gonzalez would not have wanted to be exposed to cross-
examination. He was given the benefit of his self-serving lie
about the motive for the hit on Hernandez. No harm was done
to Gonzalez by the district court’s ruling.
Gonzalez also contends that in the interview he had spoken
to the government about his brother-in-law Granillo’s quarrel
with Hernandez and would have liked to have called Granillo
as a witness in this case but did not because he didn’t remem-
ber what he had told the government about him. Gonzalez has
made no showing that this handicap denied him a witness who
would have materially contributed to his defense.
Durkin also objected to being denied this report, but had no
right to the report under Rule 16.
[9] The apprehensive juror. On the seventh day of trial,
one juror sent the judge a note asking if the jury had “protec-
8460 UNITED STATES v. MARTINEZ
tion.” The judge interviewed her to determine if she could
serve with an open mind. She answered affirmatively, stating,
“I want to hear all the evidence.” The defendants asked for a
mistrial. The district court did not abuse its discretion in deny-
ing their motion.
[10] Martinez’s sobriquet. In a letter from Gonzalez to a
member of the Mexican Mafia, he referred to Martinez as “the
Evil One.” The district court did not abuse its discretion in
denying Martinez’s motion to exclude the reference. The evi-
dence was more probative as to the fear inspired by Martinez
than prejudicial. See Fed. R. Evid. 403.
[11] The measures taken by the trial court to assure secur-
ity. Observing the nature of the case and the background of
the defendants, the court ordered the defendants to wear leg
shackles in court; arranged for at least ten marshals to be pres-
ent; and empaneled an anonymous jury. The shackles were
not visible in any respect. The defendants’ contention that the
cumulative impact of the security measures prejudiced the
jury asserts a conclusion contrary to precedent in a Mexican
Mafia trial. See Shryock, 342 F.3d at 971-75. The district
court did not abuse its discretion.
[12] Lay opinion on coded communications. Durkin and
other defendants objected to the lay opinion of a former mem-
ber of the Mexican Mafia on the meaning of their coded com-
munications. The witness testified that he was a member of
the organization for seventeen years, and that the codes did
not change. The district court did not abuse its discretion in
admitting his testimony. From long experience in writing
notes for the organization, the witness had the “personal
knowledge” required by Fed. R. Evid. 602; Freeman, 498
F.3d at 904-05.
[13] Durkin’s request for substitute counsel. James Brown,
Durkin’s appointed attorney, was late for one scheduled hear-
ing and missed another because of car trouble. The court
UNITED STATES v. MARTINEZ 8461
investigated Durkin’s complaint. Brown apologized. Durkin
professed to be content with him. Then on July 25, 2007 and
August 3, 2007, Durkin wrote the court asking for a substi-
tute. Again the district court investigated and heard both
Brown and Durkin. The court found no breakdown in the
attorney-client relation. Two weeks before trial, Durkin com-
plained again, the court held a hearing, no breakdown or
unreconcilable conflict was found. On appeal, no abuse of
discretion has been shown.
[14] The Homicide Book. The subject of this section has a
title comparable to the Domesday Book but a mundane con-
tent: the record maintained by the San Diego Police Depart-
ment of its investigation of the Hernandez murder. The
district court ruled that Cruz was not entitled to reports within
the book of police interviews with witnesses nor to summaries
of recorded phone calls. The reason: the material sought con-
stituted work product of the police, exempted from discovery
by Fed. R. Crim. P. 16(a)(2). The rule extends to the protec-
tion of the internal product of local police work later provided
to the federal government. United States v. Fort, 472 F.3d
1106, 1119 (9th Cir. 2007).
Other objections by Cruz. Cruz contends that the prosecu-
tion did not comply with the Jencks Act, 18 U.S.C. § 3500.
The government in fact complied with Cruz’s request eight
days before its witness testified.
[15] Cruz also objects to admission of a telephone conver-
sation in which he discussed bringing drugs into jail eight
months after the murder of Hernandez. Contrary to Cruz’s
contention, the evidence was relevant to the conspiracy’s aim
of controlling narcotics in the prisons. The prejudicial effect
of this recorded conversation did not outweigh its probative
force.
[16] The distinction between murder and conspiracy to
murder. The district court properly responded to a question
8462 UNITED STATES v. MARTINEZ
from the jury that murder and conspiracy to commit murder
were distinct racketeering offenses under RICO. The law in
California makes the difference between a conspiracy and its
product. People v. Moore, 143 Cal. App. 2d 333, 340-42
(1956). The two crimes could be charged under a single head-
ing in the indictment. See Salinas, 522 U.S. at 63. The two
crimes were distinct although they led to a single event.
Motions for severance. The defendants objected to being
tried together especially as only two of them were alleged to
be connected to Barragan’s murder and the other five were
alleged to be involved with the murder of Hernandez. The
defendants moved several times for severance during the trial
and were denied.
[17] All seven defendants were charged with only one
count of conspiracy carried out by a variety of means. If there
was a spillover from proof of one criminal act to proof of
another criminal act it followed from the overarching charac-
ter of the criminal enterprise. The district court did not abuse
its discretion in denying the motions. See Fernandez, 388
F.3d at 1241-46; United States v. Dinome, 954 F.2d 839, 843
(2d Cir. 1992).
[18] Severance for Abarca. Abarca’s trial counsel submit-
ted to the court a request that the trial be severed or at least
continued. Her motion was denied, and he now appeals the
denial. His argument may be more appropriately addressed in
an action of habeas corpus because it focuses on deficiencies
in his counsel’s performance. See United States v. Simas, 937
F.2d 459, 463 (9th Cir. 1991).
CONCLUSION
For the reasons stated, the judgment of the district court is
AFFIRMED.