United States v. Garcia

793 F.3d 1194

UNITED STATES of America, Plaintiff–Appellee

v.Pedro GARCIA, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Gonzalo Ramirez, Defendant–Appellant.

Nos. 14–3006

14–3081.

United States Court of Appeals, Tenth Circuit.

July 14, 2015.

J. Val Wachtel, Klenda Austerman LLC, Wichita, KS, for Appellant Pedro Garcia.

Andrew J. McGowan, Assistant Federal Public Defender, (Melody Brannon Evans, Federal Public Defender, with him on the brief), Topeka, KS, for Appellant Gonzalo Ramirez.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Appellee.

Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges.

Opinion

HARTZ, Circuit Judge.

Defendants Pedro Garcia and Gonzalo Ramirez were convicted of conspiring with other members of their criminal gang to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), see 18 U.S.C. § 1962(d). They were also convicted of committing various violent crimes in aid of racketeering, see id. § 1959 (VICAR), and multiple firearm counts, see id. § 924(c)(1)(A). They challenge their convictions, arguing that (1) the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose promises made to a key cooperating witness; (2) the government put on false evidence at trial in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) ; (3) the jury was incorrectly instructed that the jurisdictional element of RICO requires showing only a minimal effect on interstate commerce; (4) VICAR was unconstitutionally applied because their violent crimes did not affect interstate commerce; and (5) the court erroneously admitted testimonial hearsay under the guise of a gang expert's opinion, in violation of the Confrontation Clause.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We hold that (1) the government did not violate Brady because the undisclosed evidence was not material; (2) the government did not violate Napue; (3) the challenge to the interstate-commerce jury instruction on the RICO charge fails because it is based on the false premise that there was no evidence that the RICO enterprise engaged in economic activity; (4) the challenge to the VICAR convictions fails because it is based on the same false premise; and (5) testimonial hearsay was erroneously admitted but harmless because it was cumulative of other testimony.

I. BACKGROUND

A. The Evidence at Trial

According to trial testimony by Shane Webb, a government “gang expert” and former Dodge City, Kansas police officer, the city was home to four rival gangs from at least 2008 to 2012. The Diablos Viejos (DVs) and Los Carnales Chingones were “sets” under the Norteños (Northerners) gang. Ramirez R., Vol. III at 926. Members of both sets wore red. Their rivals, who wore blue, were the Master Criminal Boys and 18th Streeters, sets under the Sureños (Southerners) gang. The DVs, to which Defendants belonged, engaged in criminal activity including assaults, batteries, robberies, shootings, homicides, and drug trafficking. Trial testimony concerned both the general criminal activities of the gang and three criminal incidents in particular.

1. The House Shooting

The first incident involved Defendant Ramirez (but not Defendant Garcia), who was convicted of wounding two victims by shooting into their house. Juan Torres, a DV member, was the principal witness to the events. On the night of October 4, 2008, Ramirez drove Torres, Angel Cerda, and two women to the house of the Hernandez family. An altercation erupted between those in the vehicle and several men outside the house. Enraged, Ramirez drove with his passengers back to his house, where he picked up a rifle. They returned to the Hernandez neighborhood, parking in an alley near the Hernandez house. Ramirez, rifle in hand, ran through the alley and turned a corner toward the house. At least 19 shots were fired at the house. One hit the sleeping Rumalda Hipolito in the arm, and another hit her son, 18–year–old Abel Hernandez, in the leg. Ramirez returned to his car and drove it to Cerda's property, parking the car in a barn. Cerda went to his house while the others fled into a nearby field, hiding in the tall grass until the coast was clear.

2. The Home–Invasion Robbery

The next incident involved both Defendants. Jesus Flores was the principal witness. On June 8, 2009, Defendants and at least two others affiliated with the Norteños, Jesus and Josh Flores, robbed the occupants of a house. That evening Defendants and the Floreses were at Garcia's house when they left to go look for “scraps,” id. at 1727, meaning Sureños. Jesus Flores and Ramirez (and perhaps others) had guns. The group traveled through the alley behind Garcia's house for a couple of blocks before stopping to break into the house of Isidoro Raleas–Velasquez, a Guatemalan immigrant. After Ramirez checked things out by peering through a side window, he and the others entered the house through the front door. Raleas and another occupant, Alonzo Diego–Hemon, were in the living room watching television when the invaders burst in. Ramirez grabbed Raleas and struck him on the head with his pistol. Ramirez (and perhaps others) then took Raleas into his bedroom and stole $800 in cash. While this was going on, Diego was forced to the ground at gunpoint. The other assailants acted as lookouts and rummaged through the house for items to steal. The group returned to Garcia's house and split the money.

3. The Trailer–Park Shooting

After the home-invasion robbery, Defendants and two other Norteños, cousins Anthony Wright and Russell Worthey, continued the night's criminal activities. Several witnesses testified about the events.

a. Wright's Account

According to Wright, late in the afternoon of June 8 he drove his girlfriend's gold Mazda to Worthey's house and picked him up. They drove around Wright's trailer park and spotted a group of people having a party in front of a trailer. All were wearing blue, so Wright decided that they were Sureños.

After dark they drove to Garcia's house, knocked on the back door, and waited. A few minutes later, as they were about to leave, they saw Defendants and Jesus and Josh Flores down the alley, running toward the house. At least some of them had red bandanas over their faces. Everyone went inside the house to the living room. Wright saw Defendants and the Floreses splitting up some cash. They told him that they had just completed a home invasion. Wright also saw that Defendants and Josh Flores had firearms, and Jesus probably did as well. Someone suggested they go look for Sureños.

Everyone left. Wright, Worthey, and Defendants got into the Mazda. Wright drove, Worthey sat in the front passenger seat, Garcia sat in the back-left passenger seat, and Ramirez sat in the back-right passenger seat. Defendants each had a gun. Recalling that he had seen Sureños in the trailer park earlier in the day, Wright drove there. They drove by the people in blue he had seen earlier, who were still in front of their trailer. After parking some distance away, the four men got out of the car and headed through the trailers toward the group. Defendants were in the lead, with guns in their hands and bandanas over their faces.

They approached the group from behind their trailer, then came around to the front. Someone said “puro Norte” (pure north), and Defendants opened fire while the victims attempted to flee. Id. at 1289. Wright and Defendants ran back to the car, sitting in the same seats as before. They then picked up Worthey. As they drove off, Ramirez said to Garcia, “[Y]ou got that one.” Id. at 1291. Sometime later Garcia made a comment about everyone having kids, which Wright understood to mean that they should be quiet about the shooting to protect their families. Wright dropped off Defendants, then Worthey.

b. Worthey's Account

Worthey's testimony matched Wright's in most respects. On June 7 (the day before the shooting) he was picked up by Wright and they drove to a trailer park, where they saw two persons outside on a porch. Wright flashed a gang sign at them, but they did not respond. Wright said that Sureños lived at that house.

The next day, June 8, as it was getting dark Wright picked up Worthey at his house to go cruising in Wright's gold Mazda. They eventually drove to Garcia's house, knocked on the back door, and turned to leave when nobody answered. But they then heard rapid footsteps and saw Defendants and the Floreses approaching from the alley. Two of the four had bandanas over their faces. Everyone went inside. Worthey saw that Josh Flores had a pistol, but he did not see any cash.

Defendants, Worthey, and Wright then got into Wright's Mazda to go for a cruise. Worthey did not see either Defendant with a gun. Wright drove, with Worthey in the front passenger seat, Garcia in the back-left passenger seat, and Ramirez in the back-right. In the car Defendants discussed a home invasion that, Worthey gathered, had just taken place. After cruising around for an hour or so, the group drove to the trailer park. As they approached the location of the eventual victims, Wright said that there were some Sureños who lived nearby. They drove by the victims' trailer and saw a group of men outside drinking beer. “[W]e're going to get these mother fuckers,” Garcia said. Id. at 1476.

Wright parked the car some distance away. He and Defendants got out of the car, and Defendants put bandanas over their faces. Worthey was hesitant to follow, but Ramirez said to him, “Let's go home boy.” Id. at 1479. Worthey understood this as an order from the high-status Ramirez that he had to go with the group or else suffer a “violation,” id. at 1481, meaning a beating or other discipline. Worthey followed the rest of the group as they approached the trailer immediately behind the victims. They came around to the front of the trailer in a line, with Garcia in front, then...