United States v. Perez

962 F.3d 420

UNITED STATES of America, Plaintiff-Appellee,

v.Javier PEREZ, aka Ranger, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Vladimir Alexander Iraheta, aka Jokes, aka Slick, aka the Twin, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Leonidas Iraheta, aka Druggy, aka Drugs, aka Shysty, aka the Twin, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Eduardo Hernandez, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Eduardo Hernandez, aka Ed Garcia, aka Eduardo Garcia, aka Eduardo Hernadez, aka Eduardo Perez Hernandez, aka Edward Hernandez, aka Lil Oso, aka Jorge Mateo Martinez, aka Oso, aka Hernandez Oso, aka Edward Perez, aka Terco, Defendant-Appellant.

No. 13-50014

No. 15-50241

No. 15-50243

No. 18-50187

No. 15-50246

No. 18-50181

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 10, 2020 Pasadena, California

Filed June 11, 2020

Katherine Kimball Windsor (argued), Law office of Katherine Kimball Windsor, Pasadena, California, for Defendant-Appellant Eduardo Hernandez.

Lawrence Jay Litman (argued), Riverside, California, for Defendant-Appellant Javier Perez.

Phillip A. Treviño, Los Angeles, California, for Defendant-Appellant Vladimir Alexander Iraheta.

Timothy A. Scott and Nicolas O. Jimenez, Scott Trial Lawyers APC, San Diego, California; for Defendant-Appellant Leonidas Iraheta.

Julia L. Reese (argued) and Kevin M. Lally, Assistant United States Attorneys; Brandon D. Fox, Chief, Criminal Division; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Marsha S. Berzon, Richard C. Tallman, and Ryan D. Nelson, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

This is a criminal appeal from judgments of conviction and sentence rendered in the Central District of California arising from the prosecution of four members of a violent street gang. We affirm the convictions and sentences of Appellants Eduardo Hernandez, Leonidas Iraheta, and Vladimir Iraheta. We affirm in part and reverse in part the convictions of Appellant Javier Perez, vacate his sentence, and remand for further proceedings.

I

The Columbia Lil Cycos (CLCS) clique of the 18th Street gang controlled drug distribution, committed extortion, and engaged in other illegal activities in the Westlake neighborhood of Los Angeles from at least the mid-1990s. CLCS and allied gangs operate under the umbrella of the Mexican Mafia (the "Eme"), a prison-based gang whose members, once behind bars, continue to oversee the street gangs with which they were affiliated before their incarceration.

When a street vendor defied CLCS's extortion regime in September of 2007, the gang sent a gunman to murder him for his impunity. But one bullet missed the vendor and tragically killed 21-day-old Luis Angel Garcia. Baby Garcia's death provoked an outcry for action from the community and triggered a massive law enforcement response. An initial federal indictment of eighteen CLCS members and associates soon issued. The fourth superseding indictment—the operative pleading here—charged a total of twenty-four defendants with twenty-one counts of racketeering, drug trafficking, money laundering, murder, assault, maiming, kidnapping, and various conspiracies and attempts to do the same. By the time of trial in early 2012, only these four Appellants remained to be tried. Their confederates all pleaded guilty, and several—including former CLCS leaders Sergio Pantoja, James Villalobos, and Jose Delaguila—testified for the government at Appellants’ trial.

The trial began on February 29, 2012. Appellants were tried together on the theory that they were all members of an illegal enterprise which carried out its nefarious activities through a pattern of racketeering activity. The criminal endeavors of Hernandez, Leonidas Iraheta ("Leonidas"), and his twin brother Vladimir Iraheta ("Vladimir"), on the one hand, and Perez on the other, were different: Hernandez and the Iraheta twins were convicted for their roles in running CLCS's narcotics and extortion activities, while Perez's convictions arose out of his participation in a conspiracy to kidnap and murder the gunman responsible for baby Garcia's death, Giovanni Macedo, to protect CLCS from reprisals by the Eme for the infant's murder.

The CLCS Enterprise

By the mid-1990s, CLCS had come to dominate the Westlake/MacArthur Park neighborhood of Los Angeles, between Beverley Avenue and Wilshire Boulevard (north to south) and Alvarado Street and Burlington Avenue (west to east). A constituent clique of the broader 18th Street gang, CLCS fought the Mara Salvatrucha and, especially, Rockwood Street gangs for primacy in Westlake. CLCS ran a sophisticated drug-trafficking and extortion racket in its territory. Drug wholesalers ("mayoristas") and street-level dealers ("traqueteros") paid CLCS "rent" for the right to sell drugs—mostly crack cocaine—on the street corners near MacArthur Park. The dealers were strictly controlled: a traquetero who broke CLCS rules by selling outside his allotted shift or skimming money off his collections was liable to be savagely beaten. Other illegal businesses—document forgers, gamblers—paid rent to CLCS, too, as did many legitimate businesses in the neighborhood, under threat of violence.

CLCS ruthlessly defended its territory from encroachment. Armed bands of roving, gang-affiliated youths ("little homies") were expected to "put in work" by marking CLCS territory with copious graffiti and undertaking expeditions into rival neighborhoods to show strength and disrespect. Violence abounded: if a rival gang passed through CLCS streets or marked them with graffiti, gang leaders expected associates to "[j]ump them," or, as one CLCS leader put it, to give them "[a]n ass beating that ... maybe he can't get up off the floor and ... sometimes if you have a gun or you have a knife ... you either just stab them or you shoot them."

Witnesses for the government put Hernandez and the Iraheta twins at the center of both CLCS "gangbanging"—meaning tagging, enforcing, and countering rivals—and drug distribution. Hernandez led the collection of rents at a lucrative drug-dealing hub, Westlake, from Third to Sixth Streets, in addition to overseeing gangbanging. One witness called him "the ultimate decisionmaker" on "what to do if any problems occurred—meaning enemies coming into our neighborhood or ... homeboys going against homeboys or whatever." Leonidas and Vladimir served as Hernandez's "muscle," assisting him with rent collection and leading "missions" into rival territory to "go do something to a rival gang or to someone else; rob, tag on the walls, anything."¹

CLCS was led by Francisco Martinez, who—despite being incarcerated at the "Supermax" federal prison complex in Florence, Colorado—maintained control over CLCS and other Los Angeles 18th Street cliques from his cell. Originally a member of CLCS himself, Martinez was convicted of "[r]acketeering and a bunch of murders" in the 1990s and thereupon joined the Eme, which continues to wield control over most of the Hispanic gangs of Southern California. Martinez maintained his grip over CLCS with the help of disgraced attorney Isaac Guillen, who testified for the government in Appellants’ trial. Guillen used the shield of the attorney–client privilege to circumvent Florence's security procedures, secreting and passing information and orders to and from Martinez and CLCS's street leaders.

CLCS leaders, including Hernandez and both Irahetas, would divvy up all the rent collected, section off Martinez's share—usually $5,000 to $17,000 a week—and deliver it to Guillen. Guillen would launder the money by investing it in a variety of businesses, funneling it to Martinez's relatives in Mexico, or putting it on Martinez's inmate "books" at Florence. This scheme enriched Martinez and enabled him to continue to exercise control over this lucrative and violent Los Angeles neighborhood.

The Garcia Murder and its Aftermath

Francisco Clemente sold black-market goods at a street stand in CLCS territory. He got on the wrong side of CLCS leaders by acting disrespectfully and refusing to pay rent. In the summer of 2007, CLCS leader Pantoja tired of Clemente and chased him out of the neighborhood, telling rent-collector Juan Pablo Murillo to "take care of it" if Clemente returned. When Clemente did return, Murillo enlisted Macedo—then 18 years old—to show Clemente what became of those who defied CLCS. Late at night on September 15, 2007, Macedo and Murillo made their way to Clemente's stand on Sixth Street, and Macedo fired several shots at him. Clemente was wounded but survived. 21-day-old Garcia was not so lucky—he was struck and killed by a stray bullet.

When he found out what had happened, Pantoja testified that he told Murillo the latter had "fucked up" by killing baby Garcia, violating the Eme's strict code against murdering infants and potentially triggering a gang-wide "green light" whereby all CLCS members would become targets for murder by other Eme-affiliated gangs. Pantoja told Murillo that Macedo "had to be dealt with." Murillo, a member of an allied 18th Street clique—South Central—enlisted the help of fellow South Central member Javier Perez. At around 10 p.m. on September 19, Murillo and Perez went to the home of another South Central member, Flor Aquino, and demanded the use of her Chevrolet Tahoe, purportedly to take Macedo to San Diego to hide out. Aquino reluctantly agreed, but decided she would do the driving. Murillo and another gang member went to Macedo's apartment, ordered him into the car, and drove away before informing him they were taking him to Mexico. They met up with Aquino and Perez at Aquino's home, and together Murillo, Perez, Aquino, and Macedo departed for Mexico.

Across the border in Tijuana the next day, Aquino stayed with Macedo in the hotel while Murillo and Perez met up with Pantoja, who...