United States v. Virgen-Mendoza

91 F.4th 1033

UNITED STATES of America, Plaintiff-Appellee, v. Conrado VIRGEN-MENDOZA, aka Mendoza, Defendant-Appellant.

No. 21-10109

United States Court of Appeals, Ninth Circuit

Argued and Submitted December 8, 2022 San Francisco, California

Filed January 26, 2024

Appeal from the United States District Court for the Eastern District of California, Dale A. Drozd, District Judge, Presiding, D.C. No. 1:19-cr-00015-DAD-BAM-3

Peggy Sasso (argued), Assistant Federal Defender; Heather E. Williams, Federal Public Defender; Federal Public Defender's Office, Fresno, California; for Defendant-Appellant.

Michael G. Tierney (argued) and Karen A. Escobar, Assistant United States Attorneys; Camil A. Skipper, Assistant United States Attorney, Appellate Chief; Phillip A. Talbert, United States Attorney; United States Department of Justice, United States Attorney's Office, Fresno, California; for Plaintiff-Appellee.

Before: Jacqueline H. Nguyen and Gabriel P. Sanchez, Circuit Judges, and

Stephen R. Bough,^* District Judge.

OPINION

SANCHEZ, Circuit Judge:

A jury convicted Conrado Virgen-Mendoza ("Conrado") on one count of conspiracy to aid and abet his brother Paulo Virgen-Mendoza's ("Paulo") flight to Mexico to avoid prosecution for the murder of a Newman, California police officer, in violation of 18 U.S.C. § 1073. In this appeal, Conrado challenges the sufficiency of the evidence to support his conviction, arguing the Government failed to establish that he knew about and specifically intended to further the object of the conspiracy—helping Paulo cross the border into Mexico to avoid prosecution. Conrado also contends he was prejudiced by the Government's closing argument suggesting it was not necessary to prove each co-conspirator's knowledge of a plan to assist Paulo's flight to Mexico. Finally, Conrado asserts that the district court abused its discretion by permitting English translations of his interviews with law enforcement to be read to the jury without admitting into evidence the underlying Spanish-language interview recordings. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

In the early morning hours of December 26, 2018, Paulo Virgen-Mendoza shot and killed Police Corporal Ronil Singh during a traffic stop. Around 2:30 a.m., Paulo placed a call to his brother Conrado. An hour later, Conrado left his home in Chowchilla and picked up the brothers' friend Erik Quiroz Razo ("Erik") in Merced before arriving to Paulo's home in Newman, California.¹ Paulo's girlfriend informed Conrado that Paulo shot an officer. Paulo asked Conrado and Erik to help him put plywood at the entrance of his carport to obscure his truck. They then left in Conrado's car and headed in the direction of Patterson, California.

Around 7:30 a.m., law enforcement broadcast the first of several Blue Alerts about the shooting of Corporal Singh. Minutes later, Conrado's wife called Conrado to tell him about the Blue Alert and Paulo's involvement in the shooting of an officer. She told Conrado to drop his brother off and return home. At 7:40 a.m., Adrian Virgen-Mendoza ("Adrian"), Conrado and Paulo's brother, called Paulo after learning about the Blue Alert. They spoke for almost two minutes. Paulo then asked Conrado to take him to their uncle's ranch in Stockton. When Conrado, Paulo, and Erik arrived at the ranch, Paulo asked if he could hide out for a few days. His uncle refused.

At 8:19 a.m., law enforcement broadcast a second Blue Alert conveying the news that Corporal Singh had passed away. Conrado's uncle testified that Paulo stated he was going "to leave" and that he understood this statement to mean leave for Mexico. Conrado's aunt testified that Paulo said he wanted to go to Mexico. According to the aunt, Paulo wanted to stay at their home for three days because he "didn't have any plans. All he wanted to do was go to Mexico." Paulo said he needed to find someone who could get him out. She later testified that when Paulo stated he wanted to "get out," she assumed this meant getting back to Mexico. Conrado, Erik, and Paulo left the ranch. At Paulo's request, Erik threw a plastic bag containing the firearm used in the shooting into a dumpster.

Conrado started driving Paulo and Erik to Fairfield. Paulo told Conrado to pull over because he needed to think about what he was going to do and where he was going to go. Paulo decided they should drive to Erik's house in Merced. After dropping them off, Conrado returned home where his wife called the police. California Highway Patrol Lieutenant Mayolo Banuelos responded to the call and interviewed Conrado in his native Spanish, recording the interview. Lieutenant Banuelos testified that Conrado was very emotional, upset, in tears, and in shock.²

That afternoon, Adrian contacted an acquaintance on Facebook, Deeby Duran, who was known to smuggle individuals across the U.S.-Mexico border. Adrian conveyed to Deeby that he needed to get someone out to Mexico. Deeby responded that she would need an initial payment of $400 and another $200 payment when Paulo was picked up.

That evening, Conrado went to the police station for more questioning. Stanislaus County Deputy Sheriff Jesse Tovar conducted the interview in Spanish and recorded a video of the interview. The next morning, Adrian sent $400 to Deeby. Adrian drove Paulo to a relative's home in Bakersfield where Paulo spent the night. Law enforcement arrested Paulo the following morning.

These events resulted in a multi-count indictment against seven defendants, including Erik Quiroz, Adrian and Conrado Virgen-Mendoza, and several others. Three defendants, including Adrian, pled guilty before trial. A thirteen-day jury trial resulted in guilty verdicts against Erik and Conrado on count three for conspiracy to aid and abet a violation of 18 U.S.C. § 1073, flight to avoid prosecution across state lines.³ The four defendants at trial were acquitted on all remaining counts.

II.

Conrado argues that the district court committed reversible error by permitting the Government to argue in closing that it was not necessary to prove that each co-conspirator knew about Paulo's intention to travel to Mexico. To determine whether the Government misstated the law, we first address whether conspiracy to aid and abet a violation of § 1073 requires proof that each co-conspirator have actual knowledge of the fact giving rise to federal jurisdiction—that they were helping Paulo cross state lines to avoid prosecution.

A.

As the district court observed, the Government charged the defendants with a very unusual conspiracy: to aid and abet the commission of a federal offense that is rarely prosecuted and, in this case, never occurred. To find the defendants guilty under count three, the jury was instructed that the Government must prove each of the following elements of conspiracy beyond a reasonable doubt:

First, beginning on or about December 26, 2018 and ending on or about December 28, 2018, there was an agreement between two or more persons to aid and abet Paulo Virgen Mendoza's flight to avoid prosecution;

Second, the defendant became a member of the conspiracy knowing of its object and intending to help accomplish it;

Third, one of the members of the conspiracy performed at least one overt act on or between December 26, 2018 and December 28, 2018 for the purpose of carrying out the conspiracy.

The district court further instructed that the object of the conspiracy was "to aid and abet Paulo Virgen-Mendoza's flight to avoid prosecution" and that to "aid and abet" means "intentionally to help someone else commit a crime."⁴ The jury was also instructed that "[a] defendant acts with intent to facilitate the crime when the defendant actively participates in a criminal venture with advance knowledge of the crime and having acquired that knowledge when the defendant still had a realistic opportunity to withdraw from the crime."

Finally, the district court instructed that the substantive offense of flight to avoid prosecution under § 1073 requires proof that "Paulo Virgen Mendoza moved or traveled between one state and another or between one state and a foreign country" and that he did so with the intent to avoid prosecution for a felony under the laws of the jurisdiction from which he was fleeing, in this case murder under the State of California.

Prior to closing arguments, the Government advanced the position that it was not necessary to prove that each co-conspirator had actual knowledge that Paulo intended to flee to Mexico. Rather, the Government sought permission to argue that the jury could convict so long as one of the co-conspirators knew Paulo was going to Mexico. The defense argued that this was a misstatement of law and that the object of the conspiracy, moving someone across state or international lines, has to be known to the conspirators at the time they join in the conspiracy. The district court found the Government's argument "about as thin of a reed as you can possibly dance on," but ultimately agreed with the Government over defense counsel's objections. The jury was not present for this colloquy.

The Government subsequently backed away from this position in closing, arguing instead that the conspirators all knew Paulo intended to make his way to Mexico. See infra Section II.B. On appeal, the Government continues to assert that conspiracy to violate a federal criminal statute does not require proof that each co-conspirator have knowledge of the statute's jurisdictional element, citing United States v. Chang Ru Meng Backman, 817 F.3d 662, 667 (9th Cir. 2016) and United States v. Feola, 420 U.S. 671, 676 n.9, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). While that may be true as a general matter, we explain why the Government is incorrect under the circumstances of this case.

Backman involved a criminal prosecution for sex trafficking under 18 U.S.C. § 1591(a). The statute requires proof that a defendant "knowingly—(1) in or affecting interstate or foreign commerce . . ....