North Carolina Lawyers Weekly
Six defendants tried together were properly convicted of murder and attempted murder offenses related to their gang membership. Their convictions were upheld despite challenges to prosecutorial conduct, jury instructions, evidence admitted at trial, joint trial, access to counsel, warrantless cell record access, and sentencing of young defendants without consideration of mitigating factors.
Background
Defendants Jesus Alejandro Chavez, Alvin Benitez, Omar Castillo, Jose Torres, Christian Cerna, and Manuel Guevara are members of the MS-13 gang. This case arises out of a series of violent crimes committed by the gang during 2013 and 2014.
In October 2013, Torres and other MS-13 gang members attempted to murder a fellow gang member who had broken MS-13’s rules. Several days later, gang members including Torres and Castillo murdered Nelson Trujillo, a gang member suspected of being an informant. In March 2014, Castillo, Cerna, Benitez, and Guevara murdered Gerson Aguilar for breaking MS-13 rules. Finally, on June 19, 2014, defendant Chavez murdered Julio Urrutia for disrespecting MS-13.
In June 2015, a grand jury indicted the six appellants and seven other MS-13 members for their involvement in these crimes. Among other charges, each defendant was indicted for either murder in aid of racketeering or conspiracy to commit murder in aid of racketeering. A jury found each defendant guilty of each charge against him.
After sentencing, the defendants appealed, asserting that the government violated its duties under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959). Certain defendants also challenge their convictions based on alleged deficiencies in the jury instructions, erroneous evidentiary rulings, failure to grant severance motions, violations of statutory rights to counsel, and insufficient evidence. Two defendants also challenge their sentences on constitutional grounds.
Brady challenge
During the government’s investigation, an informant called “Junior” secretly recorded phone calls with the Defendants and was eventually led to the bodies of two murder victims. Junior’s trial testimony helped to establish the validity of forensic evidence obtained from the victims’ bodies.
Through his cooperation, Junior gained significant immigration benefits, including deferred action to allow him to stay in the U.S. to continue his work with the FBI. Junior also applied for and received a green card prior to trial in this case. While the green card was largely obtained through regular immigration proceedings, the FBI did write a letter to immigration authorities on his behalf.
These immigration benefits were extensively discussed at trial. Defense counsel requested a subpoena duces tecum for Junior’s immigration documents. Because counsel acknowledged that his request was based solely on “a feeling … that there’s something in [the immigration documents] that goes to truthfulness,” the district court denied the request.
In a separate proceeding regarding another MS-13 defendant, the government produced three immigration forms on which Junior had failed to fully disclose his prior criminal convictions and his connections to MS-13. All of Junior’s convictions and his MS-13 connections appeared elsewhere in his immigration file. After these disclosures, the district court in this case ordered the government to produce the same documents, but ultimately denied the Defendants’ motion for a new trial.
This purportedly suppressed evidence was not material under Brady. Much of Junior’s value stemmed from his investigative work prior to trial and the evidence he helped the government obtain, rather than from his testimony. At trial, the government had at least two eyewitnesses testify for each murder. The government also provided hours of recorded phone calls in which the Defendants implicated themselves and each other in the charged crimes. Physical and forensic evidence further implicated them. Impeaching Junior’s testimony by reference to his gang or other criminal history would have done almost nothing to undermine this body of evidence.
The defense also had repeated opportunities to impeach Junior’s testimony throughout the trial. Junior was extensively cross-examined about the immigration benefits he received from his government cooperation, and the responses elicited were contradictory at times. It cannot be that Junior’s omission of criminal convictions and gang membership on some – but not all – of his immigration forms tips the balance of the evidence sufficiently to throw the jury’s entire verdict into question.
Napue challenge
For similar reasons, the Defendants’ Napue challenge must also fail. Junior’s initial testimony regarding the FBI’s letter, though incomplete and misleading at best, was corrected when Junior admitted on cross-examination that he personally delivered the letter to the immigration judge. It is difficult to imagine how a conviction could have been obtained by the knowing use of perjured testimony when that testimony was almost immediately corrected by the witness himself.
It is unclear what more the government could or should have done to correct the false testimony once Junior had corrected himself on the stand. Indeed, the government had no knowledge of Junior’s hand-delivery of the FBI letter until he mentioned it on cross-examination. This flaw is fatal to the Defendants’ Napue argument.
Even if it were not, the claim would falter on materiality. Junior had already admitted that investigators helped him gain immigration benefits. The further detail that the FBI’s letter actually made it to the immigration judge is thus of at best minor additional impeachment value.
Jury instructions
Appellant Cerna, convicted of murder in aid of racketeering for Aguilar’s death, contends that the district court erred in declining to give instructions on the lesser-included crimes of assault and attempt. But no evidence supported instructions on either assault or attempt with respect to Aguilar’s murder.
Cerna claims that a jury could have concluded that he was part of an attempt to kill or injure Aguilar while others actually committed the act, without his participation. Cerna also points to conflicting evidence at trial on which defendants were present at Aguilar’s murder and, of those present, which had prior knowledge that Aguilar was to be murdered.
None of these disputes would support finding Cerna guilty of attempt or assault, rather than murder. Cerna was charged both as a principal and as an aider and abettor, so he need not have physically committed the murder in order to be found guilty. No reasonable jury could have found him guilty of assault or attempt but not murder.
The district court also did not err in instructing the jury on the “purpose” element of racketeering crimes. The instruction was that the government had to “prove beyond a reasonable doubt that at least one of the defendant’s purposes in committing the violent crimes … was to gain entrance into, maintain or increase his position in a racketeering enterprise.” The jury was told it “need not find that maintaining or increasing position in the enterprise was the defendant’s sole or even principal move.”
By contrast, Cerna asked for an instruction that maintaining or increasing his position in the enterprise must be “one of the defendant’s dominant purposes in committing the crime.” Applying this circuit’s precedent, the district court properly rejected this proposed instruction. The jury instructions given provided an accurate statement of the law.
Evidence of crime not charged
The district court did not abuse its discretion by admitting evidence of Cerna’s involvement in Trujillo’s murder, with which he was not charged.
The trial court permitted the government to introduce redacted transcripts of recordings that, in their unredacted form, implicated Cerna in Trujillo’s murder, as well as evidence of Cerna’s involvement in the reburial of Trujillo’s body after his murder.
The evidence presented at trial did not identify Cerna as Trujillo’s murderer; it simply established that he was involved in Trujillo’s reburial. The trial included extensive evidence regarding other defendants’ involvement in Trujillo’s murder, and no evidence at all that Cerna was involved in the murder. Thus, the question of whether evidence of Cerna’s involvement in the murder would have been admissible at trial is not properly before us.
Cerna is not entitled to a mistrial or a new trial. Evidence of Trujillo’s reburial would have minimal prejudicial effect when the trial necessarily included detailed evidence of Aguilar’s murder as well as evidence regarding Trujillo’s murder by other defendants. Whatever prejudice existed was also minimized by specific jury instructions to the effect that Cerna was not charged with any crime related to Trujillo and that the reburial evidence could be used for only limited purposes.
Severance
The Defendants were not entitled to separate trials. These cases demonstrate the extent to which it would strain judicial and community resources to provide each defendant a separate trial in every case.
Particularly in cases like this one, where a primary focus of the trial was the interwoven relationships among defendants, separate trials would be repetitive, requiring witnesses to provide the same testimony many times. The trial in this case was already seven weeks long; separate trials for each of the six defendants would inevitably have stretched out over the course of months or even years.
As in United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012), each Defendant here was charged with involvement in at least one murder, so any prejudice stemming from dramatically different degrees of culpability was especially unlikely. And the district court gave appropriate limiting instructions that further lessened any risk of unfair prejudice.
Defendants Benitez, Castillo, and Cerna request severance on the distinct ground that defendant Guevara presented an antagonistic defense. But Guevara’s defense does not rise to the level articulated in United States v. Lighty, 616 F.3d 321 (4th Cir. 2010). He argued that he was not guilty because he, unlike others involved in Aguilar’s murder, lacked foreknowledge of the murder plot. This defense is not inconsistent with the defenses of Benitez, Castillo, or Cerna, all of whom emphasized that the government could not prove who was present at Aguilar’s murder, who participated in the murder, who knew of the murder plot in advance, or the motives of those who murdered Aguilar. Thus, the core of Guevara’s defense was perfectly consistent with the core of the defense presented by Benitez, Castillo, and Cerna — everyone was essentially disclaiming personal responsibility for Aguilar’s death.
Entitlement to two lawyers
The district court did not err in denying Guevara two lawyers under 18 U.S.C. § 3005. It initially appointed two attorneys for Guevara: D. Baugh as learned counsel and W. Chick as second-chair counsel. Two months before trial was scheduled to begin, however, Baugh notified the government that he would be unable to proceed with the trial as scheduled due to a medical issue. Chick was unable to find a suitable replacement attorney who was willing to take the case without a continuance. The district court declined to grant a severance and continuance, but indicating willingness to appoint a substitute attorney should one be identified.
The statute does not directly address what is required of a district court under these circumstances. The district court must thus be afforded some measure of discretion to determine what justice requires in a particular case. The district court reasonably exercised its discretion here.
After a brief search for replacement counsel, Chick apparently ceased his efforts to find an additional attorney for Guevara, and he never requested that the district court itself identify and appoint new counsel. Neither Guevara nor Chick actually invoked § 3005 requesting that the district court assign a substitute attorney to replace Baugh.
Granting a severance and continuance to Guevara would have placed government witnesses in potential danger and strained the government’s resources. The district court balanced these potential harms against Guevara’s interests. Finding that Guevara had already received the substantial benefit of a second attorney through the pre-trial period, the district court determined that Guevara would have a fair trial even if Baugh were removed from the case and Chick were his only counsel at trial.
Ultimately, Guevara’s complaint boils down to frustration that the withdrawal of one of his lawyers was not handled precisely as he would have wished. But defendants are not invariably entitled to go to trial with their preferred counsel, and 18 U.S.C. § 3005 does nothing to strip the district court of its ordinary powers of trial management. The district court did not abuse its discretion by removing Baugh from the case and proceeding to trial as scheduled.
Cell phone records
Appellant Chavez contends that his cell phone records were unconstitutionally obtained without a warrant and that the resulting evidence should have been suppressed at trial as a result.
Carpenter v. United States, 585 U.S. ___ (S. Ct. June 22, 2018), made clear that the government’s acquisition of the defendant’s cell site records was a search within the meaning of the Fourth Amendment. While Carpenter is obviously controlling going forward, it can have no effect on Chavez’s case. When investigators act with an objectively reasonable good-faith belief that their conduct is lawful, the exclusionary rule will not apply.
Chavez does not, and cannot, deny that investigators in this case reasonably relied on court orders and the Stored Communications Act in obtaining the cell site records. Without question, then, the good-faith exception to the exclusionary rule applies to investigators’ actions here.
Consideration of youth
Finally, Appellants Guevara and Cerna challenge their sentences as violations of the Eighth Amendment based on their youth at the time of the crimes. At those times, Cerna was 18 years old and Guevara was 19. Thus, both were adults at the time they committed murder in aid of racketeering. They were convicted under 18 U.S.C. § 1959(a)(1), which provides for punishment “by death or life imprisonment” and does not permit a district court to impose a shorter sentence regardless of mitigating circumstances.
Guevara and Cerna both emphasize that they were barely over this threshold of adulthood at the time they committed their crimes. Individual differences in maturity will necessarily mean that age-based rules will have an element of arbitrariness, particularly when they have such stark differences in effect between those just one week below the cut-off and those just one week above. But rules based on age are historically common and appear in many areas of the law.
The Supreme Court has also held that a capital sentence cannot be imposed without individualized consideration by the jury of any mitigating factors. But these defendants were sentenced to life in prison, which does not require such individualized consideration. Accordingly, the district court correctly applied the mandatory life sentence as written by Congress.
Affirmed.
United States v. Chavez (Lawyers Weekly No. 001-115-18, 26 pp.) (Wilkinson, J.) No. 16-4499; July 2, 2018; from EDVA at Alexandria (Lee, J.) Jerome Patrick Aquino and Christopher Bryan Amolsch for Appellants; Tobias Douglas Tobler for Appellee. 4th Cir.
