United States v. Gabriel Perez-Amaya , 453 F. App'x 302 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4988
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GABRIEL HOSMAN PEREZ-AMAYA, a/k/a Dandy,
Defendant - Appellant.
No. 09-4989
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAFAEL PARADA-MENDOZA, a/k/a Cheve, a/k/a Chevi, a/k/a
Cheby,
Defendant - Appellant.
No. 09-4991
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE PARADA, a/k/a Enrique Blaco Hernandes, a/k/a Rama,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00132-LO-1; 1:08-cr-00132-LO-2; 1:08-cr-00132-
LO-3)
Argued: May 10, 2011 Decided: November 9, 2011
Before WILKINSON and SHEDD, Circuit Judges, and David C. NORTON,
Chief United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James Goodman Connell, III, CONNELL, SHELDON & FLOOD,
P.L.C., Fairfax, Virginia; John O. Iweanoge, II, IWEANOGE LAW
CENTER, Washington, D.C., for Appellants. Michael John Frank,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Lara K. Eilhardt, CONNELL, SHELDON & FLOOD,
P.L.C., Fairfax, Virginia, for Appellant Gabriel Hosman Perez-
Amaya; Michael S. Arif, Dimitri Willis, MARTIN, ARIF & GREENE,
P.L.C., Springfield, Virginia, for Appellant Rafael Parada-
Mendoza. Neil H. MacBride, United States Attorney, Inayat
Delawala, Jonathan L. Fahey, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Gabriel Perez-Amaya and Rafael Parada-
Mendoza of conspiracy to commit murder in aid of racketeering in
violation of 18 U.S.C. § 1959(a)(5) (Count One); murder in aid
of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Count
Two); attempted murder in aid of racketeering in violation of 18
U.S.C. § 1959(a)(5) (Count Three); use of a firearm during a
crime of violence resulting in death in violation of 18 U.S.C. §
924(j) (Count Four); possession of a firearm by an illegal alien
in violation of 18 U.S.C. § 922(g)(5) (Counts Five and Six); and
conspiracy to distribute cocaine in violation of 18 U.S.C. § 846
(Count Seven). Co-defendant Jorge Parada was only convicted of
conspiracy to distribute cocaine on Count Seven. The charges
arose from the defendants’ involvement in a multistate drug
trafficking organization as members of Pinos Locos Salvatruchas
(“PLS”), a clique of MS-13, and the related murder of Christian
Argueta, a member of a rival gang, the South Side Locos (“SSL”).
The district court sentenced Perez-Amaya and Parada-Mendoza to
terms of life imprisonment and Parada to a term of three hundred
months imprisonment. We affirm.
On appeal, appellants jointly claim that the district court
erred in barring admission of a video and permitting hearsay
testimony from an expert witness. Additionally, Parada
challenges the sufficiency of the evidence against him and
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claims the district court improperly charged the jury and failed
to consider the 18 U.S.C. § 3553(a) sentencing factors. For the
reasons that follow, we reject the defendants’ arguments.
I.
Appellants argue that the district court erred in excluding
a video offered to demonstrate the bias of SSL gang member
Ishmael Rangel, who witnessed the shooting of Christian Argueta
and testified for the government. Members of SSL made the video
in question to honor the memory of their fallen SSL gang member
Argueta. The video contains slides of SSL members displaying
gang signs and tattoos, partying, and holding weapons. The
video also contains images of Argueta overlaid with memorial
symbols, as well as images conveying SSL’s animosity toward MS-
13 and the police. Most of the SSL gang members featured in the
slides had no apparent connection to the trial, and very few
slides contained images of Argueta or Rangel.
A defendant has a right under the Sixth Amendment’s
Confrontation Clause to cross-examine government witnesses on
matters bearing on credibility or bias. Crawford v. Washington,
541 U.S. 36, 59-61 (2004). “Bias . . . describe[s] the
relationship between a party and a witness which might lead the
witness to slant, unconsciously or otherwise, his testimony in
favor of or against a party.” United States v. Abel, 469 U.S.
4
45, 52 (1984). The Sixth Amendment, however, does not guarantee
a defendant an unlimited right to present every piece of
evidence that could establish the potential bias of a witness.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). “[T]rial
judges retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on . . . cross-
examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally
relevant.” Id.; United States v. Bodden, 736 F.2d 142, 145 (4th
Cir. 1984) (internal quotation marks omitted) (“[The
Confrontation Clause] is not so broad as to deprive the district
court of all discretion in limiting needless or confusing
inquiry into collateral matters. The Confrontation Clause must
yield to evidentiary rules when their application is
reasonable.”). This Court reviews a district court’s exclusion
of bias evidence for abuse of discretion, even if there is a
potential Confrontation Clause violation, United States v.
Turner, 198 F.3d 425, 429 (4th Cir. 1999), and will uphold a
district court’s decision unless it is “arbitrary or
irrational.” United States v. Hill, 322 F.3d 301, 306 (4th Cir.
2003).
In United States v. Abel, 469 U.S. 45, 52 (1984), the
Supreme Court found that evidence of the attributes of a prison
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gang demonstrated not only the existence of bias, but also the
“source and strength” of that bias; therefore, it was not error
for the district court to permit the government to explore the
gang’s tenets on cross examination. Here, the district court
permitted substantial cross examination regarding Rangel’s
membership in SSL, the gang’s violent nature, and its hatred of
MS-13. The district court noted that Abel did not require it to
admit duplicative evidence concerning the source and strength of
a witness’ bias, and thus, refused to admit the video, holding
that the cross examination of Rangel sufficiently covered all
relevant material related to the issue of his bias against
members of MS-13.
The district court gave appellants wide latitude to
thoroughly explore the source and strength of Rangel’s bias
during cross examination. Specifically, Rangel testified that
he and Argueta were members of SSL, that members of SSL consider
themselves enemies of MS-13, that Argueta had considered himself
an enemy of MS-13, that he (Rangel) considered himself an enemy
of MS-13, and that he had fought with MS-13 in the past because
it was a rival gang and fighting with a rival gang increased a
member’s street credibility. Rangel also testified that the
primary purpose of SSL is to fight and party and described the
gang’s violent initiation rituals. This testimony demonstrated
the source and strength of Rangel’s bias in much clearer terms
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than the excluded video and addressed all the beliefs of the
gang that could have been seen in the video and more. The
admission of the video would have been cumulative at best.
While appellants claim that Rangel’s testimony on direct
made it appear that he was ambivalent towards MS-13, appellants
were permitted to demonstrate Rangel’s dedication to the
principles of SSL on cross examination. “[T]he Confrontation
Clause guarantees only ‘an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’” United
States v. Owens, 484 U.S. 554, 559 (1988) (quoting Kentucky v.
Stincer, 482 U.S. 730, 739 (1987)). For purposes of the
Confrontation Clause, “it is sufficient that the defendant has
the opportunity to bring out such matters as the witness’ bias,”
and the district court is not required to allow the defendant to
use every means available to make his point. Id.; United States
v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994) (holding that once
defendants have been permitted to expose the witness’ bias, “it
is of peripheral concern to the Sixth Amendment how much
opportunity defense counsel gets to hammer that point home to
the jury”). Since the district court gave appellants ample
opportunity to thoroughly cross examine Rangel on the source and
strength of his bias against appellants, it did not abuse its
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discretion by refusing to admit the video. See Van Arsdall, 475
U.S. at 680.
II.
Appellants challenge the district court’s admission of the
expert testimony of Detective John Farrell, arguing that
Detective Farrell served as a conduit for inadmissible hearsay
in violation of Federal Rule of Evidence 702 and 703 and the
Confrontation Clause.
We review evidentiary rulings for abuse of discretion.
United States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009).
According to Rule 702, in those situations where “scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue,” testimony by “a witness qualified as an expert by
knowledge, skill, experience, training, or education” is
permissible so long as “(1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.”
Under Rule 703, experts can testify to opinions based on
inadmissible evidence, including hearsay, if “experts in the
field reasonably rely on such evidence in forming their
opinions.”
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The district court did not abuse its discretion by
permitting Detective Farrell to testify as an expert concerning
MS-13’s general practices and history. Detective Farrell
formulated his opinions on a specialized area outside the common
knowledge of a typical jury based on his many years of observing
MS-13, studying its methods, speaking to its members,
investigating its members’ personal lives, and receiving
training on the gang from law enforcement both locally and
internationally. The district court also did not abuse its
discretion by finding Detective Farrell’s methodology sufficient
under Rule 702 to formulate opinions on the general nature,
structure, history, and activity of the gang, especially since
the district court allowed appellants to demonstrate the limits
of Detective Farrell’s opinion through extensive voir dire and
cross examination. Furthermore, the hearsay in question which
included custodial interrogations, writings of MS-13 members
discovered in the course of investigations, law enforcement
conferences, and educational and training materials, gleaned
through traditional law enforcement procedures, is the type
reasonably relied upon by experts in the law enforcement field;
thus, Detective Farrell’s testimony did not violate Rule 703.
See United States v. Steed, 548 F.3d 961, 975 (11th Cir. 2008).
Under Crawford v. Washington, the Confrontation Clause
“forbids the introduction of testimonial hearsay as evidence in
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itself,” but does not “prevent[ ] expert witnesses from offering
their independent judgments merely because those judgments were
in some part informed by their exposure to otherwise
inadmissible evidence.” United States v. Johnson, 587 F.3d 625,
635 (4th Cir. 2009) (citing 541 U.S. at 61). An expert may not
be “used as little more than a conduit or transmitter for
testimonial hearsay,” but if the expert is “applying his
training and experience to the sources before him and reaching
an independent judgment, there will typically be no Crawford
problem.” Id. Accordingly, the question before us is “whether
the expert is, in essence, giving an independent judgment or
merely acting as a transmitter for testimonial hearsay.” Id.
Applying the test here, we find no Crawford violation.
Detective Farrell stated numerous times that his opinions were
drawn from the totality of his experience, rather than one
statement or one source in particular, which is consistent with
the general nature of his testimony. Detective Farrell did not
act as a conduit, but rather offered his independent judgments
regarding the gang’s general nature as a violent organization
and its practices, testimony which has consistently been
permitted in this circuit. See, e.g., United States v. Ayala,
601 F.3d 256, 274 (4th Cir.) cert. denied, 131 S. Ct. 262 (U.S.
Oct. 4, 2010).
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III.
Parada challenges the sufficiency of the evidence
supporting his conviction for conspiracy to distribute cocaine.
We review challenges to the sufficiency of the evidence de novo.
United States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007). “A
defendant challenging the sufficiency of the evidence to support
his conviction bears a heavy burden.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks
omitted). We will uphold a jury's verdict “if, viewing the
evidence in the light most favorable to the government, it is
supported by substantial evidence.” United States v. Reid, 523
F.3d 310, 317 (4th Cir. 2008). Substantial evidence is present
if “a reasonable finder of fact could accept [the evidence] as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc). “We do not weigh the
evidence or assess the credibility of witnesses, but assume that
the jury resolved any discrepancies in favor of the government.”
Kelly, 510 F.3d at 440.
To prove conspiracy to distribute cocaine, the government
was required to establish: (1) an agreement to distribute
cocaine between two or more persons; (2) that Parada knew of the
conspiracy; and (3) that Parada knowingly and voluntarily became
a part of it. See Burgos, 94 F.3d at 857. Parada concedes that
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a drug conspiracy existed, namely, the conspiracy to distribute
cocaine by PLS members including Perez-Amaya and Parada-Mendoza,
but he argues that the government failed to show that he knew
about the conspiracy and that he participated in it. We
disagree.
“Once it has been shown that a conspiracy exists, the
evidence need only establish a slight connection between the
defendant and the conspiracy to support conviction.” United
States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). A
criminal conspiracy “can be shown by circumstantial evidence
such as [the defendant’s] relationship with other members of the
conspiracy, the length of th[e] association, his attitude,
conduct and the nature of the conspiracy.” United States v.
Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984). Furthermore, “the
testimony of a defendant’s accomplices, standing alone and
uncorroborated, can provide an adequate basis for conviction.”
United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993).
The government’s evidence established that Parada was a
member of PLS during the conspiracy to distribute cocaine and
that he attended meetings where gang leaders “fronted” cocaine
to every member of the clique on a bi-weekly basis. * Co-
*
“Fronting” is the process by which gang leaders distribute
drugs to gang members, requiring payment for the cost of the
drugs only after the members have sold them and received payment
(Continued)
12
conspirators testified that they had personally witnessed Parada
sell the cocaine, arrange drug purchases, and travel with other
members of the clique to obtain the gang’s cocaine. They also
indicated that they knew that Parada was required to sell
cocaine for the gang. Officer Emanuel Salazar testified that
Parada admitted to traveling with gang members to obtain
cocaine. Officers also testified that they purchased cocaine
from members of PLS and that Parada, going by an alias, was in
the car with the seller during the buy. Based on this evidence,
a jury could reasonably conclude that Parada knew of the
conspiracy to distribute cocaine and participated in it. The
fact that some contradictory evidence was presented at trial
does not undermine our conclusion that the government presented
substantial evidence, as we “must assume that the jury resolved
any discrepancies in favor of the government.” Kelly, 510 F.3d
at 440.
themselves. A consistent pattern of fronting demonstrates an
agreement between the two parties to sell the drugs. See United
States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993)
(“[E]vidence of a buy-sell transaction, when coupled with a
substantial quantity of drugs, would support a reasonable
inference that the parties were coconspirators.”); United States
v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993) (“A pattern of
sales for resale between the same persons, together with details
supplying a context for the relationship, might well support a
finding of conspiracy.”).
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IV.
Parada also argues that the district court erred by failing
to submit his requested charges to the jury. A district court’s
refusal to give a defendant’s requested jury instruction is
reviewed for abuse of discretion. United States v. Moye, 454
F.3d 390, 397-98 (4th Cir. 2006) (en banc). We accord “the
District Court much discretion and will not reverse provided
that the instructions, taken as a whole, adequately state the
controlling law.” United States v. Hassouneh, 199 F.3d 175, 181
(4th Cir. 2000) (internal quotation marks omitted).
To prevail on this claim, Parada must show that his
proposed instruction: “(1) was correct; (2) was not
substantially covered by the court’s charge to the jury; and (3)
dealt with some point in the trial so important, that failure to
give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks
omitted). District courts are not required to charge the jury
using language requested by defendants and need not issue
redundant charges. United States v. Ellis, 121 F.3d 908, 924-25
(4th Cir. 1997). Parada requested that the district court
charge the jury that: “You need not convict any of the
Defendants for any crime alleged in the indictment based solely
on a finding that he was a member of MS-13.” Instead, the
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district court instructed the jury on the requirements of each
element of each crime. He explained to the jury that each
individual defendant must satisfy each element and that “[i]t is
not a crime to be a member of or associate with MS-13.” The
defendant has failed to show that the district court’s charges
did not reasonably cover the information that would have been
conveyed by the requested instruction, and therefore, we find
the district court did not abuse its discretion by rejecting the
redundant instruction.
The district court also did not submit Parada’s requested
charge concerning multiple conspiracies. “Error will be found
in a conspiracy instruction if the proof of multiple
conspiracies was likely to have confused the jury into imputing
guilt to the defendant as a member of one conspiracy because of
the illegal activities of the other conspiracy.” United States
v. Jeffers, 570 F.3d 557, 567 (4th Cir. 2009) (internal
quotation marks omitted). Here, Parada and his co-defendants
were charged with conspiracy to commit murder in aid of
racketeering and conspiracy to distribute cocaine. The jury
only convicted Parada of conspiracy to distribute cocaine;
therefore, proof of multiple conspiracies did not confuse the
jury into imputing guilt to Parada as a member of one conspiracy
because of the illegal activities of the other conspiracy.
Furthermore, because the jury clearly did not impute
15
participation in one conspiracy to another conspiracy, Parada
cannot demonstrate that the omission of the multiple conspiracy
charge prejudiced him, which is necessary to demonstrate
reversible error. See United States v. Tipton, 90 F.3d 861, 883
(4th Cir. 1996). We therefore find no reversible error in the
district court’s jury charges.
V.
Finally, Parada contends that the district court failed to
properly consider the federal sentencing factors required by 18
U.S.C. § 3553(a) and, thus, sentenced him to an unreasonable
term of imprisonment. This Court reviews sentencing decisions
for abuse of discretion. Gall v. United States, 552 U.S. 38, 48
n.3 (2007). If a district court does not procedurally err, our
review “is limited to determining whether [the sentence is]
‘reasonable.’” Id. at 46. Failing to consider the § 3553(a)
factors is procedural error. United States v. Morace, 594 F.3d
340, 345-46 (4th Cir. 2010).
The district court stated that it considered the § 3553(a)
factors and sufficiently articulated reasons for imposing the
300 month sentence, namely the need for deterrence and the
ongoing danger the defendant posed to the community. Parada’s
argument that he was sentenced to a longer term than his co-
conspirators is meritless. “[T]he kind of disparity with which
16
§ 3553(a) is concerned is an unjustified difference across
judges (or districts) rather than among defendants to a single
case.” United States v. Pyles, 482 F.3d 282, 290 (4th Cir.
2007) (internal quotation and citation omitted), vacated on
other grounds, 552 U.S. 1089 (U.S. Jan. 7, 2008). Even if the
disparity between co-conspirators were the relevant question
here, the disparity was justified as Parada is not similarly
situated to his co-conspirators who accepted responsibility,
provided substantial assistance to the government, and were in a
different criminal history category at the time of sentencing.
Parada’s contentions concerning his national origin, stable
employment, and good relationship with his family are
insufficient to demonstrate that the district court erred by
giving him a guidelines-range sentence. Finally, we have
already addressed the sufficiency of the evidence to support
Parada’s participation in the conspiracy and found the evidence
sufficient. Finding no error, we affirm the district court’s
sentencing determination.
VI.
Pursuant to the foregoing, we reject the contentions
advanced by appellants and affirm their convictions and
sentences.
AFFIRMED
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