United States v. Gomez ( 2002 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _____________________
    No. 99-50279
    _____________________
    UNITED STATES OF AMERICA,                             Plaintiff-Appellee,
    versus
    JESSE “CHANGO” GOMEZ, JR., also
    known as Changito Gomez; PETE
    CARRION; REMIGIO “TITO” GOMEZ;
    ROBERT “ROBE” HERRERA, also
    known as Rove Herrera, Jr.;
    JUAN “JON JON” JOHNS; MARTIN
    “PANCAKE” ORTEGON; ROBERT
    “BEAVER” PEREZ; VICTOR “TITO”
    PENA; MICHAEL PEREZ; LOUIS
    “BIG LOU” MORALES,                         Defendants-Appellants.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Western District of Texas
    (SA-98-CR-265-6)
    _________________________________________________________________
    September 16, 2002
    Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
    E. GRADY JOLLY, Circuit Judge:1
    This    appeal   arises   from   convictions   of   drug   traffickers
    alleged to be members of the “Texas Mexican Mafia.”         The record is
    replete with evidence of murders, extortion, drug dealing and
    robberies.    Jesse Gomez, Jr., Pete Carrion, Remigio Gomez, Robert
    Herrera, Juan Johns, Martin Ortegon, Robert Perez, Victor Pena,
    Michael Perez, and Louis Morales (“Appellants”) were convicted of
    racketeering and racketeering conspiracy.           Each was sentenced to
    1
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    life imprisonment.   They appeal their convictions and sentences on
    numerous grounds.    Finding no reversible error, we AFFIRM.
    I
    Appellants were indicted, along with six other individuals,
    for racketeering and racketeering conspiracy, in violation of 18
    U.S.C. § 1962(c) and (d).    The indictment alleged 22 racketeering
    acts, including 15 murders, two attempted murders, two robberies,
    and possession with intent to distribute marijuana, cocaine, and
    heroin; and 35 overt acts in furtherance of the racketeering
    conspiracy.   Appellants were alleged to be members of the Texas
    Mexican Mafia, headquartered in San Antonio. The Mexican Mafia had
    a written constitution that described its purposes and activities,
    which expressly included drug dealing, assassination, prostitution,
    “robberies of the highest degree,” gambling, extortion, weapons,
    “or any and every other thing criminally imaginable.”
    Appellant Robert Perez, the “General,” allegedly carried out
    the wishes of unindicted co-conspirator Huerta, the President of
    the Mexican Mafia, who was in prison throughout the time of the
    alleged racketeering activity.        The remaining Appellants were
    alleged to have held the following positions in the Mexican Mafia:
    Herrera was a Captain; Morales and Ortegon were Lieutenants; Jesse
    and Remigio Gomez and Johns were Sergeants; and Pena, Michael
    Perez, and Carrion were Soldiers.
    Five of the persons indicted pleaded guilty before trial, and
    one during trial.    The ten remaining defendants (Appellants) were
    2
    convicted   of   both   counts   after   a   six-week   trial.   All    were
    sentenced to concurrent life terms on each count.
    II
    Appellants raise the following issues on appeal:              (1) the
    district court clearly erred in rejecting their challenge to the
    Government’s strike of a prospective juror; (2) the district court
    abused its discretion by denying defense motions for severance; (3)
    the district court abused its discretion by denying defense motions
    for transfer of venue and a hearing on the motions; (4) the
    district court abused its discretion by admitting gang expert
    testimony   that    did    not    satisfy     Daubert    v.   Merrell   Dow
    Pharmaceuticals, Inc., 
    509 U.S. 579
    (1993); (5) the district court
    committed plain error by instructing the jury that the Government
    need only show a minimal effect on interstate commerce; (6) the
    evidence is insufficient to prove that the defendants participated
    in a pattern of racketeering activity and conspired to do so, and
    to prove venue and the requisite effect on interstate commerce; (7)
    their convictions must be reversed because of violations of Brady
    v. Maryland, 
    373 U.S. 83
    (1963), Giglio v. United States, 
    405 U.S. 150
    (1972), and the Jencks Act, 18 U.S.C. § 3500; (8) the district
    court abused its discretion by not submitting a special verdict
    form; (9) the district court committed plain sentencing error under
    Apprendi v. New Jersey, 
    530 U.S. 466
    (2000); and (10) the district
    court abused its discretion by denying Ortegon a hearing on his
    3
    motion for a new trial.2      With the exception of the first issue
    listed above, the remaining issues are without merit and we shall
    dispose of them with very little discussion.
    A
    Peremptory Strike
    Appellants objected to the Government’s peremptory strike of
    Hispanic veniremember De La O.3      When asked to explain the reason
    for the strike, the prosecutor stated that De La O had a very
    strong accent and the Government was concerned about his ability to
    communicate with other jurors, as well as the facts that he is
    single and is a special education teacher.         The Government’s sworn
    written   response   stated   that       four   persons   seated   at   the
    Government’s counsel table believed that De La O and the court had
    difficulty communicating during voir dire, and that the prosecution
    believed that, as a special education teacher, De La O would be
    particularly sensitive and sympathetic to the circumstances of the
    defendants.   The district court, after reviewing the Government’s
    written reasons, accepted them as race-neutral, stating:
    The Court has reviewed the reasons given by
    the Government as to the challenges, the
    written responses of the Government.    The
    2
    Appellants each adopt most of the issues raised by the
    others.
    3
    Appellants also objected to other peremptory challenges by
    the Government, but the only strike they raise on appeal is that of
    De La O. Remigio Gomez adopts this issue despite the fact that his
    counsel expressly opted out of the objection at trial; he claims
    ineffective assistance of counsel.
    4
    court is sensitive to this matter, my parents
    telling me that they are Hispanic and that
    more likely that might make me one as well,
    the Court is extra sensitive to that issue.
    The Court recalls the questions that the Court
    itself asked and responses, and the Court is
    satisfied the reasons given by the Government
    are not based on any racial grounds, but were
    legitimate   reasons    for   striking   these
    individuals and will deny the Defense motion
    with regard to those five strikes that were
    made by the Government as to five gentlemen
    that appear to be of Latino or Hispanic
    descent.
    The jury was composed of eight whites and four Hispanics.
    Appellants argue that the prosecutor’s reasons for striking De
    La    O   are     not   race-neutral,         because         his    Spanish     accent    is
    intrinsically intertwined with his Hispanic ethnicity and thus
    should be viewed as a surrogate for his ethnicity.                        They argue that
    the    Government’s       reliance      on        his    accent      is   a    pretext    for
    discrimination, because De La O did not have any difficulty in
    understanding the questions asked by the judge or communicating his
    answers during          voir   dire,    and       he    was   a     trained    professional
    educator    who     spoke      fluent   English.              They    observe     that    the
    Government did not strike four unmarried jurors, one of whom is
    also a teacher.
    We   review      the    district       court’s         determination       that    the
    Government did not engage in purposeful discrimination under the
    clearly erroneous standard.               E.g., United States v. Pofahl, 
    990 F.2d 1456
    , 1466 (5th Cir. 1993).                  “Unless a discriminatory intent
    is inherent in the prosecutor’s explanation, the reason offered
    5
    will be deemed race neutral.”         Hernandez v. New York, 
    500 U.S. 352
    ,
    357 (1991).       Great deference is given to the district court’s
    finding, because it is based primarily on an evaluation of the
    credibility     or   demeanor    of    the   attorney   who   exercises    the
    challenge.      
    Id. at 365.
    The Ninth Circuit recently addressed a similar situation in
    United States v. Murillo, 
    288 F.3d 1126
    , 1135-37 (9th Cir. 2002),
    petition for cert. filed (Jul. 24, 2002) (No. 02-5778).             In that
    case, the defendant, a Filipino, challenged the prosecution’s
    exercise of a peremptory strike of a Filipino prospective juror.
    
    Id. at 1135.
        The prosecutor offered the following reasons for the
    strike:   the prospective juror’s background as a casino employee,
    her statement that she had never read a book, her statement that
    her favorite television show was “Judge Judy,” and her difficulty
    in communicating.     
    Id. The Ninth
    Circuit stated that “the various
    reasons offered by the prosecution did not inherently suggest a
    discriminatory intent, and indeed, were race-neutral.”               
    Id. at 1136.
        The    court   rejected      the   defendant’s   contention     that
    “difficulty     communicating     implies     an   inherent   discriminatory
    intent,” noting that it had previously held that “‘[s]o long as the
    prosecutor . . . can convince the district court that the potential
    juror who is being struck in fact has difficulty with English, the
    justification is race-neutral.’”             
    Id. (brackets and
    italics in
    6
    original; quoting United States v. Changco, 
    1 F.3d 837
    , 840 (9th
    Cir. 1993)).
    We agree with the Ninth Circuit’s observations regarding the
    deference that an appellate court must give to the district court’s
    factual   determination   when   ruling   on   the   credibility   of   a
    prosecutor’s strike based on a juror’s difficulty in communicating:
    The trial judge is in a unique position
    to determine whether a witness has difficulty
    communicating, and therefore we grant a high
    level of deference to the district court’s
    finding on this point.    It is difficult to
    ascertain from a transcript the level of a
    juror’s command of spoken English. . . . How
    slowly she spoke, whether she hesitated, how
    thick her accent was, and what her body
    language revealed are not recorded in a
    transcript,   yet   these   are  aspects   of
    communication that may be considered by the
    trial judge.
    
    Id. In this
    case, giving due deference to the district court’s
    opportunity to hear and observe both the prosecutor and De La O, we
    cannot conclude that the district court clearly erred in finding
    that the Government’s reasons for peremptorily striking of De La O
    were not pretextual.   The Government did not strike De La O because
    he had a Spanish accent.     Instead, the strike was based on the
    prosecutors’ asserted belief that his heavy accent would cause
    communication difficulties with other jurors during deliberations.
    This reason is ethnically-neutral. The district court observed the
    prosecutor’s demeanor.    It listened to De La O during voir dire.
    It was therefore in the best position to determine the credibility
    of the prosecutor’s explanation and to make the ultimate finding as
    7
    to whether the prosecutor’s reasons for striking De La O were
    pretextual.4   We will not disturb its ruling.
    B
    Severance
    Ortegon, Carrion, Michael Perez, and Morales argue that the
    district court erred by denying their motions for severance.   They
    maintain that they were prejudiced by the spillover effect of the
    evidence of their co-defendants’ violent crimes (especially the
    “French Place” murders, described as one of the worst mass murders
    in recent San Antonio history) and drug dealing. Furthermore, they
    argue, the district court’s instructions to the jury to consider
    the evidence against each defendant separately were inadequate to
    ameliorate the prejudice.
    The Government responds that the alleged prejudicial evidence
    would have also been admissible in separate trials to show the
    existence of the enterprise, overt acts, motives for the murders
    with which they were involved, and the position of trust they held
    in the organization.   The Government also notes that the district
    court allowed the jurors to take notes to assist them in keeping
    the evidence against each defendant separate.    Furthermore, the
    4
    We find no abuse of discretion by the district court in
    refusing to permit Appellants’ counsel to cross-examine the
    prosecutor or look at the prosecutor’s voir dire notes. See United
    States v. Clemons, 
    941 F.2d 321
    , 323 (5th Cir. 1991) (district
    court has discretion to formulate procedure for testing
    prosecutor’s reasons, and has discretion to limit scope and
    duration of inquiry).
    8
    Government points out that defense counsel argued in closing that
    the jury should consider the evidence against each defendant
    separately.
    We find no abuse of discretion.      Appellants have not shown any
    ground for disregarding the presumption that the jurors followed
    the district court’s instructions to consider the evidence against
    each defendant separately.         See United States v. Cihak, 
    137 F.3d 252
    ,   259   (5th   Cir.   1998)   (jury    is   presumed    able   to    follow
    instructions     to    consider     evidence     against     each      defendant
    separately).
    C
    Transfer of Venue
    Appellants argue that the district court abused its discretion
    by denying defense motions for transfer of venue and a hearing on
    their motions.      They maintain that they were denied a fair trial in
    San Antonio because of pervasive, prejudicial pretrial publicity.
    In support of their motions, they presented 69 broadcast summaries
    from San Antonio television stations, newspaper articles, and a
    transcript from a state court venue proceeding, including expert
    testimony about the saturation of media coverage.              They note that
    the publicity occurred within close proximity to the trial; that it
    contained inflammatory accounts of the crimes, characterizing the
    defendants as blood-thirsty and describing the French Place murders
    as a slaughter, bloodbath, execution, and the worst mass murder in
    recent    San   Antonio    history;   and      that   it    included     matters
    9
    inadmissible in evidence, such as the anticipated sentences, the
    guilty pleas of co-defendants, and the statement by one defense
    attorney that the other defendants were probably guilty.
    Prejudice will be presumed if the defendant establishes that
    it is virtually impossible to obtain an impartial jury because
    prejudicial, inflammatory publicity about the case has saturated
    the community from which the jury is drawn.                      United States v.
    Parker, 
    877 F.2d 327
    , 330-31 (5th Cir. 1989).                The Government may
    rebut the presumption of prejudice by demonstrating that voir dire
    resulted in the impaneling of an impartial jury.                      
    Id. at 331.
    Alternatively, a defendant may obtain relief if he establishes that
    pretrial publicity created a significant possibility of prejudice
    and that the voir dire procedure failed to provide a reasonable
    assurance that prejudice would be discovered.                    United States v.
    Beckner, 
    69 F.3d 1290
    , 1292 (5th Cir. 1995).                     The defendant is
    entitled   to    an   evidentiary    hearing       when    the   allegations     are
    “sufficiently definite, specific, detailed, and nonconjectural to
    enable   the    court    to   conclude      that    a     substantial    claim    is
    presented.”     United States v. Smith-Bowman, 
    76 F.3d 634
    , 637 (5th
    Cir. 1996) (internal quotation marks and citation omitted).
    Appellants       argue   that   they    have       established     presumptive
    prejudice.      Alternatively, they contend that they demonstrated a
    significant possibility of prejudice. They note that 85 percent of
    the prospective jurors admitted that they had been exposed to
    pretrial publicity; a majority of those had heard about the trial
    10
    and the French Place murders within the week preceding the trial;
    and 11 of the 12 jurors selected said that they had been exposed to
    pretrial publicity concerning the trial, the Mexican Mafia, and the
    French Place murders.   As proof of the inadequacy of the voir dire
    procedure, they observe that the court did not allow questioning by
    counsel or the use of a jury questionnaire.        They also point out
    that, prior to the jury being sworn, one of the jurors who had been
    selected approached the district court and said that she could not
    be fair because she had been influenced negatively by pretrial
    publicity.    (She was excused.)
    Although the question may be close, we conclude that there was
    no abuse of discretion.     Even assuming that Appellants established
    presumptive    prejudice,   the    presumption   was   rebutted   by   the
    selection of a fair jury.     The district court first questioned the
    venire as a group, and excused those who said that they might be
    affected by pretrial publicity.      It then questioned each remaining
    veniremember individually, excusing for cause all who indicated
    that they might have been affected.        All of the jurors selected
    indicated that they had not been affected by the publicity; and all
    jurors stated that they would accord the presumption of innocence
    to all of the defendants.      Contrary to the Appellants’ argument,
    that one of the jurors approached the district court and said that
    she could not be fair demonstrates the effectiveness of the voir
    dire procedure in revealing prejudice.
    D
    11
    Admission of Testimony About Gangs
    Appellants argue that their convictions must be reversed
    because the district court admitted gang expert testimony that did
    not satisfy the requirements of Daubert.       They argue that the
    expert was unable to point to any peer-reviewed articles or other
    literature in the field and had no formal education in gang-related
    activities. The Government asks us to strike this argument because
    Appellants do not specify what testimony they believe was admitted
    in error or how it prejudiced them.    The Government notes that the
    witness, a San Antonio Police Department detective with 31 years of
    experience, testified on a variety of subjects, including the
    activities and purposes of the Mexican Mafia, and he offered a
    translation of correspondence between Mexican Mafia members about
    Mexican Mafia activities. The Government did not offer the witness
    as an expert, and it argues that most of his testimony was factual
    and dealt with information he had learned in his capacity as a law
    enforcement officer.   To the extent he expressed any opinions, the
    Government argues that they are admissible as lay opinions under
    Federal Rule of Evidence 701, because they are based on personal
    knowledge of the facts.   Alternatively, the Government argues that
    any error is harmless because the witness would have qualified as
    an expert witness under Federal Rule of Evidence 702 and, in any
    event, his testimony was cumulative.
    We find no abuse of discretion by the district court.     Even
    assuming this issue was adequately briefed (which is marginal), and
    12
    further assuming that the testimony was admitted erroneously,
    Appellants have not demonstrated that their substantial rights were
    affected.    See FED. R. EVID. 103(a).
    E
    Jury Instructions
    Appellants argue that the district court erred by instructing
    the jury that the Government need only show a minimal effect on
    interstate   commerce.    They   maintain   that   the   Government   was
    required to demonstrate that their activities had a substantial
    effect on interstate commerce.     The Government notes that none of
    the Appellants objected to the instruction, none of them submitted
    proposed instructions requiring the jury to find a substantial
    effect on interstate commerce, and two of them (Remigio Gomez and
    Robert Perez) proposed instructions requiring only a minimal effect
    and thus invited the error of which they complain.           See United
    States v. Baytank (Houston), Inc., 
    934 F.2d 599
    , 606-07 (5th Cir.
    1991). The Government contends that even if there was an error, it
    was not plain and, in any event, it was harmless because the
    evidence shows a substantial effect on interstate commerce.
    Five circuits have held that it is not necessary to show that
    a RICO enterprise’s effect on interstate commerce is substantial.5
    5
    United States v. Marino, 
    277 F.3d 11
    , 34-35 (1st Cir.)
    (rejecting contention that government was required to show that
    enterprise’s activity had a substantial effect on interstate
    commerce and approving instruction that “[t]he evidence need not
    show any particular degree of or effect on interstate commerce.
    All that is required is some effect on interstate commerce.”),
    13
    Neither the Supreme Court nor our court has decided this issue.
    See United   States    v.   Robertson,   
    514 U.S. 669
    ,   670-72   (1995)
    (leaving open question whether RICO enterprise’s activities must
    “substantially affect” interstate commerce where enterprise was
    engaged in commerce).       Under the circumstances of this case, we
    need not decide whether the instruction was erroneous, because even
    assuming that it was, any error would not be plain given the
    unsettled state of the law both in the Supreme Court and in this
    circuit, and the overwhelming evidence of drug trafficking involved
    in this RICO enterprise.      Accordingly, we hold that the district
    court did not commit plain error by instructing the jury that the
    Government need prove only a minimal effect on interstate commerce.
    F
    Sufficiency of the Evidence
    cert. denied, 
    122 S. Ct. 2639
    (2002); United States v. Riddle, 
    249 F.3d 529
    , 537 (6th Cir.) (“de minimis connection suffices for a
    RICO enterprise that ‘affects’ interstate commerce”), cert. denied,
    
    122 S. Ct. 292
    (2001); United States v. Juvenile Male, 
    118 F.3d 1344
    , 1348 (9th Cir. 1997) (“all that is required to establish
    federal jurisdiction in a RICO prosecution is a showing that the
    individual predicate racketeering acts have a de minimis impact on
    interstate commerce”); United States v. Miller, 
    116 F.3d 641
    , 673-
    74 (2d Cir. 1997) (approving instructions in RICO case that effect
    of enterprise’s activities on interstate commerce does not need to
    be substantial and that a minimal effect is sufficient); United
    States v. White, 
    116 F.3d 903
    , 926 & n.8 (D.C. Cir. 1997)
    (approving instruction that “evidence need not show any particular
    degree of effect on interstate commerce” and explaining that,
    because RICO enterprise was engaged in drug trafficking, there was
    a substantial effect on or relation to commerce; therefore, fact
    that district court did not require jury to find that conspiracy
    affected interstate commerce to any particular degree was
    irrelevant).
    14
    Appellants contend that the Government presented insufficient
    evidence that they participated in a pattern of racketeering
    activity and conspired to do so, and to prove venue and the
    requisite effect on interstate commerce.            We address each of these
    contentions separately.      We note at the outset, however, that
    Appellants’ insufficient evidence arguments are based largely on
    challenges   to   the   credibility       of    Mexican   Mafia    members   who
    testified against them.    They argue that the testimony of admitted
    psychotic,   hallucinogenic,     and           drug-addicted      co-defendants
    (Estrada, Carrasco, and Torres) who were seeking entry into the
    federal witness protection program was not credible.                 We reject
    these challenges to the credibility of the Government’s witnesses.
    “It is well settled that credibility determinations are the sole
    province of the jury.”     United States v. Cathey, 
    25 F.3d 365
    , 368
    (5th Cir. 2001).    “The jury has responsibility for determining the
    weight and credibility of testimony and evidence, even from co-
    conspirators.”    United States v. Green, 
    293 F.3d 886
    , 895 (5th Cir.
    2002).
    1
    Pattern of Racketeering Activity
    Appellants argue that the evidence is insufficient to prove
    that they engaged in a pattern of racketeering activity, because
    the evidence of the predicate racketeering acts is insufficient.
    We consider each challenged predicate act separately.
    a
    15
    Ortegon:     Possession with Intent to Distribute Cocaine
    We    reject    Ortegon’s      contention     that     the    evidence   was
    insufficient to prove that he possessed cocaine with the intent to
    distribute it.       A bag full of cocaine, as well as plastic bags used
    to package cocaine, were found in a car driven by Herrera, under
    the passenger seat occupied by Ortegon, who had a fully loaded
    revolver tucked in his waistband. Ortegon argues that the evidence
    was insufficient to prove that he knew the cocaine was under his
    seat.      He notes that Herrera pleaded guilty to possession of the
    cocaine     in   state   court,     while    the   charges   against    him    were
    dismissed.       In the light of other evidence that Ortegon was a drug
    dealer and a gang leader, the jury reasonably could have concluded
    that Ortegon knew the cocaine was present and was armed to protect
    it.
    b
    Ortegon:    Murder of Peralez
    Ortegon also argues that the evidence was insufficient to
    prove his involvement in the murder of Peralez.                    Former Mexican
    Mafia member Estrada testified that Appellant Herrera ordered him
    and Ortegon to murder Peralez; and that, on a signal from Herrera,
    he (Estrada) shot Peralez, but Ortegon did not fire his weapon.
    Ortegon argues that Estrada’s testimony is not credible.                        We
    conclude that the evidence was sufficient to find Ortegon guilty of
    murder under the law of the parties, on which the jury was
    instructed.      Estrada’s admission that he was the only one who shot
    16
    Peralez lends credibility to his testimony that Ortegon was with
    him.    In any event, such credibility determinations are for the
    jury, not this court, to make.
    c
    Ortegon and Michael Perez:          Murder of Adames
    Ortegon and Michael Perez contest the sufficiency of the
    evidence offered by the Government to prove that they were guilty
    of the murder of Adames.
    Estrada testified:        Michael Perez and Ortegon were present at
    a meeting at Robert Perez’s house during which the murder of Adames
    was planned; Michael Perez drove the car to the scene and blocked
    Adames’s means of escape; Ortegon got out of the car with a gun;
    Estrada shot Adames and heard a lot of other gunshots; and after
    the shooting, Michael Perez drove the shooters to a truck, where
    they unloaded their weapons.            Carrasco, who was also present,
    testified that everyone (Herrera, Ortegon, Estrada and himself)
    except Michael Perez got out of the car and shot at Adames.                   The
    medical examiner found that Adames had been shot 11 times with
    three different weapons.           Ortegon and Michael Perez argue that
    Carrasco and Estrada were not credible witnesses, inasmuch as they
    were   drug    addicts   testifying     in    exchange      for   leniency.    In
    addition,     Michael    Perez    relies     on   defense    witness   Sanchez’s
    testimony that Michael Valdez, not Michael Perez, was the driver of
    the car involved in the Adames murder.               He also notes that the
    Government substituted his name for that of Michael Valdez in a
    17
    search warrant only after he refused to cooperate against his uncle
    (Appellant Robert Perez).
    We conclude that the evidence was sufficient to convict
    Ortegon and Michael Perez under the law of the parties, as to which
    the   jury   was    instructed.      We       repeat:        Decisions   about   the
    credibility of witnesses are for the jury.
    d
    Ortegon and Michael Perez:           Murder of Ybarra
    Ortegon and Michael Perez also challenge the sufficiency of
    the evidence that they murdered Ybarra. They assert that Estrada’s
    and Carrasco’s testimony that Ortegon shot Ybarra, and that Michael
    Perez drove the car to and from the murder scene, is not credible.
    The    jury   was   entitled   to       determine      the   credibility   of
    Estrada’s     and   Carrasco’s    testimony.            In    addition   to   their
    testimony, the Government presented other corroborating evidence,
    including the in-court identification of Ortegon as the shooter by
    eyewitness Marco Gonzalez.        The Government also presented evidence
    that Michael Perez was present at the meeting when the murder was
    planned; that he drove the vehicle to the scene of the murder; and
    that, after the shooting, he drove the shooters to a truck, where
    they unloaded their weapons.
    e
    Carrion and Morales: Possession with Intent
    to Distribute Marijuana
    18
    Carrion and Morales argue that the evidence was insufficient
    to   prove    that   they     possessed       marijuana   with   the   intent   to
    distribute it. Former Mexican Mafia member Jesse Torres testified:
    he saw 50 pounds of marijuana at Morales’s mother’s home; Morales,
    Carrion, and Escalante had been told by Robert Perez to steal the
    marijuana from someone; after they stole the marijuana, someone
    else called Robert Perez to have him come pick it up; when Robert
    Perez arrived at Morales’s mother’s house, Morales, Carrion, and
    Escalante were weighing and dividing it; Robert Perez gave each of
    them a pound and then sold the rest to someone in Houston.                Carrion
    and Morales argue that this evidence is insufficient because Torres
    was a liar and heroin addict and thus his testimony was not
    credible.      We reject that contention.             It was up to the jury
    whether to believe Torres’s testimony.
    f
    Carrion and Morales:        Murder of De Los Santos
    Carrion and Morales challenge the sufficiency of the evidence
    offered to prove their participation in the murder of De Los
    Santos.
    Munoz testified:        he instructed Flores to have his crew kill
    De Los Santos because he was talking to outsiders about the French
    Place murders; Munoz drove De Los Santos to a bar under the guise
    of   having    him   assist    Morales    and     Carrion   with   a   hijacking;
    Carrion’s rental car was parked outside the bar and Morales and
    Carrion were inside; he left the bar five-ten minutes later,
    19
    leaving De Los Santos with Morales and Carrion; later, Flores told
    him that De Los Santos was dead.     Munoz admitted that he did not
    see De Los Santos murdered and did not know who had killed him.
    Although Munoz testified that he did not see Torres at the
    bar, Torres testified that he was there, along with Davila and
    Flores, when Munoz and De Los Santos arrived.      Torres testified
    further that Flores later told him De Los Santos had been killed;
    and that he later heard Morales bragging about the murder and
    laughing about how he had choked De Los Santos.        The medical
    examiner testified that the cause of death was most likely a
    combination of blunt injuries to the head and strangulation,
    although the injuries that appeared to be caused by strangulation
    could have been caused by blunt trauma from being hit by a vehicle.
    The manager of the rental car agency testified that, when Carrion’s
    rental car was returned, there were no signs of damage consistent
    with it having hit a person.
    Morales and Carrion argue that there is no physical evidence
    to connect them to the murder; no one saw De Los Santos murdered;
    and both Munoz and Torres testified that they did not know who
    killed De Los Santos.    Morales notes that Carrion testified at
    trial that Morales did not kill De Los Santos.   For the first time
    in his reply brief, Morales states that, after trial, Carrion
    obtained an affidavit in which co-defendant Pena admitted murdering
    De Los Santos.
    20
    Although   circumstantial,     the   evidence     was    sufficient.
    Appellants’ challenges are based primarily on their contention that
    the testimony of Munoz and Torres was not credible.           We refuse to
    consider Morales’ claim that Pena murdered De Los Santos, raised
    for the first time in his reply brief.          See United States v.
    Garcia-Abrego, 
    141 F.3d 142
    , 168 n.14 (5th Cir. 1998).
    g
    Johns:   Attempted Murder of Castillo
    Johns contends that the evidence is insufficient to prove that
    he   attempted   to   murder   Castillo.    Johns     and   Castillo   were
    cellmates.    Castillo was a member of a different, rival gang.
    While Castillo was sleeping, Johns stabbed him 22 times in the head
    and neck with a shank that had a two and one-half inch blade.
    Castillo fought back and held onto Johns’ legs until prison guards
    arrived.   As Castillo held Johns down, Johns said, “If you let me
    go, ----, I’ll stab you again.”     In a search of the cell after the
    incident, guards found a torn-up note in the toilet that included
    the instruction to “hit to kill.”       Johns argues that the evidence
    is insufficient to convict him of attempted murder because the
    evidence does not prove that he intended to kill Castillo or that
    he inflicted serious bodily injury on Castillo.             He notes that
    Castillo was able to walk to the infirmary, that none of his stab
    wounds required sutures, and that there was no evidence that
    Castillo was in danger of death from his wounds.        Johns admits that
    he used a deadly weapon, and that specific intent to kill may be
    21
    inferred from such use; but he claims that the manner in which he
    used the weapon makes it reasonably apparent that he did not intend
    to cause death or serious bodily injury.
    We conclude that the evidence is sufficient to prove that
    Johns attempted to murder Castillo.                    The fact that Castillo’s
    struggle prevented Johns from inflicting a fatal wound does not
    preclude     the    jury       from    inferring,       based    on   all   of     the
    circumstances, that Johns acted with specific intent to kill.                      The
    Government was not required to prove that Johns caused serious
    bodily injury because that is not an element of attempted murder.
    h
    Michael Perez: Association with Enterprise and
    Participation in Its Affairs
    Michael Perez argues that the evidence is insufficient to
    prove that he associated with the enterprise and participated in
    its affairs.       He contends that the Government failed to prove that
    he was a member of the Mexican Mafia; instead, it showed only a
    familial relationship with his uncle, Appellant Robert Perez.                      He
    argues that there is no evidence that he was employed by or
    associated     with      the     enterprise       or    that     he   intentionally
    participated in its affairs.            Although there was testimony that he
    was present at meetings at which murders were discussed, and that
    he drove the murderers to and from the scenes of at least two of
    the   murders,      he   argues       that    there    is   no   evidence   that    he
    22
    participated in the meetings or that he was there for any other
    reason than that he is the nephew of Robert Perez.
    We conclude that the evidence is sufficient.           Carrasco and
    Estrada both testified that Michael Perez was a member of the
    Mexican Mafia.    The Government also introduced a photograph of
    Michael Perez with Mexican Mafia members Herrera, Ortegon, and
    Carrasco.   There was also evidence that he helped clean bullets
    used in the murders.   The jury was entitled to infer that he would
    not have been allowed to be present at murder-planning meetings and
    to drive the shooters to and from the scenes of the murders unless
    he was a member of the Mexican Mafia.
    i
    Remigio Gomez:    Attempted Murder of Grant
    Remigio Gomez contends that the evidence is insufficient to
    prove that he attempted to murder Grant.          Mexican Mafia member
    Tavitas testified that Remigio Gomez shot Grant during a hijacking
    conducted by a crew led by Appellant Jesse Gomez.       Another Mexican
    Mafia member, Munoz, testified that Jesse Gomez told him that
    Remigio Gomez shot Grant.     Remigio Gomez argues that this evidence
    is insufficient to prove that he committed attempted murder.            He
    argues that Texas law requires the prosecution to prove that the
    act was intentional rather than an accident; yet the Government has
    conceded that he panicked when he shot Grant.           He claims that
    Grant’s   appearance   surprised   him,   and   that   he   panicked   and
    accidentally discharged the shotgun in Grant’s direction when Grant
    23
    reached out to push the weapon away.     He concedes, however, that at
    trial he presented an identity defense and did not argue that the
    shooting was an accident.     The Government notes that there is no
    evidence that Grant touched the shotgun or attempted to push it
    away. It also notes that the photograph of Grant’s wounds does not
    support the theory that the gun accidentally discharged; instead,
    it appears that Grant had been pushed down onto his knees and then
    shot.
    We   conclude   that   the   evidence   is    sufficient.      As   the
    Government notes, the fact that Remigio Gomez panicked is not
    relevant to the issue of his intent, and the jury reasonably could
    have concluded that he intended to kill Grant when he pointed the
    shotgun at him and pulled the trigger.
    2
    Racketeering Conspiracy
    Appellants’ challenges to the sufficiency of evidence of
    conspiracy are, again, based primarily on their attacks on the
    credibility of the Government’s witnesses.          In addition, some of
    them argue that the Government failed to prove each overt act
    alleged in the indictment.    Finally, some of them argue that their
    participation in the various overt and predicate racketeering acts
    is insufficient to prove that they knew of and agreed to the
    overall objectives of the enterprise.
    We conclude that the evidence is sufficient.                As stated,
    credibility choices are for the jury.             The Government was not
    24
    required         to   prove   each   overt    act   alleged   in   support    of   the
    racketeering conspiracy.               See 18 U.S.C. § 1962(d); Salinas v.
    United States, 
    522 U.S. 52
    , 62 (1997) (RICO conspiracy statute, 18
    U.S.C. § 1962(d), does not require proof of overt act).                      There is
    sufficient evidence to show that each Appellant participated in at
    least some of the predicate and overt acts.                         This evidence,
    together with their membership in the Mexican Mafia, whose written
    constitution describes the illegal purposes and objectives of the
    organization, is indeed evidence that they knew of and agreed to
    the overall objectives of the enterprise.
    3
    Effect on Interstate Commerce
    Appellants contend that the Government presented insufficient
    evidence that the activities of the enterprise had a substantial
    effect on interstate commerce.                   Alternatively, they argue that,
    even if only a minimal effect on interstate commerce is required,
    the Government failed to prove any effect.                They argue that all of
    the alleged criminal acts took place in and around San Antonio, and
    that       the    evidence    of     interstate     communication    (written      and
    telephonic) was, at best, incidental to the operation of the
    enterprise.6
    6
    As we have earlier noted, Appellants did not object to the
    jury instructions, which required the jury to find only a minimal
    effect on interstate commerce. In cases in which the Government
    fails to object to jury instructions, we have held that the
    unobjected-to instructions, even if erroneous, become the law of
    the case, and we have judged the sufficiency of the evidence in
    25
    The Government responds that, although only a minimal effect
    is required, it proved that the activities of the enterprise had a
    substantial effect on interstate commerce.   The Government relies
    on the following evidence:    The Mexican Mafia engaged in drug
    trafficking and extorted a ten percent “tax” from drug dealers.
    Those who did not pay the tax were robbed or murdered.   The money
    and property collected and stolen were used to finance the purchase
    of money orders that were mailed to Mexican Mafia members, many of
    whom were in prison, some in states outside of Texas.     A letter
    from a Mexican Mafia member to Appellant Robert Perez referred to
    the availability of pure, uncut cocaine from Colombia.     Mexican
    accordance with the law established in the jury instructions. See
    United States v. Spletzer, 
    535 F.2d 950
    , 954 (5th Cir. 1976)
    (element of specific intent became law of the case where defendant
    was indicted for “knowingly, wilfully and unlawfully escaping” and
    court instructed jury, without objection, that specific intent was
    required for conviction; therefore, court did not need to decide
    whether specific intent was an element of the offense; conviction
    reversed because Government failed to present sufficient evidence
    of specific intent); United States v. Taylor, 
    933 F.2d 307
    , 310
    (5th Cir. 1991) (although statute did not require proof of specific
    intent, it became an element under law of the case doctrine when
    defendant was indicted for willfully escaping federal custody and
    government failed to object when court instructed jury that
    specific intent was an element; evidence was sufficient to prove
    specific intent).
    We have not found any cases applying this principle in cases
    in which the defendant fails to object to a jury instruction and
    then challenges the sufficiency of the evidence on a ground that is
    not consistent with the jury instructions. Were we to apply the
    principle established in those cases in this case, evidence that
    the enterprise’s activities had a minimal effect on interstate
    commerce would be sufficient.     We do not reach that question,
    however, in the light of our conclusion that the Government
    presented evidence sufficient to establish that the enterprise’s
    activities had a substantial effect on interstate commerce.
    26
    Mafia business was conducted by mail, including through letters
    from Mexican Mafia president Huerta, who was in prison in Kansas
    and then in Colorado, that were mailed to Texas.       Mexican Mafia
    members used telephones and pagers to communicate Mafia business,
    and some of the telephone calls were placed from Texas to Mexican
    Mafia members in out-of-state prisons.     Membership in the Mexican
    Mafia was not limited to Texas residents or Texas prisoners; some
    members were from California.
    As we have previously noted, neither the Supreme Court nor our
    court has decided whether a RICO enterprise’s activities must
    “substantially” affect interstate or foreign commerce, or whether
    proof of a minimal effect is sufficient.     It is not necessary for
    us to decide that issue in this case because the Government
    presented evidence that the activities of the Mexican Mafia satisfy
    the interstate commerce requirement for constitutionality of the
    act.
    At the outset, we note that Congress has made persuasive
    findings that organized crime and drug trafficking, both of which
    are activities in which the Mexican Mafia was engaged, have a
    substantial effect on interstate commerce.        In enacting RICO,
    Congress made the following findings regarding the effect of
    organized crime on interstate commerce:
    . . . organized crime in the United States
    annually drains billions of dollars from
    America’s economy by unlawful conduct and the
    illegal use of force, fraud, and corruption; .
    . . organized crime activities in the United
    27
    States weaken the stability of the Nation’s
    economic system, . . . [and] seriously burden
    interstate and foreign commerce.
    Congressional Statement and Findings of Purpose, Organized Crime
    Control Act, Pub. L. No. 91-452, 84 Stat. 922, 922-23 (1970).
    Congress has also found that drug trafficking substantially
    affects interstate commerce:
    (3) A major portion of the traffic in
    controlled substances flows through interstate
    and foreign commerce.        Incidents of the
    traffic which are not an integral part of the
    interstate   or    foreign    flow,   such   as
    manufacture,    local      distribution,    and
    possession, nonetheless have a substantial and
    direct   effect   upon   interstate    commerce
    because--
    (A) after manufacture, many controlled
    substances are transported in interstate
    commerce,
    (B) controlled substances distributed
    locally usually have been transported in
    interstate commerce immediately before their
    distribution, and
    (C)   controlled  substances   possessed
    commonly flow through interstate commerce
    immediately prior to such possession.
    (4) Local distribution and possession of
    controlled substances contribute to swelling
    the interstate traffic in such substances.
    (5) Controlled substances manufactured
    and    distributed    intrastate   cannot   be
    differentiated from controlled substances
    manufactured    and  distributed   interstate.
    Thus, it is not feasible to distinguish, in
    terms    of   controls,    between  controlled
    substances    manufactured    and  distributed
    interstate     and    controlled    substances
    manufactured and distributed intrastate.
    28
    (6)  Federal control of the intrastate
    incidents of the traffic in controlled
    substances is essential to the effective
    control of the interstate incidents of such
    traffic.
    21 U.S.C. §§ 801(3)-(6).    See United States v. Lopez, 
    2 F.3d 1342
    ,
    1366 n.50 (5th Cir. 1993) (noting “the now unchallenged federal
    authority    over   intrastate   as        well   as   interstate   narcotics
    trafficking,” and observing that “all drug trafficking, intrastate
    as well as interstate, has been held properly subject to federal
    regulation on the basis of detailed Congressional findings that
    such was necessary to regulate interstate trafficking”), aff’d, 
    514 U.S. 549
    (1995); see also 
    White, 116 F.3d at 926
    & n.8 (substantial
    effect on interstate commerce established where RICO enterprise was
    engaged in drug trafficking).
    The activities of the Mexican Mafia -- narcotics trafficking,
    extortion from individuals engaged in narcotics trafficking, and
    committing other organized crime, including murders, to extort
    money and avoid detection -- clearly are among the kinds of
    activities that Congress has found to have a substantial effect on
    interstate commerce.     The record contains overwhelming evidence
    that the Mexican Mafia engaged in drug trafficking, as well as
    extortion from drug dealers. The murders alleged as predicate acts
    were closely related to the enterprise’s drug trafficking and
    extortion activities.    There is evidence that at least some of the
    illegal drugs were obtained from sources outside the State of
    Texas.   Instrumentalities of interstate commerce were used to
    29
    conduct the business of the Mexican Mafia, and some of that
    business was conducted across state lines.              Thus, the evidence
    presented in this case is sufficient to establish the interstate
    commerce element of the RICO charges.
    4
    Venue
    Appellants argue that the Government failed to prove that any
    of the acts took place in the Western District of Texas, as alleged
    in the indictment.      They do not argue that venue was improper.
    In denying motions for acquittal on this ground, the district
    court, relying on maps of the areas where various acts took place,
    and noting that many of the acts occurred within the city limits of
    San Antonio, took judicial notice of the fact that San Antonio is
    in the Western District of Texas.            Appellants argue that the
    evidence was insufficient for the court to take judicial notice of
    venue.   We disagree.     The evidence showed that San Antonio was the
    headquarters   of   the   Mexican   Mafia   and   the   area   in   which   it
    operated.   As Appellants acknowledge, most of the predicate acts
    took place in San Antonio.     In the light of this evidence, as well
    as the maps of the area that were admitted into evidence, the
    district court did not err by taking judicial notice of the fact
    that San Antonio is in the Western District of Texas.
    G
    Brady, Giglio, and Jencks
    30
    Appellants argue that their convictions must be reversed
    because of violations of Brady, Giglio, and the Jencks Act.7                They
    contend that the Government violated due process and the Jencks Act
    by failing timely to provide to the defense the following items:
    (a) letters drafted by or on behalf of Government witness Estrada;
    (b) Estrada’s immunity agreement; (c) papers signed by Estrada; (d)
    a written statement provided to police by Frank Rios; (e) a written
    statement provided to police by Mario Sanchez; and (f) a report
    written   by    Detective   Bellamy.        They   contend    that   they   were
    prejudiced because the failure timely to provide these documents
    prevented      defense   counsel   from      conducting      effective   cross-
    examination.     We address each item in turn.
    1
    Estrada Letters
    Estrada sent FBI Agent Appleby three letters, the first of
    which was lost.     Agent Appleby testified that the first letter was
    written for Estrada by another inmate.             In it, Estrada offered to
    cooperate by providing information about the Mexican Mafia.                  He
    also related a threat that the Mexican Mafia had made against his
    life.    The second letter listed homicides about which Estrada had
    information.     Both this second and the third letters were provided
    to defense counsel during trial.           After the letters were provided,
    7
    Although Appellants also refer to violations of Brady and
    Giglio, their arguments focus primarily on alleged Jencks Act
    violations.
    31
    defense counsel were allowed to question Agent Appleby about them.
    The district court denied defense motions to strike Estrada’s
    testimony.   Estrada then was recalled to the stand and defense
    counsel were allowed to further cross-examine him.   The Government
    concedes that there is no good-faith exception to the Jencks Act,
    but argues that the district court, in refusing to strike Estrada’s
    testimony, implicitly found that the first letter, which was lost,
    was not material or important to the defense.
    Appellants have not demonstrated that they were harmed by the
    delay in producing the second and third letters, because they were
    allowed to cross-examine Agent Appleby and Estrada after receiving
    them.   The district court did not err by refusing to strike
    Estrada’s testimony because of the failure to produce the first
    letter, because Agent Appleby’s testimony about that letter shows
    that it was not material to the defense.     In any event, even if
    there was error, it was harmless.
    2
    Estrada Immunity Agreement
    The Government asserts that, although it is clear that Estrada
    was granted immunity (he testified about it), there is no evidence
    of the existence of a written immunity agreement.     Even assuming
    such an agreement exists, it is not a statement of a witness and
    thus is not covered by Jencks.   In the light of Estrada’s testimony
    about his grant of immunity, Appellants were not prejudiced by the
    failure to produce a written agreement (assuming it exists).
    32
    3
    Papers Signed by Estrada
    Estrada testified that he had signed some papers when he met
    with Agent Appleby, but he did not know the contents of the papers
    because he does not read or write.     At a Jencks hearing, Agent
    Appleby testified that he never had Estrada sign any statements.
    The Government notes that Appellants did not ask the district court
    to make a ruling after the Agent’s testimony.      Appellants have
    failed to demonstrate that the papers existed or that, if they
    exist, they are statements covered by the Jencks Act or that they
    were material to the defense.
    4
    Rios Statement
    Government witness Rios testified that he had given a written
    statement to a detective when he was arrested on a motion to revoke
    his probation, but that the statement did not address the matters
    covered in his testimony at Appellants’ trial.      Pena’s counsel
    acknowledged receipt of the statement after Rios had testified.
    The only Appellant who asked to have Rios re-called was Johns, who
    has not raised this issue on appeal.   The Government asserts that
    this issue was not preserved for appeal because defense counsel
    failed to submit a copy of the statement for the record.
    Even assuming the issue was preserved, there is no showing
    that Appellants were prejudiced by the delay in receiving the
    33
    statement. The statement is not covered by the Jencks Act, because
    it is not related to the subject matter of Rios’s testimony.
    5
    Sanchez Statement
    Mario Sanchez was a defense witness called by Michael Perez.
    During cross-examination, the Government referred to his sworn
    statement, and defense counsel claimed they had not received it.
    Although the Government stated that it had provided a copy along
    with    the   police    report,   the    district      court    ruled    that   the
    Government could not use the statement for impeachment and ordered
    the Government to provide it to defense counsel.                  The Government
    did so the next day.       The only Appellant who asked to re-call the
    witness was Johns, who does not raise this issue on appeal.
    The Jencks Act does not cover statements of defense witnesses.
    Appellants do not allege, nor did they obtain a ruling, that the
    statement contains material exculpatory information. In any event,
    Appellants do not assert that the delay in receiving the document
    prejudiced them.
    6
    Detective Bellamy’s Notes
    The Government provided defense counsel with four or five
    pages    of   Detective     Bellamy’s         notes,   with    some     deletions.
    Appellants     sought    the    entire       document.        Because   it   named
    informants, the Government asked the district court to review it in
    camera to determine whether it contained impeachment or exculpatory
    34
    information.      The district court denied defense counsel’s request
    for the entire document, explaining that it was not Jencks material
    because Bellamy was not a witness, and that it did not contain any
    Brady or Giglio material.       We find no error by the district court
    in this ruling.
    H
    General Verdict Form
    Appellants contend that, in this complex criminal RICO trial
    involving multiple defendants, dozens of alleged predicate acts,
    and considerable opportunity for juror confusion and disagreement,
    the district court violated their due process rights by submitting
    a general verdict form, which asked only whether each of the
    defendants was guilty of the crimes charged in counts 1 and 2 of
    the indictment.      The Appellants concede that the district court
    instructed the jurors that they must reach a unanimous verdict as
    to each racketeering act alleged to have been committed by each
    defendant.   They argue, however, that the general verdict form did
    not   adequately    ensure   that   the   jury   recognize   that   it   must
    unanimously agree as to each defendant’s involvement in the same
    two or more specific predicate racketeering acts.             They contend
    that a special verdict form was required by due process as a
    safeguard    to    ensure    that   the   jury    followed    the   court’s
    instructions.      Some of the Appellants also argue that a special
    verdict form was necessary for the conspiracy count so that the
    jury could specify which overt acts each defendant had committed.
    35
    The Government responds that special verdicts traditionally have
    been disfavored in criminal cases, and that the use of a general
    verdict    form   did    not   result       in   due    process   violations   at
    sentencing.
    We find no abuse of discretion or due process violation in the
    use of a general verdict form in this case.                   The district court
    instructed the jury that, to convict on the substantive count, it
    had to agree unanimously that each defendant committed at least two
    predicate acts, and that it must unanimously agree as to which two
    or more specific predicate acts each defendant committed.                      It
    further instructed the jury that it was not sufficient that some of
    the jurors find that the defendant under consideration committed
    two of the acts, while other jurors find that the defendant
    committed different acts.
    The     record     here   indicates         that   the   district   court’s
    instructions were clear, and that Appellants were not prejudiced by
    the use of a general verdict form.                 Appellants have offered no
    basis for disregarding the presumption that the jury followed its
    instructions. Because commission of an overt act is not an element
    of RICO conspiracy, see 
    Salinas, 522 U.S. at 62
    , the district court
    did not abuse its discretion by not submitting a special verdict
    requiring the jury to designate the overt acts committed by each
    defendant.
    I
    Apprendi
    36
    Appellants     argue   that    their   sentences    were   imposed    in
    violation of Apprendi (decided a year after they were sentenced),
    because   the    district   court   enhanced   their    sentences   to   life
    imprisonment, in excess of the statutory maximum 20-year term, on
    the basis of facts (murder, attempted murder, and aggravated
    robbery) not alleged in the indictment, presented to the jury, and
    found by the jury beyond a reasonable doubt.            Appellants contend
    that, because they were charged with more racketeering acts than
    the two necessary for conviction, some of which are not punishable
    by life imprisonment, the general verdict form makes it impossible
    to tell whether the jury found them guilty of predicate acts
    punishable by life imprisonment. Some of the Appellants argue that
    the district court committed Apprendi error by failing to submit to
    the jury the drug quantity element of the predicate acts involving
    marijuana and cocaine.      Some of them also argue that the district
    court did not instruct the jury on the elements of the predicate
    racketeering acts.
    There is no Apprendi indictment error, because the indictment
    alleged the facts of the racketeering acts that were the basis of
    the enhanced sentences.      There is no Apprendi instructional error,
    because the district court instructed the jury on the elements of
    each of the predicate racketeering acts and instructed that the
    jury’s verdict must be unanimous as to each of the two or more
    specific racketeering acts alleged to have been committed by each
    defendant.      Because there were no sentence enhancements based on
    37
    the drug racketeering acts, the district court did not violate
    Apprendi by failing to submit the drug quantity element to the
    jury.   Finally, the district court did not err by failing to
    instruct the jury as to overt acts, because proof of overt acts is
    not necessary for a RICO conspiracy conviction.   See 
    Salinas, 522 U.S. at 62
    .   There was no Apprendi sentencing error, because the
    jury necessarily found that each Appellant committed at least one
    predicate act punishable by life imprisonment, as explained below
    for each Appellant.
    Appellant Carrion was charged with three racketeering acts:
    possession with intent to distribute marijuana and two murders.
    Because the jury found him guilty of racketeering, which requires
    finding that he committed at least two racketeering acts, the jury
    necessarily found that he committed at least one murder, which is
    punishable by life imprisonment.
    Ortegon was charged with four racketeering acts:   possession
    with intent to distribute cocaine and three murders.     Thus, the
    jury necessarily found that he committed at least one murder, which
    is punishable by life imprisonment.
    Morales was charged with only two racketeering acts, one of
    which was murder.     Thus, the jury necessarily found that he
    committed murder, which is punishable by life imprisonment.
    Jesse Gomez was charged with seven racketeering acts, one of
    which was robbery and the remainder of which were murders.    Thus,
    38
    the jury necessarily found that he committed at least one murder,
    which is punishable by life imprisonment.
    Because Remigio Gomez was charged with only two racketeering
    acts    (attempted   murder   and   aggravated   robbery),   the   jury
    necessarily found that he committed both.        Aggravated robbery is
    punishable by life imprisonment.
    Because Michael Perez was charged with only two racketeering
    acts (both murders punishable by life imprisonment), the jury
    necessarily found that he committed both.
    Herrera was charged with seven racketeering acts:           five
    murders, one attempted murder, and possession with intent to
    distribute cocaine.    Because Herrera had prior felony convictions,
    the attempted murder is punishable by life imprisonment. Thus, the
    jury necessarily found that he committed at least one predicate act
    punishable by life imprisonment.
    Because Johns was charged with only two racketeering acts, one
    of which was aggravated robbery, the jury necessarily found that he
    committed at least one act punishable by life imprisonment.
    Robert Perez was charged with eight racketeering acts:       six
    murders, one attempted murder (punishable by life imprisonment
    because he has a prior felony conviction), and possession with
    intent to distribute marijuana.      Thus, the jury necessarily found
    that he committed at least one act punishable by life imprisonment.
    39
    Because Pena was charged with only two racketeering acts
    (murder and aggravated robbery), the jury necessarily found that he
    committed an act punishable by life imprisonment.
    J
    Ortegon:   Denial of Motion for New Trial
    Ortegon argues that the district court abused its discretion
    by denying him a hearing on his motion for new trial.          He sought a
    new trial on the grounds that the verdict was against the weight of
    the evidence, newly discovered evidence, and perjured testimony.
    He argues that the district court erred by failing to make findings
    of   fact   independently   weighing    the   evidence   and    assessing
    credibility.     His argument regarding newly-discovered evidence
    pertains to the Estrada letters that are the subject of the Jencks
    Act claim discussed above.     He claims that the lost Estrada letter
    was written by Ramos and that, by the time the defense was put on
    notice of the lost letter, it was too late to secure Ramos as a
    witness and, in any event, neither the defense nor the prosecution
    knew Ramos’s whereabouts. He maintains that the testimony of Ramos
    about the contents of the letter would have been material to his
    guilt, but he does not indicate what Ramos’s testimony would have
    been.   He claims that Estrada committed perjury by testifying that
    the murder of Emilio Alejandro was ordered by the Mexican Mafia.
    He bases this claim on Carrasco’s knowledge that Estrada killed
    Alejandro because of a personal vendetta.      He also claims that his
    girlfriend, Loera, committed perjury when she testified that he had
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    used heroin at her house.     Finally, he asserts that the district
    court should have conducted an evidentiary hearing on his motion.
    The Government observes that the motion referred to an affidavit of
    Loera offered to prove that she had committed perjury, but the
    affidavit was not attached and is not in the record.
    We find no abuse of discretion.    The verdict was not against
    the weight of the evidence.   There is no support for the claim that
    Loera committed perjury; but even if Loera’s affidavit had been
    attached to the motion, and assuming its truth, the fact that she
    lied when she testified that Ortegon used heroin did not affect the
    outcome of the trial.       There is little support for Ortegon’s
    assertion that Estrada lied about his reasons for killing Alejandro
    -- he might have had more than one motive.    In any event, Ortegon
    fails to explain how he was prejudiced.
    III
    For the foregoing reasons, the Appellants’ convictions and
    sentences are
    A F F I R M E D.
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