United States v. Lupe Mercado ( 2021 )


Menu:
  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        DEC 21 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    20-10263
    Plaintiff-Appellee,             D.C. No. 3:13-cr-00764-WHO-4
    v.
    MEMORANDUM*
    LUPE MERCADO,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of California
    William H. Orrick, District Judge, Presiding
    Argued and Submitted November 17, 2021
    San Francisco, California
    Before: WATFORD and FRIEDLAND, Circuit Judges, and KORMAN,** District
    Judge.
    When Lupe Mercado and her husband Barry Gilton discovered that their 17-
    year-old daughter Leticia Gilton was having difficulties at school, they let her
    move from San Francisco to Los Angeles to live with her cousin Antonio Gilton
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Edward R. Korman, United States District Judge for
    the Eastern District of New York, sitting by designation.
    1
    and his family. The plan was for her to study for her high school proficiency exam
    while working. But then Leticia met Calvin Sneed.
    Under the guise of a romantic relationship, Sneed convinced Leticia to
    engage in sex trafficking. Once Mercado discovered the manner in which Sneed
    was exploiting her daughter, she went to Los Angeles and tried without success to
    persuade Leticia to leave Sneed. She and her husband Barry then attempted to
    murder Sneed while he was waiting for Leticia. Only after this attempt was
    unsuccessful did Mercado and Barry turn to their cousin Antonio and their friend
    Alfonzo Williams—both members of the Central Divisadero Players gang
    (“CDP”)—and ask them to kill Sneed to stop his exploitation of their daughter. On
    June 4, 2012, Barry, Antonio, and Williams shot and killed Sneed two blocks away
    from Barry and Mercado’s residence in San Francisco.
    The State of California charged Mercado with murder. A month prior to
    trial, the U.S. Attorney chose to indict Mercado for Sneed’s murder. Mercado then
    spent almost six years in federal custody, before a jury acquitted her of murder in
    aid of racketeering in violation of the Violent Crimes in Aid of Racketeering Act
    (“VICAR”)—finding Mercado guilty only as an accessory after the fact.1 Mercado
    1
    At oral argument, the AUSA was asked to explain why this did not remain a state
    prosecution, given that the federal indictment converted a simple murder charge
    into a complicated VICAR case and increased the number of elements that had to
    be, and ultimately were not, proven. The AUSA responded, “The record is silent as
    to why the state ultimately dismissed their charges.”
    2
    appeals the district court’s order denying her motion for an acquittal. We reverse.
    To be found guilty as an accessory after the fact, a person must “know[] that
    an offense against the United States has been committed” and “assist[] the offender
    in order to hinder or prevent his apprehension, trial or punishment.” 18 U.S.C. § 3.
    The prosecution thus had to show that Mercado knowingly assisted one of the three
    men involved in Sneed’s VICAR murder: Barry, Antonio, and Williams. The jury
    acquitted Barry of VICAR murder, and it was conceded that Mercado’s conviction
    could not rest on any assistance she provided to Barry. Mercado’s conviction as an
    accessory after the fact could not be predicated on any assistance she provided
    Williams because Mercado’s false statements to police did not concern Williams,
    and the jury could not have reasonably inferred Mercado’s involvement in
    Williams’s decision to delete his text messages and erase his call log.
    Consequently, the only viable ground for Mercado’s accessory after the fact
    conviction was that she assisted Antonio.
    To prove that Mercado was an accessory after the fact to Antonio’s VICAR
    murder of Sneed, the prosecution had to establish that Mercado “had actual
    knowledge of each element of the underlying [VICAR] offense,” United States v.
    Graves, 
    143 F.3d 1185
    , 1189 (9th Cir. 1998), most significantly that the reason
    Antonio agreed to murder Sneed was “for the purpose of gaining entrance to or
    maintaining or increasing position in an enterprise engaged in racketeering
    3
    activity,” 18 U.S.C. § 1959(a). The prosecution thus had to produce sufficient
    evidence of two states of mind. First, it had to prove beyond a reasonable doubt
    that Antonio killed Sneed to further his position in CDP—and not just for the
    obvious reason: because he was asked to do so as a favor to his family. And the
    prosecution did not merely have to prove beyond a reasonable doubt that Antonio’s
    desire to further his position in CDP was a conceivable reason for his participation
    in Sneed’s murder; it had to be a substantial reason. United States v. Banks, 
    514 F.3d 959
    , 969 (9th Cir. 2008). Second, even if Antonio had a VICAR motive to kill
    Sneed, the prosecution also had to prove beyond a reasonable doubt that Mercado
    knew of that motive.
    The only evidence the prosecution presented of Mercado’s alleged
    knowledge of Antonio’s VICAR purpose was Mercado’s familial relationship with
    Antonio, her marriage to a man whose family members were in CDP, and her
    attendance at a funeral for a CDP member who was killed through gang violence.
    The connection the prosecution attempted to draw between this evidence and
    Sneed’s murder was far too attenuated for a reasonable factfinder to infer that
    Mercado knew that Antonio killed Sneed to further his position in CDP. Antonio
    had moved to Los Angeles, far away from CDP’s territory in San Francisco, at
    least three years before Sneed’s murder. And Sneed was not a member of a rival
    gang; he was a Los Angeles-based pimp who was trafficking Antonio’s cousin.
    4
    “Murder while a gang member is not necessarily a murder for the purpose of
    maintaining or increasing position in a gang.” Banks, 
    514 F.3d at 969
    . Antonio’s
    membership in CDP does not transform a personally motivated murder into a
    racketeering act, and Mercado’s knowledge of Antonio’s CDP membership does
    not permit the inference that Mercado knew Antonio had a VICAR purpose for
    murdering Sneed.
    We refuse to allow “[s]peculation and conjecture [to] take the place of
    reasonable inferences and evidence.” Juan H. v. Allen, 
    408 F.3d 1262
    , 1279 (9th
    Cir. 2005). The evidence presented at trial lends itself to one rational
    interpretation: Mercado believed that Antonio participated in Sneed’s murder for
    the reason she and Barry asked him to—to protect a family member who was being
    exploited and abused, not to bolster his position in CDP. It was therefore
    unreasonable for the jury to conclude that Mercado “had actual knowledge” that
    Antonio killed Sneed to further his position within CDP. Graves, 
    143 F.3d at 1189
    -
    90.
    For these reasons, we agree with Mercado that the evidence was insufficient
    to support her conviction for accessory after the fact to VICAR murder. We thus
    reverse Mercado’s conviction, vacate her sentence, and remand with directions to
    enter judgment of acquittal for Mercado. While we see substantial merit in the
    argument that the erroneous accessory after the fact jury instruction constituted
    5
    prejudicial error, we need not reach this issue.
    REVERSED and REMANDED.
    6
    

Document Info

Docket Number: 20-10263

Filed Date: 12/21/2021

Precedential Status: Non-Precedential

Modified Date: 12/21/2021