United States v. Alexsi Lopez ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEXSI LOPEZ, a/k/a Alexis Lopez,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:12-cr-00075-PWG-2)
Argued: January 26, 2017 Decided: June 19, 2017
Before MOTZ, KING, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz
and Judge King joined.
ARGUED: Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ,
Highland, Maryland, for Appellant. Amanda Brooke Harris, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
2
PAMELA HARRIS, Circuit Judge:
In 2007, two young men robbed a brothel in Langley Park, Maryland, raping one
victim and killing another. Several years later, DNA testing identified appellant Alexsi
Lopez as a suspect, and Lopez was indicted in 2013, more than six years after the crime.
Though Lopez was 17 years old at the time of the robbery, he was over 21 when indicted,
and thus tried as an adult. A jury convicted Lopez of two counts under the Hobbs Act, 18
U.S.C. § 1951(a), the federal robbery statute.
The gap of over six years between crime and indictment is the primary focus of
Lopez’s appeal. Lopez argues, first, that because he was under 18 when the robbery was
committed, he should have been tried as a juvenile notwithstanding the passage of time
before his indictment, and that to the extent the Juvenile Delinquency Act, 18 U.S.C.
§ 5031, provides otherwise, it is unconstitutional. Lopez also argues that his prosecution
was untimely under the ordinary five-year statute of limitations for a Hobbs Act robbery,
and that 18 U.S.C. § 3297, which extends the limitations period in certain cases involving
DNA testing, does not apply. And third, Lopez claims that the government violated his
due process rights by delaying his indictment without justification.
We agree with the district court that Lopez’s timing-related arguments are without
merit. We also agree that the government established the connection to interstate
commerce necessary to sustain a Hobbs Act conviction. And we find no error in the
evidentiary rulings challenged on appeal, or in Lopez’s sentencing. Accordingly, we
affirm.
3
I.
A.
The Langley Park area of Prince George’s County, Maryland, includes several
apartment complexes that house illegal businesses, including a network of brothels.
Because those businesses are illegal, they are frequent targets of La Mara Salvatrucha, a
gang, better known as MS-13; among other things, MS-13 seeks to impose weekly “rent”
charges on these underground establishments.
The events giving rise to this case occurred at a Langley Park brothel on February
28, 2007. The brothel, located in a first-floor apartment, was staffed on that day by two
workers: Adelaida Garcia-Calderon, who regularly traveled from her home in New York
to work as a prostitute; and a doorman, who collected money from customers. Two men
entered the apartment and demanded money. After tying the doorman’s hands and feet
with the electric cord of a fan, they searched the apartment. One of the intruders,
brandishing a knife, forced Garcia-Calderon into a bedroom, and then raped her at knife-
point. Although the man placed a pillow over much of Garcia-Calderon’s face, Garcia-
Calderon was able to see the sheath of the knife on a table by the bed.
While Garcia-Calderon was in the bedroom, a man named Carlos Cordon
inadvertently walked in on the robbery, and began to yell and plead with the man in the
living room not to harm him. When Cordon would not “shut up” as instructed, the
4
assailant repeatedly stabbed him. J.A. 110. 1 Cordon, whose body was discovered the
next day behind the apartment building, died as a result of multiple sharp force injuries.
Garcia-Calderon and the doorman survived the robbery: After the intruders left the
premises, Garcia-Calderon untied the doorman and then, shocked and frightened, escaped
through a window in the apartment.
The Prince George’s County Police Department (“PGCPD”) directed the ensuing
investigation. Garcia-Calderon was unable to identify either robber, including her rapist.
But state investigators collected over 40 pieces of physical evidence from the crime
scene, including the knife sheath from the table next to the bed where Garcia-Calderon
was raped. Because the PGCPD did not have a DNA lab in operation at the time, it out-
sourced DNA testing to a private lab in Baltimore; and in light of the costs of private
testing, the PGCPD followed a “triage process,” J.A. 571, under which it conserved
resources by first sending only the five most important items to be tested. Although the
five items selected by investigators did not initially return any results, in September of
2011, the PGCPD was informed that the DNA of Miguel Ramon Cerros-Cruz, an MS-13
member, was found on the electric cords used to bind the doorman during the 2007
robbery.
The knife sheath was submitted for DNA testing with a second round of evidence
in November of 2011. On April 23, 2012, the federal Combined DNA Index System
(CODIS) matched the DNA found on the knife sheath to Lopez. Based on that finding,
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal, and citations to the “S.A.” refer to the Supplemental Joint Appendix.
5
the PGCPD secured a warrant to collect a DNA sample from Lopez, and on June 27,
2012, after performing its own analysis, the PGCPD lab concluded that the DNA on the
knife sheath matched the sample taken from Lopez.
Having identified Lopez as a suspect, the PGCPD investigated further to confirm
Lopez’s involvement in the robbery. In May 2013, it secured the testimony of a
confidential informant, a member of MS-13 serving a prison sentence. In late 2007, the
informant overheard Lopez – then incarcerated in the same facility – tell another inmate
that he and Cerros-Cruz had robbed a brothel and killed a man who refused to cooperate.
With this additional information in hand, the government formally charged Lopez,
and on July 15, 2013, more than six years after the robbery, a grand jury indicted both
Lopez and Cerros-Cruz for one count of conspiracy to commit Hobbs Act robbery and
one count of Hobbs Act robbery. See 18 U.S.C. § 1951. Cerros-Cruz entered into a plea
agreement on the conspiracy count, and in return, the government dismissed the robbery
count against him. As agreed upon by the parties, Cerros-Cruz was sentenced to ten
years’ imprisonment.
Lopez elected to go to trial. Under the Juvenile Delinquency Act, which removes
juveniles from the adult criminal justice system, the government generally may not try a
juvenile in federal court. 18 U.S.C. § 5032. But because Lopez, 17 at the time of the
crime, was 24 when he was indicted six years later, the government proceeded against
him as an adult and in federal court.
6
Barb.
1.
Before trial, Lopez moved to dismiss the indictment against him, arguing that the
Juvenile Delinquency Act (“JDA” or “Act”) prohibited the government from initiating
proceedings in federal court. And to the extent that the JDA does not treat him as a
juvenile, Lopez contended, the Act is unconstitutional under the due process and equal
protection components of the Fifth Amendment as well as the Eighth Amendment. The
district court denied Lopez’s motion. Relying on United States v. Blake, 571 F.3d 331
(4th Cir. 2009), the court held that under the plain language of the JDA, “if charges are
brought against the defendant . . . [when] he is 21 or older, even if the conduct [was]
committed as a juvenile,” the prosecution falls outside the scope of the statute. J.A. 42.
The court then rejected Lopez’s constitutional challenge to the JDA so construed, noting
that other courts have rejected similar challenges and that no authority supported Lopez’s
position.
Lopez also moved to dismiss based on pre-indictment delay, raising two distinct
claims. First, he maintained that the charges against him, filed more than six years after
the offense, were barred by the five-year statute of limitations that applies to the Hobbs
Act. The district court rejected that claim, relying on 18 U.S.C. § 3297, which restarts an
otherwise applicable limitations period if “DNA testing implicates an identified person in
the commission of a felony.” S.A. 77–78 (quoting 18 U.S.C. § 3297). Because Lopez
was not “implicate[d]” until 2012, when DNA results on the knife sheath were returned,
7
the court reasoned, the government was well within the new five-year limitations period
when it charged Lopez in 2013.
Lopez’s second claim – that over six years of pre-indictment delay violated his
due process rights – fared no better. In denying Lopez’s pre-trial motion to dismiss, the
district court assumed for the sake of argument that Lopez could show the necessary
prejudice arising from the delay. But because the delay was not caused by government
misconduct and instead was justified by the government’s continued investigation, the
court held, Lopez could not make the second required showing: that “the reason for the
delay violates . . . fundamental concepts of justice, fair play, and decency.” S.A. 107
(citing United States v. Williams, 684 F.2d 296, 302 (4th Cir. 1982)). When it revisited
Lopez’s due process claim at the end of the trial, the district court amended its reasoning,
finding this time that Lopez in fact could not make the “threshold showing” of prejudice
necessary to sustain his claim. J.A. 768.
2.
The case proceeded to trial, where one of the government’s key witnesses was the
confidential informant who had been incarcerated with Lopez in 2007. The informant
told the jury about the conversation he overheard between his cellmate, an MS-13 gang
member, and Lopez, in which Lopez boasted about committing a robbery and murder at a
brothel. He also testified that the MS-13 gang enforced strict rules against its members,
and treated cooperation with law enforcement as punishable by death.
The government also introduced the DNA evidence linking Lopez to the knife
sheath recovered from the bedroom. Lopez moved to strike the evidence, on the ground
8
that a stain on the bag containing the sheath could have contaminated the DNA sample.
But the DNA lab analyst testified that the stain did not affect testing, as the interior of the
bag had not been compromised. The district court admitted the evidence conditionally,
instructing the jury to consider the evidence only if it found that the DNA had not been
contaminated so as to influence the results of the analysis.
In his closing argument, Lopez took on the testimony of the government’s
confidential informant, and questioned why the government had not called the
informant’s cellmate as a witness, in order to corroborate the testimony. The government
responded in its rebuttal argument, explaining that alerting the MS-13 cellmate would
have placed the informant in danger and reminding the jury that “MS-13 retaliates”
against those who cooperate with law enforcement. S.A. 261. Lopez did not object. At
the conclusion of closing arguments, the jury began deliberations, and the next day
returned with a guilty verdict.
3.
Following the verdict, Lopez filed a motion for a new trial or for a judgment of
acquittal notwithstanding the jury’s verdict. As primary grounds for an acquittal, Lopez
argued that the government failed to present sufficient evidence that the robbery
interfered with interstate commerce, as required for a conviction under the federal Hobbs
Act. The district court disagreed. Analogizing to United States v. Taylor, 754 F.3d 217,
224 (4th Cir. 2014), in which we held that robbery of an illegal drug enterprise run from a
private home satisfies the jurisdictional predicate of the Hobbs Act, the court reasoned
9
that robbery of a brothel is “no different,” as both drug dealing and prostitution are
“inherently economic” activities that “affect[] interstate commerce.” J.A. 779.
The court also rejected Lopez’s arguments for a new trial. Lopez claimed, first,
that the government had improperly bolstered or vouched for its witness when it
explained during rebuttal why it did not interview the cellmate of its confidential
informant. But the government’s closing argument regarding the risk of MS-13
retaliation, the court held, did not go beyond the evidence presented at trial; and, in any
event, even had the comments been improper, Lopez had not shown sufficient prejudice
to warrant a new trial. Nor, the court held, was there any merit to Lopez’s claim that the
government violated Brady v. Maryland, 373 U.S. 83 (1963), with respect to evidence
regarding the stain on the bag holding the knife sheath, as the government in fact had
disclosed information about the stain to the defense. After considering all of Lopez’s
arguments, the district court denied Lopez’s post-trial motion.
At sentencing, in applying the § 3553(a) factors, the district court emphasized as a
“very important fact,” J.A. 849, that Lopez “was very young at the time that this offense
took place,” J.A. 858. But given the violent nature of the murder and rape, the obligation
to provide just punishment, and the need for deterrence, the court sentenced Lopez to 20
years’ imprisonment. Although Lopez stressed that his co-perpetrator Cerros-Cruz was
sentenced to only ten years after pleading guilty, the court rejected that juxtaposition as
“comparing apples to oranges”: There is no requirement, the court explained, that “a
defendant who goes to trial” be given the same sentence as “a person who pleaded
guilty.” J.A. 857.
10
Lopez timely appealed.
II.
Lopez’s appeal focuses primarily on the six-year delay between the 2007 robbery
and his 2013 indictment, and the consequences of the delay for these proceedings.
Because of the delay, Lopez argues, he was tried as an adult and not as a juvenile, and the
provision of the Juvenile Delinquency Act authorizing that outcome is unconstitutional.
Lopez also renews his claims that his 2013 prosecution is outside the statute of
limitations and that the delay in charging him violates his due process rights. We review
the legal questions raised by these contentions de novo, and the district court’s associated
factual findings for clear error. See United States v. Brehm, 691 F.3d 547, 550 (4th Cir.
2012). As explained below, we affirm.
A.
The Juvenile Delinquency Act removes juvenile offenders from the ordinary
criminal justice process and puts them in a separate, age-appropriate system focused on
treatment and rehabilitation. See Blake, 571 F.3d at 344 (describing JDA). Those
safeguards apply only to the prosecution of a “juvenile,” a term defined in § 5031 of the
Act:
For the purposes of this chapter, a “juvenile” is a person who has not
attained his eighteenth birthday, or for the purpose of proceedings and
disposition under this chapter for an alleged act of juvenile delinquency, a
person who has not attained his twenty-first birthday[.]
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18 U.S.C. § 5031. As the district court recognized, this court held in Blake that a
defendant like Lopez, who is under 18 at the time of an offense but 21 years or older
when indicted, does not qualify as a “juvenile” under the plain terms of § 5031. See 571
F.3d at 344–45. To conclude otherwise, this court reasoned, “we would have to read ‘a
person who has not attained his eighteenth birthday’ [] to mean a person who had not
attained his eighteenth birthday at the time he allegedly violated the law in question.
That simply is not what the statute says.” Id. at 344 (emphasis in original) (quoting 18
U.S.C. § 5031).
On appeal, Lopez does not argue that he qualifies as a “juvenile” under § 5031.
Instead, he renews his challenges to § 5031 on constitutional grounds. The thrust of
Lopez’s argument is that excluding from the JDA those who turn 21 only after they
commit offenses but before they are indicted is arbitrary and irrational. According to
Lopez, juveniles are singled out for protection by the JDA because of their reduced moral
culpability for bad acts committed before they become adults. And if the point of the
JDA is culpability at the time of the offense, then it makes no sense to strip protection
from the subset of juvenile offenders who happen to be charged after their twenty-first
birthdays. Because § 5031’s definition “arbitrarily eliminate[s]” the Act’s benefits for
offenders who are no more morally culpable than those who remain covered, Lopez
12
argues, it bears no rational relationship to the JDA’s purported end and thus fails to
comport with the Constitution. Br. of Appellant at 20. 2
The problem with Lopez’s argument is that its premise is false: The JDA is not
concerned exclusively, or even primarily, with the moral culpability of offenders at the
time of their crimes. Rather, the JDA is intended to ensure that at the time they are
brought into the criminal justice process, juveniles will have the benefit of a system that
is tailored to their special needs and vulnerabilities and, in particular, to their special
receptivity to rehabilitation. See United States v. Juvenile Male, 554 F.3d 456, 459 (4th
Cir. 2009) (purpose of JDA is “to remove juveniles from the ordinary criminal process in
order to avoid the stigma of a prior criminal conviction and to encourage treatment and
rehabilitation”) (internal quotation marks omitted). It is because juveniles are
“presumptively capable of rehabilitation,” that is, that they are made subject to the JDA
and its underlying “rehabilitative philosophy.” United States v. Juvenile, 347 F.3d 778,
785 (9th Cir. 2003). Thus, the statute’s “remedial scheme” focuses primarily on “the
offender’s current prospects for rehabilitation . . . and only secondarily on the offender’s
age at the time of the alleged offense.” United States v. Welch, 15 F.3d 1202, 1206–07
n.4 (1st Cir. 1993) (emphasis in original).
In light of this statutory purpose, it is entirely rational to define as juveniles
protected by the JDA only those who are younger than 21 when they are indicted,
2
Lopez also argues for application of strict scrutiny to § 5031’s operation. But
there is no fundamental right to be tried as a juvenile, see United States v. Juvenile, 228
F.3d 987, 990 (9th Cir. 2000) (rejecting constitutional challenge to operation of JDA),
nor any other basis for subjecting § 5031 to heightened scrutiny.
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regardless of the age at which they are alleged to have committed their offenses. What
matters under the JDA is whether a defendant will benefit from a separate delinquency
system that is specially geared toward the needs and the unique rehabilitative capacity of
juveniles. And the answer to that question will depend on the age of the defendant at the
time he or she is brought into the criminal justice process. Thus, there is nothing
irrational about Congress’s decision, codified in § 5031, to reserve the protections of the
juvenile justice system for offenders who enter it before they turn 21.
Lopez fares no better by reframing his argument as a due process claim,
contending that § 5031 unconstitutionally deprives him of a hearing on whether he may
be tried as an adult. As Lopez observes, cases like Kent v. United States, 383 U.S. 541,
553–54 (1966) and Kemplen v. Maryland, 428 F.2d 169, 173 (4th Cir. 1970), emphasize
the importance of procedural regularity, including a fair hearing, when a juvenile is
transferred out of a juvenile system for trial as an adult. But those cases have no
application here. Unlike the defendants in Kent and Kemplen, Lopez never was classified
as a “juvenile,” subject to the jurisdiction of a juvenile system, and so protections
attendant to the removal of a juvenile from a juvenile system are not implicated by his
case. And nothing in Kent or Kemplen suggests that an initial failure to deem an
individual a juvenile violates due process, or that a hearing is required before § 5031’s
age cut-off may be applied.
Instead, we agree with the Second Circuit, which rejected precisely this due
process challenge to § 5031 of the JDA in United States v. Hoo, 825 F.2d 667 (2d Cir.
1987). Like Lopez, the defendant in Hoo, who committed an offense as a juvenile but
14
was charged only after he turned 21, argued that the prosecutor’s decision regarding the
timing of his indictment should be subject to a hearing akin to the transfer hearing
required by Kent, given the decision’s consequences for his status under the JDA. See id.
at 670. But as the court explained, unlike the judicial transfer determination in Kent, a
prosecutor’s determination as to when to charge a case “has been rarely subject to judicial
review.” Id. Given prosecutors’ broad discretion in the bringing of charges, the court
concluded, due process cannot be understood to “require that decisions to prosecute be
subjected to pre-indictment judicial inquiry simply because the timing of the decision
affects the availability of juvenile procedures.” Id. at 671. We see no reason to depart
from that ruling today. 3
Finally, there is no merit to Lopez’s claim that § 5031 violates the Eighth
Amendment’s bar on cruel and unusual punishment by disregarding the difference in
culpability between juvenile and adult offenders and exposing him to adult punishment
for a crime committed as a youth. Although the Supreme Court has held that certain
punishments – the death penalty and mandatory life-without-parole sentences – may not
be imposed on juvenile offenders in light of diminished culpability, see Roper v.
Simmons, 543 U.S. 551, 571 (2005) (juvenile death penalty); Miller v. Alabama, 132 S.
Ct. 2455, 2460 (2012) (juvenile life-without-parole), Lopez’s twenty-year sentence does
3
Like the court in United States v. Hoo, we need not in this case address whether
due process rights might be implicated were the government to delay proceedings
improperly in order to deprive a defendant of recourse to the juvenile system. See 825
F.2d 667, 671 (2d Cir. 1987) (noting that “appellant has made no showing of an improper
prosecutorial motive”).
15
not implicate those limits. And while Lopez argues that cases like Roper and Miller
prohibit a sentencing regime in which judges are unable to give effect to a defendant’s
youth at the time of his or her offense, § 5031 does not govern sentencing procedures,
and the district court here was free to – and did – give careful weight to Lopez’s age at
the time of the offense under § 3553(a)’s sentencing factors. See 18 U.S.C. § 3553(a).
In sum, we agree with the district court that Lopez’s constitutional challenge to
§ 5031 of the JDA is without merit. Accordingly, we affirm the district court’s denial of
Lopez’s motion to dismiss on that ground.
B.
Lopez also contends that the six-year gap between the 2007 robbery and his 2013
prosecution runs afoul of the five-year statute of limitations that ordinarily applies to
Hobbs Act prosecutions. See 18 U.S.C. § 3282(a). The district court rejected that claim,
relying on 18 U.S.C. § 3297, which extends the limitations period in certain cases
involving DNA testing. We agree with the district court.
Under § 3297, the statute of limitations for a felony effectively restarts if DNA
testing “implicates” a person in the crime:
In a case in which DNA testing implicates an identified person in the
commission of a felony, no statute of limitations that would otherwise
preclude prosecution of the offense shall preclude such prosecution until a
period of time following the implication of the person by DNA testing has
elapsed that is equal to the otherwise applicable limitation period.
18 U.S.C. § 3297. The government reasons that Lopez was not “implicate[d]” in the
2007 robbery until 2012, when the DNA on the knife sheath was matched to Lopez. That
triggered the start of a new five-year limitations period – a “period of time following the
16
implication . . . equal to the otherwise applicable limitation period,” id. – only a year of
which had elapsed when Lopez was charged in 2013. The district court agreed, adopting
the government’s straightforward reading of § 3297.
Lopez, on the other hand, argues that he was “implicate[d]” for purposes of § 3297
as early as March of 2008, when his DNA was first entered into the CODIS database.
According to Lopez, the government could have identified him then, had it submitted the
knife sheath for DNA testing immediately after the robbery in 2007. And on that theory,
the new five-year limitations period would have expired a few months before Lopez’s
July 2013 indictment.
Whether § 3297 makes Lopez’s prosecution timely, in other words, turns on the
point at which “DNA testing implicates” a person for purposes of that statute. And while
our court has not addressed that issue, the Seventh Circuit has, holding in United States v.
Hagler, 700 F.3d 1091, 1098 (7th Cir. 2012), that “DNA evidence will ‘implicate’
someone” under § 3297 only when there is a “match[],” generally to a “single, identified
person.” While Hagler left open the possibility that DNA evidence could “implicate”
more than one person for purposes of § 3297, imagining a defendant with an identical
twin, id. – a scenario we also may leave open for now – it made clear that a person could
not be “implicated” under § 3297 until there was, at a minimum, an actual DNA “hit” that
would “strongly tie that person to wrongdoing.” Id. at 1097.
Like the district court, which relied on Hagler in its decision, we agree with the
Seventh Circuit. The statutory text is plain: The new limitations period is triggered when
“DNA testing implicates an identified person” in a felony, 18 U.S.C. § 3297 (emphasis
17
added), not when it “could implicate” a person. There is no language conditioning
§ 3297’s application on the timeliness of a government investigation leading to DNA
testing; what matters is only the time at which completed testing “implicates” a suspect.
Any other interpretation would require us to add into the statute words that are not there.
This plain reading of § 3297 is confirmed by the statute’s legislative history,
which describes the provision as intended to “properly toll[] the statute of limitations for
crimes with a DNA sample until that sample is matched to a person. Once the sample is
matched to a person, the statute begins to run.” H.R. Rep. No. 108-321(I), at 132 (2003)
(emphasis added). Thus, the statute provides prosecutors with “the ability to charge the
true perpetrator . . . whenever he is accurately identified through DNA.” Id. at 133
(emphasis added). And it conforms as well to Congress’s larger understanding in
enacting § 3297, which was that “DNA evidence, unlike most other kinds of evidence,
can maintain its reliability for decades,” so that the concerns traditionally associated with
delayed prosecutions are significantly attenuated. Hagler, 700 F.3d at 1098.
In light of the plain text and purpose of § 3297, it is clear that “DNA testing
implicate[d]” Lopez only in 2012, when he was linked to the DNA sample taken from the
knife sheath. Because Lopez was indicted well within the five-year clock that began to
run with the 2012 DNA match, his prosecution was timely under § 3297, and we affirm
the district court’s denial of Lopez’s motion to dismiss on statute of limitations grounds.
C.
Lopez’s final delay-related claim is that the more than six-year gap that elapsed
between the 2007 robbery and his 2013 indictment violated his due process rights. In
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order to prevail on a due process claim based on pre-trial delay, a defendant first must
show that he suffered actual prejudice. United States v. Uribe-Rios, 558 F.3d 347, 358
(4th Cir. 2009). If that threshold requirement is met, then a court will consider the
government’s reasons for the delay, to evaluate whether there has been a violation of
“fundamental conceptions of justice or the community’s sense of fair play and decency.”
Id. (internal quotation marks omitted); see Howell v. Barker, 904 F.2d 889, 895 (4th Cir.
1990). The district court held that Lopez could satisfy neither prong of this standard, and
again, we agree.
As to prejudice, the district court properly applied circuit case law requiring a
showing of “actual substantial prejudice,” described as a “heavy burden.” See Jones v.
Angelone, 94 F.3d 900, 907 (4th Cir. 1996). After a careful review of the facts of this
case, the court concluded that Lopez could not meet that burden by identifying specific
witness testimony or evidence that was lost to him as a result of the passage of time. Nor,
the district court held in the alternative, had the government unreasonably delayed
Lopez’s indictment under the second prong of the analysis. Any delay in DNA testing of
the knife sheath, the district court found, was attributable to limited resources for private
testing and the “triage system” adopted as a consequence. J.A. 769. And once DNA
testing implicated Lopez, the court determined, the government reasonably searched for
additional evidence and then brought its case to the grand jury as quickly as that evidence
– in the form of testimony from a confidential informant – materialized.
We have no reason to second-guess the district court’s determination that Lopez
failed to establish actual prejudice stemming from pre-trial delay, nor its finding that the
19
time between offense and charge was a result of continued reasonable investigation rather
than any government misconduct. Accordingly, we affirm the denial of Lopez’s motion
to dismiss on this ground, as well.
III.
We turn now to the district court’s denial of Lopez’s motion for a new trial or
judgment of acquittal. Finding no error in the district court’s rulings on Lopez’s claims,
we affirm.
A.
Lopez first maintains that the government failed to present sufficient evidence that
the robbery of the Langley Park brothel interfered with interstate commerce as required
under the Hobbs Act, and that the district court erred in denying his motion for a
judgment of acquittal on that ground. We review the district court’s denial of Lopez’s
motion de novo, but we view the evidence in the light most favorable to the prosecution,
and will affirm if there is evidence in the record from which a reasonable finder of fact
could find the necessary connection to interstate commerce. See Taylor, 754 F.3d at 224.
The Hobbs Act criminalizes robbery or extortion that “in any way or degree
obstructs, delays, or affects commerce or the movement of any article or commodity in
commerce[.]” 18 U.S.C. § 1951(a). Accordingly, a Hobbs Act violation requires proof
of two elements: an underlying robbery or extortion crime, and an effect on interstate
commerce. United States v. Williams, 342 F.3d 350, 353 (4th Cir. 2003). As we have
explained, the jurisdictional predicate of the Hobbs Act requires only a “minimal effect”
20
on interstate commerce – including one “so minor as to be de minimis” – and there is no
requirement that the effect on commerce be intended, so long as it is a “natural, probable
consequence” of the defendant’s actions. Taylor, 754 F.3d at 222 (internal quotation
marks omitted). And we have recognized that because drug dealing, though illegal, is an
“inherently economic enterprise that affects interstate commerce,” robbery of a drug
dealer is the kind of act that satisfies the “affecting commerce” element of a Hobbs Act
robbery. Williams, 342 F.3d at 355; see Taylor, 754 F.3d at 223 (“Drug dealing is a
commercial enterprise and robberies of drug dealers threaten that enterprise; that is
enough for a federal court to exercise jurisdiction under the Hobbs Act.”).
Like the district court, we think the same principle applies here. An illegal brothel
“is a commercial establishment that deals in the business of prostitution,” J.A. 779 – an
“inherently economic enterprise” under Williams and Taylor. And this particular
business, as the district court recognized, was significantly facilitated by interstate
commerce, as women, like Garcia-Calderon, regularly moved across state lines from their
homes in order to work at the brothel. The government also put on evidence that the
brothel routinely used condoms manufactured outside the state of Maryland as part of its
business, and that Lopez and Cerros-Cruz targeted the brothel because it was an illegal
business taking in cash from its customers.
A reasonable jury could find from that evidence that robbery of the Langley Park
brothel would have at least a de minimis effect on interstate commerce – and, aggregated
with other similar acts, a measureable impact on commerce. See Williams, 342 F.3d at
354–55 (“The question is not simply whether one particular offense has a measurable
21
impact upon interstate commerce, but whether the relevant class of acts has such an
impact.”). That is sufficient to sustain Lopez’s Hobbs Act conviction. 4
B.
Lopez also argues that he is entitled to a new trial as a result of certain statements
made by the government in its closing argument. In particular, Lopez points to what he
contends was improper bolstering of a witness in the government’s rebuttal. In his own
closing argument, as described above, Lopez, in the course of urging the jury not to credit
the testimony of the government’s confidential informant, questioned why the
government had not sought to corroborate that testimony with an account from the
informant’s cellmate. In response, the government reminded the jury of “testimony about
how MS-13 retaliates,” and suggested that alerting the cellmate – an MS-13 member – to
its discussions with the confidential informant might have put the informant in jeopardy.
S.A. 261.
Though Lopez did not object at trial to the government’s statement, he did argue
to the district court in his post-verdict motion that the statement was grounds for a new
trial. The district court rejected that claim. First, the district court held, the government
did not go outside the evidence before the jury and improperly vouch for the confidential
informant, but instead asked the jury to draw from evidence introduced at trial – the
4
Lopez also argues that the government failed to present sufficient evidence of the
underlying robbery that is the basis for his Hobbs Act conviction. The district court
rejected that claim, relying on record evidence from which a reasonable jury could
conclude that the intruders had robbed Garcia-Calderon of her cell phone and also taken
the wallet and watch of Cordon, the stabbing victim. We agree with the district court.
22
testimony of the confidential witness – the “sensible inference” that safety concerns
would have been raised by interviewing the informant’s MS-13 cellmate. J.A. 781. And
in the alternative, the court concluded, even had the government’s comment been
improper, it was not so prejudicial as to warrant a new trial.
This court reviews a district court’s ruling on an objection made during closing
argument for abuse of discretion, and will reverse only where an abuse of discretion
constitutes prejudicial error. See United States v. Green, 599 F.3d 360, 379 (4th Cir.
2010). And here, because Lopez did not raise an objection at trial, our review is more
limited still: We may review only for plain error, see United States v. Young, 470 U.S. 1,
14 (1985), and grant relief only if there was a plain error that affected Lopez’s substantial
rights and would seriously affect the fairness, integrity or public reputation of judicial
proceedings, see United States v. Olano, 507 U.S. 725, 732 (1993).
We need not decide whether the government’s response to Lopez’s closing
argument was improper, because we agree with the district court that any hypothetical
error did not prejudice Lopez so as to deny him due process and require a new trial. See
United States v. Lighty, 616 F.3d 321, 359 (4th Cir. 2010) (closing argument violates due
process rights only if it is improper and also “so prejudice[s] the defendant’s substantial
rights that the defendant was denied a fair trial”). To evaluate whether comments during
a closing argument are prejudicial to the point of denying a fair trial, we consider:
(1) the degree to which the prosecutor’s remarks have a tendency to
mislead the jury and to prejudice the accused; (2) whether the remarks were
isolated or extensive; (3) absent the remarks, the strength of competent
proof introduced to establish the guilt of the accused; [] (4) whether the
comments were deliberately placed before the jury to divert attention to
23
extraneous matters[;] . . . (5) whether the prosecutor’s remarks were invited
by improper conduct of defense counsel[;] and (6) whether curative
instructions were given to the jury.
Id. at 361 (internal quotation marks and citations omitted). Applying those factors to the
government’s statement here, as the district court concluded, “it is apparent that Lopez
was not so severely prejudiced as to warrant a new trial.” J.A. 782.
First, as the district court explained, the statement did not have any tendency to
mislead the jury, as the jury reasonably could have inferred the same conclusion from
testimony regarding MS-13 threats to members who cooperated with law enforcement.
The statement also was isolated, limited to a few lines of rebuttal argument, and came in
response to issues raised during Lopez’s closing; Lopez has made no showing that the
statement was intended as a diversionary tactic. And the statement did little to strengthen
the “competent proof” of guilt, which was convincing and centered largely on entirely
independent DNA evidence. Finally, although curative instructions were not given,
Lopez’s failure to object meant that the district court had no reason to believe that such
instructions were necessary.
In sum, and weighing all of the relevant factors, we agree with the district court
that Lopez cannot establish that any error “so prejudiced [his] substantial rights” that a
new trial is warranted. See Lighty, 616 F.3d at 359. It follows a fortiori that Lopez
cannot prevail on plain error review, where he must establish both an effect on substantial
rights and an error of the kind that calls into question the fairness, integrity or public
24
reputation of judicial proceedings. Accordingly, we affirm the district court’s denial of
Lopez’s motion for a new trial on this ground. 5
C.
Lopez raises additional grounds for a new trial with which we may dispense more
briefly. First, Lopez argues that his due process rights were violated when the
government proceeded on inconsistent theories of the case, originally pursuing Cerros-
Cruz as the rapist and then arguing at Lopez’s trial that it was Lopez who had raped
Garcia-Calderon. As the district court recognized, we have stated that “the Due Process
Clause prohibits the government from presenting mutually inconsistent theories of the
same case against different defendants.” United States v. Higgs, 353 F.3d 281, 326 (4th
Cir. 2003). But see DeCastro v. Branker, 642 F.3d 442, 458 (4th Cir. 2011) (qualifying
Higgs statement as dicta). But as the court went on to explain, “here, there were no
conflicting claims . . . regarding who was the sexual attacker”: Cerros-Cruz pleaded
guilty to Hobbs Act conspiracy, and “at no point during the proceedings against Cerros-
Cruz or Lopez did the government commit itself to the position that Cerros-Cruz was the
rapist.” J.A. 780. That is sufficient to dispose of Lopez’s claim.
5
Lopez also challenges the government’s statement, in its primary closing argument, that
Garcia-Calderon “simply doesn’t remember” the face of her attacker, S.A. 208, arguing
that it is inconsistent with testimony that at one point Garcia-Calderon was able to
identify Cerros-Cruz, based on the shape of his lips and mustache. Pointing to the fact
that the government itself acknowledged at trial that Garcia-Calderon had tentatively
identified Cerros-Cruz, as well as “considerable evidence” that Garcia-Calderon was not
able to make a reliable identification, J.A. 780, the district court held that the government
properly summarized Garcia-Calderon’s testimony and that its description was supported
by the trial evidence. We find no error in that determination.
25
Lopez also renews his objection to the district court’s conditional admission of the
DNA evidence taken from the knife sheath at the scene of the rape. As described above,
Lopez moved to strike that evidence, arguing that a stain that developed on the brown
paper bag holding the sheath could have contaminated the sample. The government’s
DNA expert witness testified that the stain did not affect the knife sheath itself and that it
did not appear that the interior of the bag had been compromised; even if the interior had
been compromised, she testified that the stain could not affect the DNA analysis unless
the stain itself was caused by a “biological fluid that contained a lot of DNA.” J.A. 684.
The district court denied Lopez’s motion to strike, concluding that a reasonable
jury could find that the DNA testing was unaffected by the stain. But because – in a
“stretch[]” – a reasonable jury also could conclude that the DNA sample might have been
compromised, J.A. 695, the district court admitted the DNA evidence conditionally under
Federal Rule of Evidence 104(b), instructing the jury to consider it only if it credited the
government’s account of the storing and testing of the knife sheath. If, on the other hand,
the jury was persuaded by Lopez that the DNA sample had been contaminated, then it
was instructed to “disregard that DNA analysis.” J.A. 738–39.
We review the district court’s evidentiary ruling for abuse of discretion, see
United States v. Hornsby, 666 F.3d 296, 307 (4th Cir. 2012), and find no such abuse here.
Under Rule 104(b), when the relevance of evidence – here, the DNA testing results –
turns on a conditional fact – here, that the DNA sample had not been contaminated – the
evidence is admitted and the determination of the conditional fact left to the jury, so long
as the “jury could reasonably find the conditional fact . . . by a preponderance of the
26
evidence.” Huddleston v. United States, 485 U.S. 681, 690 (1988). We have no reason
to doubt the district court’s determination that the government introduced sufficient
evidence to allow a reasonable jury to conclude that the DNA sample was
uncontaminated by the stain in question. 6
IV.
We turn finally to Lopez’s challenge to his sentence. Lopez contends that his 20-
year sentence is unreasonable, as compared to the ten-year sentence of his “more culpable
co-defendant,” Cerros-Cruz. Br. of Appellant at 54. In other words, Lopez asserts that
his sentence is substantively unreasonable because of a sentencing disparity. We review
the substantive reasonableness of a sentence for an abuse of discretion, United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010), and presume the reasonableness
of a sentence, like Lopez’s, that is within the Guidelines range, United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008). We find no abuse of discretion here.
In United States v. Allmendinger, 706 F.3d 330, 344 (4th Cir. 2013), we rejected a
sentencing disparity claim much like Lopez’s. There, the defendant argued that his 540-
month sentence for seven offenses relating to mail and securities fraud was substantively
6
Nor is there any merit to Lopez’s claim that the government violated Brady v.
Maryland, 373 U.S. 83 (1963), in connection with the stain on the bag. As the district
court explained, Lopez does not dispute that the government in fact turned over evidence
related to the stain to the defense, nor that his counsel inspected the bag itself prior to
trial. Though the district court went on to find in the alternative that any failure to
disclose would not have been material, as is required to make out a Brady violation, we
are content to affirm on the ground that the government fulfilled its obligations under
Brady.
27
unreasonable because it was significantly higher than the ten-year sentence of his co-
conspirator. Id. at 338, 344. We concluded that Allmendinger and his co-conspirator
were situated differently, given that the co-conspirator had “admitted to his culpability”
by entering into a plea agreement with the government and as a result had been permitted
to plead guilty to only two conspiracy charges. Id. at 344. Absent a showing of
“invidious discrimination by the government,” we held we could not “second guess the
government’s exercise of its prosecutorial discretion,” and the “district court simply was
not required, in the name of avoiding unwarranted sentencing disparity, to treat
Allmendinger as if he had been convicted only of the crimes to which [his co-conspirator]
pled guilty.” Id.
Lopez and Cerros-Cruz are likewise in dissimilar positions: Cerros-Cruz admitted
to his culpability, and consequently was permitted to plead guilty to only one count of
conspiracy, with an agreed-upon sentence of ten years. Lopez, on the other hand, opted,
as was his right, to be tried by a jury, and was convicted of both the robbery and
conspiracy counts against him. Lopez makes no showing – and we discern no trace – of
any “invidious discrimination” in the government’s charging decisions. See id. And like
the district court in Allmendinger, id., the district court in this case gave careful
consideration to Lopez’s argument regarding a potential disparity between his sentence
and that of Cerros-Cruz, explaining why it did not believe it was required to impose
identical sentences on the two defendants. Accordingly, we conclude that the district
court was within its discretion in sentencing Lopez as it did.
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V.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED
29