United States v. Prado

13-2894-cr(L)
United States v. Prado
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
24th day of February, two thousand sixteen.
Present: GUIDO CALABRESI,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 13-2894-cr (L),
13-3877-cr (Con),
14-115-cr (Con),
14-143-cr (Con)
GIOVANNI PRADO, aka JOKER, ERICK ALVARADO, aka GATO SECO, ELENILSON
ORTIZ, aka SHORTY, EFRAIN ZUNIGA, aka PANICO, DIEGO NINOS, aka VENENO, aka
MICO, SERGIO MEJIA-BARRERA, aka PELON, EMILIO SABALLOS, aka CABALLO,
WALTER FLORES-REYES, aka SCRAPPY, aka WALTER REYES, DAVID VALLE, aka
OREO, LOUIS RUIZ, aka CHUCKY, aka LUIS RUIZ, FRANCISCO RAMOS, aka CRUISER,
CESAR LANDAVERDE, aka FLACO, aka REBELDE, ROGER ALVARADO, aka
MICHICHI, CARLOS MARTINEZ, aka CARLITO, JOSE GUSTAVO ORELLANA-TORRES,
aka DIABLITO, aka GUSTAVO JEFFERSON ORELLANA TORRES, JIMMY SOSA, aka
JUNIOR, JEREMIAS EXEQUIEL AMAYA, aka PAYASO, JOSE SALAZAR ERAZO, aka
JOSE SALAZAR ERZAO, FRANKLIN VILLATORO, aka MONSTRO, WILBER AYALA-
ARDON, aka PAJARO, aka PIOLIN, YOBANY CALDERON, aka TEGO, ADALBERTO
ARIEL GUZMAN, aka GRINGO, RENE MENDEZ MEJIA, aka ZORRO, YONIS ACOSTA-
YANES, aka BRUJITA,
Defendants,
VIDAL ESPINAL, aka DEMENTE, MARIO ALPHONSO HERRERA-UMANZOR, aka
PERDIDO, aka MARIO UMANZOR, HERIBERTO MARTINEZ, aka BOXER, CARLOS
ORTEGA, aka SILENCIO,
Defendants-Appellants.1
_____________________________________________________
Appearing for Appellant Mario Alphonso Robert A. Soloway, Rothman, Schneider,
Herrera-Umanzor: Soloway & Stern, LLP, New York, NY.
Appearing for Appellant Vidal Espinal: John Frederick Carman, Garden City, NY.
Appearing for Appellant Heriberto Martinez: Randall D. Unger, Bayside NY (Elizabeth E.
Macedonio, New York, NY, on the brief).
Appearing for Appellant Carlos Ortega : Elizabeth M. Johnson (Ira D. London and
Avrom Robin on the brief), Law Offices of London
& Robin, New York, NY.
Appearing for Appellee: John J. Durham, Assistant United States Attorney
(Carrie N. Capwell, Peter A. Norling, and Raymond
A. Tierney, Assistant United States Attorneys, on
the brief), for Kelly T. Currie, Acting United States
Attorney for the Eastern District of New York,
Brooklyn, NY.
Appeal from the United States District Court for the Eastern District of New York
(Bianco, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that (1) the judgment of said District Court against Martinez be and it hereby
is AFFIRMED, that (2) the judgment of said District Court against Ortega be and it hereby is
AFFIRMED IN PART, VACATED IN PART, and REMANDED, that (3) attorney John F.
Carman’s motion to be relieved as counsel to Espinal, and the government’s motions to dismiss
Espinal’s appeal of his conviction and term of imprisonment and to summarily affirm his special
assessment and term of supervised release are GRANTED, and that (4) attorney Robert A.
Soloway’s motion to be relieved as counsel to Herrera-Umanzor, and the government’s motion
for summary affirmance are GRANTED.
1
The Clerk of Court is directed to amend the caption as set forth above.
2
Defendants-appellants Heriberto Martinez and Carlos Ortega appeal from judgments of
the United States District Court for the Eastern District of New York (Bianco, J.), convicting
Martinez and Ortega on counts of racketeering, racketeering conspiracy, conspiracy to commit
murder in aid of racketeering, murder in aid of racketeering, and aiding and abetting the use of a
firearm during a crime of violence, and against Martinez on additional counts of conspiracy to
commit murder in aid of racketeering, murder in aid of racketeering, using a firearm during a
crime of violence, causing the death of another through the use of a firearm, and accessory after
the fact. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.
In this summary order, we address Martinez’s and Ortega’s arguments regarding the
sufficiency of the evidence for their convictions and the use of an anonymous and partially
sequestered jury. A separate opinion accompanying this order addresses their arguments
regarding their convictions for aiding and abetting a violation of 18 U.S.C. § 924(c).
First, Martinez argues that there was insufficient evidence to convict him of murder in aid
of racketeering in connection with the murders of Vanessa Argueta, Nestor Moreno, and Mario
Quijada, because there was insufficient evidence that the murders were committed for the
purpose of maintaining or increasing position in the racketeering enterprise, as is required for a
conviction under the Violent Crimes in Aid of Racketeering Activity (VICAR) statute, 18 U.S.C.
Section 1959(a). He also argues that there was insufficient evidence of his participation in the
murder of Argueta. Ortega similarly argues that there was insufficient evidence to convict him of
murder in aid of racketeering in connection with the murder of Quijada because there was
insufficient evidence that the murder was done for the purpose of maintaining or increasing
position in the racketeering enterprise. Conducting a de novo review, United States v. Desposito,
704 F.3d 221, 226 (2d Cir. 2013), and considering the evidence in the light most favorable to the
government, Jackson v. Virginia, 443 U.S. 307, 319 (1979), we hold that a rational trier of fact
could have found beyond a reasonable doubt that Martinez and Ortega participated in the murder
of Quijada and that Martinez participated in the murders of Moreno and Argueta for the purpose
of maintaining or increasing position in the racketeering enterprise under VICAR, for
substantially the same reasons as those stated by the district court in its thorough and well-
reasoned opinion. See United States v. Martinez, 978 F. Supp. 2d 177 (E.D.N.Y. 2013); see also
United States v. Vernace, — F.3d —, 2016 WL 386154, at *5-7 (2d Cir. Feb. 2, 2016)
Martinez and Ortega also argue that the district court’s decision to empanel an
anonymous and partially sequestered jury deprived them of their due process right to a fair trial.
“[W]hen genuinely called for and when properly used, anonymous juries do not infringe a
defendant’s constitutional rights.” United States v. Pica, 692 F.3d 79, 88 (2d Cir. 2012). “A
district court may order the empaneling of an anonymous jury ‘upon (a) concluding that there is
strong reason to believe the jury needs protection, and (b) taking reasonable precautions to
minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are
protected.’” United States v. Kadir, 718 F.3d 115, 120 (2d Cir. 2013) (quoting Pica, 692 F.3d at
88). “If a district court has taken reasonable precautions to protect a defendant’s fundamental
rights, we review its decision to empanel an anonymous jury for abuse of discretion.” Id. Here,
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Martinez and Ortega do not, nor could they, argue that the district court failed to take reasonable
precautions to protect their rights, and we therefore review for abuse of discretion.
The district court did not abuse its discretion in empaneling an anonymous and partially
sequestered jury. There was substantial evidence of attempted and actual interference with the
judicial process by Ortega and Martinez’s codefendants, see Pica, 692 F.3d at 88; United States
v. Quinones, 511 F.3d 289, 295-97 (2d Cir. 2007); United States v. Gotti, 459 F.3d 296, 345-46
(2d Cir. 2006); United States v. Thai, 29 F.3d 785, 801 (2d Cir. 1994), the crimes charged were
extremely violent, see United States v. Stewart, 590 F.3d 93, 124-25 (2d Cir. 2009), and Ortega
and Martinez were members of a large, well-organized, and violent gang with many members
who were not incarcerated, Quinones, 511 F.3d at 295-97; Gotti, 459 F.3d at 346; United States
v. Paccione, 949 F.2d 1183, 1192-93 (2d Cir. 1991).
We have considered the remainder of Martinez and Ortega’s arguments and find them to
be without merit. In an opinion issued simultaneously with this summary order, we vacate the
district court’s judgment of conviction against Ortega on Count 21, aiding and abetting a
violation of 18 U.S.C. § 924(c). Accordingly, (1) the judgment against Martinez is AFFIRMED,
and (2) with respect to Ortega, we VACATE his conviction on Count 21, AFFIRM his
conviction on all other counts, and REMAND for resentencing in accordance with the opinion
issued simultaneously with this summary order.
Finally, we address the pending motions related to the remaining two defendants-
appellants, Vidal Espinal and Mario Herrera-Umanzor. John F. Carman, counsel for appellant
Vidal Espinal in 2d Cir. 13-2894 (L), moves for permission to withdraw as counsel pursuant to
Anders v. California, 386 U.S. 738 (1967). The government moves to dismiss the appeal based
on Espinal’s appeal waiver in his plea agreement. Upon due consideration, it is hereby
ORDERED that the Anders motion is GRANTED; the government’s motion to dismiss is
GRANTED with respect to Espinal’s appeal from his conviction and term of imprisonment; and
the government’s motion is construed as also requesting summary affirmance and, so construed,
is GRANTED with respect to Espinal’s appeal from his term of supervised release and special
assessment.
Robert A. Soloway, counsel for appellant Mario Herrera-Umanzor in 2d Cir. 13-3877
(Con), moves for permission to withdraw as counsel pursuant to Anders v. California, 386 U.S.
738 (1967). The government moves for summary affirmance. Upon due consideration, it is
hereby ORDERED that the Anders and summary affirmance motions are GRANTED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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