United States v. Jesus Alejandro Chavez

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4499
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS ALEJANDRO CHAVEZ, a/k/a Chuy,
Defendant - Appellant.
__________________
No. 16-4517
__________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR DEJESUS CASTILLO, a/k/a Lil Payaso, a/k/a Lil Slow,
Defendant - Appellant.
__________________
No. 16-4523
__________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LOPEZ TORRES, a/k/a Grenas, a/k/a Peluca, a/k/a Medio Polvo, a/k/a
Peluquin, a/k/a Jose Alejandro Donez, a/k/a Manuel Lopez Torres,
Defendant - Appellant.
__________________
No. 16-4819
__________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN GAITAN BENITEZ, a/k/a Pesadilla, a/k/a Lil Pesadilla, a/k/a Lil Tuner,
a/k/a Tooner, a/k/a Lil Tunnel,
Defendant - Appellant.
__________________
No. 16-4820
__________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTIAN LEMUS CERNA, a/k/a Leopardo, a/k/a Bago, a/k/a Vago, a/k/a
Gatito, a/k/a Christian Josue Lemus Alfaro,
Defendant - Appellant.
_________________
No. 16-4821
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
2
v.
MANUEL ERNESTO PAIZ GUEVARA, a/k/a Solitario, a/k/a Colita,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Gerald Bruce Lee, District Judge. (1:14-cr-00306-GBL-2; 1:14-cr-00306-
GBL-4; 1:14-cr-00306-GBL-5; 1:14-cr-00306-GBL-6; 1:14-cr-00306-GBL-8; 1:14-cr-
00306-GBL-10)
Argued: May 10, 2018 Decided: July 2, 2018
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Motz
and Judge King joined.
ARGUED: Jerome Patrick Aquino, Springfield, Virginia; Christopher Bryan Amolsch,
Alexandria, Virginia, for Appellants. Tobias Douglas Tobler, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Elita
C. Amato, LAW OFFICE OF ELITA C. AMATO, Arlington, Virginia, for Appellant
Jesus Chavez. Amy L. Austin, LAW OFFICE OF AMY L. AUSTIN, PLLC, Richmond,
Virginia, for Appellant Alvin Benitez. Frank Salvato, Alexandria, Virginia, for Appellant
Christian Cerna. Jeffrey D. Zimmerman, JEFFREY ZIMMERMAN, PLLC, Alexandria,
Virginia, for Appellant Alvin Benitez. Robert L. Jenkins, Jr., BYNUM & JENKINS,
PLLC, Alexandria, Virginia, for Appellant Jose Torres. Katherine Martell, FIRST
POINT LAW GROUP, PC, Fairfax, Virginia; Meredith M. Ralls, S&R LAW FIRM
PLLC, Fairfax, Virginia, for Appellant Omar Castillo. William M. Chick, Jr., LAW
OFFICES OF W. MICHAEL CHICK, JR., Fairfax, Virginia, for Appellant Manuel
Guevara. Dana J. Boente, United States Attorney, Julia K. Martinez, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
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WILKINSON, Circuit Judge:
After a seven-week jury trial, the six defendants in this case were each convicted
of all the crimes with which they were charged, including violent crimes in aid of
racketeering. All six appeal their convictions, raising a wide variety of alleged
deficiencies in the trial, including Brady violations, failure to give certain jury
instructions, mistaken evidentiary rulings, and basic complaints about having a joint trial,
among others. As discussed below, we reject each of these challenges, and affirm the
convictions.
I.
Jesus Alejandro Chavez, Alvin Benitez, Omar Castillo, Jose Torres, Christian
Cerna, and Manuel Guevara are members of the MS-13 gang. This case arises out of a
series of violent crimes committed by the gang during 2013 and 2014.
In October 2013, defendant Torres and other MS-13 gang members attempted to
murder “Peligroso,” a fellow gang member who had broken MS-13’s rules. Several days
later, gang members including defendants Torres and Castillo murdered Nelson Omar
Quintanilla Trujillo, an MS-13 member who was suspected of being a government
informant. Trujillo was then buried in a shallow hole in a park, with gang members later
returning to move and rebury his body. In March 2014, defendants Castillo, Cerna,
Benitez, and Guevara murdered Gerson Adoni Martinez Aguilar for breaking MS-13
rules. Finally, on June 19, 2014, defendant Chavez murdered Julio Urrutia for
disrespecting MS-13.
4
In June 2015, a grand jury indicted the six appellants and seven other members of
MS-13 for their involvement in these crimes. Among other charges, each defendant was
indicted for either murder in aid of racketeering or conspiracy to commit murder in aid of
racketeering. The racketeering enterprise, as alleged in the indictment, is the MS-13
organization. Six of the indicted individuals pleaded guilty, while the other seven
proceeded to trial. * Five of those who pleaded guilty cooperated with the government
during the prosecution and at trial.
Following a seven-week trial, a jury found each defendant guilty of each charge
against him. After sentencing, the defendants filed this appeal, alleging that the
government violated its duties under Brady v. Maryland, 373 U.S. 83 (1963), and Napue
v. Illinois, 360 U.S. 264 (1959). Certain defendants also challenge their convictions based
on alleged deficiencies in the jury instructions, erroneous evidentiary rulings, failure to
grant severance motions, violations of statutory rights to counsel, and insufficient
evidence. Two defendants also challenge their sentences on constitutional grounds. We
address each of these challenges in turn.
II.
The defendants first allege that the government violated its Brady and Napue
duties. Under Brady, the “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
*
A mistrial was declared as to one defendant, who is therefore not part of this
appeal.
5
to punishment.” 373 U.S. at 87. Relatedly, under Napue, the government “may not
knowingly use false evidence, including false testimony, to obtain a tainted conviction”
or “allow[] it to go uncorrected when it appears.” 360 U.S. at 269. The defendants assert
that the government breached each of these duties in its treatment of the testimony of
Junior, an MS-13 member turned government cooperator.
A.
Before addressing the defendants’ arguments, additional background on Junior’s
testimony and immigration proceedings is necessary. During the government’s
investigation of MS-13, Junior infiltrated the defendants’ “clique” within MS-13,
surreptitiously recorded telephone calls with the defendants, and was eventually led by
one of the defendants to the bodies of two murder victims. At trial, Junior testified for the
government, explaining the contents of the recorded phone calls and helping to establish
the validity of the forensic evidence obtained from the victims’ bodies. Through his
cooperation, Junior gained significant immigration benefits, including deferred action to
allow him to stay in the United States to continue his work with the FBI. Junior also
applied for and received a green card prior to trial in this case. While the green card was
largely obtained through regular immigration proceedings rather than through
prosecutorial intervention, the FBI did write a letter to immigration authorities on his
behalf.
These immigration benefits were extensively discussed at trial. At one point, the
prosecution asked Junior, “Did the FBI have any involvement in your attempt to get the
green card?” J.A. 3682. Junior responded that the FBI wrote a letter, but that “the letter
6
was returned” and the immigration judge “didn’t get the letter.” J.A. 3683. During cross-
examination, Junior acknowledged that in fact he did “show a letter to the judge when
[he] was in front of the judge” and the FBI’s letter was thus ultimately delivered by
Junior personally. J.A. 4137–38.
Following direct examination of Junior but before the cross-examination, defense
counsel requested a subpoena duces tecum to obtain Junior’s immigration documents.
Because counsel acknowledged that his request was based solely on “a feeling . . . that
there’s something in [the immigration documents] that goes to truthfulness,” J.A. 3830,
the district court denied the request. After the trial, the defendants moved for a new trial
based on the government’s alleged failure to disclose exculpatory or impeachment
materials related to Junior, including Junior’s immigration records. The district court
denied the motion.
In a separate proceeding regarding another MS-13 defendant, Douglas Duran
Cerritos, the government was ordered to obtain, review, and provide to the court for in
camera review Junior’s immigration files. Pursuant to those orders, the government
produced for Cerritos three immigration forms on which Junior had failed to fully
disclose his prior criminal convictions and his connections to MS-13. All of Junior’s
convictions and his MS-13 connections appeared elsewhere in his immigration file.
After the Cerritos disclosures, the district court in this case ordered the
government to produce the documents that had been unveiled in the Cerritos case. The
defendants requested a new trial as well as a hearing to establish a factual basis for their
Brady and Napue claims based on these materials. The district court denied these
7
motions, finding that the government did not know or have reason to know of the
impeachment potential of the immigration documents, and that the new disclosures were
immaterial in any event.
B.
To succeed on a Brady claim, the defendants must establish that “the evidence was
(1) favorable to the accused, (2) suppressed by the government, and (3) material to the
verdict at trial.” Nicolas v. Attorney General of Maryland, 820 F.3d 124, 129 (4th Cir.
2016) (citing Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003)). Where, as here, a
Brady claim falters so clearly on materiality, we may proceed directly to address that
element.
Evidence is material under Brady if it “could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S.
at 435. Whatever impeachment value Junior’s immigration files may have held, it
certainly did not rise to that level.
The defendants emphasize the importance of Junior’s testimony, noting that the
prosecution hailed him as a “hero” during closing argument. J.A. 6440. But much of
Junior’s value stemmed from his investigative work prior to trial and the evidence he
helped the government to obtain, rather than from his bare testimony. At trial, the
government had at least two eyewitnesses testify for each murder. The government also
provided hours of recorded phone calls in which the defendants implicated themselves
and each other in the charged crimes. Physical and forensic evidence further implicated
the defendants. Impeaching Junior’s testimony would have done almost nothing to
8
undermine what the district court described as a “substantial, overwhelming, [and]
significantly corroborated” body of evidence. J.A. 7273.
Additionally, the defense had the opportunity to impeach Junior’s testimony
repeatedly throughout the trial. The immigration benefits that Junior received through his
cooperation with the government were extensively discussed, allowing the defense to
impugn Junior’s motives for testifying. Junior’s initial claim that the immigration judge
never received the letter, paired with his admission on cross-examination that he had
hand-delivered the letter to the judge, may also have impaired Junior’s trustworthiness in
the eyes of the jury. It cannot be that Junior’s omission of criminal convictions and gang
membership information on some, but not all, of his immigration forms tips the balance
of the evidence sufficiently to throw the jury’s entire verdict into question. The
purportedly suppressed evidence, then, was not material under Brady.
C.
The defendants’ Napue claim falters on similar grounds. Under Napue, “a
conviction obtained by the knowing use of perjured testimony is fundamentally unfair,
and must be set aside if there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976)
(citations omitted). Thus, the government may not knowingly offer false testimony in the
first place, and must correct it when it appears. United States v. Kelly, 35 F.3d 929, 933–
34 (4th Cir. 1994).
Junior’s initial testimony that the FBI’s letter on his behalf in his green card
proceedings was returned, and thus not received by the immigration judge, was at best
9
incomplete and misleading. But this testimony was corrected when Junior admitted on
cross-examination that he personally delivered the letter to the immigration judge. Under
these circumstances, “[h]ad there been any possibility of confusion, it was eliminated
when [the witness] corrected [him]self.” Daniels v. Lee, 316 F.3d 477, 494–95 (4th Cir.
2003). It is difficult to imagine how a conviction could have been “obtained by the
knowing use of perjured testimony” when that testimony was almost immediately
corrected by the witness himself. It is unclear what more the government could or should
have done to correct the false testimony once Junior had corrected himself on the stand.
Further, the government has repeatedly asserted, both below and on appeal, that it
had no knowledge of Junior’s hand-delivery of the FBI letter until he mentioned it on
cross-examination. The defendants offer no evidence to the contrary. Because a Napue
violation can be found only for knowingly offering or failing to correct false testimony,
this is a fatal flaw in their claim. If the government learned of the false testimony
simultaneously with the defense and the jury learning the truth, the government could not
have done anything differently to preemptively correct the false testimony.
Finally, as with the Brady claim, the defendants’ Napue claim would falter on
materiality even if the other elements were met. Junior’s misleading testimony related
only to whether his green card was obtained with or without the FBI’s help. Even before
correcting himself on cross-examination, Junior had admitted that investigators helped
him obtain deferred action and attempted to help him get a green card. The further detail
that the FBI’s letter actually made it to the immigration judge is thus of at best minor
additional impeachment value. The jury was already well aware that Junior had obtained
10
significant immigration benefits through his cooperation with the government. Whether
the FBI’s letter was successfully delivered to the immigration judge or not could not
plausibly throw the jury verdict into question, particularly when the truth of the matter
was disclosed to the jury during the trial.
III.
In addition to their specific Brady and Napue claims, the defendants also assert
broadly that the government engaged in a pattern of prosecutorial misconduct. To
succeed on a prosecutorial misconduct claim, the defendants must show that the
government’s improper conduct “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
The conduct the defendants complain of falls well short of this standard. Instead,
the defendants point to a small number of isolated incidents that did not go to the basic
fairness of the trial. For example, the defendants complain that the prosecution
improperly used oral objections “to telegraph how its witnesses were to answer questions
posed by defense counsel.” Defendants’ Br. 79. The district court agreed that some of the
prosecution’s objections were improper, but it cured any prejudice through a specific
admonishment to the jury that “the testimony of the witnesses . . . is something for you to
decide because you’re the judges of the facts” and that speaking objections should
therefore be disregarded. J.A. 5320–21.
The defendants also quibble with the prosecution’s closing arguments,
complaining that one witness’s testimony was mischaracterized and that the prosecution’s
11
closing misstated the law by encouraging the jury to accord greater weight to two
government witnesses’ credibility due to those witnesses’ guilty pleas. The question of
how to characterize the evidence is one the defense and government will frequently
disagree over, and it is well within the power of the jury to resolve such disputes. And the
prosecution’s minor misstatement of the law during closing, if there was one, was largely
cured by the court’s proper instructions to the jury on that issue. In any event, two
isolated misstatements during closing, following a seven-week trial, would need to be
much more significant to rise to the level of prosecutorial misconduct.
Under Darden, prosecutors are not required to be perfect, and indeed they could
hardly be expected to be. Prosecutors should of course strive for impeccable performance
and seek to avoid all improper behavior, but isolated and immaterial incidents such as
those at issue here do not implicate the overall fairness of the trial, and therefore do not
necessitate a new one.
IV.
Turning to the individual appeals, appellant Cerna claims that he is entitled to a
new trial based on the district court’s failure to provide his requested jury instructions.
Cerna was convicted of murder in aid of racketeering for Aguilar’s death. This appeal
contends that the district court erred in declining to give instructions on the lesser-
included crimes of assault and attempt, and that the district court insufficiently instructed
the jury on the “purpose” element of racketeering crimes.
We review a district court’s “decision to give (or not to give) a jury instruction . . .
for abuse of discretion.” United States v. Hager, 721 F.3d 167, 184 (4th Cir. 2013)
12
(quoting United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992)). When the district
court declines to give an instruction requested by a defendant, that decision is an abuse of
discretion only if the requested instruction “(1) was correct, (2) was not substantially
covered by the charge that the district court actually gave to the jury, and (3) involved
some point so important that the failure to give the instruction seriously impaired the
defendant’s defense.” Id. (citing United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995)).
Even if these criteria are satisfied, we will reverse only if “the record as a whole
demonstrates prejudice.” Id. (citing United States v. Ellis, 121 F.3d 908, 923 (4th Cir.
1997)).
A.
Lesser-included crime instructions are appropriate when “the proof of the element
that differentiates the two offenses [is] sufficiently in dispute that the jury could
rationally find the defendant guilty of the lesser offense but not guilty of the greater
offense.” United States v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997).
Here, there was no evidence to support giving instructions on either assault or
attempt with respect to Aguilar’s murder. Cerna claims an attempt instruction would have
been appropriate because a jury could have concluded that he “was part of an attempt to
kill or injure [Aguilar], while others actually committed the act without his participation.”
Defendants’ Br. 39. Cerna also points out that there was conflicting evidence at trial “on
which defendants were present at Aguilar’s murder; of those present, which actually
participated in Aguilar’s murder; [and] which defendants, if any, had prior knowledge
that Aguilar was to be murdered.” Defendants’ Br. 38.
13
But none of these disputes would support finding Cerna guilty of attempt or
assault, rather than murder. No defendant disputed at trial that a murder in fact took
place. And because Cerna was charged both as a principal and as an aider and abettor, he
need not have physically committed the murder in order to be found guilty. Cerna was
either guilty of this murder, whether as a principal or an aider/abettor, or he was not. No
reasonable jury could have found him guilty of assault or attempt but not murder. Thus,
the district court did not abuse its discretion by refusing to give instructions as to those
lesser included offenses.
B.
We are similarly unable to find fault with the district court’s purpose instruction.
Murder in aid of racketeering has an element requiring that the defendant’s “general
purpose in [committing the murder] was to maintain or increase his position in the
enterprise.” United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994) (quoting United
States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992)). The district court instructed the
jury that the government had to “prove beyond a reasonable doubt that at least one of the
defendant’s purposes in committing the violent crimes . . . was to gain entrance into,
maintain or increase his position in a racketeering enterprise.” J.A. 6316. Further, the
district court told the jury that it “need not find that maintaining or increasing position in
the enterprise was the defendant’s sole or even principal move.” J.A. 6316.
The defendants, by contrast, requested that the jury be instructed that maintaining
or increasing his position in the enterprise must be “one of the defendant’s dominant
purposes in committing the crime.” Defendants’ Br. 43 (emphasis added). Under this
14
circuit’s precedent, the district court properly rejected this proposed instruction. Neither
the statute nor Fiel require that enterprise membership be a dominant purpose for the
defendant. In fact, we have upheld convictions under this statute when “the evidence
clearly established private revenge as [a defendant’s] primary purpose,” because “the
deeds were done . . . in part at least in furtherance of the enterprise’s . . . reputation for
violence.” United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996). The jury instructions
actually given by the district court provided an accurate statement of the law, and we find
no abuse of discretion in the court’s refusal to instruct the jury on a more stringent
standard.
V.
Next, Cerna asserts that the district court abused its discretion by admitting
evidence of his involvement in Trujillo’s murder, with which he was not charged, and
that he is therefore entitled to a new trial. We disagree.
Prior to trial, the government notified Cerna that it planned to introduce evidence
of his involvement in the Trujillo murder under Federal Rule of Evidence 404(b). That
rule prohibits introduction of evidence of a crime “to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the character.”
FRE 404(b)(1). However, it allows such evidence “for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” FRE 404(b)(2). The government argued that Cerna’s involvement in
Trujillo’s murder was relevant to demonstrate his membership in MS-13 and his state of
mind regarding Aguilar’s murder. The district court rejected these arguments and
15
prohibited the government from presenting any evidence of Cerna’s involvement in
Trujillo’s murder.
Later, the government sought to introduce redacted transcripts of recordings that,
in their unredacted form, implicated Cerna in Trujillo’s murder. The government also
sought to introduce evidence of Cerna’s involvement in the reburial of Trujillo’s body
after his murder. Over Cerna’s objections, the district court granted these motions in full.
The court held that introducing evidence of Trujillo’s reburial would not implicate Cerna
in Trujillo’s murder, and thus that it was consistent with the court’s earlier 404(b) ruling.
On appeal, Cerna asserts that the district court abused its discretion by permitting
evidence that implicated Cerna in Trujillo’s murder, contending that this evidence was
barred by FRE 403, FRE 404, and the district court’s own 404(b) ruling. The government
maintains that evidence of Cerna’s participation in Trujillo’s murder could properly have
been admitted below, but that no such evidence was admitted at trial in any event.
We need not reach the question whether the district court’s initial 404(b) ruling
was required by our precedents. The evidence presented at trial did not actually identify
Cerna as Trujillo’s murderer; it simply established that he was involved in Trujillo’s
reburial. Contrary to Cerna’s claims, the jury would not naturally infer that Cerna was
Trujillo’s murderer from the fact of Cerna’s involvement in Trujillo’s reburial. The trial
included extensive evidence regarding other defendants’ involvement in Trujillo’s
murder, and no evidence at all that Cerna was involved in the murder. Thus, the question
of whether evidence of Cerna’s involvement in the murder would have been admissible at
trial is not properly before us.
16
On the question that is properly before us, we hold that Cerna is not entitled to a
mistrial or a new trial. Assuming arguendo that any of the evidence at issue here was
erroneously admitted, we must still assess evidentiary rulings for harmless error. United
States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Any potential prejudice against
Cerna was minimal. The prejudicial effect of evidence of uncharged crimes is minimized
when the charged crimes are of a similar or more severe nature. Here, evidence of
Trujillo’s reburial would have minimal prejudicial effect when the trial necessarily
included detailed evidence of Aguilar’s murder as well as evidence regarding Trujillo’s
murder by other defendants. Whatever prejudice existed was also minimized by jury
instructions to the effect that Cerna was not charged with any crime related to Trujillo
and that the reburial evidence could be used for only limited purposes. Specifically, the
district court told the jury that the reburial evidence could not be used “as a substitute for
proof that the defendant committed the crime charged” or “as proof that the defendant has
a bad character or any propensity to commit such crimes.” J.A. 6331. In light of such
clear limiting instructions from the district court, and the weight of the evidence against
him, Cerna cannot show that evidence of Trujillo’s reburial caused unfair prejudice.
VI.
In related challenges, two groups of defendants argue that the district court abused
its discretion by denying their severance motions. To succeed, the defendants must
overcome the “preference in the federal system for joint trials of defendants who are
indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). This preference is
rooted in the fact that joint trials “promote efficiency and ‘serve the interests of justice by
17
avoiding the scandal and inequity of inconsistent verdicts.’” Id. (quoting Richardson v.
Marsh, 481 U.S. 200, 210 (1987)). These interests are so substantial that “courts have
reversed relatively few convictions for failure to grant a severance” and the Supreme
Court “repeatedly ha[s] approved of joint trials.” Id. at 537–38 (citing Richardson, 481
U.S. at 210; Opper v. United States, 348 U.S. 84, 95 (1954); United States v. Marchant,
12 Wheat. 480 (1827)).
The cases recognize the extent to which it would strain judicial and community
resources to provide each defendant a separate trial in every case. As this case amply
illustrates, full trials are intensely demanding on witnesses, jurors, victims and their
families, and other participants in the judicial system. Particularly in cases like this one,
where a primary focus of the trial was the interwoven relationships among defendants,
separate trials would be repetitive, requiring witnesses to provide the same testimony
many times. The trial in this case was already seven weeks long; separate trials for each
of the six defendants would inevitably have stretched out over the course of months or
even years.
Appellant Chavez argues, however, that severance was necessary because the trial
included evidence of violent racketeering activity that he was not directly involved in.
We have previously rejected an almost identical argument for severance when each
defendant was required to defend “against a body of evidence that included separate
murders not attributable to all defendants.” United States v. Dinkins, 691 F.3d 358, 368
(4th Cir. 2012). As in Dinkins, each defendant here was charged with involvement in at
least one murder, so any prejudice stemming from dramatically different degrees of
18
culpability was especially unlikely. See id. (citing Zafiro, 506 U.S. at 539). And again, as
in Dinkins, the district court gave appropriate limiting instructions to the jury that further
lessened any risk of unfair prejudice. See id. Chavez has failed to distinguish his case
from Dinkins, and has not demonstrated a sufficient risk of prejudice to merit severance.
Defendants Benitez, Castillo, and Cerna request severance on the distinct ground
that defendant Guevara presented an antagonistic defense. But the Supreme Court has
clearly held that “[m]utually antagonistic defenses are not prejudicial per se.” Zafiro, 506
U.S. at 538. Instead, antagonistic defenses necessitate severance only if there is “such a
stark contrast presented by the defenses that the jury is presented with the proposition that
to believe the core of one defense it must disbelieve the core of the other, or that the jury
will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United
States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010) (quoting United States v. Najjar, 300
F.3d 466, 474 (4th Cir. 2002)) (alterations omitted). Guevara’s defense does not rise to
this level. Guevara argued at trial that he was not guilty in part because he, unlike others
involved in Aguilar’s murder, lacked foreknowledge of the murder plot. This defense is
not inconsistent with the defenses of Benitez, Castillo, or Cerna, all of whom emphasized
that the government could not prove who was present at Aguilar’s murder, who
participated in the murder, who knew of the murder plot in advance, or the motives of
those who murdered Aguilar. The core of Guevara’s defense was perfectly consistent
with the core of the defense presented by Benitez, Castillo, and Cerna—everyone was
essentially disclaiming personal responsibility for Aguilar’s death. These defendants are
thus also unable to establish that they were entitled to separate trials.
19
VII.
The next challenge comes from defendant Guevara, who argues that the district
court denied him his statutory right to two lawyers under 18 U.S.C. § 3005. Under that
statute, if a defendant is “indicted for treason or other capital crime,” “upon the
defendant’s request” for defense counsel, the court must “assign 2 such counsel, of whom
at least 1 shall be learned in the law applicable to capital cases.” 18 U.S.C. § 3005. We
have interpreted this statute to apply even when the government does not actually seek
the death penalty, if the defendant is indicted for a capital crime. United States v. Boone,
245 F.3d 352, 361 (4th Cir. 2001). Because murder in aid of racketeering is a capital
crime, 18 U.S.C. § 3005 is applicable to the defendants here.
In this case, the district court sua sponte appointed two attorneys for Guevara:
David Baugh as learned counsel and William Michael Chick, Jr., as second chair counsel.
Two months before trial was scheduled to begin, however, Baugh notified the
government that he would be unable to proceed with the trial as scheduled due to a
medical issue. Baugh thus requested a continuance. The district court instead asked Chick
to seek a replacement attorney for Guevara. After consulting with the Federal Public
Defender and other qualified attorneys, Chick was unable to find a suitable replacement
attorney who was willing to take the case without a continuance. Chick then moved for a
severance and continuance. The district court denied this motion, instead removing
Baugh from the case and indicating its willingness to appoint a substitute attorney should
one be identified.
20
Section 3005 does not directly address what is required of a district court under
these circumstances. And as a practical matter, it would be impossible for a statute to
adequately address every possible change in representation that might occur before or
during a trial. The district court must thus be afforded some measure of discretion to
determine what justice requires in a particular case. In related contexts, the Supreme
Court has acknowledged that “broad discretion must be granted trial courts on matters of
continuances” that are requested to permit a defendant to go to trial with his preferred
counsel. Morris v. Slappy, 461 U.S. 1, 11–12 (1983). Thus, “only an unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’
violates the right to the assistance of counsel.” Id. (quoting Ungar v. Sarafite, 376 U.S.
575, 589 (1964)). In this way, the issue of withdrawn counsel is like other questions of
trial management, over which “[d]istrict courts enjoy broad latitude” because such issues
“‘are quintessentially their province.’” United States v. Beckton, 740 F.3d 303, 306 (4th
Cir. 2014) (quoting United States v. Smith, 452 F.3d 323, 332 (4th Cir. 2006)) (alteration
omitted).
The district court reasonably exercised its discretion here. The district court
continued throughout the process to emphasize its willingness to appoint replacement
counsel. Yet after a brief search for replacement counsel, Chick apparently ceased his
efforts to find an additional attorney for Guevara, and he never requested that the district
court itself identify and appoint new counsel. In other words, neither Guevara nor Chick
actually invoked § 3005 as neither “request[ed]” that the district court assign a substitute
attorney to replace Baugh. 18 U.S.C. § 3005. This is all despite the fact that two attorneys
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for other defendants were forced to withdraw from the case around the same time as
Baugh, and replacement attorneys were found and appointed for each of those
defendants.
Granting a severance and continuance to Guevara would have placed government
witnesses in potential danger and strained the government’s resources. The district court
balanced these potential harms against Guevara’s interests. Finding that Guevara had
already received the substantial benefit of a second attorney through the pre-trial period,
the district court determined that Guevara would have a fair trial even if Baugh were
removed from the case and Chick were his only counsel at trial.
Ultimately, Guevara’s complaint boils down to frustration that the withdrawal of
one of his lawyers was not handled precisely as he would have wished. But defendants
are not invariably entitled to go to trial with their preferred counsel, and 18 U.S.C. § 3005
does nothing to strip the district court of its ordinary powers of trial management. The
district court did not abuse its discretion by removing Baugh from the case and
proceeding to trial as scheduled.
VIII.
Following trial, defendant Chavez moved for a new trial on the grounds that there
was insufficient evidence to support his conviction. Such motions are disfavored, and are
to be granted “only when the evidence weighs heavily against the verdict.” United States
v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) (quoting United States v. Wilson, 118 F.3d
228, 237 (4th Cir. 1997)). The district court denied Chavez’s motion, explaining that not
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only was there sufficient evidence to convict him, but that “this was not a close case.”
J.A. 6972. We review this decision for abuse of discretion. Wilson, 118 F.3d at 237.
No such abuse occurred here. At trial, three eyewitnesses identified Chavez as
Urrutia’s murderer. The trial evidence also included a recorded phone call in which
Chavez effectively admitted that he killed Urrutia. Chavez notes some inconsistencies in
the testimony of government witnesses and also points to the testimony of one witness
who, while not a witness to the murder itself, saw an altercation between Urrutia and a
shirtless man shortly before the murder. We may assume, then, that Chavez’s defense
was not entirely lacking in evidentiary support.
Ultimately, though, determining witness credibility and weighing conflicting
evidence are the responsibility of the factfinder. We do not lightly disturb jury verdicts,
and even “disagreement with the jury’s verdict [would] not mandate a new trial.” United
States v. Arrington, 757 F.2d 1484, 1486 (4th Cir. 1985). We decline to overturn a jury
verdict in a case where, as the district court noted, the government provided ample
evidence of the defendant’s guilt.
IX.
Chavez also contends that his cell phone records were unconstitutionally obtained
without a warrant and that the resulting evidence should have been suppressed at trial as a
result. Specifically, the government obtained from T-Mobile cell site tracking data
associated with Chavez’s cell phone through a court order issued under the Stored
Communications Act, 18 U.S.C. §§ 2703(c)(1)(B), 2703(d), and related provisions of
Virginia state law, Va. Code §§ 19.2-70.3(A)(3), -70.3(B). Chavez contends that these
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procedures were unconstitutional, and that the government should have been required to
obtain a warrant for the records.
In United States v. Graham, we held that “the government does not violate the
Fourth Amendment when it obtains historical [cell site location information] from a
service provider without a warrant.” 824 F.3d 421, 425 (4th Cir. 2016) (en banc). In
Carpenter v. United States, however, the Supreme Court made clear that the
government’s acquisition of Carpenter’s cell site records “was a search within the
meaning of the Fourth Amendment.” No. 16-402, slip op. at 17, 585 U.S. — (June 22,
2018). While Carpenter is obviously controlling going forward, it can have no effect on
Chavez’s case. The exclusionary rule’s “sole purpose . . . is to deter future Fourth
Amendment violations.” Davis v. United States, 564 U.S. 229, 236–37 (2011). Thus,
when investigators “act with an objectively ‘reasonable good-faith belief’ that their
conduct is lawful,” the exclusionary rule will not apply. Id. at 238 (quoting United States
v. Leon, 468 U.S. 897, 909 (1984)). Objectively reasonable good faith includes “searches
conducted in reasonable reliance on subsequently invalidated statutes.” Id. at 239. Chavez
does not, and cannot, deny that investigators in this case reasonably relied on court orders
and the Stored Communications Act in obtaining the cell site records. Without question,
then, the good-faith exception to the exclusionary rule applies to investigators’ actions
here.
Moreover, it is plain beyond a reasonable doubt that any error related to this
evidence was harmless. As discussed above, three eyewitnesses testified at trial that
Chavez murdered Urrutia. Chavez also discussed the murder in a recorded conversation
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introduced at trial. The district court concluded that “this was not a close case.” J.A.
6972. Any marginal benefit Chavez might have derived from suppression of the cell
phone location data would not have altered the outcome of the trial.
X.
Finally, two defendants, Guevara and Cerna, challenge their sentences as
violations of the Eighth Amendment, based on their youth at the time of the crimes of
conviction and their purportedly minor roles in those crimes.
Both defendants were convicted of murder in aid of racketeering in violation of 18
U.S.C. § 1959(a)(1), which provides for punishment “by death or life imprisonment,” and
does not permit a district court to impose a shorter sentence regardless of mitigating
circumstances. At the time of the crimes of conviction, Cerna was 18 years old and
Guevara was 19.
The Supreme Court has held that mandatory life sentences are unconstitutional as
to defendants who committed their crimes as juveniles. See Miller v. Alabama, 567 U.S.
460, 470 (2012). But this is no help to the defendants, both of whom were adults at the
time they committed murder in aid of racketeering. Contemporary “society draws the line
for many purposes between childhood and adulthood” at 18 years old. Roper v. Simmons,
543 U.S. 551, 574 (2005). Guevara and Cerna both emphasize that they were barely over
this threshold of adulthood at the time they committed their crimes. It is true, of course,
that “[t]he qualities that distinguish juveniles from adults do not disappear when an
individual turns 18.” Id. At the same time, “some under 18 have already attained a level
of maturity some adults will never reach.” Id. Individual differences in maturity will
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necessarily mean that age-based rules will have an element of arbitrariness, particularly
when they have such stark differences in effect between those just one week below the
cut-off and those just one week above. Nonetheless, rules based on age are historically
common and appear in many areas of the law. Consider the legal age requirements for
driving, drinking alcohol, registering for the draft, voting, holding certain public offices,
and marrying, among other things. The lines drawn by age in all of these examples will
be imperfect fits for some individuals. But we cannot say that this makes them
unconstitutional.
The Supreme Court has also held that a capital sentence cannot be imposed
without individualized consideration by the jury of any mitigating factors. See Kansas v.
Marsh, 548 U.S. 163, 173–74 (2006). But these defendants were not given death
sentences. They were sentenced to life imprisonment, which the Supreme Court has held
does not require such individualized consideration. See Harmelin v. Michigan, 501 U.S.
957, 994–96 (1991). In light of this precedent, the district court correctly applied the
mandatory life sentence as written by Congress.
XI.
Based on the foregoing, the judgments of the district court are
AFFIRMED.
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