United States v. Santos Fernandez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTOS ANIBAL CABALLERO FERNANDEZ, a/k/a Garra,
Defendant – Appellant.
No. 11-4300
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY ELIAS GONZALEZ, a/k/a Solo,
Defendant – Appellant.
No. 11-4319
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELVIN PASTOR FERNANDEZ-GRADIS, a/k/a Tigre, a/k/a Juan
Alberto Irias, a/k/a Freddy, a/k/a Flaco,
Defendant – Appellant.
No. 11-4320
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JULIO CESAR ROSALES LOPEZ, a/k/a Stiler,
Defendant – Appellant.
No. 11-4418
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS ROBERTO FIGUEROA-PINEDA, a/k/a Drogo,
Defendant – Appellant.
No. 11-4458
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
2
JUAN GILBERTO VILLALOBOS, a/k/a Smokey, a/k/a Smoke,
Defendant – Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00134-RJC-23; 3:08-cr-
00134-RJC-DSC-18; 3:08-cr-00134-RJC-DSC-6; 3:08-cr-00134-RJC-
DSC-4; 3:08-cr-00134-RJC-DSC-14; 3:08-cr-00134-RJC-DSC-5)
Argued: September 18, 2012 Decided: May 14, 2013
Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit
Judges.
No. 11-4284 affirmed in part, reversed in part, and remanded;
No. 11-4300, No. 11-4319, No. 11-4320, No. 11-4418, and No. 11-
4458 affirmed by unpublished per curiam opinion. Chief Judge
Traxler wrote a separate opinion concurring in part and
dissenting in part.
ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD,
LLP, Greenville, South Carolina; David Quentin Burgess, LAW
OFFICE OF DAVID Q. BURGESS, Charlotte, North Carolina; John
Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina; Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF
CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellants. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Harold Bender, LAW
OFFICE OF HAROLD BENDER, Southport, North Carolina, for
Appellant Gonzales; Richard E. Beam, Jr., HUBBARD & BEAM,
Gastonia, North Carolina, for Appellant Lopez. Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
I.
La Mara Salvatrucha (“MS-13”) is a worldwide street
gang with Los Angeles origins. It was formed in the 1980’s by
refugees fleeing to the United States from war-torn Central
American countries. While MS-13 was originally formed for
protection of its members, its current objective is to amass
wealth, power, and territory.
There are six Appellants in this matter, all members
of MS-13: (1) Santos Anibal Caballero Fernandez (“Caballero
Fernandez”); (2) Johnny Elias Gonzales (“Gonzales”); (3) Elvin
Pastor Fernandez-Gradis (“Fernandez-Gradis”); (4) Julio Cesar
Rosales Lopez (“Lopez”); (5) Carlos Roberto Figueroa-Pineda
(“Figueroa-Pineda”); and (6) Juan Gilberto Villalobos
(“Villalobos”). In June, 2008, Appellants, along with 20 other
MS-13 members, were tried and convicted of various crimes
related to their participation in the gang in the United States.
The convictions relevant to this appeal are: (1) each
Appellant’s conviction for conspiracy to commit racketeering;
(2) Appellant Caballero Fernandez’s conviction as an accessory
after-the-fact to the murder of Ulysses Mayo; and (3) Appellant
Figueroa-Pineda’s two convictions of possession of marijuana
with intent to distribute and conviction of possession of a
4
firearm in furtherance of a drug trafficking crime. 1 Appellant
Villalobos also appeals the district court’s decision to apply
an obstruction of justice enhancement to his sentence.
Appellants collectively challenge their convictions on
several fronts. First, Appellants argue the evidence was
insufficient to establish that they each entered into an
agreement to commit two predicate acts of racketeering as
required for a conviction of conspiracy to commit racketeering.
Second, Appellants argue that the district court failed to adopt
adequate safeguards to minimize the prejudice of its use of an
anonymous jury. Third, Appellants argue that the district court
erred in failing to give a “multiple conspiracy” instruction to
the jury. Finally, Appellants argue that, even if the first
three errors are individually harmless, the combined effect of
those errors triggers the cumulative error doctrine, compelling
reversal.
As noted, several Appellants also individually
challenge their respective convictions and sentences.
Specifically, Appellant Caballero Fernandez challenges his
conviction for accessory-after-the-fact to murder, arguing that
the evidence does not establish beyond a reasonable doubt that
1
For ease of organization, the facts related to each of
these convictions are detailed in the applicable sections below.
5
he knew the victim was dead or dying. Appellant Figueroa-Pineda
challenges his convictions for possession with intent to
distribute and for possession of a firearm in furtherance of a
drug trafficking offense, arguing that the evidence established
neither intent to distribute nor use of a weapon “in
furtherance” of drug trafficking offenses. Finally, Appellant
Villalobos argues the evidence was insufficient to establish
that he obstructed justice.
We affirm as to each issue on appeal, with the
exception of Appellant Caballero Fernandez’s conviction for
accessory-after-the-fact, which we reverse. We also remand
Appellant Caballero Fernandez’s case for resentencing.
II.
A.
Conspiracy to Commit Racketeering
1.
Each Appellant was convicted of engaging in a
conspiracy to commit racketeering beginning at least in or about
2003. Following these convictions, each Appellant filed a
motion for a judgment of acquittal. These motions were denied
and this appeal followed.
2.
We review the denial of a motion for judgment of
acquittal de novo. United States v. Penniegraft, 641 F.3d 566,
6
571 (4th Cir. 2011). Where a defendant challenges the
sufficiency of the evidence to support a jury’s guilty verdict,
we view all evidence and draw all inferences in favor of the
government. Id. We will sustain the verdict as long as any
rational fact finder would find the essential elements beyond a
reasonable doubt. United States v. Higgs, 353 F.3d 281, 313
(4th Cir. 2003).
3.
The conspiracy provision to the Racketeering
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(d), makes it a crime to conspire to violate any one of
RICO’s three substantive provisions. 2 Here, Appellants were
convicted of conspiracy to violate § 1962(c), which contains
three elements: (1) the conduct, (2) of an enterprise, (3)
through a pattern of racketeering. 3 RICO defines an “enterprise”
to include “any individual, partnership, corporation,
association, or other legal entity, and any union or group of
2
18 U.S.C. § 1962(d) provides as follows: “It shall be
unlawful for any person to conspire to violate any of the
provisions of subsection (a), (b), or (c) of this section.”
3
18 U.S.C. § 1962(c) provides as follows: “It shall be
unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise's
affairs through a pattern of racketeering activity or collection
of unlawful debt.”
7
individuals associated in fact although not a legal entity.” 18
U.S.C. § 1961(4). A “pattern of racketeering” requires a
defendant to commit at least two predicate acts of “racketeering
activity.” 18 U.S.C. § 1961(5). “Racketeering activity”
includes, inter alia, any act or threat involving murder,
robbery, extortion, or dealing in a controlled substance
chargeable under state law and punishable by imprisonment for
more than one year. 18 U.S.C. § 1961(1).
Generally, to be convicted of “conspiracy” to commit a
federal crime, a defendant must commit an overt act in
furtherance of the object of the conspiracy. 18 U.S.C. § 371.
There is no such requirement under RICO. United States v.
Salinas, 522 U.S. 52, 63 (1997) (“The RICO conspiracy provision,
then, is even more comprehensive than the general conspiracy
offense in § 371.”). A defendant is guilty of conspiracy under
RICO if he “‘knowingly and willfully agreed that he or some
other member of the conspiracy would commit at least two
racketeering acts.’” United States v. Mouzone, 687 F.3d 207,
218 (4th Cir. 2012) (quoting United States v. Wilson, 605 F.3d
985, 1018-19 (D.C. Cir. 2010)).
Naturally, direct evidence of such an agreement is
often scarce. United States v. Burgos, 94 F.3d 849, 857 (4th
Cir. 1996) (“By its very nature, a conspiracy is clandestine and
covert, thereby frequently resulting in little direct evidence
8
of such an agreement.”). As such, conspiracy is typically
proven by circumstantial evidence. Id. at 857-58.
Appellants argue that the evidence was insufficient to
establish an agreement to commit two predicate acts. This
argument lacks merit. There is ample evidence that each
Appellant was a member of MS-13 and agreed to commit at least
two predicate acts.
Specifically, Appellant Caballero Fernandez attended a
February 29, 2008 MS-13 meeting. Moreover, the evidence
indicates that Appellant Caballero Fernandez was a leader of MS-
13, as the February 29, 2008 meeting he attended was only open
to “runners” or “the older people . . . that have more of a say
so in the clique.” J.A. 1339. 4 According to an informant who
testified at trial, those present at the meeting discussed
taxing other drug dealers, purchasing guns, and organizing the
gang. And, Appellant Caballero Fernandez was photographed
displaying gang signs at the February 29, 2008 meeting.
Additionally, Appellant Caballero Fernandez, an
illegal alien, illegally possessed a firearm on October 29,
2006. As a result, he was convicted of being an illegal alien
4
Citations to the joint appendix (“J.A.”) refer to the
joint appendix filed by the parties in this case.
9
in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)
in the proceedings below.
Appellant Gonzales participated in an attempt to rob a
Virginia jewelry store with other MS-13 members. Additionally,
he facilitated the purchase of an SKS rifle for a fellow gang
member. He was also present at a Charlotte Mall when gang
members had an armed confrontation with a rival gang.
Appellant Fernandez-Gradis murdered Ulysses Mayo.
Appellant Fernandez-Gradis was also present at the February 29,
2008 meeting discussed above. Moreover, he was a leader of MS-
13, as evinced by the fact that he approved a name-change of one
of the MS-13 cliques. 5
Appellant Julio Lopez was also a leader of MS-13 in
Charlotte. He came to Charlotte at the direction of Manuel
Ayala, an El Salvador-based MS-13 leader. He played a large
role in several MS-13 meetings and carried a firearm to at least
one of them. He was also present at a Mexican restaurant in
Greensboro, North Carolina where Alejandro Umana, another MS-13
member, shot and killed two innocent civilians for verbally
5
A clique is a local subpart of MS-13, usually affiliated
with a particular geographic area or landmark. As the
government’s expert testified at trial, each clique is
integrated into the global MS-13 operation.
10
disrespecting MS-13. 6 Appellant Lopez left the restaurant with
Umana and assisted in his escape. Finally, Appellant Lopez was
a “middle man” in Appellant Villalobos’s drug operation.
Appellant Figueroa-Pineda attended a meeting where MS-
13 members discussed killing the witnesses to the Greensboro
restaurant murder. He was also present at the aforementioned
meetings in February and March of 2008 where he was photographed
flashing MS-13 gang signs. Appellant Figueroa-Pineda also sold
marijuana from his apartment.
Appellant Villalobos was a senior member of MS-13. He
controlled nightclubs where he sold drugs and taxed others who
did the same. He also supplied guns to other MS-13 members for
use when they traveled to meetings. In January 2008, he hosted
an MS-13 meeting in his garage. He was also present at the
February 2008 meeting discussed above.
Appellants also argue that the government’s reliance
on evidence of attendance at MS-13 meetings to support the RICO
convictions is improper as it is evidence of “mere association”
and, therefore, is not sufficient to establish an agreement to
commit a predicate act. Mouzone, 687 F.3d at 218 (“We caution
that the RICO conspiracy statute does not ‘criminalize mere
6
Umana was tried and convicted along with Appellants.
However, his case is not currently before us on appeal.
11
association with an enterprise.’”) (quoting Brouwer v.
Raffensperger, Hughes & Co., 199 F.3d 961, 965 (7th Cir. 2000)).
This argument fails inasmuch as the evidence established far
more than mere association. As noted above, the evidence was
that at these meetings, members of MS-13 would discuss their
plans to commit various acts of racketeering including murder,
distribution of illegal drugs, and extortion. Moreover, the
evidence established that many Appellants were leaders, as
opposed to mere associates, of MS-13.
B.
Anonymous Jury
1.
On a motion from the government, the district court
empanelled an anonymous jury. During voir dire, the district
court instructed the members of the jury pool that all of the
security measures which had been taken (mainly the presence of
additional security guards, including snipers, at the
courthouse) were standard in every federal case. The district
court did not otherwise specifically comment on juror anonymity.
The district court did, however, ask some demographic questions
of the jury pool (i.e. what type of work they did, approximately
where they lived, etc.). Additionally, at the conclusion of
voir dire, the district court asked additional questions
suggested by defense counsel.
12
2.
Under 28 U.S.C. § 1863(b)(7), a district court is
empowered to empanel an anonymous jury whenever “the interests
of justice so require.” 7 Recently, in United States v. Dinkins,
691 F.3d 358 (4th Cir. 2012), we held that an anonymous jury is
appropriate where, “there is strong reason to conclude that the
jury needs protection from interference or harm, or that the
integrity of the jury’s function will be compromised if the jury
does not remain anonymous.” Id. at 372. If an anonymous jury
is warranted, a district court must adopt “reasonable
safeguards” to minimize any resulting prejudice. Id.
3.
Appellants properly concede that an anonymous jury was
appropriate here. Thus, the only issue is whether the district
court adopted adequate safeguards. Appellants contend the
district court failed to adopt adequate safeguards by not
7
28 U.S.C. § 1863(b)(7) reads as follows:
Among other things, [the plan for random jury
selection] shall fix the time when the names drawn
from the qualified jury wheel shall be disclosed to
parties and to the public. If the plan permits these
names to be made public, it may nevertheless permit
the chief judge of the district court, or such other
district court judge as the plan may provide, to keep
these names confidential in any case where the
interests of justice so require.
13
providing an explicit, non-prejudicial explanation for juror
anonymity.
In making this argument, Appellants cite cases from
our sister circuits in which various explanations for juror
anonymity were found to be sufficient. 8 However, none of these
cases indicate that an explicit explanation for juror anonymity
is a necessary safeguard. Accordingly, they are of limited
value here.
Moreover, Dinkins indicates that the absence of any
specific explanation for juror anonymity minimizes any potential
prejudice. The district court in Dinkins did not inform the
jury that they were anonymous. Likewise, nothing in the juror
questionnaire in Dinkins implied anonymity. In that
circumstance, we held, “the district court’s communications to
the venire members, and ultimately the jurors, properly followed
‘the generally accepted practice for minimizing prejudice which
is to downplay (not accentuate) the significance of the juror
8
See United States v. Lawson, 535 F.3d 434, 439-42 (6th
Cir. 2008) (district judge told the jury anonymity was required
by the unusually large number of prospective jurors and
defendants and that anonymity would help ensure a fair trial);
United States v. Crockett, 979 F.2d 1204, 1216-17 (7th Cir.
1992) (district judge told jury anonymity was designed to avoid
any contact between the jurors and the parties to ensure that
both sides received a fair and impartial trial); United States
v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir. 1985) (district judge
told jurors their anonymity was designed to ward off members of
the press and to protect their privacy).
14
anonymity procedure.’” Dinkins, 691 F.3d at 378-79 (quoting
United States v. Ochoa-Vasquez, 428 F.3d 1015, 1037 (11th Cir.
2005)).
Here, as in Dinkins, the district court properly
downplayed juror anonymity. As noted, the court simply advised
the jury pool that the security measures which had been taken
were “standard in every case” without specifically mentioning
anonymity. J.A. 404. Moreover, aside from juror anonymity,
voir dire was conducted in the usual way. Based on this, the
government correctly argues that the jury likely did not even
realize that anything unusual had occurred. Accordingly, the
safeguards adopted by the district court were sufficient.
C.
Multiple Conspiracy Instruction
1.
Appellants allege the district court erred by failing
to instruct the jury that the government’s evidence related to
multiple conspiracies rather than a single conspiracy. Such an
instruction is warranted when “the proof of multiple
conspiracies was likely to have confused the jury into imputing
guilt to [the defendant] as a member of one conspiracy because
of the illegal activity of members of the other conspiracy.”
United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001).
15
Such an instruction was not requested below. However,
on appeal, Appellants allege that the failure to give such an
instruction was in error because, in the absence of that
instruction, the evidence established that the Appellants were
members of several small conspiracies as opposed to one large
one. Accordingly, Appellants contend this likely confused the
jury and caused them to wrongfully impute guilt from members of
one conspiracy to members of another.
2.
Because Appellants failed to request such an
instruction below, we review for plain error. United States v.
Jeffers, 570 F.3d 557, 567 (4th Cir. 2009). Under “plain error”
review, a court may not correct an alleged error unless the
following three conditions are met: (1) there was an error, (2)
the error is plain, and (3) the error affected a defendant’s
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993); see also Fed. R. Crim. P. 52(b). If these three
conditions are met, an appellate court may correct the error.
Olano, 507 U.S. at 732. While this is a discretionary matter,
the Supreme Court has held that an appellate court should only
exercise this discretion where the error “seriously affect[s]
the fairness, integrity, or public reputation of the judicial
proceedings.” Id. (quoting United States v. Young, 470 U.S. 1,
15 (1985)). The appellant bears the burden of persuasion to
16
show that this occurred. United States v. Nicolaou, 180 F.3d
565, 570 (4th Cir. 1999).
3.
In making this argument, Appellants point to the
following facts: (1) there were a number of MS-13 cliques in
Charlotte and other cities throughout the region; (2) MS-13
members from the various cliques did not know all of the other
members because they operated on opposite sides of town; and (3)
efforts to integrate the various area cliques had failed.
Appellants ignore significant evidence to the
contrary. Specifically, MS-13 has a global mission: to amass
power and control territory. In furtherance of this mission,
MS-13 cliques share weapons and information and members are able
to move freely among different cliques. Moreover, as noted
above, MS-13’s organizational structure resembles a franchisor-
franchisee system. This mode of organization strongly indicates
that Appellants were all members of the same conspiracy.
Accordingly, the district court did not err, much less plainly
err, by not giving a multiple conspiracy instruction to the
jury.
D.
Cumulative Error
Appellants argue that, even if the first three alleged
errors (i.e. sufficiency of the evidence for the conspiracy
17
convictions, the anonymous jury, and the absence of a multiple
conspiracy instruction) are individually harmless, the
cumulative effects of these errors compel a new trial based upon
the “cumulative error doctrine.” We will order a new trial
based on the cumulative error doctrine where two or more
individually harmless errors have the combined effect of
impacting a defendant’s substantial rights. United States v.
Martinez, 277 F.3d 517, 532 (4th Cir. 2002). However, the
cumulative error doctrine is inapplicable here, as we find no
error in the district court’s resolution of any of these three
issues. Accordingly, Appellants’ cumulative error argument is
without merit.
E.
Accessory After the Fact
1.
Appellant Caballero Fernandez was convicted as an
accessory-after-the-fact to the murder of Ulysses Mayo. On
April 12, 2008, Appellants Caballero Fernandez and Fernandez-
Gradis were at a party at a neighborhood home. Later that
night, Ruben Ibarra arrived to the party. Ibarra was
accompanied by his cousin, Ulysses Mayo. Both men were wearing
red clothing, the color of a rival gang. This angered
Appellants Fernandez-Gradis and Caballero Fernandez. As Ibarra
and Mayo were leaving, Appellants Fernandez-Gradis and Caballero
18
Fernandez followed them to their car. An eyewitness testified
that it was “kind of dark” at this time. J.A. 2143. In fact,
the record indicates that the murder occurred at approximately
11:00 pm.
When Appellants Caballero Fernandez and Fernandez-
Gradis arrived at the car, Mayo was sitting in the passenger
seat with the window up. Ibarra was in the driver’s seat with
the window down. The car’s engine was running. With his
firearm drawn, Appellant Fernandez-Gradis knocked on the
passenger-side window. Mayo tried to roll the window down but
the window was stuck. Appellant Fernandez-Gradis then shot
through the window. Appellant Caballero Fernandez was standing
a few feet from Appellant Fernandez-Gradis at this time. A
witness, standing on the driver’s side, testified that Mayo
gasped and moaned when the shots were fired.
As soon as the shots were fired, Ibarra drove off.
Appellant Caballero Fernandez then got in his car, instructing
Appellant Fernandez-Gradis to get in with him. The two then
attempted to follow Ibarra and Mayo. Ultimately, Ibarra escaped
and Mayo was taken to a local hospital. Mayo was pronounced
dead later that night. Appellant Caballero Fernandez remained
with Appellant Fernandez-Gradis for the rest of the night. A
cooperating witness testified Appellant Caballero Fernandez was
distracted and did not speak to anyone. A month later, police
19
officers stopped a car with six people inside, including
Appellant Caballero Fernandez. Appellant Caballero Fernandez
was sitting in the middle of the back seat. While searching the
vehicle, the officers found several handguns, including the gun
that Appellant Fernandez-Gradis used to kill Ulysses Mayo. On
these facts, Appellant Caballero Fernandez was convicted as an
accessory-after-the-fact for the murder of Ulysses Mayo. 9
Following his conviction, Appellant Caballero Fernandez filed a
motion for judgment of acquittal notwithstanding the verdict.
The district court denied this motion and Appellant Caballero
Fernandez appealed.
2.
The denial of a motion for judgment of acquittal is
reviewed de novo. Penniegraft, 641 F.3d at 571; Hickman, 626
F.3d at 762. When the challenge is based on sufficiency of the
evidence, we view the evidence and all reasonable inferences in
favor of the government. Penniegraft, 641 F.3d at 571. We will
sustain the verdict if any rational fact finder would find the
9
The controlling statute is 18 U.S.C. § 3. This statute
reads as follows: “Whoever, knowing that an offense against the
United States has been committed, receives, relieves, comforts
or assists the offender in order to hinder or prevent his
apprehension, trial or punishment, is an accessory after the
fact.”
20
essential elements beyond a reasonable doubt. Higgs, 353 F.3d
at 313.
3.
On appeal, Appellant Caballero Fernandez argues the
evidence was insufficient to sustain his conviction. His
argument rests on United States v. McCoy, 721 F.2d 473 (4th Cir.
1983). There, we held that, in order to be convicted as an
accessory-after-the-fact to murder, the accessory must have
“knowledge that [the decedent] was dead or dying at the time of
his decision [to provide assistance].” McCoy, 721 F.2d at 475.
Appellant Caballero Fernandez argues there is no evidence that
he knew that Mayo was dead or dying at any point while he was
allegedly assisting Appellant Fernandez-Gradis. Specifically,
Appellant Caballero Fernandez argues that, because he drove away
quickly after the shots were fired, he never had the chance to
observe whether Mayo was dead or dying, or if he had even been
shot. Appellant Caballero Fernandez further argues that there
is no evidence that he learned of Mayo’s death at any point
prior to his arrest.
The government argues the facts were sufficient to
permit a reasonable jury to infer the requisite knowledge.
However, we are of the view that, even construing the evidence
in a light most favorable to the government, no rational fact-
finder could have found that Appellant Caballero Fernandez knew
21
that Ibarra was dead or dying during the relevant time period.
This is true for several reasons.
First, Appellant Caballero Fernandez is correct that,
because he sped away quickly after the shots were fired, he did
not have time to observe whether Mayo was dead or dying. At
most, the fact that Appellant Caballero Fernandez was standing
next to the car when shots were fired and may have heard the
victim moan permits an inference that he knew that Mayo had been
shot. It does not follow that Appellant Caballero Fernandez
knew that Mayo was dead or dying. As Appellant Caballero
Fernandez properly emphasizes, not all gunshots are fatal.
Moreover, the fact that (1) the shooting occurred late at night;
(2) the passenger side window was up; and (3) Appellant
Caballero Fernandez was standing a few feet away at the time of
the shooting further undercuts the government’s argument that
Appellant Caballero Fernandez knew that Mayo was dead or dying.
Second, the government’s argument that Appellant
Caballero Fernandez was “pensive” in the wake of the shooting is
insufficient to establish knowledge. Appellee’s Br. 14. Such
behavior could logically have been reflective of the fact that
shots were fired. Whatever the reason, the mere fact that
Appellant Caballero Fernandez was pensive does not establish,
beyond a reasonable doubt, that he knew that Mayo was dead or
dying.
22
Finally, the fact that Appellant Caballero Fernandez
was a passenger in a car where police found the murder weapon a
month after Mayo was killed is not sufficient to support his
conviction. There is no indication that Appellant Caballero
Fernandez owned the car in which the gun was found nor is there
any evidence that the weapon was actually in his possession.
Indeed, there were five other people in the car. Even after
drawing all reasonable inferences in favor of the government, we
find the evidence insufficient to sustain Caballero Fernandez’s
conviction for accessory after the fact to murder. 10
F.
Possession with Intent to Distribute
1.
Appellant Figueroa-Pineda was convicted of two counts
of possession of marijuana with intent to distribute. 11 The
facts supporting the first count are as follows: while in
pursuit of a fleeing armed robber, police officers went to
Appellant Figueroa-Pineda’s apartment on January 22, 2008.
10
Appellant Caballero Fernandez also challenges the
reasonableness of his sentence. Because we are reversing his
conviction for accessory-after-the-fact and remanding for
resentencing, we need not consider his sentencing arguments.
11
Possession with intent to distribute is criminalized by
21 U.S.C. § 841(a)(1), which provides: “Except as authorized by
this subchapter, it shall be unlawful for any person knowingly
or intentionally to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance.”
23
After discovering that the armed robber had departed, the
officers obtained Appellant Figueroa-Pineda’s consent to search
the apartment.
During that search, police officers uncovered 262
grams of marijuana. They also found baggies and a digital
scale. At trial, Officer Chuck Hastings, one of the lead
federal agents on this case, testified that 262 grams was “a
dealer amount” of marijuana. J.A. 1886. Officer Hastings also
testified that he believed Appellant Figueroa-Pineda intended to
sell this marijuana. Based on this evidence, the jury found
Appellant Figueroa-Pineda guilty of possession with intent to
distribute.
Appellant Figueroa-Pineda’s second conviction arose
after he was arrested in his home on June 24, 2008. In the
incident search, officers found 45 grams of marijuana and
digital scales. The scales were open with marijuana residue on
top. Based on this evidence, the jury convicted Appellant
Figueroa-Pineda of a second count of possession with intent to
distribute.
Following these convictions, Appellant Figueroa-Pineda
filed a motion for judgment of acquittal as to both convictions.
These motions were denied and Appellant Figueroa-Pineda
appealed.
24
2.
The denial of a motion for judgment of acquittal is
reviewed de novo. Hickman, 626 F.3d at 762. When the challenge
is based on sufficiency of the evidence, we view the evidence
and all reasonable inferences in favor of the government.
Penniegraft, 641 F.3d at 571. We will sustain the verdict if
any rational fact finder would find the essential elements
beyond a reasonable doubt. Higgs, 353 F.3d at 313.
3.
Appellant Figueroa-Pineda argues that the evidence is
insufficient to show that he intended to distribute the drugs on
either count. In so arguing, he relies exclusively on United
States v. Fountain, 993 F.2d 1136 (4th Cir. 1993). In Fountain,
the defendant was caught in an area known for drug trafficking
with zip-tied baggies and 2.4 grams of marijuana. The district
court found this to be sufficient evidence of intent to
distribute. Id. at 1139. We reversed, holding that this
evidence merely created a “suspicion” of intent to distribute.
Id.Fountain, however, is distinguishable. As to the
first count, Fountain does not apply because, in that case,
Fountain possessed only 2.4 grams of marijuana. The
government’s evidence on the first count of conviction showed
that Appellant Figueroa-Pineda possessed 262 grams of marijuana.
25
According to Officer Hastings, 262 grams is a “dealer amount” of
marijuana. While there is no bright-line rule as to what
constitutes a “dealer amount,” the significant disparity between
the amount here and the amount in Fountain is impossible to
ignore.
Second, in Fountain, the only evidence proffered to
establish intent to distribute was: (a) the fact that the drugs
were in baggies and (b) the fact that Fountain was in a drug-
trafficking area. Fountain, 993 F.2d at 1137-39. Here,
Appellant Figueroa-Pineda was also found with digital scales.
We have held that possession of scales is probative of intent to
distribute. United States v. Harris, 31 F.3d 153, 157 (4th Cir.
1994).
As to the second count, the evidence presents a
slightly closer call, as it is perhaps plausible that a heavy
marijuana user would purchase 45 grams (less than 3 ounces) for
personal consumption. However, our task is not to determine
whether the jury could have reasonably reached the opposite
conclusion. Rather, the relevant question is whether there is
sufficient evidence to support the jury’s conclusion. There is.
Specifically, during the June 24, 2008 search of
Appellant Figueroa-Pineda’s apartment, police officers found
digital scales with marijuana residue on top of them. As noted
above, this is probative of intent to distribute. Harris, 31
26
F.3d at 157. Moreover, at the time of the second search,
Appellant Figueroa-Pineda had been caught with 262 grams of
marijuana within the past six months. These facts provide
sufficient support for the jury’s finding.
G.
Firearm Possession
1.
Appellant Figueroa-Pineda was also convicted of
possession of a firearm in furtherance of a drug-trafficking
offense. This conviction arose from the initial January 2008
search of Appellant Figueroa-Pineda’s apartment mentioned above.
During the search, police officers asked Appellant Figueroa-
Pineda whether there were any weapons in the house. In
response, Appellant Figueroa-Pineda directed them to a .22
caliber revolver. The weapon was hidden under a rug a few feet
from the drugs. Based on this, Appellant Figueroa-Pineda was
convicted of possession of a firearm in furtherance of a drug
trafficking offense under 18 U.S.C. § 924(c). Appellant
Figueroa-Pineda challenged this conviction by filing a motion
for judgment of acquittal, which was denied.
2.
Again, the denial of a motion for judgment of
acquittal is reviewed de novo. Hickman, 626 F.3d at 762. When
the challenge is based on sufficiency of the evidence, we view
27
the evidence and all reasonable inferences in favor of the
government. Penniegraft, 641 F.3d at 571. We will sustain the
verdict if any rational fact finder would find the essential
facts beyond a reasonable doubt. Higgs, 353 F.3d at 313.
3.
On appeal, Appellant Figueroa-Pineda argues that he
did not possess the weapon in furtherance of his drug-
trafficking offenses. In United States v. Perry, 560 F.3d 246(4th Cir. 2009), we articulated several non-exclusive factors to
aid the determination of whether a firearm was possessed in
furtherance of drug trafficking activity: (1) the type of drug
activity that was being conducted; (2) the accessibility of the
weapon; (3) the type of weapon; (4) whether the weapon was
stolen; (5) whether the weapon was possessed illegally; (6)
whether the weapon was loaded; (7) the proximity of the drugs or
drug profits to the weapon; and (8) the time and circumstances
under which the weapon was found. See id. at 254.
As applied in this case, these factors support a
finding that Appellant Figueroa-Pineda possessed the gun in
furtherance of his drug trafficking offenses. Specifically, the
gun was located a few feet from a large quantity of marijuana
(Factor #7). Additionally, the gun was a .22 caliber revolver
and, therefore, was easily hidden in an accessible place.
(Factors #2 and #3). Finally, Detective Hastings testified
28
that, because drug dealers commonly get robbed, they often carry
weapons to protect themselves. Accordingly, a reasonable jury
could conclude that Appellant Figueroa-Pineda possessed the
firearm in furtherance of his drug trafficking activities. 12
H.
Obstruction of Justice
1.
When sentencing Appellant Villalobos, the district
court applied an obstruction of justice enhancement as defined
in § 3C1.1 of the United States Sentencing Guidelines
(“U.S.S.G.”). This section provides:
If (1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant's offense of conviction and any
relevant conduct; or (B) a closely related offense,
increase the offense level by 2 levels.
U.S.S.G. § 3C1.1 (2012). Additionally, Application Note 4(A) to
§ 3C1.1 provides that this enhancement should apply where a
defendant is “threatening, intimidating, or otherwise unlawfully
12
Appellant Figueroa-Pineda argues that the government has
failed to exclude the possibility that the weapon belonged to
the fleeing armed robber. This argument is of no moment. To be
sure, Appellant Figueroa-Pineda’s explanation is plausible.
However, it does not follow that a reasonable juror must
conclude that the gun did not belong to Appellant Figueroa-
Pineda. Viewing the evidence in the light most favorable to the
government, this argument is inconsequential.
29
influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so[.]” U.S.S.G. § 3C1.1 cmt. n.
4(A).
At the sentencing hearing, Officer Hastings testified
that Appellant Villalobos threatened witness Vela-Garcia during
the trial when Appellant Villalobos grabbed his own throat while
looking in the direction of Vela-Garcia. Officer Hastings based
his testimony on Vela-Garcia’s post-trial statements.
Specifically, Officer Hastings testified that during a post-
trial interview, Vela-Garcia indicated that he believed the
gesture made by Appellant Villalobos was designed to make the
point to Vela-Garcia that members of the MS-13 gang would kill
Vela-Garcia if possible.
Additionally, the district court noted that there had
been a general atmosphere of intimidation during the trial and
that Vela-Garcia had appeared visibly shaken while testifying.
As noted above, MS-13 has a history of visiting violence upon
former members who cooperate with government officials. The
district court observed that, consistent with this practice,
several of the defendants glared at witnesses during trial,
ultimately prompting the district court to admonish defendants
to cease such behavior. Based on all of this evidence, the
district court found that the obstruction of justice enhancement
was warranted.
30
2.
In order to apply the obstruction of justice
enhancement, a sentencing court must find, by a preponderance of
the evidence, that the defendant “‘willfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice . . . .’” United States v. Kiulin, 360 F.3d 456, 460
(4th Cir. 2004) (quoting United States v. Puckett, 61 F.3d 1092,
1095 (4th Cir. 1995)). We review factual findings made by a
district court in applying the Sentencing Guidelines, including
those facts that serve as a basis for an obstruction of justice
enhancement, for clear error. Id.
3.
Appellant Villalobos argues that the district court clearly
erred in concluding that he threatened Vela Garcia.
Specifically, Appellant Villalobos argues that the district
court improperly relied on the statements of Detective Hastings
because doing so deprived Appellant Villalobos of the
opportunity to confront his accuser, Vela-Garcia. Additionally,
Appellant Villalobos argues that the district court should not
have relied on its own observations of the general atmosphere at
31
trial as such atmosphere was not entirely attributable to
Appellant Villalobos. We disagree. 13
As the government points out, during sentencing a
district court may properly consider “any relevant information
before it, including uncorroborated hearsay, provided that the
information has sufficient indicia of reliability to support its
accuracy.” Powell, 650 F.3d at 392 (quoting United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). Here, the
district court relied on the statement of a cooperating witness
as relayed by a police officer. Additionally, the district
court relied on its own first-hand impressions of the atmosphere
at trial, including its impression of Vela-Garcia’s demeanor
while testifying. Taken together, these facts corroborate Vela-
Garcia’s testimony that he was threatened. Accordingly, the
district court did not clearly err in concluding that Appellant
Villalobos threatened Vela Garcia and, therefore, the district
court did not err in applying the enhancement here.
13
Appellant Villalobos also argues that reliance on Vela-
Garcia’s post-trial interview violates the Due Process Clause
and the Confrontation Clause because Vela-Garcia was not subject
to cross examination during that interview. However, these
claims fail because a criminal defendant does not enjoy a
constitutional right to cross examination at sentencing. See
U.S. v. Powell, 650 F.3d 388, 393 (4th Cir.), cert denied, 132
S.Ct. 350 (2011).
32
III.
For the forgoing reasons, the judgment of the district
court is AFFIRMED in part, REVERSED in part, and REMANDED.
Specifically, the conspiracy to commit racketeering conviction
is AFFIRMED as to each Appellant. Appellant Caballero
Fernandez’s conviction as an accessory-after-the-fact is
REVERSED and his case REMANDED to the district court for
resentencing. Appellant Figueroa-Pineda’s convictions for
possession of marijuana with intent to distribute (two counts)
and for possession of a firearm in furtherance of a drug
trafficking offense are AFFIRMED. Finally, the district court’s
application of an obstruction of justice enhancement as to
Appellant Villalobos is AFFIRMED.
No. 11-4284 AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED;
No. 11-4300, No. 11-4319, No. 11-4320,
No. 11-4418, and No. 11-4458 AFFIRMED
33
TRAXLER, Chief Judge, concurring in part and dissenting in part:
Viewing the evidence in the light most favorable to
the government, and drawing all inferences in its favor, as we
must, see United States v. Penniegraft, 641 F.3d 566, 571 (4th
Cir. 2011), I would affirm Caballero Fernandez’s conviction for
accessory-after-the-fact to murder.
Fernandez-Gradis, with Caballero Fernandez close at
his side, stood next to the passenger door of Ruben Ibarra’s
vehicle -- close enough for Fernandez-Gradis to knock on the
passenger-side window with gun in hand. He then shot twice at
point blank range at the passenger, shattering the glass from
the window and hitting the victim once in the chest. In my
view, this evidence would permit a jury to reasonably infer that
both Fernandez-Gradis and Caballero Fernandez were close enough
to see that the passenger had been shot in the chest. From a
gunshot wound to the chest stems the logical and reasonable
conclusion that the victim was dying.
Accordingly, I respectfully dissent from the reversal
of Caballero Fernandez’s conviction for accessory-after-the-fact
to the murder of Ulysses Mayo. I concur in the remainder of the
majority opinion.
34