United States v. Carlos B. Cruz

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS B. GUZMAN CRUZ, a/k/a Gato,
Defendant - Appellant.
No. 09-5049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE M. AGUILAR ORANTES, a/k/a Santos, a/k/a Psychie,
Defendant - Appellant.
No. 09-5057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS L. GIL BERNARDEZ, a/k/a Negro, a/k/a Big Homie, a/k/a
Dopre, a/k/a Pando,
Defendant - Appellant.
No. 10-4773
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS B. GUZMAN CRUZ, a/k/a Gato,
Defendant - Appellant.
No. 10-4774
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE M. AGUILAR ORANTES, a/k/a Santos, a/k/a Psychie,
Defendant - Appellant.
No. 10-4775
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS L. GIL BERNARDEZ, a/k/a Negro, a/k/a Big Homie, a/k/a
Dopre, a/k/a Pando,
2
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:09-cr-00216-LO-1; 1:09-cr-00216-LO-2; 1:09-cr-00216-
LO-3)
Submitted: June 30, 2011 Decided: July 18, 2011
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Todd Hunter, Arlington, Virginia; Alan H. Yamamoto,
Alexandria, Virginia; Craig W. Sampson, BARNES & DIEHL, PC,
Chesterfield, Virginia, for Appellants. Neil H. MacBride,
United States Attorney, Patricia Haynes, Zachary Terwilliger,
Assistant United States Attorneys, Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney General, J. Campbell Barker, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
In these consolidated appeals, Dennis L. Gil Bernardez
and Jose M. Aguilar Orantes appeal their sentences for, and
Carlos B. Guzman Cruz challenges his conviction of offenses
arising from, three shootings on October 6, 2008, in Reston,
Virginia, and the subsequent effort to dispose of the gun used
in the shootings. We affirm the sentences imposed on Bernardez
and Aguilar Orantes, and we affirm Cruz’ conviction. We also
affirm the district court’s denial of the Appellants’ motion for
a new trial based on newly discovered evidence.
The government’s evidence at trial established that
Bernardez was the leader of the Normandie Locos Salvatrucha
(NLS), a clique of the Mara Salvatrucha (MS-13) gang in northern
Virginia. Aguilar Orantes was a member of the NLS living in
northern Virginia. Cruz was a member of the NLS living in
Richmond, Virginia. The shootings were preceded by an attack on
David Kuk, a former member of the rival 18th Street gang, by MS-
13 member Antonio Urrutia Barrerra and others traveling in a
Ford Explorer driven by Jose Aguilar Orantes. That was followed
by an attack on Aguilar Orantes and his girlfriend by Kuk and
his friend Dalton Beck, a former Crips gang member.
On Monday, October 6, 2008, Kuk was with Beck and
Malcom Wilson at Freetown Court. Aguilar Orantes, Barrera, and
Dennis Gil Bernardez walked up to Kuk, Beck, and Wilson. As
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they approached, Bernardez asked Aguilar Orantes in Spanish,
“Which ones?” Aguilar Orantes pointed to Kuk and Beck.
Bernardez drew a handgun and pointed it at Beck, who fled.
Bernardez fired at Beck but missed him, although the bullet went
through his sweatshirt.
Bernardez then shot Kuk multiple times while Kuk was
trying to run away. Wilson held up his hands and said, “I am
not in their gang, I have no problem with you.” Bernardez
started to walk away, but then said to Wilson, “I can’t leave
any evidence.” Bernardez shot Wilson at least twice. Kuk and
Wilson suffered serious injuries, but survived.
Jorge Palacios, a former MS-13 member turned FBI
informant in Richmond, Virginia, testified at trial that, before
and after the shootings, he made audio and video recordings of
his conversations with Cruz, who had previously sold him guns
from northern Virginia which had been used by MS-13 members in
crimes in northern Virginia. Palacios told Cruz he had
connections who could take guns used in shootings out of the
country.
On October 6, 2008, Cruz told Palacios he wanted to
buy a “clean” gun to take to northern Virginia to exchange for
two guns that had been used in crimes there. On October 7, Cruz
called Bernardez in northern Virginia. Palacios recorded Cruz’s
half of the conversation, which concerned the Monday, October 6
5
shootings, and the need to get rid of a gun that had been used
in more than thirteen shootings. On October 9, 2008, Palacios
Cruz asked Palacios if he had checked the news coverage of
Monday’s shootings.
On October 17, 2008, Cruz and another person went to
northern Virginia and brought Barrera, who was present when
Bernardez shot Kuk and Wilson, to Richmond to stay in a safe
house, a hotel room Cruz rented. That evening, Barrera was
involved in stabbing a rival gang member. 1 The next day, Cruz
called Bernardez and they agreed that, because of the stabbing,
the gun deal would be delayed.
On October 31, 2008, Cruz brought the guns to Richmond
from northern Virginia. The next day, November 1, 2008,
Palacios first went to the safe house without any surveillance
equipment to see the guns. Cruz held up one of the guns and
told him “the gun had been used in Monday’s shooting.” Palacios
then met with an FBI agent and returned to the safe house later
that day to buy the two guns. A firearm and ballistics forensic
expert testified at trial that the bullets and bullet jackets
found at the scene of the shootings were fired from one of the
guns that Palacios bought from Cruz, a .357 magnum revolver.
1
Barrera was separately prosecuted for the stabbing and for
another shooting in northern Virginia.
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None the defendants moved for acquittal under Fed. R.
Crim. P. 29. Bernardez and Aguilar Orantes were convicted of
conspiracy to commit murder in aid of racketeering, attempted
murder in aid of racketeering, assault with a dangerous weapon
in aid of racketeering, and violations of 18 U.S.C. § 924(c)
(2006). Aguilar Orantes was acquitted of the assault and
attempted murder of Wilson. Cruz was convicted of being an
accessory after the fact to attempted murder in aid of
racketeering and assault with a dangerous weapon in aid of
racketeering.
Bernardez was sentenced to a total of 960 months’
imprisonment, which included sentences of ten years on Count 9,
and twenty-five years on Counts 10 and 11, all consecutive to
the sentences on the remaining counts and to each other, as
required under 18 U.S.C. § 924(c) (2006). Aguilar Orantes
received a total sentence of 660 months, which included
consecutive sentences of ten years for Count 9 and twenty-five
years for Count 11. Cruz was sentenced to a total of 144
months’ imprisonment. Bernardez and Aguilar Orantes argued
unsuccessfully at their joint sentencing hearing that the
§ 924(c) sentences could run concurrently.
Six months after they were sentenced, Appellants moved
for a new trial under Fed. R. Crim. P. 33 based on newly
discovered evidence. They alleged that Sergio Gerardo Amador, a
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government witness who testified early in the trial about MS-
13’s racketeering activities, had given false testimony when he
said he fatally shot Melvin Reyes, a member of a rival gang.
The new trial motion was based on information that another
incarcerated MS-13 member, Jose Enrique Gordillo Portocarrero,
believed that Amador had falsely claimed to be involved in
Reyes’ murder. After a hearing, the district court determined
that Gordillo had confused the Reyes murder with another murder,
that his information was inadmissible hearsay that could not
necessitate a new trial, and that the government had presented
overwhelming evidence of racketeering activity even without
Amador’s testimony. The motion for a new trial was denied.
In this appeal, Bernardez and Aguilar Orantes contend
that § 924(c) does not require consecutive sentences for a
“single use,” as they characterize the shots fired at Kuk,
Wilson, and Beck. They rely on dicta in United States v. Camps,
32 F.3d 102, 106-07 (4th Cir. 1994) (accepting for purposes of
the case, but not adopting, the government’s position that
multiple concurrent § 924(c) sentences arising from simultaneous
offenses was not error). However, their position is at odds
with Deal v. United States, 508 U.S. 129, 135 (1993) (holding
that a second or subsequent § 924(c) conviction is any such
conviction after the first conviction, without regard to whether
the offenses occurred in a single or separate incidents), and
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United States v. Higgs, 353 F.3d 281, 333-34 (4th Cir. 2003)
(holding that multiple consecutive sentences were appropriate
where three victims were shot and killed in one incident). 2
Section 924(c)(1)(A) provides that, “[e]xcept to the
extent that a greater minimum sentence is otherwise provided by
this subsection or by any other provision of law,” any person
who violates § 924(c) is subject to a mandatory minimum sentence
of five years, § 924(c)(1)(A)(i), or seven years if the firearm
is brandished, § 924(c)(1)(A)(ii), or ten years if the firearm
is discharged, § 924(c)(1)(A)(iii). Aguilar Orantes and
Bernardez argue that the “except” clause means that, when a
defendant is subject to a mandatory minimum sentence under more
than one subsection of § 924(c), the lower sentence should be
concurrent with the higher sentence. They rely on decisions
that have interpreted § 924(c) in this manner but are no longer
good law, principally United States v. Williams, 558 F.3d 166(2d Cir. 2009), abrogated by Abbott v. United States, and
Gould v. United States, 131 S. Ct. 18 (2010) (hereafter Abbott).
The Supreme Court held in Abbott that a defendant is
subject to a mandatory minimum sentence for a § 924(c)
conviction even if he also receives a higher mandatory minimum
2
The government suggests that Aguilar Orantes and Bernardez
are challenging their multiple § 924(c) convictions, as well as
their sentences. However, they do not make that argument.
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sentence on another count of conviction. Abbott, 131 S. Ct. at
23. Although Abbott and Gould each had only one § 924(c)
conviction, the Supreme Court rejected the reasoning in Williams
and the other cases on which Aguilar Orantes and Bernardez rely.
The Supreme Court held that the “except” clause simply requires
the sentencing judge to impose the highest applicable sentence
under § 924(c)(1)(A), rather than stacking sentences under
several subsections for one § 924(c) conviction, and “furnishes
the same no-stacking instruction for cases in which § 924(c) and
a different statute both punish conduct offending § 924(c).”
Id. at 30. Thus, the district court did not err when it imposed
consecutive sentences for Bernardez’ and Aguilar Orantes’
multiple § 924(c) convictions.
Cruz contends that the evidence was insufficient to
support his convictions for accessory after the fact. To prove
that Cruz was an accessory after the fact as charged in Counts
13 and 14, the government had to prove (1) that Cruz knew that
Bernardez or Aguilar Orantes had committed the offenses charged
in Counts 3-5 and 6-8; (2) that Cruz received, relieved,
comforted, or assisted one or both of them; and (3) that Cruz
did so in order to hinder or prevent their apprehension, trial,
or punishment.
Although Cruz did not move for a judgment of acquittal
under Rule 29 at trial, generally, a jury’s verdict “must be
10
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006). The court considers both
circumstantial and direct evidence, drawing all reasonable
inferences from such evidence in the government’s favor. United
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). In
evaluating sufficiency of the evidence, this court does not
reweigh the evidence or reassess the factfinder’s determination
of witness credibility, United States v. Brooks, 524 F.3d 549,
563 (4th Cir. 2008), and “can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir.
2006) (en banc) (internal quotation marks omitted). 3
Cruz argues first that the evidence did not show that
he knew who was involved in the shootings on October 6, 2008, or
that the gun he sold to Palacios on November 1, 2008, was the
gun used in the October 6 shootings. He also argues that the
district court instructed the jury that one of the three
elements the government had to prove was that the crime of
3
The government asserts that, because Cruz did not move for
a directed verdict in the district court, review is for plain
error. United States v. Wallace, 515 F.3d 327, 331-32 (4th Cir.
2008). We conclude that, under either standard of review, the
convictions may be affirmed.
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attempted murder in aid of racketeering or the assault with a
dangerous weapon was committed by both Bernardez and Aguilar.
With respect to the latter claim, it is well-established that
“where an indictment charges in the conjunctive several means of
violating a statute, a conviction may be obtained on proof of
only one of the means.” United States v. Simpson, 228 F.3d
1294, 1300 (11th Cir. 2000). Therefore, the government could
prove this charge by showing that Cruz knew either Bernardez or
Aguilar Orantes committed the crime and that he acted to help
either of them avoid prosecution afterward.
Palacios’ testimony, supported by cell phone records
and his recorded conversations with Cruz, established that, both
before and after the October 6, 2008, shootings in Reston, Cruz
was in regular contact with Bernardez and that Cruz talked to
Bernardez on October 7, 2008, the day after the shootings. The
number of calls between Cruz and Bernardez escalated
significantly after October 6. Moreover, Cruz drove to northern
Virginia to pick up Barrera, who was present at the October 6
shootings, and bring him to a safe house in Richmond. Cruz then
traveled to northern Virginia a second time to obtain the gun
used in the shootings. From this evidence, the jury could infer
that Cruz learned that Bernardez had shot Kuk and Beck, even if
he was unaware of Aguilar Orantes’ identity or role in the
shootings.
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Cruz focuses on Palacios’ testimony that Cruz told him
that Barrera was the shooter and that Barrera himself claimed to
have been the shooter, arguing that this shows that Cruz did not
knowingly act to help Bernardez avoid prosecution for the
shootings. However, in weighing the evidence, the jury could
reasonably have found it more believable that Cruz learned that
Bernardez was the actual shooter through his many conversations
with Bernardez and his trips to northern Virginia.
Cruz also argues that the government did not prove
that he knew the gun he sold to Palacios was the gun used in the
October 6 shootings. Cruz misrepresents one portion of
Palacios’ testimony in making this argument. According to
Palacios’ testimony, Cruz did not say “he wanted nothing to do
with the gun used in any shooting” or complain “that he had been
deceived in the past when dealing with guns that may have been
used in crimes as it was not his desire to do so.” Palacios
testified under cross-examination that Cruz said he wanted clean
guns to take to northern Virginia to exchange for guns that had
been used by MS-13 in crimes. Cruz’ only concern was that
someone might sell him a gun that had been used in a crime under
the pretense that it was a clean gun.
Cruz asserts that his statement to Palacios that one
of the guns Cruz sold him was the gun “used in Monday’s
shooting” did not connect the gun to the October 6 shootings.
13
However, Palacios testified that Cruz consistently referred to
the October 6 shootings as “Monday’s shooting.” Taken in
context, it is clear that when Cruz referred to the gun he sold
Palacios on November 1 as the gun used in “Monday’s shooting,”
he meant it was the gun used on October 6, 2008. On balance, we
conclude that the evidence was sufficient to support Cruz’
convictions as an accessory after the fact.
Last, Appellants challenge the denial of their Rule 33
motion for a new trial. We review a district court’s denial of
a new trial motion for a new trial for abuse of discretion.
United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). To
receive a new trial based on newly-discovered evidence, a
defendant must show that: (1) the evidence is newly-discovered;
(2) he has been diligent in uncovering it; (3) the evidence is
not merely cumulative or impeaching; (4) the evidence is
material to the issues involved; and (5) the evidence would
probably produce an acquittal. See id. Unless the defendant
demonstrates all five of these factors, the motion should be
denied. United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989).
The district court correctly determined that the
defendants were not entitled to a new trial based on information
from Gordillo Portocarrero, a jailhouse snitch, that allegedly
contradicted Sergio Amador’s testimony about a murder he
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committed, which was part of the government’s evidence of MS-
13’s pattern of racketeering activity. Gordillo Portacarrero’s
information proved to be incorrect and thus did not impeach
Amador’s testimony at all. Thus, the information was not
material and would not have produced an acquittal, even if
Amador had been the only witness to testify about racketeering
activity by MS-13, which he was not. Therefore, the district
court did not abuse its discretion in denying the motion for a
new trial.
We therefore affirm the convictions and the sentences
imposed by the district court. We affirm the district court’s
denial of Appellants’ motion for a new trial. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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