United States v. Urquidi

Case: 22-50164 Document: 00516796593 Page: 1 Date Filed: 06/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 22, 2023
No. 22-50164 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Arturo Shows Urquidi; Mario Iglesias-Villegas
Defendants—Appellants.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-849-14
USDC No. 3:12-CR-849-19
______________________________
Before King, Jones, and Duncan, Circuit Judges.
King, Circuit Judge:
Defendants were among 24 individuals indicted on various charges in
connection with their involvement in the Sinaloa Cartel. Defendants were
jointly tried during a 10-day jury trial. Arturo Shows Urquidi was convicted
on five counts, while Mario Iglesias-Villegas was convicted on 12 counts.
Each received concurrent life sentences for all counts on which they were
convicted. Defendants raise various challenges to their respective
convictions and sentences on appeal. We AFFIRM the convictions but
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VACATE those sentences that exceed their respective statutory maxima
and REMAND the case for resentencing on those counts only.
I.
On April 11, 2012, Defendants-Appellants Arturo Shows Urquidi and
Mario Iglesias-Villegas (together, the “Defendants”) were among 24
individuals who were indicted in connection with their affiliation and dealings
with the Sinaloa Cartel (alternatively, the “Cartel”). Defendants were tried
together during a 10-day jury trial, which concluded on October 21, 2022.
The Sinaloa Cartel is a criminal organization whose members and
associates engage in the illegal trafficking of cocaine and marijuana from
Mexico into the United States. Drug proceeds accrued in the United States
are secretly transported back to Mexico and into the Cartel’s coffers. Cartel
members frequently engage in violence—such as murder, torture, and
kidnapping—against rivals, those they deem responsible for lost or stolen
assets, and individuals cooperating with law enforcement, among others.
These acts of violence, which also include the mutilation and
dismemberment of victims’ bodies, are often publicized by the Cartel as a
means of intimidation.
The Sinaloa Cartel has a hierarchical structure and was led by Joaquin
“El Chapo” Guzman Loera and Ismael “El Mayo” Zambada Garcia during
the events that were recounted at trial. 1 Below Chapo and Mayo were “plaza
bosses” who managed the Cartel’s daily operations in each major city within
its network. These operations included moving and importing drugs,
_____________________
1
After multiple escapes from Mexican authorities, Chapo was eventually
extradited to the United States in 2017 and sentenced to five concurrent life sentences plus
30 years in 2019; his conviction was later affirmed by the Second Circuit. See generally
United States v. Guzman Loera, 24 F.4th 144 (2d Cir. 2022), cert. denied sub nom. Loera v.
United States, 142 S. Ct. 2780 (2022).
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accounting for the cash proceeds returned from drug sales in the United
States, acquiring weapons, and managing “sicarios,” i.e., Cartel assassins.
Under the plaza bosses were Cartel members in charge of individual
“offices” (sometimes referred to as “houses,” “safe houses,” or “safety
houses”), where meetings were held; drugs, cash, and firearms were stored;
money was counted; and individuals were kidnapped, tortured, and
murdered. Beneath the office heads were rank-and-file members of the Cartel
who served as sicarios, provided security, paid bribes, packaged or
transported drugs, and counted money, among other Cartel duties.
On October 22, 2022, the jury found both Shows Urquidi and Iglesias-
Villegas guilty of Racketeering Conspiracy, Conspiracy to Possess a
Controlled Substance with Intent to Distribute, Conspiracy to Import a
Controlled Substance, Conspiracy to Launder Monetary Instruments, and
Conspiracy to Possess Firearms in Furtherance of Drug Trafficking Crimes
(Counts I through V). Iglesias-Villegas was also found guilty of five counts
for Violent Crimes in Aid of Racketeering (Counts VI through X),
Conspiracy to Kill in a Foreign Country (Count XIII), and Kidnapping and
Aiding and Abetting Kidnapping (Count XIV). On March 3 and March 24,
2022, Shows Urquidi and Iglesias-Villegas were sentenced to concurrent life
sentences on each count of conviction. Iglesias-Villegas was also fined
$100,000. Defendants raise various issues on appeal that span from pre-trial
discovery through their sentencing. We address each issue in turn.
II.
Iglesias-Villegas argues that the district court erred in denying his pre-
trial motion for the disclosure of evidence presented to the grand jury
supporting the indictment as it related to him.
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We review the denial of a motion for the disclosure of grand jury
materials for an abuse of discretion. United States v. Miramontez, 995 F.2d 56,
59 (5th Cir. 1993).
“Federal courts long have recognized that secrecy is essential to
maintaining the integrity of the grand jury system.” In re Grand Jury
Testimony, 832 F.2d 60, 62 (5th Cir. 1987). Nevertheless, a court may
authorize the disclosure of grand jury materials “at the request of a defendant
who shows that a ground may exist to dismiss the indictment because of a
matter that occurred before the grand jury.” Fed. R. Crim. P.
6(e)(3)(E)(ii). “The burden is on the party seeking disclosure to show that ‘a
particularized need’ exists for the materials that outweighs the policy of
secrecy.” Miramontez, 995 F.2d at 59 (quoting Pittsburgh Plate Glass Co. v.
United States, 360 U.S. 395, 400 (1959)). To meet this burden, the seeking
party must demonstrate that “(1) the material he seeks is needed to avoid a
possible injustice . . . , (2) the need for disclosure is greater than the need for
continued secrecy, and (3) his request is structured to cover only material so
needed.” Id.; see also United States v. Madrid, 610 F. App’x 359, 373 (5th Cir.
2015) (per curiam).
Iglesias-Villegas asserts that the grand jury transcripts were necessary
to prove that his case is one of mistaken identity. The indictment incorrectly
names him as Mario Alberto Iglesias-Villegas. Throughout this case, Iglesias-
Villegas has maintained that Mario Alberto Iglesias-Villegas refers to his
now-deceased cousin Mario Alberto Iglesias-Chavaria and not himself. In his
motion below, Iglesias-Villegas argued that he needed the grand jury
materials so that he could “become aware whether he was indicted via
allegations to the grand jury of conduct that was attributable to his cousin”
and “determine whether a ground may exist to dismiss the indictment.” The
district court rejected this argument, reasoning that Iglesias-Villegas failed to
establish that there was any confusion between his identity and that of his
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cousin at the time of the indictment or that the Government engaged in
misconduct while presenting its case to the grand jury.
This was not an abuse of discretion. “We have ‘refuse[d] to adopt the
proposition that, absent perjury or government misconduct, an indictment is
flawed simply because it is based on testimony that may later prove to be
questionable.’” United States v. Cessa, 861 F.3d 121, 142 (5th Cir. 2017)
(alteration in original) (quoting United States v. Sullivan, 578 F.2d 121, 124
(5th Cir. 1978)). “[W]hen a defendant claims that the prosecution put false
information before the grand jury, we ask two questions (1) did the
government ‘knowingly []sponsor[]’ false information before the grand jury
and (2) was that information material, that is, was the information ‘capable’
of influencing the grand jury’s decision.” Id. (quoting United States v.
Strouse, 286 F.3d 767, 771–72 (5th Cir. 2002)). Iglesias-Villegas speculates
that the Government did not present accurate evidence to the grand jury due
to its purported confusion between his identity and that of his cousin. But he
does not allege that the Government intended to deceive the grand jury to
the extent that any confusion existed. Without more, confusion alone does
not amount to the knowing sponsorship of false information. Furthermore,
his argument that the district court should have granted him access to the
grand jury materials so he could “determine what information the
government had presented and . . . whether the indictment had been
influenced by any misconduct” establishes that he cannot demonstrate that
any false information was actually presented to the grand jury. Iglesias-
Villegas thus cannot show that a possible injustice could have been avoided. 2
_____________________
2
Although not dispositive to our analysis, the materiality of this purported false
information is also suspect. The indictment is replete with allegations regarding Iglesias-
Villegas’s culpability that were re-alleged at trial in greater detail and bolstered by
additional evidence. Nevertheless, during his closing arguments, Iglesias-Villegas
continued to assert that his was a case of mistaken identity despite multiple witnesses
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III.
Iglesias-Villegas also challenges the district court’s denial of his
motion to suppress statements that he made to DEA Special Agent Juan
Briano while in Mexican custody.
For a denial of a motion to suppress, we review factual findings for
clear error and legal conclusions, including “whether Miranda’s guarantees
have been impermissibly denied,” de novo. United States v. Nelson, 990 F.3d
947, 952 (5th Cir. 2021). We evaluate evidence in a light most favorable to
the party that prevailed below and will uphold the district court’s ruling “if
there is any reasonable view of the evidence to support it.” United States v.
Michalik, 5 F.4th 583, 588 (5th Cir. 2021) (quoting United States v. Michelletti,
13 F.3d 838, 841 (5th Cir. 1994) (en banc)). “Our review is ‘particularly
deferential where denial of the suppression motion is based on live oral
testimony because the judge had the opportunity to observe the demeanor of
the witnesses.’” United States v. Lim, 897 F.3d 673, 685 (5th Cir. 2018)
(quoting United States v. Ortiz, 781 F.3d 221, 226 (5th Cir. 2015)).
A.
On April 19, 2012, shortly after the indictment in this case was filed, a
group of agents from both the DEA and FBI interviewed Iglesias-Villegas,
who was being held in Mexican custody after being arrested. Iglesias-Villegas
was informed that he had been indicted and that the purpose of this meeting
was to seek his cooperation for an interview. After some initial hesitation,
Iglesias-Villegas began to cooperate, confirming his aliases; Delta, Delfin,
and Dos; and admitting to working for Jose Antonio Torres Marrufo, a plaza
_____________________
testifying to the contrary. This theory was rejected by the petit jury, which found Iglesias-
Villegas guilty on all counts. And Iglesias-Villegas does not challenge the petit jury’s verdict
to the extent it rejected his mistaken identity theory.
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boss for the Sinaloa Cartel in Juarez, Mexico. He admitted to being a sicario
and operating a Cartel office in Juarez where there were between 30 and 35
other sicarios under his command. He also admitted to being involved in
three incidents that he recounted to Agent Briano and which became central
components of the Government’s case against him at trial.
The first incident concerned an operation ordered by Marrufo in
which a bridegroom, his brother, and his uncle were all to be kidnapped from
a church in Juarez during the bridegroom’s wedding and brought to another
location where they would be interrogated and eventually killed (the
“Wedding Murders”). Iglesias-Villegas told Agent Briano that Marrufo had
instructed him to assist the principal coordinator of the operation, Rafael
Figueroa-Merino. Figueroa-Merino initially wanted to kill the three men
inside the church, but Iglesias-Villegas explained to Agent Briano that he
disagreed with this approach due to his respect for the church and persuaded
Figueroa-Merino to kidnap them instead.
The second incident concerned the kidnapping of Sergio Saucedo in
Horizon City, Texas (the “Horizon City Kidnapping”). After being
kidnapped, Saucedo was secreted across the border to Juarez by associates of
Gabino Salas, the plaza boss in El Valle de Juarez, Mexico. From there,
Salas’s associates handed Saucedo over to individuals working for Marrufo
via a roadside exchange. Iglesias-Villegas told Agent Briano that he picked up
Marrufo and brought him to the office where Saucedo was being held so that
Saucedo could be interviewed by Marrufo. After the interview, Saucedo was
killed and several sicarios “dump[ed] the corpse in Ciudad Juarez.”
The third incident involved the murder of two men, one of whom was
an FBI informant, at an Xtreme Car Wash in Juarez (the “Xtreme Car Wash
Murders”); Marrufo had instructed Iglesias-Villegas to arrange for the
murders. The murders were reported by the Mexican news media and later
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confirmed in greater detail at trial. Iglesias-Villegas provided Agent Briano
with further details of Marrufo’s operations regarding smuggling drugs into
the United States, smuggling cash from drug proceeds back into Mexico, and
Marrufo’s source for assault weapons. And he described the relationships he
had with contacts in Mexican law enforcement with whom he shared
information about rival cartels. Specifically, Iglesias-Villegas recalled riding
around Mexico with his contacts in their state-issued vehicles and
coordinating with them to frame rival cartels.
Before trial, Iglesias-Villegas moved to suppress the statements he
made during his interview with Agent Briano. At the suppression hearing,
Iglesias-Villegas testified 3 that on March 17, 2012, he was arrested by
Mexican federal police, handcuffed, and moved into an unmarked car so that
he could be transported to the prosecutor’s office. While in this car, he
claimed that the police beat him on the side of his ribs with their rifles and
smacked him with their open hands on his neck. Once they had arrived at the
office, he was told that his mother and wife would be arrested if he did not
sign documents that were presented to him. He testified that he signed the
documents without having an opportunity to review them because he “felt
cornered” and that his mother and wife would be “in the crosshairs” of
Mexican authorities otherwise. Iglesias-Villegas was then taken to a hotel,
where he was detained for over a month. While detained at the hotel, he
shared a room with four other people who had been arrested and was only
allowed to leave the room to eat. He was in line to receive a visit from his
_____________________
3
Iglesias-Villegas only testified for the purpose of his motion to suppress. See
Simmons v. United States, 390 U.S. 377, 394 (1968) (“[W]hen a defendant testifies in
support of a motion to suppress evidence on Fourth Amendment grounds, his testimony
may not thereafter be admitted against him at trial on the issue of guilt unless he makes no
objection.”); United States v. Harrison, 461 F.2d 1127, 1131–32 (5th Cir. 1972) (applying
Simmons’s reasoning to the Fifth Amendment).
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mother and wife when he was notified by an agent that he was to go to the
prosecutor’s office. Iglesias-Villegas was then taken out of line, handcuffed,
and driven to the office; he was not told why he was being taken there.
When Iglesias-Villegas arrived at the prosecutor’s office, the
prosecutor informed him that U.S. agents wanted to speak with him. No one
ever asked if he wanted to speak with the agents. He testified that he felt as if
he had no choice and would be beaten again if he refused. He was eventually
escorted into an office with glass walls and sat at the head of a long table alone
with the U.S. agents. One of the U.S. agents then attempted to close the door
but was stopped by a Mexican agent looking after Iglesias-Villegas. The door
was kept open throughout the interview while the Mexican agent sat outside
beside the door and within earshot. Iglesias-Villegas admitted that no threats
or promises were ever made by any of the agents, and he agreed that he was
“treated with respect.” Agent Briano testified that the agents attempted to
read Iglesias-Villegas his rights under Miranda v. Arizona, 384 U.S. 436(1966), and “explain . . . what his U.S. Constitutional rights were in the
United States” but that Iglesias-Villegas said he “didn’t want to hear it” and
“scoffed and backed off the seat.” Iglesias-Villegas disputes that he was ever
given Miranda warnings and testified that he was never provided with a form
explaining his extraterritorial rights. The interview lasted no longer than an
hour and a half and was terminated by Iglesias-Villegas, who said that he
would continue to cooperate after speaking with his attorneys. Iglesias-
Villegas was released from Mexican custody on May 6, 2012, about two-and-
a-half weeks after the interview.
Iglesias-Villegas argues that the statements he made during this
interview should have been suppressed pursuant to the Fifth Amendment
because they were given involuntarily and because he was not adequately
advised of his Miranda rights.
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B.
“Whether a confession is admissible or not turns on whether it was
made voluntarily.” United States v. Cantu-Ramirez, 669 F.3d 619, 624 (5th
Cir. 2012). An individual makes an involuntary statement if, due to state
action, see Colorado v. Connelly, 479 U.S. 157, 167 (1986), “his will has been
overborne and his capacity for self-determination critically impaired,”
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). A court considers
whether a confession was voluntary based on a totality of the circumstances,
which include the length of detention, length of questioning and its location,
the use of physical punishment, and whether the accused is informed of his
constitutional rights. Withrow v. Williams, 507 U.S. 680, 693–94 (1993);
Schneckloth, 412 U.S. at 226.
Here, Iglesias-Villegas contends that his confession was a product of
coercion. He argues that he would not have submitted to the interview with
U.S. agents if given a choice. Additionally, he asserts that he was fearful of an
“impending threat of violence” by Mexican law enforcement if he did not
engage with Agent Briano’s questions. But we fail to see such a threat.
Iglesias-Villegas concedes that he had not been beaten by Mexican law
enforcement since his arrest, which occurred over a month prior to the
interview. By the time of his interview, too much time had elapsed from the
initial beating for Iglesias-Villegas to credibly fear retaliation for failing to
engage with the U.S. agents. He does not allege that he was beaten or
threatened by Mexican authorities since his arrest. Without more, we cannot
conclude that there was a looming threat of violence if Iglesias-Villegas chose
not to cooperate with the U.S. agents. Other facts surrounding the interview
support this conclusion. Iglesias-Villegas never evinced any fear of the U.S.
agents conducting the interview; indeed, he acknowledged that they treated
him with respect. We also credit the district court’s finding that Iglesias-
Villegas was advised of his extraterritorial rights and that his testimony to the
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contrary was not credible. Furthermore, he terminated the interview on his
own volition by stating that he would like to speak with his attorneys before
continuing, demonstrating both that he was cognizant of his rights and felt
comfortable exercising them. And although a Mexican agent remained within
earshot of the interview, Iglesias-Villegas cannot point to any evidence that
this amounted to anything more than a standard security measure. Lastly,
there is no indication that anything else concerning the environment in which
the interview occurred, i.e., the location or duration of the interview, was
inherently coercive. Accordingly, considering the totality of the
circumstances, we hold that Iglesias-Villegas’s confession was voluntary.
C.
Miranda warnings are necessary during a custodial interrogation for a
suspect’s statements to later be admissible in compliance with the Fifth
Amendment. United States v. Coulter, 41 F.4th 451, 456 (5th Cir. 2022). “A
suspect is . . . ‘in custody’ for Miranda purposes when placed under formal
arrest or when a reasonable person in the suspect’s position would have
understood the situation to constitute a restraint on freedom of movement of
the degree which the law associates with formal arrest.” United States v.
Wright, 777 F.3d 769, 774 (5th Cir. 2015) (quoting United States v. Bengivenga,
845 F.2d 593, 596 (5th Cir. 1988)). Put more succinctly: “would a reasonable
person have felt he or she was not at liberty to terminate the interrogation
and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). “‘[W]hether a
suspect is “in custody” is an objective inquiry’ that ‘depends on the “totality
of the circumstances.”’” Wright, 777 F.3d at 774–75 (alteration in original)
(citation omitted) (first quoting J.D.B. v. North Carolina, 564 U.S. 261, 270
(2011); and then quoting United States v. Cavazos, 668 F.3d 190, 193 (5th Cir.
2012)). Although “no one fact is determinative,” we have “repeatedly
considered certain key details when analyzing whether an individual was or
was not in custody,” including “the length of the questioning”; “the location
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of the questioning”; “the accusatory, or non-accusatory, nature of the
questioning”; “the amount of restraint on the individual’s physical
movement”; and “statements made by officers regarding the individual’s
freedom to move or leave.” Id. at 775.
In Howes v. Fields, the Supreme Court ruled that “imprisonment alone
is not enough to create a custodial situation within the meaning of Miranda.”
565 U.S. 499, 510–11 (2012). Three reasons undergirded the Court’s holding
in Howes: (1) “[i]n the paradigmatic Miranda situation . . . detention
represents a sharp and ominous change, and the shock may give rise to
coercive pressures,” whereas “a person who is already serving a term of
imprisonment . . . usually [experiences] no such change” due to their already
being acclimated to the “ordinary,” albeit “unpleasant,” restrictions of
prison life at the time of the interrogation; (2) “a prisoner, unlike a person
who has not been sentenced to a term of incarceration, is unlikely to be lured
into speaking by a longing for prompt release”; and (3) “a prisoner, unlike a
person who has not been convicted and sentenced, knows that the law
enforcement officers who question him probably lack the authority to affect
the duration of his sentence.” Id. at 511–12.
Iglesias-Villegas argues that Howes is inapplicable to his case, making
the conclusory assertion that he had good reason to think that speaking with
U.S. agents would affect the conditions and length of his custody and
pointing to his release 17 days later. But his invocation of subjective beliefs
and post-hoc rationalizations are unavailing. Iglesias-Villegas’s detention was
sufficiently analogous to the detention contemplated in Howes that it, without
more, cannot be adjudged as per se custodial for the purpose of Miranda. A
reasonable person would be aware that U.S. agents likely lack the authority
to effect a release from detention from an independent sovereign.
Consequently, despite not being sentenced to a term of years, there would be
little incentive for a reasonable person in Iglesias-Villegas’s carceral state to
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be lured into speaking in the hope of securing his prompt release. And an
individual who is placed in detention for over a month (and given no
indication as to when or whether he will be released) more closely resembles
a prisoner serving a term of years that is already acclimated to prison life
rather than the paradigmatic Miranda suspect who has yet to adjust to the
sharp and ominous change of being newly detained.
The remaining circumstances surrounding the interview support a
determination that Iglesias-Villegas was not in custody. Despite originally not
being given a choice to attend the interview, Iglesias-Villegas was informed
of his extraterritorial rights, including that he did not have to speak with the
U.S. agents, and that if he decided to answer their questions, he had the right
to stop answering questions at any time. See Howes, 565 U.S. at 514–15
(although “respondent did not invite the interview,” this was “[m]ost
important[ly]” offset by him being told that “he could leave and go back to
his cell whenever he wanted”); Coulter, 41 F.4th at 461 (“[A]ssurances that
a suspect ‘[is] not under arrest and that he [is] free to leave’ weigh in favor
of determining that a suspect is not in custody.” (second and third alterations
in original) (quoting Wright, 777 F.3d at 777)). He later evinced an
understanding of those rights when he terminated the interview on his own
and stated that he would like to speak with his attorneys before continuing
further. And the U.S. agents treated him with respect throughout the
interview, which lasted no longer than 90 minutes and took place in a non-
hostile office environment. See Howes, 565 U.S. at 515 (suspect-prisoner was
not in custody where interview lasted between five and seven hours and
occurred in a “well-lit, average-sized conference room”); see also United
States v. Arellano-Banuelos, 927 F.3d 355, 361–63 (5th Cir. 2019) (inmate
serving state prison sentence not in custody while being interviewed by ICE
agents where he was not told before arriving that he could decline the
interview or was otherwise free to leave, was not provided with full Miranda
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warnings but was told that his statement had to be voluntary and that the
interview would terminate if he chose not to speak with the ICE agents, was
treated with respect by the ICE agents, and was told by those agents that the
time he might spend in ICE detention might be reduced if he cooperated). 4
IV.
Shows Urquidi argues that numerous Government exhibits were
either inadmissible due to their irrelevance or unduly prejudicial nature
under Federal Rules of Evidence 402 and 403, respectively. He concedes,
however, that he did not object to the admissibility of most of these exhibits
during the trial.
Evidentiary holdings subject to timely objections are reviewed for an
abuse of discretion. United States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008).
“However, the standard for assigning error under Rule 403 is ‘especially
high’ and requires a showing of a ‘clear abuse of discretion.’” United States
_____________________
4
The parties disagree as to whether Iglesias-Villegas was handcuffed during the
interview, and the district court did not make a finding regarding this fact. But whether
Iglesias-Villegas was restrained is not dispositive to our analysis, and we would come to the
same conclusion regardless. See Howes, 565 U.S. at 509 (“Our cases make clear . . . that the
freedom-of-movement test identifies only a necessary and not a sufficient condition for
Miranda custody.” (quoting Maryland v. Shatzer, 559 U.S. 98, 112 (2010))); Dolph v. Davis,
765 F. App’x 986, 991 (5th Cir. 2019) (per curiam) (“[T]here is no clearly established law
that Miranda warnings must be given whenever an individual is handcuffed.”).
Iglesias-Villegas also contends that his statements must be excluded under United
States v. Heller, which held that a statement made in foreign custody without Miranda
warnings must be excluded if (1) “the conduct of the foreign officers shocks the conscience
of the American court,” or (2) “American officials participated in the foreign search or
interrogation, or if the foreign authorities were acting as agents for their American
counterparts.” 625 F.2d 594, 599 (5th Cir. 1980). As we explained earlier in our
voluntariness analysis, see supra Part III.B, the conduct of Mexican law enforcement with
respect to the interview does not shock the conscience of this court; the totality of the
circumstances renders Iglesias-Villegas’s confession voluntary. We have likewise just
concluded that Iglesias-Villegas was not in custody for the purpose of Miranda.
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v. Curtis, 635 F.3d 704, 716 (5th Cir. 2011) (quoting United States v. Setser,
568 F.3d 482, 495 (5th Cir. 2009)). “Rare is the appellant who can make that
showing.” Id. “Importantly, we have cautioned that ‘Rule 403 . . . is an
extraordinary measure because it permits a trial court to exclude concededly
probative evidence, and thus it should be used sparingly.’” United States v.
Clark, 577 F.3d 273, 287 (5th Cir. 2009) (quoting United States v. Caldwell,
820 F.2d 1395, 1404 (5th Cir. 1987)). “Accordingly, ‘[w]hen reviewing this
exercise of discretion, we must look at the evidence in the light most favorable
to the proponent, maximizing its probative value and minimizing its
prejudicial effect.’” Id. (alteration in original) (quoting Caldwell, 820 F.2d at
1404).
Unpreserved evidentiary challenges are reviewed for plain error.
United States v. Richard, 775 F.3d 287, 295 (5th Cir. 2014). “This court finds
plain error when: (1) there was an error; (2) the error was clear and obvious;
and (3) the error affected the defendant’s substantial rights.” United States
v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009) (quoting United States v. Villegas,
404 F.3d 355, 358–59 (5th Cir. 2005)). Even if these three prongs are
satisfied, whether the error must be remedied is subject to our discretion—
this discretion need only be exercised “if the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” Puckett v.
United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)). It is Shows Urquidi’s
burden to establish plain error. United States v. Dominguez Benitez, 542 U.S.
74, 82 (2004).
Evidence is relevant if it (1) “has any tendency to make a fact more or
less probable than it would be without the evidence” and (2) “the fact is of
consequence in determining the action.” Fed. R. Evid. 401. Irrelevant
evidence is inadmissible. Fed. R. Evid. 402. “The court may exclude
relevant evidence if its probative value is substantially outweighed by a
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danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
At trial, Shows Urquidi objected to the admissibility of three
photographs pursuant to Rule 403. The first two photographs, Exhibits 33-a
and 33-b, depict the corpse of a confidential source for the DEA, Edgar Ariel
Avalos, who agreed to cooperate against Marrufo and was later killed during
the Xtreme Car Wash Murders. Both photographs show Avalos’s bullet-
riddled body contorted on the floor of a garage with a large amount of blood
pooled around his head. Exhibit 33-b is a closeup photograph depicting the
same image as Exhibit 33-a. The third photograph, Exhibit 24-o, depicts the
dead body of Alonso Sotelo, a friend of the groom who was gunned down as
he tried to escape during the Wedding Murders. In the photograph, Sotelo is
lying face up on the ground with a bloodied face and arm.
Shows Urquidi now contends that additional evidence should not
have been admitted. For example, he cites photographs depicting the body of
a dead waiter who had his finger severed and placed in his mouth after he was
suspected of losing $250,000 of the Cartel’s cocaine. The man who killed the
waiter testified that the finger was severed to signal that he was a thief, and it
was placed in his mouth to show that he was cooperating with the U.S.
government. Shows Urquidi also points to a photograph of Sergio Saucedo
following the Horizon City Kidnapping. In that photograph, Saucedo is lying
dead on the ground with his severed arms placed on top of his chest. The
other photographs that Shows Urquidi now contests are similarly graphic. He
also challenges multiple pieces of testimony, including that of the father of
the groom who gave his account of the Wedding Murders. Shows Urquidi
asserts that all of this evidence—both the evidence he originally objected to
and that which he challenges for the first time on appeal—was not relevant
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to the crimes for which he was on trial and was otherwise unnecessarily
cumulative and unfairly prejudicial.
We disagree. First, because Shows Urquidi challenges this evidence’s
relevancy for the first time on appeal, he must establish that its admission on
this basis was plainly erroneous, which he fails to do. He does not contend
that this evidence was wholly irrelevant, but that it was merely irrelevant to
the case as it pertained to him. Specifically, he does not assert that this
evidence was irrelevant to the Government’s case against Iglesias-Villegas,
who notably makes no such assertion on his own. Indeed, it appears that the
crux of Shows Urquidi’s argument is that he was tried together with Iglesias-
Villegas, i.e., that evidence relevant only to the case against Iglesias-Villegas
could be presented in such close proximity to the case against Shows Urquidi,
an issue he raises separately and which we address in Part VI infra.
Second, it was not clearly—or plainly—erroneous for the district
court to conclude that the probative value of this evidence was not
substantially outweighed by it being overly cumulative or unfairly prejudicial.
The photographic evidence was critical in proving many of the counts of the
indictment. And it supported one of the principal theories of the
Government’s case: that the Sinaloa Cartel utilized extreme forms of
violence as a means of achieving its objectives via intimidation. Nor was it
cumulative as it provided support to witness testimony. See United States v.
Perry, 35 F.4th 293, 325 (5th Cir. 2022) (“gruesome” photographs were
admissible where they had “nontrivial probative value” in that they helped
prove overt acts committed in furtherance of a conspiracy, lent support to
testimony, and established the violence of the crimes committed). The
challenged testimony—which is all subject to plain error review—likewise
provided the jury with a unique and important perspective as to the Cartel’s
violence that would otherwise have been solely portrayed through the
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testimony of the perpetrators. The value of this testimony thus outweighed
any risk of unfair prejudice or having an overly cumulative effect.
V.
Defendants each challenge the sufficiency of the evidence: Shows
Urquidi as to Count I, and Iglesias-Villegas as to Counts IV, VI, and VII.
Properly preserved challenges to the sufficiency of the evidence are
reviewed de novo, but our review is “highly deferential to the verdict.” United
States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014) (quoting United States v.
Isgar, 739 F.3d 829, 835 (5th Cir.2014)). The evidence will be deemed
sufficient unless no “rational jury, viewing the evidence in the light most
favorable to the prosecution, could have found the essential elements of the
offense to be satisfied beyond a reasonable doubt. In reviewing the evidence
presented at trial, we draw all reasonable inferences in favor of the jury’s
verdict.” Id. (quoting United States v. Miles, 360 F.3d 472, 476–77 (5th Cir.
2004)). The jury, however, “retains the sole authority to weigh any
conflicting evidence and to evaluate the credibility of witnesses.” United
States v. Scott, 892 F.3d 791, 797 (5th Cir. 2018) (quoting United States v.
Grant, 683 F.3d 639, 642 (5th Cir. 2012)).
If a defendant fails to renew a motion for acquittal after the jury’s
verdict, then we will only reverse the verdict if there is a “‘manifest
miscarriage of justice,’ which occurs only where ‘the record is devoid of
evidence pointing to guilt’ or the evidence is so tenuous that a conviction is
‘shocking.’” United States v. Oti, 872 F.3d 678, 686 (5th Cir. 2017) (quoting
United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc)).
Both Defendants moved for a judgment of acquittal following the
conclusion of the Government’s case-in-chief. Because Iglesias-Villegas
failed to renew his motion after he presented evidence, his issues are
reviewed for a manifest miscarriage of justice. Shows Urquidi did not present
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evidence. Accordingly, we review Shows Urquidi’s challenge to the
sufficiency of the evidence de novo. United States v. Daniels, 723 F.3d 562, 569
(5th Cir. 2013) (Defendants “did not need to renew their Rule 29 motions in
order to preserve their challenges because they did not present evidence.”).
A.
Shows Urquidi was convicted on Count I for Racketeering Conspiracy
pursuant to 18 U.S.C. § 1962(d), which criminalizes conspiring to violate any
of the RICO Act’s substantive provisions, i.e., subsections (a) through (c) of
§ 1962. Under the RICO Act’s third substantive provision, it is “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.” 18
U.S.C. § 1962(c). “Racketeering activity” includes state law offenses
punishable by imprisonment for more than one year such as murder,
kidnapping, and dealing in a controlled substance, and federal offenses
involving money laundering and narcotics violations. Id. § 1961(1). An
“enterprise” “includes any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals
associated in fact although not a legal entity.” Id. § 1961(4). A “pattern of
racketeering activity” “requires at least two acts of racketeering
activity . . . the last of which occurred within ten years (excluding any period
of imprisonment) after the commission of a prior act of racketeering
activity.” Id. § 1961(5).
“To prove a RICO conspiracy the government must establish (1) that
two or more people agreed to commit a substantive RICO offense and (2)
that the defendant knew of and agreed to the overall objective of the RICO
offense.” United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998).
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“The government is not required to prove a conspiracy through direct
evidence. Because conspirators normally attempt to conceal their conduct,
the elements of a conspiracy offense may be established solely by
circumstantial evidence.” Id. “The agreement, a defendant’s guilty
knowledge and a defendant’s participation in the conspiracy all may be
inferred from the ‘development and collocation of circumstances.’” Id.(quoting United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992)).
Although a defendant’s mere presence at the scene of a crime
is not, by itself, sufficient to support a finding that the
defendant is participating in a conspiracy, presence and
association may be considered by the jury along with other
evidence in finding that the defendant participated in a
conspiracy.
Id. at 857–58. “Moreover, a defendant may be convicted of a conspiracy if
the evidence shows that he only participated at one level of the conspiracy
charged in the indictment, and only played a minor role in the conspiracy.”
Id. at 858.
Shows Urquidi maintains that the Government failed to prove that he
had knowledge of and agreed to the overall objective of the RICO offense. He
contends that any illicit activities he committed were for his sole economic
benefit and that the Government failed to connect him, either by his activities
or affiliations, to the Sinaloa Cartel.
The evidence adduced at trial, though, was more than sufficient to
prove his knowledge of and agreement to the Cartel’s objectives. Multiple
witnesses identified Shows Urquidi as a member of the Sinaloa Cartel.
Further testimony described Shows Urquidi frequenting locations as well as
parties and meetings where attendance was restricted to Cartel members.
During these meetings, Cartel members discussed business strategy and the
Cartel’s operations. Multiple witnesses also recounted that Shows Urquidi
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would help guard tanker trucks full of drugs being transported for the Cartel;
take shifts guarding, arranging, and packaging cocaine in Cartel offices; and
would observe as cocaine, weapons, and money were loaded onto trucks at
Cartel offices for transport. Other testimony established that Shows Urquidi
would kidnap, murder, and dispose of bodies for the Cartel as well.
Shows Urquidi’s membership and participation in meetings and
parties for the Sinaloa Cartel demonstrates that he had knowledge of its
objectives. And his support for the Cartel through, inter alia, acting as a
guard, packaging cocaine, and committing violent acts is sufficient to affirm
his § 1962(d) conviction. See United States v. Velasquez, 881 F.3d 314, 332
(5th Cir. 2018) (per curiam) (defendants had knowledge of and agreed to the
overall objectives of the RICO enterprise where they were members of the
enterprise and participated in its meetings and decisions to murder
individuals and distribute drugs); United States v. Nieto, 721 F.3d 357, 369
(5th Cir. 2013) (membership in RICO enterprise and participation in
predicate acts conforming to the enterprise’s known enforcement methods
were sufficient); United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005)
(sufficient evidence where defendant was a member of the RICO enterprise,
attended meetings where drug operations were discussed, and directed and
participated in predicate acts). Shows Urquidi’s argument that he acted in
his own self-interest is unavailing. Even if he acted partly in his own self-
interest, there is no doubt that he also provided various forms of support to
the Cartel while knowing that his support would further its objectives. See
Salinas v. United States, 522 U.S. 52, 64 (1997) (“If conspirators have a plan
which calls for some conspirators to perpetrate the crime and others to
provide support, the supporters are as guilty as the perpetrators.”). That he
engaged in this support partly for personal gain is far from unique for a
convicted § 1962(d) conspirator.
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B.
1.
Iglesias-Villegas was convicted on Count IV for Conspiracy to
Launder Monetary Instruments pursuant to 18 U.S.C. § 1956(a)(2)(A) and
(h). Under § 1956(a)(2)(A), it is unlawful to
transport[], transmit[], or transfer[], or attempt[] to transport,
transmit, or transfer a monetary instrument or funds from a
place in the United States to or through a place outside the
United States or to a place in the United States from or through
a place outside the United States . . . with the intent to promote
the carrying on of specified unlawful activity.
Section 1956(h) makes it unlawful to conspire to violate § 1956(a)(2)(A).
Section 1956(h) consists of two elements: “(i) ‘that there was an agreement
between two or more persons to commit money laundering’; and (ii) ‘that
the defendant joined the agreement knowing its purpose and with the intent
to further the illegal purpose.’” United States v. Alaniz, 726 F.3d 586, 601
(5th Cir. 2013) (quoting United States v. Fuchs, 467 F.3d 889, 906 (5th Cir.
2006)). “Direct evidence of a conspiracy is unnecessary; each element may
be inferred from circumstantial evidence.” Fuchs, 467 F.3d at 906 (quoting
United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994)). “An agreement
may be inferred from a ‘concert of action.’” Id. (quoting Casilla, 20 F.3d at
603). “Once the government presents evidence of a conspiracy, it only needs
to produce slight evidence to connect an individual to the conspiracy.”
United States v. Virgen-Moreno, 265 F.3d 276, 285 (5th Cir. 2001).
Here, the trial record is not devoid of evidence pointing to Iglesias-
Villegas’s guilt, nor is his conviction shocking. Iglesias-Villegas was an active
member of the Sinaloa Cartel. He was also familiar with its money-laundering
operations as shown by his discussions with Agent Briano. Cartel offices were
often used to store laundered money, and Iglesias-Villegas was in charge of
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one of these offices. Furthermore, one witness placed him in a Cartel office
being used for this purpose. Accordingly, his conviction on this count was not
a manifest miscarriage of justice.
2.
Iglesias-Villegas was convicted on Counts VI and VII for violations of
the Violent Crimes in Aid of Racketeering Activity (“VICAR”) statute, 18
U.S.C. § 1959. He was convicted on Count VII pursuant to 18 U.S.C. § 2 for
aiding and abetting as well. 5 Both convictions were for his role in the
kidnapping and murder of Sergio Saucedo in the Horizon City Kidnapping.
The VICAR statute states:
Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of
pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in
racketeering activity, murders, kidnaps, maims, assaults with a
dangerous weapon, commits assault resulting in serious bodily
injury upon, or threatens to commit a crime of violence against
any individual in violation of the laws of any State or the United
States, or attempts or conspires so to do, shall be punished . . . .
18 U.S.C. § 1959(a). To secure a VICAR conviction, five elements must be
proven:
that (1) an enterprise existed; (2) the enterprise engaged in, or
its activities affected, interstate commerce; (3) it was engaged
in racketeering activity; (4) the defendant committed violent
crimes; and (5) the defendant committed the violent crimes to
_____________________
5
The convictions were also pursuant to various provisions of the Texas Penal
Code.
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gain entrance to, or maintain or increase his position in, the
enterprise.
United States v. Perry, 35 F.4th 293, 320 (5th Cir. 2022) (quoting United
States v. Jones, 873 F.3d 482, 492 (5th Cir. 2017)). Section 2 states that
whoever aids or abets an offense against the United States is punishable as a
principal. 18 U.S.C. § 2(a). “[A] person is liable under § 2 for aiding and
abetting a crime if (and only if) he (1) takes an affirmative act in furtherance
of the offense, (2) with the intent of facilitating the offense’s commission.”
United States v. Carbins, 882 F.3d 557, 563–64 (5th Cir. 2018) (alteration in
original) (quoting Rosemond v. United States, 572 U.S. 65, 71 (2014)).
For Count VI, Iglesias-Villegas contends that the Government failed
to show that he entered into an agreement with the other Cartel members
who conspired to murder Saucedo. For Count VII, he similarly asserts that
there was no evidence that he either murdered or aided and abetted in the
murder of Saucedo. We disagree; the record was not devoid of evidence to
support either conviction, i.e., there was no manifest miscarriage of justice.
Iglesias-Villegas provided Agent Briano with details concerning the Horizon
City Kidnapping, including that he complied with instructions from
Marrufo—who coordinated the Horizon City Kidnapping—to drive him to
the office where Saucedo was being interrogated and admitted that he
assisted in disposing Saucedo’s body. While he was being held by the Cartel,
Saucedo was kept for multiple days at Iglesias-Villegas’s office, where he was
interrogated by Marrufo. Further testimony showed that Iglesias-Villegas
had arranged for his office to be used for similar interrogations on other
occasions and that individuals who were interrogated in Cartel offices were
often subsequently executed. Iglesias-Villegas’s agreement can be
established through hosting Saucedo’s interrogation by keeping him at his
office, bringing Marrufo to the interrogation, and his general knowledge
regarding how the Cartel handled matters akin to the Horizon City
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Kidnapping. Iglesias-Villegas knew that it was likely that Saucedo would be
murdered after such an interrogation. Iglesias-Villegas’s actions here—
hosting the interrogation, transporting Marrufo, and burying Saucedo—
satisfy aiding and abetting as well.
VI.
Shows Urquidi contends that the district court erred by failing to sua
sponte sever his trial from that of Iglesias-Villegas. Because Shows Urquidi
raises this issue for the first time on appeal, we review the ruling below for
plain error. See United States v. Vasquez, 899 F.3d 363, 371–73 (5th Cir. 2018).
“If the joinder of offenses or defendants in an indictment . . . or a
consolidation for trial appears to prejudice a defendant . . . , the court may
order separate trials of counts, sever the defendants’ trials, or provide any
other relief that justice requires.” Fed. R. Crim. P. 14(a). Typically,
outside of plain error review, “we review the decision not to sever ‘under the
exceedingly deferential abuse of discretion standard’”; “as a substantive
matter, our caselaw does not reflect a ‘liberal attitude toward severance.’”
United States v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018) (first
quoting United States v. Chapman, 851 F.3d 363, 379 (5th Cir. 2017); and then
quoting United States v. McRae, 702 F.3d 806, 822 (5th Cir. 2012)). There is
a presumption favoring joint trials “stem[ming] from the belief that
‘[d]efendants who are indicted together should generally be tried together,
particularly in conspiracy cases,’ because joint trials ‘promote efficiency’ and
protect against the ‘inequity of inconsistent verdicts.’” Id. (second alteration
in original) (footnote omitted) (first quoting United States v. Musquiz, 45 F.3d
927, 931 (5th Cir. 1995); and then quoting Zafiro v. United States, 506 U.S.
534, 537 (1993)). “To surmount this heavy presumption, a defendant must
show that ‘(1) the joint trial prejudiced him to such an extent that the district
court could not provide adequate protection; and (2) the prejudice
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outweighed the government’s interest in economy of judicial
administration.’” Id. (quoting United States v. Owens, 683 F.3d 93, 98 (5th
Cir. 2012)).
“To warrant vacatur, the defendant must show ‘specific and
compelling prejudice’ resulting from the joint trial.” Chapman, 851 F.3d at
379 (quoting Owens, 683 F.3d at 100). “[C]ompelling prejudice is not shown
if it appears that, through use of cautionary instructions, the jury could
reasonably separate the evidence and render impartial verdicts as to each
defendant.” United States v. Erwin, 793 F.2d 656, 665 (5th Cir. 1986).
“Merely alleging a ‘spillover effect’—whereby the jury imputes the
defendant’s guilt based on evidence presented against his co-defendants—
‘is an insufficient predicate for a motion to sever.’” Chapman, 851 F.3d at
379 (quoting United States v. Snarr, 704 F.3d 368, 397 (5th Cir. 2013)); see
also United States v. Williams, 809 F.2d 1072, 1085 (5th Cir. 1987) (“The
additional evidence adduced at joint trials does not constitute compelling
prejudice by itself.”). “Nor is it sufficient for a defendant to allege they were
less involved than other defendants.” United States v. Perry, 35 F.4th 293, 343
(5th Cir. 2022). “[I]n conspiracy cases we generally favor specific
instructions over severance.” Ledezma-Cepeda, 894 F.3d at 690; see also id.(“[d]efendants who are indicted together should generally be tried together,
particularly in conspiracy cases” (alteration in original) (quoting Musquiz, 45
F.3d at 931)).
Here, Shows Urquidi argues that most of the evidence adduced at trial
was exclusively targeted at the counts that were only faced by Iglesias-
Villegas and that this evidence was particularly “graphic, emotional,
gruesome, and gut-wrenching.” For example, Shows Urquidi points to
testimony describing Iglesias-Villegas’s work as a sicario and his
management of an office of 30 to 35 other sicarios that assisted the Artistas
Asesinos, a gang-affiliated group supporting the Sinaloa Cartel, as they
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carried out kidnappings and murders. He also cites testimony describing the
contents of a videotape depicting men being tortured and murdered that was
used by the Sinaloa Cartel to intimidate a rival cartel. And there was
testimony concerning the waiter who was tortured and murdered after he was
suspected of being responsible for the seizure of about $250,000 of cocaine
by U.S. authorities that had belonged to the Cartel. Accompanying this
testimony were photographs admitted into evidence showing the head of this
man’s corpse with a bloody nose and one of his severed fingers placed in his
mouth. See Part IV supra. These are just a few of many examples cited by
Shows Urquidi in support of his argument that his joint trial with Iglesias-
Villegas was compellingly prejudicial. He asserts that he was not linked to any
of the killings or violence recounted in this evidence.
But this is not enough to demonstrate plain error. Here, the purported
error is a spillover effect—an insufficient basis for reversal, even if our review
was not limited to plain error. Chapman, 851 F.3d at 379. The jury
instructions also sufficiently cured any spillover risk. As relevant here, the
jury instructions read:
The case of each defendant should be considered separately
and individually. The fact that you may find one or both of the
accused guilty or not guilty of any of the crimes charged should
not control your verdict as to any other crime charged. You
must give separate consideration to the evidence as to each
defendant.
Furthermore, there is no authority requiring sua sponte severance on similar
facts.
Shows Urquidi also contends that his case is similar to two of our prior
decisions where we reversed defendants’ convictions because their trials had
not been severed from those of their co-defendants. But both of those cases
are inapposite. In United States v. Erwin, we reversed a defendant’s perjury
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convictions when the district court denied her motion for severance from a
trial where most of the evidence concerned two kidnappings, two beatings, a
killing, counterfeiting, and conspiracy and drug charges relating to her co-
defendants. 793 F.2d at 656, 665–66. There, we reasoned that the charges
brought against the defendant were only “peripherally related” to those that
were brought against her co-defendants, and relatedly, “very little of the
mountainous evidence was usable against her.” Id. at 666. Here, though,
Defendants were convicted on the same five conspiracy charges, see Ledezma-
Cepeda, 894 F.3d at 690, requiring many of the same witnesses and evidence.
Additionally, the difference between the severity of the crimes under which
Defendants were indicted is not as great as it was in Erwin.
Nor is our case akin to United States v. McRae, 702 F.3d 806 (5th Cir.
2012). In that case, David Warren was tried before a jury for killing Henry
Glover while Warren was a rookie officer in the New Orleans Police
Department in the aftermath of Hurricane Katrina. Id. at 811–17. Warren was
convicted of depriving Glover of his right to be free from the use of
unreasonable force by a law enforcement officer and carrying, using, and
discharging a firearm in furtherance of a crime of violence resulting in an
individual’s death; the jury also found that the second offense constituted
voluntary manslaughter. Id. at 817. Warren had been tried alongside four
other officers for their roles in covering up Glover’s killing; only two of the
four officers were convicted. One of the convicted officers, Gregory McRae,
was convicted, inter alia, of depriving Glover’s descendants and survivors of
the right to access courts to seek legal redress for a harm, obstruction of a
federal investigation, and use of fire to commit a felony in connection with
his driving Glover’s body into a secluded area, burning Glover’s body, and
leaving his charred remains to be discovered two weeks later. Id. at 817–18.
The other officer, Travis McCabe, was convicted of obstruction of a federal
investigation by falsifying a police report, making false statements to the FBI
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concerning the report, and making false statements to the grand jury
concerning the report, after the government asserted at trial that he had
replaced a police report that was less favorable to Warren with one that
justified his shooting Glover. Id. at 819.
Warren argued that the district court erred in denying his motions to
sever. Id. at 822. We agreed, highlighting three forms of prejudice that
limiting instructions could not cure:
(1) the marginal relationship between the charge and the
evidence against Warren and that against his co-defendants;
(2) the significant difference between the simpleness of the
underlying charges—essentially use of excessive force—
against Warren, in the performance of his duty as a police
officer, and the crimes alleged against his co-defendants
involving dishonesty, corruption, obstruction and cover-up;
(3) the highly inflammatory and prejudicial nature of the
charges and evidence against the co-defendants, from which
Warren was disassociated, involving the burning Glover’s
body . . . , [a] racially motivated beating . . . ; and the alleged
alteration and distortion of a police investigative report
convince us that the district court abused its discretion.
Id. at 828. We also noted that both the nature of the evidence and the
government’s presentation made it appear as if Warren was part of a
conspiracy with his co-defendants to minimize the wrongfulness of his
conduct, even though the government did not connect him to the coverup or
charge any of the defendants with conspiracy. Id. at 826. Here, though,
Defendants were indicted and convicted on five overlapping conspiracy
counts. And relatedly, the differences between the charges and underlying
facts faced by Defendants are not as stark as they were in McRae.
In our case, the prejudice was not so compelling to overcome the
presumption favoring a joint trial as in Erwin or McRae. In neither case was
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reversal solely based on a spillover effect; the charges against the defendants
in both cases were markedly dissimilar from those of their respective co-
defendants. And notably, the defendants in both cases moved for a severance
below. In neither case did we rule that the district court erred in failing to
sever the defendant’s trial sua sponte.
Therefore, the failure to sever sua sponte here did not amount to plain
error.
VII.
Shows Urquidi argues that his conviction on Count I, Racketeering
Conspiracy, was subject to a fatal variance because his conviction was based
on evidence of multiple conspiracies despite the indictment alleging only one
underlying conspiracy.
“Fatal variance claims . . . are the right ‘not to be tried en masse for the
conglomeration of distinct and separate offenses committed by others.’”
United States v. Gallardo-Trapero, 185 F.3d 307, 313 (5th Cir. 1999) (quoting
Kotteakos v. United States, 328 U.S. 750, 775 (1946)). For this reason, a
material variance occurs when evidence presented at trial proved multiple
conspiracies, while the indictment alleged only a single conspiracy. United
States v. Morris, 46 F.3d 410, 414 (5th Cir. 1995). “The question of whether
the evidence establishes the existence of a single conspiracy or multiple
conspiracies is a question of fact for the jury.” United States v. Beacham, 774
F.3d 267, 273 (5th Cir. 2014). “We will affirm the jury’s finding that the
government proved a single conspiracy ‘unless the evidence and all
reasonable inferences, examined in the light most favorable to the
government, would preclude reasonable jurors from finding a single
conspiracy beyond a reasonable doubt.’” United States v. Simpson, 741 F.3d
539, 548 (5th Cir. 2014) (quoting United States v. Mitchell, 484 F.3d 762, 769
(5th Cir. 2007)). Such a variance only constitutes reversible error if it
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prejudices a defendant’s substantial rights. United States v. Richerson, 833
F.2d 1147, 1154–55 (5th Cir. 1987). Because Shows Urquidi raises this issue
for the first time on appeal, he must also satisfy the plain error standard. See
United States v. McCullough, 631 F.3d 783, 793 (5th Cir. 2011).
“The principal considerations in counting the number of conspiracies
are (1) the existence of a common goal; (2) the nature of the scheme; and (3)
the overlapping of the participants in the various dealings.” Simpson, 741
F.3d at 548.
First, the Government proved that there was a common goal. “This
court has broadly defined the criterion of a common goal in counting
conspiracies.” Mitchell, 484 F.3d at 770. Here, there was ample evidence of
Cartel members, including Shows Urquidi, carrying out the Cartel’s affairs
through a pattern of racketeering activity. That Cartel members also sought
personal gain while engaging in Cartel business does not split the conspiracy
as Shows Urquidi contends. See Beacham, 774 F.3d at 273 (“[I]n [Richerson,
833 F.2d at 1153], we concluded that a common goal was shown when alleged
co-conspirators all sought ‘personal gains’ through some participation in a
broad conspiracy scheme.”); United States v. Gaytan, 74 F.3d 545, 552 (5th
Cir. 1996) (“The common goal of the conspiracy was financial gain through
the importation and distribution of cocaine from El Paso to California.”);
Morris, 46 F.3d at 415 (“The common goal . . . was to derive personal gain
from the illicit business of buying and selling cocaine.”).
Second, the evidence at trial demonstrated that the nature of the
Cartel’s business supported the existence of a single conspiracy. “[I]n
considering the nature of the scheme, a single conspiracy ‘will be inferred
where the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect or to the overall success of the
venture.’” Beacham, 774 F.3d at 274 (quoting Mitchell, 484 F.3d at 770).
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Here, the evidence established that different individuals managed the
Cartel’s day-to-day operations in Juarez and carried out the orders of higher
ups; served as the Cartel’s enforcement arm and ran its local offices; loaded,
unloaded, guarded, and packaged the Cartel’s drugs; smuggled the Cartel’s
drugs into the United States for sale; acquired guns for the Cartel’s use;
smuggled drug proceeds to Mexico; and stored and counted those drug
proceeds. All of the activities listed above were done for the benefit of the
Cartel and interdependent. And each of these activities was essential for the
Cartel to successfully carry out its operations. See United States v. Rojas, 812
F.3d 382, 407 (5th Cir. 2016) (“Here, the plan and the path of travel for all
of these deals—transporting cocaine from Colombia to Central America by
plane and then to Mexico and ultimately the United States—demonstrate
that there was a common scheme.”).
Third, there was an adequate overlapping of participants throughout
the Cartel’s operations. “[T]here is no requirement that every member must
participate in every transaction to find a single conspiracy.” Beacham, 774
F.3d at 274 (quoting Mitchell, 484 F.3d at 770). “The more interconnected
the various relationships are, the more likely there is a single conspiracy.” Id.(quoting Mitchell, 484 F.3d at 770). “A single conspiracy exists where a ‘key
man’ is involved in and directs illegal activities, while various combinations
of other participants exert individual efforts toward a common goal.”
Richerson, 833 F.2d at 1154 (quoting United States v. Elam, 678 F.2d 1234,
1246 (5th Cir. 1982)). In this case, there were two “key men” running the
Sinaloa Cartel: El Chapo and El Mayo. They gave their orders to regional
bosses, such as German “Paisa” Olivares-Magana and Sergio “El Coma”
Garduno-Escobedo in Juarez. The regional bosses then disseminated the
orders they received from the Cartel’s leaders to lower-ranking Cartel
members, including Shows Urquidi. The trial evidence established that the
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Cartel’s hierarchy and membership was consistent enough to satisfy this
prong of the analysis.
Shows Urquidi cannot overcome our review for plain error; it is clear
to us that his conviction on Count I was based on a single conspiracy. 6
VIII.
Shows Urquidi challenges the jury instructions concerning how an
“enterprise” was defined for Count I, Racketeering Conspiracy.
Normally we review a challenge to jury instructions for an abuse of
discretion. United States v. Gaspar-Felipe, 4 F.4th 330, 339 (5th Cir. 2021).
But because Shows Urquidi did not raise an objection regarding this
instruction below, our review is for plain error. United States v. Harris, 104
F.3d 1465, 1471–72 (5th Cir. 1997). “Error in a charge is plain only when,
considering the entire charge and evidence presented against the defendant,
there is a likelihood of a grave miscarriage of justice.” United States v.
McClatchy, 249 F.3d 348, 357 (5th Cir. 2001) (quoting United States v. Sellers,
926 F.2d 410, 417 (5th Cir. 1991)). An inaccurate instruction “does not
amount to plain error ‘unless it could have meant the difference between
_____________________
6
Shows Urquidi also asserts that the district court erred in failing to instruct the
jury on multiple conspiracies. This issue is also reviewed for plain error because Shows
Urquidi did not raise it below. See McCullough, 631 F.3d at 793. “[A] multiple conspiracy
instruction ‘is generally required where the indictment charges several defendants with one
overall conspiracy, but the proof at trial indicates that a jury could reasonably conclude that
some of the defendants were only involved in separate conspiracies unrelated to the overall
conspiracy charge in the indictment.’” United States v. Greer, 939 F.2d 1076, 1088 (5th Cir.
1991) (quoting United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989)), abrogated in
part on other grounds, 968 F.2d 433 (5th Cir. 1992). Here, we have determined that a jury
could not reasonably conclude that Shows Urquidi was involved in a separate conspiracy,
making such an instruction unnecessary. See United States v. Devine, 934 F.2d 1325, 1342
(5th Cir. 1991) (“[W]e have already held that a failure to instruct on multiple conspiracies
generally does not constitute plain error.”).
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acquittal and conviction.’” Id. (quoting United States v. Anderson, 987 F.2d
251, 256 (5th Cir. 1993)). In reviewing jury instructions, “we examine
‘whether the charge, as a whole, was a correct statement of the law and
whether it clearly instructed the jurors as to the principles of the law
applicable to the factual issues confronting them.’” Gaspar-Felipe, 4 F.4th at
339 (quoting United States v. Daniel, 933 F.3d 370, 379 (5th Cir. 2019)).
A conviction for racketeering conspiracy under the RICO Act requires
the existence of an “enterprise,” which it defines as “a group of individuals
associated in fact.” 18 U.S.C. § 1961(4); id. § 1962(c). “[A]n association-in-
fact enterprise must have at least three structural features: a purpose,
relationships among those associated with the enterprise, and longevity
sufficient to permit these associates to pursue the enterprise’s purpose.”
Boyle v. United States, 556 U.S. 938, 946 (2009). A RICO “enterprise” is
distinct from a “pattern of racketeering activity” (another element of
racketeering conspiracy), which is defined under the RICO Act to include at
least two acts of “racketeering activity” (a series of criminal acts also defined
under RICO). 18 U.S.C. §§ 1961(5), (1); id. § 1962(c); United States v.
Turkette, 452 U.S. 576, 583 (1981). Each is a necessary element to establish a
racketeering conspiracy. Although the Supreme Court has acknowledged
that “the evidence used to prove the pattern of racketeering activity and the
evidence establishing an enterprise ‘may in particular cases coalesce,’” it has
stressed that “proof of one does not necessarily establish the other.” Boyle,
556 U.S. at 947 (quoting Turkette, 452 U.S. at 583).
Here, the relevant jury instructions read:
Although whether an enterprise existed is a distinct element
that must be proved by the government, it is not necessary to
find that the enterprise had some function wholly unrelated to
the racketeering activity. Common sense dictates that the
existence of an enterprise is oftentimes more readily proven by
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what it does rather than by an abstract analysis of its structure.
Thus, the evidence used to prove the pattern of racketeering
and the enterprise may overlap. Therefore, you may consider
proof of the racketeering acts to determine whether the
evidence establishes the existence of an enterprise, and further,
you may infer the existence of an enterprise from evidence of
the pattern of racketeering activity. 7
Shows Urquidi argues that these instructions were erroneous because they
did not require the Government to prove that an enterprise existed separately
from racketeering activity and conflated the proof required to prove each
element. He also contends that the jury was improperly instructed that it
could infer the existence of an enterprise from evidence of a pattern of
racketeering activity.
Shows Urquidi’s arguments are unavailing. The instructions make
clear that “whether an enterprise existed is a distinct element that must be
proved by the government.” The disputed language also aligns with the
Supreme Court’s reasoning in Turkette and Boyle: it is possible for the same
or similar pieces of evidence to be used to prove both elements. Turkette, 452
U.S. at 583; Boyle, 556 U.S. at 947. The instructions explain that “the
evidence used to prove the pattern of racketeering and the enterprise may
overlap”—coalescence is thus described as a possibility, not an inevitability.
Consequently, the instructions do not run afoul of the Supreme Court’s
guidance as they do not suggest that proof of an enterprise necessarily
establishes proof of a pattern of racketeering activity or vice-versa. Accord
United States v. Perholtz, 842 F.2d 343, 362–64 (D.C. Cir. 1988); United
States v. Pelullo, 964 F.2d 193, 211–12 (3d Cir. 1992); Ouwinga v. Benistar 419
_____________________
7
These instructions largely track the sample instructions used in Kevin F.
O’Malley et al., Fed. Jury. Prac. & Instr. Crim. Comp. Handbook
§ 32:5 (June 2022 update).
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Plan Servs., Inc., 694 F.3d 783, 793–95 (6th Cir. 2012). These instructions
were thus not plainly erroneous.
IX.
Iglesias-Villegas argues that the $100,000 fine he received was
unreasonable.
We review the reasonableness of a fine for an abuse of discretion.
United States v. Pacheco-Alvarado, 782 F.3d 213, 220 (5th Cir. 2015). Under
this standard, “a district court’s interpretation or application of
the . . . Guidelines is reviewed de novo, and its factual findings . . . are
reviewed for clear error.” Id. (quoting United States v. Cisneros–Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008)). “A factual finding is not clearly erroneous as
long as it is plausible in light of the record as a whole.” Id. (quoting United
States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005)).
Here, the PSR calculated a fine range of $25,000 to $10,000,000 as
per the Sentencing Guidelines. While the PSR acknowledged Iglesias-
Villegas’s “indigent status” and that it “appears he may not have the ability
to pay a fine” within the Guidelines range, it suggested that the district court
“may consider imposing a minimal fine” because he “will have ample
opportunity to participate in the Bureau of Prison’s Inmate Financial
Responsibility Program, which will allow him the opportunity to make
monthly payments toward a minimal fine or any other court cost, based on
his institutional earnings.” The district court adopted the PSR’s findings and
imposed a $100,000 fine.
Iglesias-Villegas contends that the court abused its discretion because
it disregarded the PSR’s determination that he was unable to pay a fine and
imposed a fine regardless. He asserts that his case is like United States v. Fair,
979 F.2d 1037, 1040–42 (5th Cir. 1992), where we reversed the district
court’s imposition of a fine. There, the district court adopted the PSR’s
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findings and recommendations; specifically, the PSR recommended against
imposing a fine because the defendant had no assets that could be liquidated,
and it did not appear that he would “have the means to pay a fine on an
installment basis after a lengthy period of incarceration.” Id. at 1040. The
Fair Court rejected the fine imposed by the district court because “specific
findings are necessary if the court adopts a PSR’s findings, but then decides
to depart from the PSR’s recommendation on fines or cost of incarceration.”
Id. at 1041. In Fair, the district court failed to provide its own findings—
separate from those of the PSR—when it chose to depart from the PSR’s
recommendation. See id. at 1042. In our case, though, the PSR found that
Iglesias-Villegas could contribute to a court-imposed fine through his prison
earnings. The record thus supports the district court’s finding that Iglesias-
Villegas can pay a fine. This finding was therefore not clearly erroneous, and
the district court did not abuse its discretion.
X.
The parties agree that the sentences imposed for both Defendants’
convictions on Counts IV and V and for Iglesias-Villegas’s convictions on
Counts VI, VIII, and X exceed their respective statutory maxima and should
be corrected.
“[W]e review de novo a sentence that allegedly exceeds the statutory
maximum term.” United States v. Ferguson, 369 F.3d 847, 849 (5th Cir. 2004)
(per curiam).
The maximum term of imprisonment that may be imposed for either
Count IV—Conspiracy to Launder Monetary Instruments or Count V—
Conspiracy to Possess Firearms in Furtherance of any Crime of Violence or
Drug Trafficking Crime is 20 years. 18 U.S.C. §§ 1956(a)(2), 924o. The
maximum term of imprisonment that may be imposed for Counts VI, VIII, or
X—all VICAR convictions—is 10 years. Id. § 1959(a)(5). Nevertheless, both
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Defendants were sentenced to concurrent life terms of imprisonment on
Counts IV and V, and Iglesias-Villegas also received concurrent life
sentences for Counts VI, VIII, and X. These sentences all exceed their
respective statutory maxima. Therefore, the life sentences imposed for
Counts IV, V, VI, VIII, and X are vacated, and the case is remanded for
resentencing on those counts only. 8
XI.
Defendants’ convictions are AFFIRMED. We VACATE the
sentences of Shows Urquidi for Counts IV and V and Iglesias-Villegas for
Counts IV, V, VI, VIII, and X and REMAND to the district court for
resentencing that is consistent with the reasoning in Part X of this opinion.
_____________________
8
The Government argues that we need not remand these counts for resentencing,
and we may instead reform the sentence on each count according to its respective statutory
maximum. See 28 U.S.C. § 2106. We decline to do so because “[t]he imposition of life
sentences for [these counts] comports with the district court’s oral pronouncement of the
sentences and are not mere ‘clerical errors’ subject to reformation . . . .” United States v.
Velasquez, 710 F. App’x 189, 192 (5th Cir. 2017) (per curiam).
38