July 18, 2019

Tenth Circuit: Gang Can Meet RICO’s Interstate Commerce Element if Larger Encompassing Gang Trafficks Drugs

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia on Tuesday, July 14, 2015.

Defendants Pablo Garcia and Gonzalo Ramirez were members of the Diablos Viejos (DV) subset of the Norteños gang in Dodge City, Kansas. Garcia and Ramirez participated in several instances of gang violence, including a shooting at the Hernandez house involving Defendant Ramirez, a home invasion of a Guatemalan immigrant involving both Garcia and Ramirez, and a shooting of rival Sureños gang members in which Garcia shot and killed one man. Defendants, along with 21 others affiliated with the Norteños, were indicted in the U.S. District Court for the District of Kansas. Defendants were charged with (1) a conspiracy to violate RICO; (2) four VICAR offenses and discharge of a firearm in furtherance of a crime of violence; and (3) two VICAR offenses and brandishing of a firearm in furtherance of a crime of violence. In addition, Ramirez was charged with three VICAR offenses and discharge of a firearm in furtherance of a crime of violence. Twenty of the other defendants pleaded guilty and one was dismissed, leaving Ramirez and Garcia to stand trial. Defendants were found guilty by a jury on all counts. Ramirez was sentenced to life imprisonment plus 57 years, and Garcia was sentenced to live imprisonment plus 32 years.

Defendants appealed, arguing several points of error: (1) a Brady violation due to the government’s failure to disclose promises made to a key cooperating witness; (2) a Napue violation based on the government’s false trial evidence concerning the same promises to the cooperating witness; (3) an incorrect jury instruction on RICO elements; (4) unconstitutional application of VICAR because their crimes did not affect interstate commerce, and (5) a Confrontation Clause violation based on erroneously admitted hearsay testimony by an expert witness.

The Tenth Circuit first addressed Defendants’ claims of a Brady violation. The witness in question, Worthey, was also a DV member who was present during the shooting. The government disclosed several meetings with Worthey but failed to disclose two meetings, during one of which he was told that his cooperation in an unrelated state case would influence the government to recommend a lower sentence in the federal case. The government falsely stated that Worthey received nothing in exchange for his testimony, but later conceded the sentence reduction. The Tenth Circuit noted that the government conceded the first two prongs of a Brady evaluation — that the government suppressed evidence favorable to defendant — but disputed the third prong — the evidence’s materiality. Evaluating Worthey’s testimony and its significance, the Tenth Circuit found that although Worthey was a key witness, Defendants vigorously impeached him, including by admitting evidence of Worthey’s other meetings with the government and his testimony in exchange for sentence reductions. The Tenth Circuit found that although the government’s concealment of the meetings was “at best, . . . the result of gross incompetence,” the nondisclosure was immaterial.

Next, the Tenth Circuit evaluated Defendants’ Napue claim, premised on the same nondisclosure. The Tenth Circuit noted that the standard for a Brady claim is lower than that for Napue, since Napue requires intentional concealment. The Tenth Circuit found that Defendants failed to establish any elements of a Napue claim, finding that the district court could reasonably have accepted that the “imprecise questioning” of defense counsel could have led a police detective to misunderstand the question regarding Worthey’s interviews, and that it was reasonable that Worthey could have forgotten to mention the recorded meetings with the government. The Tenth Circuit found it illogical to presume Worthey would have intentionally failed to disclose two meetings when he disclosed others that were equally damaging to his credibility.

The defendants next argued that jury was improperly instructed on the evidence necessary to meet RICO’s interstate commerce requirement. Defendants argued that more than a minimal effect on interstate commerce was necessary to support the RICO charges, but the Tenth Circuit disagreed, finding plenty of precedent that a minimal effect of interstate commerce is sufficient. Defendants also argued that the DVs did not directly engage in economic activity. The Tenth Circuit, however, found ample evidence that the Norteños engaged in drug trafficking, including sending money to California for drug sales and selling drugs imported from California, so it found no error in the RICO instruction. The VICAR claims were premised on the interstate commerce requirement as well, so the Tenth Circuit rejected them for much the same reason.

Finally, the Tenth Circuit addressed the Confrontation Clause issue. Defendants asserted that the testimony of gang expert Shane Webb improperly “parroted” testimonial hearsay in violation of their Confrontation Clause rights. The Tenth Circuit evaluated Webb’s challenged testimony and agreed that some of the testimony was “quintessential parroting.” However, because the evidence was cumulative, the Tenth Circuit found the testimony harmless beyond a reasonable doubt.

Defendants’ convictions were affirmed.

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