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I.STATEMENT OF JURISDICTION

A. Basis for Subject Matter Jurisdiction in the District Court

Following a three-­‐‑week trial, the jury found Appellant Hector

Fernandez guilty of participating in a Racketeer Influenced and Corrupt

Organization Act (“RICO”) conspiracy on October 2, 2013. [ER47; CR1434,

1439.]1 Mr. Fernandez appeals the Judgment and sentence imposed on

October 24, 2013, by the Honorable Irma E. Gonzalez. [ER48; CR1587.] The

district court has original jurisdiction over criminal offenses against the

United States pursuant to 18 U.S.C. § 3231.

B. Basis for Jurisdiction in the Court of Appeals.

This Court has jurisdiction to review any final decisions of a district

court entered within the Ninth Circuit’s geographical jurisdiction

pursuant to 28 U.S.C. § 1291 and § 1294(1). The Southern District of

1“CR” refers to the Clerk'ʹs Record (i.e., district court docket entries) of thecase. “ER” refers to the Appellant’s Excerpts of Record. E.g., [Excerpt pagenumber; Clerk’s Docket number: page number(s).] The Excerpt pagenumbers are located in the bottom right side of the page.

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California is within the Ninth Circuit’s geographical jurisdiction. 28

U.S.C. §§ 41, 84.

C. Notice of the Appeal was Timely Filed

The Judgment was entered on October 28, 2013. [ER48; CR1587.]

The Notice of Appeal was filed on October 24, 2013, within the ten-­‐‑day

period outlined in Rule 4(b) of the Federal Rules of Appellate Procedure.

[ER1; CR1571.]

D. The Judgment is Appealable

A Judgment is a final decision subject to appeal. 28 U.S.C. § 1291.

A defendant may also seek appellate review of “an otherwise final

sentence” imposed by the district court. 18 U.S.C. § 3742(a).

E. Bail Status

Mr. Fernandez is in the custody of the Bureau of Prisons at USP

Canaan where he is serving a 151-­‐‑month custodial sentence. His

scheduled release date is April 26, 2024.

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II.ISSUES PRESENTED FOR REVIEW

A. WHETHER SENTENCING ERRORS PREJUDICED MR. FERNANDEZBECAUSE NEITHER THE JURY NOR THE JUDGE FOUND THE OVERTACTS BEYOND A REASONABLE DOUBT.

B. WHETHER THE DISTRICT COURT ERRED IN PERMITTINGHEARSAY STATEMENTS MADE BY THE CONFIDENTIALINFORMANT.

C. WHETHER THE DISTRICT COURT IMPROPERLY ADMITTEDSTATEMENTS MADE BY KEY CONFIDENTIAL INFORMANTSWITHOUT THE OPPORTUNITY FOR CONFRONTATION.

D. WHETHER THE GOVERNMENT INTENTIONALLY PREJUDICEDTHE JURY WITH RENE “BOXER” ENRIQUEZ’ TESTIMONY.

E. WHETHER THE GOVERNMENT’S CLOSING ARGUMENTINFLAMED THE PASSIONS OF THE JURY AND CAUSED PREJUDICE.

F. WHETHER THE GOVERNMENT PRESENTED INSUFFICIENTEVIDENCE OF THE RICO CONSPIRACY.

G. WHETHER THE COURT’S DENIAL OF SEVERANCE DEPRIVEDMR. FERNANDEZ OF A FAIR TRIAL.

H. WHETHER THE DISTRICT COURT ERRED IN DENYING MR.FERNANDEZ’ PROPOSED INSTRUCTIONS.

I. WHETHER THE CUMULATIVE ERRORS IN THIS CASE DEPRIVEDMR. FERNANDEZ OF A FAIR TRIAL.

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III.STATEMENT OF THE CASE

Investigation

The government’s 18-­‐‑month investigation of four criminal street

gangs in North County San Diego with alleged ties to the Mexican Mafia

(“eMe”) began in the summer of 2010. [ER182; CR1089:11, 78.] The only

“named” member of eMe indicted in this case, Rudy Espudo, allegedly

coordinated racketeering activities of four targeted gangs: the Varrio

Fallbrook Locos (“VFL”), Varrio San Marcos (“VSM”), the Diablos, and the

West Side Gang (“WSG”). [ER154,183; CR1234, CR1089:12.]

Indictments

The government indicted Mr. Fernandez in a RICO conspiracy on

January 19, 2012. 18 U.S.C. §§ 1962(c), (d), 1963, [CR1.] The First

Superseding Indictment added two substantive counts against Mr.

Fernandez on August 2, 2012. [CR627.] Finally, the government added one

additional substantive count against Mr. Fernandez and renumbered the

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overt acts charged in the Second Superseding Indictment on June 6, 2013.

[ER77; CR1115.]

Trial

The Government’s Case

The government’s theory of the case was “that the Mexican Mafia

doesn’t go by the name Mexican Mafia out on the Street. They go by

claiming the gangs that are part of the Mexican Mafia.” [ER426; CR1683:6-­‐‑

7.] Affiliating with the Diablos meant “claiming” eMe. Law enforcement

witnesses explained that Mr. Fernandez identified himself verbally and

visually with tattoos as a Diablos gang member. [ER431,441; CR1684:130;

CR1688:232.]

“eMe Expert” and Ruthless Murderer Rene “Boxer” Enriquez

The defense vigorously challenged the government’s “expert” eMe

witnesses, Rene “Boxer” Enriquez, and requested a Daubert hearing.2 The

defense moved to exclude Boxer’s testimony under Rule 403 of the Federal

2Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592-­‐‑593 (1993).

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Rule of Evidence. [ER191; CR1670:21.] The trial defendants were not eMe

members or convicted murderers, and Boxer knew nothing about the facts

of this case. [ER191; CR 1670:21-­‐‑22.]

The government “needed” Boxer because, “he is the one individual

who provides an overview of the entire organization,” although “Enriquez

doesn’t know a thing about [the trial defendants’] actions.” [ER192;

CR1670:22.] However, Boxer provided the names of two other eMe

experts: Robert Walker from North Carolina and Richard Valdemar, who

posed none of the risks of prejudice that accompanied Boxer’s testimony.3

[ER256; CR1677:193-­‐‑194.]

Boxer’s personal knowledge was dated and prejudicial:

We’re talking 30 years ago, where we could stab inmates andkill inmates and the CDC would take the body or take theindividual and recover the knife, and then you’d resumeactivities. . . . you could do two, three hits a day and then go

3 For background on Robert Walker, see: http://illinois.src.eve-­‐‑ex.com/index.php?option=com_content&view=article&id=62&Itemid=54(last visited Aug. 20, 2014); and Richard Valdemar, see:http://www.linkedin.com/pub/richard-­‐‑valdemar/18/aaa/2b2 (last visitedAug. 20, 2014).

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back out to the yard that afternoon.

[ER222; CR 1677:43-­‐‑44.] At the time Boxer was street gang member for

Arta, eMe had not started extorting the street gangs. [ER255; CR1677:186.]

After dropping out of eMe in 2002, Boxer worked as a paid contractor for a

variety of government agencies. [ER162; CR1677:81-­‐‑82.]

The prosecutor promised during motions in limine that Boxer:

will offer an opinion as to how [eMe] operated during the timeperiod at issue in this Indictment. . . .

He was at the highest echelon within [eMe] for a couple ofdecades and . . . continued to keep up his knowledge . . . byreviewing calls, prison-­‐‑visit videos of associates and validatedmembers, facilitators, other gang members within [eMe] overthe years. . . .

[ER187; CR1670:8-­‐‑9.] The prosecutor reiterated that, “all Rene Enriquez is

doing is describing this organization in the basic principles.” [ER121;

CR1670:31.]

The district court recognized that the defendants were not members

or associates of eMe, yet worried that Boxer would testify that, “[t]he

Mexican Mafia is based on terror and murder. Collectively, they have over

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a thousand murders. The Mexican Mafia kills people. I think there are

other – I mean, is that the way he’s going to testify?” [ER186; CR1670:6, 17.]

The prosecutor responded: “If it has to be that the person is lying

cold and dead on the floor, no, that’s not here.” [ER189; CR1670:17-­‐‑18.]

However, the Indictment included attempted murder, attempted

kidnapping, robbery, assault with a miniature baseball bat, which were all

forms of “terror.” [ER189; CR1670:17-­‐‑18.]

The district court denied a Daubert hearing and ruled that Boxer

qualified as an eMe expert who could testify about how eMe is organized

and how it operates. [ER193; CR1670:29, 33.]

Predictably, the prosecutor opened the door to violence by asking the

jurors: “[C]ould you tell the jurors what happened the first day you were at

DVI [in 1983 or 1984]?” [ER217; CR1677:38-­‐‑39.] Boxer replied:

Roy Boy . . . hands me a knife, a chrome, made from a paintroller, with a cloth handle tied onto it, sharpened to a point,also known as a shank . . . He says, he’s going to hold him andyou’re going to stab him, stab him as many times as you canbefore they shoot. I said, okay. . . . Puppet walked right up tohim and bear-­‐‑hugged him, and I started stabbing him.

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Q. [By the prosecutor]: What happened after you startedstabbing him?

I stabbed him until the handle failed. . . . I had stabbed himseven, ten times, or so. . . . I took off my beanie, took off mygloves, and I got away with it.

[ER146; CR1677:40-­‐‑41.]

The gruesome details of Boxer’s past––as opposed to the structure of

eMe––filled an entire day of trial. As a made member of eMe, Boxer

possessed the power to “order hits.” [ER224; CR 1677:53, 55.] Once

paroled, Boxer set about terrorizing the community: “I organized a crew . .

. and we set about robbing drug connections in attempting, in an attempt to

extort them all. . . . to instill terror and fear in them.” [ER227; CR 1677:60.]

Boxer broke all of the rules, emphasizing, “this is not the Cub Scouts. This

is the Mob. This is a modern-­‐‑day murder gang. These are killers.” [ER228;

CR1677:62.]

The prosecutor walked Boxer through his other eMe “hits”:

Q. Did you engage in any other acts besides extorting or [sic]drug dealers?

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A. Yes.Q. What did you do?A. I did some hits for the organization as well.Q. And by doing some hits, what do you mean?A. I killed people.Q. Who was the first person that you [sic] involved in killingwhen you were out as a Member?A. Mexican Mafia Member David Gallegos, G-­‐‑A-­‐‑L-­‐‑L-­‐‑E-­‐‑G-­‐‑O-­‐‑S.Q. What was your role in Mr. Gallegos’ Death?A. I shot him in the head multiple times.

[ER229; CR1677:63.] The prosecutor elicited details of the murder of eMe

member Roy Galvadon’s wife for stealing from his crew. [ER230;

CR1677:64-­‐‑66.] Boxer also stabbed eMe member Salvador Buenostro ”in

the attorney room during a legal visit.” [ER232; CR1677:66.]

With the door wide open, the defense cross-­‐‑examined Boxer on

additional details of his serial murders. [ER243; CR1677: 105, 107, 110, 112-­‐‑

113, 115, 117, 118, 148-­‐‑149.]

The jurors were afraid. The court excused Juror 31 near the start of

trial because he feared reprisals from gangs in San Marcos directed at his

family. [ER199; CR1676:91, 94-­‐‑106.] Well into trial, Juror 51 became fearful

because people in the audience were texting, and Juror 13 became paranoid

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that someone (one of the Marshals) seemed to be recording the

proceedings. [ER342; CR1686:143.] The court refused to voir dire these

jurors about their ability to fair and impartial. [ER343; CR1686:144-­‐‑145.]

The “Missing” Confidential Informants

The defense vehemently argued that the government had to call its

leading informant, with the initials of HC (also known as “Troy”), before

playing recordings of his factual assertions.4 The prosecutor stated: “If any

counsel wishes to call any of these informants, they’re obviously welcome

to do so. We’ll facilitate. They can call them whenever they want.”

[ER404; CR1682:21.] The government denied that this was improper

burden shifting. [ER507; CR1703:4.]

Counsel repeatedly objected to the admission of recordings involving

the CIs on the grounds of confrontation and hearsay. [ER288; CR1673:6-­‐‑7,

10.] The government never provided any evidence that any CI would not

4 The government relied exclusively on recordings and testimony from lawenforcement witnesses rather than testimony for several informants, whowill be identified in this Brief by their initials. [ER157; CR1442.]

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assert the privileged if subpoenaed by the defense, and were therefore

“available” to testify. The defense objected to this strategic choice by the

government. [ER500; CR1702:29, 73.] However, the district court denied

the motions to exclude the recordings by the CIs that never testified.

[ER291; CR1673:9.]

Defense counsel emphasized the government informants’ Fifth

Amendment privilege applied unless the government called them as

witnesses. [ER508; CR1703:7.] The court echoed these concerns:

So I don’t’ think that you’re really correct, Mr. Sheppard, insaying that they could have subpoenaed him, they [sic] hewouldn’t have taken the Fifth, and he probably would have,. . . and we would have had to sit here and go through thecross-­‐‑examination outside the presence of the jury.

[ER509; CR1703:10-­‐‑11.] The court overruled the objections by the defense

despite the lack of evidence of unavailability. [ER512; CR1703:51-­‐‑53, 55.]

The district court permitted the government to argue about the

ability of the defense to subpoena witnesses, notwithstanding the

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likelihood of Fifth Amendment invocations.5 [ER509; CR1703:10-­‐‑11, 50-­‐‑51,

55.] The prosecutor argued during rebuttal:

You didn’t hear from this Troy person. . . . And violating mySixth Amendment right to confrontation. Hector, poor HectorGarcia’s Sixth Amendment right to confrontation.

[T]he government has the burden of proof to prove thesecharges beyond a reasonable doubt. . . . But the power tosubpoena witnesses lies on both sides of the courtroom. . . .They could have subpoenaed Troy, [HC], as well.

[ER522; CR1703:106.] The defense objected.

HC never testified, yet he provided a significant portion of the

evidence introduced against Mr. Fernandez. This evidence included the

alleged methamphetamine transaction on June 9, 2011 (Count 10 and Overt

Act 183); the heroin sale on May 3, 2011 (Overt Act 144); and the extortion

meeting at Denny’s on April 21, 2011 (Overt Acts 114 through 116).

HC had an extensive criminal record, numerous arrests and

convictions for being under the influence of narcotics, gang ties, and had

5 This exact scenario played out with cooperator IM when he invoked hisright against self-­‐‑incrimination, rather than describe his gang-­‐‑relatedtattoos. [ER257; CR1677:210, 215-­‐‑216.]

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been “terminated [as an FBI informant] due to lack of productivity and

control.” [ER304; CR1673:43-­‐‑45.] In 2013, HC accumulated four separate

drug charges in a matter of weeks. [ER305; CR1673:44-­‐‑45.]

Defense counsel proposed an instruction to address the government’s

failure to call HC to testify, but the government argued against this

instruction because the informant never testified. [ER458; CR1698:254,

257.] In addition, Mr. Fernandez’ First Proposed Instruction stated that a

defendant “can never be convicted of conspiring with a government agent

or informant.” [ER163; CR1344-­‐‑2.] The district court also denied this

instruction. [ER452; CR1698:248.]

Extortion Meeting (Overt Acts 111, 112, 113 on April 20-­‐‑21, 2011)

The government’s Trial Brief described the relationship between the

Mexican Mafia and the “tax” payments made by street gangs.

The Mexican Mafia requires street gangs to pay a “tribute” or a“tax. . . on a regular basis. . . . If a gang pays the tax, theMexican Mafia permits gang members to exert influence over,and to traffic in, narcotics in their neighborhoods andterritories. If a gang fails to pay the tax . . . , the Mexican Mafiawill place a “green light” on the members of the gang [which]

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authorizes Mexican Mafia members and associates, as well asrival gangs, to assault and/or murder members of the gang,both in the community and within the penal system, until thegang pays the tax.

[ER156; CR1234:5-­‐‑6.] Boxer simplified this concept: “you pay or you die.”

[ER237; CR1677:86-­‐‑90.] “The … Mexican Mafia is very quick to kill people,

very quick to order their stabbings, very quick to order green lights on

them, and that’s how it utilizes the violence to bring about this

acquiescence from gangs to pay their money.” [ER237; CR1677:89-­‐‑90.] A

“green light” usually results from a “failure to pay taxes.” [ER242;

CR1677:95.] In Boxer’s opinion, gangs did not willfully pay eMe taxes

because, “[w]ho earns a paycheck and gives a portion to, of their paycheck,

their hard-­‐‑earned money, to an individual who’s demanding money from

them?” [ER253; CR1677:165.] Boxer described tax payments as “extortion”

and “not a tribute.” [ER254; CR1677:177.]

The gangs were desperate to pay the tax because they were afraid of

eMe. Detective Lopez overheard wiretap conversations describing this

fear. [ER265; CR1672:80.] Cooperating defendant EC testified, “we had,

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we had to pay taxes and do whatever, whatever we could come up with

money.” [ER266,577; CR1672:117; CR1720:43.] Rudy Espudo, or “Crazy,”

put a “green light” on cooperator EC because the WSG owed tax money,

which resulted in his assault. [ER579; CR1720:72, 76, 96.] Jesus Barragan

told EC, “we need to fucking come up with some money, I don’t care who

you burn.” [ER581; CR1720:106-­‐‑107.]

Cooperator AL testified that he grew up “gang banging,” or

fighting other gangs, and selling drugs for the Diablos. [ER277;

CR1335:38-­‐‑39.] The Diablos only started paying taxes when Espudo got

out of prison in June of 2011, and Espudo was the only one making

money from these taxes. [ER279; CR1335:49, 109.] AL had to forfeit his

stash of drugs to Espudo to resign as the tax collector, which led Espudo

to challenge him to a knife fight. [ER280; CR1335:67, 95.] AL struggled to

collect taxes from his own gang because not everyone wanted to pay.

[ER281; CR1335:86.] Espudo terrified AL terrified because he was not the

type of person you could say “no” to. [ER282; CR1335:93, 95, 101.]

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Mr. Fernandez’ Tenth Proposed Instruction stated that a victim of

extortion is not a participant in a RICO conspiracy, and the Eleventh

Proposed Instruction stated that a defendant’s participation had to be

“willful.” [ER172; CR1361.] The district court denied these instructions.

[ER466; CR1698:262.]

Overt Acts 114 to 116 concerned meetings between the VSM gang

and the Diablos regarding tax payments. Wiretaps of calls between VSM

members HC and Ivan Dunayevich, who pleaded guilty, discussed

arranging a meeting with Mr. Fernandez on April 21, 2011. [ER294; CR

1673:24.]

Recordings of HC’s statement with Dunayevich asserted:

[T]he homie from Diablos have hit me up and shit, and theypretty much told me like, hey, they need to get at you.

[ER295, 570; CR1673:26.] Officer Lopez doubled-­‐‑up on the hearsay:

On April 20th, [HC] contacted me and told me that he had beencontacted by Hector Fernandez, “Evil,” from the Diablos Gangbecause the Diablos Gang wanted to arrange a meeting withmembers of VSM’s, specifically himself and the shot caller, atthat time, for Varrio San Marcos, Ivan Dunayevich, “Wolfie.”

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Emphasis added. [ER294; CR1673:24.] The district court overruled

objections for a lack of foundation, hearsay, confrontation, and Rules 403,

701, and 702. [ER296; CR1673:27, 53, 87.]

Counsel for Jeremiah Figueroa––who was not involved in the

Denny’s meeting––elicited statements from Officer Lopez claiming that HC

said Mr. Fernandez wanted to set up the meeting. [ER309; CR1673:54-­‐‑55.]

The court sustained these objections. [ER309; CR1673:54-­‐‑55.]

HC secretly recorded the Denny’s meeting between Mr. Fernandez,

Dunayevich, and Miguel Grado. [ER297; CR1673:28, 32, 63.] Grado and

Dunayevich did most of the talking, and Grado said the “carnal,” or Rudy

Espudo, was getting out of custody and they needed to “touch him up,” or

pay him tax money. [ER299; CR1673:36-­‐‑37.] Mr. Fernandez, in reference to

someone known as “Little Koala,” suggested they “touch him up, dude,”

which the officer interpreted to mean that they should rob Louis Blanco for

selling heroin without paying taxes. [ER299; CR1673:36-­‐‑39.]

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Heroin Sale to HC (Overt Act 144 on May 3, 2011)

The government called law enforcement witnesses about HC’s

alleged purchase of heroin from Mr. Fernandez on May 3, 2011.

[ER254,410; CR1685:31; CR1682:178.] HC placed a recorded phone call

and also wore a body wire for the meeting. [ER327; CR1685:33.] Agents

recovered $40.00 worth of heroin from HC. [ER328; CR1685:42.] The

government never introduced evidence connecting this transaction to

eMe or tax payments. Mr. Fernandez’ Fourth Proposed Instruction

addressed this heroin transaction, which was denied by the district court.

[ER166,454; CR1344-­‐‑2; CR1698:250.]

Methamphetamine Sale & 18 U.S.C. § 924(c) (Count 10 and Overt Act 183on June 8 -­‐‑ 9, 2011, and Count 18)

Agent Zeman asserted that Mr. Fernandez was present for a

methamphetamine transaction between Jose Ortega and Miguel Grado at

133 East Grand Street on June 9, 2011. [ER268,353; CR1674:129; CR1695:30.]

This was based on audio and video recordings made by HC. [ER269;

CR1674:130-­‐‑133.] Cooperator AL identified the individuals in the photos

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and the video, but he did not identify Mr. Fernandez. [ER273; CR1674:134,

150.] Likewise, Agent Zeman admitted Mr. Fernandez could not be

identified visually. [ER354; CR1695:31, 39.]

Agent Zeman “identified” Mr. Fernandez’ voice on the body

recording by HC. [ER353; CR1695:30.] Specifically, he identified the

phrases, “[w]hat’s up man?,” and, “huh.” [ER357; CR1695:40.] Agent

Zeman conceded that numerous individuals repeatedly used these phrases

throughout the investigation, and he was not trained in voice recognition.

[ER356; CR1695:39-­‐‑41.]

Counsel objected to the court’s refusal to strike Agent Zeman’s voice

identification of Mr. Fernandez on grounds of hearsay and confrontation

because the informant never testified, and the district court overruled the

objections. [ER268,216; CR1674:129-­‐‑130, 151; CR1673:6-­‐‑7, 10-­‐‑11.]

The firearm charge (Count 18) derived from the testimony that a

black handgun was observed at 133 East Grand on June 1, 2011, at the same

location Agent Zeman allegedly heard Mr. Fernandez’ voice on June 9,

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2011, as well as recorded statements by Mr. Fernandez discussing a “Glock,

a Glockine.” [ER345,355,411; CR1686:184, 194; CR1695:36; CR1682:180-­‐‑182.]

The government dismissed Count 10 against Mr. Fernandez. [ER446;

CR1698:124-­‐‑125.] The court dismissed Count 18 as to Hector Fernandez

pursuant to Rule 29 of the Federal Rules of Evidence:

I disagree with the government that a jury can find beyond areasonable doubt that on that date, in furtherance of the drugtransaction, that there was a firearm that was even present,much less possessed by Hector Fernandez on September [sic]18th.

[ER448; CR1698:133.]

Hidden Meadows Robbery (Overt Act 191 on June 21, 2011)

Several witnesses testified for the government about being robbed

and assaulted at the Hidden Valley Middle School (“HVMS”) on June 21,

2011. The assailants claimed to be “Diablos” and ordered everyone to

empty their pockets. The witnesses indicated that one of the Diablos was

doing all of the talking. [ER365; CR1695:100, 146-­‐‑147.]

Three witnesses testified that they were attacked at HVMS, but did

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not identify Mr. Fernandez as one of the assailants during photo line-­‐‑ups

conducted four months after the incident. [ER359; CR1695:55, 58-­‐‑59, 64, 66-­‐‑

67, 100-­‐‑101, 107-­‐‑109, 113, 173, 175, 177-­‐‑178, 184.] The primary victim of the

assault at HVMS participated in a photo line-­‐‑up on June 23, 2011, or

approximately two days after the robbery. [ER396,556; CR1695:203, 206,

209.] He observed the faces of all of his attackers but did not see Mr.

Fernandez. [ER401; CR1695:217-­‐‑218.]

The only witness that identified Mr. Fernandez at HVMS fled the

scene after the Diablos arrived. [ER371; CR1695:142.] She told the officers

that she did not see any of the attackers’ faces. [ER376; CR1695:150, 156.]

She discussed the robbery with her friends in the four months before she

participated in a photo line-­‐‑up. [ER378; CR1695:152.] She admitted she

lied to arresting officers to avoid having to testify, and allegedly told the

officers about this lie at the time of the photo line-­‐‑up. [ER378; CR1695:152-­‐‑

153, 155.]6 This witness identified two individuals as the one assailant that

6 Counsel moved to strike this witness’ testimony because she lied, told the

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did all of the talking. [ER372,540; CR1695:146-­‐‑148.] She admitted that she

heard “Diablos” during the attack and was frightened. [ER386;

CR1695:160-­‐‑161, 167.] Mr. Fernandez was the only person depicted in with

a visible “Diablos” tattoo. [ER385,541; CR1695:159.]

Detective Clark later testified about the reports regarding this female

witness. [ER436; CR1688:185.] He would have documented a witness

explaining that she had lied in a prior statement, but none of the witnesses

admitting to lying. [ER437; CR1688:187-­‐‑188.]

The government also introduced text messages and recordings

pertaining to Mr. Fernandez around the time of the HVMS incident. On an

intercepted call, he was breathing heavily and he mentioned street names

in the vicinity of HVMS. [ER405; CR1682:25-­‐‑26.] Texts from Mr.

Fernandez’ phone read, “thats the homies for you” and “I had a bad feeling

about that jale.” [ER407; CR1682:35.] Other comments included Mr.

Fernandez saying, “fucking jackasses try to, try to get at the ski mask way

officers about her lie, and the government never produced this report asrequired by Brady v. Maryland, 373 U.S. 83 (1963). [ER382; CR1695:156, 194.]

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and fucking everything went bad and shit, you know. . . . fucking yeah,

jeopardize this, not even giving a fuck about anybody else.” [ER501,585;

CR1702:39.]

Methamphetamine Purchase (Overt Act 202 on July 11, 2011)

Mr. Fernandez allegedly called Jesse Moreno about one-­‐‑half ounce of

methamphetamine, but then inquired about an “eight ball,” or one-­‐‑eighth

of an ounce of methamphetamine. [ER420,560; CR1630:36-­‐‑37, 48.] When

Moreno asked if Mr. Fernandez wanted to “push it” or “try it,” he said,

“try,” suggesting it was intended for personal use. [ER423,563; CR1630:49.]

The government did not introduce evidence that the transaction

actually occurred, and never explained how the purchase of

methamphetamine for personal use was tied to eMe. Mr. Fernandez’

Third Proposed Instruction addressed the purchase of narcotics for

personal use. [ER165; CR1344-­‐‑2.] The district court denied this instruction.

[ER454; CR1698:250.]

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Rule 29 and Renewal of Objections

The court allowed all defendants to join the objections and motions

made by one another throughout trial. [ER274; CR1674:141.] Counsel

renewed all hearsay, confrontation, severance, mistrial and Rule 29

objections and motions prior to and following the close of the

government’s case-­‐‑in-­‐‑chief, and after instructions were given. [ER443,468;

CR1698:16-­‐‑17, 91; CR1701:32, 53.]

The Government’s Closing and Rebuttal Arguments

The prosecutor’s closing argument emphasized sending a message to

these gangs:

But for these defendants, for what they did to the community in2010 and 2011, it’s finally the chance to stand up and say nomore. No more robbery. . . . No more committing extortion.No more beating the people of this community and firing gunsdown the street. No more. No more passing funds. No moremeeting up and coordinating who’s going to be able to tax whoin what territory, so that you can then coordinate who gets theguns . . . There’s just no more, and it’s the only reason we arehere today.

[ER476; CR1701:120.] The defense objected, citing United States v. Sanchez,

26

176 F.3d 1214 (9th Cir. 1999), but was overruled. [ER477; CR1701:121.]

This pattern was repeated:

That is the perk of being involved with this organization,witness intimidation, and again it’s time to say no more. . . .

No way. No way. Vista Detention Facility and Donovan StatePrison, he ran them both. No more. It is time to put an end tothat. . . .

Who are you with? Enough is enough. And when they did itand they stand up there and they go up and they check andsay, who are you with, where are you from, as if they have thatright. . . .

Because they think that the Pepperwood Apartment buildingbelongs to them, that it’s their piece of the pie. Enough isenough. No. The Pepperwood Apartments don’t belong to you.. . .

2010 and 2011, they affirmed their allegiance with the Diablosand the West Side and the Varrio Fallbrook Locos. . . . No more.. . .

[T]he Mexican Mafia is not just a group of a hundred or 150made members. . . . The extortion and the robbery, theshootings and the beatings, the dope that’s getting sold on thestreet is not being done and in no way was being done in thiscase hands-­‐‑on by Rudy Espudo. It was being done by them.Every single one of them. They either led or they went out anddid it themselves. But every single one of them is responsible,

27

every one of them, and it is time to say no more. . . .

Because the Mexican Mafia in Escondido is the West Side Gangand the Diablos. If there is no West Side Gang, if there is no DiablosGang going out and doing extortion and dealing drugs, there is noMexican Mafia. . . . No Diablos, no West Side, no Mexican Mafia onthe streets in that community. No robberies, no shootings, no methon behalf of that Enterprise without those two gangs. . . .

No Diablos, no West Side, no Mexican Mafia.

Emphasis added. [ER478; CR1701:140-­‐‑141, 146, 160, 162-­‐‑163, 168-­‐‑169, 178;

184-­‐‑185.]

The prosecutor’s message changed drastically overnight, however:

Mr. Sheppard: Your Honor, at the beginning of closingargument, the reference was made to the Mexican Mafia startedlong before this trial and will continue long after this trial. It’snot about that, nor is it about protecting society.

The Court: Well, you did say – I mean, I’m not concerned abouthow you started out. I think the objection was that at somepoint, you said to send a message, or something.

Mr. Sheppard: No. I think the objection was the reference to nomore. It was that no more days will pass without being heldresponsible for what happened. . . . [N]o one in thiscourtroom, during the course of this trial, could think that amessage, any argument that a message is being sent that anytype of verdict is going to protect society because, for some

28

reason, they’ll stop committing crime if they’re found guilty, orthat if they’re in prison . . . There is, there was no argumentmeant, there was no argument given to this jury about anythingother than no more time will pass without being heldresponsible. That is exactly what I said to this jury during myclosing argument, your Honor, exactly.

[ER494; CR1702:4-­‐‑5.] The court denied the motions for a mistrial. [ER495;

CR1702:5, 7-­‐‑8.]

The prosecutor argued: “Everybody gets a cut, from the gang

member on the street to the shot-­‐‑caller, to the llavero inside the jail or

inside the state prison, all the way up to the made member.” [ER480;

CR1701:145, 171.] The government never introduced evidence that Mr.

Fernandez received benefits from or paid money to eMe. However,

cooperator AL, one of Espudo’s tax collectors, said only Espudo received

tax money on the streets (as opposed to taxes collected in the prisons).

[ER286; CR1335:109.]

The prosecutor’s rebuttal argument shifted the blame on the defense

for trying to instill fear by cross-­‐‑examining the government’s “expert”

witness:

29

There was all this talk about Rene Enriquez. I mean, all theirstatements were littered with this guy in closing arguments . . .Yes, we brought out that he had been convicted multiple timesfor and he’d done crimes. . . . He was mentioned exactly onetime in my opening closing two days ago to talk about . . . thisstructure. That’s why he was here for the government, to giveyou an overview of this organization from the top down . . .And they [the defense] bring it up and blame us for instillingfear.

[ER519; CR1703:93-­‐‑94.]

Sentencing

At the sentencing hearing, Mr. Fernandez objected to the use of the

preponderance of evidence standard in finding the Overt Acts used to

enhance his sentence. [ER174,528; CR1506; CR1708:8.] He requested a base

offense level of 19 according to U.S. Sentencing Guidelines (“USSG”) §

2E1.1(a)(1). [ER174; CR1506.]

The government failed to draft a special verdict form for the RICO

conspiracy even though it drafted special verdict forms for substantive

counts. [ER504; CR1702:155-­‐‑156.] Mr. Fernandez’ Verdict reveals only that

he was “guilty of participating in the RICO conspiracy.” [ER47; CR1439.]

30

The government argued that the preponderance of the evidence

standard applied to determining the different forms of racketeering

activity. [ER535; CR1708:20.] The district court applied this reduced

standard to calculate Mr. Fernandez’ sentence, which resulted in an

Adjusted Offense Level of 29. [ER536; CR1562; CR1708:27, 31.]

Appeal

Mr. Fernandez filed a Notice of Appeal of the conviction and

sentence imposed on October 24, 2013. [ER48; CR1587.]

31

IV.SUMMARY OF THE ARGUMENT

The government introduced recorded hearsay statements, as

opposed to live testimony, for the primary confidential informant under

the guise of giving “context” to co-­‐‑conspirator statements. This tactic

deprived Mr. Fernandez of the opportunity to cross-­‐‑examine the primary

witness against him about factual assertions. The government

acknowledged the informant’s availability to testify, but insisted that the

defense subpoena this informant for the opportunity to cross-­‐‑examine the

informant.

The government’s tremendous efforts to secure the testimony of an

eMe “expert” for the stated purpose of describing how this organization

operated was a thinly-­‐‑veiled tactic to prejudice the jury with terrifying

details of Boxer’s past; however, the prosecutor argued that the defense

was to blame for instilling fear for cross-­‐‑examining Boxer on matters

elicited during direct examination. The government’s closing argument

32

implored the jurors to send a message and remove these defendants––and

therefore the eMe––from their communities.

The government provided insufficient evidence that Mr. Fernandez’

alleged crimes for the Diablos were tied to eMe. The district court erred

in refusing the motions for severance. The district court improperly

deprived Mr. Fernandez of instructions on his theory of defense. Finally,

the district court erred in applying the preponderance of the evidence

standard at sentencing to find the different objects of the RICO

conspiracy.

33

V.

ARGUMENT

A. SENTENCING ERRORS PREJUDICEDMR. FERNANDEZBECAUSE NEITHER THE JURY NOR THE JUDGE FOUND THEOVERT ACTS BEYOND A REASONABLE DOUBT.

1. Standard of Review.

This Court reviews the district court'ʹs interpretation and application

of the Sentencing Guidelines de novo. United States v. Crawford, 372 F.3d

1048, 1053 (9th Cir. 2004); United States v. Garcia, 323 F.3d 1161, 1164 (9th

Cir.), cert. denied, 540 U.S. 1062 (2003).” [W]hen the information sought in

the special verdict is relevant to the sentence to be imposed, it is the duty of

the Government to seek a special verdict and we will review the sentence

de novo.” United States v. Garcia, 37 F.3d 1359, 1369-­‐‑1370 (9th Cir. 1994)

(citations omitted).

2. The Government Argued for a Reduced Burden at SentencingAgainst the Holdings of its Own Cases.

When the verdict form does not establish which offenses were the

object of a multi-­‐‑object conspiracy, the defendant can only be sentenced as

though he was convicted of separate counts for each object offense

34

according to U.S.S.G. § 1B1.2(d) if the court––“were it siting as a trier of

fact”––would convict the defendant for conspiring to commit that object

offense. U.S.S.G. § 1B1.2, cmt., n. 4 (emphasis added). In other words,

either the jury or the court must find the object offenses beyond a

reasonable doubt; failing that, the generic base offense level for the

conspiracy must be used.

3. The Government Misapplied its Four-­‐‑Step Procedure.

The prosecutor argued:

Establishing how first you calculate what the base offense levelis and then who each independent act were to be establishedhas [sic] a separate count of conviction. That’s Posada-­‐‑Rios,which is a Fifth Circuit case.7 The second step is to establishany role-­‐‑related adjustments within those grouping levels.That’s the Toco case from the Sixth Circuit. The third step is togroup the conduct, and that’s under Nguyen, the EleventhCircuit case, and the fourth step is to calculate the overalloffense level.

[ER530; CR 1708:10-­‐‑11.] The government cited United States v. Nguyen, 255

7 Posada-­‐‑Rios did not discuss the standard of proof required for finding eachracketeering act. See United States v. Posada-­‐‑Rios, 158 F.3d 832, 880 (5th Cir.1998).

35

F.3d 1335 (11th Cir. 2001), but neglected to inform the court that Nguyen

requires finding the objects of a multi-­‐‑object conspiracy by proof beyond a

reasonable doubt. Id. at 1341-­‐‑1342.

The district court erroneously followed the government’s procedure

and improperly applied a reduced burden of proof. [ER531; CR1708:11.]

a) Step 1: Failure to Make Findings Beyond a ReasonableDoubt:

The Guidelines establish the following special rule for conspiracy

convictions:

Particular care must be taken in applying subsection (d)because there are cases in which the verdict or plea does notestablish which offense(s) was the object of the conspiracy. Insuch cases, subsection (d) should only be applied with respectto an object offense alleged in the conspiracy count if the court,were it sitting as a trier of fact, would convict the defendant ofconspiring to commit that object offense.

U.S.S.G. § 1B1.2, cmt. n. 4 (emphasis added).

The Eleventh Circuit––in a case cited by both the government and the

36

defense 8 ––vacated sentences where a preponderance of the evidence

standard was used to determine the overt acts underlying a RICO

conspiracy. Nguyen, supra, 255 F.3d at 1338-­‐‑1339, 1342.

Because the jury was not specifically polled on the predicateacts underlying the RICO conspiracy count, the jury’s verdictwas necessarily ambiguous as to which predicate actssupported the guilty verdicts on the conspiracy count. Thecourt was therefore required to determine the predicate actsunderlying each defendant’s conspiracy conviction using thereasonable doubt standard.

Id. at 1341-­‐‑1342; see also United States v. Fernandez, 388 F.3d 1199, 1243 (9th

Cir. 2004) (jury acquitted defendants of eMe RICO conspiracy of some

predicate acts, suggesting that a special verdict form was used); United

States v. Conley, 92 F.3d 157, 159, 168 (3d Cir. 1996) (§ 1B1.2(d) “requires the

sentencing court to determine beyond a reasonable doubt the objects of a

multi-­‐‑object conspiracy after a jury returns a general guilty verdict on the

conspiracy charge which does not specify the objectives of the

8 The government cited Nguyen orally and apparently in sentencingdocuments filed for other defendants in this case. [ER531; CR1708:11.] Thedefense cited Nguyen in its Sentencing Memorandum. [ER175; CR1506:2.]

37

conspiracy”); United States v. Pace, 981 F.2d 1123, 1128-­‐‑30 (10th Cir. 1992),

cert.denied, 507 U.S. 966 (1993) (court must impose sentence with lowest

offense level if general jury verdict fails to specify the object(s) of a

conspiracy); United States v. Owens, 904 F.2d 411 (8th Cir. 1990) (same with

a multi-­‐‑object conspiracy case).

At the sentencing hearing, the defense orally cited United States v.

Smith, 267 F.3d 1154 (D.C. Cir. 2001), which compared the interrelation of

U.S.S.G. §§ 2X1.1 and Application Note 4 of 2B1.2(d). Id. at 1159. The D. C.

Circuit held:

The District Court’s use of a preponderance standard to makethis finding was undoubtedly erroneous. The phrase sitting asa trier of fact in the Commentary to § 1B1.2(d) clearlycontemplates that when a court sets the basis for a conspiracyconviction, it will do so under a heightened burden of proof.

Id. at 1160; see also United States v. Macklin, 927 F.2d 1272, 1280 (2d. Cir.

1991), (distinguishing defendant’s cited cases with those interpreting

U.S.S.G. § 1B1.2, “which applies the higher standard of reasonable doubt to

a special class of conspiracy cases”).

38

In this case, the government noted, “a very clear guideline, an outline

for how RICO Guidelines are to be calculated,” but failed to apply the law

as described in Nguyen. [ER530; CR1708:10.] Contrary to the guidance in

the Commentary to U.S.S.G. § 1B1.2, as well as the Second (Macklin), Third

(Conley), Eighth (Owens), Tenth (Pace), Eleventh (Nguyen), and D.C. Circuits

(Smith), the government applied a preponderance of the evidence standard

to determining the acts making up the RICO conspiracy. [ER535;

CR1708:20.]

The government did not insist on––and the district court did not use–

–a special verdict form for the grouping categories identified at sentencing.

This Court noted, “when the information sought in the special verdict is

relevant to the sentence to be imposed [in a single conspiracy with more

than one object], it is the duty of the Government to seek a special verdict.”

United States v. Vasquez-­‐‑Velasco, 15 F.3d 833, 847, n. 11 (9th Cir. 1994).

The district court never made factual findings that any of the alleged

overt acts were proven beyond a reasonable doubt, and indicated that the

39

preponderance of the evidence standard would be used. [ER536;

CR1708:27.] The district court stated:

I’ve tried to read carefully the government’s submissions as to. . . how to calculate the RICO count, because, really, that’swhat’s driving the sentences in this case . . .

There’s no Ninth Circuit case on this point, but there are severalcircuits that do talk about they, the RICO predicate acts shouldbe grouped, and so, and there’s only this one case that you cite,Mr. Johnson.

[ER536; CR1708:27.] The district court’s erred by applying the wrong

standard of proof in Step 1, which led to improper grouping of these

objects of the conspiracy in Step 3.

b) Step 2: Applying Role-­‐‑Related Adjustments:

The court did not find that a role-­‐‑related adjustment was appropriate.

[ER537; CR1708:29.]

c) Step 3: Improper Use of Grouping Without Step 1:

The Eleventh Circuit explained the appropriate time to group the

conduct according to U.S.S.G. §§ 3D1.1 and 3D1.4:

Because the defendants objected to the application of the

40

preponderance standard, the court made findings using thereasonable doubt standard where it found the Government had metthe higher standard of proof.

Once the court had determined the predicate acts attributableto each defendant, it applied the so-­‐‑called grouping rules of §3D1.1 of the Guidelines [Step 3] to further enhance thedefendants’ offense levels.

Nguyen, 255 F.3d at 1338 (emphasis added).

In this case, the defense objected to the preponderance standard, but

the court failed to make findings using the proof beyond a reasonable

doubt standard for the objects of the conspiracy (i.e., assault, drug

trafficking, extortion, firearms offenses, and robbery). 9 The court

improperly skipped to the grouping step without having sufficiently

established the underlying groups from Step 1.

Without findings of the overt acts underlying the RICO by proof

beyond a reasonable doubt, the court must apply the generic base offense

9 Defense counsel pointed out that the prosecutors chose to not include aspecific heroin sale or robbery finding on the jury verdict form. [ER498;CR1702:18, 19.] The prosecutor and the court never revised the verdictforms prior to submitting the case to the jury.

41

level of 19 according to U.S.S.G. § 2E1.1 and Pace.10

d) Step 4: Calculate the Adjusted Offense Level:

The district court’s errors Step 1 compounded in Step 3 when the

court grouped the counts according to U.S.S.G. §§ 3D1.1 and 3D1.4. These

errors impacted the calculation of the overall offense level in Step 4,

resulting in a 10-­‐‑level increase in Mr. Fernandez’ Guidelines calculation.

4. The Court’s Sentencing Error Prejudiced Mr. Fernandez.

Evaluating prejudice asks, “whether he has demonstrated that his

sentence might likely have been different had the court used the correct

standard of proof.” Smith, supra, 267 F.3d at 1160. It is a denial of due

process of the Fifth Amendment if a jury is instructed that a defendant can

be found guilty by a mere preponderance of the evidence. Jackson v.

Virginia, 443 U.S. 307, 315, 320 at n. 14 (1979).

The prejudice to Mr. Fernandez was substantial. He was convicted in

10 Mr. Fernandez objects to any new factual findings for resentencingbecause the trial judge retired. See Smith, supra, 267 F.3d at 1163.

42

Count One of the RICO conspiracy with a generic base offense level of 19.

The district court erroneously found an adjusted offense level of 29 using

the preponderance standard.

B. THE DISTRICT COURT ERRED IN PERMITTING HEARSAYSTATEMENTS MADE BY THE CONFIDENTIAL INFORMANT.

1. Standard of Review.

Evidentiary rulings on exceptions to the hearsay rule are reviewed

for an abuse of discretion. United States v. Childs, 5 F.3d 1328, 1332 (9th Cir.

1993).

2. Admitting Recorded Statements of Confidential Informants,Violated the Rule Against Hearsay.

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” Fed. R. Evid. 801(c). Hearsay is inadmissible unless it

falls within an exception to the rule. Fed. R. Evid. 802. A statement is not

hearsay if it is offered against an opposing party and, “was made by the

party'ʹs coconspirator during and in furtherance of the conspiracy.” Fed. R.

Evid. 801(d)(2)(E). “A declarant is considered to be unavailable as a

43

witness if the declarant: (1) is exempted from testifying about the subject

matter of the declarant'ʹs statement because the court rules that a privilege

applies.” Fed. R. Evid. 804(a)(1).

3. The Exception Permitting Admission of Co-­‐‑conspiratorStatements Does Not Apply to Government Informants.

In United States v. Tille, 729 F.2d 615 (9th Cir. 1984), the government

introduced recordings made by a confidential informant under Rule

801(d)(2)(E). Id. at 618. The court noted that, “Laviola’s status as an

informant and not a conspirator is not relevant to the admissibility of

conspirators’ statements to him.” Id. at 620 (emphasis added). Admissible

conspirator statements must still meet confrontation requirements, which

require unavailability and indicia of reliability (before Crawford). Id. at 621.

However, the confrontation concerns were eliminated because the

informant testified. Id. at 620.

In United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981), a recording of

a phone conversation between the defendant and the informant was

introduced at trial; however, this cooperator “testified extensively at trial

44

as a government witness.” Id. at 1327 n. 1; 1337. The hearsay problem

was addressed as follows:

The statements by [the informant] on the tape present a moredifficult problem, but not a formidable one. If they wereoffered solely for the truth of their assertions, they would beclassed as hearsay. They are, however, an essential part of theconversation used to impeach Kenny-­‐‑-­‐‑no one could follow theconversation if only Kenny’s half were played-­‐‑-­‐‑and thusintegral to the impeachment evidence, admissible subject onlyto the judge’s discretion as expressed in Fed. R. Evid. 403 . . .

Id. at 1340.

In United States v. Echeverry, 759 F.3d 1451 (9th Cir. 1985), the out-­‐‑of-­‐‑

court declarations of a co-­‐‑conspirator were admissible because they were

“not offered for the truth of the matter asserted but as necessary

background information under Rule 801(c), Fed. R. Evid.” Echeverry,

supra, 759 F.3d at 1457. However, “[s]atisfaction of the requirements for

admission as a coconspirator’s statement does not, however, eliminate

confrontation clause questions.” Id. at 1457. Echeverry did not address the

use of an informant’s out-­‐‑of-­‐‑court factual assertions to provide “context” to a

co-­‐‑conspirator’s statements.

45

In this case, the prosecutor argued that recorded statements by Mr.

Fernandez’ co-­‐‑conspirators were non-­‐‑hearsay under Rule 801(d)(2)(E)

because they were made in furtherance of the conspiracy. [ER417;

CR1630:7.] The entire recording had to be played, including the

informant’s statements, to put the co-­‐‑conspirator statements into context.11

[ER289,415,408; CR1673:7-­‐‑8; CR1630:4-­‐‑5; CR1682:129.] In support of this

position, the government cited Echeverry, Kenny, United States v. Whitman,

771 F.2d 1348 (9th Cir. 1985); and United States v. Williams, 989 F.2d 1061

(9th Cir. 1993). [ER409, 415; CR1630:4-­‐‑5; CR1682:131.]

The defense objected to the introduction of factual assertions by the

informants through recordings and law enforcement witnesses on

grounds of hearsay, confrontation, and because the informant is not a co-­‐‑

conspirator. [ER288; CR1673:6-­‐‑8, 10, 53, 87.] The court denied the motion

to exclude the recordings. [ER291; CR1673:9.]

HC made statements to Dunayevich, a co-­‐‑conspirator, and Officer

11 The district court gave an instruction consistent with the government’sinterpretation. [ER472; CR1701:68-­‐‑69.]

46

Lopez. In the recording, HC stated to Dunayevich:

The homey from Diablos have hit me up and shit, and theypretty much told me like, hey, they need to get at you.

[ER295; CR1673:26.] Counsel objected on grounds of hearsay,

confrontation, Rule 403, and lack of foundation, but the court overruled the

objections. [ER296; CR1673:27.] Officer Lopez interpreted this to mean Mr.

Fernandez contacted HC to set a meeting about tax payments. [ER296

CR1673:27.]

The court previously sustained objections to the out-­‐‑of-­‐‑court

statements by the informant to the agents as hearsay. [ER290; CR1673:8.]

However, in response to the question, “what was your contact with him

[HC] on April 20th?,” Officer Lopez stated:

On April 20th, [HC] contacted me and told me that he had beencontacted by Hector Fernandez, “Evil,” from the Diablos Gangbecause the Diablos Gang wanted to arrange a meeting withmembers of VSM’S, specifically himself and the shot caller, atthat time, for [VSM], Ivan Dunayevich, “Wolfie.”

[ER294; CR1673:24.]

These out-­‐‑of-­‐‑court statements by a government informant––who did

47

not testify––were offered for the truth of the matter asserted. During

closing argument, the prosecutor stated: “Hector Fernandez was a man

who was setting this stuff up with other gangs.” [ER517; CR1703:91.]

During sentencing––in an effort to add a role enhancement for the

extortion meetings––the prosecutor argued:

Mr. Fernandez was the go-­‐‑to guy. He was the liaison between theVarrio San Marcos Gang and Miguel Grado so that that [sic]meeting could happen at the Denny’s.

And in his capacity in doing that and in setting the whole thingup, he played a key role. . . .

Mr. Fernandez set up a meeting specifically to enable the extortionand the money laundering that this RICO case is all about.

Emphasis added. [ER532; CR1708:16, 20.]

The government never argued or proved HC was unavailable.

Instead, the prosecutor told the defense to subpoena the informants and

quipped, “Hector, poor Hector Garcia’s Sixth Amendment right to

confrontation.” Both Tille and Echeverry indicated that the confrontation

requirement applies to co-­‐‑conspirator statements. The informants in Kenny,

48

Whitman, and Tille testified and faced cross-­‐‑examination. Finally, Williams

found that the statements by non-­‐‑conspirators were hearsay and should

not have been admitted by the court. Williams, supra, 989 F.2d at 1169.

The district court abused its discretion in admitting the hearsay

statements of HC.

C. THE DISTRICT COURT IMPROPERLY ADMITTEDSTATEMENTS MADE BY KEY CONFIDENTIAL INFORMANTSWITHOUT THE OPPORTUNITY FOR CONFRONTATION.

1. Standard of Review.

Confrontation Clause violations are reviewed de novo. United States v.

Murillo, 288 F.3d 1126, 1137 (9th Cir. 2002). “Violations of the confrontation

clause require reversal unless they are harmless beyond a reasonable

doubt.” United States v. McKinney, 707 F.2d 381, 384-­‐‑385 (9th Cir. 1983)

(citations omitted).

2. Hearsay Statements Admitted Without Confrontation Violated Mr.Fernandez’ Rights.

“In all criminal prosecutions, the accused shall enjoy the right to . . .

be confronted with the witnesses against him.” U.S. Const. Amend. VI.

49

The Confrontation Clause bars the admission of testimonial statements

unless the declarant is unavailable and there was a prior opportunity for

cross-­‐‑examination. Crawford v. Washington, 541 U.S. 36, 68 (2004).

Part of the class of statements covered by Crawford include

“statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be

available for use at a later trial.” Id. at 51; see also United States v. Saget, 377

F.3d 223, 228 (2d Cir. 2004) (“the determinative factor in determining

whether a declarant bears testimony is the declarant’s awareness or

expectation that his or her statements may later be used at trial.”)

a. Confrontation Trumps Evidentiary Rules:

Confrontation is a procedural guarantee and is not abrogated by the

rules of evidence or notions of reliability. Crawford, supra, 541 U.S. at 61.

The Supreme Court highlighted the necessity of confronting an informant

through cross-­‐‑examination:

This Court has long recognized the “serious questions ofcredibility” informers pose. . . . We have therefore allowed

50

defendants “broad latitude to probe [informants’] credibility bycross-­‐‑examination” and have counseled submission of thecredibility issue to the jury “with careful instructions.”

Banks v. Dretke, 540 U.S. 668, 701-­‐‑702 (2004). This Court cautioned that

informants pose heightened risks:

[C]riminal informants are cut from untrustworthy cloth andmust be managed and carefully watched by the governmentand the courts to prevent them from falsely accusing theinnocent, from manufacturing evidence against those undersuspicion of crime, and from lying under oath in the courtroom.. . . Because the government decides whether and when to usesuch witnesses, and what, if anything, to give them for theirservice, the government stands uniquely positioned to guardagainst perfidy.

United States v. Bernal-­‐‑Obeso, 989 F.3d 331, 333-­‐‑334 (9th Cir. 1993).

The Third Circuit squarely addressed the issue of admissibility of

conversations between a defendant (or co-­‐‑conspirator) and a confidential

informant under Crawford and the holding depended entirely on

unavailability:

We thus hold that if a Defendant or his or her coconspiratormakes statements as part of a reciprocal and integratedconversation with a government informant who later becomesunavailable for trial, the Confrontation Clause does not bar the

51

introduction of the informant’s portions of the conversation asare reasonably required to place the defendant orcoconspirator’s nontestimonial statements into context.

United States v. Hendricks, 395 F.3d 173, 184 (3d Cir. 2005) (the CI was

murdered) (emphasis added); see also United States v. Detelich, 351 Fed.

Appx. 616, 623 (3d Cir. Nov. 5, 2009) (recording admissible to give context

to defendant’s statement because informant died).

The Ninth Circuit also looks to the likelihood that the jury could infer

the substance of a conversation when conducting a confrontation analysis.

Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011). In granting Ocampo’s petition

for a writ of habeas corpus, this Court stated: “With the language actually

used by the out-­‐‑of-­‐‑court witness obscured, any clues to its truthfulness

provided by that language––contradictions, hesitations, and other clues

often used to test credibility––are lost, and instead, a veneer of objectivity

conveyed.” Id. at 1108-­‐‑1109. “Instead, if the substance of an out-­‐‑of-­‐‑court

testimonial statement is likely to be inferred by the jury, the statement is

subject to the Confrontation Clause.” Id. at 1111.

52

Here, the government’s cases––Echeverry, Kenny, Whitman, and

Willaims––all predated Crawford and all focused on co-­‐‑conspirator

statements, as opposed to an informant’s statements. Moreover, Echeverry

and Tille state that the confrontation requirements must be satisfied even if

a statement is not hearsay.

Mr. Fernandez objected to the admission of hearsay statements

through recordings and law enforcement witnesses without the

opportunity to cross-­‐‑examine the declarant. The government never

demonstrated that their informant was unavailable. The government

attempted to make HC “unavailable” under Rule 804(a)(1) through

invocation of his Fifth Amendment rights. HC knew his own statements

would be used in a criminal prosecution because they were being recorded

or were made to law enforcement engaged in investigation. Moreover, the

prosecutor offered these statements for the truth of the matter against Mr.

Fernandez.

This Court described the two-­‐‑part confrontation analysis for

53

statements that are not hearsay: (1) showing necessity through the

unavailability of the declarant (citing McKinney, supra, 707 F.2d at 383); and (2)

determining the reliability of the statement. Echeverry, supra, 759 F.2d Id. at

1458. The necessity prong was met because declarant and co-­‐‑conspirator––as

opposed to informant––was a fugitive from justice; however, the court did

not conduct a confrontation analysis because any error was harmless. Id.

Bolstering the fact that unavailability must be shown, the informants in

Kenny,Whitman, and Tille all testified.

In McKinney, the court found that the defendant’s right to confront

the witnesses against him was violated when an FBI agent testified about

statements made by a non-­‐‑testifying witness, who claimed that McKinney’s

codefendant admitted “they had just robbed a bank.” 707 F.2d at 383-­‐‑384.

The court reversed the conviction against McKinney under a harmless

error standard because it found that the other evidence was “not

overwhelming” and the admission of the statement was tantamount to a

confession. Id. at 385.

54

Similarly, tape-­‐‑recorded statements between cooperating a witness

and the defendant were admitted in United States v. Whitman, 771 F.2d 1348

(9th Cir. 1985), noting that they were admissible to “enable the jury to

understand” other taped statements. Id. at 1352. However, this

cooperating witness testified. Id. Likewise, in Tille the confidential

informant testified. Tille, supra, 729 F.2d at 620-­‐‑622.

HC was available to testify for the government. The government

chose to not call him. The recordings of the informant should not have

been admitted according to Hendricks. By playing the recordings and

allowing law enforcement to testify about HC’s unrecorded factual

assertions, the jury could infer the substance of the various out-­‐‑of-­‐‑court

statements from the context, which triggered the confrontation

requirement under Ocampo.

Recordings of the Denny’s meeting demonstrated that Mr. Fernandez

said nothing about taxation. It was the government’s key contention––

established solely through law enforcement witnesses and recordings

55

regarding out-­‐‑of-­‐‑court statements by the informant––that Mr. Fernandez

wanted to set up the extortion meeting. The government argued this

during closing and at sentencing. Thus, critical factual statements by HC

were offered for the truth of the matter asserted, and he made these

remarks knowing they would likely be used at trial. Thus, Mr. Fernandez’

Sixth Amendment Rights were violated.

b. Confrontation Trumps Compulsory Process:

Providing the opportunity for cross-­‐‑examination is a burden that falls

squarely on the prosecution:

The text of the Amendment contemplates two classes ofwitnesses-­‐‑-­‐‑those against the defendant and those in his favor.The prosecution must produce the former; the defendant maycall the latter. Contrary to respondent'ʹs assertion, there is not athird category of witnesses, helpful to the prosecution, butsomehow immune from confrontation.

Melendez-­‐‑Diaz v. Massachusetts, 557 U.S. 305, 313-­‐‑314 (2009).

More fundamentally, the Confrontation Clause imposes aburden on the prosecution to present its witnesses, not on thedefendant to bring those adverse witnesses into court.

Id. at 324-­‐‑325.

56

In Inadi, the Supreme Court permitted the use of a co-­‐‑conspirator’s out-­‐‑

of-­‐‑court statement made during and in furtherance of a conspiracy without

establishing his unavailability under Rule 801(d)(2)(E). United States v.

Inadi, 475 U.S. 387, 400 (1986). However, Justice Marshall’s lengthy dissent

in Inadi foreshadowed the holdings from Crawford and its progeny.

[T]he Confrontation Clause gives a defendant a right to beconfronted with the witnesses against him, not merely anopportunity to seek out witnesses on his own. . . . To acceptthe State’s argument that the availability of [the declarant] isthe equivalent of putting him on the stand and subjecting himto cross-­‐‑examination would severely alter the presumptions ofinnocence and the burdens of proof which protect the accused.. . .[T]he majority’s reliance on the defendant’s right to compulsoryprocess to justify a decision to deprive him of a critical aspect ofhis Confrontation Clause right cannot be supported. The twoare simply not equivalent. . . .

But the Framers, had they the prescience, would surely havebeen as apprehensive of the spectacle of a defendant’sconviction upon the testimony of a handful of surveillancetechnicians and a very large box of tapes recording the boasts,faulty recollections, and coded or ambiguous utterances ofoutlaws.

Inadi, supra, 475 U.S. at 401, 405, 408, 410-­‐‑411 (Marshal, J., dissenting).

57

Justice Marshall would have viewed government tactics to keep an

informant off the stand with equal contempt.

In this case, the government elected to never call several informants,

including HC. The government goaded the defense to subpoena the

government’s informants and find out if these individuals would invoke

their privilege against self-­‐‑incrimination. The prosecutor stated: “If any

counsel wishes to call any of these informants, they’re obviously welcome

to do so.” [ER404; CR1682:21.]

Defense counsel objected to the introduction of HC’ statements, and

argued that the jurors would not be able to “unring the bell” even with a

limiting instruction. [ER419; CR1630:30.]

The district court’s admission of recorded hearsay statements by HC

violated the Confrontation Clause, as did the admission of his statements

through law enforcement officers. These errors were not harmless in light

of the “not overwhelming” evidence against Mr. Fernandez.

58

D. THE GOVERNMENT INTENTIONALLY PREJUDICED THEJURY WITH RENE “BOXER” ENRIQUEZ’ TESTIMONY.

1. Standard of Review.

An abuse of discretion standard applies to claims of impermissible

vouching. United States v. Nobari, 574 F.3d 1065, 1073 (9th Cir. 2009). In the

context of the entire trial, the defendant must show it was “more probable

than not that the misconduct materially affected the verdict.” United States

v. Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999).

2. The Government Intentionally Elicited Prejudicial Details ofBoxer’s Past and Blamed the Defense for Confronting Boxeron these Details.

The Supreme Court cited several ethical standards from the

American Bar Association governing the conduct of the attorneys in

criminal proceedings, including:

The prosecutor should not use arguments calculated to inflamethe passions or prejudices of the jury. [Std. 3-­‐‑5.8(c).]

The prosecutor should refrain from argument which woulddivert the jury from its duty to decide the case on the evidence,by injecting issues broader than the guilt or innocence of theaccused under the controlling law, or by making predictions of

59

the consequences of the jury’s verdict. [Std. 3-­‐‑5.8(d).]

United States v. Young, 470 U.S. 1, 9, n. 5, 7 (1985); quoting ABA Stds. for

Crim. Justice 3-­‐‑5.8 (2d. ed. 1980) (footnotes omitted).

Improper vouching includes placing the “prestige of the government

behind a witness by providing personal assurances of the witness’s

veracity” and suggesting that the witness’ testimony is supported by

information not before the jury. United States v. Wright, 625 F.3d 583, 610

(9th Cir. 2010). “A prosecutor may not, for instance, express an opinion of

the defendant’s guilt, denigrate the defense as a sham, implicitly vouch for

a witness’s credibility, or vouch for his or her own credibility.” United

States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002) (internal citations

omitted); United States v. Sanchez, 176 F.3d 1214, 1225 (9th Cir. 1999).

“During closing argument, a prosecutor may do no more than comment on

facts in evidence and make reasonable inferences based on the evidence.”

Hermanek, supra, 289 F.3d at 1101.

The prosecutors in this case employed an intentional strategy to

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prejudice the jury with the testimony of Boxer. The prosecutor claimed

they “needed” Boxer to testify about how eMe operated and to describe its

basic principles, yet other expert witnesses were available with no

corresponding risk of prejudice. The court denied a Daubert hearing and

ruled Boxer could testify as an expert on eMe’s operational principles

because the government indicated that would be his purpose.

The prosecutor proceeded to elicit horrific details of Boxer’s various

murders during direct examination. Thus, the government opened the

door and gave the defense little choice but to cross-­‐‑examine Boxer on these

past crimes. However, the prosecutor argued that the defense was to

blame for attempting to instill fear in the jury by cross-­‐‑examining the

government’s star “expert” witness. This was a clear example of

“denigrat[ing] the defense as a sham” because it suggested that the defense

was to blame for infusing graphic accounts of Boxer’s murders into the

trial.

Boxer’s testimony was irrelevant to the facts at issue, and evidence of

61

eMe modus operandi could have been elicited through other witnesses.

Boxer indicated that eMe had not started extorting his Arta street gang

when he was on the streets. It was not until he was incarcerated that he felt

the influence of eMe, began acting on their behalf, and ultimately became a

made member. Boxer murdered to earn his eMe membership.

Boxer’s modus operandi testimony was based stale personal

knowledge and information fed to him by law enforcement agencies as an

inmate contractor. The prosecutor’s disingenuous suggestion that the

defense hoped to instill fear in the jury through cross-­‐‑examination was

both untrue and it denigrated the defense by suggesting that the

government was credible where the defense was inflammatory.

The primary evidence against Mr. Fernandez for the majority of the

overt acts came from HC, who the prosecutor intentionally kept off of the

witness stand. The government elicited critical hearsay statements by HC

to establish that Mr. Fernandez set up the taxation meetings, but deprived

him of the opportunity to cross-­‐‑examine HC on these factual assertions.

62

The government flaunted its strategy of insulating HC from cross-­‐‑

examination by arguing to the jury that the defense could have subpoenaed

him, which shifted the burden to the defense.

The government never introduced evidence of the connection between

the other overt acts alleged against Mr. Fernandez and eMe. The

prosecutor merely theorized that “gang banging” and drug dealing

somehow enhanced eMe. Finally, the prosecutor argued, “No Diablos, no

West Side, no Mexican Mafia,” having already inferred to the jury that

these street gang members will become killers for eMe like Rene “Boxer”

Enriquez or cooperator AM. [ER433; CR1688:38-­‐‑40.]

The prejudice to Mr. Fernandez resulting from the prosecutor’s

improper tactics was substantial. The prosecutor misled the court, elicited

highly prejudicial and irrelevant information, and blamed the defense for

cross-­‐‑examining Boxer through the door opened on direct examination.

The prosecutor argued that convicting the Diablos meant removing eMe––

the “modern day murder gang”––from the community.

63

In light of the prosecutor’s calculated efforts to prejudice the jury

with Boxer’s testimony, this Court should reverse the conviction against

Mr. Fernandez.

E. THE GOVERNMENT’S CLOSING ARGUMENT INFLAMEDTHE PASSIONS OF THE JURY AND CAUSED PREJUDICE.

1. Standard of Review.

Harmless error review applies to claims that prosecutor’s argument

was designed to inflame the passions of the jury when objections were

raised. United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir.), cert. denied,

113 S.Ct. 419 (1992). The court must consider the totality of the trial in

determining if the remarks affected the jury’s ability to fairly consider the

evidence. Id.

2. The Prosecutor’s Closing Argument Prevented the Jury fromFairly Judging the RICO Charge Against Mr. Fernandez.

During closing argument, the prosecutor must not indulge in “an

appeal wholly irrelevant to any facts or issues in the case, the purpose and

effect of which could only have been to arouse passion and prejudice.”

64

Viereck v. United States, 318 U.S. 236, 247 (1943). “The prosecutor’s conduct

and utterances, however, are always reviewable on appeal, for he is ‘both

an administrator of justice and an advocate.’” Young, supra, 470 U.S. at 8;

quoting ABA Stds. for Crim. Justice 3-­‐‑1.1(b) (2d ed. 1980); cf. Berger, supra,

295 U.S. at 88 (“It is as much his duty to refrain from improper methods

calculated to produce a wrongful conviction as it is to use every legitimate

means to bring about a just one.”) “The prosecutor’s job isn’t just to win,

but to win fairly, staying well within the rules.” United States v. Kojayan, 8

F.3d 1315, 1323 (9th Cir. 1993).

The Supreme Court condemned argument from a prosecutor that

misstated or manipulated the evidence or that “implicate[d] other specific

rights of the accused such as the right to counsel or the right to remain

silent.” Darden v. Wainwright, 477 U.S. 168, 181 (1986).

A prosecutor may not urge jurors to convict a criminaldefendant in order to protect community values, preserve civilorder, or deter future lawbreaking. The evil lurking in suchprosecutorial appeals is that the defendant will be convicted forreasons wholly irrelevant to his own guilt or innocence. Jurorsmay be persuaded by such appeals to believe that, by

65

convicting a defendant, they will assist in the solution of somepressing social problem. The amelioration of society’s woes isfar too heavy a burden for the individual criminal defendant tobear.

United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005)12; quoting

United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984).

The prosecutor’s closing argument encouraged the jury to act as the

community conscience, to send a message that “no more” crimes will be

tolerated, and that convicting these defendants will rid their communities

of eMe. The defense repeatedly objected under United States v. Sanchez, 176

F.3d 1214 (9th Cir. 1999).13

The prosecutor argued in rebuttal that the defense was to blame for

attempting to instill fear in the jury for cross-­‐‑examining Boxer. This

argument was a blatant misstatement of the facts. The government

specifically elicited these wholly irrelevant details throughout the direct

examination of Boxer, after claiming that he was only providing modus

12 Counsel also objected to the prosecutor’s closing argument underWeatherspoon prior to rebuttal. [ER513; CR1703:52.]

66

operandi expert testimony. Additionally, the government’s rebuttal

argument suggested that it was improper for the defense to thoroughly

cross-­‐‑examine Boxer on matters raised on direct. Finally, the government

argued that the defense should have utilized its subpoena powers to secure

testimony for the various cooperating government witnesses, and

suggested a wait-­‐‑and-­‐‑see approach should HC invoke the privilege against

self-­‐‑incrimination. [ER514; CR1703:53.]

The prosecutor’s efforts to backtrack before rebuttal speaks volumes

of the harm done by his closing argument:

There is, there was no argument meant, there was no argumentgiven to this jury about anything other than no more time willpass without being held responsible. That is exactly what I saidto this jury during my closing argument, your Honor, exactly.

[ER494; CR1702:4-­‐‑5.]

The prosecutorial misconduct during summation, in light of the other

improper tactics employed throughout trial, impaired the jury from being

able to fairly consider the evidence against Mr. Fernandez. Thus, his

conviction should be reversed.

67

F. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCEOF THE RICO CONSPIRACY.

1. Standard of Review.

De novo review applies to sufficiency of the evidence claims if a Rule

29 motion for acquittal is raised at the close of evidence. United States v.

Carrranza, 289 F.3d 634, 641 (9th Cir. 2002), cert. denied, 537 U.S. 1037 (2002).

The standard of review for sufficiency of evidence challenges asks whether,

“after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson, supra, 443 U.S. at 319; United

States v. Odom, 329 F.3d 1032, 1034 (9th Cir. 2003).

2. The Government Presented Insufficient Evidence to Convict Mr.Fernandez.

Other circuit courts interpret the Jackson standard in cases where the

evidence supports both the theories of the government and the defense:

[I]f the “evidence viewed in the light most favorable to theverdict gives equal or nearly equal circumstantial support to atheory of guilt and a theory of innocence of the crime charged,”this court must reverse the conviction. This is so because . . .

68

where an equal or nearly equal theory of guilt and a theory ofinnocence is supported by the evidence viewed in the lightmost favorable to the prosecution, “a reasonable jury mustnecessarily entertain a reasonable doubt."ʺ

United States v. Flores-­‐‑Rivera, 56 F.3d 319, 323 (1st Cir. 1995), quoting United

States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert. denied, 113 S. Ct. 330

(1992); see also United States v. Santillana, 604 F.3d 192, 195 (5th Cir. 2010);

United States v. Harris, 942 F.2d 1125, 1129-­‐‑1130 (7th Cir. 1991); Cosby v.

Jones, 682 F.2d 1373, 1383 (11th Cir. 1982).14

Several of the government’s various witnesses demonstrated that

street gangs feared eMe and paid taxes because, “you pay or you die.” The

government stated as much in their trial brief. Detective Lopez described

this fear he heard on the wiretaps. Gangs were targeted for failure to pay

taxes, as cooperator EC learned first hand. Cooperator AL stated his fellow

Diablos only paid Espudo because they were afraid of eMe, and Espudo

was dangerous.

14 Mr. Fernandez’ Seventh Proposed Instruction addressed the equal andcompeting interpretations of the evidence. [ER167; CR1344-­‐‑2.]

69

Mr. Fernandez never hid his affiliation with the Diablos. His friends

were other Diablos. He used drugs and his friends sold drugs. He had

conversations about illegal activities. He even associated with drug addicts

like HC. Mr. Fernandez’ gang was extorted by eMe. Like Boxer suggested,

people do not willing give money when there is a threat of death for failing

to pay “taxes”. Mr. Fernandez never willingly agreed to act on behalf of

eMe.

The government introduced no evidence connecting the heroin sale

to HC––the same person who was arrested on separate drug charges four

times in two weeks in 2013––to tax payments to eMe. Similarly, the

government failed to connect the purchase of methamphetamine “to try”

with eMe.

Mr. Fernandez was not convicted of any of the substantive Counts

alleged. The government failed to prove that Mr. Fernandez conspired to

distribute greater than 50 grams of actual methamphetamine as alleged in

Count 6. Considering the quantities of narcotics alleged against some of

70

the Diablos co-­‐‑conspirators, this speaks volumes of the jury’s view of the

drug-­‐‑related “evidence” against Mr. Fernandez.

Mr. Fernandez participated minimally in the Denny’s meeting. The

government’s theory was that Mr. Fernandez set up the meeting. This was

based on out-­‐‑of-­‐‑court statements by HC, who never testified. The federal

government terminated HC as an informant “due to lack of productivity

and control.” The prosecutor purposely kept the informant off of the

witness stand, yet fought to introduce his hearsay statements to the jury.

These tactics cast suspicion on the government’s theory. The government

claimed interpreted the phrase “touch up” in different ways to fit the facts

with their theory. The defendants raised continuing objections to the self-­‐‑

serving interpretations of ambiguous language such as this throughout

trial under Federal Rules Evidence 701 and 702. [ER314; CR1673:87.]

The Diablos “claimed” the robbery and assault at HVMS. Only one

of the five witnesses placed Mr. Fernandez at the scene, and she admitted

she lied to the police. The dubious “identification” of Mr. Fernandez by

71

this witness, the unexplained decision to conduct photo line-­‐‑ups four

months after the incident for all but one witness, and the fact that the other

witnesses never identified Mr. Fernandez only bolsters the interpretation

Mr. Fernandez was not a participant of the robbery and was upset with the

Diablos that committed this crime.

Even if Mr. Fernandez was present at HVMS, the government never

introduced evidence connecting this crime to eMe. The theory was that the

Diablos furthered the goals of eMe by terrorizing the community.

However, the victims were not gang members, so it does not follow that

eMe would derive any gain from this robbery and assault that was claimed

by the Diablos. The more plausible explanation is that the Diablos were

acting like jerks as they had always done.

Mr. Fernandez moved for a judgment of acquittal under Rule 29 after

the close of the government’s case-­‐‑in-­‐‑chief, including the grounds of

insufficiency of the evidence. [ER470; CR1701:53-­‐‑54.] The government

presented insufficient evidence of Mr. Fernandez’ participation in a RICO

72

conspiracy, such that no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Thus, Mr. Fernandez’

conviction should be reversed.

G. THE COURT’S DENIAL OF SEVERANCE DEPRIVEDMR.FERNANDEZ OF A FAIR TRIAL.

1. Standard of Review

A district court’s denial of a defendant’s motion to sever under Rule

14 is reviewed for an abuse of discretion. United States v. Cuozzo, 962 F.2d

945, 949 (9th Cir.), cert. denied, 113 S.Ct. 475 (1992). The test is “whether a

joint trial was so manifestly prejudicial as to require the trial judge to

exercise his discretion in but one way, by ordering a separate trial.”

Fernandez, supra, 388 F.3d at 1241; quoting United States v. Baker, 10 F.3d

1374, 1386 (9th Cir. 1993), overruled on other grounds by United States v.

Nordby, 225 F.3d 1053 (9th Cir. 2000).

2. Joinder Caused Undue Prejudice and Denied Mr. Fernandez a FairTrial

“If the joinder of offenses or defendants in an indictment, an

73

information, or a consolidation for trial appears to prejudice a defendant or

the government, the court may order separate trials of counts, sever the

defendants’ trials, or provide any other relief that justice requires.” Fed. R.

Crim. Pro. 14(a). The most critical factors to evaluate include:

(1) whether the jury may reasonably be expected to collate andappraise the individual evidence against each defendant; [and](2) the judge’s diligence in instructing the jury on the limitedpurposes for which certain evidence may be used.

Fernandez, supra, 388 F.3d at 1241; Baker, supra, 10 F.3d at 1387.

In Fernandez, the trial court severed the death-­‐‑eligible defendants

from the remaining defendants because “there’s a big difference between

violence and murder and attempted murder, and narcotics charges or

conspiracy charges involving just narcotics.” Id. at 1242. This Court

emphasized that the district court gave limiting instructions throughout trial

to consider the evidence against each defendant and evaluate their guilt

separately, and that the special verdict forms ensured the jury focused on

evaluating the evidence separately as to each defendant. Id. at 1242-­‐‑1243.

The prejudice analysis asks whether the jury can reasonably “collate

74

and appraise the independent evidence against each defendant.” Baker,

supra, 10 F.3d at 1387. With regards to compartmentalization, the court in

Fernandez noted that, “the jury’s ability to compartmentalize is

demonstrated by acquittal or failure to convict all defendants on all

counts.” Fernandez, supra, 388 F.3d at 1242-­‐‑1243.

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court

suggested that joint trials “conserve state funds, diminish inconvenience to

witnesses and public authorities, and avoid delays in bringing those

accused of crime to trial.” Id. at 134; United States v. Lane, 474 U.S. 438,449

(1986). However, this Court noted that, “the judge and the prosecutor

should consider limiting the prosecution of peripheral defendants to easily

provable charges that carry adequate penalties.” Baker, supra, 10 F.3d at

1389 (emphasis added).

Mr. Fernandez moved to sever under Rule 14 to avoid spillover

prejudice from evidence of the attempted murders alleged against his co-­‐‑

defendants. [ER52; CR1158-­‐‑1.] He filed a motion to reconsider severance

75

on the issue of the wasted resources, the spillover prejudice resulting from

having to sit through a “mega-­‐‑trial” despite the very limited evidence

relating to him, and the unlikelihood that the jury could compartmentalize

this volume of information. [ER151; CR1187:9.]

The government argued that each defendant is tied to the Enterprise

and therefore liable under RICO. [ER333; CR 1685:237.] However, as

argued above in Section V(F), the evidence connecting Mr. Fernandez to

eMe––as opposed to the Diablos––was minimal.

Mr. Fernandez was also prejudiced by being jointly tried with

Jeremiah Figueroa. Mr. Figueroa’s cross-­‐‑examination of witnesses against

Mr. Fernandez, his misbehavior during court, and the evidence that he

threatened to kill a witness deprived Mr. Fernandez of a fair trial. Counsel

repeatedly objected and moved to sever, which the court denied.

The joinder of these several defendants in one trial was manifestly

prejudicial to Mr. Fernandez. The jury faced the impossible task of

compartmentalizing massive amounts of information without repeated

76

limiting instructions from the court. The general jury verdicts provided no

indication if the jury was able to compartmentalize, as in Fernandez.

Joinder exposed Mr. Fernandez to a variety of evidence regarding

kidnapping and attempted murder, threats to kill a witness, and prejudicial

questions from counsel for Jeremiah Figueroa. Finally, joinder wasted

massive amounts of time and money because Mr. Fernandez was a

peripheral defendant. For these reasons, this Court should reverse his

conviction.

H. THE DISTRICT COURT ERRED IN DENYINGMR. FERNANDEZ’PROPOSED INSTRUCTIONS.

1. Standard of Review.

The district court’s failure to give a defense theory is a question of

law reviewed de novo. United States v. Crandall, 525 F.3d 907, 911 (9th Cir.

2008); United States v. Sayakhom, 186 F.3d 928, 939-­‐‑940 (9th Cir.), amended by

193 F.3d 959 (9th Cir. 1999).

77

2. The District Court Erred By Refusing to Instruct on Mr.Fernandez’ Theory of the Case.

The district court erred in not giving Mr. Fernandez’ “theory of the

case” instructions under Rule 30(a) of the Federal Rules of Criminal

Procedure. According to the Ninth Circuit in United States v. Mason, 902

F.2d 1434 (9th Cir. 1990):

A defendant is entitled to have the judge instruct the jury onhis theory of defense, provided that it is supported by law andhas some foundation in the evidence. [Citation.] A failure togive such instruction is reversible error . . .

Id. at 1438, overruled on other grounds as stated in United States v. Doe, 705

F.3d 1134, 1146 (9th Cir. 2013); see also, United States v. Thomas, 612 F.3d

1107, 1120 (9th Cir. 2010).

a. The Escobar de Bright (First) Instruction:

Mr. Fernandez’s First Proposed Instruction stated that he could not

be guilty of a conspiracy if the other party was a government informant.

[ER163; CR1344-­‐‑2.] The Court denied this instruction. [ER452;

CR1698:248.] Mr. Fernandez objected. [ER169; CR1345.]

78

Mr. Fernandez’ proposed instruction accurately reflects the law,

fulfilling the first requirement of Mason. See United States v. Escobar de

Bright, 742 F.2d 1196, 1198-­‐‑1199 (9th Cir. 1984) (a defendant cannot conspire

with a government informant); United States v. Montgomery, 150 F. 3d 983,

995 (9th Cir. 1998). Second, the evidence indicated that Mr. Fernandez and

HC were the only parties to the heroin sale, and HC’s hearsay statements

were the primary link to Mr. Fernandez with the Denny’s meeting and the

methamphetamine sale, fulfilling the second Mason requirement. Finally,

no other instruction covered this issue, fulfilling the final Mason

requirement. Thus, the district court erred in denying this instruction and

this Court should reverse.

b. The Buyer-­‐‑Seller (Third) Instruction:

Mr. Fernandez’ Third Proposed Instruction suggested that

purchasing narcotics for personal use did not support a conspiracy charge.

[ER165,423; CR1344; CR1630:49.] The district court denied this instruction.

[ER454; CR1698:250.]

79

However, proof of only a buyer-­‐‑seller agreement without more does

not support a conspiracy conviction. See Montgomery, supra, 150 F.3d at

1002 (buyer-­‐‑seller relationship does not prove existence of conspiracy to

distribute); United States v. Lennick, 18 F.3d 814, 819 (9th Cir.1994) (proof

that defendant possessed and sometimes sold drugs did not prove

conspiracy).

Mr. Fernandez’ Third Proposed Instruction fulfilled all three Mason

requirements. Thus, the district court erred in denying this instruction.

c. The Sale of Heroin (Fourth) Instruction:

Mr. Fernandez’ Fourth Proposed Instruction provided that he could

not be convicted of conspiracy based on the evidence that he sold the HC

for personal use that was never connected to eMe. [ER166; CR1344-­‐‑2.] The

district court also denied this instruction. [ER454; CR1698:250.]

Proof of only a buyer-­‐‑seller agreement without more does not

support a conspiracy conviction. Thus, this instruction fits the three Mason

requirements and the district court erred in denying this instruction.

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d. The RICO Pinpoint (Tenth) Instruction:

Mr. Fernandez’ Tenth Proposed Instruction asserted that unwillingly

paying “taxes” to eMe made him a victim and not a participant of the

conspiracy. [ER172; CR1361.] The district court denied this instruction.

[ER465; CR1698:261-­‐‑262.]

A defendant may not be convicted of a conspiracy to extort if the

“victim” is a member of the conspiracy. See Gebardi v. United States, 287

U.S. 112, 122-­‐‑123 (1932); United States v. Brock, 501 F.3d 762, 770 (6th Cir.

2007) (“It is thus not extortion, but robbery, if the victim gives the property

without consent”); United States v. Spitler, 800 F.2d 1267, 1274-­‐‑1275 (4th Cir.

1986) (public official may be convicted for extortion for using coercive

means to obtain property); United States v. Gray, 521 F.3d 514, 534 (6th Cir.

2008).

In this case, all the alleged conspirators of were victims of extortion

because either “you pay or you die.” See, supra, § V(F)(2). Thus, this case

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fits all threeMason requirements and the district court erred in denying this

instruction.

I. CUMULATIVE ERRORS DEPRIVEDMR. FERNANDEZ OF A FAIRTRIAL.

1. Standard of Review.

A harmless error standard applies to claims of cumulative

error. United States. v. Berry, 627 F.2d 193, 201 (9th Cir. 1980).

2. The Cumulative Errors Warrant Reversal.

Even when individual errors at trial do not warrant reversal of the

conviction, the cumulative effect of the errors may rise to the level of

reversible error. See United States v. Wallace, 848 F.2d 1464, 1475-­‐‑1476 (9th

Cir. 1988) (“we are particularly troubled by the possible cumulative effect

of those errors which go to the credibility of the witnesses”); United States

v. Payne, 944 F.2d 1458, 1477 (9th Cir. 1991); Thomas v. Hubbard, 273 F.3d

1164, 1179 (9th Cir. 2001) (reversing conviction based on cumulative error),

overruled in part by Payton v. Woodford, 346 F.3d 1204, 1218 n. 18 (9th Cir.

2002) (establishing that the prosecutor bears the burden of explaining the

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errors were harmless); United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.

1996) (where government’s case is weak, the prejudice of cumulative error

is more likely).

Based on the “cumulative effect” of errors outlined above, this Court

should vacate Mr. Fernandez’ conviction and remand for a new trial.

VI.CONCLUSION

For the forgoing reasons, this Court should reverse the conviction, or

remand to the District Court according to 18 U.S.C. § 3742(f)(1).

Dated: September 5, 2014 Respectfully submitted,

/s/Knut S. Johnson KNUT S. JOHNSONAttorney for HECTOR FERNANDEZ