1 I. STATEMENT OF JURISDICTION A. Basis for

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

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

1

1

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. scheduled release date is April 26, 2024.

2

His

II. ISSUES PRESENTED FOR REVIEW A. WHETHER SENTENCING ERRORS PREJUDICED MR. FERNANDEZ BECAUSE NEITHER THE JURY NOR THE JUDGE FOUND THE OVERT ACTS BEYOND A REASONABLE DOUBT. B. WHETHER THE DISTRICT COURT ERRED IN PERMITTING HEARSAY STATEMENTS MADE BY THE CONFIDENTIAL INFORMANT. C. WHETHER THE DISTRICT COURT IMPROPERLY ADMITTED STATEMENTS MADE BY KEY CONFIDENTIAL INFORMANTS WITHOUT THE OPPORTUNITY FOR CONFRONTATION. D. WHETHER THE GOVERNMENT INTENTIONALLY PREJUDICED THE JURY WITH RENE “BOXER” ENRIQUEZ’ TESTIMONY. E. WHETHER THE GOVERNMENT’S CLOSING ARGUMENT INFLAMED THE PASSIONS OF THE JURY AND CAUSED PREJUDICE. F. WHETHER THE GOVERNMENT PRESENTED EVIDENCE OF THE RICO CONSPIRACY.

INSUFFICIENT

G. WHETHER THE COURT’S DENIAL OF SEVERANCE DEPRIVED MR. 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 DEPRIVED MR. FERNANDEZ OF A FAIR TRIAL. 3

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

4

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

2 Daubert

v. Merrell Dow Pharms., 509 U.S. 579, 592-­‐‑593 (1993). 5

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 and kill inmates and the CDC would take the body or take the individual and recover the knife, and then you’d resume activities. . . . you could do two, three hits a day and then go

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 visited Aug. 20, 2014). 3

6

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 time period at issue in this Indictment. . . . He was at the highest echelon within [eMe] for a couple of decades and . . . continued to keep up his knowledge . . . by reviewing calls, prison-­‐‑visit videos of associates and validated members, facilitators, other gang members within [eMe] over the 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 7

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 paint roller, with a cloth handle tied onto it, sharpened to a point, also known as a shank . . . He says, he’s going to hold him and you’re going to stab him, stab him as many times as you can before they shoot. I said, okay. . . . Puppet walked right up to him and bear-­‐‑hugged him, and I started stabbing him. 8

Q. [By the prosecutor]: What happened after you started stabbing him? I stabbed him until the handle failed. . . . I had stabbed him seven, ten times, or so. . . . I took off my beanie, took off my gloves, 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? 9

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 killing when 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 10

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.

[ER404; CR1682:21.]

They can call them whenever they want.”

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 law enforcement witnesses rather than testimony for several informants, who will be identified in this Brief by their initials. [ER157; CR1442.] 11

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, in saying that they could have subpoenaed him, they [sic] he wouldn’t have taken the Fifth, and he probably would have, . . . and we would have had to sit here and go through the cross-­‐‑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

12

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 my Sixth Amendment right to confrontation. Hector, poor Hector Garcia’s Sixth Amendment right to confrontation. [T]he government has the burden of proof to prove these charges beyond a reasonable doubt. . . . But the power to subpoena 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 his right against self-­‐‑incrimination, rather than describe his gang-­‐‑related tattoos. [ER257; CR1677:210, 215-­‐‑216.] 13

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, the Mexican Mafia permits gang members to exert influence over, and to traffic in, narcotics in their neighborhoods and territories. If a gang fails to pay the tax . . . , the Mexican Mafia will place a “green light” on the members of the gang [which] 14

authorizes Mexican Mafia members and associates, as well as rival gangs, to assault and/or murder members of the gang, both in the community and within the penal system, until the gang 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, 15

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.]

16

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 they pretty 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 been contacted by Hector Fernandez, “Evil,” from the Diablos Gang because the Diablos Gang wanted to arrange a meeting with members of VSM’s, specifically himself and the shot caller, at that time, for Varrio San Marcos, Ivan Dunayevich, “Wolfie.” 17

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.]

18

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 183 on 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 19

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,

20

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 a reasonable doubt that on that date, in furtherance of the drug transaction, 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

21

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 22

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 as required by Brady v. Maryland, 373 U.S. 83 (1963). [ER382; CR1695:156, 194.] 23

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

methamphetamine for personal use was tied to eMe.

purchase

of

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.]

24

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 in 2010 and 2011, it’s finally the chance to stand up and say no more. No more robbery. . . . No more committing extortion. No more beating the people of this community and firing guns down the street. No more. No more passing funds. No more meeting up and coordinating who’s going to be able to tax who in what territory, so that you can then coordinate who gets the guns . . . There’s just no more, and it’s the only reason we are here today. [ER476; CR1701:120.] The defense objected, citing United States v. Sanchez,

25

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 State Prison, he ran them both. No more. It is time to put an end to that. . . . Who are you with? Enough is enough. And when they did it and they stand up there and they go up and they check and say, who are you with, where are you from, as if they have that right. . . . Because they think that the Pepperwood Apartment building belongs to them, that it’s their piece of the pie. Enough is enough. No. The Pepperwood Apartments don’t belong to you. ... 2010 and 2011, they affirmed their allegiance with the Diablos and the West Side and the Varrio Fallbrook Locos. . . . No more. ... [T]he Mexican Mafia is not just a group of a hundred or 150 made members. . . . The extortion and the robbery, the shootings and the beatings, the dope that’s getting sold on the street is not being done and in no way was being done in this case hands-­‐‑on by Rudy Espudo. It was being done by them. Every single one of them. They either led or they went out and did it themselves. But every single one of them is responsible, 26

every one of them, and it is time to say no more. . . . Because the Mexican Mafia in Escondido is the West Side Gang and the Diablos. If there is no West Side Gang, if there is no Diablos Gang going out and doing extortion and dealing drugs, there is no Mexican Mafia. . . . No Diablos, no West Side, no Mexican Mafia on the streets in that community. No robberies, no shootings, no meth on 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 closing argument, the reference was made to the Mexican Mafia started long before this trial and will continue long after this trial. It’s not about that, nor is it about protecting society. The Court: Well, you did say – I mean, I’m not concerned about how you started out. I think the objection was that at some point, you said to send a message, or something. Mr. Sheppard: No. I think the objection was the reference to no more. It was that no more days will pass without being held responsible for what happened. . . . [N]o one in this courtroom, during the course of this trial, could think that a message, any argument that a message is being sent that any type of verdict is going to protect society because, for some 27

reason, they’ll stop committing crime if they’re found guilty, or that if they’re in prison . . . There is, there was no argument meant, there was no argument given to this jury about anything other than no more time will pass without being held responsible. That is exactly what I said to this jury during my closing 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: 28

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

29

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.]

30

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

31

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.

32

V. ARGUMENT A. SENTENCING ERRORS PREJUDICED MR. FERNANDEZ BECAUSE NEITHER THE JURY NOR THE JUDGE FOUND THE OVERT 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 Sentencing Against 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 33

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 level is and then who each independent act were to be established has [sic] a separate count of conviction. That’s Posada-­‐‑Rios, which is a Fifth Circuit case.7 The second step is to establish any role-­‐‑related adjustments within those grouping levels. That’s the Toco case from the Sixth Circuit. The third step is to group the conduct, and that’s under Nguyen, the Eleventh Circuit case, and the fourth step is to calculate the overall offense 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 each racketeering act. See United States v. Posada-­‐‑Rios, 158 F.3d 832, 880 (5th Cir. 1998). 34

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 Reasonable Doubt: 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 not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring 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

35

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 predicate acts underlying the RICO conspiracy count, the jury’s verdict was necessarily ambiguous as to which predicate acts supported the guilty verdicts on the conspiracy count. The court was therefore required to determine the predicate acts underlying each defendant’s conspiracy conviction using the reasonable 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

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

36

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 make this finding was undoubtedly erroneous. The phrase sitting as a trier of fact in the Commentary to § 1B1.2(d) clearly contemplates that when a court sets the basis for a conspiracy conviction, 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”).

37

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

38

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’s what’s driving the sentences in this case . . . There’s no Ninth Circuit case on this point, but there are several circuits that do talk about they, the RICO predicate acts should be 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 39

preponderance standard, the court made findings using the reasonable doubt standard where it found the Government had met the higher standard of proof. Once the court had determined the predicate acts attributable to each defendant, it applied the so-­‐‑called grouping rules of § 3D1.1 of the Guidelines [Step 3] to further enhance the defendants’ 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

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

40

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

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

41

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 HEARSAY STATEMENTS 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 42

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-­‐‑conspirator Statements 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 43

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 more difficult problem, but not a formidable one. If they were offered solely for the truth of their assertions, they would be classed as hearsay. They are, however, an essential part of the conversation used to impeach Kenny-­‐‑-­‐‑no one could follow the conversation if only Kenny’s half were played-­‐‑-­‐‑and thus integral to the impeachment evidence, admissible subject only to 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. 44

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. CR1630:7.]

[ER417;

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

45

Lopez. In the recording, HC stated to Dunayevich: The homey from Diablos have hit me up and shit, and they pretty 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 been contacted by Hector Fernandez, “Evil,” from the Diablos Gang because the Diablos Gang wanted to arrange a meeting with members of VSM’S, specifically himself and the shot caller, at that time, for [VSM], Ivan Dunayevich, “Wolfie.” [ER294; CR1673:24.] These out-­‐‑of-­‐‑court statements by a government informant––who did 46

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 the Varrio 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 thing up, he played a key role. . . . Mr. Fernandez set up a meeting specifically to enable the extortion and 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,

47

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 ADMITTED STATEMENTS MADE BY KEY CONFIDENTIAL INFORMANTS WITHOUT 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. 48

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 of credibility” informers pose. . . . We have therefore allowed 49

defendants “broad latitude to probe [informants’] credibility by cross-­‐‑examination” and have counseled submission of the credibility 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 and must be managed and carefully watched by the government and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom. . . . Because the government decides whether and when to use such witnesses, and what, if anything, to give them for their service, the government stands uniquely positioned to guard against 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 coconspirator makes statements as part of a reciprocal and integrated conversation with a government informant who later becomes unavailable for trial, the Confrontation Clause does not bar the 50

introduction of the informant’s portions of the conversation as are reasonably required to place the defendant or coconspirator’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.

51

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

opportunity to cross-­‐‑examine the declarant.

witnesses

without

the

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

52

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.

53

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. cooperating witness testified.

Id.

Id. at 1352.

However, this

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

54

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 of witnesses-­‐‑-­‐‑those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent'ʹs assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. Melendez-­‐‑Diaz v. Massachusetts, 557 U.S. 305, 313-­‐‑314 (2009). More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Id. at 324-­‐‑325. 55

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 be confronted with the witnesses against him, not merely an opportunity to seek out witnesses on his own. . . . To accept the State’s argument that the availability of [the declarant] is the equivalent of putting him on the stand and subjecting him to cross-­‐‑examination would severely alter the presumptions of innocence and the burdens of proof which protect the accused. ... [T]he majority’s reliance on the defendant’s right to compulsory process to justify a decision to deprive him of a critical aspect of his Confrontation Clause right cannot be supported. The two are simply not equivalent. . . . But the Framers, had they the prescience, would surely have been as apprehensive of the spectacle of a defendant’s conviction upon the testimony of a handful of surveillance technicians and a very large box of tapes recording the boasts, faulty recollections, and coded or ambiguous utterances of outlaws. Inadi, supra, 475 U.S. at 401, 405, 408, 410-­‐‑411 (Marshal, J., dissenting).

56

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.

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D. THE GOVERNMENT INTENTIONALLY PREJUDICED THE JURY 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 of Boxer’s Past and Blamed the Defense for Confronting Boxer on 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 inflame the passions or prejudices of the jury. [Std. 3-­‐‑5.8(c).] The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of 58

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

59

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

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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.

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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.

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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 INFLAMED THE 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 from Fairly 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.”

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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 criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by 64

convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society’s woes is far too heavy a burden for the individual criminal defendant to bear. 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. argument was a blatant misstatement of the facts.

This

The government

specifically elicited these wholly irrelevant details throughout the direct examination of Boxer, after claiming that he was only providing modus

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

12

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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 argument given to this jury about anything other than no more time will pass without being held responsible. That is exactly what I said to 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. conviction should be reversed. 66

Thus, his

F. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE OF 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 the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged,” this court must reverse the conviction. This is so because . . . 67

where an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence viewed in the light most favorable to the prosecution, “a reasonable jury must necessarily 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.

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

14

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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

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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

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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

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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 DEPRIVED MR. 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 Fair Trial “If the joinder of offenses or defendants in an indictment, an

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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 and appraise the individual evidence against each defendant; [and] (2) the judge’s diligence in instructing the jury on the limited purposes 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 73

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

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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

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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 DENYING MR. 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).

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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 on his theory of defense, provided that it is supported by law and has some foundation in the evidence. [Citation.] A failure to give 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.

CR1698:248.] Mr. Fernandez objected. [ER169; CR1345.]

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[ER452;

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.]

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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 three Mason requirements and the district court erred in denying this instruction. I. CUMULATIVE ERRORS DEPRIVED MR. FERNANDEZ OF A FAIR TRIAL. 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. JOHNSON Attorney for HECTOR FERNANDEZ

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