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United States of America v. Ricardo Martinez

June 22, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICARDO MARTINEZ, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CESAR J. ABARCA, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSHUA CRUZ, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GEORGE FERNANDEZ, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD VALENZUELA, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EDUARDO GONZALEZ-GALLEGOS, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THOMAS DURKIN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding D.C. No. 3:06-cr-01243-DMS-3; D.C. No. 3:06-cr-01243-DMS-11; D.C. No. 3:06-cr-01243-DMS-17; D.C. No. 3:06-cr-01243-DMS-5; D.C. No. 3-06-01243-DMS-10; D.C. No. 3:06-01243-DMS-4; D.C. No. 3:06-cr-01243-DMS-6

The opinion of the court was delivered by: Noonan, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted May 4, 2011-Pasadena, California

Before: John T. Noonan and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman, Senior District Judge.*fn1

Opinion by Judge Noonan

OPINION

Ricardo Martinez, Thomas Durkin, Eduardo Gonzalez-Gallegos, George Fernandez, Cesar J. Abarca, Joshua Cruz, and Richard Valenzuela appeal their convictions of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d), and their sentencing enhancement for carrying out the conspiratorial agreement by acts subjecting them to life imprisonment. We affirm the judgment of the district court.

PROCEEDINGS

On June 6, 2006, a federal grand jury indicted twenty-two persons including the seven defendants on a single count of conspiracy in violation of 18 U.S.C. § 1962(d). A number of those indicted pleaded guilty. Several were severed to be tried separately. The seven defendants went to trial on October 15, 2007. The jury returned a verdict of guilty on January 4, 2008. Each defendant was sentenced to imprisonment for life.

This appeal followed. Conscientious counsel for the seven defendants make a multitude of points on their behalf.

FACTS

Martinez is a member of the Mexican Mafia. Durkin, Gonzalez, and Fernandez are high-level associates in the Mexican Mafia. Abarca, Cruz, and Valenzuela are soldiers in this organization.

The history and activities of the Mexican Mafia have been well set out by Judge Trott in United States v. Shryock, 342 F.3d 948 (9th Cir. 2003). Beginning as members of a street gang incarcerated at Deuel Vocational Institution in Tracy, California in the 1950s, the Mexican Mafia became a presence in California prisons and in federal prisons within California. The organization had an ethnic identity: Hispanic. It had a form: hierarchical. The leaders - known as members - were chosen by existing members. Associates were aspirants to membership. The soldiers took orders. The objectives of the organization were power in the prisons and the control of drug trafficking within and outside the prisons. Despite the efforts of the authorities, the Mexican Mafia has survived for half a century. It enforces its will by violence including murder.

These characteristics of the Mexican Mafia, already observed in Shryock, were set before the jury in this case by the testimony of a government expert on the organization and by the testimony of a former member. Its presence in Southern California was particularly emphasized. No witness disputed this evidence. The government ...


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