Opinion
19-50158 19-50169 19-50173
10-13-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ENRIQUE HOLGUIN, AKA Rick, AKA Ricky, AKA Slick, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMANUEL HIGUERA, AKA Blanco, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD GOULET, AKA Wacky, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted December 6, 2021 Pasadena, California
Appeal from the United States District Court for the Central District of California Nos. 2:16-cr-00390-RGK-34, 2:16-cr-00390-RGK-26, 2:16-cr-00390-RGK-10 R. Gary Klausner, District Judge, Presiding
Before: BERZON, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
Enrique Holguin, Emanuel Higuera, and Donald Goulet appeal their convictions and sentences for conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, and other offenses stemming from their involvement in the Canta Ranas organization. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
We discuss appellants' remaining challenges in a separate opinion filed concurrently with this disposition. We deem forfeited any issues that were not specifically and distinctly raised in appellants' opening brief. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992).
1. The government did not violate Fed. R. Crim. P. 16 in disclosing Mexican Mafia expert Rene Enriquez three weeks before trial, when it substituted Enriquez in lieu of a different Mexican Mafia expert covering the same topics. Three weeks before trial is within the range approved by this court. See United States v. Martinez, 657 F.3d 811, 817 (9th Cir. 2011) (disclosure five days before trial but one month before expert's testimony began); United States v. Mendoza-Paz, 286 F.3d 1104, 1111-12 (9th Cir. 2002) (disclosure twelve days before trial). The record does not support appellants' contention that the government failed to disclose Enriquez's opinions and their bases. The government did disclose a summary of his opinions and the experience that supported their admissibility. Appellants' suggestion that the government failed to sufficiently disclose transcripts of Enriquez's prior testimony lacks merit. The government represents, and appellants do not dispute, that the government produced all transcripts in its possession. See United States v. Cano, 934 F.3d 1002, 1023 (9th Cir. 2019) ("Under … Rule 16, the government 'has no obligation to produce information which it does not possess or of which it is unaware.'" (citation omitted)).
Moreover, appellants fail to articulate how earlier or more extensive disclosure would have improved their cross-examination of Enriquez and affected the verdict. Id. at 1112 (prejudice in this context means "a likelihood that the verdict would have been different if [the] information had been provided earlier" (citation omitted)). Appellants' argument that late and insufficient discovery violated the Confrontation Clause fails for the same reason.
2. Considering the jury instructions as a whole, the district court's formulation of the instructions as to the RICO conspiracy did not result in reversible error. See United States v. Rodriguez, 971 F.3d 1005, 1012 (9th Cir. 2020) ("Jury instructions must be evaluated 'as a whole, and in context,' rather than in piecemeal." (citation omitted)). The instructions required the jury to find an agreement between two or more persons to conduct or to participate in the conduct of the affairs of the enterprise through a pattern of racketeering activity, i.e., "the commission of certain crimes" including "extortion, robbery, drug distribution, money laundering," and that appellants joined that conspiracy by willfully participating in it while knowing of its object and intending to help further or facilitate the scheme. The instructions adequately captured the underlying offense and the role required of each appellant. See Smith v. United States, 568 U.S. 106, 110 (2013) ("To convict a defendant of narcotics or RICO conspiracy, the Government must prove beyond a reasonable doubt that two or more people agreed to commit a crime covered by the specific conspiracy statute (that a conspiracy existed) and that the defendant knowingly and willfully participated in the agreement (that he was a member of the conspiracy)."); see also Salinas v. United States, 522 U.S. 52, 65 (1997) ("A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of [the underlying] criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor.").
3. Holguin argues that reversal is required on his conviction on the Violent Crimes in Aid of Racketeering Activity ("VICAR") count, 18 U.S.C. § 1959. First, Holguin contends that he was convicted based on a predicate crime of attempted assault that does not exist under California law. See In re James M., 510 P.2d 33, 35-36 (Cal. 1973) (declining to recognize the crime of attempted assault and noting that assault is already defined in terms of an attempt). The district court, however, properly instructed the jury that the government must prove the elements of the state assault crime alleged in the indictment. Cal. Penal Code § 245(a)(4) (assault with force likely to produce great bodily injury). Because the jury was required to find a § 245(a)(4) assault, and considering the uncontroverted evidence that the assault was completed and not merely attempted, the references to "attempting to commit and aiding and abetting in the commission of an assault" made elsewhere in the jury instructions were harmless and do not require reversal.
Second, Holguin contends the evidence as to the likelihood of serious injury was insufficient because he did not use a cane during the altercation. Even assuming Holguin is correct that he used only his bare hands, such evidence would still be sufficient to support a conviction. See People v. Medellin, 258 Cal.Rptr.3d 867, 875 (Cal.Ct.App. 2020) (holding that § 245(a)(4) may be satisfied "where the attack is made by use of hands or fists" (quotation marks and citation omitted)). Physical injury is not required. People v. Brown, 147 Cal.Rptr.3d 848, 851 (Cal.Ct.App. 2012). Here, surveillance footage shows Holguin and another inmate initiating a two-on-one attack on the victim that lasts over a minute, during which Holguin and the other inmate punched the victim numerous times until they were stopped by detention center personnel. Construing this evidence in the light most favorable to the prosecution, United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc), a rational trier of fact could find use of force likely to produce serious injury.
We reject Holguin's argument that any evidence regarding his use of his cane cannot be considered under § 245(a)(4). See Cal. Penal Code § 245(a)(4) (prohibiting an assault by "any means of force likely to produce great bodily injury" (emphasis added)).
To the extent counsel argued orally that § 245(a)(4) was an insufficient predicate crime under the VICAR statute, that argument was not specifically and distinctly raised in the opening brief and is thus forfeited. See Ullah, 976 F.2d at 514.
4. Holguin argues that certain statements made by the government during closing arguments misrepresented evidence at trial and constitute prosecutorial misconduct. As the statements were not objected to at trial, we review for plain error. United States v. Tuan Ngoc Luong, 965 F.3d 973, 988 (9th Cir. 2020). We find none. The statements were arguable inferences from the evidence adduced at trial and did not plainly result in any misrepresentation. With respect to the government's statements regarding the cane, the parties disputed what the surveillance footage of the assault showed, and Holguin's counsel fully presented his argument to the jury that the footage did not portray Holguin wielding the cane. In its rebuttal, the government stated that "the video speaks for itself" and urged the jury to review it again if needed, which the jury did.
5. Holguin argues that the district court erred in excluding testimony from his daughter regarding her understanding of his use of the phrase "hookup." Even if the district court's exclusion of testimony was erroneous, it was harmless. See United States v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015). Holguin concedes that the purpose of that testimony was "to get into evidence that [his daughter's] understanding of the request to give someone his 'hookup' was to give them his address." The district court allowed testimony to that effect.
For these reasons, the error alleged does not amount to a constitutional violation. See United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992) (holding that no constitutional violation occurred where "testimony sought to be adduced would not have added substantially to the knowledge the jury gained during the course of the trial").
6. Because any errors were either harmless or did not amount to plain error, "the cumulative effect" of any errors is harmless. United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir. 2004).
7. The district court erred in instructing the jury that its drug weight findings under 21 U.S.C. § 841(b) should be based on what was "reasonably foreseeable to the defendant" and "in furtherance of the drug conspiracy." United States v. Collazo considered whether a mens rea is required for imposing penalties under § 841(b), and held that the "government is not required to prove that the defendant knew (or had an intent) with respect to the drug type and quantity set forth in those penalty provisions in order for them to apply." 984 F.3d 1308, 1315 (9th Cir. 2021) (en banc); see id. 1322-29. The jury instructions at issue here were therefore erroneous. However, the appellants received the benefit of the error, as the instructions imposed a mens rea requirement. Thus, no prejudice occurred and reversal is not warranted. See United States v. Irons, 31 F.4th 702, 716-17 (9th Cir. 2022) (holding that a similar instruction "provide[d] no grounds for reversal" because "[a]t worst, the instruction required the Government to prove more than Collazo required, but not less").
8. Sufficient evidence supported the jury's drug weight finding holding Holguin responsible for at least 50 grams of methamphetamine. The government presented evidence of Holguin's long-time and high-level involvement in the Canta Ranas organization. This evidence included Holguin's correspondence with Gavaldon, Holguin's efforts (according to Enriquez) to run a mesa at Chino State Prison for Gavaldon, the Canta Ranas symbols at Holguin's residence, and Holguin's assault at the Metropolitan Detention Center on the gang's behalf. The government also presented evidence of drug seizures from Canta Ranas members Jose Loza and Christy Arizmendi, which far exceeded 50 grams of methamphetamine. Construing the evidence in the prosecution's favor, a rational trier of fact could have held Holguin responsible for at least 50 grams of methamphetamine. See Nevils, 598 F.3d at 1163-64.
9. Holguin finally argues that the district court erred in holding him responsible for at least 50 grams of methamphetamine for purposes of calculating his base offense level under the sentencing guidelines.
The district court applied the correct legal standard. Although the standard for relevant conduct under the guidelines differs slightly from the pre-Collazo standard applied by the jury, see U.S.S.G. § 1B1.3(a)(1)(B), the Presentence Report ("PSR") stated the correct legal rule, explicitly recognizing that the jury verdict did not dictate the guidelines determination, and the district court adopted the analysis set forth in the PSR.
The district court did not err in finding Holguin responsible for at least 50 grams of methamphetamine under U.S.S.G. § 2D1.1(c)(5). The district court explained that Holguin's arguments that his RICO conspiracy conviction had nothing to do with drug distribution were inconsistent with the evidence and the jury's verdict. In adopting the probation officer's recommendation, which ultimately deferred to the district court's recollection of the evidence presented at trial, the district court found that the evidence supporting the verdict also supported Holguin's responsibility under the guidelines for the same amount of methamphetamine.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.