     Case: 14-50392      Document: 00513336362         Page: 1    Date Filed: 01/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 14-50392
                                                                                  FILED
                                                                            January 8, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff-Appellee,
v.

ARTURO GALLEGOS CASTRELLON, also known as Benny, also known as
Farmero, also known as 51, also known as Guero, also known as Pecas, also
known as Tury, also known as 86, also known as "Tury", also known as
"Guero", also known as "Farmero", also known as "Benny", also known as
"Pecas", also known as "51",

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CR-2213


Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       A jury convicted Arturo Gallegos Castrellon (“Gallegos”) of several
federal crimes, but he appeals only the conviction for 18 U.S.C. § 956—
conspiracy to commit murder in a foreign country. He argues that the evidence
was insufficient to establish two essential elements of the offense: no


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-50392
conspirator performed an overt act in the United States, and no conspirator
was in the United States at the time he conspired. We find that the evidence
is sufficient and AFFIRM the conviction.
                                        I.
      On March 31, 2010, Gallegos ordered a hit team to assassinate the
occupants of two vehicles transporting children after a birthday party. The hit
team complied with his order and riddled the two vehicles with bullets. Two
people died in one car, and another person died in the second car. The children
were the only survivors.
      Gallegos served as a lieutenant in the paramilitary group Barrio Azteca
(“Azteca”) in Juarez, Mexico. His main role was to organize hit teams for Azteca
in its ongoing war with a rival cartel. He received much of his information on
potential targets from the Azteca headquarters in El Paso, Texas.
      Because Azteca had branches in both El Paso and Juarez, they focused
on sharing information and believed that “without communication, the gang
cannot exist.” To ensure reliable communication between the United States
and Mexico, Azteca required its members to be familiar with their activities in
each place. This prevented the gang from being “caught off-guard for any”
reason.
      Azteca also relied on a system of hierarchy and punishment to run its
gang efficiently. The hierarchy of Azteca ranged from prospect to soldier to
lieutenant to captain. If a soldier failed to follow the order of a lieutenant or
captain, he could “end up killed.”
      Gallegos ordered Chino Valles (“Valles”) who was in charge of
communication between Juarez and El Paso to ask the Aztecas in El Paso to
research the Texas license plate on a white Honda Pilot. Gallegos had noticed
the vehicle outside his home in Juarez several times and believed that it


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                                        No. 14-50392
belonged to a rival cartel. Moreover, he thought that the El Paso Aztecas could
determine its owner through its Texas plate.
       Gallegos also instructed his hit teams to “look-out” for the vehicle. They
found two similar vehicles at a birthday party attended by employees of the
United States Consulate. Even though they did not match perfectly, the two
vehicles leaving the children’s party were targeted on Gallegos’ order. The
assassins killed two individuals in one car and one person in the other.
       Mexican authorities arrested Gallegos and transferred him to the United
States. The United States prosecuted and convicted Gallegos on eleven counts
of various crimes, including one count of conspiracy to commit murder. The
district court sentenced Gallegos to four consecutive terms of life
imprisonment. 1 Gallegos challenges only his conviction for conspiracy to
commit murder outside the United States.
                                               II.
       We review de novo the district court’s denial of a motion for judgment as
a matter of law based on a preserved challenge to the sufficiency of the
evidence. 2 If the defendant fails to preserve his challenge by renewing it at the
close of evidence, however, we review for plain error. 3 Here, although Gallegos
moved for a judgment as a matter of law after the government’s case, he failed
to renew the objection at the close of the evidence. Accordingly, we review the
district court’s denial of his motion for plain error.


       1  Gallegos received seven terms of life imprisonment served concurrently, and three
terms of life imprisonment served consecutive to all other sentences.
        2 United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).
        3 United States v. Davis, 690 F.3d 330, 336 & n.6 (5th Cir. 2012) (“[W]here a defendant

moves for a judgment of acquittal at the end of the Government’s case but, after presenting
evidence, fails to renew that motion, the defendant has forfeited his insufficiency challenge
and our review is for [plain error].”) (citing United States v. Delgado, 672 F.3d 320, 331 n.9
(5th Cir. 2012) (en banc) (explaining that “[a]lthough the plain-error test should always be
cited, we recognize that the ‘manifest miscarriage of justice’ formulation is itself a reasonable
restatement of the four-prong test.”))).
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                                       No. 14-50392
       To show plain error, the government must ordinarily satisfy a four-prong
test: (1) there must be an error or defect, (2) the legal error must be clear or
obvious, (3) the error affected defendant’s substantial rights, and (4) the error
seriously affects the fairness, integrity or public reputation of the judicial
proceedings. 4 When we review a denial of a motion for judgment as a matter of
law, based on an unpreserved sufficiency challenge, an error is considered
obvious under the second prong only where “the record is devoid of evidence
pointing to guilt.” 5 To prevail on appeal, therefore, Gallegos must show that
the evidence is more than insufficient; he must show that the record is devoid
of evidence pointing to guilt. 6
                                            III.
       Conspiracy to commit murder in a foreign country requires proof of four
elements: the defendant and at least one other person agreed to commit a
murder outside the United States; the defendant willfully joined the
agreement with the intent to further its unlawful purpose; at least one
conspirator committed an overt act in furtherance of the conspiracy in the
United States; and, at least one conspirator was in the United States at the
time he conspired. 7 Gallegos challenges the sufficiency of the government’s
proof on the latter two elements—essentially, he argues that the record is
devoid of evidence establishing that the El Paso Aztecas were coconspirators
in the murder.
       “The Government is not required to prove the existence of the conspiracy
and the agreement between the co-conspirators and the defendant by direct
evidence, but may present circumstantial evidence, such as the co-conspirator’s


       4Delgado, 672 F.3d at 329 (citing United States v. Olano, 507 U.S. 725, 732-36 (1993)).
       5See Delgado, 672 F.3d at 331 (emphasis omitted).
      6 See id.
      7 See United States v. Martinez-Herrera, 539 F. App’x 598, 600 (5th Cir. 2013) (citing

United States v. Wharton, 320 F.3d 526, 537-38 (5th Cir. 2003)).
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                                       No. 14-50392
concerted actions, from which the jury can infer that a conspiracy existed.” 8
The record here contains such circumstantial evidence. Gallegos’ hit team
leader—Jesus Ernesto Chaves Castillo (“Castillo”)—testified that he heard
Gallegos order Valles to call the El Paso Aztecas and find out to whom the
white vehicle was registered.
       We can reasonably infer that Valles telephoned El Paso based on his role
in the Aztecas. 9 Because Valles conducted the communication between Juarez
and El Paso, a telephone call to El Paso would be routine for him, and there is
no reason to assume that he would not follow Gallegos’ direct order. Moreover,
the chance that Valles contacted El Paso is heightened considering how
important the Aztecas considered communication.
       Second, we can reasonably infer that the El Paso Aztecas received this
call and understood the request. The notion that an El Paso Azteca would not
take some action on an order by a lieutenant such as Gallegos is extremely
unlikely—they could face punishment including death for failing to follow such
an order. Moreover, this exchange between Valles and the Aztecas in El Paso
constitutes an overt act in the United States. 10 Finally, given the open
communication between Juarez and El Paso—and the fact that Azteca
members were required to be familiar with the organization’s activities in both
locations—it is likely that the Aztecas in El Paso understood why Valles
requested the investigation. There is no reason why Valles would not have
discussed that surveillance by a rival cartel was the reason to check the vehicle.


       8 United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991) (discussing drug conspiracy).
       9 See United States v. Virgen-Moreno, 265 F.3d 276, 284-85 (5th Cir. 2001) (explaining
that in the context of 21 U.S.C. § 841 “[d]irect evidence of a conspiracy is unnecessary; each
element may be inferred from circumstantial evidence. . .[and the government] only needs to
produce slight evidence to connect an individual to the conspiracy.”).
       10 United States v. Cardona-Ramirez, 358 F. App’x 562, 564 (5th Cir. 2009) (“[T]here

is a sufficient factual basis to establish that a portion of the conspiracy, the overt act of
receiving the telephone call, took place in the United States.”).
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                                      No. 14-50392
Also, according to Castillo, calls to the El Paso branch about hits were not
unusual. Because the vehicle allegedly belonged to a rival cartel and Valles
often discussed hits with the Azteca representative in El Paso, they likely
understood that Gallegos planned to take violent action against its owner and
implicitly agreed to further this unlawful purpose. 11
       As the record contains evidence tending to show that Valles made the
call to El Paso and that the El Paso Aztecas received the call, understood its
import, and agreed to further its objective, the record is not devoid of evidence
establishing that the El Paso Aztecas were coconspirators in the murder. The
phone call from Valles to El Paso thus satisfies both the third element—that
at least one conspirator committed an overt act in furtherance of the conspiracy
in the United States—and the fourth element—that at least one conspirator
was in the United States at the time he conspired—required to establish
conspiracy to commit murder in a foreign country. 12
                                            IV.
       For these reasons, we agree with the government that the record is not
devoid of evidence on any of the elements of this offense, and AFFIRM the
conviction.




       11  See United States v. Montgomery, 210 F.3d 446, 449 (5th Cir. 2000) (noting that in
the context of 21 U.S.C. § 846, the government must prove that an agreement existed, but
“[t]he agreement may be implicit, and the jury may infer its existence from circumstantial
evidence.”).
        12 See Martinez-Herrera, 539 F. App’x at 600.

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