     Case: 15-51164    Document: 00514327662     Page: 1   Date Filed: 01/30/2018




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

                                  No. 15-51164
                                                                         Fifth Circuit

                                                                       FILED
                                                                January 30, 2018

UNITED STATES OF AMERICA,                                         Lyle W. Cayce
                                                                       Clerk
            Plaintiff-Appellee,
v.

CRISTOBAL VELASQUEZ, also known as Little Cris; RAUL RODRIGUEZ,
also known as Fat Boy; GEORGE SANCHEZ, also known as Curious; MIKE
CASSIANO,

            Defendants-Appellants.




                Appeals from the United States District Court
                      for the Western District of Texas


Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:
      This appeal arises from the convictions of Defendants-Appellants
Cristobal Velasquez, also known as Little Chris (“Velasquez”), Raul Rodriguez,
also known as Fat Boy (“Rodriguez”), George Sanchez, also known as Curious
(“Sanchez”), and Mike Cassiano (“Cassiano”) (collectively, “Defendants”)
because of their involvement in racketeering activities centrally involving
violence, murder, and the distribution of drugs on behalf of the Texas
Syndicate gang in Uvalde, Texas. Defendants-Appellants challenge on appeal,
jointly and individually, a number of issues concerning their trials, convictions,
and sentences. Defendants’ arguments do not convince this court that their
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                                         No. 15-51164
convictions and sentences should be overturned. For the reasons set forth
below, we AFFIRM Defendants-Appellants’ convictions and sentences.
        I.      FACTUAL BACKGROUND AND PROCEDURAL HISTORY
   A. Factual Background from the Evidence Presented
       At both trials, 1 the evidence presented described the overall structure of
the Texas Syndicate gang in Uvalde, Texas, specific instances of violent
conduct including three different murders, and drug distribution activity
involving Defendants. 2
       1. General Information Presented About the Texas Syndicate
       The Texas Syndicate was spawned in the California prison system in the
late 1970s by Texas inmates. The Texas Syndicate’s presence has now spilled
over to prisons throughout the United States, and to the Texas cities of
Houston, Hondo, Dallas, Austin, Seguin, Uvalde, San Antonio, Belton, Corpus
Christi, McAllen, and Brownsville. The gang is referenced by its members in
various ways that play on the letters “T” and “S” – Ese Te, Tejano Style,
Sindicato Tejano. Texas Syndicate members also refer to themselves as the
cuernos, which is Spanish for “horns.”
       Chapters of the Texas Syndicate exist in different prisons and cities.
Each chapter operates under the Texas Syndicate umbrella, but is
autonomously led by the respective Texas Syndicate leadership of the chapter.
If a member moves to a different chapter, he has to be cleared by the prison or


       1  Two different jury trials are relevant to this appeal. In the first trial, a jury returned
guilty verdicts as to Velasquez, Rodriguez, and Cassiano for all of the charges against them.
During the first trial, Sanchez was severed from Velasquez, Rodriguez, and Cassiano to be
retried separately at a later date. At Sanchez’s trial, a jury found Sanchez guilty of all the
charges against him.
        2 This court describes the facts as presented at Defendants’ trials viewing them in the

light most favorable to the verdicts, as we must. See United States v. Zamora, 661 F.3d 200,
209 (5th Cir. 2011).
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                                  No. 15-51164
city that he has moved to before he can continue to participate in Texas
Syndicate business. This process, resembling a background check, is called
“running the lights.”
      Texas-born Mexican-American males are the predominant members of
the Texas Syndicate. One of the rules in the Texas Syndicate constitution, or
reglas del ese te, is that “to become a cuerno you must be a Tejano/Mexicano.”
Other reglas del ese te provisions that crowd upon the facts of this case include:
         • Once you become a cuerno del ese te you must put the copia on . . .
           (revised – not anymore your choice) [sic];
         • Once you become a cuerno del ese te you must know its por vida . .
           . (no way out) [sic];
         • A cuerno del ese te will come first in everything, there will be no
           excuses – no one, friends, homies, cousins, blood family or god will
           come before el ese te [sic];
         • All decisions will be made by majoria, every cuerno has the right
           to vote . . . [sic];
         • When a cuerno requests a vote to be taken for someone to enter el
           ese te and that person becomes a cuerno then the cuerno
           sponsoring him (the new cuerno) will be responsible for him, be
           careful whom you recruit . . . [sic];
         • If there’s any deals with drugs, money, or any type of profit, we
           will share with the cuernos, if you use your personal money you
           get your money back first make sure you tell the cuernos what your
           doing so there won’t be no misunderstandings . . . [sic]; and
         • Every prospect will be investigated throughout the system and
           where ever there are cuernos [sic].

      Each Texas Syndicate chapter is led by a top carnal, essentially acting
as the chairman of the chapter, called a sillon. One is not a full member of the
Texas Syndicate until he is a carnal and an individual has to be a prospect for
a probationary period of one to three years before becoming a carnal. The sillon
is followed in rank by a lieutenant, sergeant, representative, treasurer, carnal,
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and prospect. To become a member, an individual must be sponsored and
recruited by a current member in good standing, who will serve as that
individual’s padrino or godfather.
      After becoming a Texas Syndicate member by unanimous vote of the
chapter, that individual is a Texas Syndicate member for life and permitted to
participate in all Texas Syndicate business and privileges. Membership
includes the ability to vote at Texas Syndicate meetings. Only a Texas
Syndicate member is permitted to pose as a Texas Syndicate member with
other members in photographs. At trial, testimony revealed that Texas
Syndicate chapters frequently disseminate group pictures to one another with
the members’ names on the back of the photographs to keep track of the
different members across the Texas Syndicate organization. An additional rite
of passage to becoming a member is getting the Texas Syndicate copia, which
is a tattoo showing allegiance to the gang. The prototypical copia to signify
Texas Syndicate membership is a stacked, intertwined “TS.” If someone has
the Texas Syndicate tattoo without actually being a member, he could be killed.
Other forms of tattoos signifying membership span from the plain spelling of
the words “Texas Syndicate” or “cuernos” to depictions of horns, longhorns, a
serpent shaped in the letter “S,” the University of Texas’s longhorn logo, and
the NFL team Houston Texans’s logo.
      2. Defendants’ Alleged Participation in the Conspiracy
      Facing the prospect of jury trials, eleven of the fifteen indicted co-
conspirators pled guilty. The four individuals who did not plead guilty are
Defendants. Some of the co-conspirators became Government witnesses to




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testify against Defendants. 3 At both trials, the co-conspirators testified that
they could be killed for testifying against another Texas Syndicate member.
      Testimony from trial revealed that Velasquez, Rodriguez, Sanchez, and
Cassiano are members of the Texas Syndicate in Uvalde and began their
membership in the late 1990s or early 2000s. Rodriguez, Cassiano, and
Sanchez also served as padrinos for prospects. At different points from January
2002 to September 2011, Defendants were stated to have actively participated
in selling and distributing cocaine on behalf of the Texas Syndicate. Ervey
testified that on one occasion he was commissioned by his padrino, Sanchez, to
pick up a kilogram of cocaine for Sanchez behind a movie theater. The cocaine
had a street value of $24,000. After Ervey brought the cocaine to Sanchez’s
house, Sanchez took Ervey to Sanchez’s brother-in-law’s house to break down
the cocaine. Sanchez compensated Ervey in cocaine for picking up the drugs.
      3. Rogelio Mata (“Mata”) Murder; October 2002
      In October 2002, Rodriguez, Sanchez, and other Texas Syndicate
members were said to have voted at a Texas Syndicate meeting to have fellow
Texas Syndicate member, Mata, murdered. Mata owed a drug debt to another
Texas Syndicate chapter. Because Mata was a member in the Uvalde chapter,
the Uvalde chapter was responsible for him. Testimony at both trials from
members who claimed that they were at the meeting, indicated that the vote
in favor of killing Mata was at least seven out of eight votes, and that Rodriguez
and Sanchez voted “yes” to kill Mata.
      Rodriguez and his brother John Rodriguez (“John”), also a Texas
Syndicate member, volunteered to execute the murder. After the vote was



      3 Charles Esparza (“Esparza”), Jose Torres (“Torres”), Ervey Sanchez (“Ervey”), Inez
Mata (“Inez”), and Larry Munoz.
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conducted, the members took a photograph to memorialize the meeting.
Rodriguez, John, and Sanchez were in the photograph.
       On October 13, 2002, in the early evening, Rodriguez and John picked
up Mata in John’s truck. Later that night, Mata’s body was found in a grassy
bar ditch next to a highway two miles west of Uvalde. Mata had gunshot
wounds to his chest and head. John was said to have shot Mata with Rodriguez
in attendance. Testimony at trial revealed that Rodriguez and John then went
to their uncle’s house, who was also a Texas Syndicate member, to clean the
gun John used by placing it in a bucket of bleach.
       The Uvalde County Sheriff’s Department collected an empty beer bottle
at the scene where Mata’s body was found. A DNA test conducted in 2004
indicated that the DNA on the bottle could not have come from Mata or John.
The partial DNA profile results, however, could not eliminate Rodriguez as
being the source of the DNA obtained from the bottle. 4
       4. Jose De La Garza (“De La Garza”) Murder; December 2005
       In 2005, Cassiano was the acting sillon in Uvalde. During this era, the
Texas Syndicate members were said to be Cassiano’s “enforcers.” In December
2005, Cassiano’s roommate had a radio stolen from his vehicle. De La Garza
purchased the stolen radio and would not return it. De La Garza’s failure to
return the radio caused a problem with Cassiano.
       After a series of retaliatory acts, Cassiano began to push for De La
Garza’s murder. Cassiano then gathered enough votes from Texas Syndicate
members to seal De La Garza’s fate.




       4 Rodriguez was incarcerated in December 2002 for a drug offense, and his
incarceration continued for the remainder of the time that the alleged conspiracy took place.
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      On Christmas Eve 2005, Cassiano, Velasquez, Cassiano’s prospect Jesse
James Polanco (“Polanco”), Caleb Velasquez (“Caleb”) and Josue Velasquez
(“Josue”), approached Mexican Mafia member Orlando Guerrero (“Guerrero”)
at a bar in Uvalde. Guerrero testified at trial that since the Mexican Mafia and
Texas Syndicate have a peace treaty agreeing to settle disputes in house and
not inflict violence on each other’s members, Cassiano was doing his due
diligence to make sure that De La Garza was not a Mexican Mafia member.
Guerrero subsequently notified Cassiano that De La Garza was not a Mexican
Mafia member. That night, testimony unveiled that Cassiano was with Caleb,
Josue, and a woman who works in the bail bonds business inquiring about the
possibility of the bail bonds woman bailing someone out of jail if there was an
arrest.
      The next night, after leaving Cassiano’s house, Polanco drove Cassiano’s
truck with Velasquez, Caleb, and Josue to De La Garza’s home. The group
forced their way into the home and Velasquez began beating De La Garza.
While Velasquez beat De La Garza, Caleb shot De La Garza in the chest and
forearm, killing De La Garza. Velasquez was inadvertently shot in the leg
during the incident.
      Velasquez, Caleb, Josue, and Polanco were subsequently arrested
because of their suspected connection to the De La Garza murder. Velasquez
pled guilty to aggravated assault of De La Garza in state court in 2007, and
Caleb, and Josue were convicted of the murder of De La Garza in state court.
Polanco, however, only received probation and was released. Cassiano was also
arrested around this time because of a drug related offense. 5



      5Cassiano pled guilty to conspiracy to possess with intent to distribute cocaine in
December 2008.
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                                 No. 15-51164
      5. Polanco Murder; November 2009
      During his incarceration, Cassiano began to believe that his prospect,
Polanco, was a confidential informant. Cassiano began to push for Polanco’s
murder from jail. Testimony presented at the trial stated that Cassiano made
calls from a smuggled cell phone and sent correspondence to other Texas
Syndicate members by mail from prison, pushing for the killing of Polanco.
      In November 2009, Sotero Rodriguez Martinez (“Martinez”), the sillon in
Uvalde at the time, approached Texas Syndicate prospect Ervey stating that
Cassiano continued to push for the murder of Polanco. Martinez told Ervey
that he wanted him to execute the murder. A couple of months before this
discussion, Ervey testified that his padrino, Sanchez, stated he might ask him
“to do something that [he] could get life in prison or the needle” for doing.
      On November 9, 2009, Ervey went to Polanco’s house in the early
morning, and once Polanco opened the door, Ervey shot Polanco in the chest
two times. Ervey additionally shot Polanco in the face to ensure his death.
Ervey stated that the killing was completely directed by the Texas Syndicate.
      6. FBI Investigation; December 2009 to September 2011
      In December 2009, the FBI began to conduct an investigation of the
Texas Syndicate in Uvalde. The purpose of the investigation was to obtain
information regarding drug trafficking and violent activity conducted by the
Texas Syndicate, and to investigate unsolved murders in the Uvalde area. The
investigation was conducted until September 2011. Based on a tip from a
wiretap, an individual was intercepted transporting marijuana for the Texas
Syndicate from Hondo to Uvalde. An undercover FBI agent additionally
purchased crystal methamphetamine and cocaine from Texas Syndicate
prospects in Uvalde. In April 2010, Rodriguez was recorded clearing Uvalde
Texas Syndicate members for the “running the lights” process from prison. A
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                                No. 15-51164
recording from an August 2010 meeting concerning Texas Syndicate business
included references to “Fat Boy,” which the FBI believed to be a reference to
Rodriguez. At this meeting, a meeting which Sanchez and Velasquez attended,
Texas Syndicate members discussed possibly killing Ramon Rodriguez
(“Spider”), a member of a rival gang known as the TSO. Ervey was also made
a full member at this meeting. Sanchez, Ervey’s padrino, welcomed him to the
gang after a vote.
      7. Additional Signs of Defendants’ Texas Syndicate Membership
      In September 2011, a series of search warrants were executed on the
residences of alleged Texas Syndicate members in Uvalde, including Sanchez’s
and Velasquez’s residences. During a search of the Texas Syndicate sergeant
Eli Torres’s (“Eli”) home, a composition book was found in a drawer in his
bedroom with names and positions of the Texas Syndicate members in Uvalde
at the time. The word “Rep.” was next to “George Sanchez Aka Curious” and a
“c/” which was said to signify carnal was next to “Chris Velasquez Aka Lil
Chris.” Rodriguez and Cassiano’s names did not appear in the book.
      The Government offered evidence at both trials to show that the tattoos
of Rodriguez, Cassiano, Sanchez, and Velasquez signified their membership.
Rodriguez has intertwined “TS” tattoos on his arms, the word “cuerno” on the
front of his neck, the word “Texas” across the back of his neck, a cow’s skull
with horns on his upper chest, a longhorn under his eye, a longhorn skull with
horns and a serpent protruding out of it on his hand, and a horn tattoo on the
side of his head. Cassiano has tattoos of a picture of a woman who has a shirt
with a longhorn on it and has the word “Texas” going across her stomach, the
Houston Texans’s logo on the front of his neck, and the words “Texas
Syndicate” on the side of his neck. Cassiano also has tattoos of a man with
horns on his back, the words “Texas” with a longhorn depiction on his stomach,
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                                 No. 15-51164
and the intertwined “TS” on his forearm and leg. An intertwined “TS” tattoo is
on the left forearm of Sanchez. Velasquez has a picture of a serpent shaped in
the letter “S” on his upper arms, and a longhorn skull on his upper back, lower
neck area.
   B. Procedural History
      On September 29, 2011, a grand jury in the Western District of Texas
indicted Rodriguez, Cassiano, Velasquez, Sanchez, and eleven other co-
conspirators. All of the conspirators were charged with conspiracy to violate
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(d). Rodriguez was charged with the murder of Mata, in aid of
racketeering, in violation of the Violent Crimes in Aid of Racketeering Act
(“VICAR”), 18 U.S.C. §§ 1959(a)(1)&(2). Velasquez and Cassiano were charged
with conspiracy to commit the murder of De La Garza, in aid of racketeering,
in violation of VICAR, 18 U.S.C. § 1959(a)(5). Velasquez was charged with the
murder of De La Garza in aid of racketeering, in violation of VICAR, 18 U.S.C.
§§ 1959(a)(1)&(2). Cassiano was additionally charged with conspiracy to
commit the murder of Polanco, in aid of racketeering, in violation of VICAR,
18 U.S.C. § 1959(a)(5). In a Second Superseding Indictment, Sanchez was
charged with conspiracy to violate RICO, 18 U.S.C. § 1962(d), conspiracy to
commit the murder of Mata, in aid of racketeering, in violation of VICAR, 18
U.S.C. § 1959(a)(5), and the murder of Mata, in aid of racketeering, in violation
of VICAR, 18 U.S.C. § 1959(a)(1).
      Two separate week-long trials ensued. At the first trial, a jury returned
guilty verdicts for Velasquez, Rodriguez, and Cassiano for all of the charges
against them. On day four of the first trial, Sanchez was severed from the trial
of the rest of Defendants to be separately retried at a later date. At the second
trial, a jury found Sanchez guilty of all the charges against him. Defendants
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                                       No. 15-51164
were each sentenced to a term of life imprisonment. 6 Defendants now appeal
their convictions and sentences asserting over ten grounds for reversal. None
are persuasive.
                                      II.     DISCUSSION
       We will first consider whether the Government submitted sufficient
evidence during the trials to support Defendants’ convictions. In a variety of
ways, Defendants assert that there is insufficient evidence to support certain
elements of their convictions. 7 Defendants also make arguments that this court
should discredit the evidence presented by the co-conspirators. Defendants’
arguments in this vein are unconvincing. Generally, “it is the responsibility of
the jury—not the court—to decide what conclusions should be drawn from
evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam).
“It [is] within the sole province of the jury as the fact finder to decide the
credibility of the witnesses and to choose among reasonable constructions of
evidence.” United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994) (citation




       6  Velasquez was sentenced to a term of life imprisonment for his convictions for
violating RICO, § 1962(d) and the murder of De La Garza in violation of VICAR, §
1959(a)(1)&(2), and 120 months for conspiring to commit the murder of De La Garza in
violation of VICAR, § 1959(a)(5). Cassiano was sentenced to a term of life imprisonment for
violating RICO, § 1962(d), and 120 months for conspiring to commit the murders of De La
Garza and Polanco in violation of VICAR, § 1959(a)(5). Rodriguez was sentenced to a term of
life imprisonment for violating RICO, § 1962(d) and for the murder of Mata in violation of
VICAR, § 1959(a)(1)&(2). Sanchez was sentenced to a term of life imprisonment for violating
RICO, § 1962(d) and for the murder of Mata in violation of VICAR, § 1959(a)(1)&(2), and 120
months for conspiracy to commit the murder of Mata in violation of VICAR, § 1959(a)(5).
        7 Although Defendants have adopted the arguments raised by other Defendants in

their briefs, a sufficiency of the evidence challenge is fact-specific. Accordingly, Defendants
should not be permitted to adopt sufficiency of the evidence challenges brought by other
Defendants. See United States v. Stephens, 571 F.3d 401, 404 n.2 (5th Cir. 2009)
(“[S]ufficiency of the evidence challenges are fact-specific, so we will not allow the appellant
to adopt those arguments.” (quotation marks and citation omitted)).
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                                  No. 15-51164
omitted). We decline Defendants’ invitation to discredit the co-conspirators’
testimony.
   A. Sufficiency of the Evidence to Support Defendants’ Convictions
      1. Standard of Review
      Because Defendants moved for acquittal at trial, this court’s review of
whether sufficient evidence was presented to support Defendants’ convictions
is de novo but “highly deferential to the verdict.” United States v. Beacham,
774 F.3d 267, 272 (5th Cir. 2014) (quoting United States v. Isgar, 739 F.3d 829,
835 (5th Cir. 2014)). “When reviewing the sufficiency of the evidence, a court
must determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Umawa Oke Imo, 739 F.3d 228, 235 (5th Cir. 2014) (quoting United States v.
Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)). Courts are to “accept all
credibility choices and reasonable inferences made by the trier of fact which
tend to support the verdict.” Moreno-Gonzalez, 662 F.3d at 372 (quotation
marks omitted). “The jury retains the sole authority to weigh any conflicting
evidence and to evaluate the credibility of the witnesses.” United States v.
Grant, 683 F.3d 639, 642 (5th Cir. 2012) (quotation marks omitted). Any
conflict in the evidence must be resolved in favor of the verdict. Umawa Oke
Imo, 739 F.3d at 235.
      2. Applicable Law and Analysis
                a.        Substantive RICO Violation: 18 U.S.C. § 1962(c)
      Section 1962(c) is the underlying substantive violation that drives
Defendants’ RICO, § 1962(d) convictions. See United States v. Delgado, 401
F.3d 290, 296 (5th Cir. 2005). Defendants were convicted under § 1962(d)
because of their violation of the substantive RICO provision, § 1962(c). To
establish a § 1962(c) violation, the “[G]overnment must prove (1) the existence
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                                  No. 15-51164
of an enterprise that affects interstate or foreign commerce, (2) that the
defendant was employed by or associated with the enterprise, (3) that the
defendant participated in the conduct of the enterprise’s affairs, and (4) that
the participation was through a pattern of racketeering activity.” Id. at 297
(quotation marks omitted).
                    i. Enterprise that Affects Interstate or Foreign Commerce
      Cassiano argues that the Government failed to prove that the Texas
Syndicate enterprise was engaged in activities that affected interstate and
foreign commerce. Cassiano bases this argument on the fact that the
indictment alleges § 1962(c) conjunctively, stating that the Texas Syndicate
affected interstate and foreign commerce. This argument is misguided. “[A]
disjunctive statute,” such as § 1962(c), “may be pleaded conjunctively and
proved disjunctively.” United States v. Dickey, 102 F.3d 157, 164 n.8 (5th Cir.
1996) (quoting United States v. Johnson, 87 F.3d 133, 136 n.2 (5th Cir. 1996))
(quotation marks omitted). Therefore, the jury finding that Cassiano was
associated with the Texas Syndicate enterprise that was engaged in activities
that affected interstate or foreign commerce does not support reversal of
Cassiano’s convictions. Moreover, the district court’s charge to the jury closely
tracked the Fifth Circuit’s Pattern Jury Instructions with no objections from
Defendants, which only requires that the alleged RICO activity affect
“interstate or foreign commerce.” See Pattern Crim. Jury Instr. 5th Cir. 2.79
(2015) (emphasis added).
      To establish the existence of a RICO “enterprise” the Government must
present evidence of “an ongoing organization, formal or informal, and . . . that
the various associates function as a continuing unit.” United States v. Jones,
873 F.3d 482, 490 (5th Cir. 2017) (quotation marks omitted). A jury may infer
the existence of a RICO enterprise by considering largely or wholly
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                                 No. 15-51164
circumstantial evidence. Id. Witness testimony that states that the enterprise
is involved in distributing and acquiring drugs produced in Colombia and
shipped to the United States via Mexico shows that the enterprise is affecting
interstate commerce. Delgado, 401 F.3d at 297. Use of instrumentalities of
interstate commerce such as telephones, the U.S. Postal Service, and pagers to
communicate in furtherance of the enterprise’s criminal purposes can also
constitute the enterprise affecting interstate commerce. Id.
      At both trials, evidence was presented that the Texas Syndicate is an
organized crime group with a para-military structure that distributes drugs
and conducts violent acts. Numerous members of the Texas Syndicate testified
that they, and Defendants, sold drugs while they were Texas Syndicate
members. Indeed, one of the reglas del ese te provides, “[i]f there’s any deals
with drugs, money, or any type of profit, we will share with the cuernos.”
Enough evidence was presented to show that the Texas Syndicate is an
“enterprise” under RICO. See Jones, 873 F.3d at 490.
      Evidence presented that many of the Texas Syndicate’s communications
occurred over the telephone or by mail. See Delgado, 401 F.3d at 297. Texas
Syndicate members communicated to each other inside and outside of prison
using ghost letters and other forms of correspondence. Cassiano in particular
was said to have pushed for the murder of Polanco while he was in prison by
using a smuggled cell phone. Witnesses testified that the Texas Syndicate was
involved in distributing and acquiring drugs mainly produced in Colombia that
predominantly arrived in the United States via smuggling from Mexico. See
Delgado, 401 F.3d at 297 (citing R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350,
1353 (5th Cir. 1985); United States v. Pipkins, 378 F.3d 1281 (11th Cir. 2004)).
The Government firmly established that the Texas Syndicate affected
interstate commerce or foreign commerce. Thus, the Government presented
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                                   No. 15-51164
sufficient evidence to establish the “existence of an enterprise that affects
interstate or foreign commerce.”
                 ii. Employed by or Associated with the Enterprise
      Cassiano argues that the Government failed to prove that he was a
member of the Texas Syndicate. For a defendant to be employed by or
associated with the criminal enterprise, a defendant need not have committed
or agreed to commit the two predicate acts. Id. at 296–98. The conspirator need
only have known of and agreed to the overall objective of the RICO offense.
Salinas v. United States, 522 U.S. 52, 61–65 (1997).
      The evidence presented pointed to the membership of Defendants,
including Cassiano. Texas Syndicate members and co-conspirators testified
that Cassiano was indeed the acting sillon of the Texas Syndicate in Uvalde in
2005. Evidence at the trial unveiled that Cassiano pushed for the murders of
both De La Garza and Polanco on behalf of the Texas Syndicate and that he
participated in drug dealing on behalf of the Texas Syndicate. Cassiano’s and
Defendants’ tattoos were also indicative of Texas Syndicate membership.
                iii. Participated in the Conduct of the Enterprise’s Affairs
      There was sufficient evidence presented that Defendants participated in
the conduct of the Texas Syndicate’s affairs. For a defendant to have
“participated in the conduct of the enterprise’s affairs,” the “defendant must
have participated in the operation or management of the enterprise itself.”
United States v. Herrera, 466 F. App’x 409, 418–19 (5th Cir. 2012) (per curiam)
(unpublished) (quotation marks omitted). An enterprise can be operated by
upper management and by lower rung participants under the direction of
upper management. Id.
      Inez, Torres, Esparza, Guerrero, and Ervey all testified that Cassiano
has been a member in the Texas Syndicate since the early 2000s. Additionally,
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                                 No. 15-51164
it would be reasonable for a jury to believe that the only reason Cassiano and
Rodriguez were not in the composition book found in Eli’s home was because
Cassiano and Rodriguez were incarcerated at the time the list of the members
in the book was composed. Additionally, evidence was presented that
Rodriguez was a member of the Texas Syndicate. Inez, Esparza, and Torres all
testified that Rodriguez was a Texas Syndicate member in the early 2000s.
There was also evidence presented that Rodriguez volunteered to execute the
murder of Mata. Furthermore, in April 2010, Rodriguez was recorded
participating in Texas Syndicate business over a phone from prison.
      Testimony at trial indicated that Velasquez distributed cocaine and
participated in the murder of De La Garza on behalf of the Texas Syndicate.
Velasquez was known to sell cocaine and often aid in breaking up bricks of
cocaine for the Texas Syndicate. Torres, and evidence of FBI surveillance
presented during trial, also related that Velasquez was present at a Texas
Syndicate meeting in August 2010 where Texas Syndicate business was
discussed.
      In Sanchez’s trial, Esparza and Inez stated that Sanchez was at the
meeting and voted affirmatively to kill Mata. Evidence was also presented to
show Sanchez was at a meeting in August 2010 where Texas Syndicate
business was discussed. Additional evidence pointed towards Sanchez
distributing cocaine and supporting other violent acts connected to the Texas
Syndicate. There is sufficient evidence that Defendants participated in the
operation or management of the RICO enterprise. See id.
                 iv. Participation Through a Pattern of Racketeering Activity
      The Government additionally established a pattern of racketeering
activity to support Defendants’ violations of § 1962(c). To show the existence of
“a pattern of racketeering activity,” the Government must establish that the
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                                  No. 15-51164
racketeering acts are related, and that they amount to or pose a threat of
continued criminal activity. Delgado, 401 F.3d at 298. A pattern of
racketeering is established if at least two predicate acts of racketeering activity
are conducted. Hererra, 466 F. App’x at 419. “Racketeering activity” includes
any act or threat involving murder, conspiring to commit murder, or
distributing, buying, or selling cocaine. 18 U.S.C. §§ 1959(b)(1), 1961(1).
      Evidence presented at both trials supported that the racketeering acts of
murder, conspiracy to commit murder, and the distribution of cocaine were all
committed by Defendants in furtherance of Texas Syndicate business. Sanchez
argues that all of these acts occurred independently and were not connected to
the Texas Syndicate. The presentation of the evidence showed differently. Inez
stated that the killing of Mata was done on behalf of the Texas Syndicate. The
murder of De La Garza was said to be done on behalf of the Texas Syndicate.
Ervey maintained that he also was ordered to kill Polanco for the Texas
Syndicate. The distribution of cocaine was additionally said to be Texas
Syndicate business. On one occasion Ervey was said to be commissioned by his
padrino, Sanchez, to pick up a kilogram of cocaine from behind a movie theater
that had a street value of approximately $24,000. The number and frequency
of predicate acts that were said to occur from the time of January 2002 until
September 2011 is sufficient evidence of these acts continuing in the future.
See Delgado, 401 F.3d at 298.
      In conclusion, there was sufficient evidence presented to support that
each of Defendants violated the § 1962(c) substantive RICO provision.
                 b.      RICO Conspiracy Offense: 18 U.S.C. § 1962(d)
      Sanchez and Velasquez argue that they neither knew of nor agreed to
the overall objective of the RICO offense. Cassiano additionally argues that he
committed no “overt acts” to prove that he was in fact a part of the conspiracy.
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                                 No. 15-51164
The Government presented sufficient evidence for the jury to come to the
conclusion that Sanchez, Velasquez, Cassiano, and Rodriguez should each be
convicted for being a part of the RICO conspiracy under § 1962(d).
      Under § 1962(d), RICO criminalizes conspiracy to violate any of its
substantive provisions. To prove a conspiracy, the Government must establish
that (1) two or more people agreed to commit a substantive RICO offense, and
(2) the defendants knew of and agreed to the overall objective of the RICO
offense. Id. at 296.    These requirements may be met by circumstantial
evidence. Id. Unlike § 1962(c), which requires a showing of two predicate acts
constituting a “pattern of racketeering activity,” a § 1962(d) conspirator “need
not have committed or agreed to commit . . . two predicate acts.” Id. Instead,
the conspirator “need only have known of and agreed to the overall objective of
the RICO offense.” Id. Put differently, if conspirators have a plan which calls
for some conspirators to perpetrate the crime and others to provide support,
then the supporters are as guilty as the perpetrators. See id.
      Evidence presented at the trials showed that the Texas Syndicate had
numerous members, including Defendants. There is also evidence that
Defendants agreed to the overall objective of the Texas Syndicate committing
the RICO offense. Defendants participated in meetings and decisions to
murder individuals and to distribute drugs. See id. Cassiano’s argument that
he did not commit any “overt acts” to be a part of the conspiracy is baseless
because an individual only need to have known of and agreed to the overall
objective of the RICO offense. Sanchez’s and Velasquez’s arguments that they
neither knew of nor agreed to the overall objective of the RICO offense
similarly fall short because ample evidence was presented to the contrary.
There is sufficient evidence to support that Defendants knew of and agreed to


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                                   No. 15-51164
the overall objective of the Texas Syndicate committing the RICO offense to
support their § 1962(d) convictions.
                 c.        VICAR Offense: 18 U.S.C. § 1959(a)
      Defendants were also convicted for violating § 1959(a) for murder and
conspiracy to commit murder in aid of racketeering. Particularly, Sanchez
murdered and conspired to murder Mata, Rodriguez murdered and conspired
to murder Mata, Velasquez murdered and conspired to murder De La Garza,
and Cassiano conspired to murder De La Garza and Polanco, in violation of
Texas’s murder and conspiracy to commit murder statutes, §§ 15.02, 19.02 of
the Texas Penal Code, and VICAR, § 1959. V.T.C.A., Penal Code §§ 15.02,
19.02; 18 U.S.C. § 1959. Defendants contend that there was insufficient
evidence to prove their § 1959(a) convictions.
      To establish that Defendants have violated VICAR, the Government
must show that (1) an enterprise existed; (2) the enterprise engaged in, or its
activities affected, interstate commerce; (3) it was engaged in racketeering
activity; (4) Defendants committed violent crimes; and (5) Defendants
committed the violent crimes to gain entrance to, or to maintain or increase,
their position in the enterprise. Jones, 873 F.3d at 492. A person who “aids,
abets, counsels, commands, induces or procures” the commission of a federal
offense “is punishable as a principal.” 18 U.S.C. § 2. In determining whether a
“murder was carried out for the purpose of . . . maintaining or increasing
position in a racketeering enterprise, self-promotion need not be the
defendant’s sole or primary concern.” United States v. Hinojosa, 463 F. App’x
432, 449–50 (5th Cir. 2012) (per curiam) (unpublished) (quotation marks and
alterations omitted)).
      A VICAR “enterprise” is any “partnership, corporation, association, or
other legal entity, and any union or group of individuals associated in fact
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                                     No. 15-51164
although not a legal entity, which is engaged in, or the activities of which affect,
interstate or foreign commerce.” 8 18 U.S.C. § 1959(b)(2). Because the foregoing
section of this opinion demonstrated that there is sufficient evidence to
establish that the Texas Syndicate was an “enterprise” that “affected interstate
commerce or foreign commerce” engaged in “racketeering activity,” this section
will focus on whether there is sufficient evidence to show Defendants either
committed or conspired to commit the murders, to gain entrance to, or to
maintain or increase their positions in the enterprise. See Jones, 873 F.3d at
492.
       There is sufficient evidence to support Rodriguez’s conviction for the
murder of Mata in aid of racketeering. Testimony during trial revealed that
the Uvalde chapter was responsible for Mata and conducted a vote to
determine whether to kill Mata since Mata owed a drug debt. Inez testified
that Rodriguez voted “yes” and volunteered to conduct the killing of Mata on
behalf of the Texas Syndicate. Rodriguez and John then were said to have
picked up Mata in John’s truck on the night of the murder. Evidence from
testimony during the trial, and DNA analysis, showed that a reasonable jury
could find Rodriguez was present when John shot Mata. Rodriguez and John
were then said to go to their uncle’s house after killing Mata to clean the gun
in a bucket of bleach. All of the evidence presented pointed to Rodriguez being
with John and aiding John before, during, and after the killing of Mata. Since
this murder was committed on behalf of the Texas Syndicate, there is sufficient
evidence that Rodriguez participated in the murder to maintain or increase his




       8 Courts treat the RICO and VICAR definition of “enterprise,” and what is necessary
to establish an “enterprise,” identically. See Hinojosa, 463 F. App’x at 449 n.9.
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                                 No. 15-51164
position with the Texas Syndicate enterprise. The Government met its burden
to prove Rodriguez’s § 1959(a) convictions.
      There is also sufficient evidence to prove Velasquez’s conviction for the
murder and conspiracy to commit the murder of De La Garza. Inez, Torres,
Esparza, and Ervey all stated that Velasquez was a Texas Syndicate member.
Torres and Esparza specifically testified that Velasquez was a Texas Syndicate
member at the time of the De La Garza murder. Evidence presented at trial
further stated that Velasquez and other Texas Syndicate prospects and
members planned the murder of De La Garza on behalf of the Texas Syndicate.
Ervey, Torres, and Inez testified that Velasquez was beating De La Garza right
before his cousin shot and killed De La Garza. A reasonable inference can also
be made from the evidence that because Velasquez was shot in the leg during
the incident, he was in close proximity to De La Garza when De La Garza was
fatally shot.
      Moreover, under Texas law, an individual commits a murder if that
person “intentionally or knowingly causes the death of an individual,” or
“intends to cause serious bodily injury and commits an act clearly dangerous
to human life that causes the death of an individual.” V.T.C.A., Penal Code §
19.02. A person is criminally responsible for a criminal offense committed by
another if, acting with intent to promote or assist the commission of the
offense, he encourages, directs, aids, or attempts to aid the other person. Id. §
7.02. Since this murder was committed on behalf of the Texas Syndicate, there
is adequate evidence to show that this murder of De La Garza was committed
for Velasquez to maintain or increase his position in the Texas Syndicate.
There is sufficient evidence for Velasquez’s § 1959(a) convictions.
      Cassiano’s § 1959(a) conviction for conspiracy to commit murder in aid
of racketeering was also founded upon sufficient evidence. Cassiano argues
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                                  No. 15-51164
that there is insufficient evidence because the Government failed to prove that
he committed any “overt acts.” Evidence was presented that Cassiano pushed
for the murders of Polanco and De La Garza. Cassiano was said to have
gathered enough votes to have De La Garza killed on behalf of the Texas
Syndicate. Cassiano was also said to have conducted due diligence for the
murder making sure that De La Garza was not a Mexican Mafia member. In
prison, Cassiano was said to have pushed for the murder of Polanco by making
phone calls from a smuggled cell phone and sending “paper work” to other
Texas Syndicate members to prove Polanco was an informant. There is
sufficient evidence to support Cassiano’s § 1959(a) convictions.
      Based on the evidence presented at Sanchez’s trial, there is sufficient
evidence to support his § 1959(a) convictions. Sanchez argues his § 1959(a)
convictions should not stand because there was no evidence presented that he
committed any voluntary act to bring about the demise of Mata and that he
shared no intent to commit Mata’s murder. Despite Sanchez’s argument, the
Government presented sufficient evidence to uphold his convictions.
      Inez and Esparza both testified that they were present at the meeting
when Sanchez voted to kill Mata. Despite slight inconsistencies in the
testimonies of Inez and Esparza, a reasonable jury could still find Sanchez
guilty beyond a reasonable doubt. Two accounts of Inez’s recollection of the
events were read into the record during Sanchez’s trial—one from when Inez
testified in the first trial, and another from when Inez was deposed in the
hospital shortly before his death from a terminal disease. In the testimony
from the first trial, Inez stated that Sanchez was at the meeting and voted
“yes” to kill Mata. Inez also said that there was a seven out of eight vote, with
Inez’s vote being the only vote not to kill his cousin. In a later deposition, Inez
consistently stated that Sanchez was at the meeting to vote for whether Mata
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                                 No. 15-51164
should be killed. However, when asked about whether Sanchez voted to kill
Mata, Inez said, “I don’t remember. I don’t remember if he killed, but he was
there.” Similar to both of Inez’s accounts, Esparza testified that Sanchez was
at the meeting where Texas Syndicate members voted to kill Mata. Esparza
additionally stated that Sanchez and all of the members at the meeting voted
“yes.” While there were inconsistencies in the testimony, “[t]he jury retains the
sole authority to weigh any conflicting evidence and to evaluate the credibility
of the witnesses.” Grant, 683 F.3d at 642 (quotation marks omitted).
      Additionally, witnesses testified against Sanchez as to the purpose of the
murder and stated that the murder of Mata was Texas Syndicate business. The
killing was said to be on behalf of the Texas Syndicate because Mata owed a
drug debt to another Texas Syndicate chapter. The jury acted reasonably in
weighing the credibility of the witnesses and concluding that Sanchez voted to
have Mata killed as a means to maintain his position in the Texas Syndicate.
See Hinojosa, 463 F. App’x at 450 (“self-promotion need not be the defendant’s
sole or primary purpose”). Accordingly, there was sufficient evidence presented
to support Sanchez’s § 1959(a) convictions.
      In sum, sufficient evidence was presented to support Defendants’ RICO,
§ 1962(d), and VICAR, § 1959(a), convictions.
   B. Tattoo Evidence
      Defendants argue that evidence presented at both trials relating to their
tattoos warrants a reversal of their convictions. Cassiano, Velasquez, and
Rodriguez first argue that the district court committed reversible error when
it required them to remove their shirts during their trial so that the jury could
see their tattoos that showed possible Texas Syndicate membership. Before the
jury entered the courtroom, the district court required Cassiano, Velasquez,
and Rodriguez to remove their shirts so that certain tattoos on their bodies
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                                      No. 15-51164
could be displayed. Once the jury entered the courtroom, a FBI agent went over
to Cassiano, Velasquez, and Rodriguez, who were shirtless, and pointed out
which tattoos on their bodies were indicative of Texas Syndicate affiliation. 9
Promptly after the brief demonstration used to identify which tattoos were on
Defendants, the district court instructed Defendants to put their shirts back
on. All Defendants additionally assert that the Government’s presentation of
Defendants’ tattoos to the juries in both trials violated their Fifth Amendment
privilege against self-incrimination. This court will address Defendants’
arguments in turn.
       1. Requiring Defendants to Appear Shirtless in the Jury’s Presence
       Cassiano, Velasquez, and Rodriguez argue that the district court under
Federal Rule of Evidence 403 (“Rule 403”) should not have required them to
appear shirtless in open court so that FBI Agent Steve Hause (“Agent Hause”)
could identify which tattoos on their bodies were indicative of Texas Syndicate
membership. Defendants additionally argue that this act was demeaning and
unnecessary because photographs of Defendants’ tattoos had already been
admitted into evidence.
       The Government argues it was necessary for Defendants to remove their
shirts because the jury needed to be able to identify which tattoos from the
photographs admitted in evidence belonged to which Defendant. The
Government additionally avers that the district court diminished the
prejudicial effect of Defendants having to appear shirtless before the jury by




       9 At this point in the trial, Sanchez had not been severed from Velasquez, Rodriguez,
and Cassiano to be retried separately at a later date. Even though Sanchez had to remove
his shirt with Velasquez, Cassiano, and Rodriguez at the first trial, he does not raise this
argument as a grounds for reversal of his conviction and sentence due to his subsequent
severance and not being required to do remove his shirt again at his later trial.
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                                  No. 15-51164
instructing the Government to only make Defendants stand up to show their
tattoos if necessary.
                 a.       Standard of Review
      Because Defendants objected at trial about having to remove their shirts
for the jury, this issue will be analyzed for abuse of discretion. See United
States v. Santos, 589 F.3d 759, 763 (5th Cir. 2009). The admission of
demonstrative evidence is within the trial court’s sound discretion and will not
be disturbed on appeal absent abuse of discretion. Shipp v. Gen. Motors Corp.,
750 F.2d 418, 427 (5th Cir. 1985). “A trial court abuses its discretion when it
bases its decision on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” United States v. Caldwell, 586 F.3d 338, 341 (5th
Cir. 2009). If an abuse of discretion is found, then the court must conduct a
harmless error analysis, and affirm unless the error affected Defendants’
substantial rights. United States v. Ragsdale, 426 F.3d 765, 774–75 (5th Cir.
2005).
                 b.       Applicable Law and Analysis
      Rule 403 provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury . . . or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The abuse of
discretion standard for a Rule 403 decision is not satisfied “by a mere showing
of some alternative means of proof that the prosecution in its broad discretion
chose not to rely upon.” Old Chief v. United States, 519 U.S. 172, 183 n.7 (1997).
“A district court’s ruling regarding Rule 403 is reviewed with an especially high
level of deference to the district court, with reversal called for only rarely and
only when there has been a clear abuse of discretion.” United States v. Lewis,
796 F.3d 543, 545 (5th Cir. 2015) (quoting United States v. Dillon, 532 F.3d
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                                  No. 15-51164
379, 387 (5th Cir. 2008) (quotation marks omitted)). Evidence which tends to
rebut a defendant’s claim of innocence is unlikely to be unduly prejudicial.
United States v. El-Mezain, 664 F.3d 467, 509 (5th Cir. 2011).
      Importantly, requiring Defendants to appear shirtless in the presence of
the jury created the risk of unfair prejudice. Other avenues seemed available
to achieve the Government’s objective of showing the jury that the tattoos in
the photographs belonged to Cassiano, Rodriguez, and Velasquez – say,
showing the jury the tattoo photographs already admitted into evidence, or
having someone identify through trial testimony which tattoo belonged to
which Defendant, or both.
      However, the danger of unfair prejudice and cumulative manner of
presenting the tattoo evidence did not substantially outweigh the probative
value of presenting this evidence to the jury to amount to an abuse of discretion
by the district court. “Within reasonable limits, the prosecution is entitled to
present its case through evidence it deems most appropriate.” See United
States v. Collins, 368 F. App’x 517, 523 (5th Cir. 2010) (per curiam)
(unpublished) (citing Old Chief, 519 U.S. at 186–87). There was probative
value in the information presented to the jury because it related to Defendants’
possible membership in the Texas Syndicate, which was disputed at trial and
is still disputed by Defendants on appeal. The risk of unfair prejudice from
Defendants appearing in front of the jury without their shirts was also
ameliorated by the brevity of the Government’s presentation that identified
which tattoos were on Velasquez, Cassiano, and Rodriguez before the district
court instructed Defendants to put their shirts back on. Moreover, it is difficult
to identify which tattoos belong to each Defendant by looking at the
photographs that were admitted in evidence. Given the deference required for
the abuse of discretion standard of review, the danger of unfair prejudice did
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                                  No. 15-51164
not substantially outweigh the probative value of Agent Hause pointing out to
the jury the Defendants’ tattoos that showed possible Texas Syndicate
affiliation.
      Even if the district court abused its discretion in requiring Defendants
to appear shirtless before the jury, the error was harmless. In a variety of ways,
which included testimony from co-conspirators, the Government presented
evidence to prove Defendants’ Texas Syndicate membership and involvement
in the conspiracy. See Ragsdale, 426 F.3d at 774–75. The act of requiring
Velasquez, Rodriguez, and Cassiano to remove their shirts in this instance was
not reversible error.
      2. Fifth Amendment Privilege Against Self-Incrimination
      Defendants additionally argue that the admission of the photographs in
evidence that showed their tattoos violated their Fifth Amendment privilege
against self-incrimination. Defendants assert that that the presentation of
their tattoos was “testimonial” in nature because the photographs of the
tattoos were admitted into evidence, not for identification purposes, but rather
as substantive evidence of Defendants’ affiliation with the Texas Syndicate.
Defendants contend that their Fifth Amendment privilege against self-
incrimination was violated since the presentation of the tattoos was
“testimonial” in character, incriminating, and compelled.
                 a.       Standard of Review
      Defendants argue for the first time on the appeal that showing the jury
their tattoos violated their Fifth Amendment privilege against self-
incrimination. Defendants did not object to the photographs of their tattoos
being admitted into evidence during either trial. Sanchez argues that he
properly preserved error during his trial, but this argument is incorrect. See
Puckett v. United States, 556 U.S. 129, 135 (2009) (“In federal criminal cases .
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                                  No. 15-51164
. . parties . . . preserve claims of error: by informing the court—when the court
ruling or order is made or sought—of the action the party wishes the court to
take, or the party’s objection to the court’s action and the grounds for that
objection.”) (quotation marks omitted). At Sanchez’s trial, Sanchez’s counsel
objected to having Sanchez raise the sleeves of his shirt to show the tattoo on
his forearm in person to the jury because it violated Rule 403, not the Fifth
Amendment. After a bench conference, Sanchez’s counsel withdrew his
objection, and stipulated that a photograph that the Government admitted in
evidence was a photograph of Sanchez’s tattoo on Sanchez’s forearm.
      Accordingly, this issue is reviewed for plain error. United States v. Krout,
66 F.3d 1420, 1434 (5th Cir. 1995). Under plain error, we will reverse only
where there was (1) error, (2) that was clear or obvious, and (3) that affected
Defendants’ substantial rights. United States v. Reagan, 725 F.3d 471, 491 (5th
Cir. 2013). “If those requirements are met, the reviewing court may in its
discretion remedy the error only if it (4) seriously affects the fairness, integrity
or public reputation of the judicial proceedings.” United States v. Hinojosa, 749
F.3d 407, 411 (5th Cir. 2014). If the unpreserved error does not meet this
demanding plain error standard, the court does not have authority to correct
it. Puckett, 556 U.S. at 135.
                 b.      Applicable Law and Analysis
      To qualify for the Fifth Amendment privilege against self-incrimination,
a communication must be (1) testimonial in character, (2) incriminating, and
(3) compelled. United States v. Hubbell, 530 U.S. 27, 34 (2000). “[I]n order to
be testimonial, an accused’s communication must itself, explicitly or implicitly,
relate a factual assertion or disclose information.” Doe v. United States, 487
U.S. 201, 210 (1988). “The prohibition of compelling a man in a criminal court
to be a witness against himself is a prohibition of the use of physical or moral
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                                   No. 15-51164
compulsion to extort communications from him, not an exclusion of his body as
evidence when it may be material.” Schmerber v. California, 384 U.S. 757, 763
(1966) (quoting Holt v. United States, 218 U.S. 245, 252–53 (1910)). If a tattoo
is simply relied upon to identify a defendant, then the Fifth Amendment
privilege against self-incrimination is not offended. See Tasco v. Butler, 835
F.2d 1120, 1124 (5th Cir. 1988).
      In Holt, the Supreme Court stated that, “the prohibition of compelling a
man in a criminal court to be witness against himself is a prohibition of the
use of physical or moral compulsion to extort communications from him, not
an exclusion of his body as evidence when it may be material.” 218 U.S. at 252–
53. The Supreme Court further held in Schmerber that the withdrawal of the
defendant’s blood and the subsequent admission of the chemical analysis to
show the percent by weight of alcohol in his blood that proved his guilt was not
communicative or testimonial nature. 384 U.S. at 761. The blood test evidence,
although a possibly incriminating product of compulsion when the defendant
submitted the blood sample, was not seen to violate the Fifth Amendment
privilege against self-incrimination because it was neither the defendant’s
testimony nor evidence relating to some communicative act or writing. Id. at
765. In Hubbell, the Supreme Court reiterated the proposition that although
an act may offer incriminating evidence, a criminal defendant may be required
to “put on a shirt, to provide a blood sample or handwriting exemplar, or to
make a recording of his voice. The act of exhibiting such physical
characteristics is not the same as a sworn communication by a witness that
relates either express or implied assertions of fact or belief.” 530 U.S. at 35.
      Here, the showing of Defendants’ tattoos is analogous to physical
evidence unprotected by the Fifth Amendment rather than being testimonial
in character. See Holt, 218 U.S. at 252–53. All of the information that gave
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                                 No. 15-51164
interpretation to the meaning of Defendants’ tattoos was conveyed through the
testimony of Agent Hause and other Texas Syndicate members, not
Defendants. The Fourth Circuit unequivocally held in a per curiam
unpublished opinion that when photographs of a defendant’s tattoos are
offered as substantive evidence of a defendant’s affiliation with a gang the
“tattoos are a physical trait, similar to his voice or handwriting, and therefore
do not constitute testimony, within the meaning of the Fifth Amendment.”
United States v. Toliver, 387 F. App’x 406, 417 (4th Cir. 2010) (per curiam)
(unpublished).
      This court recognizes that an argument can be made that the showing of
Defendants’ tattoos was testimonial in character. A distinction can be drawn
from the tattoos being used as an identifying characteristic similar to the usage
of a handwriting exemplar, voice exemplar, or a scar on the defendant’s body.
See Gilbert v. California, 388 U.S. 263, 266–67 (1967); United States v. Greer,
631 F.3d 608, 613 (2d Cir. 2011) (holding that the defendant’s “Tangela” tattoo
was testimonial because it tended to prove that the defendant had a
relationship with a person named Tangela Hudson). The content and
substance of the pictures and words the tattoos contained were used to confirm
Defendants’ alleged affiliation with the Texas Syndicate. While showing
Defendants’ tattoos may be implicitly testimonial in nature, the closeness of
this issue shows that there was not a “clear” or “obvious” error made by the
district court. See Puckett, 556 U.S. at 135. Accordingly, there was no plain
error by the district court.
      Assuming that Defendants’ tattoos are testimonial in character and
incriminating, the presentation of Defendants’ tattoos was by no means
“compelled” testimonial evidence protected by the Fifth Amendment. In Greer,
the Second Circuit held that because officers were able to read a tattoo without
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                                  No. 15-51164
applying any physical force and because getting the tattoo was “not the product
of government compulsion . . . . [the] Fifth Amendment claim fails.” 631 F.3d
at 613. That court relied on Fisher v. United States, 425 U.S. 391 (1976), in
which the Supreme Court held that where preparation of subpoenaed papers
“‘was wholly voluntary,’ they could not ‘be said to contain compelled
testimonial evidence.’” Id. (quoting Fisher, 425 U.S. at 410)). Defendants’
decision to place the Texas Syndicate tattoos on their bodies was wholly
voluntary and not a product of compulsion asserted by the Government.
Defendants’ tattoos were also on places on their bodies that are
characteristically highly likely to be visible. See Toliver, 387 F. App’x at 418
(stating that the defendant’s gang affiliated tattoos on his neck, hands, leg, and
arms were outside of Fifth Amendment protection because of being an openly
physical characteristic “easily visible when he was wearing a tee-shirt”); Greer,
631 F.3d at 613.
      Additionally, the Government did not rely on Defendants’ truth-telling
to prove the existence of the tattoos, or explain how the tattoos affiliated
Defendants with the Texas Syndicate. See Fisher, 425 U.S. at 410–11.
Defendants were not required to restate, repeat, or affirm the truth of Agent
Hause statements that explained to the juries in both trials that Defendants
had tattoos indicative of Texas Syndicate membership. See id. at 409. Allowing
evidence of Defendants’ tattoos to be presented did not constitute error, much
less plain error by the district court.
   C. Jury Charge Instructions
      Velasquez, Rodriguez, and Cassiano raise that the district court
committed reversible error by failing to give (1) accomplice witness testimony
and use of addictive drugs instructions and (2) an instruction relating to
Sanchez’s severance from Defendants during the first trial in the jury charge.
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                                  No. 15-51164
Neither of these arguments are persuasive, and there was no error by the
district court.
      1. Accomplice Witness and Use of Addictive Drugs Instructions
      This issue regarding whether the trial court erred by not giving the
accomplice witness and use of addictive drugs instructions is moot. Rodriguez
acknowledges this outcome and retracted his argument that his convictions
should be reversed on this ground in his reply brief. In the initial record on
appeal, pages five and six of the jury charge, which contained the accomplice-
witness testimony and use of addictive drugs instructions were not included.
The record on appeal has now been supplemented to include all of the pages of
the jury charge, which contain both jury instructions.
      2. Instruction of Sanchez’s Severance
      Rodriguez, Velasquez, and Cassiano argue that the district court
committed reversible error when it did not give an instruction relating to
Sanchez’s severance. Rodriguez, Velasquez, and Cassiano state that the
district court’s failure to give a jury instruction regarding Sanchez’s absence
possibly left the jury with room to speculate that Sanchez entered into a guilty
plea or some other arrangement that implicated them.
                  a.     Standard of Review
      Cassiano, Rodriguez, and Velasquez argue that Rodriguez’s trial counsel
properly objected to the exclusion of the instruction relating to Sanchez’s
severance so this issue should be reviewed for abuse of discretion rather than
for plain error. This court disagrees. In the tedium of the exchange between
the district court and Rodriguez’s trial counsel lies pointed proof that there was
no objection to how the district court decided to address Sanchez’s severance
from Defendants. The district court told all of the parties after severing
Sanchez from the proceedings, “I’m going to tell [the jury] to just consider the
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                                        No. 15-51164
defendants before them and not anybody else.” To this statement Rodriguez’s
trial counsel responded, “That’s what I was asking, Your Honor.” 10 The district
court’s charge to the jury included just what the district court said it would
include—it told the jury that “[t]he government has the burden of proving each
defendant guilty beyond a reasonable doubt, and if it fails to do so, you must
acquit that defendant.” Notably, neither a proposed jury instruction nor an
objection was made about the lack of a specific jury instruction referencing
Sanchez’s severance during the charge conference. Accordingly, this issue will
be reviewed for plain error. See Fed. R. Crim. P. 30(d).




      10   The exchange precisely went as follows:
               The Court: All right, gentlemen, all parties are present now,
               including the defendants that the Court just called. Mr.
               Sanchez’s case is being severed from this one to be retried in the
               month of September. There has – a conflict has arisen that
               requires retrial of Mr. Sanchez. So the only three defendants left
               at this point are Mr. Rodriguez, Mr. Cassiano, and Mr.
               Velasquez. Is everybody ready to receive the jury and proceed?
               The Government: Yes, Your Honor.
               Cassiano’s trial counsel: Yes, Your Honor.
               Velasquez’s trial counsel: Yes, Your Honor.
               Rodriguez’s trial counsel: Yes, Your Honor.
               The Court: All right, let’s bring them in.
               Rodriguez’s trial counsel: Your Honor, and – I apologize.
               The Court: Hold on.
               Rodriguez’s trial counsel: Will there be an instruction given
               to the jury or . . . .
               The Court: I can – I can tell them that the case has been
               severed, but I’m not going to tell them why. I mean, I – I’m going
               to just tell them to – when it comes to the final charge – the
               charge, I’m going to tell them is to just consider the defendants
               before them and not anybody else.
               Rodriguez’s trial counsel: Yes, Your Honor.
               The Court: Is that what you were asking, Mr. Juarez?
               Rodriguez’s trial counsel: That’s what I was asking, Your
               Honor.
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                                  No. 15-51164
                 b.      Applicable Law and Analysis
      In some instances it is necessary for a trial court to explain a co-
defendant’s absence. United States v. Ramos-Cardenas, 524 F.3d 600, 611 (5th
Cir. 2008). “Ordinarily, when the jury learns of a codefendant’s guilt for the
same or similar offenses, and the defense counsel does not request that
curative instruction be given, the failure of the trial judge to give one will not
require reversal.” United States v. DeLucca, 630 F.2d 294, 299 (5th Cir. 1980).
Some factors that the district court may consider when determining if there is
a need for a curative instruction because of a co-defendants dismissal are: the
way in which the dismissal is brought to the jury’s attention, the purpose and
motivation for doing so, the emphasis placed on the co-defendant’s dismissal
relative to the substantive aspects of the case, and the defense counsel’s
conduct with respect to the trial proceedings—whether defense counsel
objected and demanded an instruction, or whether defense counsel refused to
do so for tactical reasons. See id.
      In DeLucca, this circuit held that the district court did not commit plain
error when it failed to give a curative instruction after the Government moved
to dismiss two of the co-defendants in open court in front of the jury on two
different occasions. Id. at 297. This court held that the district court’s
instructions to the jury of the presumed innocence of the defendants and
emphasis on considering the evidence separately as to each defendant was
sufficient despite the absence of a curative instruction. Id. at 299–300.
Additionally, this court noted that because there was no intemperance by the
judge and the record failed to indicate that the judge or the prosecutor did
anything to adversely influence the jury, there was no plain error. Id.
      Here, the district court’s charge instructed the jury the way it said it
would, and more, by telling the jury (1) to consider the evidence separately as
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                                  No. 15-51164
to each defendant, (2) that the Defendants were presumed innocent until
proven guilty beyond a reasonable doubt by the evidence presented, and (3) not
to consider the fact that an accomplice has entered a guilty plea to any offense
as evidence of the guilt of any other person. The record also did not reveal that
either the district court or the prosecutor adversely influenced the jury in any
way to prejudice Defendants. This was not plain error. See Reagan, 725 F.3d
at 491.
   D. The District Court’s Failure to sua sponte Sever Velasquez
      Velasquez avers that he was prejudiced by the district court not severing
his case from Rodriguez and Cassiano to be retried separately at a later date,
and this decision constituted reversible error. This court is not convinced by
Velasquez’s argument.
      1. Standard of Review
      The decision of the district court not to sua sponte sever Velasquez from
the trial to be retried separately at a later date will be reviewed for plain error
because Velasquez did not move to sever his case or object to being tried with
Defendants. To establish plain error, Velasquez must show an error is clear or
obvious and affects his substantial rights. United States v. Prieto, 801 F.3d 547,
549–50 (5th Cir. 2015) (per curiam). If the preceding requirements are met, the
reviewing court may in its discretion remedy the error only if the error
“seriously affects the fairness, integrity or public reputation of the judicial
proceedings.” Id.
      2. Applicable Law and Analysis
      “[T]he mere presence of a spillover effect does not ordinarily warrant
severance.” United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993).
Moreover, the trial court instructed the jury to limit all the evidence to the
appropriate defendant. “[J]uries are presumed to follow their instructions.”
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                                  No. 15-51164
United States v. Cessa, 785 F.3d 165, 183 (5th Cir. 2015) (quoting Zafiro v.
United States, 506 U.S. 534, 540 (1993)). The jury is determined to have
accordingly been able to separate the evidence and properly applied it to each
Defendant, including Velasquez. The other murders and the activities relating
to drug distribution are also probative towards the racketeering acts that the
Texas Syndicate conducted during Velasquez’s membership and to the overall
criminal objectives of the gang. See United States v. Ballis, 28 F.3d 1399, 1409
(5th Cir. 1994). The district court did not commit plain error by permitting
Velasquez’s case to be tried with Defendants.
   E. Velasquez’s Ineffective Assistance of Counsel Claim
      Velasquez argues that his trial counsel provided ineffective assistance
because he failed to present evidence that Velasquez had abandoned or
withdrawn from the conspiracy after Velasquez was arrested in 2006. “Sixth
Amendment claims of ineffective assistance of counsel should not be litigated
on direct appeal, unless they were previously presented to the trial court.”
Isgar, 739 F.3d at 841 (quoting United States v. Aguilar, 503 F.3d 431, 436 (5th
Cir. 2007) (per curiam)). It is only in “rare cases in which the record allows a
reviewing court to fairly evaluate the merits of the claim” that the court will
consider this issue on direct appeal. Id. This is not one of those rare cases in
which the record permits the court to fairly evaluate the merits of the claim on
direct appeal. Because there was no hearing before the district court, the record
fails to provide sufficient detail about counsel’s conduct for this court to fairly
evaluate Velasquez’s claim. See Aguilar, 503 F.3d at 436. Velasquez’s appeal
on this ground is denied without prejudice to collateral review.
   F. Velasquez’s Sentence
      Velasquez argues that the district court did not properly sentence him
because he did not kill De La Garza, and the district court improperly punished
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                                  No. 15-51164
him for invoking his right to a trial by jury. The Government and Velasquez
agree that Velasquez’s sentence should be reviewed for plain error because
Velasquez did not object to his Presentence Investigation Report (PSR) in the
district court. Velasquez must show an error that is clear or obvious that affects
his substantial rights to establish plain error. See Prieto, 801 F.3d at 549–50.
If Velasquez does this, then the court has discretion to correct the error if it
seriously affects the fairness, integrity or public reputation of the judicial
proceedings. Id.
      Velasquez was sentenced to a term of life imprisonment for his
convictions under RICO, § 1962(d) and VICAR, § 1959(a)(1), murder in aid of
racketeering. As recounted earlier in this opinion, there is sufficient evidence
to support these convictions. Section 1959 explicitly states that an individual
convicted under § 1959(a) “shall be punished . . . by death or life
imprisonment.” 18 U.S.C. § 1959(a). Velasquez’s murder in aid of racketeering
conviction means he was convicted under the Texas state murder statute or
federal law. The commentary to § 2E.1.3 states that “if the underlying conduct
violates state law, the offense level corresponding to the most analogous
federal offense is to be used.” U.S.S.G. § 2E1.3, cmt. 1. Velasquez’s PSR
calculated Velasquez’s sentence in reference to the first-degree murder
guideline in the U.S. Sentencing Guidelines (U.S.S.G) § 2A1.1. The district
court adopted the PSR’s calculations with no objections from Velasquez. The
district court correctly applied the Guidelines. See U.S.S.G. § 2A1.1.
      In Texas, an individual commits a murder if that person “intentionally
or knowingly causes the death of an individual,” or “intends to cause serious
bodily injury and commits an act clearly dangerous to human life that causes
the death of an individual.” V.T.C.A., Penal Code § 19.02. First degree murder
under federal law includes, “any . . . willful, deliberate, malicious, and
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                                  No. 15-51164
premediated killing” or a murder “committed in the perpetration of, or attempt
to perpetrate any . . . burglary, or robbery.” 18 U.S.C. § 1111; see also Jones,
873 F.3d at 500 (“Federal law classifies a broad range of murders as ‘first
degree’ including ‘any . . . kind of willful, deliberate, malicious, and
premeditated killing.’”). The federal first-degree murder guideline applies to
Velasquez’s murder conviction. Thus, it was not plain error to apply the first-
degree murder guideline, which imposes a life sentence.
      Velasquez’s allegations that the district court punished him for taking
his case to trial are similarly meritless. The district court told Velasquez that
because he went to trial and rejected the plea offer, he was faced with the
imposition of a term of life imprisonment. This statement by the district court
does not equate to inflicting punishment on Velasquez for invoking his right to
a trial by jury. See Gonzales v. Cain, 525 F. App’x 251, 255 (5th Cir. 2013) (per
curiam) (unpublished) (holding that the defendant was not being punished for
exercising his right to stand trial when the trial judge “merely recognized that
the imposition of an increased sentence after trial is often justifiable since the
bargained-for leniency inherent in the plea negotiation process is not available
once a trial has been held” (citing Alabama v. Smith, 490 U.S. 794, 802–03
(1989))).
   G. Sanchez’s Motion for Mistrial
      On the last day of testimony for the Government’s presentation of its
case-in-chief in Sanchez’s trial, FBI Agent Katherine Gutierrez (“Agent
Gutierrez”) testified about the information obtained during the FBI’s
investigation of the Texas Syndicate in Uvalde. During her testimony, Agent
Gutierrez commented on Sanchez’s decision not to testify when Sanchez’s trial
counsel cross examined her. On cross examination, Agent Gutierrez was asked
about how her opinion of what she heard differed from what was transcribed
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                                        No. 15-51164
and translated by a FBI linguist from a telephone call recording admitted in
evidence. In response to Sanchez’s trial counsel’s question, Agent Gutierrez
remarked, “I guess your client can get up here and testify. I don’t know. . . .” 11
Immediately after Agent Gutierrez’s comment, in the presence of the jury, the



      11   In detail, this is how the sequence of questions and answers occurred:
                Sanchez’s trial counsel: In 61-A, you mentioned that “Bug
                Bug” means actually “Buck Buck?”
                Agent Gutierrez: He asked me what I heard, and I told him I
                heard “Buck Buck.” I believe it was being discussed about Buck
                Buck.
                Sanchez’s trial counsel: But the sound was Bug Bug. . . .
                Agent Gutierrez: That she – she believes – she says “Buck” –
                “Bug” or “Buck.”
                Sanchez’s trial counsel: And then you say –
                Agent Gutierrez: And I say “Buck.”
                Sanchez’s trial counsel: Buck?
                Agent Gutierrez: Yes, sir.
                Sanchez’s trial counsel: Okay. But is that the nickname of a
                person or . . . .
                Agent Gutierrez: I – I – like I said, I do not know that person’s
                full name.
                Sanchez’s trial counsel: But – but is the –
                Agent Gutierrez: Which I already told him.
                Sanchez’s trial counsel: Well, is the nickname “Buck Buck,” I
                mean, twice?
                Agent Gutierrez: I don’t know. I don’t know the individual. I’m
                telling you I don’t know.
                Sanchez’s trial counsel: Okay.
                Agent Gutierrez: – regarding an individual named Buck or
                nicknamed Buck. I’m not sure which it is because I don’t know
                the true identity of that individual.
                Sanchez’s trial counsel: Because in the transcript 61-A it is
                repeated twice.
                The Court: Is there –
                Sanchez’s trial counsel: Buck Buck.
                The Government: Your Honor –
                Agent Gutierrez: I guess your client can get up here and
                testify. I don’t know. I –
                The Court: Wait.
                Agent Gutierrez: I mean –
                The Court: Huh-uh, Ms. Gutierrez. No, Ms. Gutierrez. That will
                be stricken. No.
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                                  No. 15-51164
district court stopped the cross examination and gave a curative instruction
that Agent Gutierrez’s comment would be stricken from the record. Sanchez
subsequently unsuccessfully moved for a mistrial because of Agent Gutierrez’s
statements.
      1. Standard of Review
      This court reviews the denial of a motion for mistrial for abuse of
discretion. United States v. Zamora, 661 F.3d 200, 211 (5th Cir. 2011). If a
defendant moves for a mistrial on the grounds that the jury heard prejudicial
testimony, “a new trial is required only if there is a significant possibility that
the prejudicial evidence has a substantial impact upon the jury verdict, viewed
in light of the entire record.” Id. (quoting United States v. Paul, 142 F.3d 836,
844 (5th Cir. 1998)).
      2. Applicable Law and Analysis
      “A prosecutor is prohibited from commenting directly or indirectly on a
defendant’s failure to testify.” United States v. Ramey, 531 F. App’x 410, 413
(5th Cir. 2013) (per curiam) (unpublished) (quoting United States v. Wharton,
320 F.3d 526, 538 (5th Cir. 2003)); see also Doyle v. Ohio, 426 U.S. 610, 618–19
(1976). A prosecutor’s or witness’s remarks constitute a comment on a
defendant’s silence in violation of the Fifth Amendment if the manifest intent
was to comment on a defendant’s silence, or if the character of the remark was
such that the jury would naturally and necessarily construe the remark to be
a comment on a defendant’s silence. Wharton, 320 F.3d at 538. Comments
made by a witness about the decision of a defendant not to testify are reviewed
in context. See United States v. Rocha, 916 F.2d 219, 232 (5th Cir. 1990). Part
of reviewing the remarks in context is determining whether the remark was
spontaneous or prompted by the prosecutor. United States v. Moreno, 185 F.3d
465, 472–73 (5th Cir. 1999). “That the prosecution may not have intended that
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                                    No. 15-51164
the witness make such a comment neither absolves the sin nor eliminates any
potential prejudice.” United States v. Espinosa-Cerpa, 630 F.2d 328, 335 (5th
Cir. 1980).
      “If we find an error, we apply the doctrine of harmless constitutional
error by reviewing the record to determine whether the error was harmless
beyond a reasonable doubt.” Moreno, 185 F.3d at 472. A comment will not
warrant reversal if, beyond a reasonable doubt, it did not contribute to the
verdict. Id. at 475. “[A] curative instruction can militate against finding a
constitutional violation, or become central to the harmless error analysis.”
Ramey, 531 F. App’x at 414.
      Here, although the Agent Gutierrez’s remark was uninvited by the
Government, it constituted a constitutional violation. Agent Gutierrez’s
spontaneous statement would have naturally been interpreted by the jury as
a comment regarding Sanchez’s failure to testify. See Wharton, 320 F.3d at 538
(“The test for determining if a constitutional violation has occurred is whether
‘the language was manifestly intended or was of such character that the jury
would naturally and necessarily take it to be a comment on the failure of the
accused to testify.’”).
      Our analysis, however, does not conclude here; we must determine if the
constitutional violation was harmless. See Moreno, 185 F.3d at 474. “An error
is harmless only if we can determine beyond a reasonable doubt that the
improper testimony did not contribute to the jury’s verdict.” See id. at 475
(holding that even though there was a constitutional error that there was no
abuse of discretion in denying the motion for a mistrial). Importantly, the court
immediately gave a curative instruction after Agent Gutierrez’s remark about
Sanchez. See id. at 474. The “Bug Bug,” “Buck Buck” discrepancy that incited
Agent Gutierrez’s inappropriate comment was also only a minor part in the
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                                        No. 15-51164
grand scheme of overwhelming evidence presented to establish Sanchez’s guilt.
Additionally, the statement made by Agent Gutierrez was isolated, unsolicited,
and never highlighted in the prosecution’s subsequent questioning or closing
argument. See, e.g, Espinosa-Cerpa, 630 F.2d at 335. Although there was a
constitutional error, such error was harmless. The district court did not abuse
its discretion in denying Sanchez’s motion for a mistrial. 12 See Moreno, 185
F.3d at 475.
   H. Failure to Transcribe Sanchez’s Severance Conference
       Velasquez and Rodriguez, who have new appellate counsel that did not
participate in the trial, argue that because the conference discussing the
substance of the conflict that caused Sanchez’s severance is missing, this case
should be reversed and remanded for a new trial. As an alternative to reversing
the ruling, Rodriguez argues that this case should be remanded so that the
record on appeal can be reconstructed. 13
       This court acknowledges that when “a defendant is represented on
appeal by counsel other than the attorney at trial, the absence of a substantial
and significant portion of the record, even absent any showing of specific




       12  Sanchez argues that the cumulative error doctrine applies to his appeal, and calls
for a reversal of his convictions. “The cumulative error doctrine provides that an aggregation
of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors)
can yield a denial of the constitutional right to a fair trial, which calls for reversal.” United
States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (quoting United States v. Munoz, 150
F.3d 401, 418 (5th Cir. 1998)). Given the lack of even harmless errors, this doctrine is
inapplicable to Sanchez’s appeal. See id.
        13 In a supplemental letter to the court after oral argument, Rodriguez acknowledges

that he abandons his request to remand to reconstruct the record on appeal regarding
Sanchez’s severance. In lieu of remanding this appeal to reconstruct the record, the
Government and Rodriguez jointly stipulated to supplement the record on appeal with the
reason for the conflict that caused Sanchez’s case to be severed from Defendants to be retried
separately at a later date.

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                                  No. 15-51164
prejudice or error, is sufficient to mandate reversal.” United States v. Aubin,
87 F.3d 141, 149 (5th Cir. 1996) (quoting United States v. Neal, 27 F.3d 1035,
1044 (5th Cir. 1994)). However, not all failures to record what has occurred
during the trial will work a reversal. United States v. Guess, 134 F.3d 368, 368
(5th Cir. 1997) (per curiam) (unpublished). “[A] gapless transcription of a trial
is not required.” Delgado, 672 F.3d at 343. The conclusion that the missing
portion of the record is significant and substantial must be more than a
speculative assertion. Aubin, 87 F.3d at 149–50.
      In United States v. Gieger, this court held that the absence of seventy-
two bench conferences, which was the majority of the bench conferences from
the trial, did not constitute a significant and substantial missing portion of the
record. 190 F.3d 661, 667 (5th Cir. 1999). Also, a defendant’s speculation that
a bench conference constituted a substantial and significant portion missing
from the record has proved to be inadequate grounds for reversal. See Aubin,
87 F.3d at 149–50. In Aubin, the defendant, who was represented on appeal by
new counsel, speculated that nine bench conferences missing from the record
which “may have covered everything from 404(b) decisions to Brady decisions”
were a “substantial and significant portion of the record.” 87 F.3d at 149–50;
see also Brief of Appellant at 95, United States v. Aubin, 87 F.3d 141 (5th Cir.
1997). This court held that since the defendant did not make any attempt to
determine the substance of the bench conferences, and rather only speculated
the substance, the missing portion of the record was not substantial and
significant. Aubin, 87 F.3d at 149–50.
      Here, the supplemental letter and joint stipulation made after oral
argument regarding the reason for the conflict that caused Sanchez’s severance
revealed that the conflict was not harmful to Velasquez’s or Rodriguez’s case.
Additionally, this one conference missing from the record does not come close
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                                No. 15-51164
to the seventy-two bench conferences missing from the record in Gieger where
this court determined that there was not a substantial and significant portion
of the record missing. 190 F.3d at 667. In conclusion, Defendants’ arguments
do not indicate that there is a substantial and significant omission from the
record on appeal. Reversal or remand is not warranted.
                              III.   CONCLUSION
      For the foregoing reasons, we AFFIRM Defendants-Appellants’
convictions and sentences.




                                     44
