                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 19 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   11-10632

              Plaintiff-Appellee,                D.C. No.
                                                 3:08-cr-00730-WHA-6
 v.

JONATHAN CRUZ-RAMIREZ, AKA                       MEMORANDUM*
Soldado,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   11-10635

              Plaintiff-Appellee,                D.C. No.
                                                 3:08-cr-00730-WHA-4
 v.

MORIS FLORES, AKA Slow, AKA Slow
Pain,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   11-10638

              Plaintiff-Appellee,                D.C. No.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
v.                                   3:08-cr-00730-WHA-10

ERICK DAVID LOPEZ, AKA Spooky,

         Defendant-Appellant.



UNITED STATES OF AMERICA,            No.   11-10644

         Plaintiff-Appellee,         D.C. No.
                                     3:08-cr-00730-WHA-3
v.

ANGEL NOEL GUEVARA, AKA
Peloncito,

         Defendant-Appellant.



UNITED STATES OF AMERICA,            No.   11-10645

         Plaintiff-Appellee,         D.C. No.
                                     3:08-cr-00730-WHA-2
v.

MARVIN CARCAMO, AKA Cyco, AKA
Psycho, AKA Syco,

         Defendant-Appellant.



UNITED STATES OF AMERICA,            No.   12-10051

         Plaintiff-Appellee,         D.C. No.
                                     3:08-cr-00730-WHA-5


                                 2
 v.

GUILLERMO HERRERA, AKA Shorty,
AKA Sparky,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                            Argued December 4, 2018
                        Submission Vacated January 11, 2019
                            Resubmitted July 17, 2019
                                Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

        Defendants Jonathan Cruz-Ramirez, Moris Flores, Erick Lopez, Angel

Guevara, Marvin Carcamo, and Guillermo Herrera appeal their judgments of

convictions for their participation in RICO and VICAR conspiracies and associated

crimes in furtherance of the criminal street gang La Mara Salvatrucha (“MS-13”).1

We vacate Lopez’s conviction on Count 8 and Cruz-Ramirez’s and Herrera’s

convictions on Count 15 and remand for resentencing because these convictions

are lesser-included offenses of Counts 7 and 14, respectively. We vacate Cruz-

Ramirez’s conviction on Count 16, Lopez’s conviction on Count 9, and Carcamo’s,

        1
              The parties are familiar with the facts, so we need not repeat them
here.
                                           3
Guevara’s, and Flores’ convictions on Count 4 and remand for resentencing in

light of United States v. Davis, 139 S. Ct. 2319, 2336 (2019), which held that 18

U.S.C. § 924(c)(3)(B) is unconstitutionally vague. We affirm all other convictions.

      1.     The government concedes that the district court erred by sentencing

Lopez, Cruz-Ramirez, and Herrera to concurrent terms of life imprisonment for

their convictions under 18 U.S.C. § 924(c) and 18 U.S.C. § 924(j)—premised on

the same murders—because their convictions under § 924(c) were lesser-included

offenses of their convictions under § 924(j). Accordingly, we vacate Lopez’s

§ 924(c) conviction on Count 8 and Cruz-Ramirez’s and Herrera’s § 924(c)

convictions on Count 15 and remand for resentencing.

      2.     Defendants’ challenge to the constitutionality of 18 U.S.C.

§ 924(c)(3)(B) was resolved by Davis, 139 S. Ct. at 2336. Accordingly, we vacate

Cruz-Ramirez’s conviction on Count 16, Lopez’s conviction on Count 9, and

Carcamo’s, Guevara’s, and Flores’ convictions on Count 4, and remand for

resentencing.

      3.     The district court did not abuse its discretion by allowing the

government to introduce expert testimony on rebuttal regarding Lopez’s and

Herrera’s cell-site location information. See United States v. Koon, 34 F.3d 1416,

1429 (9th Cir. 1994) (noting the wide discretion of district courts to permit the


                                          4
government to introduce in its rebuttal case evidence that might have been

presented in the case-in-chief), rev’d in part on other grounds, 518 U.S. 81 (1996).

This expert testimony did not prejudice the remaining defendants because the

government appropriately argued inferences in closing argument that were

premised solely on cell-site location records and testimony admitted during the

government’s case-in-chief.

      4.     Under the particular facts of this case, the district court permissibly

excluded Dr. Davis’ expert testimony. Pursuant to Federal Rule of Evidence 403,

the court acted within its discretion in balancing the probative value of the

proffered testimony against the risk of wasted time and juror confusion. See

United States v. Rincon, 28 F.3d 921, 925–26, 925 n.6 (9th Cir. 1994). Assuming

Herrera and Guevara preserved their Sixth Amendment objection, excluding Dr.

Davis did not infringe their Sixth Amendment right to present a defense. Several

problems with eyewitness testimony were evident from the record, which

permitted Guevara and Herrera to “present the substance of” their misidentification

defense through cross-examination and logical inferences. United States v. Waters,

627 F.3d 345, 354 (9th Cir. 2010).

      5.     The district court did not abuse its discretion by admitting the

Hernandez poem. The court permissibly determined the poem was not hearsay


                                           5
because it was not offered to prove the truth of the matter asserted, and the court

appropriately exercised its discretion pursuant to Rule 403. See United States v.

Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc) (noting that a court’s Rule

403 ruling is entitled to great deference). The poem was minimally probative

because it made it somewhat more likely that Guevara was present when a crime

was committed by MS-13, or that the poem described crimes committed by MS-13.

The poem was not specifically connected to any charged crime, but other evidence

established that 20th Street clique members were violent against their rivals, that

Hernandez was a member of an affiliated gang, that she was Guevara’s girlfriend,

and that she was near him on the night of December 26, 2007. The poem only

posed a slight risk of unfair prejudice to Guevara and no risk of unfair prejudice to

other defendants. Even assuming that the poem was improperly admitted as to

Guevara, its admission was harmless because, as noted, the eyewitness

identifications of Hernandez were strong and evidence from the cell-site location

records connected both Guevara and Hernandez to the December 26, 2007

stabbings.

      6.     Herrera challenges four evidentiary rulings. First, we agree that the

court erred when it allowed an agent to testify about Roberto Acosta’s description

of a telephone call he received from Herrera immediately after the Estrada


                                          6
shooting. See United States v. Fryberg, 854 F.3d 1126, 1130 (9th Cir. 2017)

(reviewing de novo alleged violations of the Confrontation Clause). This call was

testimonial because Acosta was an informant who was routinely reporting

information to law enforcement, and the circumstances objectively demonstrate

that Acosta did not make his statements to the agent during an ongoing emergency.

See United States v. Brooks, 772 F.3d 1161, 1168 (9th Cir. 2014) (citation

omitted). Nor was Acosta’s call an excited utterance. See Bemis v. Edwards, 45

F.3d 1369, 1373 (9th Cir. 1995) (“[T]he excited utterance exception is only

available if the declarant has firsthand knowledge of the subject matter of [his]

statement.”). Nonetheless, the district court’s error was “harmless beyond a

reasonable doubt,” United States v. Bustamante, 687 F.3d 1190, 1195 (9th Cir.

2012), because Acosta’s testimony described cryptic, equivocal statements from

Herrera that did not directly implicate him in criminal activity, and cell-site

location evidence and other co-conspirator testimony implicated Herrera in the

Estrada shooting.

      The district court did not abuse its discretion by excluding Cruz-Ramirez’s

recorded statement in which he arguably described shooting a gun that later

jammed. See United States v. Estrada-Eliverio, 583 F.3d 669, 672 (9th Cir. 2009)

(reviewing a ruling concerning the authentication of evidence for abuse of


                                           7
discretion). Acosta allegedly recorded Cruz-Ramirez’s statement on a wire that he

wore, but no witness was called to authenticate this recording. Acosta was

uniquely untrustworthy in light of his perjury charges, and there was at least one

incident in these proceedings in which a recorded statement was erroneously

identified. The court also observed that questions remained about how Acosta’s

recordings were created. Therefore, the court did not abuse its discretion by

concluding that the portion of the recording Herrera sought to introduce lacked a

proper foundation. See United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir.

2014) (“[T]he party offering the evidence must make a prima facie showing of

authenticity so that a reasonable juror could find in favor of authenticity or

identification.” (internal quotation marks omitted)).

      Next, assuming Herrera timely objected, the court did not abuse its

discretion by admitting cooperator Jose Alvarado’s testimony describing Cruz-

Ramirez’s accounts of his participation in the Estrada shooting. The court properly

admitted this testimony under Federal Rule of Evidence 801(d)(2)(E) because

Cruz-Ramirez’s jailhouse statements furthered the conspiracy insofar as they

apprised Alvarado of the gang’s ongoing conflicts with the Nieros and of Cruz-

Ramirez’s “work” on behalf of the conspiracy. United States v. Moran, 493 F.3d

1002, 1010 (9th Cir. 2007) (per curiam) (“When offered against a party, a


                                           8
statement by a coconspirator of a party during the course and in furtherance of the

conspiracy is not barred by the hearsay rule.” (internal quotation marks omitted));

see United States v. Tamman, 782 F.3d 543, 553 (9th Cir. 2015) (“[S]tatements

made to keep coconspirators abreast of an ongoing conspiracy’s activities satisfy

the ‘in furtherance of’ requirement.” (internal quotation marks omitted)).

      The court did not abuse its discretion by admitting informant Walter Palma’s

testimony that he did not believe Cruz-Ramirez when Cruz-Ramirez claimed

responsibility for the Estrada shooting. See United States v. Mendoza-Paz, 286

F.3d 1104, 1113 (9th Cir. 2002) (reviewing admission of lay opinion testimony for

abuse of discretion). Palma testified only as to his own belief in response to Cruz-

Ramirez’s statement, and did not testify about whether Cruz-Ramirez was

generally credible. Finally, any error was harmless; the jury heard testimony that

Cruz-Ramirez claimed he was the shooter in the Estrada murder, but also heard

testimony that Cruz-Ramirez claimed he drove the van.

      7.     The district court did not err when it declined to dismiss Juror 57.

Juror 57 unequivocally reassured the court that he would follow instructions and be

fair. Because Juror 57 gave repeated assurances and the court was able to observe

his demeanor and assess his credibility, we are not firmly convinced that the

court’s factual findings regarding Juror 57’s truthfulness and impartiality were


                                          9
wrong.2 United States v. Olsen, 704 F.3d 1172, 1190 (9th Cir. 2013). Defendants

therefore fail to demonstrate actual bias. See id. at 1189. Next, because the district

court plausibly found that Juror 57 did not conceal information during voir dire,

and its finding was not clearly erroneous, defendants fail to demonstrate

McDonough bias. See Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en

banc). Last, Juror 57’s past experiences being “checked” by gang members fail to

demonstrate the extreme circumstances necessary to find implied bias. See United

States v. Kechedzian, 902 F.3d 1023, 1028 (9th Cir. 2018).

      8.     The district court did not abuse its discretion by conducting a joint

trial, nor plainly err by providing hundreds of limiting instructions. See United

States v. Barragan, 871 F.3d 689, 701–02 (9th Cir. 2017) (reviewing decision to

conduct a joint trial for abuse of discretion), cert. denied, 138 S. Ct. 1565, and cert.

denied, 138 S. Ct. 1572 (2018). Joint trials are “particularly appropriate where the

co-defendants are charged with conspiracy,” and here, the jury acquitted one

defendant entirely and partially acquitted Cruz-Ramirez, “demonstrating its ability

to compartmentalize” and give each defendant individual consideration. Id. at 702.


      2
             Nor did the court abuse its discretion by investigating Juror 57 over
several hearings and concluding that Juror 57 responded truthfully to questions
asked during voir dire. We cannot say that this investigation extended “beyond
permissible limits of inquiry.” See United States v. Simtob, 485 F.3d 1058,
1064–65 (9th Cir. 2007).
                                           10
The limiting instructions were given to “reduce or eliminate any possibility of

prejudice arising from a joint trial,” United States v. Fernandez, 388 F.3d 1199,

1243 (9th Cir. 2004), and the predicate crimes underlying the RICO and VICAR

counts were “well within the ability of the ordinary juror to understand.” See id. at

1244. Accordingly, the joint trial was not “manifestly prejudicial” and was not an

abuse of discretion. Id. at 1241.

      9.     The government did not violate its obligations under Brady v.

Maryland, 373 U.S. 83 (1963). To prevail on a Brady claim, a “defendant must

show: (1) the evidence was exculpatory or impeaching; (2) it should have been, but

was not produced; and (3) the suppressed evidence was material to his guilt or

punishment.” United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011)

(internal quotation marks omitted). Evidence that Sergeant Molina thought Walter

Palma was involved in the Marquez murder and that Sergeant Molina connected

the Marquez detective with an Assistant United States Attorney for further

investigation was discussed in open court during trial. Even if this evidence had

been suppressed, it had minimal impeachment value given that Palma testified that

he committed multiple violent crimes, including attempted murder, and because the

evidence concerning Sergeant Molina shows that he encouraged—rather than

stifled—further investigation of Palma’s involvement in the Marquez murder.


                                          11
      Likewise, the government did not violate its Brady obligations by failing to

disclose material witness warrants issued for the three eyewitnesses to the

December 26 stabbings. The record is clear that these witnesses were afraid to

testify against MS-13 and that they testified only on threat of arrest or actual arrest.

The resulting warrants do not constitute exculpatory information, and there is no

reasonable probability that the result of the trial would have been different had

Guevara questioned these witnesses about their fear of testifying.

      10.    The district court did not abuse its discretion when it declined to

consider Flores’ untimely motion to suppress records containing his cell-site

location information. See United States v. Tekle, 329 F.3d 1108, 1113 (9th Cir.

2003) (“The decision whether to grant an exception to a Rule 12 waiver lies in the

discretion of the district court.”). The deadline for filing suppression motions was

July 27, 2010. The court granted in part Flores’ July 27 motion and suppressed

“cell phone records predating May 1, 2008.” The government moved for

clarification on the grounds that “cell phone records” could include cell-site

location information, and the court clarified that “cell phone records” only referred

to “text messages and other materials containing content of the communications.”

Flores did not seek additional clarification or reconsideration of the order, and the

court’s denial of Flores’ subsequent and untimely motions to suppress during trial


                                           12
was not an abuse of discretion.

      11.    The district court did not err when it permitted the late disclosure of

Jaime Martinez’s testimony detailing Flores’ alleged admissions to uncharged acts

in response to Flores’ asserted entrapment defense. See United States v. Loftis, 843

F.3d 1173, 1176 n.1 (9th Cir. 2016) (reviewing admission of “other crimes”

evidence for abuse of discretion and reviewing de novo whether evidence

constitutes other crimes evidence). Furthermore, Flores was not harmed by the late

disclosure because the court postponed his cross-examination of Martinez so that

Flores could conduct additional investigation, and Flores does not demonstrate

prejudice resulting from his alleged inability to investigate the late-disclosed acts.

      12.    The district court did not err by admitting evidence of Flores’ alleged

juvenile conduct. See United States v. Camez, 839 F.3d 871, 877 (9th Cir. 2016)

(concluding defendant’s conviction “must stand” where the district court instructed

the jury that it could convict defendant “only if it found that [d]efendant continued

his participation [in the criminal enterprise] after turning 18”). The district court’s

jury instruction here was just as restrictive as the one given in Camez, permitting

conviction on conspiracy charges only if Flores continued in the conspiracy after

he turned 18 and only if the government proved “all elements of the crime as of or

after the defendant’s 18th birthday.”


                                           13
      13.    The district court did not circumvent Federal Rule of Evidence 404(b)

and did not abuse its discretion by admitting evidence of Flores’ uncharged acts.

See United States v. Rizk, 660 F.3d 1125, 1131–32 (9th Cir. 2011) (reviewing a

decision to admit evidence for abuse of discretion). Evidence of Flores’ uncharged

acts was evidence “directly related to, or inextricably intertwined with, the crime

charged in the indictment,” and was therefore not subject to Rule 404(b)’s notice

requirement. Id. at 1131 (internal quotation marks omitted). The court was not

required to strike testimony about Flores’ uncharged juvenile acts even after it

declined to give an entrapment instruction, because this testimony was admissible

as “proof on the full scope of the conspiracy.” Id.

      14.    The district court did not abuse its discretion by declining to instruct

the jury on entrapment. See United States v. Spentz, 653 F.3d 815, 818 (9th Cir.

2011) (reviewing for abuse of discretion the denial of an entrapment instruction

due to insufficient evidence). Flores was the leader of the 20th Street clique by

2008, and given the dearth of evidence concerning his lack of predisposition,

Flores fails to point to even slight evidence satisfying the elements of an

entrapment defense.

      15.    The district court did not abuse its discretion by denying as untimely

Flores’ motion to sever his trial and group him for trial with Manuel Franco.


                                          14
Motions filed after the deadline set pursuant to Federal Rule of Criminal Procedure

12(b)(3) are untimely. Fed. R. Crim. P. 12(c)(3). In his only timely motion to

sever, Flores requested severance from “all other defendants” and said nothing

about his desire to be grouped with Franco. The court properly declined to

consider Flores’ subsequent and untimely motion to be tried with Franco. See

Tekle, 329 F.3d at 1113.

      16.    The district court did not err by limiting Flores’ cross-examination of

witness Ana Ramos. See United States v. Larson, 495 F.3d 1094, 1102 (9th Cir.

2007) (en banc). The probative value of Ramos’ alleged affair with Flores was

minimal and substantially outweighed by the threat of a mini-trial on the issue.

The jury had sufficient information to assess the credibility of Ramos and

informant Jaime Martinez, particularly because Martinez admitted that he told

Ramos to lie to federal agents by saying that she was being stalked.

      17.    The district court did not abuse its discretion by denying Lopez’s

motion for a mistrial. See United States v. Banks, 514 F.3d 959, 973 (9th Cir.

2008) (reviewing a denial of a motion for a mistrial for abuse of discretion).

Assuming a Massiah violation occurred, cooperator Oliver Marota’s testimony was

“harmless beyond a reasonable doubt,” see Chapman v. California, 386 U.S. 18, 24

(1967), because three additional witnesses offered the same substantive testimony


                                          15
that Lopez stated he was arrested in possession of a gun linked to two murders.

One witness in particular testified that Lopez admitted he was responsible for the

killings—testimony far more damaging than anything Marota said.

      18.    Lopez argues that federal agents searched his cellular telephone in

violation of the Fourth Amendment because the applicable state search warrant did

not authorize federal law enforcement officers to execute the search. However,

“[a]n otherwise properly issued search warrant is not rendered void for Fourth

Amendment purposes merely because it was executed by law enforcement officers

who lacked warrant-executing authority under state law.” United States v. Artis,

919 F.3d 1123, 1130 (9th Cir. 2019). Thus, the district court did not err by

admitting photographs taken from federal agents’ search of Lopez’s cellular

telephone. Even assuming the warrant was not “otherwise properly issued,” any

error in admitting the photographs was harmless beyond a reasonable doubt. The

only evidence from Lopez’s telephone admitted at trial was twelve photographs

showing Lopez and other individuals making gang symbols, and tattoos and

writings featuring characters such as “MS” and “13.” To the extent the photos

showed Lopez’s involvement in MS-13, they were cumulative of other witnesses’

testimony.

      19.    Carcamo argues that his first counsel was ineffective. This argument


                                         16
is premature and insufficiently supported by the present record. It may be

addressed in a petition filed pursuant to 28 U.S.C. § 2255. See United States v.

McGowan, 668 F.3d 601, 605 (9th Cir. 2012) (“Challenge [of ineffective

assistance of counsel] by way of a habeas proceeding is preferable because it

permits the defendant to develop a record as to what counsel did, why it was done,

and what, if any, prejudice resulted.” (internal quotation marks omitted)).

      20.    The district court did not abuse its discretion when it denied

Carcamo’s request to continue trial or for severance. See United States v. Turner,

897 F.3d 1084, 1101 (9th Cir. 2018) (reviewing the denial of a motion for a

continuance for abuse of discretion), cert. denied, 139 S. Ct. 1234 (2019). The

court offered a reasoned explanation that after several continuances, another

continuance threatened witnesses’ memory loss and exacerbated the ongoing

danger to witnesses. The court permitted defendants to apply for additional

resources if necessary to analyze newly-produced discovery, and to seek

continuances to prepare for cross-examination during trial. Accordingly, the

court’s denial was neither “unreasoning” nor arbitrary. See id. at 1102.

      21.    Besides the two errors for which we vacate defendants’ convictions

(sentencing based on lesser-included offenses and the unconstitutionality of 18

U.S.C. § 924(c)(3)(B)), any errors committed by the district court were marginal,


                                          17
and they do not cumulatively warrant a new trial. See United States v. de Cruz, 82

F.3d 856, 868 (9th Cir. 1996) (discussing cumulative error).

      VACATED AND REMANDED IN PART, AFFIRMED IN PART.




                                        18
