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

                                      No. 17-50325
                                                                               Fifth Circuit

                                                                             FILED
                                                                        August 2, 2018

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

v.

SAMUEL VELASCO GURROLA,

              Defendant – Appellant.




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


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.
       Defendant–appellant Samuel Velasco Gurrola (“Gurrola”), the leader of
the Velasco Gurrola Criminal Enterprise (the “VCE”), appeals his conviction
and sentence for three counts of conspiracy to kill in a foreign country and four
counts of conspiracy to cause travel in foreign commerce in the commission of
murder-for-hire. Finding no reversible error, we AFFIRM. 1


       1 Because of the number of individuals involved in the events underlying this appeal,
we include, for ease of reference, a table that lists those individuals and provides a short
description of their role:

 Samuel Velasco Gurrola         (“Gurrola”), the sole defendant and leader of the VCE.
 Emmanuel Velasco Gurrola       (“Emmanuel”), Gurrola’s brother and the co-leader of the
                                VCE.
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                                   No. 17-50325
     I.       FACTUAL AND PROCEDURAL BACKGROUND
     Viewed in the light most favorable to the verdict, the relevant facts are
as follows: Gurrola formed the VCE in the early 2000’s with his brother
Emmanuel Velasco Gurrola (“Emmanuel”), his sister Dalia Valencia, aka Dalia
Velasco (“Dalia”), and several other individuals. For a number of years, the
VCE, spearheaded by Gurrola, engaged in racketeering, kidnapping,
carjacking, and drug trafficking throughout the United States and northern
Mexico.
     In February 2004, Gurrola married Ruth Sagredo Escobedo (“Ruth”). A
few months later, Ruth’s five-year-old daughter from a previous marriage,
A.A., informed Ruth that Gurrola had sexually assaulted her. Ruth
subsequently took steps to have criminal charges filed against Gurrola in



Dalia Valencia Velasco        (“Dalia”), Gurrola’s sister and a role player in the murder
                              conspiracy.
Ruth Sagredo Escobedo         (“Ruth”), Gurrola’s ex-wife and the mother of A.A. who was
                              murdered while riding in her sister’s funeral procession.
A.A.                          Ruth’s daughter who Gurrola allegedly assaulted.
Cinthia Sagredo               (“Cinthia”), Ruth’s sister who was murdered while working
                              at the Sagredo family hotel.
Roberto Martinez              Roberto Martinez (“Roberto”), Ruth’s boyfriend who was
                              murdered while riding in a car with Ruth during Cinthia’s
                              funeral procession.
Francisco Villareal           (“Francisco”), Ruth’s father who was murdered when his
                              home was invaded.
Carlos Sagredo                (“Carlos”), Ruth’s brother who witnessed Ruth’s murder.
Alan Garcia                   (“Alan”), the VCE member hired to kill Ruth and her family.
Arturo Garcia                 (“Arturo”), Alan’s father, a small-time criminal within the
                              VCE, and a key government witness.
Cesar Silva                   (“Cesar”), a low-level VCE member who primarily engaged
                              in kidnappings, also a government witness.
Silvia Mendez                 (“Mendez”), Gurrola’s other ex-wife and a victim of a
                              kidnapping that occurred just days after Ruth’s murder.
Edgardo Avalos                (“Avalos”), A.A.’s father and Ruth’s first husband.
Penny Hamilton                (“Hamilton”), the state court prosecutor during the
                              investigation into the sexual assault of A.A.


                                          2
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                                    No. 17-50325
Texas state court. The State filed charges against Gurrola in 2005, but
Gurrola’s trial counsel obtained a number of continuances over the next three
and a half years. Eventually though, the court drew a hard line: it reset the
case for trial on November 12, 2008, and it told the parties that there would be
no more continuances.
      The State then notified Gurrola that Ruth was going to testify as the
“outcry” witness, 2 which meant Ruth would be able to testify about A.A.’s out-
of-court statements to Ruth describing the incident with Gurrola. As trial drew
near, Gurrola began searching for a way to prevent Ruth from testifying. At a
May 2008 pre-trial hearing, Gurrola approached Ruth and told her, in front of
her family, that she would pay dearly if she did not drop the case. Gurrola then
pointed to Ruth’s father, Francisco Villareal (“Francisco”), and stated that he
“would start with him.” Despite this warning, Ruth aggressively urged the
prosecutor to get the case to trial.
      In September 2008, Gurrola met with Emmanuel, Dalia, Alan Garcia
(“Alan”), and Arturo Garcia (“Arturo”) at Dalia’s residence in El Paso. At that
meeting, Gurrola contrived a careful plan to have Ruth murdered in her
hometown of Juarez, Mexico. 3 This presented a problem for Gurrola because
Ruth did not travel to Juarez often, and Gurrola faced a rapidly approaching
trial date on the sexual assault charge. Gurrola decided that Ruth would have
to be lured to Juarez. Gurrola then hired Alan to murder Ruth’s father,




      2 Under Texas law, an “outcry witness” is the first adult person other than the
defendant to whom the child-complainant made a statement describing the incident. TEX.
CODE CRIM. PROC. § 38.072.
      3 Gurrola wanted Ruth killed in Juarez because he did not want to draw the ire of

American law enforcement.
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                                 No. 17-50325
Francisco, at his home in Juarez so that Ruth would have to travel to Juarez
for the funeral.
        On October 3, 2008, a group of masked individuals invaded Francisco’s
home, murdered him execution-style, and stole approximately $140,000 from
his safe. As Gurrola had anticipated, Ruth returned home for Francisco’s
funeral. Coincidentally, that funeral occurred at the same time as the funeral
of a Mexican law enforcement officer, which attracted a large law enforcement
presence near Francisco’s funeral. For this reason, the plan to murder Ruth
could not be carried out.
        Despite her father’s murder, Ruth did not ask the State to drop the
charges against Gurrola. However, as the November 12, 2008 trial date
approached, Gurrola’s counsel pleaded for one final continuance because
Gurrola was allegedly gravely ill and unable to stand trial. The state court
reluctantly granted the continuance and set a final trial date for December 9,
2008.
        In the meantime, another plan congealed to lure Ruth to Juarez. On
November 20, 2008, Cinthia Sagredo (“Cinthia”), Ruth’s sister, was ambushed
and murdered while working at the Sagredo family hotel in Juarez. As
anticipated, Ruth attended Cinthia’s funeral two days later. As Ruth and her
boyfriend, Roberto Martinez (“Roberto”), drove in Cinthia’s funeral procession,
they were ambushed and brutally murdered. On December 9, 2008, Gurrola
appeared ready to begin trial on the sexual assault charge. Deprived of its key
witness, however, the State moved for a continuance and ultimately dismissed
the case.
        After a lengthy investigation into the murders of Ruth, Francisco,
Cinthia, and Roberto, as well as the VCE’s other illegal operations, on
September 22, 2015, federal warrants were issued for several VCE members,
including Gurrola. He was arrested the next day in El Paso and later charged
                                       4
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                                  No. 17-50325
in a seven-count First Superseding Indictment for three counts of conspiracy
to kill in a foreign country under 18 U.S.C. § 956(a) and four counts of
conspiracy to cause travel in foreign commerce in the commission of murder-
for-hire under 18 U.S.C. § 1958(a).
      At the week-long trial, the Government produced nearly twenty
witnesses, but none more important than Arturo Garcia. Arturo testified
extensively to conversations he both participated in and overheard in which
Gurrola, Alan, and others devised a plan to kill Ruth and her family. Arturo
further testified that, after Ruth’s murder, Gurrola admitted to the murders.
This testimony was buttressed by extensive circumstantial evidence.
Ultimately, a jury found Gurrola guilty on all seven counts.
      The district court sentenced Gurrola to consecutive life sentences on
counts one through four and concurrent life sentences on counts five through
seven. The district court then ordered restitution, but it reserved
determination of the final amount for a later date. On August 11, 2017, the
district court entered a second amended judgment reflecting the final amount
of restitution as $1,550,247.15. Gurrola timely appealed all seven convictions
and sentences, including the final restitution award.
      II.   DISCUSSION
      On appeal, Gurrola asserts that the district court committed several
errors in both his trial and sentencing. We address each argument in turn.
            A. The voir dire
      Gurrola’s first claim of trial error is that the district court’s restricted
voir dire violated his Sixth Amendment right to a fair and impartial jury. The
district court conducted the first part of voir dire by asking the venire a number
of questions (his own questions and some questions submitted by both Gurrola
and the Government prior to trial); the court then gave counsel for both sides
five minutes for further questioning. At the expiration of Gurrola’s allotted
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                                       No. 17-50325
time, Gurrola’s request for additional time was denied. Gurrola’s main
argument is that the restricted voir dire did not enable him to adequately
determine whether perspective jurors would be biased against him because of
the allegations against him in the state court criminal proceeding.
      This Court defers to the judgment of the district court regarding the time
and scope of voir dire absent an abuse of discretion. 4 A district court does not
abuse its discretion so long as the procedure used “created a reasonable
assurance that prejudice would be discovered if present.” 5
      Here, the district court questioned the veniremembers regarding their
ability to follow the law as instructed and their impartiality concerning issues
that typically arise in a criminal trial. Though the district court did not ask
any questions specifically regarding the sexual assault allegations, the venire
learned of those allegations when the court read the Government’s statement
of the case without objection at the outset of voir dire. Several veniremembers,
in response to questions from the court on various topics, admitted in open
court that they could not be impartial after learning of Gurrola’s alleged sexual
assault of Ruth’s minor child. Those veniremembers were excused without
further questioning, and none of the remaining veniremembers indicated that
they harbored bias or prejudice against Gurrola based on the sexual assault
allegations. Moreover, as part of the court’s voir dire, it invited counsel for both
sides to submit questions for the court to ask the venire. Although Gurrola
submitted questions, none of them touched the sexual assault issue. Then,
during the time allotted to Gurrola’s counsel to question the venire, he raised
a number of issues involving impartiality, but he asked no questions regarding
the sexual assault allegations.



      4   See United States v. Rodriguez, 993 F.2d 1170, 1176 (5th Cir. 1993).
      5   United States v. Harper, 527 F.3d 396, 409 (5th Cir. 2008).
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                                        No. 17-50325
       We have carefully reviewed the court’s voir dire procedure and are
satisfied that it was conducted to “create[ ] a reasonable assurance that
prejudice would be discovered if present.” 6 We thus find no error and conclude
that Gurrola’s argument that his Sixth Amendment rights were violated
during voir dire is without merit.
               B. The district court’s evidentiary rulings on hearsay
                  objections

       Gurrola next argues that the district court erred by allowing the
Government to introduce inadmissible hearsay evidence. Gurrola’s primary
challenges relate to testimony about his statements to Arturo Garcia
concerning Ruth’s murder, Alan’s statements to and interactions with Arturo
following Francisco’s murder, Ruth’s statements to various individuals
preceding her murder, and Emmanuel’s statement to Cesar Silva (“Cesar”)
regarding Francisco’s murder and robbery.
       Because Gurrola objected to the admissibility of this testimony at trial,
we review “for abuse of discretion, subject to the harmless error standard.” 7 “A
trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” 8




       6  Id. Gurrola also briefly argues that his right to a fair and impartial jury was violated
by the Government’s explanation of the reasonable doubt standard during its portion of voir
dire. Because Gurrola did not object to this portion of the Government’s voir dire at trial, we
review this issue for plain error only and find none. See United States v. Puckett, 505 F.3d
377, 384 (5th Cir. 2007) (noting that plain-error review applies to forfeited errors). The
district court instructed the jury on the proper meaning of “beyond a reasonable doubt,” and,
consequently, mitigated whatever possible inaccuracies were included in the Government’s
explanation. See United States v. Garcia, 86 F.3d 394, 401–02 (5th Cir. 1996).
        7 United States v. Valas, 822 F.3d 228, 239–40 (5th Cir. 2016).
        8 United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008).

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                                       No. 17-50325
                     1. Gurrola’s statements to Arturo
       At trial, Arturo testified to a number of highly incriminating statements
allegedly made by Gurrola. 9 Gurrola argues that this testimony was
inadmissible under the co-conspirator rule, Federal Rule of Evidence
801(d)(2)(E), on the ground that Arturo was not a member of the murder
conspiracy at the relevant times. As the Government correctly maintains,
regardless of their admissibility under the co-conspirator rule, Gurrola’s own
statements were admissible under Rule 801(d)(2)(A), which allows the
introduction of statements “offered against an opposing party” that were “made
by the party in an individual or representative capacity.” 10 Therefore, the
district court properly admitted Arturo’s testimony.
                     2. Arturo’s testimony about the events following
                        Francisco’s murder

       Gurrola also claims that the district court erred by allowing Arturo to
testify regarding a shoebox full of cash Alan stole from Francisco’s home and
certain events following Francisco’s death because Arturo was not a co-
conspirator of the murder conspiracy at that time. Gurrola’s argument misses
the mark.
       Rule 801(d)(2)(E) only applies to statements made by a co-conspirator. At
trial, the court allowed Arturo to testify to his personal knowledge of the events
he observed following Francisco’s death—but not statements that Alan


       9 Arturo testified that Gurrola, among other things, (1) told him that he (Gurrola)
needed someone to kill his wife because she wanted to put him in jail for assaulting her four-
year old daughter, (2) hatched a plan to kill Ruth at Dalia’s house wherein he told Alan that
he could find a safe filled with money at Ruth’s father’s house that would constitute partial
payment for the murders and that, regardless of whether there was money in the safe,
Gurrola would compensate Alan by funneling lucrative kidnapping opportunities toward
Alan, and (3) on a separate occasion, admitted that he hired Alan to commit the murders and
that Francisco and Cinthia were killed in order to lure Ruth into Mexico.
       10 FED. R. EVID. 801(d)(2)(A); see also United States v. Franklin, 586 F.2d 560, 568–69

(5th Cir. 1978); United States v. Hutchins, 818 F.2d 322, 328 (5th Cir. 1987).
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                                            No. 17-50325
allegedly made. For example, Arturo testified without objection that, at Alan’s
behest, Arturo traveled to Juarez to help transport money from Francisco’s safe
into the United States. He also testified without objection that Alan had a
shoebox full of money in his possession when Arturo first arrived in Juarez the
day after Francisco’s murder. However, when the Government asked Arturo
to repeat several of Alan’s precise statements, the district court sustained
Gurrola’s objection. Because the district court did not allow Arturo to testify to
statements made by Alan, the hearsay rules were not implicated, and the
district court did not abuse its discretion in admitting this evidence.
                           3. Ruth’s statements
          Next, Gurrola argues that the district court erred by admitting several
of Ruth’s statements through the testimony of her brother, Carlos Sagredo
(“Carlos”). Gurrola contends that the Government did not meet its burden to
show that Gurrola actually created Ruth’s unavailability as required by
Federal Rule of Evidence 804(b)(6), and that, in any event, Ruth’s statements
should have been excluded under Federal Rule of Evidence 403.
          Rule 804(b)(6), the forfeiture by wrongdoing exception, allows the
introduction of statements offered against a party that has “engaged or
acquiesced in wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness.” 11 In order for the declarant’s
statements to be admissible, the wrongdoer must “ha[ve] in mind the
particular purpose of making the witness unavailable.” 12 The party offering
this evidence must make this showing by a preponderance of the evidence. 13



          11   Giles v. Calif., 554 U.S. 353, 367 (2008) (quoting FED. R. EVID. 894(b)(6)).
          12   Id. (quoting 5 C. Mueller & L. Kirkpatrick, Federal Evidence § 8:134, p. 235 (3d ed.
2007)).
         See United Stated v. Nelson, 242 F. App’x 164, 170–71 (5th Cir. 2007). Although
          13

unpublished opinions are not precedential, they are persuasive. See Ballard v. Burton, 444
F.3d 391, 401 n.7 (5th Cir. 2006).
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                                       No. 17-50325
       The district court conducted a pre-trial hearing on the admissibility of
Ruth’s statements. 14 At the hearing, the case agent, Homeland Security Agent
Thomas Salloway (“Agent Salloway”), testified that, during the course of his
investigation, both Arturo Garcia and Cesar Silva informed him that they
heard Gurrola say that Gurrola ordered Ruth murdered specifically to prevent
her from testifying. Agent Salloway’s testimony was highly probative of
Gurrola’s motive for having Ruth killed, and it was later confirmed by Arturo
at trial. The district court was entitled to rely on Agent Salloway’s testimony
in rendering its pre-trial ruling and, consequently, it did not abuse its
discretion by admitting Carlos’s testimony under Rule 804(b)(6). 15
       Gurrola’s Rule 403 argument is likewise unpersuasive. 16 Carlos testified
that Ruth told him “[s]he was afraid, because she was being followed” and that
she “was receiving threatening phone calls.” He further testified that Ruth told
him Gurrola approached her after a court hearing and warned her to “drop the
case or it will cost you” while pointing at Francisco. Though this evidence was
prejudicial, it was highly probative of Gurrola’s motive and plan, especially
considering Francisco was the first murder victim. Thus, the district court did
not abuse its discretion in overruling the Rule 403 objection.
                     4. Emmanuel’s statements to Cesar
       Lastly, Gurrola argues that the district court erred by admitting portions
of Cesar Silva’s hearsay testimony in violation of his rights under the
Confrontation Clause of the Sixth Amendment. Gurrola primarily takes issue




       14 District courts are “not bound by evidence rules, except those on privilege” when
determining the admissibility of evidence at a pre-trial hearing. FED. R. EVID. 104(a).
       15 See id.
       16 Rule 403 provides that a court “may exclude relevant evidence if its probative value

is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”
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                                       No. 17-50325
with Cesar’s testimony that Emmanuel told Cesar about “a supposed
kidnapping” where members of the VCE invaded a home in Juarez, killed an
older Hispanic person, and stole money from a safe—a description that neatly
fit the circumstances of Francisco’s murder. Gurrola contends that admission
of this testimony violated his rights under the Confrontation Clause because
Emmanuel was not available to be cross-examined. The Government counters
that Emmanuel’s statement falls within the co-conspirator exemption from
hearsay, Rule 801(d)(2)(E), and, therefore, was not subject to the Confrontation
Clause. 17
       The admissibility of Cesar’s testimony depends on whether Emmanuel’s
statement falls under Rule 801(d)(2)(E). 18 To satisfy that rule, the proponent
of a statement must show by a preponderance of the evidence that (1) a
conspiracy existed, (2) the statement was made by a co-conspirator of the
opposing party, (3) the statement was made during the course of the
conspiracy, and (4) the statement was made in furtherance of the conspiracy. 19
       The only element at issue here is whether Emmanuel’s statement was
made “in furtherance of” the murder conspiracy. The “in furtherance of”
element “is not to be construed too strictly lest the purpose of the exception be
defeated.” 20 However, to pass muster, a statement must advance the ultimate
objects of the conspiracy—“mere idle chatter” will not suffice. 21




       17 The Confrontation Clause does not bear on non-testimonial statements. See Davis
v. Washington, 547 U.S. 813, 821–22 (2006). And it is well-settled within this Circuit that co-
conspirator statements are non-testimonial. See, e.g., United States v. Holmes, 406 F.3d 337,
347–48 (5th Cir. 2005).
       18 We review a Confrontation Clause challenge de novo, subject to harmless error

analysis. United States v. Duron-Caldera, 737 F.3d 988, 992 (5th Cir. 2013).
       19 See United States v. Broussard, 80 F.3d 1025, 1038 (5th Cir. 1996) (citing Bourjaily

v. United States, 483 U.S. 171, 175 (1987)).
       20 United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999).
       21 Id.

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      On the one hand, Gurrola argues that Emmanuel’s statement had
nothing to do with the murders and that it was merely an effort to recruit Cesar
into a wholly separate kidnapping conspiracy. The Government, on the other
hand, argues that while one purpose of Emmanuel’s statement was to convince
Cesar to assist in kidnapping operations, its main purpose was to help Gurrola
compensate Alan for murdering Ruth and her family. In support, the
Government points to the murder-for-hire compensation agreement between
Gurrola and Alan. Arturo testified at trial that Gurrola agreed to funnel
lucrative kidnapping opportunities to Alan, and to assist Alan in those
kidnappings, as additional compensation to Alan for his role as the assassin.
We find no abuse of discretion in the admission of this evidence, especially
considering that Emmanuel made this statement shortly after the murders
occurred and, at that time, Gurrola presumably would have been trying to
make good on his promise to Alan.
               C. The district court’s admission of other acts evidence
      In Gurrola’s third claim of trial error, he challenges the admission of
various crimes, wrongs, and other acts, including evidence of: the sexual
assault of A.A.; Silvia Mendez’s (“Mendez”) kidnapping; rental vehicle usage in
the VCE’s kidnapping operations; and the death of Alan Garcia. All of this
evidence, Gurrola contends, was minimally relevant, unduly prejudicial, and
offered only to prove Gurrola acted in accordance with his bad character. The
Government counters that the challenged evidence was intrinsic to the
murders and also highly relevant to Gurrola’s motive, preparation, and
method.
      Because Gurrola objected to the admission of this evidence at trial, we
review “for abuse of discretion, subject to the harmless error standard.” 22


      22   Valas, 822 F.3d at 239–40.
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                                       No. 17-50325
Evidence of crimes, wrongs, and other bad acts is generally admissible if
“intrinsic” to the crimes charged. 23 Evidence is considered intrinsic “if it is an
uncharged offense which arose out of the same transaction or series of
transactions as the charged offense, if it was inextricably intertwined with the
evidence regarding the charged offense, or if it is necessary to complete the
story of the crime of the trial.” 24
       Gurrola’s first argument relates to the alleged sexual assault of A.A.
Gurrola contends that the prosecutor in the state criminal proceeding, Penny
Hamilton (“Hamilton”), should not have been allowed to testify about her
investigation of Gurrola, the indictment in that case, and the potential
punishment Gurrola faced if convicted. 25 Gurrola’s argument fails. This
testimony was inextricably intertwined with the murder conspiracy. It
established the timeline of events leading up to the murders, and it allowed
the jury to “evaluate all of the circumstances under which [Gurrola] acted.” 26
Therefore, it was properly admitted as intrinsic evidence.
       The testimony concerning Mendez’s kidnapping was also properly
admitted as intrinsic evidence. 27 As stated above, Arturo Garcia testified that
Gurrola offered to pay Alan for murdering Ruth, in part, by funneling Alan
lucrative kidnapping opportunities. Mendez’s kidnapping occurred just
fourteen days after Ruth’s murder, involved a significant ransom, and was
linked, at least circumstantially, to Alan and Gurrola. Evidence related to this


       23 See United States v. Sudeen, 434 F.3d 384, 389 (5th Cir. 2005).
       24 United States v. Morgan, 117 F.3d 849, 861 (5th Cir. 1997).
       25 Gurrola also argues that Edgardo Avalos, A.A.’s father and Ruth’s ex-husband,

should not have been allowed to testify regarding circumstances surrounding the sexual
assault case. Avalos merely testified that Ruth was vigorous in her pursuit of justice. This
testimony, to the extent that it was not intrinsic, was highly probative of Gurrola’s motive to
have Ruth killed, and we cannot say that the district court abused its broad discretion in
admitting it.
       26 United States v. Randall, 887 F.2d 1262, 1268 (5th Cir. 1989).
       27 See United States v. Watkins, 591 F.3d 780, 786 (5th Cir. 2009).

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                                        No. 17-50325
kidnapping thus served to complete the story of the murders because it
supported the Government’s theory that Gurrola held up his end of the bargain
in the murder-for-hire scheme. Though a separate kidnapping may ordinarily
constitute an “other bad act[ ],” here, due to the temporal proximity of the
kidnapping and the unique context of the murder-for-hire agreement, the
Mendez kidnapping is more accurately described as an “additional fact[ ]
surrounding the charge at issue,” which is intrinsic and admissible. 28
       However, the testimony and documentary evidence relating to rental car
usage in other kidnappings and the testimony regarding Alan Garcia’s death
was extrinsic.       To determine whether extrinsic act evidence was properly
admitted, we conduct a two-step inquiry mandated by Federal Rule of Evidence
404(b). 29 “First it must be determined that the extrinsic offense evidence is
relevant to an issue other than the defendant’s character. Second, the evidence
must possess probative value that is not substantially outweighed by its undue
prejudice and must meet the other requirements of rule 403.” 30 Our duty “is to
assess “the evidence’s relevancy and probative value,” and we are to reverse
the district court “[r]arely and only after a clear showing of prejudicial abuse
of discretion.” 31
       At trial, Arturo testified that the VCE often used rental cars to further
their kidnapping pursuits. Arturo also testified that Gurrola and his cohorts
used rental cars to conduct surveillance of the murder victims and to watch at


       28 See United States v. Lockhart, 844 F.3d 501, 512 (5th Cir. 2016) (distinguishing
between intrinsic and extrinsic evidence).
       29 Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a particular occasion the person acted
in accordance with the character” but nevertheless such evidence “may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.”
       30 United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
       31 United States v. Shaw, 701 F.2d 367, 386 (5th Cir. 1983), abrogated on other grounds

by Greer v. Miller, 483 U.S. 756, 763 (1987).
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                                       No. 17-50325
least one of the murders. The Government then introduced rental car records,
which indicated that VCE members frequently rented cars. After fully
reviewing the records and Arturo’s testimony as to rental car usage, we believe
the complained of evidence was at least minimally relevant to Gurrola’s plan
and modus operandi. In any event, the rental car records were not unfairly
prejudicial. The jury learned through Gurrola’s own statements about the
scope of Gurrola’s and the VCE’s illegal operations, which included brutal
murders, kidnappings, and related lawlessness, and there was a substantial
amount of corroborating evidence connecting Gurrola to the murders. The
district court thus did not abuse its broad discretion by admitting this
evidence. 32
       The final piece of other act evidence Gurrola complains of is Dr. Juan
Contin’s (“Dr. Contin”) testimony regarding Alan Garcia’s death. After the
Government introduced evidence that Alan was killed while conducting a
kidnapping in Mexico, it called the El Paso medical examiner, Dr. Contin, who
testified about Alan’s cause of death. 33 This testimony was not relevant. It
pertained to the death of a man not on trial and events unrelated to those at
issue. The district court’s error in admitting Dr. Contin’s testimony, however,
was harmless. In light of the copious evidence before the jury and the lack of a
direct link between Gurrola and Dr. Contin’s testimony, the admission of that
testimony did not have a substantial impact upon the jury verdict. 34


       32 United States. v. Bloom, 538 F.2d 704, 708 (5th Cir. 1976) (noting that the district
court has “broad discretion” when evaluating the admissibility of 404(b) evidence).
       33 Dr. Contin’s testimony was not offered to “prove [Gurrola’s character] in order to

show that on a particular occasion [he] acted in accordance with the character.” FED. R. EVID.
404(b)(1). Thus, we analyze the its admissibility solely under Federal Rule of Evidence 403.
       34 See United States v. El-Zoubi, 993 F.2d 442, 446 (5th Cir. 1993) (“[W]e must consider

the other evidence in the case, and then decide if the inadmissible evidence actually
contributed to the jury’s verdict.”); see also United States v. Evans, 892 F.3d 692, 714 (5th
Cir. 2018) (explaining that non-constitutional errors are subject to the “substantial and
injurious” standard).
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                                      No. 17-50325
             D. The district court’s application of Rule 403
      In his fourth claim of trial error, Gurrola’s assault on the evidentiary
rulings continues. He asserts that, regardless of the district court’s rulings on
hearsay and other acts, the district court should have excluded much of the
Government’s evidence under Federal Rule of Evidence 403. We review a
district court’s Rule 403 determination for abuse of discretion. 35 Exclusion
under Rule 403 is “an extraordinary remedy” 36 that we employ “cautious[ly]”
and “sparing[ly]” 37—only when there has been “a clear abuse of discretion.” 38
      First, Gurrola argues that Dr. Contin’s testimony regarding Francisco,
Ruth, and Roberto’s autopsy reports, as well as the photographs of Francisco’s
body, should have been excluded as cumulative and unfairly prejudicial. Many
of the photos are, as Gurrola contends, shocking. So too is Dr. Contin’s
testimony regarding the autopsy reports. However, it is generally not an abuse
of discretion to admit such shocking evidence in a murder trial as long as it has
nontrivial probative value. 39
      Here, the Government’s theory of the case was that Gurrola wanted the
murders to occur in Juarez and appear as if they were cartel-related. The cartel
is known to commit exceedingly grisly murders. Therefore, to link Gurrola to
these murders, it was crucial for the Government to show that the murders
involved cartel-like behavior such as excessive gunshot wounds and the use of
automatic weapons at close range. Accordingly, the photos and testimony
regarding the autopsy reports had nontrivial probative value, and the district
court did not clearly abuse its discretion in admitting them.




      35 See United States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993).
      36 United States v. Thevis, 665 F.2d 616, 633 (5th Cir. 1982).
      37 United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007).
      38 United States v. Maggit, 784 F.2d 590, 597 (5th Cir. 1986).
      39 Fields, 483 F.3d at 355 (involving grisly photos and autopsy reports).

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                                       No. 17-50325
       Next, Gurrola argues that the district court should have excluded ski
masks found in Gurrola’s car years after the murders. It is undisputed that
these ski masks were black with only the eye holes exposed. At trial, Silvia
Mendez testified that her kidnappers used black ski masks with only the eyes
exposed. Likewise, an eyewitness to Francisco’s murder testified that the
murderers wore black masks that exposed only their eyes. Though the masks
were recovered well after the murders occurred, they were probative of the
VCE’s modus operandi. 40 Therefore, we cannot say that the district court
clearly abused its broad discretion by admitting the masks.
       Lastly, Gurrola contends that the district court should have excluded the
testimony of Ruth’s ex-husband, Edgardo Avalos, concerning his interaction
with Gurrola and Gurrola’s former counsel at a probate hearing following
Ruth’s death. Avalos testified that, while Gurrola was looking in his direction,
Gurrola’s former counsel approached Avalos and offered to cooperate in the
probate proceedings if Avalos agreed to drop the sexual assault case.
       Avalos’s testimony is clearly probative of Gurrola’s overarching desire to
rid himself of the sexual assault case. Though this testimony may have harmed
Gurrola’s case, it shed additional light on Gurrola’s motive for coordinating the
murders. The district court did not clearly abuse its discretion by admitting
this portion of Avalos’s testimony. 41




       40 Cf. Dowling v. United States, 493 U.S. 342, 344–45, 353 (1990) (finding that evidence
of a defendant’s prior robbery of a home was “circumstantially valuable” in proving he robbed
a bank where on both occasions he wore a ski mask and carried a small pistol); United States
v. Ramirez, 460 F. App’x 333, 335 (5th Cir. 2012) (finding that evidence of a separate bank
robbery was admissible as evidence of modus operandi during trial for later bank robbery
because clothing worn in both robberies was substantially similar).
        41 Gurrola also claims that his attorney’s statements to Avalos are inadmissible

hearsay. Rule 801(d)(2)(C), however, exempts statements “made by a person whom the party
authorized to make a statement on the subject” from the hearsay definition.
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                                       No. 17-50325
              E. Denial of a motion for judgment of acquittal/new trial
       Gurrola next argues that the district court should have granted his
motion for a judgment of acquittal or, alternatively, a new trial. 42 He argues
that absent the district court’s erroneous evidentiary rulings, the Government
presented insufficient proof of overt acts and, consequently, did not meet its
burden of proof for the three § 1956(a)(1) convictions or the four § 1958(a)
convictions. 43 This argument ignores the reality of the lower court proceedings.
At trial, the Government’s evidence showed, among other things, that (1)
Gurrola gave Alan money to purchase equipment necessary to complete the
murders, (2) Dalia, Gurrola’s sister, rented a car that Gurrola and Emmanuel
used to conduct surveillance of Cinthia’s murder, (3) Alan traveled to Juarez
to murder Francisco, (4) Alan used Arturo’s car to transport into the United
States money that was stolen from Francisco’s safe and used to compensate
Alan for the murders, and (5) unidentified members of the conspiracy used a
vehicle to travel to Cinthia’s funeral and subsequently murder Ruth and
Roberto. The Government presented ample proof of overt acts supporting all
seven convictions. Thus, the district court did not err by denying Gurrola’s
motion for a judgment of acquittal and/or a new trial.
              F. The jury instructions
       Gurrola maintains that the district court erred by instructing the jury
that it need not find that one of the conspirators committed an overt act in


       42  We review the denial of a motion for judgment of acquittal under a sufficiency of the
evidence standard, United States v. Lucio, 428 F.3d 519, 522 (5th Cir. 2005) and “assess
whether a reasonable jury could have properly concluded, weighing the evidence in a light
most deferential to the verdict rendered by the jury, that all of the elements of the crime
charged had been proven beyond a reasonable doubt.” Id. We review the denial of a motion
for a new trial for an abuse of discretion, exercising “great caution.” United States v. Pratt,
807 F.3d 641, (5th Cir. 2015) (quoting United States v. Turner, 674 F.3d 420, 429 (5th Cir.
2012)).
        43 We assume arguendo that the Government was required to prove an overt act to

support the four § 1958(a) convictions.
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                                      No. 17-50325
order to convict Gurrola on four counts of conspiracy to cause travel in foreign
commerce in the commission of murder-for-hire, 18 U.S.C. § 1958(a).
       Gurrola did not object to the district court’s instructions; therefore, we
review for plain error only. 44 In the jury instruction context, “[p]lain error
occurs only when the instruction, considered as whole, was so clearly erroneous
as to result in the likelihood of a grave miscarriage of justice.” 45 Even if the
error is clear and affects a defendant’s substantial rights, we do not consider it
reversible unless it seriously affected the “fairness, integrity, or public
reputation of judicial proceedings.” 46
       Gurrola correctly notes that this Court, in United States v. McCullough,
stated that “proving the conspiracy [to cause travel in foreign commerce in the
commission of murder-for-hire] requires proof of ‘ . . . an overt act committed
by any one of the conspirators in furtherance of the conspiratorial object.’” 47
The Government contends, however, that this statement is non-binding in light
of Whitfield v. United States. 48
       In Whitfield, the Supreme Court held that a conviction for conspiracy to
commit money laundering in violation of 18 U.S.C. § 1956(h) does not require
proof of an overt act. 49 In so holding, the Court clarified the governing rule for
interpreting conspiracy statutes: there is no overt act requirement unless
Congress either expressly provides for one or cross-references the general
conspiracy statute (18 U.S.C. § 371) which deviates from the common law rule




       44 United States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994).
       45 Id.
       46 Puckett, 505 F.3d at 384 (quoting United States v. Calverley, 37 F.3d 160, 164 (5th

Cir. 1994)).
       47 United States v. McCullough, 631 F.3d 783, 791–92 (5th Cir. 2011) (quoting United

States v. Blackthorne, 378 F.3d 449, 453 (5th Cir. 2004)).
       48 543 U.S. 209 (2005).
       49 Id. at 214.

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                                       No. 17-50325
and requires an overt act. 50 Because, like § 1956(h), § 1958(a) does not
expressly require an overt act, 51 the Government argues that it was
unnecessary for the jury to find an overt act to convict Gurrola.
       Though the Government’s argument is persuasive, we need not decide
how McCullough intersects with Whitfield because, even if the district court
erred in its instructions, that error was not plain for two independent reasons.
First, based on the discussion of Whitfield above, any error by the district court
was not clear or obvious. 52 Second, the district court’s instructions, viewed in
context, 53 essentially required the jury to find that an overt act was committed.
In order to find Gurrola guilty of counts four through seven, the district court
required the jury to find that Gurrola (1) knowingly conspired (2) with at least
one other person (3) with the intent to cause another person to travel in foreign
commerce, (4) with the intent that the victim be murdered in violation of the
laws of the United States, (5) with the intent that the murder be committed as
consideration for something of pecuniary value, and (6) that the death of the
victim resulted. That is, the jury had to find that the death of the victim resulted


       50  Id.
       51  Compare 18 U.S.C. § 1956(h) (“Any person who conspires to commit any offense
defined in this section or section 1957 shall be subject to the same penalties as those
prescribed for the offense the commission of which was the object of the conspiracy.”)
(emphasis added) with 18 U.S.C. § 1958(a) (“Whoever travels in or causes another (including
the intended victim) to travel in interstate or foreign commerce, or uses or causes another
(including the intended victim) to use the mail or any facility of interstate or foreign
commerce, with intent that a murder be committed in violation of the laws of any State or
the United States as consideration for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under
this title or imprisoned for not more than ten years, or both; and if personal injury results,
shall be fined under this title or imprisoned for not more than twenty years, or both; and if
death results, shall be punished by death or life imprisonment, or shall be fined not more
than $250,000, or both.”) (emphasis added).
        52 See United States v. DeLeon, 484 F. App’x 920 (5th Cir. 2012) (finding no plain error

where a district court failed to instruct a jury that in needed to find an overt act in order to
convict the defendant of conspiracy to harbor certain aliens).
        53 See Hamling v. United States, 418 U.S. 87, 107–08 (1974) (noting that jury

instructions “are to be judged as a whole”).
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                                        No. 17-50325
from Gurrola’s conspiratorial conduct. To find that the ultimate object of the
conspiracy—the murder—was achieved, the jury necessarily had to find that
one of the conspirators committed an overt act in furtherance of the murder.
In this context, the district court’s omission of an explicit overt act instruction
was not plain error.
              G. Cumulative error doctrine
       Gurrola’s final claim of trial error is that the trial was so tainted with
error that his convictions must be set aside. 54 After a careful review of the
record, we are left with the impression of a fair, well-conducted trial.
Therefore, we decline to invoke the cumulative error doctrine. 55
              H. The district court’s sentencing
       Next, Gurrola contends that the district court procedurally erred when
it failed to explain its decision to impose consecutive sentences in open court,
as mandated by 18 U.S.C. § 3553(c). Because there was no objection below, we
review for plain error only. 56
       Section 3553(c) directs “[t]he court, at the time of sentencing, [to] state
in open court the reasons for its imposition of the particular sentence.” 57 Here,
the court did not do so. Rather, it issued a written Statement of Reasons in
which it explained that consecutive sentences were justified because the crimes
involved extreme conduct, weapons, and death. The court further explained, in



       54  “[T]he cumulative error doctrine . . . provides that an aggregation of non-reversible
errors (i.e., plain error 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, 343–44 (5th Cir. 2012) (en banc) (quoting United States v. Munoz, 150 F.3d
401, 418 (5th Cir. 1998)).
        55 The cumulative error doctrine is applied “only in rare instances,” and “[i]ts

application is especially uncommon where, as here, the government presents substantial
evidence of guilt.” Id. at 344 (citing United States v. Neal, 27 F.3d 1035, 1051–1052 (5th Cir.
1994)).
        56 Davis, 19 F.3d at 169.
        57 18 U.S.C. § 3553(c).

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                                        No. 17-50325
detail, that Gurrola’s callous behavior and the gruesomeness of the murders
warranted consecutive sentences.
       This written, rather than oral, explanation does not strictly comply with
3553(c). Nevertheless, Gurrola must still show plain error. Gurrola cannot do
so, because he cannot show that the district court’s sentencing procedure
affected his “substantial rights.” 58
               I. The district court’s imposition of an amended judgment
                  that increased restitution

       Lastly, Gurrola challenges the substance of his sentence—specifically,
the final restitution order. Gurrola maintains that the district court committed
plain error by failing to finally determine the amount of restitution owed either
at or before the sentencing hearing, or within 90 days thereafter.
       It is settled law that “a sentencing court that misses the 90–day deadline
[in 18 U.S.C. § 3664(d)(5)] nonetheless retains the power to order restitution—
at least where, as here, the sentencing court made clear prior to the deadline’s
expiration that it would order restitution, leaving open (for more than 90 days)
only the amount.” 59 That is precisely what happened here.
       At the sentencing hearing on March 24, 2017, the Government argued
that the court should defer a final determination of the amount of restitution
owed because the victims’ families misunderstood their ability to seek
restitution and had difficulty completing the necessary paperwork. The court


       58  See United States v. Whitelaw, 580 F.3d 256, 263–64 (5th Cir. 2009) (finding that a
district court’s failure to explain in open court its reasons for imposing an above guidelines
sentence did not affect a defendant’s substantial rights because the district court’s reasons
were apparent from the record). Here, it is undisputed both that the district court had
discretion to order consecutive sentences based on Gurrola’s behavior and the circumstances
of the crimes and that the court offered justification for the consecutive sentences in its
Statement of Reasons. See 18 U.S.C. § 3553(a) (allowing a sentencing court to consider “the
nature and circumstances of the offense” and the “characteristics” of the defendant).
        59 See, e.g., Dolan v. Unites States, 560 U.S. 605, 611 (2010); United States v. Bell, 514

F. App’x 423 (5th Cir. 2013) (same).
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                                     No. 17-50325
then tentatively set the amount of restitution at $1,024,000 but noted that the
amount “is subject to change” based on any documents that the Government
“may file.” On June 7, 2017, the Government filed a “Motion Regarding
Restitution Issues” contending that the victims’ losses were not readily
ascertainable ten days prior to sentencing due to the families’ confusion and,
therefore, the court was permitted to determine the final amount of restitution
at a later date. On August 11, 2017, after considering the Government’s motion
and the fourth addendum to the pre-sentence report, the court increased the
amount of restitution to $1,550,247.15. 60
      Thus, the district court did not err by amending the final restitution
order more than 90 days after the sentencing hearing.
      III.   CONCLUSION
      For these reasons, we AFFIRM Gurrola’s conviction and sentence.




      60  The restitution award was increased to reflect lost earnings and funeral expenses
attributable to Roberto and Cinthia. Though the amended order was not entered until August
11, the Government notified both the court and Gurrola via letter on May 30, 2017—within
the 90–day period—that it was seeking to incorporate these expenses into the final
restitution order.
                                            23
