     Case: 10-50742     Document: 00511698229         Page: 1     Date Filed: 12/16/2011




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

                                                                            FILED
                                                                        December 16, 2011

                                       No. 10-50742                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,


                                                  Plaintiff - Appellee

v.

JOSE DOLORES AHEDO, also known as Alberto Jose Martinez, also known as
Jose A. Martinez, also known as Joe Martinez, also known as Bam Bam
Martinez, also known as Jose Martinez, also known as Bam Bam; JACINTO
NAVAJAR, also known as Cache; MIKE GARCIA,


                                                  Defendants - Appellants



                   Appeals from the United States District Court
                        for the Western District of Texas
                                No. 5:08-cr-00047


Before JONES, Chief Judge, and DAVIS and DeMOSS, Circuit Judges.
PER CURIAM:*
        Defendant-Appellants Jose Ahedo, Jacinto Navajar, and Mike Garcia
(collectively “Appellants”) were indicted with one count of conspiracy to commit
racketeering in violation of the Racketeer Influenced and Corrupt Organizations

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Act (RICO), 18 U.S.C. § 1962. Following trial, a jury convicted Appellants. Each
Appellant alleges various trial errors on appeal. For the foregoing reasons, we
affirm the convictions.
                                        I.
      Appellants are alleged members of the Texas Mexican Mafia (TMM), a
highly-structured criminal organization that derives its profits primarily from
drug trafficking and extortion. The TMM “taxes” independent drug dealers based
on the dealer’s volume of sales and uses intimidation to obtain payment. If a
dealer refuses to pay, the TMM may resort to killing the dealer. The TMM also
distributes illegal narcotics. Ahedo, Navajar, and Garcia were indicted and found
guilty of racketeering acts including murder, solicitation of murder, attempted
murder, extortion, and conspiracy to distribute narcotics.
                                        II.
      Following conviction by a jury, Appellants appeal four alleged trial errors:
1) dismissal of a juror after trial had begun; 2) improper admission of extrinsic
evidence; 3) admission of evidence obtained during allegedly illegal vehicle
searches; and 4) bolstering of witness credibility by a government witness. We
address each in turn.
                                        A.
      Navajar asserts that the district court erred in dismissing a juror six days
after trial began. During trial, a juror expressed “concern or fear” about
continuing to serve on the jury because he works near locations where the TMM
allegedly operates. Receiving no objections from the parties, the district court
dismissed the juror and replaced him with an alternate.
      Because Navajar did not raise this objection before the district court, we
review only for plain error. See United States v. Bilecki, 876 F.2d 1128, 1130 (5th
Cir. 1989). To establish plain error, Navajar must show an error that was clear
and obvious, which affected his substantial rights. See United States v. Olano,

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507 U.S. 725, 732 (1993). If these conditions are met, we may exercise our
discretion to correct the error “but only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005) (quotations and citations omitted).
         We find no error in the district court’s exercise of its discretion to remove
a juror. A district court may exercise its discretion to remove a juror “whenever
the judge becomes convinced that the juror’s abilities to perform his duties
become impaired.” United States v. Virgen-Moreno, 265 F.3d 276, 288 (5th Cir.
2001) (quoting United States v. Leahy, 82 F.3d 624, 628 (5th Cir. 1996)) (marks
omitted). The decision to remove a juror will be disturbed only if it prejudiced
the defendant, and the court will find prejudice only “if the juror was discharged
without factual support or for a legally irrelevant reason.” Id. (quoting Leahy, 82
F.3d at 628). The district court engaged in an exchange with the juror to
determine whether he was able to perform his duties and concluded that he was
not. Navajar’s conclusory assertion that “the disruption of [jury] selection . . . has
a substantial effect on the outcome of the case” is insufficient to establish plain
error.
                                           B.
         Garcia asserts on appeal that the district court erred in admitting evidence
of the murder of Eduardo “Floppy” Guajardo in violation of Federal Rules of
Evidence Rules 404(b) and 403. Garcia argues that the evidence should have
been excluded by the district court under Federal Rule of Evidence 404(b)
because it was extrinsic evidence that was unfairly prejudicial to him. The
murder of Guajardo was not listed in the indictment and Garcia argues that the
murder was unconnected to the TMM. The district court denied Garcia’s pre-trial
motion in limine seeking to suppress the evidence, finding that in a RICO
prosecution, the government may present evidence of unindicted conduct to



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establish the existence of a RICO enterprise and to prove Garcia’s participation
in the enterprise.
      Although Garcia did not object to the admission of the evidence at trial, his
pre-trial motion to suppress the evidence was sufficient to preserve the error for
appellate review. See Mathis v. Exxon Corp., 302 F.3d 448, 459 (5th Cir. 2002).
“We review a district court’s evidentiary rulings for abuse of discretion,” subject
to a harmless error analysis. United States v. Cantu, 167 F.3d 198, 203 (5th Cir.
1999). “[F]or any of the evidentiary rulings to be reversible error, the admission
of the evidence in question must have substantially prejudiced [the defendant’s]
rights.” United States v. Sanders, 343 F.3d 511, 519 (5th Cir. 2003).
      The government is not limited to offering only evidence of overt or
racketeering acts as alleged in the indictment. See United States v. Krout, 66
F.3d 1420, 1425 (5th Cir. 1995). “[E]vidence of an uncharged offense arising out
of the same transactions as the offense charged in the indictment is not extrinsic
evidence within the meaning of Rule 404(b).” Id. (quoting United States v. Maceo,
947 F.2d 1191, 1199 (5th Cir. 1991)). The government may offer evidence of
unindicted acts to prove that members of a criminal enterprise engaged in the
acts to further the objectives of the conspiracy. Id.
      The evidence of Garcia’s participation in Guajardo’s murder was not
extrinsic to the charged conduct because Guajardo, a drug dealer, was murdered
for the failure to pay a debt, conduct specifically described as the TMM’s
methodology as charged in the indictment. The government presented evidence
at trial that Guajardo’s murder connected Garcia’s participation in the indicted
racketeering behavior. See United States v. Garcia Abrego, 141 F.3d 142, 175
(5th Cir. 1998). The evidence was not “[e]vidence of other crimes, wrongs, or
other acts,” see FED R. EVID. 404(b), but evidence of Garcia’s participation in the
charged conspiracy. As such, the district court did not err in admitting this
evidence.

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      Moreover, even assuming the evidence was extrinsic and subject to the
Rule 403 analysis, we need not decide whether the district court abused its
discretion in admitting the evidence because its admission did not substantially
prejudice Garcia’s rights. Evidence of twenty-six murders and attempted
murders by members of the TMM was introduced at trial; the admission of
evidence of one additional murder at trial was harmless.
                                         C.
      Ahedo and Navajar argue that the district court erred in admitting
evidence seized during their separate arrests. Ahedo, whose vehicle was
searched in 2003, and Navajar, whose vehicle was searched in 2008, assert that
the searches were impermissible pursuant to Arizona v. Gant, 129 S. Ct. 1710
(2009). In Gant, the Court held that police may “search a vehicle incident to a
recent occupant’s arrest only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the search.” 129
S. Ct. at 1719. A search is also permissible if “it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.” Id. (quotations
omitted).
      Ahedo and Navajar argued for suppression of the seized evidence for the
first time during trial. Generally, failure to raise the issue in a pre-trial motion
to suppress forfeits the issue on appeal. See United States v. Marx, 635 F.2d 436,
441 (5th Cir. Unit B Jan. 1981); see also FED. R. CRIM. P. 12(b)(3)(C). However,
because the district court heard argument on the suppression of the evidence
during trial, we will consider the merits of the district court’s ruling. Id. When
reviewing a ruling on a motion to suppress, we view the evidence in the light
most favorable to the prevailing party, reviewing factual findings for clear error
and legal conclusions de novo. United States v. Oliver, 630 F.3d 397, 405 (5th Cir.
2011).



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      Ahedo was stopped in his vehicle on August 8, 2003, for failing to use a
turn signal. He was arrested pursuant to an outstanding warrant. After Ahedo
was arrested, his car was searched and authorities found a drug ledger and cash.
Navajar was stopped in his vehicle on January 15, 2008, pursuant to a traffic
stop. He was arrested on an outstanding warrant for a parole violation. At some
point during the stop, Navajar’s car was searched. Several envelopes containing
cash were found, which were marked to a corresponding location of a drug tax
collection by the TMM. The record is unclear as to whether Navajar was secured
at the time of the search.
      Even assuming that the searches of Ahedo’s and Navajar’s vehicles were
impermissible pursuant to Gant, this court has held that the good faith exception
applies. “The good-faith exception to the exclusionary rule provides that evidence
obtained from an unconstitutional search need not be suppressed when the
offending officers acted in the objectively reasonable belief that their conduct did
not violate the Fourth Amendment.” United States v. Curtis, 635 F.3d 704, 713
(5th Cir. 2011) (finding that the good faith exception did not require suppression
of evidence seized following Gant) (quotations omitted); see also United States v.
Jackson, 825 F.2d 853, 866 (5th Cir. 1987) (en banc) (holding that the good faith
exception applies to a search that was legal at the time it was conducted but was
rendered illegal by intervening change in the law). “Where [p]anels of this court
have upheld searches of a particular type and that type of search is later held
unconstitutional, excluding the evidence will not further the ends of the
exclusionary rule in any appreciable way.” Curtis, 635 F.3d at 714 (quotations
omitted) (alteration in original).
      The vehicle searches at issue occurred between one and six years,
respectively, before Gant was decided. At the time of the searches, the governing
case law was “widely understood to allow a vehicle search incident to the arrest
of a recent occupant even if there [was] no possibility the arrestee could gain

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access to the vehicle at the time of the search.” Gant, 129 S. Ct. at 1718 (citing
New York v. Belton, 453 U.S. 454 (1981)). Thus, the officers’ belief that the
searches were authorized was objectively reasonable and the district court did
not err in admitting the challenged evidence.
      Finally, regardless of any error, Ahedo and Navajar have failed to
establish that admission of the seized evidence was not harmless. See United
States v. Garcia-Ruiz, 546 F.3d 716, 718 (5th Cir. 2008). “In the context of
suppression of evidence, the test for harmless error is whether the trier of fact
would have found the defendant guilty beyond a reasonable doubt if the evidence
had been suppressed.” United States v. Willingham, 310 F.3d 367, 372 (5th Cir.
2002) (quotations omitted). Evidence presented at trial established that Ahedo
and Navajar were high-ranking members of the TMM, and that they
participated directly in the indicted activities of the TMM, including drug
trafficking and murder. In light of the overwhelming evidence of Ahedo’s and
Navajar’s guilt, any error in admitting the seized evidence was harmless.
                                         D.
      Appellants argue that the government used FBI Special Agent Michael
Carlisle to bolster the credibility of its informant witnesses expected to testify at
trial. “When bolstering testimony suggests to the jury that it may shift to a
witness the responsibility for determining the truth of the evidence, its
admission may constitute reversible error.” United States v. Price, 722 F.2d 88,
90 (5th Cir. 1983).
      Because Garcia objected at trial to the alleged error, we review his
challenge for abuse of discretion. United States v. Clark, 577 F.3d 273, 287 (5th
Cir. 2009). Navajar and Ahedo did not make a contemporaneous objection and
now assert that Garcia’s objection was sufficient to avoid plain error review. See
United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir. 1993) (reviewing for
abuse of discretion when the appellant’s co-defendant objected at trial); United

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States v. Love, 472 F.2d 490, 497 (5th Cir. 1973) (holding that the failure of one
co-defendant’s counsel to object was “excused because such a motion or objection
would have been a useless formality” when the other co-defendant’s counsel had
objected); but see United States v. Estrada-Fernandez, 150 F.3d 491, 495 (5th Cir.
1998) (applying plain error review when defendant failed to join a co-defendant’s
objections); United States v. Harris, 104 F.3d 1465, 1471 (5th Cir. 1997) (finding
that the objections of one defendant to jury instructions did not preserve the
appellate rights of other defendants).
      We need not decide whether Garcia’s objection was sufficient to preserve
error on behalf of his co-defendants because there was no reversible error under
either standard. Special Agent Carlisle, the first witness called by the
government, testified about the methodology of his investigation of the TMM,
including the agency’s use of informants. In response to questioning about the
credibility of the informants, Carlisle described the screening process for
informants, including the importance of an informant’s credibility, and stated
that an informant is no longer used once deemed not credible. In context, the
exchange about informant credibility was part of a discussion of the method of
investigation, not the credibility of a specific informant witness. Special Agent
Carlisle did not vouch for the truthfulness of any particular witness, and as such
admitting his testimony was not reversible error. See, e.g., United States v.
Burns, 526 F.3d 852 (5th Cir. 2008) (finding that when the government witness
referred to the truthfulness of a specific witness by name there may have been
improper bolstering of the witness).
                                         III.
      For the foregoing reasons, we find no reversible error. Appellants’
convictions are AFFIRMED.




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