     Case: 18-50682      Document: 00515409837         Page: 1    Date Filed: 05/08/2020




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

                                                                                FILED
                                      No. 18-50682                           May 8, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JESSE SANTIBANEZ, also known as “Jay”, also known as Jesse Santibanos,
also known as Jay Santibanez; ALFREDO CARDONA, also known as “Freddy
Low”, also known as Alf Cardona, also known as Val A. Rendon, also known as
Alfred Cardona, III, also known as Fred Cardona, also known as Alfred
Cardona, also known as Fred Cardona, III,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:15-CR-387-3
                            USDC No. 5:15-CR-387-2


Before JONES, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jesse Santibanez and Alfredo Cardona were convicted by a jury of
murder in aid of racketeering and using and discharging a firearm during and
in relation to a crime of violence, specifically violent crimes in aid of



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-50682

racketeering. The district court sentenced them to life imprisonment on each
count, to be served concurrently, and five years of supervised release on each
count, to be served concurrently. They timely appealed.
      First, Cardona argues that the district court erred in allowing the
testimony of Raymond Tellez, a former member of the Texas Mexican Mafia,
that Tellez had been involved in an arson and four murders as a TMM member.
This court reviews the district court’s decision to admit or exclude evidence for
abuse of discretion. United States v. Yanez Sosa, 513 F.3d 194, 199 (5th Cir.
2008).
      The district court allowed the Government to introduce Tellez’s
testimony to prove that the TMM was an enterprise engaged in racketeering
activities and to corroborate the testimony of a Federal Bureau of Investigation
special agent concerning the TMM’s organization and activities. See United
States v. Jones, 873 F.3d 482, 492 (5th Cir. 2017). In closing argument, the
Government reasserted that the purpose of Tellez’s testimony was to show that
the TMM was an enterprise engaged in racketeering activities.           In cases
involving enterprises engaged in racketeering activities, the Government may
introduce the testimony of former gang members to prove that the gang was
an enterprise engaged in racketeering activities. See, e.g., United States v.
Velasquez, 881 F.3d 314, 329–30 (5th Cir. 2018); Jones, 873 F.3d at 490–91.
      Even if the admission of the testimony had been error, Cardona would
have failed to show that allowing this testimony substantially prejudiced his
rights. See United States v. Valas, 822 F.3d 228, 240 (5th Cir. 2016). Tellez
did not testify that Cardona was involved in any of Tellez’s criminal activities.
Moreover, the Government introduced overwhelming evidence that Cardona
committed the murder of the victim in order to advance his position in the
TMM and that he used a firearm during this offense, including the testimony



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of FBI agents, current and former TMM members, and Cardona’s ex-girlfriend;
historical cell site location data; gang rosters; video footage of the victim’s
murder; and gunshot residue evidence. In view of this overwhelming evidence,
Cardona has not shown that the admission of Tellez’s testimony substantially
prejudiced his rights. See id., 822 F.3d at 240. The district court did not abuse
its discretion in allowing Tellez’s testimony concerning his own offenses
committed while he was a TMM member. See Velasquez, 881 F.3d at 336.
      Cardona next contends that the district court erred in denying his motion
for a mistrial based on an FBI agent’s testimony that Cardona’s ex-girlfriend
received threatening text messages from the then-incarcerated Cardona that
were sent from a smuggled cell phone. The testimony was elicited during cross-
examination by Santibanez’s counsel.        Cardona’s counsel did not object
immediately, but counsel did object at a subsequent bench conference; the
district court overruled the objection because it was late.
      Cardona has not shown error under either the plain error or abuse of
discretion standard. See id., 881 F.3d at 343.   The testimony at issue was
elicited by Santibanez’s counsel, and not the Government. The testimony was
relevant to Cardona’s consciousness of guilt. See United States v. Rocha, 916
F.2d 219, 241 (5th Cir. 1990). In view of the overwhelming evidence against
him, Cardona has not demonstrated that after a review of the entire record,
there is a significant possibility that this testimony concerning the threatening
text messages had a “substantial impact on the jury’s verdict.” United States
v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). Therefore, Cardona has not shown
that the district court’s denial of his motion for a mistrial was error. See
Velasquez, 881 F.3d at 343; Valles, 484 F.3d at 756.
      In addition, Cardona contends that the district court erred in allowing
his ex-girlfriend to testify that Cardona assaulted her by holding a gun to her



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face and that he was a convicted felon on parole. The witness’s statements
were unsolicited. After her statement that Cardona had held a gun to her face,
the district court immediately told the Government to move on, and the
Government did so. After the other statements, Cardona’s counsel objected,
and the district court overruled Cardona’s objection and declined to grant a
mistrial but instructed the jury to disregard these statements. Any prejudice
caused by the statements that Cardona was a convicted felon on parole were
rendered harmless by the court’s curative instructions because the jury is
presumed to follow the court’s instructions. See United States v. Richardson,
781 F.3d 237, 246 (5th Cir. 2015).
      The gun-in-the-face remark was a single reference in a six-day trial;
neither party returned to the statement. See Velasquez, 881 F.3d at 344. The
reference was an inadvertent comment by a witness and the government
immediately moved on. In view of the overwhelming evidence against him,
Cardona has not shown that there is a significant possibility that any of the
statements had a substantial impact upon the jury’s verdict. See Valles, 484
F.3d at 756.
      Finally, Cardona asserts that the district court erred in allowing the
Government to present evidence that when he was arrested a few weeks after
the murder, he was in possession of drugs. The evidence was relevant to show
that Cardona participated in the TMM’s drug trafficking, one of the
racketeering activities of the TMM enterprise alleged in the second
superseding indictment. Evidence arising out of the same TMM enterprise as
the charged offense was not extrinsic evidence under Federal Rule of Evidence
404(b). See United States v. Guerrero, 768 F.3d 351, 365 (5th Cir. 2014); United
States v. Krout, 66 F.3d 1420, 1425 (5th Cir. 1995). Further, in view of the
overwhelming evidence against him, Cardona has not shown that the



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admission of this evidence substantially prejudiced his rights. See Valas, 822
F.3d at 240. Therefore, Cardona has not shown that the district court abused
its discretion in allowing the admission of this evidence. See id.
       Santibanez argues that the district court violated his rights under the
Confrontation Clause and abused its discretion in limiting his cross-
examination of Cardona’s ex-girlfriend concerning her public comment on
Facebook made about six months before the trial, stating that she intended to
“come down here and kick a--.” 1             Santibanez’s counsel thoroughly cross-
examined her concerning payments she received from the Government for her
cooperation and the lack of criminal charges against her despite her
involvement in drug trafficking and helping Cardona and Santibanez after the
murder. On cross-examination, she also admitted that her relationship with
Cardona had ended and that she had called in a police tip before the murder
and had contacted the media afterward.
       Santibanez’s counsel sought to introduce the Facebook post to show that
the witness was excited to “come down here [i.e. the courthouse] and kick a--.”
Yet that Facebook post was made six months before the trial. The post about
an unrelated matter could not provide the jury with any “information to
appraise the bias and motives of the witness.” United States v. Tansley, 986
F.2d 880, 886 (5th Cir. 1993). The court’s limitation of cross-examination,
which was based on the Federal Rules of Evidence, did not abridge
Santibanez’s right to present a defense. See United States v. Lockhart, 844
F.3d 501, 510 (5th Cir. 2016); United States v. Hitt, 473 F.3d 146, 156 (5th Cir.

       1Santibanez also states that he adopts the legal arguments of Cardona to the extent
that they may be reasonably extended to his case. Rule 28(i) of the Federal Rules of Appellate
Procedure allows, in a case involving more than one appellant or appellee, an appellant to
adopt by reference a part of another’s brief. FED. R. APP. P. 28(j). However, “an appellant
may not adopt by reference fact-specific challenges to his conviction.” United States v.
Morgan, 117 F.3d 849, 853 (5th Cir. 1997). In any event, as shown above, Cardona’s
arguments are without merit.


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2006). Further, Santibanez has not shown that a reasonable juror would have
received a significantly different impression of the witness’s credibility if he
had been allowed to cross-examine her concerning the Facebook post. See
United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). Therefore, the
district court did not violate Cardona’s rights under the Confrontation Clause
or abuse its discretion by limiting his cross-examination of this witness. See
Lockhart, 844 F.3d at 510; Hitt, 473 F.3d at 156.
      AFFIRMED.




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