     Case: 09-50323     Document: 00511836403         Page: 1     Date Filed: 04/26/2012




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

                                                                            FILED
                                                                           April 26, 2012

                                       No. 09-50323                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

SAID FRANCISCO HERRERA, also known as Shorty; ARTURO ENRIQUEZ,
also known as Tury; MANUEL CARDOZA, also known as Tolon; CARLOS
PEREA, also known as Shotgun; EUGENE MONA, also known as Gino;
BENJAMIN ALVAREZ, also known as T-Top,

                                                  Defendants - Appellants.



                   Appeals from the United States District Court
                         for the Western District of Texas
                                    (08-CR-59)


Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Said Francisco Herrera, Arturo Enriquez, Manuel Cardoza, Carlos Perea,
Eugene Mona, and Benjamin Alvarez raise appeals relating to their respective
convictions under one or more of the following statutes: §§ 1962(c) and (d) of the
Racketeer Influenced and Corrupt Organizations Act (RICO) (prohibiting
racketeering activity), § 1951(a) of the Hobbs Act (prohibiting extortion), 18

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 09-50323      Document: 00511836403        Page: 2     Date Filed: 04/26/2012



                                     No. 09-50323

U.S.C. §1956(h) (prohibiting money laundering), and 21 U.S.C. §§ 841(a) and 846
(prohibiting drug trafficking). Except for Mona’s sentence, which we VACATE
and REMAND for re-sentencing, the judgment of the district court is
AFFIRMED.
                                            I.
       The six appellants were all associated, in varying degrees, with the Barrio
Azteca (BA) criminal enterprise.1 The BA is a prison gang that was founded in
1985 by inmates originally from El Paso, Texas, who were incarcerated in the
Texas Department of Corrections (TDC) prison system. At the time of the
appellants’ trial in 2008, the BA’s criminal operations and influence had grown
to encompass various TDC and federal Bureau of Prisons (BOP) facilities,
certain West Texas cities, and the city of Juarez, Mexico.
       The BA’s primary criminal activity involved the extortion of payments
(known as “cuotas”) from narcotics traffickers (known as “tiendas”) who sold
illegal drugs in BA territory. The BA ensured that the tiendas would pay the
requisite cuotas through the threat and, if necessary, use, of violence, including
murder. Once collected from the tiendas, cuotas would be converted into money
orders so that they could be funneled into the prison commissary accounts of
incarcerated BA leaders and senior members.
       In addition to collecting cuotas, the BA also acted as a facilitator and
enforcer of the illegal narcotics trade by: (1) serving as a source for tiendas to
obtain additional supplies of narcotics; (2) collecting delinquent payments owed
to tiendas; (3) restraining others from selling drugs in competition with the BA’s
cuota-paying tiendas; (4) engaging in sales of narcotics; (5) importing and
transporting drugs for the La Linea drug cartel, which operates in Juarez,



      1
        We review the evidence in the light most favorable to the verdict. United States v.
Salazar, 542 F.3d 139, 143 (5th Cir. 2008).

                                            2
   Case: 09-50323       Document: 00511836403   Page: 3   Date Filed: 04/26/2012



                                   No. 09-50323

Mexico; and (6) committing assaults and other violent crimes on behalf of the La
Linea cartel.
      The BA was organized in a hierarchical, paramilitary manner. The most
senior BA position was captain (“capo”), then lieutenant, sergeant, soldier
(“soldado”), and, finally, prospective member (“esquina”). The capos, most of
whom were incarcerated, ran the organization by directing orders, often through
direct communication or coded letters known as “whilas” or “estucas,” to
lieutenants and sergeants, who would then carry out the capos’ instructions or
delegate the tasks to more junior members.
          The appellants have all been convicted of illegal acts that occurred in
association with the BA criminal enterprise between 2003 and 2008.
Specifically, Manuel Cardoza, Benjamin Alvarez, and Carlos Perea, who were all
capos, each received multiple life sentences for violating 18 U.S.C. §§ 1956(h),
1962(c), and 1962(d), and 21 U.S.C. §§ 841(a) and 846. Eugene Mona, who was
a lieutenant, received a life sentence for violating 18 U.S.C. § 1962(d). Said
Francisco Herrera, who was a sergeant, received multiple life sentences for
violating 18 U.S.C. §§ 1951, 1962(c), and 1962(d), and 21 U.S.C. §§ 841(a) and
846. Arturo Enriquez, who was either a soldado or an esquina, received 180
months’ imprisonment for violating 18 U.S.C. § 1951.
                                        II.
      Collectively, the appellants raise fifteen issues on appeal.       Cardoza,
Alvarez, Mona, Herrera, and Enriquez challenge the sufficiency of the evidence
underlying their respective convictions. Cardoza, Mona, and Herrera contend
that the district court sentenced them to life imprisonment in violation of the
Supreme Court’s decision in Apprendi v. New Jersey.2 Cardoza and Alvarez
argue that the district court’s sentencing procedures ran afoul of the Supreme


      2
          530 U.S. 466 (2000).

                                         3
   Case: 09-50323        Document: 00511836403   Page: 4   Date Filed: 04/26/2012



                                    No. 09-50323

Court’s decision in United States v. Booker.3 Cardoza, Alvarez, and Perea
challenge the district court’s denial of their motion for a new trial based on the
allegedly extreme jury protection measures imposed by the district court.
Cardoza and Perea maintain that the district court erred in denying their motion
for a new trial based on the government’s alleged suppression of evidence in
contravention of Brady v. Maryland.4 Alvarez argues that the district court’s
admission of Government’s Exhibits 353 and 354 violated the Sixth
Amendment’s Confrontation Clause. Perea contends that the district court erred
in denying his motion for an evidentiary sentencing hearing. Herrera and
Enriquez appeal the district court’s alleged reliance on improper information
contained in the pre-sentence report. Enriquez maintains that the district court
erred in denying Enriquez’s motion to suppress and motion for severance.
Finally, Herrera claims that the district court erred in admitting various
unspecified exhibits into evidence because such exhibits lacked the proper
foundation.
                                         A.
      Cardoza, Alvarez, Mona, Herrera, and Enriquez appeal the sufficiency of
the evidence underlying their respective convictions. Where, as in this case, the
appellant moved for judgment of acquittal before the district court, we review
the sufficiency of the evidence to support a conviction by considering whether
any “rational jury could have found the essential elements of the offenses beyond
a reasonable doubt.” United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006).
This review is “highly deferential to the verdict.”             United States v.
Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (quoting United States v.
Harris, 293 F.3d 863, 869 (5th Cir. 2002)). “It is not necessary that the evidence


      3
          543 U.S. 220 (2005).
      4
          373 U.S. 83 (1963).

                                          4
   Case: 09-50323    Document: 00511836403      Page: 5   Date Filed: 04/26/2012



                                  No. 09-50323

exclude every rational hypothesis of innocence or be wholly inconsistent with
every conclusion except guilt, provided a reasonable trier of fact could find the
evidence establishes guilt beyond a reasonable doubt.” Valdez, 453 F.3d at 256
(quoting United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992)).
We, therefore, do not consider whether the jury’s verdict was correct, but instead
focus upon the verdict’s reasonableness. Moreno-Gonzalez, 662 F.3d at 372
(citing United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)). Finally, in
conducting this inquiry, we view the evidence and the inferences that may be
drawn from it in the light most favorable to the verdict, and resolve all conflicts
in the evidence in favor of the verdict. Id.
                                        1.
      Cardoza and Alvarez challenge the sufficiency of the evidence underlying
their convictions for violating 18 U.S.C. § 1956(h), which prohibits, among other
things, participation in a conspiracy to engage in money laundering in violation
of 18 U.S.C. § 1956(a). In order to prove a conspiracy under § 1956(a), the
government must show that the defendant knew of the money laundering
scheme, voluntarily joined it, and possessed the requisite intent to commit the
underlying § 1956(a) offense. United States v. Ismoila, 100 F.3d 380, 387 (5th
Cir. 1996). Cardoza and Alvarez argue that the evidence was insufficient to
show that they knew the money they admittedly received into their prison
commissary accounts constituted the proceeds of unlawful activity. We disagree.
      Through the testimony of multiple law enforcement and BA witnesses, the
government established Cardoza’s and Alvarez’s positions as two of the leaders
of a criminal enterprise designed to funnel extorted cuotas into the prison
commissary accounts of high ranking BA members. This system involved two
basic stages. First, the non-incarcerated BA members would extort weekly
cuotas from narcotics traffickers operating in the BA’s territory. Once collected,
they would then transfer the cuota funds to the prison commissary accounts of

                                        5
   Case: 09-50323      Document: 00511836403        Page: 6     Date Filed: 04/26/2012



                                     No. 09-50323

senior BA members, generally in the form of money orders. These money orders
would typically be sent under fictitious names and addresses in order to conceal
the senders’ identities and the illicit source of the funds.               The evidence
sufficiently demonstrated that Cardoza and Alvarez knowingly and voluntarily
participated in this cuota-funneling enterprise.
       In Cardoza’s case, the evidence showed that he directed the distribution
of cuota funds into the commissary accounts of other BA members and also
personally received cuota money into his own commissary account. Cardoza
transmitted directions regarding cuota deposits through heavily-coded messages,
which were introduced by the government at trial.                The government also
introduced conversations between Cardoza and Mona, who served as Cardoza’s
“bridge” to the outside world, wherein Cardoza ordered that a certain BA
member should no longer receive a share of the cuota collections due to the
member’s upcoming release from prison. Furthermore, a former BA member,
Gerardo Hernandez, testified that Cardoza ordered him, upon his release from
prison in 2003, to investigate the cause of a decrease in cuota transfers to
commissary accounts. Cardoza later wrote a letter ordering the BA to put David
Merez “on ice” because Merez was responsible for this cuota shortfall.
       Similarly, in Alvarez’s case, Gustavo Gallardo—a former BA member who
testified extensively about the structure of the BA and his involvement in
collecting cuotas—stated that he previously sent cuota money to Alvarez’s
commissary account. Gallardo’s transfer of the funds was not a random act of
benevolence; Gallardo specifically sent the money to Alvarez because Alvarez
was a BA capo.5 Another BA member, Roberto Duran, testified that Alvarez
once sent him a letter ordering that he send money to Alvarez, and that Duran


      5
        Gallardo also testified that he and his fellow BA members were concerned when
David Merez was failing to forward cuotas to the BA leadership in prison, demonstrating his
understanding that portions of the cuotas were to be sent to capos like Alvarez.

                                            6
   Case: 09-50323      Document: 00511836403         Page: 7     Date Filed: 04/26/2012



                                      No. 09-50323

eventually obtained the funds that he was ordered to send to Alvarez. Officer
Sanchez similarly testified about a letter, which was admitted into evidence,
that Alvarez sent to his “bridge” informing her how to properly send money
orders to prisoners.
       Given this evidence, we hold that a rational jury could have found beyond
a reasonable doubt that Cardoza and Alvarez knowingly and voluntarily engaged
in a conspiracy to funnel cuota payments, and also knowingly received cuota
funds into their commissary accounts.
                                             2.
       Cardoza, Alvarez, and Herrera challenge the sufficiency of the evidence
underlying their convictions of conspiracy to traffic in narcotics under 21 U.S.C.
§§ 841(a) and 846.6 To convict a defendant of conspiring to traffic in narcotics,
the “government must prove: 1) the existence of an agreement between two or
more persons to violate federal narcotics laws; 2) the defendant’s knowledge of
the agreement; and 3) the defendant’s voluntary participation in the agreement.”
United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996) (citing United States
v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991)). These elements “may be inferred
from the development and collocation of circumstances.” Id. (citations and
internal quotation marks omitted). However, a defendant’s “[m]ere presence at
the scene of the crime or close association with co-conspirators will not alone
support an inference of conspiracy but are factors that the jury may consider in
finding conspiratorial activity.” Id. (citing Gallo, 927 F.2d at 820).




       6
         Section 841(a)(1) states that “it shall be unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Section
846 states that “[a]ny person who attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846.

                                             7
   Case: 09-50323   Document: 00511836403     Page: 8   Date Filed: 04/26/2012



                                 No. 09-50323

      Cardoza and Alvarez argue that there was no evidence indicating that
they were aware of or participated in the BA’s drug trafficking activity. They
contend that the drug trafficking activities of other BA members were unilateral
endeavors by individual members, which lacked any connection to the BA
criminal enterprise. Cardoza supports this contention by pointing out that he
was incarcerated throughout the drug trafficking conspiracy. Cardoza and
Alvarez also point out that the record is devoid of evidence directly connecting
the incarcerated capos to the drug trafficking activities of free BA members.
      We nevertheless hold that a rational jury could have reasonably
inferred—based on the BA’s structure and objectives, and the evidence linking
the two appellants to the BA—that Cardoza and Alvarez were aware of and
encouraged the BA’s narcotics trafficking. For instance, the record indicates
that the free BA members who collected and sent the cuotas were generally not
permitted to keep any portion of the cuota collections for themselves. Instead,
all of the cuotas were generally funneled to the incarcerated BA leadership. This
raises the question of how the free rank-and-file BA members (as well as some
free members of the BA leadership) earned any money. The evidence indicated
that they did so, at least in part, through narcotics trafficking. Furthermore,
there was evidence showing that, unlike tiendas, BA members who sold drugs
were not required to pay any cuotas to the BA leadership. BA members could
keep the proceeds of their drug sales for themselves. Given the existence of this
cuota exemption, which incentivized free BA’s to deal in narcotics, and the
practical need for free BA members to earn money, it could be inferred that
Cardoza and Alvarez had knowledge of, encouraged, and thus participated in,
a narcotics trafficking conspiracy that was essential to the survival of the BA’s
overall cuota laundering scheme.
      Moreover, the evidence indicated that BA members would supply tiendas
with drugs if they lacked a sufficient supply. Thus, the BA would support the

                                       8
   Case: 09-50323        Document: 00511836403          Page: 9     Date Filed: 04/26/2012



                                        No. 09-50323

businesses of drug dealers, who would then regularly pay cuotas to the BA,
which would then be funneled to Cardoza, Alvarez, and other BA leaders. Given
this arrangement, the jury could have reasonably inferred that Cardoza and
Alvarez, who benefitted from BA drug sales to tiendas, participated in a
conspiracy to traffic narcotics.
      With regard to Herrera, his brief indicates that he challenges the
sufficiency of the evidence underlying all of his convictions; however, the brief
fails to actually discuss Herrera’s conviction pursuant §§ 841(a)(1) and 846. We
therefore hold that, to the extent Herrera intended to appeal this conviction, his
claim is waived as inadequately briefed. See Fed. R. App. P. 28(a)(9)(A); United
States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001) (“Generally speaking, a
defendant waives an issue if he fails to adequately brief it.”).
      Nonetheless, because it bears upon Herrera’s substantive RICO conviction,
discussed infra, we briefly note our conclusion that the evidence sufficiently
supported Herrera’s conviction under §§ 841(a)(1) and 846. The jury heard
testimony from at least two BA members who discussed Herrera’s drug
trafficking activities. For instance, Jose Martin Garcia testified that Herrera
owned his own tienda, known as Jaguars, where BA members would sell
cocaine.7 BA member Josue Aguirre, who referred to Herrera as his “right hand
man,” similarly testified that he used to accompany Herrera while Herrera sold
drugs at various bars, including Jaguars.                Thus, the evidence sufficently
demonstrated that Herrera engaged in narcotics trafficking in association with
the BA.
      We hold that the evidence was sufficient for a rational jury to conclude
beyond a reasonable doubt that Cardoza, Alvarez, and Herrera conspired to
traffic in narcotics in violation of 21 U.S.C. §§ 841(a) and 846.


      7
          Garcia also testified that he assisted Herrera in collecting cuotas.

                                                9
  Case: 09-50323        Document: 00511836403          Page: 10     Date Filed: 04/26/2012



                                        No. 09-50323

                                               3.
       Herrera and Enriquez challenge the sufficiency of the evidence supporting
their convictions of conspiracy to commit extortion under the Hobbs Act, 18
U.S.C. § 1951(a).8 To prove a violation of the Hobbs Act, the government must
prove beyond a reasonable doubt: (1) that a defendant induced, or attempted or
conspired to induce, a person to part with property; (2) while acting knowingly
and willfully by means of extortion; and (3) that the extortionate transaction
delayed, interrupted, or adversely affected interstate commerce. United States
v. Mann, 493 F.3d 484, 494 (5th Cir. 2007); United States v. Snyder, 930 F.2d
1090, 1093 (5th Cir. 1991). To establish a conspiracy under the Hobbs Act, the
government must prove “an agreement between two or more persons to commit
a crime, and an overt act by one of the conspirators to further the conspiracy.”
United States v. Box, 50 F.3d 345, 349 (5th Cir. 1995) (quoting United States v.
Stephens, 964 F.2d 424, 427 (5th Cir. 1992)). However, “[p]roof of a conspiracy
does not require direct evidence of an actual agreement between the co-
conspirators, but may be inferred from circumstantial evidence.” United States
v. Wright, 797 F.2d 245, 253 (5th Cir. 1986) (citing United States v. Reed, 715
F.2d 870, 874 (5th Cir. 1983)).
       The government presented evidence indicating that Herrera was a BA
member who would assist the BA with opening tiendas and collecting cuotas.
Herrera eventually obtained the rank of BA sergeant and was placed in charge
of cuota collections for the east side of El Paso. The jury also heard evidence


       8
          Section 1951(a) provides: “Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce, by robbery or extortion
or attempts or conspires so to do, or commits or threatens physical violence to any person or
property in furtherance of a plan or purpose to do anything in violation of this section shall be
fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a).
Section 1951(b)(2) defines extortion as the “obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color
of official right.” 18 U.S.C. § 1951(b)(2).

                                               10
  Case: 09-50323    Document: 00511836403      Page: 11   Date Filed: 04/26/2012



                                  No. 09-50323

that Herrera was involved in multiple assaults, including at least one assault on
a drug dealer who had not been paying cuotas.
      With regard to Enriquez, the evidence showed that he admitted to El Paso
detectives that he collected cuotas for the BA. BA member Eric Saucedo also
testified about an instance where Enriquez accompanied Saucedo and another
BA member, Serio Munoz, on a visit to threaten a drug dealer named Jose Luis
Oviedo for failing to pay cuotas. Enriquez acted as a “look-out” on this visit,
which ended when Munoz shot and killed Oviedo. Detective Yvette Nevarez also
testified that Enriquez, while being interviewed for a second time by police,
stated that he went to Oviedo’s home to collect cuotas.
      Based on the foregoing evidence, the jury could have determined that
Herrera and Enriquez were knowing and willful conspirators in an enterprise
designed to extort cuotas from drug traffickers in contravention of the Hobbs
Act. The only remaining question, therefore, is whether the BA’s extortion of
cuotas affected interstate commerce.
      Our caselaw provides that illegal activity need only “slightly” affect
interstate commerce to fall under the purview of the Hobbs Act, and that this
inquiry is made on a “case-by-case basis.” Box, 50 F.3d at 351. Similarly, in
Mann, we stated that our prior decision in “Box demonstrates that a generalized
connection between the alleged criminal activity and interstate commerce is
sufficient to sustain a conviction of conspiracy to violate the Hobbs Act.” Mann,
493 F.3d at 495. Furthermore, with regard to Hobbs Act cases involving drug
trafficking, we have held that “interfering with or facilitating narcotics
trafficking [is] sufficient to create an effect on interstate commerce, since drugs
are traded on an interstate market.” United States v. Villafranca, 260 F.3d 374,
378 (5th Cir. 2001) (citing Box, 50 F.3d at 353).
      In this case, the evidence indicated that Herrera and Enriquez interfered
with the drug trade by participating in the BA’s conspiracy to extort cuotas from

                                        11
  Case: 09-50323       Document: 00511836403          Page: 12     Date Filed: 04/26/2012



                                       No. 09-50323

drug traffickers through the threat and, if necessary, use, of violence. Given this
activity—which also involved coordination between free BA members and
prisoners incarcerated in different states, and between individuals on both sides
of the United States–Mexico border—a rational jury could have found that the
BA’s extortion conspiracy affected interstate commerce.
       We hold that the evidence was sufficient for a rational jury to conclude
beyond a reasonable doubt that Herrera and Enriquez engaged in a conspiracy
to commit extortion in violation of the Hobbs Act.
                                              4.
       Cardoza, Alvarez, and Herrera appeal the sufficiency of the evidence
underlying their convictions for violating 18 U.S.C. § 1962(c), which prohibits
engaging in the affairs of an enterprise through a “pattern of racketeering
activity.”9 To establish a § 1962(c) violation, the “government must prove (1) the
existence of an enterprise that affects interstate or foreign commerce, (2) that
the defendant was employed by or associated with the enterprise, (3) that the
defendant participated in the conduct of the enterprise’s affairs, and (4) that the
participation was through a pattern of racketeering activity.” United States v.
Delgado, 401 F.3d 290, 297 (5th Cir. 2005) (citations and internal quotation
marks omitted). Cardoza, Alvarez, and Herrera only dispute the last two
elements of their respective § 1962(c) convictions, arguing that the evidence was
insufficient to demonstrate that: (1) they “participated” in the BA; and (2) their
alleged participation was through a “pattern of racketeering activity.”
       In order to satisfy § 1962(c)’s third element, the “defendant must have
participated in the operation or management of the enterprise itself.” Id. (citing



       9
          Section 1962(c) states that “[i]t shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of which affect, interstate or
foreign commerce, directly or indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity or the collection of unlawful debt.” 18 U.S.C. § 1962(c).

                                              12
  Case: 09-50323     Document: 00511836403      Page: 13   Date Filed: 04/26/2012



                                  No. 09-50323

Reves v. Ernst & Young, 507 U.S. 170, 185 (1993)). However, “[a]n enterprise is
‘operated’ not just by upper management but also by lower rung participants in
the enterprise who are under the direction of upper management.” Id. (quoting
Reves, 507 U.S. at 184)). We can easily conclude that the government presented
ample evidence, some of which is discussed supra, that Cardoza and Alvarez, as
BA capos, and Herrera, as a BA sergeant under the direction of the upper
management (i.e., the capos), participated in the BA, thus satisfying § 1962(c)’s
third element.
      With regard to § 1962(c)’s fourth element, RICO defines a “pattern of
racketeering activity” as requiring “at least two [predicate] acts of racketeering
activity.” 18 U.S.C. § 1961(5). Section 1961(1) sets forth numerous criminal
statutes that can constitute predicate acts of “racketeering activity,” including
18 U.S.C. §§ 1951 and 1956. It also provides that racketeering activity includes
the “buying, selling, or otherwise dealing in a controlled substance or listed
chemical (as defined in section 102 of the Controlled Substances Act), punishable
under any law of the United States.” 18 U.S.C. § 1961(1)(D). Thus, racketeering
activity includes conduct proscribed by 21 U.S.C. §§ 841(a)(1) and 846. This
court has also explained that in order to “show the existence of a pattern of
racketeering activity, the government must establish (1) that the racketeering
acts are related and (2) that they amount to or pose a threat of continued
criminal activity.” Delgado, 401 F.3d at 298 (citing H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229, 239 (1989)).
      Section 1962(c)’s fourth element was sufficiently established in all three
appellants’ cases.    At trial, Cardoza and Alvarez were both convicted of
conspiring to launder cuotas to prison commissary accounts in violation of 18
U.S.C. § 1956(h). Cardoza, Alvarez, and Herrera were all convicted of conspiring
with the BA to traffic narcotics in violation of §§ 841(a)(1) and 846. And Herrera
was convicted of conspiring to commit extortion in contravention of the Hobbs

                                        13
  Case: 09-50323       Document: 00511836403         Page: 14     Date Filed: 04/26/2012



                                      No. 09-50323

Act, 18 U.S.C. § 1951. Thus, all three appellants committed two predicate
racketeering acts. All of these predicate racketeering acts were also related as
they were committed in furtherance of the BA’s business. See id. (providing that
RICO’s “related acts” prong is satisfied when the acts were committed in
furtherance of the criminal enterprise’s business).
       Furthermore, the government sufficiently demonstrated that the
appellants’ racketeering acts posed a threat of continued criminal activity. In
Delgado, we held that a criminal enterprise’s regular collection of “the dime”
from drug dealers “evidenced a ‘specific threat of repetition extending
indefinitely into the future.’”10 Id. (quoting Nw. Bell, 492 U.S. at 242). Similar
to “the dime” in Delgado, the BA regularly collected cuotas from drug dealers
operating in the BA’s territory and, absent RICO prosecution, would likely have
continued to do so into the future. Thus, based on Delgado, the continuity
requirement is met in this case.
       We hold that the evidence was sufficient for a rational jury to conclude
beyond a reasonable doubt that Cardoza, Alvarez, and Herrera engaged in the
affairs of an enterprise through a pattern of racketeering activity in violation of
§ 1962(c) of RICO.
                                             5.
       Cardoza, Alvarez, Herrera, and Mona appeal the sufficiency of the
evidence underlying their convictions for violating 18 U.S.C. § 1962(d), which
prohibits, among other things, conspiring to engage in the affairs of an
enterprise through a pattern of racketeering activity.11


       10
           As stated in Delgado, “[i]n exchange for membership, TMM members send 10% of
their illegal proceeds (‘the dime’) to TMM headquarters. Members must also collect ‘the dime’
from non-member drug dealers and remit that money to TMM headquarters.” Delgado, 401
F.3d at 293.
       11
          Section 1962(d) states that “[i]t shall be unlawful for any person to conspire to
violate any of the provisions of subsection (a), (b), or (c).” 18 U.S.C. § 1962(d).

                                             14
  Case: 09-50323    Document: 00511836403       Page: 15   Date Filed: 04/26/2012



                                  No. 09-50323

      “To prove a RICO conspiracy, the government must establish (1) that two
or more people agreed to commit a substantive RICO offense and (2) that the
defendant knew of and agreed to the overall objective of the RICO offense.” Id.
at 296 (quoting United States v. Posada-Rios, 158 F.3d 832, 857–58 (5th Cir.
1998)). The government may establish these elements with circumstantial
evidence. Id. Critically, unlike a § 1962(c) conviction, which requires a showing
of two predicate acts constituting a “pattern of racketeering activity,” a § 1962(d)
conspirator “need not have committed or agreed to commit the two predicate
acts.” Id. (citing Salinas v. United States, 522 U.S. 52, 61–66 (1997)). Instead,
the conspirator “need only have known of and agreed to the overall objective of
the RICO offense.” Id.
      Based on our discussion in the preceding subsections, we hold that there
was sufficient evidence for a rational jury to determine beyond a reasonable
doubt that Cardoza, Alvarez, and Herrera knowingly agreed to engage in the
BA’s criminal enterprise in violation of § 1962(d) of RICO. Therefore, we must
only discuss Mona’s remaining claim.
      Mona’s challenge is unique because, unlike the other three appellants, he
did not commit any predicate RICO offenses. Mona was only convicted of
conspiring to engage in a pattern of racketeering activity. Nevertheless, Delgado
makes clear that a co-conspirator need not commit a predicate RICO act to
violate § 1962(d): he “need only have known of and agreed to the overall objective
of the RICO offense.” Id. We hold that the evidence sufficiently indicated that
Mona knew of and agreed to further the overall objectives of the BA enterprise.
      For instance, the evidence established that Mona was a BA lieutenant who
served as the “bridge” (i.e. the communication link) between capo Cardoza and
other BA members. Mona would communicate with Cardoza through heavily-
coded letters, telephone calls, and prison visits, and then Mona would either
forward the communications onward or personally direct Cardoza’s orders to

                                        15
  Case: 09-50323        Document: 00511836403   Page: 16   Date Filed: 04/26/2012



                                    No. 09-50323

other BA members. Also, on behalf of capo David Merez, Mona delivered
messages, provided transportation to other BA members, and served as a
conduit for transferring cuota money. This evidence sufficiently demonstrated
that Mona knowingly and intentionally assisted in the perpetuation of the BA’s
extortion and money laundering scheme.             Accordingly, the evidence was
sufficient to enable a rational jury to conclude beyond a reasonable doubt that
Mona knew of and agreed to further the objectives of the BA.
                                         B.
      Cardoza, Mona, and Herrera challenge their sentences to life
imprisonment under 18 U.S.C. § 1962(d) because the sentences allegedly
exceeded the statutory maximum authorized by the jury’s verdict in violation of
the Supreme Court’s decision in Apprendi v. New Jersey.12           Based on the
Supreme Court’s decision in United States v. Cotton,13 we hold that Cardoza’s
and Herrera’s claims lack merit. Conversely, as the government does not
dispute that Mona’s sentence contravenes Apprendi, we vacate Mona’s sentence
and remand Mona’s case for re-sentencing.
      When, as here, the appellant failed to raise an objection to his sentence at
the district court level, we apply a plain error standard of review, “which
requires considerable deference to the district court.” United States v. Peltier,
505 F.3d 389, 391 (5th Cir. 2007). Under the plain error standard, the appellant
must demonstrate: “(1) there was error, (2) that was plain, (3) the error affects
substantial rights, and (4) the error seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. Blocker, 612 F.3d
413, 415–16 (5th Cir. 2010) (per curiam).




      12
           530 U.S. 466 (2000).
      13
           535 U.S. 625 (2002).

                                         16
  Case: 09-50323       Document: 00511836403         Page: 17     Date Filed: 04/26/2012



                                       No. 09-50323

        In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. This paradigm shifts, however,
when a sentence is reviewed on appeal for plain error. Cotton, 535 U.S. at
627–33. In such instances, even if the court failed to instruct the jury to make
specific findings justifying an increase in the maximum sentence imposed upon
a defendant, the sentence will nevertheless be upheld where the evidence
justifying the increased sentence was “overwhelming” and “essentially
uncontroverted.” Id. at 633.
        The Cotton decision is dispositive of Cardoza’s and Herrera’s claims in this
case.        In Cotton, the operative indictment charged the defendants with
conspiring to distribute and to possess with intent to distribute a “detectable
amount” of cocaine; however, the indictment did not allege any threshold
quantities of drugs to enable enhanced penalties under 21 U.S.C. § 841(b).14 Id.
at 628. The jury found the defendants guilty of the alleged conspiracy but did
not make any findings regarding the specific amounts of cocaine that the
defendants conspired to possess and distribute. Id. Nevertheless, at sentencing,
the district court increased the statutory maximums of the defendants’ sentences
by finding that their respective offenses involved specific quantities of cocaine,
ranging from 500 grams to 1.5 kilograms of cocaine base. Id.
        Relying on Apprendi, the defendants appealed the district court’s decision
because “the issue of drug quantity was neither alleged in the indictment nor
submitted to the petit jury.” Id. at 628–29. The Fourth Circuit vacated the


        14
          The initial indictment charged the defendants with conspiring to distribute and to
possess with intent to distribute five kilograms or more of cocaine and fifty grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Cotton, 535 U.S. at 627. A
superseding indictment then charged the defendants with only conspiring to distribute and
to possess with intent to distribute a “detectable amount” of cocaine. Id. at 627–28.

                                             17
  Case: 09-50323    Document: 00511836403       Page: 18   Date Filed: 04/26/2012



                                  No. 09-50323

defendants’ convictions and the government appealed to the Supreme Court. Id.
at 629.
      Reviewing the district court’s sentence for plain error, the Supreme Court
essentially held that, despite the district court’s Apprendi violation, the
defendants’ convictions should not have been vacated by the Fourth Circuit. Id.
at 632–34. The Court explained that the sentence enhancements survived plain
error review because they were based on “overwhelming” and “essentially
uncontroverted” evidence adduced at trial regarding the amount of cocaine
involved in the conspiracy. Id. at 633.
      In this case, the jury found Cardoza and Herrera guilty of violating 18
U.S.C. § 1962(d), which carries a maximum prison sentence of “not more than
20 years (or for life if the violation is based on a racketeering activity for which
the maximum penalty includes life imprisonment) . . . .” 18 U.S.C. § 1963(a).
Without obtaining specific sentence enhancement findings from the jury, the
district court increased Cardoza’s and Herrera’s sentences for violating § 1962(d)
from 20 years to life. Such an enhancement would have been permissible if it
had been based on Cardoza’s and Herrera’s predicate RICO offenses of
conspiring to traffic in narcotics in violation 21 U.S.C. §§ 841(a)(1) and 846,
which carries a life sentence when sufficient amounts are involved. However,
Cardoza correctly notes that such an enhancement would not have been
permissible if the jury had based his § 1962(d) conviction entirely on his
predicate RICO offense of conspiracy to commit money laundering under 18
U.S.C. § 1956(h). Cardoza and Herrera contend that the district court plainly
erred when it imposed life sentences without receiving specific findings from the
jury regarding the underlying basis for their increased sentences.
      We conclude that the appellants’ theories are without merit because the
jury did return the requisite special findings on Cardoza’s and Herrera’s
§ 1962(c) RICO convictions. The jury specifically found beyond a reasonable

                                        18
  Case: 09-50323        Document: 00511836403   Page: 19   Date Filed: 04/26/2012



                                    No. 09-50323

doubt that Cardoza and Herrera both conspired to possess with intent to
distribute either one kilogram or more of heroin or five kilograms or more of
cocaine. This finding, which established one of the predicate acts for their
§ 1962(c) convictions, also provides “overwhelming” and “essentially
uncontroverted” support for the district court’s life sentence under § 1962(d). See
21 U.S.C. § 841(b) (providing a maximum sentence of life for trafficking in one
kilogram or more of heroin or five kilograms or more of cocaine); see also United
States v. Warneke, 310 F.3d 542, 549 (7th Cir. 2002) (“The maximum penalty
following a RICO conviction depends on the maximum penalty for the most
serious predicate offense.”). The district court simply used the jury’s specific
findings on the § 1962(c) count as the basis for enhancing the convictions for
violating § 1962(d). Thus, we hold that, in light of Cotton, the district court did
not plainly error when sentencing Cardoza and Herrera to life imprisonment for
violating § 1962(d).
      On the other hand, the foregoing discussion does not support affirmance
of Mona’s sentence, as Mona was only convicted for his role in the RICO
conspiracy and not for any predicate RICO offenses. The government also does
not dispute that remand for re-sentencing is appropriate in Mona’s case.
Accordingly, we vacate Mona’s sentence and remand Mona’s case for re-
sentencing.
                                        C.
      Cardoza and Alvarez claim that the district court erred procedurally when
it allegedly sentenced them without considering the factors set forth in 18 U.S.C.
§ 3553, thus contravening the Supreme Court’s decision in United States v.
Booker.15 Where, as here, the appellant did not object to the district court’s
alleged failure to consider the § 3553 factors, we review the district court’s


      15
           543 U.S. 220 (2005).

                                         19
  Case: 09-50323       Document: 00511836403          Page: 20      Date Filed: 04/26/2012



                                       No. 09-50323

decision for plain error. United States v. Mondragon-Santiago, 564 F.3d 357,
364 (5th Cir. 2009).
       Although the district court stated that the appellants were sentenced for
their roles in the BA criminal enterprise, the district court did not explicitly
address the § 3553 factors when sentencing the appellants.16 On two occasions,
the court stated that “if I didn’t have the guidelines, as really they’re advisory
only, the sentence would still be life on the proper counts.” The district court
also stated that it was imposing the sentences based on its acceptance of the
information in the pre-sentence report.             The district court then sentenced
Cardoza and Alvarez to life imprisonment, which fell within the appropriate
Guidelines range.
       Assuming arguendo, that the district court erred in failing to explicitly
address the § 3553 factors, we conclude that there was no plain error. In order
to prove plain error, the appellants must show that the error “affected the
outcome in the district court: To meet this standard the proponent of the error
must demonstrate a probability sufficient to undermine confidence in the
outcome.” Id. (citations and internal quotation marks omitted). Here, the
appellants merely highlight the court’s failure to explicitly address the § 3553
factors and they offer nothing to indicate that a discussion of the factors would
have affected their within-Guidelines sentences.                    See also id. at 365
(“Mondragon-Santiago’s sentence is within the Guidelines, and he fails to show
that an explanation would have changed his sentence.”). Accordingly, we




       16
          With regard to Perea, for instance, the district court stated that “if you’re the head
or participate in an organization that regularly threatens violence, regularly deals in drugs,
regularly launders money, regularly commits murder, then it’s foreseeable that any one of
these acts that takes place with that organization is accountable to them.” The court implied
that this conclusion supported Cardoza’s and Alvarez’s sentences, as, like Perea, both Cardoza
and Alvarez held leadership positions in the BA.

                                              20
  Case: 09-50323    Document: 00511836403       Page: 21   Date Filed: 04/26/2012



                                  No. 09-50323

conclude that the district court did not plainly err when sentencing Cardoza and
Alvarez.
                                        D.
      Cardoza, Alvarez, and Perea contend that the district court erroneously
denied their motions for a new trial because the court’s juror anonymity and
other security measures created an atmosphere of guilt that prevented them
from receiving a fair trial. This contention is meritless as the district court did
not abuse its discretion in implementing the security measures.
      We review a district court’s decision to empanel an anonymous jury and
implementation of security measures for abuse of discretion. United States v.
Edwards, 303 F.3d 606, 615 (5th Cir. 2002); United States v. Nicholson, 846 F.2d
277, 279 (5th Cir. 1988). “[A] district court does not abuse its discretion to
empanel an anonymous jury if the ‘evidence at trial supports the conclusion that
anonymity was warranted.’” United States v. Sanchez, 74 F.3d 562, 564 (5th Cir.
1996) (quoting United States v. Krout, 66 F.2d 1420, 1427 (5th Cir. 1995)).
      We condone the use of anonymous juries only “when needed to ensure
against a serious threat to juror safety, if the courts also protect the defendants’
interest in conducting effective voir dire and maintaining the presumption of
innocence.” Sanchez, 74 F.3d at 564 (internal quotation marks omitted). The
following factors may justify a district court’s decision to empanel an anonymous
jury: (1) the defendants’ involvement in organized crime; (2) the defendants’
participation in a group with the capacity to harm jurors; (3) the defendants’
past attempts to interfere with the judicial process or witnesses; (4) the potential
that, if convicted, the defendants will suffer a lengthy incarceration and
substantial monetary penalties; and (5) extensive publicity that could enhance
the possibility that jurors’ names would become public and expose them to
intimidation and harassment. Krout, 66 F.3d at 1427.



                                        21
  Case: 09-50323      Document: 00511836403         Page: 22     Date Filed: 04/26/2012



                                      No. 09-50323

       On October 8, 2008, the district court issued a sua sponte order directing
that the selected jury remain anonymous and that the U.S. Marshals Service
provide secure off-site parking and transportation to-and-from the courthouse
for the jury members. The court explained that it was implementing these
measures “[b]ecause of the nature of the case, as well as the probability of
greater than usual media attention, the Court [had] concern for the safety and
privacy of the jurors before, during, and after the conduct of the trial, as well as
for their continued objectivity.”
       There was significant evidence presented at trial that justified the court’s
decision to implement the anonymity and security measures. In fact, all of the
above factors, save factor 3, clearly support the court’s action. See also United
States v. Perea, 625 F. Supp. 2d 327, 337–38 (W.D. Tex. 2009) (district court’s
post-trial memorandum opinion further explaining its reasoning for
implementing the safety precautions, including its concern for media attention).
Furthermore, although the appellants’ attorneys did not know the names and
addresses of the jurors, the attorneys were nevertheless able to conduct effective
voir dire as they had access to a sufficient amount of information concerning
each of the prospective jurors and were also given the opportunity to question
the venire.17 Likewise, during its voir dire, the district court carefully queried
the venire to ensure that no prospective jurors would be influenced by the
anonymity and security measures.
       We hold that the district court did not abuse its discretion in implementing
the juror anonymity and safety measures.




       17
         The venire questionnaire contained general biographical information, including age,
ethnic background, marital status, city of residence, length of residence, home ownership,
English proficiency, family make-up, criminal history, occupation, and other useful
information.

                                            22
  Case: 09-50323         Document: 00511836403          Page: 23     Date Filed: 04/26/2012



                                        No. 09-50323

                                               E.
       Cardoza and Perea challenge the district court’s denial of their motions for
a new trial based upon the government’s alleged suppression of evidence in
violation of the Supreme Court’s decision in Brady v. Maryland.18 Specifically,
Cardoza and Perea argue that certain pieces of information contained in the pre-
sentence report were withheld during discovery.                     We disagree with the
appellants because there is nothing in the record indicating that the government
suppressed any evidence.19
       In Brady, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or punishment.” Brady, 373 U.S. at 87. A
defendant seeking a new trial based on a Brady violation must prove that:
“(1) evidence was suppressed; (2) the suppressed evidence was favorable to the
defense; and (3) the suppressed evidence was material to either guilt or
punishment.” United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002).
       The district court determined that Cardoza and Perea failed to provide any
evidence indicating that the government suppressed evidence. See Perea, 625
F. Supp. 2d at 330–31 (“Undoubtedly, the Government at no time suppressed the
evidence—the 302 reports—that formed the basis of the [pre-sentence report].”).
Upon our review of the record and the district court’s detailed opinion, we agree
with the district court that the information contained in the pre-sentence report



       18
            373 U.S. 83 (1963).
       19
          “While the standard of review for a motion for a new trial is typically abuse of
discretion, if the reason for the motion is an alleged Brady violation then we review the district
court’s determination de novo.” United States v. Martin, 431 F.3d 846, 850 (5th Cir. 2005).
However, “[w]e have cautioned that, as we review Brady claims ‘at an inherent disadvantage’
because of the cold record, we must accord due deference to the trial court’s ruling on the
alleged Brady error.” United States v. Miller, 520 F.3d 504, 514 (5th Cir. 2008) (citing United
States v. Sipe, 388 F.3d 471, 479 (5th Cir. 2004)).

                                               23
  Case: 09-50323         Document: 00511836403         Page: 24    Date Filed: 04/26/2012



                                        No. 09-50323

was previously disclosed to the appellants. Accordingly, we hold that Cardoza’s
and Perea’s contentions under Brady are without merit.
                                             F.
       Alvarez appeals the district court’s admission of his prison bank records
(Exhibit 353) and a summary of those records (Exhibit 354) on the theory that
the admission of those documents violated his right to confront witnesses under
the Sixth Amendment’s Confrontation Clause.20 Specifically, Alvarez objects to
the court’s admission of Exhibit 353 without first allowing him the opportunity
to cross-examine the custodian of Alvarez’s prison records. Alvarez objects to
Exhibit 354 because it summarized the allegedly inadmissible information found
in Exhibit 353. We hold that Alvarez’s claim under the Confrontation Clause is
without merit.21
       The Sixth Amendment guarantees a criminal defendant the right “to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. In
Crawford, the Supreme Court held that the Confrontation Clause is violated
when the prosecution introduces “testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 53–54 (2007). However, the Court also stated that some statements are
non-testimonial and, therefore, fall outside of the Confrontation Clause’s
protection. Id. at 56. These statements include “business records or statements
in furtherance of a conspiracy.” Id. After Crawford, we held that records kept
in the ordinary course of business are non-testimonial; whereas “those that are
specifically produced for use at trial . . . are ‘testimonial’ and are at the heart of


       20
            Alvarez does not otherwise challenge the admissibility of Exhibits 353 and 354.
       21
         We review an alleged violation of a defendant’s rights under the Confrontation Clause
de novo, subject to harmless error analysis. United States v. Morgan, 505 F.3d 332, 338 (5th
Cir. 2007).

                                               24
  Case: 09-50323    Document: 00511836403     Page: 25    Date Filed: 04/26/2012



                                  No. 09-50323

statements triggering the Confrontation Clause.” United States v. Martinez-
Rios, 595 F.3d 581, 586 (5th Cir. 2010) (per curiam).
      Alvarez’s bank records were kept in the ordinary course of business; they
were not specifically prepared for use at trial. Thus, under Crawford and
Martinez-Rios, the bank records were non-testimonial business records that fell
outside of the purview of the Confrontation Clause.
      Exhibit 354, on the other hand, was prepared specifically for trial by
Special Agent Mikeska for the purpose of simplifying the information found in
Exhibit 353. There is no Confrontation Clause issue regarding Exhibit 354,
however, because: (1) it contained only a summary of admissible information
found in Exhibit 353; and (2) Special Agent Mikeska testified extensively at trial
and Alvarez had ample opportunity to address the exhibit on cross-examination.
      Accordingly, we hold that the district court did not err in admitting
Exhibits 353 and 354.
                                       G.
      Perea argues that the district court abused its discretion in denying his
motion for an evidentiary hearing during the trial’s sentencing phase. Perea
argues that the 97-page pre-sentence report “attempted to hold Perea
accountable for the collection of $960,000.00 in cuota (taxes), a large volume of
illicit drugs, and the murders of eight individuals.” According to Perea, a
hearing was necessary “so that the government could establish a nexus between
the alleged crimes and Perea before he could be held accountable for such.”
      We review the denial of an evidentiary hearing for abuse of discretion.
United States v. Henderson, 19 F.3d 917, 927 (5th Cir. 1994). We have held that
a defendant is not automatically entitled to a sentencing hearing that amounts
to a “mini-trial, complete with exhibits, expert witnesses, character witnesses,
and an opportunity to cross examine the government’s witnesses.” Id.; see also
United States v. Maurer, 226 F.3d 150, 151 (2d Cir. 2000) (per curiam) (“The

                                       25
  Case: 09-50323       Document: 00511836403          Page: 26      Date Filed: 04/26/2012



                                       No. 09-50323

district court is not required, by either the Due Process Clause or the federal
Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving
sentencing disputes . . . .”). A “sentencing court must be given deference to
determine whether a hearing is needed on particular sentencing issues.”
Henderson, 19 F.3d at 927. However, “[w]hen a hearing is necessary to protect
a convicted defendant’s due process rights, then the failure to hold a hearing”
constitutes an abuse of discretion. Id.
        We conclude that the district court did not abuse its discretion in
declining to hold an evidentiary hearing because Perea has failed to show the
utility of conducting such a hearing. Perea did not present any evidence to the
district court to rebut the information contained in the pre-sentence report,22 and
he concedes before us that “the trial court had more than sufficient evidence,
based upon the 4000 pages of testimony,” to adequately rule without any
additional evidence from Perea. This concession undermines Perea’s claim as
it demonstrates that a full blown evidentiary hearing would have been a
pointless exercise in this case.
       Accordingly, the district court did not abuse its discretion in denying
Perea’s motion for an evidentiary sentencing hearing.
                                              H.
       Herrera and Enriquez argue that the district court sentenced them while
relying on improper information contained in the pre-sentence report. We
disagree.



       22
          During the joint sentencing hearing for the six appellants, the court indicated its
awareness of the contents of the pre-sentence report and its familiarity with the defendants’
objections to that report. It also entertained, but overruled, most of Perea’s objections to the
report, finding that Perea, as a proven capo, should be held accountable for all the foreseeable
acts that occurred while he was leading the BA’s criminal conspiracy. However, the district
court did sustain Perea’s objection to the pre-sentence report’s statement that Perea was “the
most feared member of the BA” and had the statement removed from the report.

                                              26
  Case: 09-50323    Document: 00511836403      Page: 27   Date Filed: 04/26/2012



                                  No. 09-50323

      In making factual findings for sentencing purposes, the district court may
consider any evidence “which bears sufficient indicia of reliability to support its
probable accuracy, including hearsay evidence.” United States v. Solis, 299 F.3d
420, 455 (5th Cir. 2002) (citation and internal quotation marks omitted). We
consider whether the district court’s findings were clearly erroneous, remaining
mindful that such findings “are not clearly erroneous if they are plausible in
light of the record reviewed in its entirety.” Id. Furthermore, a district court
may adopt the facts in a pre-sentence report “without further inquiry if those
facts have an adequate evidentiary basis with sufficient indicia of reliability and
the defendant does not present rebuttal evidence or otherwise demonstrate that
the information” contained in the report is unreliable. Valdez, 453 F.3d at 262
(quoting United States v. Cabrera, 288 F.3d 163, 173–74 (5th Cir. 2002)).
      In this case, there is no indication that the information contained in the
pre-sentence report was implausible in light of the record reviewed in its
entirety. The appellants simply posit that the report’s findings are incorrect but
fail to point to the existence of any evidence in rebuttal to cast doubt upon the
reliability of the pre-sentence report. Accordingly, we conclude that this issue
is without merit.
                                        I.
      Enriquez contends that the district court erred in denying his motion to
suppress statements made to the El Paso Police Department when he was
brought to the department for questioning in the year preceding his indictment.
Enriquez argues that his statements to police were non-consensual and
involuntarily obtained.
      When reviewing the denial of a motion to suppress, the district court’s
findings of fact are reviewed for clear error, viewing the evidence in the light
most favorable to the government, and its conclusions of law are reviewed de
novo. United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006). A finding of

                                        27
  Case: 09-50323        Document: 00511836403          Page: 28     Date Filed: 04/26/2012



                                        No. 09-50323

fact “is clearly erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. Sch. Bd. of Madison
Cnty., 517 F.3d 292, 296 (5th Cir. 2008) (citation and internal quotation marks
omitted).
       On September 30, 2008, the district court issued a detailed opinion
regarding Enriquez’s motion to suppress. See United States v. Enriquez, 2008
WL 4600557 (W.D. Tex. Sept. 30, 2008). Upon thorough review of the district
court’s underlying factual and legal analysis, we conclude that the court’s
findings of fact are not clearly erroneous and that the court applied the correct
legal standards. Accordingly, for the reasons articulated by the district court,
we affirm the denial of Enriquez’s motion to suppress. See id. at *3–4.
                                               J.
       Enriquez argues that the district court abused its discretion in denying his
Rule 14 motion for severance.23 We disagree.24
       “As a general rule, persons indicted together should be tried together,
particularly when the offense is conspiracy.” United States v. Simmons, 374
F.3d 313, 317 (5th Cir. 2004) (per curiam) (citing United States v. Pofahl, 990
F.2d 1456, 1483 (5th Cir. 1993)). “In ruling on a motion to sever, a trial court
must balance potential prejudice to the defendant against the ‘public interest in
joint trials where the case against each defendant arises from the same general
transaction.’” Id. (quoting Kane, 887 F.2d at 571). “To demonstrate reversible


       23
          Rule 14 provides: “If the joinder of offenses or defendants in an indictment, an
information, or a consolidation for trial appears to prejudice a defendant or the government,
the court may order separate trials of counts, sever the defendants’ trials, or provide any other
relief that justice requires.” Fed. R. Crim. P. 14(a).
       24
         “A district court’s ruling on a motion to sever will not be disturbed absent a showing
that the district court abused its discretion.” United States v. Kane, 887 F.2d 568, 571 (5th
Cir. 1989).

                                               28
  Case: 09-50323    Document: 00511836403        Page: 29      Date Filed: 04/26/2012



                                    No. 09-50323

error, even where initial joinder was improper, a defendant must show ‘clear,
specific and compelling prejudice that resulted in an unfair trial.’” Id. (quoting
United States v. Posada Rios, 158 F.3d 832, 863 (5th Cir. 1998)). “This prejudice
must be of a type ‘against which the trial court was unable to afford protection.’”
Id. (quoting United States v. Mann, 161 F.3d 840, 863 (5th Cir. 1998)).
      We conclude that Enriquez has not demonstrated that clear, specific, and
compelling prejudice resulted at trial from the district court’s denial of his
severance motion. Nor could he do so as the outcome of the trial indicates that
he was not unfairly prejudiced by the crimes of the other BA members. The
district court, for example, granted Enriquez’s motion for judgment of acquittal
on the charge of narcotics trafficking in violation of 21 U.S.C. §§ 841(a)(1) and
846. Likewise, the jury acquitted Enriquez on the charge of murder in aid of
racketeering in violation of 18 U.S.C. § 1959(a)(1). Enriquez was only convicted
of the crime that he actually confessed to participating in: conspiring to extort
cuota payments. There is no indication that granting the motion for severance
would have improved Enriquez’s chances of obtaining a judgment of acquittal on
that count. Accordingly, we hold that the district court did not abuse its
discretion in denying Enriquez’s motion for severance. See Kane, 887 F.3d at
571 (“In order to prevail on appeal, the appellant must show more than that a
separate trial offered a better chance of acquittal.”) (emphasis added).
                                           K.
      Herrera    contends    that    the    district   court   erred    in   admitting
unauthenticated handwritten BA letters and transcripts of recorded BA
conversations. Herrera provides virtually no support for his argument. He
instead relies on broad, generalized statements to make his point. For instance,
Herrera alleges that “the numerous and voluminous evidence introduced by the
Government in this case was improperly admitted based on improper foundation
and over objection.” We conclude that Herrera has failed to adequately brief this

                                           29
  Case: 09-50323    Document: 00511836403     Page: 30    Date Filed: 04/26/2012



                                  No. 09-50323

issue and it is, therefore, waived. See Fed. R. App. P. 28(a)(9)(A); Martinez, 263
F.3d at 438.
                                       III.
      For the foregoing reasons, save for Mona’s sentence, which we VACATE
and REMAND for re-sentencing, the judgment of the district court is
AFFIRMED.




                                       30
