     Case: 11-40039     Document: 00511778997         Page: 1     Date Filed: 03/06/2012




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

                                                                            FILED
                                                                           March 6, 2012

                                       No. 11-40039                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

JUAN PABLO HINOJOSA, also known as Gordo; RAUL GALINDO, also
known as Lucky; JOSE ARMANDO GARCIA, JR., also known as Mando, also
known as Mandio,

                                                  Defendants–Appellants



                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:07-CR-231-7


Before KING, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendants–Appellants Juan Pablo Hinojosa, Jose Armando Garcia, Jr.,
and Raul Galindo were charged with various racketeering and witness
tampering offenses in connection with three murders committed on behalf of the
Texas Syndicate, a gang in which all three are members. Defendants were
convicted on their respective counts after a jury trial and now appeal their


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40039   Document: 00511778997      Page: 2   Date Filed: 03/06/2012



                                  No. 11-40039

convictions on speedy trial, sufficiency of the evidence, confrontation, and jury
instruction grounds. We AFFIRM their convictions.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Defendants–Appellants Juan Pablo Hinojosa (“Hinojosa”), Jose Armando
Garcia, Jr. (“Garcia”), and Raul Galindo (“Galindo”) (collectively, “Defendants”)
appeal their convictions on a range of offenses following a jury trial. Defendants
were alleged to be members of the Texas Syndicate, a prison gang that has
operated both in and outside of Texas correctional facilities since at least 1989.
      On March 27, 2007, the United States brought a four count indictment
against nine alleged members of the Texas Syndicate, including Hinojosa and
Garcia.   The indictment alleged that the Texas Syndicate was a criminal
organization that engaged in widespread criminal activity, including drug
trafficking and murders, constituting a pattern of racketeering activity.
Hinojosa and Garcia were each, along with six codefendants, charged with one
count of conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d). Hinojosa’s charge came in
connection with the murder of Miguel Elizondo, a Texas Syndicate member
targeted for killing by the gang, and the attempted murder of Marisa Elizondo,
Elizondo’s wife. Garcia was charged in connection with the murder of Crisantos
Moran, a Texas Syndicate member who failed to carry out an assigned murder.
      On June 4, 2008, the Government filed a superseding indictment adding
six additional counts and naming four new defendants, including Galindo.
Hinojosa and Garcia were, in addition to their RICO conspiracy charges, each
charged with one count of violating the Violent Crimes in Aid of Racketeering
Activity Act (“VICAR”), 18 U.S.C. § 1959(a)(1) (based on murder). Hinojosa was
also charged with a second VICAR count under 18 U.S.C. § 1959(a)(5) (based on
attempted murder). Galindo was charged with a VICAR count, 18 U.S.C. §
1959(a)(5), as well as one count of witness tampering, 18 U.S.C. § 1512(a)(1)(A),

                                        2
   Case: 11-40039   Document: 00511778997      Page: 3   Date Filed: 03/06/2012



                                  No. 11-40039

in connection with the murder of Marcelino Rodriguez, a confidential informant
who was killed on July 8, 2007, shortly after the return of the original
indictment. A second superseding indictment followed on November 6, 2008,
changing Galindo’s VICAR count from § 1959(a)(5) (attempted murder) to
§ 1959(a)(1) (murder). Defendants were convicted by the jury on all counts. We
analyze the appeals grouped by Defendant below.
A. Hinojosa’s Appeal
      Hinojosa appeals his convictions for conspiring to violate RICO, 18 U.S.C.
§ 1962(d), and for violating VICAR, 18 U.S.C. §§ 1959(a)(1) and (a)(5). He
contests his convictions on speedy trial, sufficiency-of-the-evidence, and
confrontation grounds.
      1. Facts
      Hinojosa’s convictions were based on the murder of Miguel Elizondo and
the attempted murder of Marisa Elizondo. The Government’s case against
Hinojosa was built on the testimony of several witnesses. The Government
called Javier Solis (“Solis”), a former Texas Syndicate member, who testified that
the Dallas branch of the Texas Syndicate had met and voted to order the murder
of Miguel Elizondo (“Elizondo”), a Texas Syndicate member, who mishandled a
drug deal. Solis explained that the Dallas branch asked the Rio Grande Valley
branch to carry out the killing because of police pressure on the Dallas branch.
      Juan Vasquez (“Vasquez”), the head of the Rio Grande Valley chapter,
testified that after receipt of the request from the Dallas branch, the Rio Grande
Texas Syndicate also voted to kill Elizondo. He recalled that after the vote,
Hinojosa, who was in attendance at the meeting, volunteered to carry out the
murder. Vasquez testified that the Rio Grande Valley branch then invited
Elizondo to move down to the Valley in order to facilitate the murder. On the
day of the murder, May 19, 2003, Hinojosa requested and received a gun from



                                        3
   Case: 11-40039   Document: 00511778997      Page: 4   Date Filed: 03/06/2012



                                 No. 11-40039

Vasquez. Vasquez also testified that later that day, Hinojosa told him that he
and his accomplice, codefendant Benjamin Piedra (“Piedra”), had killed Elizondo.
      Piedra and Ms. Elizondo provided further details on the murder itself.
Piedra testified that Hinojosa took him along to kill Elizondo, the plan being to
have Piedra distract Ms. Elizondo by asking her to take him to the restroom so
that Hinojosa could carry out the murder. Hinojosa and Piedra drove to the
Elizondos’ house in a blue Jetta. Piedra testified that shortly after he and
Hinojosa arrived at the Elizondos’ residence, Hinojosa and Elizondo began to
converse on the porch just outside of the open front door. After a few minutes,
Piedra entered into the residence with Ms. Elizondo and then heard two
gunshots coming from the front of the house. Piedra testified that Ms. Elizondo
attempted to flee through the back door of the house, but could not open it and
fell. Piedra then tried to fire his weapon, but it jammed. Piedra turned and told
Hinojosa that the gun was not working and at that moment saw Elizondo lying
on the floor. By that point, Ms. Elizondo had fled the residence, and so Hinojosa
and Piedra drove around in the blue Jetta seeking her out to no avail. Ms.
Elizondo largely confirmed this series of events.
      2. Motion to Dismiss Claim
      Hinojosa first appeals the district court’s denial of his motion to dismiss,
which was based on the Sixth Amendment right to a speedy trial and Fifth
Amendment due process grounds. On or around May 24, 2003, a few days after
Elizondo’s murder, Hinojosa left the United States and went to Mexico. The
State of Texas issued a warrant for Hinojosa’s arrest on April 5, 2004. Hinojosa
returned from Mexico sometime in December 2005, but went to Alabama,
knowing that there had been a warrant issued in Texas for his arrest. He was
arrested by state authorities in Alabama on May 4, 2006, and extradited to
Texas to face state charges.



                                        4
   Case: 11-40039      Document: 00511778997         Page: 5     Date Filed: 03/06/2012



                                      No. 11-40039

       Hinojosa was indicted on the federal charges at issue in this case on March
27, 2007. Following his indictment, Hinojosa agreed to continuances until
August 28, 2008.        However, on December 17, 2008, Hinojosa opposed a
codefendant’s motion for a continuance. Hinojosa subsequently opposed all other
motions for continuances. On March 20, 2009, Hinojosa filed a motion to dismiss
the charges against him on speedy trial grounds. Hinojosa later filed a
supplemental motion to dismiss, again on speedy trial grounds, urging the court
to carry out a due process inquiry. On July 24, 2009, the district court held a
hearing regarding Hinojosa’s motion to dismiss. The court found that Hinojosa
was not prejudiced by any delay and denied his motion to dismiss. Hinojosa now
appeals this denial.
       In challenging the district court’s decision, Hinojosa argues that the delay
between the filing of charges and the trial harmed him in several ways. First,
Hinojosa argues that because of the delay, witnesses who could have assisted
him with his defense have either died, gone missing, or have become estranged
from him and refuse to testify. Second, Hinojosa alleges that physical evidence,
such as bullet holes at the murder scene, may have been lost due to the delay.1
       We review Sixth Amendment speedy trial claims and Fifth Amendment
due process claims de novo for legal conclusions, while we review underlying
factual findings for clear error. United States v. Bishop, 629 F.3d 462, 465–66
(5th Cir. 2010). “Under the clear error standard, we defer to the findings of the
district court unless we are left with a definite and firm conviction that a
mistake has been committed.” United States v. Avants, 367 F.3d 433, 441 (5th
Cir. 2004) (citation and internal quotation marks omitted)).



       1
         Hinojosa also argues that he was denied access to “federal counsel” because of the
delay, resulting in him making incriminating statements to federal officers. These statements
were excluded from the cases because of a Miranda violation and so Hinojosa was unharmed
by them.

                                             5
   Case: 11-40039       Document: 00511778997         Page: 6     Date Filed: 03/06/2012



                                       No. 11-40039

              i. Sixth Amendment Claim
       The Sixth Amendment right “to a speedy and public trial,” U.S. CONST.
amend. VI, “attaches when the defendant has been formally indicted or actually
restrained accompanying arrest.” United States v. Jackson, 549 F.3d 963, 971
(5th Cir. 2008) (citation and internal quotation marks omitted). With this right,
“‘[a] prior state arrest . . . , even if based upon the same operative facts as a
subsequent federal accusation, does not trigger the [S]ixth [A]mendment right
to a speedy trial.’” United States v. Green, 508 F.3d 195, 201 (5th Cir. 2007)
(quoting United States v. Gomez, 776 F.2d 542, 549 (5th Cir. 1985)). Accordingly,
Hinojosa’s Sixth Amendment right to a speedy trial attached when he was
indicted on March 27, 2007. “A defendant’s Sixth Amendment speedy trial claim
is evaluated pursuant to a four-factor balancing test considering: (1) the length
of the delay; (2) the reason for the delay; (3) the defendant’s diligence in
asserting her Sixth Amendment right; and (4) any prejudice to the defendant
resulting from the delay.” Bishop, 629 F.3d at 465 (citing Barker v. Wingo, 407
U.S. 514, 530–33 (1972)).2
       On appeal, Hinojosa reiterates arguments he made before the district
court, and they remain unpersuasive. Even if the first factor cuts in Hinojosa’s
favor, see United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002) (explaining
that a delay of over a year is generally sufficient to trigger a Barker inquiry), the
other three go against him.            On the second factor—the reason for the
delay—Hinojosa joined in or requested at least eight continuances over a period
of a year and a half from the return of the indictment. Furthermore, the
Government’s case was legitimately complex, involving multiple defendants



       2
         The first three factors in this test are weighed to see if prejudice against the
defendant should be presumed. United States v. Frye, 372 F.3d 729, 736 (5th Cir. 2004). If
the defendant fails to show that these first three factors tip in his favor, then he must show
actual prejudice. Id.

                                              6
   Case: 11-40039    Document: 00511778997      Page: 7    Date Filed: 03/06/2012



                                  No. 11-40039

accused of serious crimes. “‘[T]he delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex conspiracy charge’
such as th[is] one . . . .” United States v. Bieganowski, 313 F.3d 264, 284 (5th
Cir. 2002) (quoting Barker, 407 U.S. at 531); see also id. (“This was a complex
case, and we hesitate to say that the reasons for the delay were unreasonable.
The volume of discovery and the number of defendants involved justified some
delay . . . .”). Indeed, even if “the delay [were] wholly unexplained[, which it is
not], this factor [would] weigh[] in [Hinojosa]’s favor, but the advantage that
[would] accrue[] to him is small.” Amos v. Thornton, 646 F.3d 199, 207 (5th Cir.
2011) (footnote omitted). Finally, Hinojosa has provided no evidence that any
delay was “made to hamper the defense and gain some impermissible trial
advantage” for the Government. Bishop, 629 F.3d at 467 (citing Doggett v.
United States, 461 U.S. 647, 656 (1992)).
      Likewise, the third factor—Hinojosa’s diligence in asserting his Sixth
Amendment right—cuts against him. This factor “requires a showing that
[Hinojosa] ‘manifest[ed] his desire to be tried promptly.’” United States v. Harris,
566 F.3d 422, 432 (5th Cir. 2009) (quoting United States v. Frye, 489 F.3d 201,
212 (5th Cir. 2007)). “An assertion of [this] right is a demand for a speedy trial,
which will generally be an objection to a continuance or a motion asking to go to
trial.” Frye, 489 F.3d at 211. By this standard, Hinojosa only began to demand
his Sixth Amendment right roughly a year and a half after the Government
brought charges against him. Under similar circumstances, the Fifth Circuit,
“lookin[ing] to the totality of proceedings,” has found that the third factor weighs
against a defendant. See United States v. Parker, 505 F.3d 323, 330 (5th Cir.
2007).
      The fourth and final factor—prejudice against Hinojosa resulting from the
delay—also militates against his claim. To prevail on this factor, Hinojosa must
show “actual prejudice.” Frye, 372 F.3d at 739. An analysis of Hinojosa’s claims

                                         7
   Case: 11-40039   Document: 00511778997     Page: 8   Date Filed: 03/06/2012



                                 No. 11-40039

reveal that he is unable to do this. First, none of the witnesses that Hinojosa
refers to in his brief could have helped him. Hinojosa claims that the delay cost
him the testimony of his wife. However, according to his own testimony,
Hinojosa and his wife left for Mexico on May 24, 2003, while the Elizondo
murder occurred on May 19, 2003. Hinojosa’s wife could not, therefore, have
provided him with an alibi for the Elizondo murder. Furthermore, in its
November 8, 2008, superseding indictment, the Government dropped all drug
charges against Hinojosa. Similarly, Hinojosa refers to Sammy Buentello, a
Texas Department of Criminal Justice employee who allegedly worked with
Hinojosa to end his participation in the Texas Syndicate. However, Hinojosa last
had contact with Buentello sometime before 2003, and Hinojosa never actually
explains the value of Buentello’s testimony. Hinojosa also refers to “[a] Texas
Syndicate member who knew Mr. Hinojosa refused to kill . . . Elizondo and was
running from Texas Syndicate orders to commit crimes was dead.” Apparently,
Hinojosa was referring to Marcelino Rodriguez, a Texas Syndicate member
whom Galindo killed, but could not further explain what kind of testimony
Rodriguez would have offered. Hinojosa also mentions Ms. Elizondo in his brief
claiming that “she changed her testimony several times.”          However, Ms.
Elizondo testified at trial, and was available for cross-examination, which
Hinojosa did in fact conduct. Finally, Hinojosa claims that because of the delay
the memory of Elia Torres, one of only two witness called by Hinojosa at trial,
had faded. However, Torres never indicated that her memory had faded during
her testimony, and the district court rejected Hinojosa’s argument as
“speculation.”
      Hinojosa also claims that the delay cost him the opportunity to gather
valuable physical evidence, as the house had changed ownership and subsequent
repairs removed any remaining bullet holes and bullets. Hinojosa says little
more than this and, as the district court observed, there was no indication as to

                                       8
   Case: 11-40039   Document: 00511778997     Page: 9   Date Filed: 03/06/2012



                                  No. 11-40039

whether these repairs were done during the 2003 to 2006 period prior to
Hinojosa’s indictment or afterwards. Hinojosa also does not explain with any
specificity what kind of evidence he would have obtained in the absence of delay
or its probative value.
      Thus, because Hinojosa cannot show actual prejudice or even the second
and third Barker factors, we reject his Sixth Amendment claim.
            ii. Fifth Amendment Due Process Claim
      “[U]nder Fifth Circuit law, [to make out a Fifth Amendment due process
claim] the defendant bears the burden of proving that the pre-indictment delay
caused ‘substantial, actual prejudice’ and was ‘intentionally undertaken by the
government for the purpose of gaining some tactical advantage over the
accused . . . .’” Jackson, 549 F.3d at 969 (quoting United States v. Gulley, 526
F.3d 809, 820 (5th Cir. 2008)).
      As the discussion above shows, Hinojosa has failed to demonstrate that he
suffered any prejudice due to the delay. See Jackson, 549 F.3d at 970 (rejecting
Fifth Amendment due process claim because defendant’s “three proffered
examples of prejudice are nothing more than mere speculation of lost witnesses,
faded memories or misplaced documents and do not demonstrate an actual loss
of evidence that would have aided the defense”) (citation and internal quotation
marks omitted). Furthermore, he has not presented any evidence of bad faith
or dilatory tactics on the part of the Government. The case’s substantial
complexity constituted an adequate non-oppressive reason for the delay.
Hinojosa offers nothing to rebut this conclusion and, in fact, the record shows
that Hinojosa’s absconding to Mexico and then Alabama played a significant role
in delaying the indictment. We find, therefore, that Hinojosa is not entitled to
relief under the Fifth Amendment.
            iii. Conclusion



                                       9
  Case: 11-40039       Document: 00511778997         Page: 10     Date Filed: 03/06/2012



                                       No. 11-40039

       Hinojosa has failed to make out a viable argument on any of his speedy
trial claims.3 We therefore affirm the district court’s denial of his motion.
       3. Sufficiency of the Evidence Claim
       Hinojosa also challenges the evidence supporting his RICO conspiracy
conviction, 18 U.S.C. § 1962(d). “A challenge to the sufficiency of the evidence
that is procedurally preserved, as this challenge was, is reviewed de novo.”
United States v. Diaz, 637 F.3d 592, 602 (5th Cir. 2011). “The ‘relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” United States v. Valle, 538 F.3d 341, 344
(5th Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This
“review of the sufficiency of the evidence 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)). But, “[i]f the
evidence tends to give equal or nearly equal circumstantial support to guilt and
to innocence . . . reversal is required: When the evidence is essentially in
balance, a reasonable jury must necessarily entertain a reasonable doubt.”
United States v. Elashyi, 554 F.3d 480, 492 (5th Cir. 2008) (citation and internal
quotation marks omitted).
       Our “case law makes clear that the standard of review for sufficiency of
circumstantial evidence is the same as it normally would be for direct evidence.”
Moreno–Gonzalez, 662 F.3d at 372 (citation omitted). “[W]hether judges doubt
the credibility of a witness, even an accomplice cooperating with the

       3
         Hinojosa also raises claims under the Speedy Trial Act and Federal Rule of Criminal
Procedure 48(a). His Speedy Trial Act argument—that the filing of his motion to dismiss
based on speedy trial grounds should not have tolled the statutory period until trial—is
without merit. See United States v. Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004). Hinojosa
has also failed to show any unnecessary delay or that the district court abused its discretion
by not exercising its powers under Rule 48(a). See United States v. Garcia, 995 F.2d 556, 561
n.8 (5th Cir. 1993).

                                             10
  Case: 11-40039     Document: 00511778997       Page: 11    Date Filed: 03/06/2012



                                   No. 11-40039

Government, is beside the point in reviewing . . . sufficiency claim[s] . . . [,] with
the exception of cases where a witness’[s] testimony is so incredible or
insubstantial that, as a matter of law, we may discredit it. . . . [But] [s]uch cases
typically involve testimony about an event that could not have occurred under
the laws of nature . . . . The question of [a witness]’s credibility [i]s one for the
jury.” United States v. Garcia, 567 F.3d 721, 731 (5th Cir. 2009) (citations and
internal quotation marks omitted)).
      Hinojosa argues that there was no evidence showing that he agreed to the
Texas Syndicate’s objectives. Hinojosa also argues that the indictment failed to
produce supporting facts to show that Hinojosa was a member of or affiliated
with the Texas Syndicate.         Similarly, Hinojosa also contends that the
Government failed to show that he was involved in a “pattern of racketeering
activity,” 18 U.S.C. § 1962(c), since the indictment only stated facts related to
the murders of Miguel Elizondo and the attempted murder of Marisa Elizondo.
This single allegation, based on a single incident, he asserts, is insufficient to
support a RICO conspiracy conviction.
      Before reaching the sufficiency question, it is important to note that
Hinojosa’s argument misstates part of the relevant law.             First, Hinojosa
conflates the proof requirements for a substantive RICO conviction under 18
U.S.C. § 1962(c) and a RICO conspiracy charge under 18 U.S.C. § 1962(d). “‘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.’” United States
v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005) (quoting United States v.
Posada–Rios, 158 F.3d 832, 857–58 (5th Cir. 1998)). Contrary to Hinojosa’s
arguments, the RICO statute penalizes “conspir[ing] to violate any of the
provisions of subsection (a), (b), or (c).” 18 U.S.C.§ 1962(d). The Government
need not prove a violation of §§ 1962(a),(b), or (c) in order to show a RICO

                                         11
  Case: 11-40039     Document: 00511778997      Page: 12    Date Filed: 03/06/2012



                                   No. 11-40039

conspiracy. See Posada–Rios, 158 F.3d 832, 857 (5th Cir. 1998) (concluding that
“[Supreme Court precedent dealing with operation and management of a RICO
enterprise] addressed only the extent of conduct or participation necessary to
violate a substantive provision of the statute; the holding in that case did not
address the principles of conspiracy law undergirding § 1962(d)” (citation and
internal quotation marks omitted)).
      The proper inquiry is, therefore, whether Hinojosa “knew of and agreed to
the overall objective of the RICO offense.” Delgado, 401 F.3d at 296. Thus, in
reviewing the sufficiency of the evidence to support Hinojosa’s conviction under
§ 1962(d), the question is simply whether there was enough evidence for a
rational trier of fact to conclude beyond a reasonable doubt that Hinojosa “knew
of and agreed to the overall objective of the RICO offense” underlying the RICO
conspiracy count. Delgado, 401 F.3d at 296. Here, that the standard is met.
Contrary to Hinojosa’s assertions, the Government presented strong evidence
that he was a willing and active member of the Texas Syndicate. Other Texas
Syndicate members reported that Hinojosa attended the gang’s meetings and
took votes at those meetings. The leader of the Rio Grande branch of the gang
described Hinojosa as a “full-fledged member” of the Texas Syndicate. Indeed,
that witness testified that Hinojosa volunteered to “take the hit” on Miguel
Elizondo. While Hinojosa’s counsel impeached this witness’s credibility with
inconsistent statements he previously gave to law enforcement officers, a
rational jury could reasonably find that Hinojosa knew of and agreed to
participate in the Texas Syndicate’s racketeering activity. See Garcia, 567 F.3d
at 731 (“The question of [a witness]’s credibility [i]s one for the jury.”).
      There was more than sufficient evidence to support Hinojosa’s RICO
conspiracy conviction. Accordingly, we reject Hinojosa’s sufficiency claim.
      4. Confrontation Claim



                                         12
  Case: 11-40039    Document: 00511778997       Page: 13   Date Filed: 03/06/2012



                                    No. 11-40039

      Finally, Hinojosa also claims a Confrontation Clause violation based upon
on what he perceives to be the district court’s decision not to allow him to cross-
examine Ms. Elizondo as to an inconsistent statement that she made to the
police on the night of her husband’s murder. “We review alleged violations of a
defendant’s Sixth Amendment confrontation right de novo. . . . Such claims,
however, are subject to harmless error review.” United States v. Skelton, 514
F.3d 433, 438 (5th Cir. 2008) (citations omitted). “The Confrontation Clause is
satisfied where defense counsel has been allowed to expose the jury to facts from
which the jury ‘could appropriately draw inferences relating to the reliability of
the witness.’” United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004) (quoting
United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993)). “If there is no
constitutional violation, then we review a district court’s limitations on
cross-examination for an abuse of discretion, which requires a showing that the
limitations were clearly prejudicial.” Skelton, 514 F.3d at 438; see also Davis,
393 F.3d at 548 (explaining that to demonstrate prejudice, “the defendant must
show that a reasonable jury might have had a significantly different impression
of the witness’s credibility if defense counsel had been allowed to pursue the
questioning”) (citation omitted).
      We understand Hinojosa to argue that Ms. Elizondo had previously stated
to the police that she did not see Mr. Hinojosa at the scene of the crime, but later
changed her testimony at trial and claimed she could see him driving away from
the scene within a lighted house into a dark car after dark.” Hinojosa also
argues that the district court wrongly prevented him from reading to the jury an
unsigned statement purportedly given by Ms. Elizondo to the police on the night
of the murder in order to impeach her testimony.
      Nothing in the record supports Hinojosa’s contentions.             On cross-
examination, Ms. Elizondo testified that she gave a statement to the police on
the night of her husband’s murder. Over the course of the cross-examination,

                                        13
  Case: 11-40039    Document: 00511778997         Page: 14   Date Filed: 03/06/2012



                                  No. 11-40039

Hinojosa’s counsel     made repeated          reference   to this statement and
inconsistencies between it and Ms. Elizondo’s testimony, questioning her
recollection regarding the arrival of the Jetta, what she had actually seen when
she looked out onto the street, whether she had ever seen the Jetta before, and
whether she saw Hinojosa after her husband had been shot. Moreover, defense
counsel elicited Ms. Elizondo’s concession that on the night of the shooting, she
told the police, “I don’t know who shot my husband.”
      These facts refute Hinojosa’s argument. There is no Confrontation Clause
violation because Hinojosa’s counsel was “allowed to expose the jury to facts from
which the jury could appropriately draw inferences relating to the reliability of
[Ms. Elizondo].” Davis, 393 F.3d at 548 (5th Cir. 2004) (citation and internal
quotation marks omitted).      Similarly, the district court did not abuse its
discretion because defense counsel was allowed to fully cross-examine Ms.
Elizondo as to the contents of the statement, even if he was not allowed to read
the unsigned police statement to the jury. Defense counsel made no effort to
admit the statement into evidence, or authenticate it, or show that it was
produced or signed by Ms. Elizondo, or prove that it was a police statement at
all. See FED. R. EVID. 901(a) (“To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient
to support a finding that the item is what the proponent claims it is.”). It is also
unclear that the jury would have had a “significantly different impression” of
Ms. Elizondo’s credibility had the document been admitted into evidence, given
the scope and depth of her cross-examination. Davis, 393 F.3d at 548. Thus, we
reject Hinojosa’s confrontation claim.
      5. Conclusion
      As Hinojosa has failed to make any persuasive arguments for overturning
his convictions, we affirm his convictions.
B. Garcia’s Appeal

                                         14
  Case: 11-40039    Document: 00511778997     Page: 15   Date Filed: 03/06/2012



                                  No. 11-40039

      Garcia’s convictions for violating RICO’s conspiracy provision, 18 U.S.C.
§ 1962(d), and VICAR, 18 U.S.C. § 1959(a)(1), extend from his involvement in the
murder of Crisantos Moran. Garcia challenges his convictions on sufficiency-of-
the-evidence and confrontation grounds, and also challenges the jury
instructions the district court delivered.
      1. Facts
      On March 20, 2003, Crisantos Moran, a Texas Syndicate member, was
murdered. Garcia had pled guilty to this murder in Texas state court, and was
later tried on the federal offenses enumerated above. At Garcia’s federal trial,
the Government called codefendant Noel De Los Santos (“De Los Santos”) to
testify as to the circumstances of Moran’s death. De Los Santos testified that at
a March 2003 Texas Syndicate meeting, the gang’s leadership discussed the
murder of Carlos Salinas, a member of a rival gang. The task of killing Salinas
was assigned to Moran at this meeting. Garcia and De Los Santos were to
accompany Moran and ensure that he killed Salinas.
      On March 20, 2003, Garcia, De Los Santos, and Moran drove to Salinas’s
house, whereupon Moran exited the vehicle and approached the house. Moran,
however, returned to the car and reported that nobody was at the house. De Los
Santos testified that he interpreted this to mean that Moran did not want to
carry out the killing. He explained that under Texas Syndicate rules, if someone
“doesn’t do his job, he gets killed,” so De Los Santos decided to kill Moran.
Garcia drove the car to a secluded field where De Los Santos shot Moran in the
head. Moran fell to the ground, where he lay motionless, and De Los Santos shot
him again while he was on the ground. When asked, “[W]hat did . . . Garcia do?”
De Los Santos replied, “He came around and shot him too. . . . Like six times.”
The Government also called Mario Garcia, Garcia’s brother, to testify as well.
He testified that Garcia told him that “Boy [i.e., De Los Santos] had shot and
killed him—Moran,” and that Garcia “shot [Moran] afterwards when [Moran]

                                       15
  Case: 11-40039    Document: 00511778997     Page: 16    Date Filed: 03/06/2012



                                  No. 11-40039

was laying down [sic].” The Government also introduced Garcia’s guilty plea in
Texas court to the murder of Moran.
      The final major piece of evidence in the Government’s case came from the
testimony of the medical examiner, Dr. Fulgencio Salinas. Dr. Salinas opined
that Moran “died of multiple gunshot wounds to different parts of the body.” Dr.
Salinas explained that Moran’s corpse had eight gunshot wounds, one of which
was to the head. Based on the head wound’s characteristics, Dr. Salinas opined
that the shooter would have been between six inches and two or three feet away
to cause this kind of wound. Dr. Salinas testified that a gunshot wound to head
of that type might have caused instantaneous death, but that “sometimes they
do and sometimes they don’t.” Dr. Salinas, however, also observed that there
was evidence of a “vital reaction” in the blood vessels surrounding the other
gunshot wounds in Moran’s body indicating that Moran’s heart may have still
been pumping after the gunshot to his head when the other wounds were
inflicted.
      2. Sufficiency of the Evidence Claim
      Garcia challenges the sufficiency of the evidence supporting his Count 1
conviction under RICO’s conspiracy provision, 18 U.S.C. § 1962(d). Sufficiency
of the evidence challenges are reviewed de novo and in the light most favorable
to the jury verdict, focusing on whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Diaz, 637
F.3d at 602. Garcia argues the Government was required to prove that Mr.
Garcia specifically agreed that two of the predicate acts of murder alleged in the
indictment would be committed and that the Government failed to carry this
burden because there was no evidence that Mr. Garcia knew of or agreed to the
murders other than that of Moran.
      The RICO conspiracy provision makes it “unlawful for any person to
conspire to violate any of the [other] provisions of [this] subsection . . . .” 18

                                       16
  Case: 11-40039         Document: 00511778997          Page: 17     Date Filed: 03/06/2012



                                         No. 11-40039

U.S.C. § 1962(d).4 In this circuit, the Government is not required to prove that
the defendant agreed to the commission of two predicate acts. See Delgado, 401
F.3d at 296 (“The conspirator need not have committed or agreed to commit the
two predicate acts. . . . [The conspirator] need only have known of and agreed
to the overall objective of the RICO offense.” (citing Salinas v. United States, 522
U.S. 52, 61–66 (1997)). Garcia bases his argument on case law from other
circuits which varies from this position, without an argument as to why the Fifth
Circuit’s position should be changed.5 Compare United States v. Driver, 535 F.3d
424, 432 (6th Cir. 2008) (explaining that under Sixth Circuit precedent, “[a
defendant]’s RICO conspiracy conviction can be sustained [only] if there is
evidence sufficient to prove that [defendant] agreed that someone would commit
two predicate acts”) (emphasis in original) with Chaney v. Dreyfus Serv. Corp.,
595 F.3d 219, 239 n.17 (5th Cir. 2010) (“A defendant need not know exactly what
predicate acts the conspiracy intends to perpetrate so long as the defendant
knows and agrees to facilitate the ‘overall objective’ of the conspiracy.”). Thus,
Garcia’s argument incorrectly elevates the burden of proof on the Government,
which was only required to show that Garcia knew of and agreed to the Texas
Syndicate’s overall objectives. It is clear that the Government met this burden
at trial.




       4
           In this case, the conspiracy was to violate 18 U.S.C. § 1962(c), which provides:
       It 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, to conduct or participate, directly or indirectly, in the conduct of such
       enterprise’s affairs through a pattern of racketeering activity or collection of
       unlawful debt.
       5
        Moreover, “whatever persuasiveness [the cases Garcia cites] may have, [the] rule of
orderliness directs that one panel of this court cannot overrule the decision of another panel.”
United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (citation and internal quotation
marks omitted).

                                               17
  Case: 11-40039    Document: 00511778997     Page: 18   Date Filed: 03/06/2012



                                 No. 11-40039

      In assessing the evidence presented at trial, Garcia contends that the
Government was only able to show that he was merely “associated” with the
Texas Syndicate, and argues this was insufficient to convict him of RICO
conspiracy. To support his argument, Garcia relies on United States v. Driver,
535 F.3d 424 (6th Cir. 2008), and United States v. Posada–Rios, 158 F.3d 832
(5th Cir. 1998). Neither case supports his position. As discussed above, the
Sixth Circuit’s test for proving a RICO conspiracy is different from that of this
jurisdiction, so Garcia’s reliance on Driver is misplaced. Moreover, while it is
true that the Posada–Rios court did conclude that a defendant’s “longstanding
association” with the drug trade and members of a RICO enterprise by itself
could not support a RICO conspiracy conviction, the defendant in that case had
merely engaged in failed negotiations to sell drugs to the enterprise.
Posada–Rios, 158 F.3d at 858. The court concluded that “[a]lthough . . . a
conspirator need not know each of his co-conspirators, or the details of the
conspiracy, the government’s theory in this case stretche[d] too far the outer
bounds of RICO conspiracy law.” Id.
      In contrast, Garcia’s connection to the Texas Syndicate and his knowledge
of its objectives were substantial. Garcia was identified at the trial as having
been a Texas Syndicate member for several years. He attended meetings of the
gang. The Government introduced testimony from Garcia’s own brother that
Garcia’s victim, Crisantos Moran, had received instructions at a Texas Syndicate
meeting to kill a rival gang member and that Garcia’s job was to make sure
Moran carried out this task. De Los Santos confirmed that both he and Garcia
had been ordered to make sure that Moran carried out the murder. Following
these orders, Garcia and De Los Santos killed Moran for failing to follow the
Texas Syndicate’s “rules.” This connection goes beyond mere association with
the organization.



                                       18
  Case: 11-40039    Document: 00511778997      Page: 19   Date Filed: 03/06/2012



                                  No. 11-40039

      Consequently, under the proper Fifth Circuit case law, a rational trier of
fact could conclude that Garcia “knew of and agreed to the overall objective of
the RICO offense” sought to be perpetrated by the Texas Syndicate. Delgado,
401 F.3d at 296. We therefore hold that the evidence was sufficient to support
Garcia’s RICO conspiracy conviction.
      3. Confrontation Claim
      Garcia also argues that the district court violated his confrontation right
by restricting his cross-examination of a Government witness. As noted above,
we review Confrontation Clause objections de novo, but subject to harmless error
analysis.   United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). “If
there is no constitutional violation, then we review a district court’s limitations
on cross-examination for an abuse of discretion, which requires a showing that
the limitations were clearly prejudicial.” Skelton, 514 F.3d at 438.
      The Government called a former Texas state prosecutor, Kimberly Leo
(“Leo”), to testify that Garcia pled guilty to Moran’s murder in state court. As
part of Leo’s direct examination, the Government introduced copies of Garcia’s
indictment and the judgment of conviction against him as evidence, pursuant to
Federal Rule of Evidence 803(22), that Garcia had pled guilty to the murder of
Moran in state court. Leo then identified Garcia in court.
      On cross-examination, Garcia’s counsel brought up the fact that Garcia’s
plea was the result of a plea bargain and that the sentence for Moran’s murder
was to run concurrently with other sentences, with the intention of showing that
Garcia pled guilty to the murder for a reason other than that he had an intent
to kill Moran:
      Q: There is a concurrent agreement to run other cases together; is
      that right?
      A: That is correct.




                                        19
  Case: 11-40039       Document: 00511778997          Page: 20     Date Filed: 03/06/2012



                                       No. 11-40039

       Q: Would you agree with me that there’s also a consideration that
       other cases be taken into account; is that right?
       A: Yes.
       Q: Would you agree with me that those are very important factors
       in resolving criminal cases that lawyers consider?
The Government objected and the district court upheld the objection on grounds
that the line of questioning was not relevant. The district court, however,
allowed Garcia to rephrase his question:
       Q: Ms. Leo, is it a common practice amongst lawyers—Defense
       lawyers and prosecutors in State Court—in order to resolve cases,
       to bring a closure to cases, to enter into agreements where there is
       [sic] concurrent sentences and cases to be considered as part of an
       overall package to just bring the case to an end?
       A: Yes.
Garcia now appeals the district court’s restriction on his cross-examination of
Leo. He argues that his motive for entering into the guilty plea was relevant for
showing the jury that he may not have intended to kill Moran, even in spite of
his guilty plea to the murder.6
       Here, the constitutional standard is met. The district court allowed Garcia
to rephrase his question to make his point that defendants enter into plea
agreements including concurrent sentences for reasons other than guilt, like
bringing the “case to an end.” Garcia’s counsel reiterated this exact point in his
closing argument:
       But I want you to look at that judgment where it says “concurrent
       sentences.” And Ms. Leo testified under cross examination that the
       reason for concurrent sentences was so those sentences could run


       6
        Garcia asserts in this regard that the Government was required to prove that he
intended to kill Moran, but that testimony at trial indicated that he only shot Moran after his
accomplice had already shot him in the head and Moran had fallen motionless to the ground.
Accordingly, he argues that he did not intend to kill Moran, but only to shoot Moran’s already
dead body and avoid punishment at the hands of the Texas Syndicate for failing to carry out
orders.

                                              20
  Case: 11-40039    Document: 00511778997      Page: 21   Date Filed: 03/06/2012



                                  No. 11-40039

      together with the underlying charge. Basically, this conviction was
      going to wash itself out because he was going to be eaten up by the
      other cases that Mr. Garcia was doing time for. That’s the reason
      he pled guilty, because he actually wasn’t going to do any time at all
      in state court for that murder.
While Leo was on the stand, defense counsel asked no further questions
regarding Garcia’s guilty plea or why he may have agreed to a plea agreement.
The record shows that Garcia was permitted to expose the jury to the relevant
facts from which they could draw his desired inference, namely, that he may
have had an incentive to plead guilty to the murder despite not having intended
to kill Moran.
      We also find that the district court did not abuse its discretion. Because
Garcia was allowed to make his argument, though perhaps not in his preferred
way, he cannot claim that the district court’s restriction on his line of
questioning was clearly prejudicial. Garcia’s argument that the Government
needed the jury to rely on his guilty plea to establish the element of an intent to
kill Moran to obtain a conviction on both counts fails to comport with the record.
While it is true that the Government referred to Garcia’s guilty plea in its
closing statement, as we explained above, the Government also made reference
to a range of other evidence supporting its theory. While a jury could have
drawn Garcia’s preferred inference that he shot Moran’s already-dead body only
to avoid punishment at the hand of the Texas Syndicate, there was more than
enough evidence for a rational jury to conclude that Garcia shot Moran while he
was still alive in order to ensure Moran’s death. Our review of the record reveals
that there is no evidence that the district court’s decision to disallow Garcia to
further pursue his cross-examination of Leo was clearly prejudicial.           We
therefore reject Garcia’s confrontation argument.
      4. Jury Instruction Claim




                                        21
  Case: 11-40039       Document: 00511778997          Page: 22      Date Filed: 03/06/2012



                                       No. 11-40039

       Garcia’s final point on appeal is that the district court reversibly erred in
the jury instructions it delivered. Specifically, Garcia points to instructions that
Hinojosa proposed, that he joined in requesting, stating “Your verdict must be
unanimous as to which specific racketeering acts you find that the Defendant
committed, caused or aided and abetted.” Instead, the district court instructed
the jury that participation in RICO conspiracy focuses on:
       the Defendant’s agreement to participate in the objective of the
       enterprise, to engage in a pattern of racketeering activity and not on
       the Defendants agreement to commit the individual criminal acts.
       The Government must prove that the Defendant participated in
       some manner in the overall objectives of the conspiracy and that the
       conspiracy involved or would have involved the commission of two
       racketeering acts. The Government is not required to prove either
       that the Defendant agreed to commit two racketeering acts or that
       he actually committed two such acts, although you may conclude
       that he agreed to participate in the conduct of the enterprise from
       proof that he agreed to commit or actually committed such acts.
Thus, Garcia argues on appeal that district court reversibly erred by omitting
the requirement that the jury unanimously agree on which two of the various
predicate acts alleged by Government Garcia agreed would be committed.7
       “Because ‘[d]istrict courts enjoy substantial latitude in formulating a jury
charge,’ we review ‘all challenges to, and refusals to give, jury instructions for
abuse of discretion.’” United States v. Davis, 609 F.3d 663, 689 (5th Cir. 2010)
(quoting United States v. Webster, 162 F.3d 308, 321–22 (5th Cir. 1998)).
Accordingly, “we review a defendant’s objection to the jury instruction by
assessing whether the district court’s charge, as a whole, was a correct
statement of the law and whether it clearly instructed the jurors as to the

       7
         This is, in fact, a more charitable reading of Garcia’s requested jury instruction. The
requested jury instruction focused on acts that “the Defendant committed, caused or aided and
abetted.” The commission of predicate acts is a requirement for proving a substantive RICO
violation, and unnecessary in showing a RICO conspiracy violation. The formulation we give
Garcia’s instructions is closer to the proper standard, but still an incorrect statement of law,
as we discuss below.

                                              22
  Case: 11-40039     Document: 00511778997       Page: 23    Date Filed: 03/06/2012



                                   No. 11-40039

principles of the law applicable to the factual issues confronting them.” United
States v. Conner, 537 F.3d 480, 486 (5th Cir. 2008).
      RICO provides that “[i]t shall be unlawful for any person to conspire to
violate any of [its other] provisions.” 18 U.S.C. § 1962(d). As noted above, in
order to demonstrate a RICO conspiracy under § 1962(d), the Government must
demonstrate “(1) that two or more people agreed to commit a substantive RICO
offense and (2) that defendant knew of and agreed to the overall objective of the
RICO offense.” United States v. Sharpe, 193 F.3d 852, 869 (5th Cir. 1999). The
use of the term “‘overall objective’ [in defining RICO conspiracy liability] . . . was
designed to expand, not restrict, the class of persons subject to conspiracy
liability.” Chaney, 595 F.3d at 239 n.17 (emphasis in original). Consequently,
“[a RICO] conspiracy may exist even if a conspirator does not agree to commit
or facilitate each and every part of the substantive offense. . . . The partners in
the criminal plan must agree to pursue the same criminal objective and may
divide up the work, yet each is responsible for the acts of each other.” Salinas
v. United States, 522 U.S. 52, 63–64 (1997). In the Fifth Circuit, Salinas has
been read to “hold[] that [an] individual co-conspirator does not need to
personally commit predicate acts to be convicted of a RICO conspiracy.” United
States v. Edwards, 303 F.3d 606, 640 (5th Cir. 2002). Moreover, “[a] defendant
need not know exactly what predicate acts the conspiracy intends to perpetrate
so long as the defendant knows and agrees to facilitate the ‘overall objective’ of
the conspiracy.” Chaney, 595 F.3d at 239 n.17.
      Garcia’s requested instructions at trial—that the jury must unanimously
find agreement on his part to commit two specific predicate acts—were not
legally correct, while the district court’s instructions were a proper summation
of our caselaw. Accordingly, it was not an abuse of discretion for the district
court to reject Garcia’s instructions proffered at trial.
      5. Conclusion

                                         23
  Case: 11-40039       Document: 00511778997         Page: 24     Date Filed: 03/06/2012



                                      No. 11-40039

       As Garcia has raised no compelling arguments as to why his convictions
should be overturned, we affirm his convictions.
C. Galindo’s Appeal
       Galindo’s VICAR, 18 U.S.C. § 1959(a)(1), and witness tampering, 18 U.S.C.
§ 1512(a)(1)(A), convictions are based on the murder of Marcelino Rodriguez.
Galindo challenges his convictions on various sufficiency-of-the-evidence
grounds.8
       1. Facts
       Marcelino Rodriguez (nicknamed “Mars”), a Texas Syndicate member,
began cooperating with the Government as a confidential informant sometime
around May of 2003. On July 8, 2007, shortly after the first indictment was
returned, Mars was killed. At trial, associates of codefendant Fidel Valle, a drug
supplier for the Texas Syndicate, testified that they discovered that Mars was
a federal informant. Alfredo Sanchez (“Sanchez”), a Texas Syndicate member,
testified that these associates passed this information on to members of the
Texas Syndicate, who decided to act on this information. According to Sanchez,
a meeting was held where it was ordered that codefendant Arturo Rodriguez
(“Rodriguez”), a Texas Syndicate prospect, and Galindo would kill Mars.
Sanchez also testified that Galindo “wanted to do it [i.e., the murder]
himself . . . . [b]ecause [Mars] was an informant and [Galindo] wanted the top
seat [in the local branch of the Texas Syndicate].” Alfredo Sanchez also testified
that Galindo later admitted to him that he had shot Mars.
       The Government called Arturo Rodriguez to testify about Mars’s murder.
Rodriguez testified that Galindo asked him to help him kill Mars. Rodriguez


       8
         Galindo also argues that the Government’s use of wiretap evidence without an
opportunity to cross-examine the speakers on the recording violated his confrontation rights.
His claim is meritless because these recordings were not testimonial and thus not within the
Confrontation Clause’s protections. See United States v. King, 541 F.3d 1143, 1146 (5th Cir.
2008); United States v. Davis, 270 F. App’x 236, 247 n.9 (4th Cir. 2008).

                                             24
  Case: 11-40039    Document: 00511778997     Page: 25   Date Filed: 03/06/2012



                                 No. 11-40039

testified that on the day of the murder he and Galindo went out to lunch with
Mars. Rodriguez then testified that after leaving the restaurant, he drove the
trio out to an isolated field with Mars next to him in the passenger’s seat. They
were followed in a different car by codefendant Cristobal Hernandez
(“Hernandez”), another Texas Syndicate prospect and Galindo’s second
accomplice. Shortly after arriving at the field, Rodriguez heard two gunshots
and then saw that Galindo had shot and killed Mars. Shortly after the shooting,
Galindo then exited the vehicle and got into Hernandez’s car. Rodriguez drove
the car deeper into the field, parked it, doused the car in gasoline, and burned
it with Mars’s body inside.
       Hernandez confirmed this sequence of events. He said that “[Galindo]
planned to kill [Mars] because [Mars] had become a snitch and was going to
testify on a lot of other Texas Syndicate [members].” Hernandez testified that
after the trio had finished lunch, he followed their car to the field. He saw
Galindo by the entry to the field and picked him up. He then drove further into
the field to find the first car on fire. Rodriguez then boarded Hernandez’s truck
and all three drove away. Hernandez said that shortly after they had left the
scene of the murder, Galindo remarked that “snitch got what he deserved, [I]
took him to his last meal.”
       2. Sufficiency of the Evidence Claim
       Galindo appeals his convictions on grounds that the Government failed to
produce sufficient evidence to convict him under VICAR, 18 U.S.C. § 1959(a),
and witness tampering, 18 U.S.C. § 1512(a)(1)(A), in connection with the July 8,
2007murder of Marcelino Rodriguez. As we observed before, sufficiency-of-the-
evidence challenges are reviewed de novo and in the light most favorable to the
jury verdict, focusing on whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Diaz, 637 F.3d at
602.

                                       25
  Case: 11-40039    Document: 00511778997       Page: 26   Date Filed: 03/06/2012



                                  No. 11-40039

            i. The Government Proved the Elements of a VICAR Violation
      Galindo contends that the Government failed to establish that he
participated in an enterprise for purposes of his VICAR conviction. He makes
two claims in this regard. First, Galindo argues that the Government did not
prove that he murdered Rodriguez for the purposes of furthering the Texas
Syndicate’s racketeering activities and thus failed to establish one of the three
structural features necessary to prove an enterprise under VICAR. To support
this argument, Galindo contends that testimony from various Texas Syndicate
members supported multiple theories for why he murdered Rodriguez, ranging
from the elimination of an informant to the prevention of a “war” with another
gang. These theories and the evidence supporting them, Galindo asserts, are
insufficient to show that he committed the murder for the specific purpose of
furthering his membership in the gang and its racketeering activities.
      Second, Galindo argues that the Government failed to prove that his
“longevity” with the Texas Syndicate was “sufficient to permit [him] to pursue
the enterprise’s purposes.” See Boyle v. United States, 129 S. Ct. 2237, 2244
(2009). To this end, Galindo posits that the Government failed to adduce
evidence of his rank, length of participation, how he obtained membership in the
Texas Syndicate, or his role in the decision to kill Mars. Essentially, Galindo
argues that other than testimony from other Texas Syndicate members that he
carried out Rodriguez’s murder, the Government produced no evidence that he
participated in the gang’s core criminal enterprise activities of dealing drugs and
committing other violent crimes.
      VICAR provides that “[w]hoever . . . for the purpose of gaining entrance to
or maintaining or increasing position in an enterprise engaged in racketeering
activity . . . murders . . . any individual in violation of the laws of any State or
the United States . . . shall be punished . . . .” 18 U.S.C. § 1959(a). There are
four elements to a VICAR conviction:

                                        26
  Case: 11-40039       Document: 00511778997          Page: 27      Date Filed: 03/06/2012



                                       No. 11-40039

       (1) that [a] criminal organization exists; (2) that th[is] organization
       is a racketeering enterprise; (3) that the defendant committed a
       violent crime; and (4) that the defendant acted for the purpose of
       promoting his position in a racketeering enterprise.
United States v. Stinson, 647 F.3d 1196, 1204 (9th Cir. 2011) (citations omitted).
A VICAR enterprise is a “partnership, corporation, association, or other legal
entity, and any union or group of individuals associated in fact although not a
legal entity, which is engaged in, or the activities of which affect, interstate or
foreign commerce.” 18 U.S.C. § 1959(b)(2).9 “From the terms of [the statute], it
is apparent that an association-in-fact enterprise must have at least three
structural features: [1] a purpose, [2] relationships among those associated with
the enterprise, and [3] longevity sufficient to permit these associates to pursue
the enterprise’s purpose.” Boyle, 129 S. Ct. at 2244.
       Galindo has confused the structural elements that the Government must
prove to establish that the Texas Syndicate is a VICAR enterprise, with the
evidence that the Government must provide to demonstrate that Galindo
murdered Rodriguez to further his position in the Texas Syndicate.                         The
Government is not required to show that Galindo’s participation in the murder
of Rodriguez and his time with the Texas Syndicate would be sufficient,
considered alone, to establish an association-in-fact enterprise. Rather, the
individual defendant, as well as his particular acts, and the enterprise, including
its structural elements, are distinct elements of proof, such that the latter is not
required to be wholly defined by the former. Here, the Government has proven


       9
           Courts treat this definition as identical to that in RICO. See 18 U.S.C. § 1961(4)
(“‘[E]nterprise’ includes any individual, partnership, corporation, association, or other legal
entity, and any union or group of individuals associated in fact although not a legal entity.”);
see, e.g., United States v. Cooper, 343 F. App’x 830, 831 (3d Cir. 2009) (using RICO caselaw to
define VICAR enterprise). Thus, a RICO “‘enterprise includes any union or group of
individuals associated in fact’ and that [definition] reaches ‘a group of persons associated
together for a common purpose of engaging in a course of conduct.’” Boyle, 129 S. Ct. at 2243
(quoting United States v. Turkette, 452 U.S. 576, 580, 583 (1981)).

                                              27
  Case: 11-40039    Document: 00511778997      Page: 28    Date Filed: 03/06/2012



                                  No. 11-40039

both that Galindo murdered Rodriguez to further his position in the Texas
Syndicate and the existence of an enterprise.
      First, there was sufficient evidence for a rational jury to find that Galindo
murdered Rodriguez for the purposes of either maintaining or increasing his
position in the Texas Syndicate. As noted above, there was substantial evidence
that Galindo killed Mars to further his position in the Texas Syndicate. In
determining    whether    a   murder     was   carried    out   “for   the   purpose
of . . . maintaining or increasing position in a[] [racketeering] enterprise,” 18
U.S.C. § 1959(a), “[s]elf-promotion need not be the defendant’s sole or primary
concern; rather, Congress intended to proscribe violent acts committed ‘as an
integral aspect of membership in such enterprises.’” United States v. Wilson, 116
F.3d 1066, 1078 (5th Cir. 1997) (quoting United States v. Concepcion, 983 F.2d
369, 381 (2d Cir. 1992)), overruled on other grounds by United States v. Brown,
161 F.3d 256, 257 n.1 (5th Cir. 1998).
      As noted above, numerous witness testified against Galindo and as to the
purpose of the murder. The jury was free to weigh the credibility of all these
witnesses and find that the Galindo carried out the killing as an integral aspect
of his membership in the Texas Syndicate. Indeed, Galindo’s decision to murder
Mars, a confidential informant, was consistent with furthering the ends of the
Texas Syndicate as a criminal enterprise. Thus, there was sufficient evidence
for a rational jury to find that Galindo sought to further his position in, as well
as the overall goals of, the Texas Syndicate when he murdered Rodriguez.
      The Government also proved that the Texas Syndicate met the VICAR
definition of an association-in-fact enterprise. The Government showed that the
gang has been in existence since at least 1989, and that it has a clear
organizational hierarchy, including a president and vice president, as well as
local chapters run by a chairman, a lieutenant, and other officers. The Texas
Syndicate also has rules and procedures which govern its conduct, including the

                                         28
  Case: 11-40039    Document: 00511778997      Page: 29   Date Filed: 03/06/2012



                                  No. 11-40039

induction of new members and the carrying out of assassinations. Finally, the
various murders and drug trafficking offenses charged within the indictment
constituted racketeering activity for the purposes of VICAR. See 18 U.S.C.
§ 1959(b)(1) (adopting RICO’s definition of racketeering activity, which includes
murder chargeable under state law). This evidence shows that the Texas
Syndicate had a purpose, relationships among its members, and longevity
sufficient to meet the requirements of VICAR. Such a conclusion finds support
in the holdings of sister circuits.   See, e.g., Stinson, 647 F.3d at 1203–05
(affirming VICAR conviction of gang member involved in criminal organization
similar to the Texas Syndicate); United States v. Bingham, 653 F.3d 983, 992–94
(9th Cir. 2011) (concluding that prison gang was a RICO enterprise).
            ii. The Government Proved the Elements of Witness Tampering
      Galindo also challenges the sufficiency of the evidence for his witness
tampering conviction. Galindo’s argument appears to be that because there was
“conflicting” testimony as to why Galindo murdered Rodriguez, this “establishes
there was no clear basis as to Mr. Galindo’s intent for murdering Mr. Rodriguez,”
and so the evidence presented was insufficient to show that Galindo killed
Rodriguez to prevent him from testifying against the Texas Syndicate,
negativing the intent requirement for a witness tampering conviction.
      The witness tampering statute penalizes the “kill[ing] [of] or [an] attempt[]
to kill another person with intent to . . . prevent the attendance or testimony of
any person in an official proceeding.” 18 U.S.C. § 1512(a)(1)(A) (emphasis
added). This intent need not be shown by direct evidence. Cf. United States v.
Trejo, 610 F.3d 308, 315 (5th Cir. 2010) (“Determining whether specific intent
to commit promotion money laundering has been proven is necessarily a
fact-bound inquiry frequently turning upon circumstantial evidence.”); see also
United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996) (explaining that proof



                                        29
  Case: 11-40039      Document: 00511778997         Page: 30     Date Filed: 03/06/2012



                                      No. 11-40039

of intent can be shown “by inference from all of the facts and circumstances
surrounding [the criminal acts]”).
       Here, the circumstantial evidence strongly indicates that Galindo killed
Mars to prevent him from testifying. Shortly after the original indictment in
this case was returned on March 27, 2007, the Texas Syndicate discovered that
Mars had been cooperating with the Government as an informant. On July 8,
2007, Galindo killed Mars. Repeated testimony at trial confirmed that Galindo
committed the murder with the specific intent to prevent Rodriguez from
testifying against the Texas Syndicate.
       3. Conclusion
       Galindo has not shown that the Government failed to adduce sufficient
evidence to justify his VICAR and witness tampering convictions. Consequently,
we reject his appeal on these grounds.10
                                 IV. CONCLUSION
       For all of the foregoing reasons, we AFFIRM Defendants’ convictions.




       10
          Galindo also argued that the Government had failed to identify the charred body
recovered from the scene of the crime as Mars because it did not produce dental records
identifying the corpse as Mars. This argument is unpersuasive. In this case, there was ample
other evidence indicating that Marcelino Rodriguez was the murder victim. Cf. United States
v. Agofsky, 20 F.3d 866, 873 (3d Cir. 1994) (holding that improper admission of
unauthenticated dental records was harmless error because the prosecution introduced
additional circumstantial evidence of victim’s identity). Arturo Rodriguez, Galindo’s
accomplice, knew Mars and testified that it was indeed Mars who Galindo shot and killed.
The Government also introduced the testimony of Alfredo Sanchez and Cristobal Hernandez
who assisted in the planning and execution of the murder and who both later heard Galindo
claim credit for it. Finally, the Government produced evidence that showed that the corpse
recovered at the scene of the murder was the same corpse that was autopsied.

                                            30
