United States v. Barragan, No. 13-50516 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed Defendant Barragan, Franco, and Fernandez, and Guitierrez's conviction for conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(d), and Barragan's conviction of drug crimes. The panel affirmed Barragan, Franco, and Fernandez's sentences, but vacated Guitierrez's sentence. In this case, the government conceded, and the panel agreed, that the district court erred in classifying Gutierrez as a career offender because his conviction in this case was not for a crime of violence or a controlled substance offense. Accordingly, the court remanded for resentencing of Gutierrez on an open record.
Court Description: Criminal Law The panel affirmed Jesus Barragan’s, Pablo Franco’s, Francisco Gutierrez’s, and Hector Fernandez’s convictions for conspiracy in violation of the Racketeering Influenced Corrupt Organizations Act; affirmed Barragan’s conviction for drug crimes; affirmed Barragan’s, Franco’s, and Fernandez’s sentences; but vacated Gutierrez’s sentence and remanded for resentencing. The panel rejected Gutierrez’s arguments (1) that suppression of wiretap evidence was required because the affidavit supporting the application failed to show necessity, and (2) that a Franks hearing was required because the affidavit contained false information. The panel held that the district court’s failure to try Fernandez separately from his co-defendants was not manifestly prejudicial to him. 4 UNITED STATES V. BARRAGAN The panel held that the district court did not abuse its discretion in allowing a former Mexican Mafia member to testify on direct examination about his past crimes, nor in finding that the probative value of the evidence was not substantially outweighed by any prejudice. The panel found no error arising from the prosecutor’s blaming, in rebuttal, the defense for bringing up the former Mafia member’s violent past. The panel held that the district court did not abuse its discretion in admitting as lay opinion case agents’ testimony about the meaning of code words used by the conspirators. The panel held that the district court did not abuse its discretion in admitting tapes of conversations between a confidential informant and alleged conspirators. The panel explained that the informant’s statements on the tapes, which were offered only for context and not for their truth, were not hearsay, and their admission did not offend the Confrontation Clause. The panel held that the government presented sufficient evidence of Fernandez’s participation in the RICO conspiracy to sustain his conviction. The panel held that the prosecutor’s remarks in closing argument, emphasizing the violent nature of the defendants’ crimes and repeatedly urging the jury to say “no more,” were improper because they invited the jury to convict for a non- evidentiary reason: to protect the community against future violence. The panel concluded, however, that the remarks did not have a probable effect on the jury’s verdict in light of the entire record. UNITED STATES V. BARRAGAN 5 The panel held that the district court did not abuse its discretion in refusing to give Fernandez’s requested jury instructions (1) that he could not be convicted of conspiring with a government informant; (2) that his mere purchase of drugs did not establish participation in a conspiracy; and (3) that the government prove he was not a victim of extortion. The panel found no plain error in the district court’s failure to give jurors an explanation for their anonymity. Affirming Barragan’s sentence, the panel held (1) that a conviction under Calif. Penal Code § 211—which necessarily involves either generic robbery or generic extortion—was categorically a “crime of violence” for purpose of the career offender guideline in effect at the time of his sentencing; and (2) that, after reviewing the judicially noticeable records of Barragan’s prior conviction under California Health and Safety Code § 11379, a divisible statute, the district court properly concluded that the conviction was for selling a controlled substance offense under the career offender guideline. The government conceded that the district court erred in calculating Gutierrez’s sentence as a career offender because his conviction in this case was not for a crime of violence or a controlled substance. The panel agreed, vacating Gutierrez’s sentence and remanding for resentencing on an open record. The panel held that in finding certain RICO conspiracy predicate acts attributable to each defendant pursuant to U.S.S.G. § 2E1.1, the district court (1) was permitted to attribute to a defendant predicate acts that the jury verdicts did not so attribute and/or of which a defendant was acquitted or not formally charged; and (2) was permitted to 6 UNITED STATES V. BARRAGAN find facts relating to the extent of the conspiracy by a preponderance of the evidence.
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