USA V. VIRGEN-MENDOZA, No. 21-10109 (9th Cir. 2024)
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In a criminal case heard by the United States Court of Appeals for the Ninth Circuit, the defendant, Conrado Virgen-Mendoza, was convicted for conspiracy to aid and abet his brother, Paulo Virgen-Mendoza, in his flight to Mexico to avoid prosecution for the murder of a police officer. This was in violation of 18 U.S.C. § 1073. Conrado appealed his conviction, arguing that the district court had made a reversible error by allowing the government to argue during closing statements that each co-conspirator did not need to have knowledge about Paulo’s intention to travel to Mexico.
Conrado also argued that the evidence was insufficient to establish that he had knowledge of and specifically intended to further Paulo's escape to Mexico. Furthermore, he contested that the district court had abused its discretion by allowing the government to read transcripts of his interviews with law enforcement to the jury without also admitting into evidence the Spanish-language interview recordings.
The appellate court held that, since the substantive offense of flight to avoid prosecution under § 1073 never occurred, the government was required to prove that the conspirators knew of the fact giving rise to federal jurisdiction, i.e., that they were aiding Paulo’s flight into Mexico to avoid prosecution. The court concluded that any misstatement of the law by the government did not materially affect the verdict, as the brief misstatement was neutralized by the district court’s instructions to the jury.
The court further held that the evidence was sufficient to establish that Conrado knew about and specifically intended to help Paulo cross the border to Mexico to avoid prosecution. Lastly, the court ruled that even if the district court had erred by not admitting the Spanish-language interview recordings into evidence, the exclusion did not materially affect the verdict. Thus, the court affirmed Conrado's conviction.
Court Description: Criminal Law The panel affirmed Conrado Virgen-Mendoza’s conviction on one count of conspiracy to aid and abet his brother Paulo Virgen-Mendoza’s flight to Mexico to avoid prosecution for the murder of a police officer, in violation of 18 U.S.C. § 1073.
Conrado argued that the district court committed reversible error by permitting the Government to argue in closing that it was not necessary to prove that each co- conspirator knew about Paulo’s intention to travel to Mexico. The element that confers federal jurisdiction under § 1073 is movement or travel in interstate or foreign commerce. The panel explained that because the substantive § 1073 offense of flight to avoid prosecution never occurred, the Government was required to prove that the conspirators knew of the fact giving rise to federal jurisdiction: that they were aiding Paulo’s flight into Mexico to avoid prosecution. The panel held that the Government was therefore required to prove that Conrado knew about the plan and specifically intended to help Paulo cross the border to Mexico avoid prosecution. The panel concluded, however, that any misstatement of the law by the Government did not materially affect the verdict, as the brief misstatement in rebuttal factored very little into the parties’ closing arguments and was neutralized by the district court’s instructions to the jury. The panel held that the evidence is sufficient, when viewed in the light most favorable to the Government, that Conrado knew about and specifically intended to help Paulo cross the border to Mexico to avoid prosecution.
Conrado argued that the district court abused its discretion by permitting the Government to read transcripts of his interviews with law enforcement to the jury without also playing or admitting into evidence the Spanish- language interview recordings. The panel did not need to decide whether the best evidence rule required admission of the recordings because even assuming error, the exclusion of the recordings did not materially affect the verdict.
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