### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 09-50323

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 Influence d and Corrupt Organizations Act (RICO) (prohibiting racketeering activi t y) , § 1951(a) of the Hobbs Act (prohibiting extortion), 18 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D April 26 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 09-50323 Document: 00511836403 Page: 1 Date Filed: 04/26/2012No. 09-50323

U.S.C. §1956(h) (prohibiting money laundering), and 21 U.S.C. § § 8 4 1 (a) an d 846 (prohibiting drug trafficking). Except for Mona’s sentence, which we VACATE and REMAND for re-sentencing, the judg m e n t o f the district court is AFFIRMED. I. The six appellants were all associated, in varying degrees, with the Barrio Azteca (BA) criminal enterprise. The BA is a prison gang that was founded in 1 1985 by inmates origi n a l l y f r om El Paso, Texas, who were incarcerated in the T e xas Department of Corrections (TDC) prison system. At the time o f t h e appellants’ trial in 2008, the BA’s criminal operations and influence had grown to encompass various T D C a nd 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 p a y m ents (known as “ cuotas”) from narcotics traffic k ers (known as “ tiendas”) who sold illegal drugs in BA territory. T h e 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 a lso acted as a facilitator and enforcer of the illegal narcotics trad e b y: (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 t i e n das ; (4) engaging in sales of narcotics; (5) importing and transporting drugs for the La Linea drug cartel, which operates i n J u a r ez,

We revie w the evide nce in the light mo st favor able t o t h e verdict

. Uni ted States v. 1 Salazar , 542 F.3d139 , 143 (5t h Cir

. 2008)

. 2 Case: 09-50323 Document: 00511836403 Page: 2 Date Filed: 04/26/2012No. 09-50323

Mexico; and (6) committing assaults and other violent crimes on behalf of the La Lineacartel. The BA was organized in a hierarchical, paramilitary manner. The most senior BA position was captain (“ ca p o ” ), then lieutenant, sergeant, soldier ( “ s oldado”), and, finally, prospective member (“esquina”). The capos , most o f 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 a c ts that occurred in association with the BA criminal ent e r p rise between 2003 and 2008. Specifically, Manuel Cardoza, B e n j a m in 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, re c e ived a life sentence for violating 18 U.S.C. § 1962(d). Said Francisco Herrera, who was a sergeant, r e c eived 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 a n e s q u ina , 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. Cardo z a , Mona, and Herrera contend that the district cou r t sentenced them to life imprisonment in violation of the S u preme Court’s decision in Apprendi v. New Jersey

. Cardoza and Alva r e z 2
argue that the d i strict court’s sentencing procedures ran afoul of the Supreme

530 U .S

. 466 (200 0). 2 3 Case: 09-50323 Document: 00511836403 Page: 3 Date Filed: 04/26/2012No. 09-50323

Court’s decision in United States v. Booker

. Cardoza, Alvarez, and Perea 3 challenge the district court’s denial of their motion for a new trial based on the allegedly extreme jury protection m e a s u r e s imposed by the district court. Cardoza and Perea maintain that the district court erred in denying th e ir m o tion for a new trial based on the government’s alleged s u ppression of evidence in contravention of Brady v. Maryland

. Alvarez argues that the district court’s 4 admission of Governm e nt’s Exhibits 353 and 354 violated the Sixth Am e n d m e nt’ s C o nf

ro nt ation Clause. Perea contends that the district court err e d in denying his motion for an evidentiary sentencing hearing. Herrera and Enriquez appeal the district court’s alleged reliance on improper i n f ormation contained in the pre-sentence report. Enriquez maintains that the district court

e r r e d i n denying Enriquez’s motion to suppress and motion for severance. Finally, Herrera claims t h a t t h e district court erred in admitting various unspecified exhibits into evidence because such exhibits lacked the pr oper 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 d i s trict court, we review the sufficien c y 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). T h i s review is “highly deferential to the verdict.” United States v . Moreno- G onzalez , 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

543 U .S

. 220 (200 5). 3

373 U .S

. 83 ( 1963)

. 4
4 Case: 09-50323 Document: 00511836403 Page: 4 Date Filed: 04/26/2012No. 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 foc u s 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, w e 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 t h a t the defendant knew of the money laundering scheme, voluntarily joined it, and possessed the requisite intent to commit the underlying § 1956(a) of fense. United Stat e s v . Ismoila , 100 F.3d 380, 387 (5th Cir. 1996). Cardoza and Alvar e z a r gue that the evidence was insufficient to show that they knew the money they admittedly received into their prison commi s s ary ac c o u nt s 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 crimin a l e n t e rprise designed to funnel extorted cuotas into the prison commissary accounts of high ranking BA members. This system involv e d t wo 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

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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 dist r ibution of cuota funds into the commissary accounts o f o ther BA members and also personally received cuota money into his own commissary account. Cardoza tr an s m itt e d dir e ctio n s r egarding cuota d e p o s it s throu gh h e avily - c o de d m e s s a ge s , w h i c h were introduced by the government at trial. The government a l s o introduced conversations between Cardoza and Mona, who served as Cardoza’s “bridg e ” t o the outside world, wherein Cardoza ordered that a certain BA member should no longer receive a share of the cuota col lections due to the member’s upcoming release from pri s o n . 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 c u o t a transfers to commissary accounts. Cardoza later wrote a letter ordering the BA to put David Merez “on ice” because Merez was responsible for this cuotashortfall. Similarly, in Alvarez’s case, Gustavo Gallardo—a former BA member who testified extensively about the structure of the BA and h i s i nv o lvement in collecting cuotas—stated that he previously sent cuota money to Alvarez’s commissary ac c o unt. Gallardo’s transfer of the funds was not a random act of benevolence; Gallardo specifically sent the mone y t o Alvarez because Alvarez

was a BA capo . Another BA m ember, Roberto Duran, testified that Alvarez 5

once sent him a letter ordering that he send money to Alvarez, and that Duran

Ga llar do als o tes tif

ied that he and his fel low BA m e m b e r s w e re conc erne d wh en 5 David Me rez was fai ling to for wa rd cuotas to the BA lead ers hip in pr iso n, demo nst rat ing his unde rs tand ing t hat por tio ns of the cuotasw eret o b e s ent to ca pos lik e Alvarez. 6 Case: 09-50323 Document: 00511836403 Page: 6 Date Filed: 04/26/2012No. 09-50323

eventually obtained the funds that he was ordered to send to Alvarez. Officer Sanchez similarly testified about a letter, which was ad m i t ted into evidence, that Alvare z s ent 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 r e a s o n ab l e do ub t that Cardoza and Alvarez knowingly and vo lu nt arily e n ga ge d in a conspira c y t o funnel cuota payments, and also knowingly received cuota funds into their commissary accounts. 2. Cardoza, Alvarez , a n d 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. To convict a defendant of conspiring to traffic in narcotics, 6 the “government must prove: 1) the existence of a n a gr eement between two or more persons to violate federal narcotics laws; 2) the defendant’s knowledge of the agreement; and 3) the defendant’ s vo lunt ary p articip ation 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 eleme n ts “may be inferred from the development and collocation of circum s t a n c es.” 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).

Sec tio n 841( a)( 1) st ates that “it sha ll be unlaw ful for any per s o n k n o w i n gly or 6 inte ntio nally

. . . to man ufac tur e, dis tribute , or dis pens e, or p o s s e s s w i t h inte nt to man ufac tur e, dis tribute , or dis pens e, a cont roll ed sub st ance .” 21 U. S. C. § 841( a)( 1). Sec tio n 846 st ates that “[ a]ny per so n wh o att em pt s or cons pir es to com mi t any off ens e def ined in this sub chap ter sha ll be subj ect to the sam e pena ltie s as thos e pr es cribed for the off ens e, the com mi ss ion of wh ich wa s the objec t of the att em ptorc ons pir acy. ” 21 U. S. C. § 8 46. 7 Case: 09-50323 Document: 00511836403 Page: 7 Date Filed: 04/26/2012No. 09-50323

Cardoza and Alvarez argue that the r e w a s no evidence indicating that they were aware of o r p a r t i c i pated in the BA’s drug trafficking activity. They contend that the drug trafficking activities of other BA members were unilateral endeavors by ind ivi d u a l members, which lacked any connection to the BA criminal enterprise. Cardoza supports this contention by pointing out t h a t he

was incarcerated throughout th e d r u g trafficking conspiracy. Cardoza and Alvarez also point out that the record is devoid of evidence directly connecting the incarcerated caposto the drug trafficking activities of free BA members. We nevertheless hold that a rational jur y 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 narc o t i cs 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 traffic k ing. Furthermore, there w a s 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

c u o t a exemption, which incentivized free BA’s to deal in narcotics, and th e practical need for free BA members to earn m o ney, it could be inferred that Cardoza and Alv a r ez had knowledge of, encouraged, and thus participated in,

a narcotics trafficking conspiracy that was essential to the survival of the BA’s overall cuotalaundering scheme. Moreover, the evidence indicated that BA members would supply tiendas with drugs i f t h e y lacked a sufficient supply. Thus, the BA would support the

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businesses of drug dealers, who would then regularly pay cuotas to th e 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 s a l e s t o tiendas , participated in a conspiracy to traffic narcotics. With regard to Herrera, his brief indicates that he c h a l l enges the sufficiency of the evidence underlying all of his conviction s ; h o w ever, 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.”). None th e l e s s , b e c au s e it b e ar s up o n H e rr e r a’ s s ub s t antive RICO conviction, discussed infra , we briefly note our conclusion that the evidence sufficiently supported Herrera’s conviction under §§ 841(a) ( 1 ) a nd 846. The jury heard testimony from a t l e ast two BA members who discussed Herrera’s drug trafficking activities. For instance, Jose Martin Garcia testified that Herrera

o w n e d h is own tienda , known as Jaguars, where BA members would sell cocaine. BA member Josue Aguirre, who referred to Herrera as his “right hand

7 man,” similarly testified that he used to accompany Herrera while Herrera sold drugs at various bars, i n c l uding 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.

G arc ia als o t es tif

iedt hat he ass ist ed He rre ra in coll ect ing cuotas . 7 9 Case: 09-50323 Document: 00511836403 Page: 9 Date Filed: 04/26/2012No. 09-50323 3. Herrera and Enriquez challenge the sufficiency of the evidence supporting their convictions of conspiracy to commit extortion under the H o b bs Act, 18 U.S.C. § 1951(a). To prove a violation of the Hobbs Act, the government must 8
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 tr a n s a ction delayed, interrupted, or adversely affected interstate commerce. United States

v. Mann , 493 F.3d 484, 494 ( 5 t h C i r . 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 t h e coconspirators, but may be inferred from circumstantial evidence.” United States

v. Wrigh t , 7 9 7 F.2d 245, 253 (5th Cir. 1986) (citing United States v. Reed , 715 F.2d 870, 874 (5th Cir. 1983)). T h e government presented evidence indicating that Herrera was a BA member who would assist the BA with opening tiendas an d c o l l e c ting cuotas

. Herrera eventually obtained the rank of BA sergeant and was placed in charge of cuota collections for the east side of E l P a s o . The jury also heard evidence

Sec tio n 1951( a) pr ovide s: “Who ever in any wa y or degr ee obs tru cts , del ays, or aff ect s 8
com me rce or the mo veme nt of any art icle or com mo dit y in com me rce , by robb ery or extor tio n or att em pt s or co nsp ires so to do , or co mm its ort hrea tens physic al violenc e to any pers on or pr ope rty in fur ther ance of a plan or pur pos e to do anythin g in violat ion of this se cti on sha ll be fine d unde r this tit le or im pr iso ned not mo re than tw enty years , or both .” 18 U. S. C. § 1951( a). Sec tio n 1951(b)( 2) def ines extor tio n as the “obt aining of pr ope rty fr om a n o t h e r , wi th his cons ent, indu ced by wr ongful use of act ual or thr eate ned for ce, violenc e, or fea r, or unde r colo r of off icia l r ight. ” 18 U. S. C. § 1 951(b)( 2). 10 Case: 09-50323 Document: 00511836403 Page: 10 Date Filed: 04/26/2012No. 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 detective s 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 f

a i l i n g t o 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, whil e b e i ng interviewed for a second time by police, stated that he went to Oviedo’s home to collect cuotas

. Bas e d on the foregoing evidence, the jury could have determined that Herrera an d Enriquez were knowing and willful conspirators in an enterprise designed to extort cuotas from drug t r a f f i c kers in contravention of the Hobbs Act. The only remaining qu e stion, therefore, is whether the BA’s extortion of cuotasaffected interstate commerce. Our caselaw provides that illegal act ivi t y n eed only “slightly” affect interstate commerce to fall under the purvi e w of the Hobbs Act, and that this inquiry is made on a “case-by-case basis.” Box , 5 0 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.3 d a t 4 9 5

. Furthermore, with regard to Hobbs Act cases involving drug trafficking, we have held that “interfering wi t h 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

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drug traffickers through the threat and, if necessary, use, of violence. Given this

a c t ivi ty—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 t o 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 convi c tions for violating 18 U.S.C. § 1962(c), which prohibits enga gi n g i n the affairs of an enterprise through a “pattern of racketeering activity.” To establish a § 1962(c) violation, the “government must prove (1) the

9

e x i s t e n c e of an enterprise that affects interstate or foreign commerce, (2) that the defendant was employed by o r a ssociated 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 t he 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, t h e “defendant must have participated in the operation or management of the enterprise itself.” Id. (citing

Sec tio n 1962(c) st ates that “[i]t sha ll be unlaw ful for any pe r s o n e m plo yed by or 9
ass ocia ted wi th any en t e r p r ise engaged in, or the act ivitie s of wh ich aff ect , inte rs tat e or for eign com me rce , dir ect ly or indirec tly, in the conduc t of such ente rp ris e’s aff airs thr ough a pat ter n o f rac ke tee ring act ivity or the coll ect ion of unlaw ful deb t. ” 18 U. S. C. § 1 962(c)

. 12 Case: 09-50323 Document: 00511836403 Page: 12 Date Filed: 04/26/2012No. 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 u p p e r 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 define s a “ p a ttern of racketeering activity” as requiring “at least two [predicate] acts of racketeering

a c tivity.” 18 U.S.C. § 1961(5). Section 1961(1) sets forth numerous cr i m i n a l 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 oth e r w i se dealing in a controlled substance or listed

ch emical (as defined in section 102 of the Controlled Substances Act), puni s h ab l e 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

cour t h a s 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 t h r eat 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 suffic iently established in all three appellants’ cases. At tria l , C a r d oza and Alvarez were both convicted of conspiring to launder cuotas to prison commissary ac c o u n t s i n 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 c onspiring to commit extortion in contravention of the Hobbs

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Ac t , 18 U.S.C. § 1951. Thus, all three appellants committed two pre d i c a t e 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 satis f i e d w hen the acts were committed in furtherance of the criminal enterprise’s business). F u r t hermore, the government sufficiently demonstrated that the appellants’ racketeering acts posed a threat of continued criminal activity. In Delgado , we held that a crimina l e n t e r p rise’s regular collection of “the dime” from drug dealers “evidenced a ‘specific threat of repetition extending indefinitely into the future.’” Id. (quoting Nw. Bell , 492 U.S. at 242). Similar 1 0 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 Del ga do , the continuity requirement is met in this case. We hold th a t 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. Cardo z a , Alvarez, Herrera, and Mona appeal the sufficiency of the evidence underlying their convictions for violating 18 U

. S

. C

. § 1962(d), which
p rohibits, among other things, conspiring to engage in the affairs of a n enterprise through a pattern of racketeering activity. 1 1

As st ated in De lga do , “[i]n exchange for me mbe rs hip, TMM me mbe rs se nd 10% of 1 0 thei r illegal pr oce eds (‘ the dim e’) to TMM head quart ers . Me mbe rs mus t als o coll ect ‘th e dim e’ fr omnon-m ember dr ug dealer s andr em it thatmoney toTMM head quart ers .” De lga do , 401 F.3dat293

.

Sec tio n 1962( d) st ates that “[i]t sha ll b e u n law ful for any per so n to cons pir e to 1 1 violat e a ny of

t he pr ovis ions of

s ubs ect ion (a) , (b) , or (c). ” 18 U. S. C. § 1 962( d)

.

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“To prove a RICO conspiracy, the government must establish (1) that two

or more people agre ed 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 (q u o t i n g United States v. Posada-Rios , 158 F.3d 832, 857–58 (5th Cir. 1998)). The go v e r nment 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 suf f i c i e n t e vidence 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 c o m mit any predicate RICO offenses. Mona was only convicted of conspiring to engage in a pattern of racketeering activity. N eve rth e l e s s , Delgado makes clear that a co-conspirator need not comm i t a p r edicate 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 e s t ablished 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 heavilycoded letters, telephone calls, and prison visits, and t h e n M o n a would either forward the communications onward or personally di r e c t C a rdoza’s orders to

15 Case: 09-50323 Document: 00511836403 Page: 15 Date Filed: 04/26/2012No. 09-50323

o t h e r BA members. Also, on behalf of capo David Merez, Mona delive r e d messages, provided transportation to other BA membe r s , a n d 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 sc h e m e . 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. C a r doza, Mona, and Herrera challenge their sentences to l i f e imprisonment under 18 U.S.C. § 1962(d) because the sentences a l legedly exceeded the statutory maximum authorized by the jury’s verdict in violation of the Supreme Court’s decision in Apprendi v. New Je rs e y . Based on the 12 Supreme Court’s decision in United States v. Cotton , we hold that Cardoza’s 1 3 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 s t a n d a rd of review, “which requires considerable deference to the district court.” Unit e d S t a tes 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 sub stantial r ights, 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).

530 U .S

. 466 (200 0). 1 2

535 U .S

. 625 (200 2). 1 3 16 Case: 09-50323 Document: 00511836403 Page: 16 Date Filed: 04/26/2012No. 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 i n dictment charged the defendants with conspiring to distribut e and to possess with intent to distribute a “detectable amount” of cocaine; however, the i n dictment did not allege any threshold quantities of drugs to enable enhanced penalties under 21 U.S.C. § 841(b). Id. 1 4 at 628. The jury found the defendants guilty of the a l l e ged conspiracy but did not make any findings regarding the spec i f i c amounts of cocaine that the defendants conspired to possess and distribute. Id. Nevertheless, at sentencing, the district court incr e a s e d th e s t atutory m axi m u ms 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 allege d in the indictment nor submitted to the p e t i t j u r y . ” Id. at 628–29. The Fourth Circuit vacated the

The initi al indic tm ent char ged thedefe ndant s w ith co nsp iring todis tributeand to 1 4 pos se ss wi th inte nt to dist ribut e five kilogr ams or mo re of coc aine and fift y gram s or mo re of c o c a i n e b a s e, in violat ion of 21 U. S. C. §§ 841( a)( 1) and 846. Cotton , 535 U. S. at 627. A sup er s e d i n g indi ctm ent then char ged the def enda nts wi th only cons pir ing to dis tribute and to pos se ss w ith inte nt to dis tributea “d ete ctable amo unt” of c ocai ne. Id. at 627–28. 17 Case: 09-50323 Document: 00511836403 Page: 17 Date Filed: 04/26/2012No. 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 d istrict 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 r e vi e w because they were based on “overwhelming” and “essentially uncontroverted” evidence adduced at trial regarding the a m o unt of cocaine involved in the conspiracy. Id. at 633. In this case, the ju ry 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

. § 1 9 6 3(a). Without obtaining spec i f i c sentence enhancement findings from the jury, the district court increase d C ar do z a’ s and Herrera’s sentences for violating § 1962(d) f r o m 20 years to life. Such an enhancement would have been permissible if i t had been b a s e d on Cardoza’s and Herrera’s predicate RICO offenses of conspiring to traffic in narcotics in vi o l a t i o n 21 U.S.C. §§ 841(a)(1) and 846, which carries a life sentence when suffic i ent amounts are involved. However, Cardoza correctly notes that such an enhance m e n t would not have been permissible if the jury had based his § 1962(d) conviction entirely on his
p redicate RICO offense of conspiracy to commit money laundering und e r 1 8 U.S.C. § 1956(h). Cardoza and Herrera contend that t h e d i strict 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’ theor ies are without merit because the jury did ret u r n the requisite special findings on Cardoza’s and Herrera’s § 1962(c) RICO convi c t ions. The jury specifically found beyond a reasonable

18 Case: 09-50323 Document: 00511836403 Page: 18 Date Filed: 04/26/2012No. 09-50323

doubt that Cardoza and Herrera both conspired to p o s sess with intent to distribute either one kilogram or more of heroin or five kilograms or more of cocaine. This find i n g , w h i c h established one of the predicate acts for their § 1 9 6 2 (c) convictions, also provides “overwhelming” and “essentially

u nc o ntroverted” 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 , 3 1 0 F

. 3 d 5 42, 549 (7th Cir. 2002) (“The maximum penalty following a RICO conviction depends on t h e m a x imum penalty for the most serious predicate offense.”). The district court simply used the jury’s sp e c i f ic findings on the § 1962(c) count as the basis for enhancing the convi c t i ons 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 convicte d for his role in the RICO conspiracy and not for any predicate RICO offenses. The government also does not dispute t h at remand for re-sentencing is appropriate in Mona’s case. Accordingly, we vacate Mona’s sentence and remand Mona ’ s c a s e for resentencing. 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, thu s c o n t r avening the Supreme Court’s decision in United States v. Booker

. Where, as here, the appellant did not obje c t t o t h e district court’s

1 5 alleged fa i lure to consider the § 3553 factors, we review the district court’s

543 U .S

. 220 (200 5). 1 5 19 Case: 09-50323 Document: 00511836403 Page: 19 Date Filed: 04/26/2012No. 09-50323

decision for plain e r r o r . 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 no t e x p l i c i tly address the § 3553 factors when sentencing the appellants. On two occasions, 1 6 t h e court stated that “if I didn’t have the guidelines, as really they’re advisor y only, the sentence would still be life on the proper count s .” The district court also stated that it was imposing the sentences based on its acce p t a n ce of the information in the pre-sentence report. The district court the n sentenced C a rdoza and Alvarez to life imprisonment, which fell within the appro p r i a t e Guidelines range. Assuming arguendo , that th e 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 c o n f i d ence in the

o u t c ome.” Id. (citations and internal quotation marks omitted). Here, the appellants merely highlight the court’s failure to explicitl y 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.”). Accordingl y , we

With regar d to Per ea, f or ins tanc e, the dis tri ct cour t st atedt hat “if you’ re thehead 1 6
or par tic ipat e in an organizat ion thatregularl y threat ens vio lenc e, regula rly dea ls in dr ugs, regula rly laund ers mo ney, regula rly com mit s mur der , t h e n it’ s for es eeabl e that any one of thes e act s that tak es plac e wi th that organi zatio n is acc ount able to them .” The cour t im pli ed that this conc lus ion sup por ted Card oza’s and Alvarez’ s se nten ces , as, lik e Pere a, both Card oza and Alvarez heldle ade rs hip pos itio ns in the BA. 20 Case: 09-50323 Document: 00511836403 Page: 20 Date Filed: 04/26/2012No. 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 c o u r t ’ s juror anonymity and

o t h e r security measures created an atmosphere of guilt that prevented the m from receiving a fair trial. This contention is meritless as the district court did not abuse its discretion in implementing the security measures. We r e vi e w 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 abus e i t s di s c r etion 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. 19 95)). We condone t h e u s e of anonymous juries only “when needed to ensure against a serious threat to juror safety, if the courts also protect the defendants’ i n t e r e s t in conducting effective voir dire and maintaining the presumption of innocence.” Sanchez , 74 F.3d at 564 (inte r n a l q u otation marks omitted). The following factors may justify a district court’s decision to empanel an anonymous jury: (1) the defendants’ involvement in org a n i z e d 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 convi c t e d, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and (5) extensive publicity that could enhance the possibility that jurors’ names woul d b e c o m e public and expose them to intimidation and harassment. Krout , 66 F.3d at 1427.

21 Case: 09-50323 Document: 00511836403 Page: 21 Date Filed: 04/26/2012No. 09-50323

On October 8, 2008, the district court issued a sua sponte order directing that the selected jury remain anonymous a n d that the U.S. Marshals Service provide secure off-s i te parking and transportation to-and-from the courthouse for the ju r y members. The court explained that it was implementing these

measures “[b]ecause of the nature of the case, as w e l l a s t h e 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) ( d i s t rict court’s post-trial memorandum o pinion 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 suf f i c i e n t amount of information concerning each of the prospe c t ive jurors and were also given the opportunity to question the venire. Likewise, during its voir dire, the district court carefully queried

1 7 the venire to ensure that no prospective jurors w o u l d be influenced by the anonymity and security measures. We h o ld that the district court did not abuse its discretion in implementin g the juror anonymity and safety measures.

The venire ques tio nnair e cont ained genera l biogra phic al info rm atio n, inclu ding age, 1 7 et h n i c back ground , mar ital st atus , cit y of res ide nce, length of res ide nce, hom e ow ners hip, Englis h pr ofi cien cy, fam ily m a k e - u p , cri mi nal his tor y, occ upat ion, and othe r use ful info rm atio n. 22 Case: 09-50323 Document: 00511836403 Page: 22 Date Filed: 04/26/2012No. 09-50323 E. Cardoza and Perea challenge the district court’s denial of their motions for

a new trial b a s e d u pon the government’s alleged suppression of evidence in violation of the Supreme Court’s decision in Brady v. Maryland

. Specifically, 1 8 Cardoza and Perea argue that certain pieces of information contained in the presentence report wer e w i t h h eld during discovery. We disagree with the appellants because there is nothing in the record indicating that the government suppressed any evidence. 1 9 In Brady , the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused u p o n r e quest violates due process where the evidence is material either t o gu i l t or punishment.” Brady , 373 U.S. at 87. A defendant seeking a new trial b a s ed on a Brady violation must prove that: “(1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed e vidence was material to either guilt or punishment.” United States v. Runyan , 290 F.3d 223, 245 (5th Cir. 200 2). The district court d e t e r min e d th at Cardoza and Perea failed to provide any evidence indicating that t h e 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

373 U .S

. 83 ( 1963)

. 1 8
“Whi le the st andar d of revie w f o r a mo tio n for a new tri al is typi call y abus e of 1 9 dis cre tio n, if the reas on for the mo tio n is an allege d Brad y violat ion then we revie w the dis tri ct cour t’s det erm inati on de nov o .” Uni ted States v. Ma rtin , 431 F.3d 846, 850 (5 t h C i r . 2 0 0 5). Ho we ver, “[ w] e have caut ioned that , as we revie w Brad y clai ms ‘at an inher ent dis advant age’ bec a u se of the cold rec ord , we mus t acc ord due def ere nce to the tri al cour t’s rulin g on the allege d Brad

y err or. ” Uni ted States v. Mi ller , 520 F.3d 504, 514 (5t h Cir. 2008) (c itin g Uni ted States v. Si

pe , 388 F.3d471 , 479 (5t h Cir

. 2004) ). 23 Case: 09-50323 Document: 00511836403 Page: 23 Date Filed: 04/26/2012No. 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 (Exh ibit 354) on the theory that the admission of those documents violated his right to confront witnesses under the Sixth Amendment’s Confrontation Clause. Specifically, Alvarez objects to 2 0 the court’s admission of Exhibit 353 without first allowing him the opportunity to cross-examine the custodian o f Alvarez’s prison records. Alvarez objects to Exhibit 354 because it summ ari z e d th e all e ge dly inadmissible information found in Exhibit 353. We hold that Alvarez’s claim under the Confrontation Clause is without merit. 2 1 The Sixth Amendment guarantees a criminal def e n d ant the right “to be confronte d w i t h t h e witnesses against him.” U.S. C O N S T

. amend. VI. In Crawford , the Supreme Court held that the C o nfrontation 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 t h e 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

Alvar ez d oes no t othe rw isec hallen ge t he adm iss ibili ty of Exhibits 353 and354

. 2 0
We revie w an allege d violat ion of a def enda nt’ s right s u n der the Confr onta tio n Claus e 2 1 de nov o , subject to harmle ss err or analysis

. Uni ted States v. Mo rgan , 505 F.3d 332, 338 (5t h Cir. 200 7). 24 Case: 09-50323 Document: 00511836403 Page: 24 Date Filed: 04/26/2012No. 09-50323

statements triggering the Confronta t i o n Clause.” United States v. MartinezRios , 595 F.3d 581, 586 (5th Cir. 201 0) (per curiam). Alvarez’s bank records were kept in the ordinary course of business; they

were not specifically prepared for use at trial. Thus, unde r Cra wford 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 prepare d specifically for trial by Special Agent Mikeska for the purpose of simplifying the information found in Exhibit 353. There is no Conf r o ntation Clause issue regarding Exhibit 354, h o w e ver, because: (1) it contained only a summary of admissible informati o n 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 admitt i ng Exhibits 353 and 354. G. P e r e a argues that the district court abused its discretion in denying his motion for an evidentiary hearing durin g t he trial’s sentencing phase. Perea argues that the 97-page pre-sentence report “attempted to hold Pe r ea 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 Pe r e a , a hearing was necessary “so that the government could establish a nexus between t h e a lleged crimes and Perea before he could be held accountable for suc h

. ” We review the denial of an evidentiary hearing for ab u s e 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 , 2 2 6 F .3d 150, 151 (2d Cir. 2000) (per curiam) (“The

25 Case: 09-50323 Document: 00511836403 Page: 25 Date Filed: 04/26/2012No. 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 resolvin g 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 co nvi c t ed defendant’s due process rights, then the failure to hold a hearing” constitutes an abuse of discretion. Id. We conclude that the district c o u r t did not abuse its discretion in declining to hold an evident i a r y 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 inf o r m atio n c o ntained in the pre-sentence report, and 2 2 he concedes before us that “the trial court had more than sufficient evidence, based upon the 4000 pages of t e s t i m o ny,” to adequately rule without any additional evidence from Perea. This conces s i o n undermines Perea’s claim as it demonstrates that a full blown evidentiary hearing would hav e been a pointless exercise in this case. Accordingly, the distri c t c o urt 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.

Du ring the j o int se nten cing hear ing for the six app ellant s, the cour t indi cat ed its 2 2
aw aren es s of the content s of the pre- se nten ce repor t and its fam iliar ity wi th the def enda nts ’ objec tio ns to that rep ort

. It als o ente rta ined , but overruled , mo st of Perea’s objec tio ns to the rep ort , find ing that Pere a, as a pr oven ca po , sho uld be held acc ount able for all the for es eeabl e act s thatoc cur redw hile he wa s lead ing t he BA’s cr im inal con sp irac y. How ever, the dis tri ct cour t did sus tain Pere a’s objec tio n to the pr e-s ente nce rep ort ’s st atem ent that Pere a wa s “th e mo stf eare d me mbe r of the BA” and had the st atem ent rem ovedf rom t he rep ort

. 26 Case: 09-50323 Document: 00511836403 Page: 26 Date Filed: 04/26/2012No. 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 ma r k s o mitted). We consider whether the district court’s findings were clearly erroneous, remaining mindful that such findings “are n o t clearly erroneous if they are plausible in light of the record reviewed i n i t s e n t i rety.” Id. Furthermore, a district court may adopt the facts in a pre-se n t e n c e 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 in d i c a t ion that the information contained in the pre-sentence report was implausible in light of the record reviewed in it s 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 cour t erred in denying his motion to suppress statements made to t h e E l Paso Police Department when he was brought to the department for questioning in the year preceding his indictment. E n r i q u ez argues that his statements to police were non-consensual and involuntarily obtained. When reviewi ng 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: 27 Date Filed: 04/26/2012No. 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, 200 8 , the district court issued a detailed opinion regarding Enriquez’s motion t o suppress. See United States v. Enriquez , 2008 WL 4600557 (W.D. Tex. Sept

. 3 0 , 2008). Upon thorough review of the district court’s underlying factual and l e g a l 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. We disagree. 2 3 2 4 “As a general rule, persons indicted together s h o u l d be tried together, particularly when the o f f e n s e i s conspiracy.” United States v. Simmons , 374 F.3d 313, 317 (5th Cir. 2004) (per curiam) (c i t i n g U n ited States v. Pofahl , 990 F.2d 1456, 1483 (5th Cir. 1993)). “In r u l i n g o n 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

Rule 14 pr ovide s: “If the joind er of off ens es or def

enda nts in an indi ctm ent, an 2 3 info rm atio n, ora conso lid atio n for tri al app ears to prejudi ce a def enda nt or thegovernm ent, the cour t may ord er se par ate tri als of count s, se ver the def enda nts ’ tri als , or pr ovide any othe r reli ef thatjus tic e r equir es .” Fed. R. Cr im

. P. 14(a).

“A dis tri ct cour t’s rulin g on a mo tion to se ver wi ll not be dis turbed abs ent a sho wi ng 2 4 that the dis tri ct c o u r t ab u s e d its dis cre tio n.” Uni ted States v. Kane , 887 F.2d 568, 571 (5t h Cir. 198 9). 28 Case: 09-50323 Document: 00511836403 Page: 28 Date Filed: 04/26/2012No. 09-50323

error, even where i n itial 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. (quotingUnited States v. Mann , 161 F.3d 840, 863 (5th Cir. 199 8)). We conclude that Enriquez has not demonstrated that clear, specific, and

c ompelling prejudice resulted at trial from the district court’s denial o f h i s

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 membe r s . The district court, for example, granted Enriquez’s motion for judgment of acquittal

on the charge of narcotic s t r afficking in violation of 21 U.S.C. §§ 841(a)(1) and 846. Likewise, the jury acquitted Enriquez on the charge of murder in a i d o f 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 tha t c o u n t

. Accordingly, we hold that the district court did not abuse its di s c r e t ion in denying Enriquez’s motion for severance. See Kane , 887 F.3d at 571 ( “In order to prevail on appeal, the ap p e l l a n t m u s t show more than that a separate trial offered a better chance of acquittal.”) (emphasis added). K. Herrera contends that the dis t rict court erred in admitting

una u thenticated handwritten BA letters and transcripts of recorded BA conversati o n s . H e r rera 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 i m p ro p er foundation and over objection.” We conclude that Herrera has failed to adequately brief this

29 Case: 09-50323 Document: 00511836403 Page: 29 Date Filed: 04/26/2012No. 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 t h e foregoing reasons, save for Mona’s sentence, which we VACATE and REMAND for re-senten c i n g , t he judgment of the district court is AFFIRMED.

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