IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Influenced and Corrupt Organizations Act (RICO) (prohibiting

racketeering activity), § 1951(a) of the Hobbs Act (prohibiting extortion), 18

United States Court of Appeals

Fifth Circuit

F I L E D

April 26, 2012

Lyle W. Cayce

Clerk

 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.

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U.S.C. §1956(h) (prohibiting money laundering), and 21 U.S.C. §§ 841(a) and 846

(prohibiting drug trafficking). Except for Mona’s sentence, which we VACATE

and REMAND for re-sentencing, the judgment of the district court is

AFFIRMED. 

I.

The six appellants were all associated, in varying degrees, with the Barrio

Azteca (BA) criminal enterprise. The BA is a prison gang that was founded in 1

1985 by inmates originally from El Paso, Texas, who were incarcerated in the

Texas Department of Corrections (TDC) prison system. At the time of the

appellants’ trial in 2008, the BA’s criminal operations and influence had grown

to encompass various TDC and federal Bureau of Prisons (BOP) facilities,

certain West Texas cities, and the city of Juarez, Mexico. 

The BA’s primary criminal activity involved the extortion of payments

(known as “cuotas”) from narcotics traffickers (known as “tiendas”) who sold

illegal drugs in BA territory. The BA ensured that the tiendas would pay the

requisite cuotas through the threat and, if necessary, use, of violence, including

murder. Once collected from the tiendas, cuotas would be converted into money

orders so that they could be funneled into the prison commissary accounts of

incarcerated BA leaders and senior members. 

In addition to collecting cuotas, the BA also acted as a facilitator and

enforcer of the illegal narcotics trade by: (1) serving as a source for tiendas to

obtain additional supplies of narcotics; (2) collecting delinquent payments owed

to tiendas; (3) restraining others from selling drugs in competition with the BA’s

cuota-paying tiendas; (4) engaging in sales of narcotics; (5) importing and

transporting drugs for the La Linea drug cartel, which operates in Juarez,

We review the evidence in the light most favorable to the verdict. United States v. 1

Salazar, 542 F.3d 139, 143 (5th Cir. 2008). 

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Mexico; and (6) committing assaults and other violent crimes on behalf of the La

Linea cartel. 

The BA was organized in a hierarchical, paramilitary manner. The most

senior BA position was captain (“capo”), then lieutenant, sergeant, soldier

(“soldado”), and, finally, prospective member (“esquina”). The capos, most of

whom were incarcerated, ran the organization by directing orders, often through

direct communication or coded letters known as “whilas” or “estucas,” to

lieutenants and sergeants, who would then carry out the capos’ instructions or

delegate the tasks to more junior members. 

The appellants have all been convicted of illegal acts that occurred in

association with the BA criminal enterprise between 2003 and 2008. 

Specifically, Manuel Cardoza, Benjamin Alvarez, and Carlos Perea, who were all

capos, each received multiple life sentences for violating 18 U.S.C. §§ 1956(h),

1962(c), and 1962(d), and 21 U.S.C. §§ 841(a) and 846. Eugene Mona, who was

a lieutenant, received a life sentence for violating 18 U.S.C. § 1962(d). Said

Francisco Herrera, who was a sergeant, received multiple life sentences for

violating 18 U.S.C. §§ 1951, 1962(c), and 1962(d), and 21 U.S.C. §§ 841(a) and

846. Arturo Enriquez, who was either a soldado or an esquina, received 180

months’ imprisonment for violating 18 U.S.C. § 1951. 

II.

Collectively, the appellants raise fifteen issues on appeal. Cardoza,

Alvarez, Mona, Herrera, and Enriquez challenge the sufficiency of the evidence

underlying their respective convictions. Cardoza, Mona, and Herrera contend

that the district court sentenced them to life imprisonment in violation of the

Supreme Court’s decision in Apprendi v. New Jersey. Cardoza and Alvarez

2

argue that the district court’s sentencing procedures ran afoul of the Supreme

 530 U.S. 466 (2000). 

2

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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 measures imposed by the district court. 

Cardoza and Perea maintain that the district court erred in denying their motion

for a new trial based on the government’s alleged suppression of evidence in

contravention of Brady v. Maryland. Alvarez argues that the district court’s 4

admission of Government’s Exhibits 353 and 354 violated the Sixth

Amendment’s Confrontation Clause. Perea contends that the district court erred

in denying his motion for an evidentiary sentencing hearing. Herrera and

Enriquez appeal the district court’s alleged reliance on improper information

contained in the pre-sentence report. Enriquez maintains that the district court

erred in denying Enriquez’s motion to suppress and motion for severance. 

Finally, Herrera claims that the district court erred in admitting various

unspecified exhibits into evidence because such exhibits lacked the proper

foundation. 

A.

Cardoza, Alvarez, Mona, Herrera, and Enriquez appeal the sufficiency of

the evidence underlying their respective convictions. Where, as in this case, the

appellant moved for judgment of acquittal before the district court, we review

the sufficiency of the evidence to support a conviction by considering whether

any “rational jury could have found the essential elements of the offenses beyond

a reasonable doubt.” United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006). 

This review is “highly deferential to the verdict.” United States v.

Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (quoting United States v.

Harris, 293 F.3d 863, 869 (5th Cir. 2002)). “It is not necessary that the evidence

 543 U.S. 220 (2005). 

3

 373 U.S. 83 (1963). 

4

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exclude every rational hypothesis of innocence or be wholly inconsistent with

every conclusion except guilt, provided a reasonable trier of fact could find the

evidence establishes guilt beyond a reasonable doubt.” Valdez, 453 F.3d at 256

(quoting United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992)). 

We, therefore, do not consider whether the jury’s verdict was correct, but instead

focus upon the verdict’s reasonableness. Moreno-Gonzalez, 662 F.3d at 372

(citing United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)). Finally, in

conducting this inquiry, we view the evidence and the inferences that may be

drawn from it in the light most favorable to the verdict, and resolve all conflicts

in the evidence in favor of the verdict. Id. 

1.

Cardoza and Alvarez challenge the sufficiency of the evidence underlying

their convictions for violating 18 U.S.C. § 1956(h), which prohibits, among other

things, participation in a conspiracy to engage in money laundering in violation

of 18 U.S.C. § 1956(a). In order to prove a conspiracy under § 1956(a), the

government must show that the defendant knew of the money laundering

scheme, voluntarily joined it, and possessed the requisite intent to commit the

underlying § 1956(a) offense. United States v. Ismoila, 100 F.3d 380, 387 (5th

Cir. 1996). Cardoza and Alvarez argue that the evidence was insufficient to

show that they knew the money they admittedly received into their prison

commissary accounts constituted the proceeds of unlawful activity. We disagree.

Through the testimony of multiple law enforcement and BA witnesses, the

government established Cardoza’s and Alvarez’s positions as two of the leaders

of a criminal enterprise designed to funnel extorted cuotas into the prison

commissary accounts of high ranking BA members. This system involved two

basic stages. First, the non-incarcerated BA members would extort weekly

cuotas from narcotics traffickers operating in the BA’s territory. Once collected,

they would then transfer the cuota funds to the prison commissary accounts of

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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 distribution

of cuota funds into the commissary accounts of other BA members and also

personally received cuota money into his own commissary account. Cardoza

transmitted directions regarding cuota deposits through heavily-coded messages,

which were introduced by the government at trial. The government also

introduced conversations between Cardoza and Mona, who served as Cardoza’s

“bridge” to the outside world, wherein Cardoza ordered that a certain BA

member should no longer receive a share of the cuota collections due to the

member’s upcoming release from prison. Furthermore, a former BA member,

Gerardo Hernandez, testified that Cardoza ordered him, upon his release from

prison in 2003, to investigate the cause of a decrease in cuota transfers to

commissary accounts. Cardoza later wrote a letter ordering the BA to put David

Merez “on ice” because Merez was responsible for this cuota shortfall. 

Similarly, in Alvarez’s case, Gustavo Gallardo—a former BA member who

testified extensively about the structure of the BA and his involvement in

collecting cuotas—stated that he previously sent cuota money to Alvarez’s

commissary account. Gallardo’s transfer of the funds was not a random act of

benevolence; Gallardo specifically sent the money to Alvarez because Alvarez

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

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

Gallardo also testified that he and his fellow BA members were concerned when 5

David Merez was failing to forward cuotas to the BA leadership in prison, demonstrating his

understanding that portions of the cuotas were to be sent to capos like Alvarez.

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eventually obtained the funds that he was ordered to send to Alvarez. Officer

Sanchez similarly testified about a letter, which was admitted into evidence,

that Alvarez sent to his “bridge” informing her how to properly send money

orders to prisoners.

Given this evidence, we hold that a rational jury could have found beyond

a reasonable doubtthat Cardoza and Alvarez knowingly and voluntarily engaged

in a conspiracy to funnel cuota payments, and also knowingly received cuota

funds into their commissary accounts. 

2.

Cardoza, Alvarez, and Herrera challenge the sufficiency of the evidence

underlying their convictions of conspiracy to traffic in narcotics under 21 U.S.C.

§§ 841(a) and 846. To convict a defendant of conspiring to traffic in narcotics, 6

the “government must prove: 1) the existence of an agreement between two or

more persons to violate federal narcotics laws; 2) the defendant’s knowledge of

the agreement; and 3) the defendant’s voluntary participation in the agreement.” 

United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996) (citing United States

v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991)). These elements “may be inferred

from the development and collocation of circumstances.” Id. (citations and

internal quotation marks omitted). However, a defendant’s “[m]ere presence at

the scene of the crime or close association with co-conspirators will not alone

support an inference of conspiracy but are factors that the jury may consider in

finding conspiratorial activity.” Id. (citing Gallo, 927 F.2d at 820). 

Section 841(a)(1) states that “it shall be unlawful for any person knowingly or 6

intentionally . . . to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Section

846 states that “[a]ny person who attempts or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those prescribed for the offense, the

commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. 

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Cardoza and Alvarez argue that there was no evidence indicating that

they were aware of or participated in the BA’s drug trafficking activity. They

contend that the drug trafficking activities of other BA members were unilateral

endeavors by individual members, which lacked any connection to the BA

criminal enterprise. Cardoza supports this contention by pointing out that he

was incarcerated throughout the drug trafficking conspiracy. Cardoza and

Alvarez also point out that the record is devoid of evidence directly connecting

the incarcerated capos to the drug trafficking activities of free BA members. 

We nevertheless hold that a rational jury could have reasonably

inferred—based on the BA’s structure and objectives, and the evidence linking

the two appellants to the BA—that Cardoza and Alvarez were aware of and

encouraged the BA’s narcotics trafficking. For instance, the record indicates

that the free BA members who collected and sent the cuotas were generally not

permitted to keep any portion of the cuota collections for themselves. Instead,

all of the cuotas were generally funneled to the incarcerated BA leadership. This

raises the question of how the free rank-and-file BA members (as well as some

free members of the BA leadership) earned any money. The evidence indicated

that they did so, at least in part, through narcotics trafficking. Furthermore,

there was evidence showing that, unlike tiendas, BA members who sold drugs

were not required to pay any cuotas to the BA leadership. BA members could

keep the proceeds of their drug sales for themselves. Given the existence of this

cuota exemption, which incentivized free BA’s to deal in narcotics, and the

practical need for free BA members to earn money, it could be inferred that

Cardoza and Alvarez had knowledge of, encouraged, and thus participated in,

a narcotics trafficking conspiracy that was essential to the survival of the BA’s

overall cuota laundering scheme. 

Moreover, the evidence indicated that BA members would supply tiendas

with drugs if they lacked a sufficient supply. Thus, the BA would support the

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businesses of drug dealers, who would then regularly pay cuotas to the BA,

which would then be funneled to Cardoza, Alvarez, and other BA leaders. Given

this arrangement, the jury could have reasonably inferred that Cardoza and

Alvarez, who benefitted from BA drug sales to tiendas, participated in a

conspiracy to traffic narcotics. 

With regard to Herrera, his brief indicates that he challenges the

sufficiency of the evidence underlying all of his convictions; however, the brief

fails to actually discuss Herrera’s conviction pursuant §§ 841(a)(1) and 846. We

therefore hold that, to the extent Herrera intended to appeal this conviction, his

claim is waived as inadequately briefed. See Fed. R. App. P. 28(a)(9)(A); United

States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001) (“Generally speaking, a

defendant waives an issue if he fails to adequately brief it.”). 

Nonetheless, because it bears upon Herrera’s substantive RICO conviction,

discussed infra, we briefly note our conclusion that the evidence sufficiently

supported Herrera’s conviction under §§ 841(a)(1) and 846. The jury heard

testimony from at least two BA members who discussed Herrera’s drug

trafficking activities. For instance, Jose Martin Garcia testified that Herrera

owned his own tienda, known as Jaguars, where BA members would sell

cocaine. 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, including Jaguars. Thus, the evidence sufficently

demonstrated that Herrera engaged in narcotics trafficking in association with

the BA.

We hold that the evidence was sufficient for a rational jury to conclude

beyond a reasonable doubt that Cardoza, Alvarez, and Herrera conspired to

traffic in narcotics in violation of 21 U.S.C. §§ 841(a) and 846.

 Garcia also testified that he assisted Herrera in collecting cuotas. 

7

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3.

Herrera and Enriquez challenge the sufficiency of the evidence supporting

their convictions of conspiracy to commit extortion under the Hobbs Act, 18

U.S.C. § 1951(a). 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 transaction

delayed, interrupted, or adversely affected interstate commerce. United States

v. Mann, 493 F.3d 484, 494 (5th Cir. 2007); United States v. Snyder, 930 F.2d

1090, 1093 (5th Cir. 1991). To establish a conspiracy under the Hobbs Act, the

government must prove “an agreement between two or more persons to commit

a crime, and an overt act by one of the conspirators to further the conspiracy.” 

United States v. Box, 50 F.3d 345, 349 (5th Cir. 1995) (quoting United States v.

Stephens, 964 F.2d 424, 427 (5th Cir. 1992)). However, “[p]roof of a conspiracy

does not require direct evidence of an actual agreement between the coconspirators, but may be inferred from circumstantial evidence.” United States

v. Wright, 797 F.2d 245, 253 (5th Cir. 1986) (citing United States v. Reed, 715

F.2d 870, 874 (5th Cir. 1983)). 

The government presented evidence indicating that Herrera was a BA

member who would assist the BA with opening tiendas and collecting cuotas. 

Herrera eventually obtained the rank of BA sergeant and was placed in charge

of cuota collections for the east side of El Paso. The jury also heard evidence

Section 1951(a) provides: “Whoever in any way or degree obstructs, delays, or affects

8

commerce or the movement of any article or commodity in commerce, by robbery or extortion

or attempts or conspires so to do, or commits or threatens physical violence to any person or

property in furtherance of a plan or purpose to do anything in violation of this section shall be

fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a).

Section 1951(b)(2) defines extortion as the “obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color

of official right.” 18 U.S.C. § 1951(b)(2). 

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that Herrera was involved in multiple assaults, including at least one assault on

a drug dealer who had not been paying cuotas. 

With regard to Enriquez, the evidence showed that he admitted to El Paso

detectives that he collected cuotas for the BA. BA member Eric Saucedo also

testified about an instance where Enriquez accompanied Saucedo and another

BA member, Serio Munoz, on a visit to threaten a drug dealer named Jose Luis

Oviedo for failing to pay cuotas. Enriquez acted as a “look-out” on this visit,

which ended when Munoz shot and killed Oviedo. Detective Yvette Nevarez also

testified that Enriquez, while being interviewed for a second time by police,

stated that he went to Oviedo’s home to collect cuotas. 

Based on the foregoing evidence, the jury could have determined that

Herrera and Enriquez were knowing and willful conspirators in an enterprise

designed to extort cuotas from drug traffickers in contravention of the Hobbs

Act. The only remaining question, therefore, is whether the BA’s extortion of

cuotas affected interstate commerce. 

Our caselaw provides that illegal activity need only “slightly” affect

interstate commerce to fall under the purview of the Hobbs Act, and that this

inquiry is made on a “case-by-case basis.” Box, 50 F.3d at 351. Similarly, in

Mann, we stated that our prior decision in “Box demonstrates that a generalized

connection between the alleged criminal activity and interstate commerce is

sufficient to sustain a conviction of conspiracy to violate the Hobbs Act.” Mann,

493 F.3d at 495. Furthermore, with regard to Hobbs Act cases involving drug

trafficking, we have held that “interfering with or facilitating narcotics

trafficking [is] sufficient to create an effect on interstate commerce, since drugs

are traded on an interstate market.” United States v. Villafranca, 260 F.3d 374,

378 (5th Cir. 2001) (citing Box, 50 F.3d at 353). 

In this case, the evidence indicated that Herrera and Enriquez interfered

with the drug trade by participating in the BA’s conspiracy to extort cuotas from

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

activity—which also involved coordination between free BA members and

prisoners incarcerated in different states, and between individuals on both sides

of the United States–Mexico border—a rational jury could have found that the

BA’s extortion conspiracy affected interstate commerce.

We hold that the evidence was sufficient for a rational jury to conclude

beyond a reasonable doubt that Herrera and Enriquez engaged in a conspiracy

to commit extortion in violation of the Hobbs Act. 

4.

Cardoza, Alvarez, and Herrera appeal the sufficiency of the evidence

underlying their convictions for violating 18 U.S.C. § 1962(c), which prohibits

engaging in the affairs of an enterprise through a “pattern of racketeering

activity.” To establish a § 1962(c) violation, the “government must prove (1) the 9

existence of an enterprise that affects interstate or foreign commerce, (2) that

the defendant was employed by or associated with the enterprise, (3) that the

defendant participated in the conduct of the enterprise’s affairs, and (4) that the

participation was through a pattern of racketeering activity.” United States v.

Delgado, 401 F.3d 290, 297 (5th Cir. 2005) (citations and internal quotation

marks omitted). Cardoza, Alvarez, and Herrera only dispute the last two

elements of their respective § 1962(c) convictions, arguing that the evidence was

insufficient to demonstrate that: (1) they “participated” in the BA; and (2) their

alleged participation was through a “pattern of racketeering activity.” 

In order to satisfy § 1962(c)’s third element, the “defendant must have

participated in the operation or management of the enterprise itself.” Id. (citing

Section 1962(c) states that “[i]t shall be unlawful for any person employed by or 9

associated with any enterprise engaged in, or the activities of which affect, interstate or

foreign commerce, directly or indirectly, in the conduct of such enterprise’s affairs through a

pattern of racketeering activity or the collection of unlawful debt.” 18 U.S.C. § 1962(c). 

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Reves v. Ernst & Young, 507 U.S. 170, 185 (1993)). However, “[a]n enterprise is

‘operated’ not just by upper management but also by lower rung participants in

the enterprise who are under the direction of upper management.” Id. (quoting

Reves, 507 U.S. at 184)). We can easily conclude that the government presented

ample evidence, some of which is discussed supra, that Cardoza and Alvarez, as

BA capos, and Herrera, as a BA sergeant under the direction of the upper

management (i.e., the capos), participated in the BA, thus satisfying § 1962(c)’s

third element. 

With regard to § 1962(c)’s fourth element, RICO defines a “pattern of

racketeering activity” as requiring “at least two [predicate] acts of racketeering

activity.” 18 U.S.C. § 1961(5). Section 1961(1) sets forth numerous criminal

statutes that can constitute predicate acts of “racketeering activity,” including

18 U.S.C. §§ 1951 and 1956. It also provides that racketeering activity includes

the “buying, selling, or otherwise dealing in a controlled substance or listed

chemical (as defined in section 102 of the Controlled Substances Act), punishable

under any law of the United States.” 18 U.S.C. § 1961(1)(D). Thus, racketeering

activity includes conduct proscribed by 21 U.S.C. §§ 841(a)(1) and 846. This

court has also explained that in order to “show the existence of a pattern of

racketeering activity, the government must establish (1) that the racketeering

acts are related and (2) that they amount to or pose a threat of continued

criminal activity.” Delgado, 401 F.3d at 298 (citing H.J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229, 239 (1989)). 

Section 1962(c)’s fourth element was sufficiently established in all three

appellants’ cases. At trial, Cardoza and Alvarez were both convicted of

conspiring to launder cuotas to prison commissary accounts in violation of 18

U.S.C. § 1956(h). Cardoza, Alvarez, and Herrera were all convicted of conspiring

with the BA to traffic narcotics in violation of §§ 841(a)(1) and 846. And Herrera

was convicted of conspiring to commit extortion in contravention of the Hobbs

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Act, 18 U.S.C. § 1951. Thus, all three appellants committed two predicate

racketeering acts. All of these predicate racketeering acts were also related as

they were committed in furtherance of the BA’s business. See id. (providing that

RICO’s “related acts” prong is satisfied when the acts were committed in

furtherance of the criminal enterprise’s business).

Furthermore, the government sufficiently demonstrated that the

appellants’ racketeering acts posed a threat of continued criminal activity. In

Delgado, we held that a criminal enterprise’s regular collection of “the dime”

from drug dealers “evidenced a ‘specific threat of repetition extending

indefinitely into the future.’” Id. (quoting Nw. Bell, 492 U.S. at 242). Similar 10

to “the dime” in Delgado, the BA regularly collected cuotas from drug dealers

operating in the BA’s territory and, absent RICO prosecution, would likely have

continued to do so into the future. Thus, based on Delgado, the continuity

requirement is met in this case. 

We hold that the evidence was sufficient for a rational jury to conclude

beyond a reasonable doubt that Cardoza, Alvarez, and Herrera engaged in the

affairs of an enterprise through a pattern of racketeering activity in violation of

§ 1962(c) of RICO. 

5.

Cardoza, Alvarez, Herrera, and Mona appeal the sufficiency of the

evidence underlying their convictions for violating 18 U.S.C. § 1962(d), which

prohibits, among other things, conspiring to engage in the affairs of an

enterprise through a pattern of racketeering activity.11

As stated in Delgado, “[i]n exchange for membership, TMM members send 10% of 10

their illegal proceeds (‘the dime’) to TMM headquarters. Members must also collect ‘the dime’

from non-member drug dealers and remit that money to TMM headquarters.” Delgado, 401

F.3d at 293.

Section 1962(d) states that “[i]t shall be unlawful for any person to conspire to 11

violate any of the provisions of subsection (a), (b), or (c).” 18 U.S.C. § 1962(d). 

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

or more people agreed to commit a substantive RICO offense and (2) that the

defendant knew of and agreed to the overall objective of the RICO offense.” Id.

at 296 (quoting United States v. Posada-Rios, 158 F.3d 832, 857–58 (5th Cir.

1998)). The government may establish these elements with circumstantial

evidence. Id. Critically, unlike a § 1962(c) conviction, which requires a showing

of two predicate acts constituting a “pattern of racketeering activity,” a § 1962(d)

conspirator “need not have committed or agreed to commit the two predicate

acts.” Id. (citing Salinas v. United States, 522 U.S. 52, 61–66 (1997)). Instead,

the conspirator “need only have known of and agreed to the overall objective of

the RICO offense.” Id. 

Based on our discussion in the preceding subsections, we hold that there

was sufficient evidence for a rational jury to determine beyond a reasonable

doubt that Cardoza, Alvarez, and Herrera knowingly agreed to engage in the

BA’s criminal enterprise in violation of § 1962(d) of RICO. Therefore, we must

only discuss Mona’s remaining claim. 

Mona’s challenge is unique because, unlike the other three appellants, he

did not commit any predicate RICO offenses. Mona was only convicted of

conspiring to engage in a pattern of racketeering activity. Nevertheless, Delgado

makes clear that a co-conspirator need not commit a predicate RICO act to

violate § 1962(d): he “need only have known of and agreed to the overall objective

of the RICO offense.” Id. We hold that the evidence sufficiently indicated that

Mona knew of and agreed to further the overall objectives of the BA enterprise.

For instance, the evidence established that Mona was a BA lieutenant who

served as the “bridge” (i.e. the communication link) between capo Cardoza and

other BA members. Mona would communicate with Cardoza through heavilycoded letters, telephone calls, and prison visits, and then Mona would either

forward the communications onward or personally direct Cardoza’s orders to

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No. 09-50323

other BA members. Also, on behalf of capo David Merez, Mona delivered

messages, provided transportation to other BA members, and served as a

conduit for transferring cuota money. This evidence sufficiently demonstrated

that Mona knowingly and intentionally assisted in the perpetuation of the BA’s

extortion and money laundering scheme. Accordingly, the evidence was

sufficient to enable a rational jury to conclude beyond a reasonable doubt that

Mona knew of and agreed to further the objectives of the BA. 

B.

Cardoza, Mona, and Herrera challenge their sentences to life

imprisonment under 18 U.S.C. § 1962(d) because the sentences allegedly

exceeded the statutory maximum authorized by the jury’s verdict in violation of

the Supreme Court’s decision in Apprendi v. New Jersey. Based on the 12

Supreme Court’s decision in United States v. Cotton, we hold that Cardoza’s 13

and Herrera’s claims lack merit. Conversely, as the government does not

dispute that Mona’s sentence contravenes Apprendi, we vacate Mona’s sentence

and remand Mona’s case for re-sentencing. 

When, as here, the appellant failed to raise an objection to his sentence at

the district court level, we apply a plain error standard of review, “which

requires considerable deference to the district court.” United States v. Peltier,

505 F.3d 389, 391 (5th Cir. 2007). Under the plain error standard, the appellant

must demonstrate: “(1) there was error, (2) that was plain, (3) the error affects

substantial rights, and (4) the error seriously affects the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Blocker, 612 F.3d

413, 415–16 (5th Cir. 2010) (per curiam). 

 530 U.S. 466 (2000). 

12

 535 U.S. 625 (2002). 

13

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In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi, 530 U.S. at 490. This paradigm shifts, however,

when a sentence is reviewed on appeal for plain error. Cotton, 535 U.S. at

627–33. In such instances, even if the court failed to instruct the jury to make

specific findings justifying an increase in the maximum sentence imposed upon

a defendant, the sentence will nevertheless be upheld where the evidence

justifying the increased sentence was “overwhelming” and “essentially

uncontroverted.” Id. at 633. 

The Cotton decision is dispositive of Cardoza’s and Herrera’s claims in this

case. In Cotton, the operative indictment charged the defendants with

conspiring to distribute and to possess with intent to distribute a “detectable

amount” of cocaine; however, the indictment did not allege any threshold

quantities of drugs to enable enhanced penalties under 21 U.S.C. § 841(b). Id. 14

at 628. The jury found the defendants guilty of the alleged conspiracy but did

not make any findings regarding the specific amounts of cocaine that the

defendants conspired to possess and distribute. Id. Nevertheless, at sentencing,

the district court increased the statutory maximums of the defendants’ sentences

by finding that their respective offenses involved specific quantities of cocaine,

ranging from 500 grams to 1.5 kilograms of cocaine base. Id. 

Relying on Apprendi, the defendants appealed the district court’s decision

because “the issue of drug quantity was neither alleged in the indictment nor

submitted to the petit jury.” Id. at 628–29. The Fourth Circuit vacated the

 The initial indictment charged the defendants with conspiring to distribute and to 14

possess with intent to distribute five kilograms or more of cocaine and fifty grams or more of

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Cotton, 535 U.S. at 627. A

superseding indictment then charged the defendants with only conspiring to distribute and

to possess with intent to distribute a “detectable amount” of cocaine. Id. at 627–28. 

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defendants’ convictions and the government appealed to the Supreme Court. Id.

at 629. 

Reviewing the district court’s sentence for plain error, the Supreme Court

essentially held that, despite the district court’s Apprendi violation, the

defendants’ convictions should not have been vacated by the Fourth Circuit. Id.

at 632–34. The Court explained that the sentence enhancements survived plain

error review because they were based on “overwhelming” and “essentially

uncontroverted” evidence adduced at trial regarding the amount of cocaine

involved in the conspiracy. Id. at 633. 

In this case, the jury found Cardoza and Herrera guilty of violating 18

U.S.C. § 1962(d), which carries a maximum prison sentence of “not more than

20 years (or for life if the violation is based on a racketeering activity for which

the maximum penalty includes life imprisonment) . . . .” 18 U.S.C. § 1963(a).

Without obtaining specific sentence enhancement findings from the jury, the

district court increased Cardoza’s and Herrera’s sentences for violating § 1962(d)

from 20 years to life. Such an enhancement would have been permissible if it

had been based on Cardoza’s and Herrera’s predicate RICO offenses of

conspiring to traffic in narcotics in violation 21 U.S.C. §§ 841(a)(1) and 846,

which carries a life sentence when sufficient amounts are involved. However,

Cardoza correctly notes that such an enhancement would not have been

permissible if the jury had based his § 1962(d) conviction entirely on his

predicate RICO offense of conspiracy to commit money laundering under 18

U.S.C. § 1956(h). Cardoza and Herrera contend that the district court plainly

erred when it imposed life sentences without receiving specific findings from the

jury regarding the underlying basis for their increased sentences. 

We conclude that the appellants’ theories are without merit because the

jury did return the requisite special findings on Cardoza’s and Herrera’s

§ 1962(c) RICO convictions. The jury specifically found beyond a reasonable

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doubt that Cardoza and Herrera both conspired to possess with intent to

distribute either one kilogram or more of heroin or five kilograms or more of

cocaine. This finding, which established one of the predicate acts for their

§ 1962(c) convictions, also provides “overwhelming” and “essentially

uncontroverted” support for the district court’s life sentence under § 1962(d). See

21 U.S.C. § 841(b) (providing a maximum sentence of life for trafficking in one

kilogram or more of heroin or five kilograms or more of cocaine); see also United

States v. Warneke, 310 F.3d 542, 549 (7th Cir. 2002) (“The maximum penalty

following a RICO conviction depends on the maximum penalty for the most

serious predicate offense.”). The district court simply used the jury’s specific

findings on the § 1962(c) count as the basis for enhancing the convictions for

violating § 1962(d). Thus, we hold that, in light of Cotton, the district court did

not plainly error when sentencing Cardoza and Herrera to life imprisonment for

violating § 1962(d). 

On the other hand, the foregoing discussion does not support affirmance

of Mona’s sentence, as Mona was only convicted for his role in the RICO

conspiracy and not for any predicate RICO offenses. The government also does

not dispute that remand for re-sentencing is appropriate in Mona’s case. 

Accordingly, we vacate Mona’s sentence and remand Mona’s case for 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, thus contravening the Supreme Court’s decision in United States v.

Booker. Where, as here, the appellant did not object to the district court’s 15

alleged failure to consider the § 3553 factors, we review the district court’s

 543 U.S. 220 (2005). 

15

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decision for plain error. United States v. Mondragon-Santiago, 564 F.3d 357,

364 (5th Cir. 2009). 

Although the district court stated that the appellants were sentenced for

their roles in the BA criminal enterprise, the district court did not explicitly

address the § 3553 factors when sentencing the appellants. On two occasions, 16

the court stated that “if I didn’t have the guidelines, as really they’re advisory

only, the sentence would still be life on the proper counts.” The district court

also stated that it was imposing the sentences based on its acceptance of the

information in the pre-sentence report. The district court then sentenced

Cardoza and Alvarez to life imprisonment, which fell within the appropriate

Guidelines range. 

Assuming arguendo, that the district court erred in failing to explicitly

address the § 3553 factors, we conclude that there was no plain error. In order

to prove plain error, the appellants must show that the error “affected the

outcome in the district court: To meet this standard the proponent of the error

must demonstrate a probability sufficient to undermine confidence in the

outcome.” Id. (citations and internal quotation marks omitted). Here, the

appellants merely highlight the court’s failure to explicitly address the § 3553

factors and they offer nothing to indicate that a discussion of the factors would

have affected their within-Guidelines sentences. See also id. at 365

(“Mondragon-Santiago’s sentence is within the Guidelines, and he fails to show

that an explanation would have changed his sentence.”). Accordingly, we

 With regard to Perea, for instance, the district court stated that “if you’re the head 16

or participate in an organization that regularly threatens violence, regularly deals in drugs,

regularly launders money, regularly commits murder, then it’s foreseeable that any one of

these acts that takes place with that organization is accountable to them.” The court implied

thatthis conclusion supported Cardoza’s and Alvarez’s sentences, as, like Perea, both Cardoza

and Alvarez held leadership positions in the BA. 

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conclude that the district court did not plainly err when sentencing Cardoza and

Alvarez. 

D.

Cardoza, Alvarez, and Perea contend that the district court erroneously

denied their motions for a new trial because the court’s juror anonymity and

other security measures created an atmosphere of guilt that prevented them

from receiving a fair trial. This contention is meritless as the district court did

not abuse its discretion in implementing the security measures. 

We review a district court’s decision to empanel an anonymous jury and

implementation of security measures for abuse of discretion. United States v.

Edwards, 303 F.3d 606, 615 (5th Cir. 2002); United States v. Nicholson, 846 F.2d

277, 279 (5th Cir. 1988). “[A] district court does not abuse its discretion to

empanel an anonymous jury if the ‘evidence at trial supports the conclusion that

anonymity was warranted.’” United States v. Sanchez, 74 F.3d 562, 564 (5th Cir.

1996) (quoting United States v. Krout, 66 F.2d 1420, 1427 (5th Cir. 1995)).

We condone the use of anonymous juries only “when needed to ensure

against a serious threat to juror safety, if the courts also protect the defendants’

interest in conducting effective voir dire and maintaining the presumption of

innocence.” Sanchez, 74 F.3d at 564 (internal quotation marks omitted). The

following factors may justify a district court’s decision to empanel an anonymous

jury: (1) the defendants’ involvement in organized crime; (2) the defendants’

participation in a group with the capacity to harm jurors; (3) the defendants’

past attempts to interfere with the judicial process or witnesses; (4) the potential

that, if convicted, the defendants will suffer a lengthy incarceration and

substantial monetary penalties; and (5) extensive publicity that could enhance

the possibility that jurors’ names would become public and expose them to

intimidation and harassment. Krout, 66 F.3d at 1427.

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On October 8, 2008, the district court issued a sua sponte order directing

that the selected jury remain anonymous and that the U.S. Marshals Service

provide secure off-site parking and transportation to-and-from the courthouse

for the jury members. The court explained that it was implementing these

measures “[b]ecause of the nature of the case, as well as the probability of

greater than usual media attention, the Court [had] concern for the safety and

privacy of the jurors before, during, and after the conduct of the trial, as well as

for their continued objectivity.” 

There was significant evidence presented at trial that justified the court’s

decision to implement the anonymity and security measures. In fact, all of the

above factors, save factor 3, clearly support the court’s action. See also United

States v. Perea, 625 F. Supp. 2d 327, 337–38 (W.D. Tex. 2009) (district court’s

post-trial memorandum opinion further explaining its reasoning for

implementing the safety precautions, including its concern for media attention). 

Furthermore, although the appellants’ attorneys did not know the names and

addresses of the jurors, the attorneys were nevertheless able to conduct effective

voir dire as they had access to a sufficient amount of information concerning

each of the prospective jurors and were also given the opportunity to question

the venire. Likewise, during its voir dire, the district court carefully queried 17

the venire to ensure that no prospective jurors would be influenced by the

anonymity and security measures. 

We hold that the district court did not abuse its discretion in implementing

the juror anonymity and safety measures. 

The venire questionnaire contained general biographical information, including age, 17

ethnic background, marital status, city of residence, length of residence, home ownership,

English proficiency, family make-up, criminal history, occupation, and other useful

information. 

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E.

Cardoza and Perea challenge the district court’s denial of their motions for

a new trial based upon the government’s alleged suppression of evidence in

violation of the Supreme Court’s decision in Brady v. Maryland. Specifically, 18

Cardoza and Perea argue that certain pieces of information contained in the presentence report were withheld during discovery. We disagree with the

appellants because there is nothing in the record indicating that the government

suppressed any evidence. 

19

In Brady, the Supreme Court held that “suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or punishment.” Brady, 373 U.S. at 87. A

defendant seeking a new trial based on a Brady violation must prove that:

“(1) evidence was suppressed; (2) the suppressed evidence was favorable to the

defense; and (3) the suppressed evidence was material to either guilt or

punishment.” United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002).

The district court determined that Cardoza and Perea failed to provide any

evidence indicating that the government suppressed evidence. See Perea, 625

F. Supp. 2d at 330–31 (“Undoubtedly, the Government at no time suppressed the

evidence—the 302 reports—that formed the basis of the [pre-sentence report].”). 

Upon our review of the record and the district court’s detailed opinion, we agree

with the district court that the information contained in the pre-sentence report

 373 U.S. 83 (1963).

18

“While the standard of review for a motion for a new trial is typically abuse of 19

discretion, if the reason for the motion is an alleged Brady violation then we review the district

court’s determination de novo.” United States v. Martin, 431 F.3d 846, 850 (5th Cir. 2005).

However, “[w]e have cautioned that, as we review Brady claims ‘at an inherent disadvantage’

because of the cold record, we must accord due deference to the trial court’s ruling on the

alleged Brady error.” United States v. Miller, 520 F.3d 504, 514 (5th Cir. 2008) (citing United

States v. Sipe, 388 F.3d 471, 479 (5th Cir. 2004)). 

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was previously disclosed to the appellants. Accordingly, we hold that Cardoza’s

and Perea’s contentions under Brady are without merit. 

F. 

Alvarez appeals the district court’s admission of his prison bank records

(Exhibit 353) and a summary of those records (Exhibit 354) on the theory that

the admission of those documents violated his right to confront witnesses under

the Sixth Amendment’s Confrontation Clause. Specifically, Alvarez objects to 20

the court’s admission of Exhibit 353 without first allowing him the opportunity

to cross-examine the custodian of Alvarez’s prison records. Alvarez objects to

Exhibit 354 because it summarized the allegedly inadmissible information found

in Exhibit 353. We hold that Alvarez’s claim under the Confrontation Clause is

without merit. 

21

The Sixth Amendment guarantees a criminal defendant the right “to be

confronted with the witnesses against him.” U.S. CONST. amend. VI. In

Crawford, the Supreme Court held that the Confrontation Clause is violated

when the prosecution introduces “testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” Crawford v. Washington, 541

U.S. 36, 53–54 (2007). However, the Court also stated that some statements are

non-testimonial and, therefore, fall outside of the Confrontation Clause’s

protection. Id. at 56. These statements include “business records or statements

in furtherance of a conspiracy.” Id. After Crawford, we held that records kept

in the ordinary course of business are non-testimonial; whereas “those that are

specifically produced for use at trial . . . are ‘testimonial’ and are at the heart of

 Alvarez does not otherwise challenge the admissibility of Exhibits 353 and 354.

20

We review an alleged violation of a defendant’s rights under the Confrontation Clause

21

de novo, subject to harmless error analysis. United States v. Morgan, 505 F.3d 332, 338 (5th

Cir. 2007).

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statements triggering the Confrontation Clause.” United States v. MartinezRios, 595 F.3d 581, 586 (5th Cir. 2010) (per curiam).

Alvarez’s bank records were kept in the ordinary course of business; they

were not specifically prepared for use at trial. Thus, under Crawford and

Martinez-Rios, the bank records were non-testimonial business records that fell

outside of the purview of the Confrontation Clause. 

Exhibit 354, on the other hand, was prepared specifically for trial by

Special Agent Mikeska for the purpose of simplifying the information found in

Exhibit 353. There is no Confrontation Clause issue regarding Exhibit 354,

however, because: (1) it contained only a summary of admissible information

found in Exhibit 353; and (2) Special Agent Mikeska testified extensively at trial

and Alvarez had ample opportunity to address the exhibit on cross-examination. 

Accordingly, we hold that the district court did not err in admitting

Exhibits 353 and 354. 

G.

Perea argues that the district court abused its discretion in denying his

motion for an evidentiary hearing during the trial’s sentencing phase. Perea

argues that the 97-page pre-sentence report “attempted to hold Perea

accountable for the collection of $960,000.00 in cuota (taxes), a large volume of

illicit drugs, and the murders of eight individuals.” According to Perea, a

hearing was necessary “so that the government could establish a nexus between

the alleged crimes and Perea before he could be held accountable for such.” 

We review the denial of an evidentiary hearing for abuse of discretion.

United States v. Henderson, 19 F.3d 917, 927 (5th Cir. 1994). We have held that

a defendant is not automatically entitled to a sentencing hearing that amounts

to a “mini-trial, complete with exhibits, expert witnesses, character witnesses,

and an opportunity to cross examine the government’s witnesses.” Id.; see also

United States v. Maurer, 226 F.3d 150, 151 (2d Cir. 2000) (per curiam) (“The

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district court is not required, by either the Due Process Clause or the federal

Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving

sentencing disputes . . . .”). A “sentencing court must be given deference to

determine whether a hearing is needed on particular sentencing issues.” 

Henderson, 19 F.3d at 927. However, “[w]hen a hearing is necessary to protect

a convicted defendant’s due process rights, then the failure to hold a hearing”

constitutes an abuse of discretion. Id.

We conclude that the district court did not abuse its discretion in

declining to hold an evidentiary hearing because Perea has failed to show the

utility of conducting such a hearing. Perea did not present any evidence to the

district court to rebut the information contained in the pre-sentence report, and 22

he concedes before us that “the trial court had more than sufficient evidence,

based upon the 4000 pages of testimony,” to adequately rule without any

additional evidence from Perea. This concession undermines Perea’s claim as

it demonstrates that a full blown evidentiary hearing would have been a

pointless exercise in this case. 

Accordingly, the district court did not abuse its discretion in denying

Perea’s motion for an evidentiary sentencing hearing. 

H.

Herrera and Enriquez argue that the district court sentenced them while

relying on improper information contained in the pre-sentence report. We

disagree. 

During the joint sentencing hearing for the six appellants, the court indicated its 22

awareness of the contents of the pre-sentence report and its familiarity with the defendants’

objections to that report. It also entertained, but overruled, most of Perea’s objections to the

report, finding that Perea, as a proven capo, should be held accountable for all the foreseeable

acts that occurred while he was leading the BA’s criminal conspiracy. However, the district

court did sustain Perea’s objection to the pre-sentence report’s statement that Perea was “the

most feared member of the BA” and had the statement removed from the report. 

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In making factual findings for sentencing purposes, the district court may

consider any evidence “which bears sufficient indicia of reliability to support its

probable accuracy, including hearsay evidence.” United States v. Solis, 299 F.3d

420, 455 (5th Cir. 2002) (citation and internal quotation marks omitted). We

consider whether the district court’s findings were clearly erroneous, remaining

mindful that such findings “are not clearly erroneous if they are plausible in

light of the record reviewed in its entirety.” Id. Furthermore, a district court

may adopt the facts in a pre-sentence report “without further inquiry if those

facts have an adequate evidentiary basis with sufficient indicia of reliability and

the defendant does not present rebuttal evidence or otherwise demonstrate that

the information” contained in the report is unreliable. Valdez, 453 F.3d at 262

(quoting United States v. Cabrera, 288 F.3d 163, 173–74 (5th Cir. 2002)). 

In this case, there is no indication that the information contained in the

pre-sentence report was implausible in light of the record reviewed in its

entirety. The appellants simply posit that the report’s findings are incorrect but

fail to point to the existence of any evidence in rebuttal to cast doubt upon the

reliability of the pre-sentence report. Accordingly, we conclude that this issue

is without merit.

I.

Enriquez contends that the district court erred in denying his motion to

suppress statements made to the El Paso Police Department when he was

brought to the department for questioning in the year preceding his indictment.

Enriquez argues that his statements to police were non-consensual and

involuntarily obtained. 

When reviewing the denial of a motion to suppress, the district court’s

findings of fact are reviewed for clear error, viewing the evidence in the light

most favorable to the government, and its conclusions of law are reviewed de

novo. United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006). A finding of

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fact “is clearly erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Anderson v. Sch. Bd. of Madison

Cnty., 517 F.3d 292, 296 (5th Cir. 2008) (citation and internal quotation marks

omitted).

On September 30, 2008, the district court issued a detailed opinion

regarding Enriquez’s motion to suppress. See United States v. Enriquez, 2008

WL 4600557 (W.D. Tex. Sept. 30, 2008). Upon thorough review of the district

court’s underlying factual and legal analysis, we conclude that the court’s

findings of fact are not clearly erroneous and that the court applied the correct

legal standards. Accordingly, for the reasons articulated by the district court,

we affirm the denial of Enriquez’s motion to suppress. See id. at *3–4. 

J.

Enriquez argues that the district court abused its discretion in denying his

Rule 14 motion for severance. We disagree. 

23 24

“As a general rule, persons indicted together should be tried together,

particularly when the offense is conspiracy.” United States v. Simmons, 374

F.3d 313, 317 (5th Cir. 2004) (per curiam) (citing United States v. Pofahl, 990

F.2d 1456, 1483 (5th Cir. 1993)). “In ruling on a motion to sever, a trial court

must balance potential prejudice to the defendant against the ‘public interest in

joint trials where the case against each defendant arises from the same general

transaction.’” Id. (quoting Kane, 887 F.2d at 571). “To demonstrate reversible

Rule 14 provides: “If the joinder of offenses or defendants in an indictment, an 23

information, or a consolidation for trial appears to prejudice a defendant or the government,

the court may order separate trials of counts, sever the defendants’ trials, or provide any other

relief that justice requires.” Fed. R. Crim. P. 14(a). 

“A district court’s ruling on a motion to sever will not be disturbed absent a showing 24

that the district court abused its discretion.” United States v. Kane, 887 F.2d 568, 571 (5th

Cir. 1989). 

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error, even where initial joinder was improper, a defendant must show ‘clear,

specific and compelling prejudice that resulted in an unfair trial.’” Id. (quoting

United States v. Posada Rios, 158 F.3d 832, 863 (5th Cir. 1998)). “This prejudice

must be of a type ‘against which the trial court was unable to afford protection.’”

Id. (quoting United States v. Mann, 161 F.3d 840, 863 (5th Cir. 1998)).

We conclude that Enriquez has not demonstrated that clear, specific, and

compelling prejudice resulted at trial from the district court’s denial of his

severance motion. Nor could he do so as the outcome of the trial indicates that

he was not unfairly prejudiced by the crimes of the other BA members. The

district court, for example, granted Enriquez’s motion for judgment of acquittal

on the charge of narcotics trafficking in violation of 21 U.S.C. §§ 841(a)(1) and

846. Likewise, the jury acquitted Enriquez on the charge of murder in aid of

racketeering in violation of 18 U.S.C. § 1959(a)(1). Enriquez was only convicted

of the crime that he actually confessed to participating in: conspiring to extort

cuota payments. There is no indication that granting the motion for severance

would have improved Enriquez’s chances of obtaining a judgment of acquittal on

that count. Accordingly, we hold that the district court did not abuse its

discretion in denying Enriquez’s motion for severance. See Kane, 887 F.3d at

571 (“In order to prevail on appeal, the appellant must show more than that a

separate trial offered a better chance of acquittal.”) (emphasis added). 

K.

Herrera contends that the district court erred in admitting

unauthenticated handwritten BA letters and transcripts of recorded BA

conversations. Herrera provides virtually no support for his argument. He

instead relies on broad, generalized statements to make his point. For instance,

Herrera alleges that “the numerous and voluminous evidence introduced by the

Government in this case was improperly admitted based on improper foundation

and over objection.” We conclude that Herrera has failed to adequately brief this

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issue and it is, therefore, waived. See Fed. R. App. P. 28(a)(9)(A); Martinez, 263

F.3d at 438. 

III.

For the foregoing reasons, save for Mona’s sentence, which we VACATE

and REMAND for re-sentencing, the judgment of the district court is

AFFIRMED. 

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