FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-50141 Plaintiff-Appellee,

D.C. No. v. 

3:06-cr-01243-

RICARDO MARTINEZ, DMS-3

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 08-50142 Plaintiff-Appellee,

D.C. No. v. 

3:06-cr-01243-

CESAR J. ABARCA, DMS-11

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 08-50145 Plaintiff-Appellee,

D.C. No. v. 

3:06-cr-01243-

JOSHUA CRUZ, DMS-17

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 08-50147 Plaintiff-Appellee,

D.C. No. v. 

3:06-cr-01243-

GEORGE FERNANDEZ, DMS-5

Defendant-Appellant. 

8447
UNITED STATES OF AMERICA, 

No. 08-50150 Plaintiff-Appellee,

D.C. No. v. 

3-06-01243-

RICHARD VALENZUELA, DMS-10

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 08-50151 Plaintiff-Appellee,

D.C. No. v. 

3:06-01243-

EDUARDO GONZALEZ-GALLEGOS, DMS-4

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 08-50152

Plaintiff-Appellee, D.C. No.

v.  3:06-cr-01243-

DMS-6 THOMAS DURKIN,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

May 4, 2011—Pasadena, California

Filed June 22, 2011

Before: John T. Noonan and Kim McLane Wardlaw,

8448 UNITED STATES v. MARTINEZ
Circuit Judges, and Edward R. Korman,

Senior District Judge.*

Opinion by Judge Noonan

*The Honorable Edward R. Korman, Senior District Judge for the U.S.

District Court for Eastern New York, Brooklyn, sitting by designation. 

UNITED STATES v. MARTINEZ 8449
COUNSEL

Gordon S. Brownell, St. Helena, California, for defendantappellant Ricardo Martinez.

Debra A. DiIorio, San Diego, California, for defendantappellant Cesar J. Abarca.

Alex L. Landon, San Diego, California, for defendantappellant Joshua Cruz.

Arza Feldman, Uniondale, New York, for defendant-appellant

George Fernandez.

David A. Schlesinger, San Diego, California, for defendantappellant Richard Valenzuela.

Stephen D. Lemish, El Cajon, California, for defendantappellant Gonzalez-Gallegos.

Jerald L. Brainin, Los Angeles, California, for defendantappellant Thomas Durkin.

Todd W. Robinson, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

OPINION

NOONAN, Circuit Judge:

Ricardo Martinez, Thomas Durkin, Eduardo GonzalezGallegos, George Fernandez, Cesar J. Abarca, Joshua Cruz,

8452 UNITED STATES v. MARTINEZ
and Richard Valenzuela appeal their convictions of conspiracy in violation of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and their

sentencing enhancement for carrying out the conspiratorial

agreement by acts subjecting them to life imprisonment. We

affirm the judgment of the district court.

PROCEEDINGS

On June 6, 2006, a federal grand jury indicted twenty-two

persons including the seven defendants on a single count of

conspiracy in violation of 18 U.S.C. § 1962(d). A number of

those indicted pleaded guilty. Several were severed to be tried

separately. The seven defendants went to trial on October 15,

2007. The jury returned a verdict of guilty on January 4, 2008.

Each defendant was sentenced to imprisonment for life.

This appeal followed. Conscientious counsel for the seven

defendants make a multitude of points on their behalf.

FACTS

Martinez is a member of the Mexican Mafia. Durkin, Gonzalez, and Fernandez are high-level associates in the Mexican

Mafia. Abarca, Cruz, and Valenzuela are soldiers in this organization.

The history and activities of the Mexican Mafia have been

well set out by Judge Trott in United States v. Shryock, 342

F.3d 948 (9th Cir. 2003). Beginning as members of a street

gang incarcerated at Deuel Vocational Institution in Tracy,

California in the 1950s, the Mexican Mafia became a presence in California prisons and in federal prisons within California. The organization had an ethnic identity: Hispanic. It

had a form: hierarchical. The leaders — known as members

— were chosen by existing members. Associates were aspirants to membership. The soldiers took orders. The objectives

of the organization were power in the prisons and the control

UNITED STATES v. MARTINEZ 8453
of drug trafficking within and outside the prisons. Despite the

efforts of the authorities, the Mexican Mafia has survived for

half a century. It enforces its will by violence including murder.

These characteristics of the Mexican Mafia, already

observed in Shryock, were set before the jury in this case by

the testimony of a government expert on the organization and

by the testimony of a former member. Its presence in Southern California was particularly emphasized. No witness disputed this evidence. The government also established beyond

challenge the relation of each defendant to the organization.

Among the crimes proved to be committed in furtherance

of the conspiracy were the following:

The murder of Jabila Barragan. Barragan was imprisoned

at High Desert State Prison. Barragan claimed to be a member

of the Mexican Mafia. Authentic members found the claim

false. At their direction, on June 24, 2002, Barragan was

stabbed to death in the day room of the prison. Abarca and

Valenzuela were found by prison officials showering themselves to wash off blood from his body. That the two had

killed in order to eliminate a specious member of the Mexican

Mafia was shown to be the motive for the murder.

The murder of Alvaro Hernandez. Hernandez came to the

attention of Gonzalez as someone who was extorting money

from individuals in the San Diego area in the name of the

Mexican Mafia. Believing this claim of authority to be bogus,

Gonzalez sought permission from the leadership to kill him.

Durkin supported his request. Martinez granted it. Gonzalez

arranged for Fernandez to carry out the deed. Fernandez delegated its execution to Cruz, who shot and killed Hernandez

shortly after he had been lured from his house at 3:00 a.m.,

July 28, 2006. The government established the role of the

murderer and the accessories to the murder by a number of

intercepted telephone calls and intercepted correspondence.

8454 UNITED STATES v. MARTINEZ
Methamphetamine trafficking. On August 7, 2005, Durkin

was observed by government agents receiving a purchase of

methamphetamine at his home. On August 15, 2005, another

purchase of methamphetamine was planned by Durkin and

Gonzalez and took place under the eyes of federal agents,

who then arrested Durkin and found him in possession of 53

grams of the drug.

ANALYSIS

We turn to the seven briefs for the seven defendants. Often

they join their co-defendants’ issues.

[1] Crimes justifying life imprisonment. The defendants

question whether the life sentences were adequately supported. They did not request that the jury specifically identify

the crimes justifying these sentences, but the jury’s special

verdict found them subject to the sentences, and the evidence

before the jury established that Abarca and Valenzuela had

acted for the conspiracy in the murder of Barragan and that

Martinez, Durkin, Gonzalez, Fernandez, and Cruz had acted

for the conspiracy in the murder of Hernandez. The sentences

were justified under 18 U.S.C. § 1963(a).

[2] Fernandez’s lesser part. Fernandez notes that the evidence does not establish that he managed or participated in

the operations of the conspiracy, and he invokes Reves v.

Ernst & Young, 507 U.S. 170 (1993). However, in 2004 we

held that to be convicted of RICO conspiracy it is enough that

the defendant agreed to facilitate a scheme which included the

operation or management of a RICO conspiracy. United

States v. Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004). Our

Fernandez, not the defendant in the case just cited, was shown

to have conspired in this way.

Fernandez further contends that he was not shown to have

committed two overt acts. The government’s burden was only

to show his assent to the conspiracy and the acts furthering its

UNITED STATES v. MARTINEZ 8455
end. Salinas v. United States, 522 U.S. 52, 63-66 (1997). That

the government did.

[3] The government produced evidence that Fernandez was

an aspirant to membership in the Mexican Mafia; that he put

money on the books of its members who were in prison; and

that he made two sales of methamphetamine, in one sale

attempting to recruit the buyer to the Mexican Mafia. In a

coded letter to a Mexican Mafia member in prison, intercepted by the government and decoded by an expert, Fernandez wrote that “we sent another drunk driver to sober up

forever for the relatives. That again was a favor for Thomas.”

Interpreted, the statement conveyed the information that at the

request of Thomas Durkin, he had killed a man for the sake

of the organization. The statement, together with other clues,

linked him to the murder of Hernandez. 

[4] Fernandez objects to the admission of a recorded conversation between himself and one Orka. The conversation

contained no admissions as to his own part in the murder of

Hernandez but did show his knowledge of the murder and his

familiarity with the ways of the Mexican Mafia. It was admissible because it was an effort to recruit his addressee to participate in the conspiracy. The recording in its entirety was

admissible as providing the context of his effort.

The challenge to admission of the conversation as a violation of the Confrontation Clause fails. United States v.

Bridgeforth, 441 F.3d 864, 869 (9th Cir. 2006). Cruz’s Bruton

challenge also fails as there is a conspirator exception to the

Bruton rule. United States v. Larson, 460 F.3d 1200, 1213

n.12 (9th Cir. 2006). 

[5] Statements incriminating Valenzuela. Part of the evidence against Valenzuela was the statement of Raul Leon, a

Mexican Mafia member incarcerated at Pelican Bay prison,

made to another prisoner and referring to Barragan, “He was

saying he was a Carnal. So as soon as he got up there to the

8456 UNITED STATES v. MARTINEZ
High Desert, I had his ass killed.” The statement was admissible as that of a coconspirator advancing the conspiracy’s aim

to maintain power in the prisons. Valenzuela’s objection to

admission of the statement is meritless. 

Valenzuela also objects to testimony of another inmate that

Abarca told this inmate to spread the word to Pelican Bay that

“the job was done,” a message calculated to enhance the

power of the conspiring and therefore also admissible under

Rule 801(d)(2)(E).

The witness with a double capacity. F.B.I. Special Agent

Allan Vitkosky was the case agent. He testified as a percipient

witness of some events and was recognized by the court as an

expert on the Mexican Mafia’s coded communications and in

that capacity was also a witness. The defendants’ language on

the telephone and in correspondence was laconic, elliptical, or

cryptic. As an expert, Vitkosky interpreted their coded messages. In the course of the trial, the court instructed the jury

three times on the difference between percipient and expert

testimony. The government was nearly always exact in specifying when it was asking for his testimony as an expert.

[6] In dicta we have pointed out the danger of confusion

for the jury when a witness has such a dual role. United States

v. Freeman, 498 F.3d 893, 902-04 (9th Cir. 2007), but have

held that the trial court has discretion to accept a witness in

both capacities. Id. The district court did not abuse its discretion when it admitted Vitkosky’s testimony properly identified as percipient or as expert. If, in the course of thirty-five

days of trial, there was testimony from him where the distinction was not made clear, the defendants have not identified

any testimony harmful to any of them.

The defendants do object to Vitkosky’s testimony that “to

drink a cup of tea” meant to be killed. As an expert, he

explained that he had reached this conclusion from his inquiries among former members of the Mexican Mafia. They had

UNITED STATES v. MARTINEZ 8457
told him that a “cup of tea” was a common term in the Mexican Mafia for approval of a “murder/assault.” Vitkosky then

interpreted “cup of tea” as short for “cup of green tea” and

stated that so interpreted it equaled “green light.” 

[7] Vitkosky’s testimony consisted in two parts: (1) the

meaning of an expression used in the organization and (2) the

derivation of the meaning. As the defense pointed out, his testimony as to the derivation made little sense. There are red,

white, and black teas as well as green. But Vitkosky’s guess

as to the phrase’s derivation did not destroy his testimony that

the phrase was part of the argot of the mob and that as used

by its members it could mean acts of ultimate violence. It was

proper for the jury to hear and assess the strength of his testimony.

The defendants further challenge the adequacy and timeliness of the government’s compliance with Fed. R. Crim. P. 16

in its disclosure of Vitkosky as an expert. Undoubtedly, the

government’s disclosure was not in the “timely fashion”

required by the advisory committee note to Rule 16. The disclosure was made five days before trial. However, the disclosure was a month before Vitkosky testified as an expert, time

enough for the defense to prepare. See United States v.

Mendoza-Paz, 286 F.3d 1104, 1112 (9th Cir. 2002). Properly

exercising its discretion, the district court denied a defense

motion for a continuance to permit further exploration of the

expert’s credentials. See United States v. Mejia, 69 F.3d 309,

314 (9th Cir. 1995). 

The record of an interview of Gonzalez. Gonzalez argues

that he was prejudiced by the government’s denial to him of

the record of a proffer meeting conducted in the office of the

United States Attorney on February 14, 2006. Gonzalez was

then awaiting trial on an unrelated immigration offense. He

hoped to receive a sentencing benefit in that case and so asked

to meet with the government. It was agreed that any statement

he made could not be used against him but could be used to

8458 UNITED STATES v. MARTINEZ
impeach him or to rebut any defense he might make. In the

course of the interview, Vitkosky asked him several questions

relating to the Mexican Mafia. The government made a record

of the interview.

Prior to trial in this case, the government disclosed to the

defense that in the interview Gonzalez had stated that Hernandez was killed as a result of a personal dispute. At trial,

the government also supplied a redacted version containing

Gonzalez’s statements regarding “a cup of tea.” The district

court’s refusal to require more is now assigned as error. 

[8] Rule 16(a)(1)(B) requires the government to produce

upon request “any relevant oral statement” made by the

defendant “in response to interrogation” by a government

agent. We do not reach the question whether all statements

made in proffer interviews must be produced under Rule 16.

Gonzalez received what was relevant to his trial. His contention that not knowing the full contents of the report deterred

him from taking the stand in his own defense is not credible.

Gonzalez would not have wanted to be exposed to crossexamination. He was given the benefit of his self-serving lie

about the motive for the hit on Hernandez. No harm was done

to Gonzalez by the district court’s ruling.

Gonzalez also contends that in the interview he had spoken

to the government about his brother-in-law Granillo’s quarrel

with Hernandez and would have liked to have called Granillo

as a witness in this case but did not because he didn’t remember what he had told the government about him. Gonzalez has

made no showing that this handicap denied him a witness who

would have materially contributed to his defense.

Durkin also objected to being denied this report, but had no

right to the report under Rule 16.

[9] The apprehensive juror. On the seventh day of trial,

one juror sent the judge a note asking if the jury had “protecUNITED STATES v. MARTINEZ 8459
tion.” The judge interviewed her to determine if she could

serve with an open mind. She answered affirmatively, stating,

“I want to hear all the evidence.” The defendants asked for a

mistrial. The district court did not abuse its discretion in denying their motion.

[10] Martinez’s sobriquet. In a letter from Gonzalez to a

member of the Mexican Mafia, he referred to Martinez as “the

Evil One.” The district court did not abuse its discretion in

denying Martinez’s motion to exclude the reference. The evidence was more probative as to the fear inspired by Martinez

than prejudicial. See Fed. R. Evid. 403. 

[11] The measures taken by the trial court to assure security. Observing the nature of the case and the background of

the defendants, the court ordered the defendants to wear leg

shackles in court; arranged for at least ten marshals to be present; and empaneled an anonymous jury. The shackles were

not visible in any respect. The defendants’ contention that the

cumulative impact of the security measures prejudiced the

jury asserts a conclusion contrary to precedent in a Mexican

Mafia trial. See Shryock, 342 F.3d at 971-75. The district

court did not abuse its discretion. 

[12] Lay opinion on coded communications. Durkin and

other defendants objected to the lay opinion of a former member of the Mexican Mafia on the meaning of their coded communications. The witness testified that he was a member of

the organization for seventeen years, and that the codes did

not change. The district court did not abuse its discretion in

admitting his testimony. From long experience in writing

notes for the organization, the witness had the “personal

knowledge” required by Fed. R. Evid. 602; Freeman, 498

F.3d at 904-05.

[13] Durkin’s request for substitute counsel. James Brown,

Durkin’s appointed attorney, was late for one scheduled hearing and missed another because of car trouble. The court

8460 UNITED STATES v. MARTINEZ
investigated Durkin’s complaint. Brown apologized. Durkin

professed to be content with him. Then on July 25, 2007 and

August 3, 2007, Durkin wrote the court asking for a substitute. Again the district court investigated and heard both

Brown and Durkin. The court found no breakdown in the

attorney-client relation. Two weeks before trial, Durkin complained again, the court held a hearing, no breakdown or

unreconcilable conflict was found. On appeal, no abuse of

discretion has been shown. 

[14] The Homicide Book. The subject of this section has a

title comparable to the Domesday Book but a mundane content: the record maintained by the San Diego Police Department of its investigation of the Hernandez murder. The

district court ruled that Cruz was not entitled to reports within

the book of police interviews with witnesses nor to summaries

of recorded phone calls. The reason: the material sought constituted work product of the police, exempted from discovery

by Fed. R. Crim. P. 16(a)(2). The rule extends to the protection of the internal product of local police work later provided

to the federal government. United States v. Fort, 472 F.3d

1106, 1119 (9th Cir. 2007). 

Other objections by Cruz. Cruz contends that the prosecution did not comply with the Jencks Act, 18 U.S.C. § 3500.

The government in fact complied with Cruz’s request eight

days before its witness testified.

[15] Cruz also objects to admission of a telephone conversation in which he discussed bringing drugs into jail eight

months after the murder of Hernandez. Contrary to Cruz’s

contention, the evidence was relevant to the conspiracy’s aim

of controlling narcotics in the prisons. The prejudicial effect

of this recorded conversation did not outweigh its probative

force.

[16] The distinction between murder and conspiracy to

murder. The district court properly responded to a question

UNITED STATES v. MARTINEZ 8461
from the jury that murder and conspiracy to commit murder

were distinct racketeering offenses under RICO. The law in

California makes the difference between a conspiracy and its

product. People v. Moore, 143 Cal. App. 2d 333, 340-42

(1956). The two crimes could be charged under a single heading in the indictment. See Salinas, 522 U.S. at 63. The two

crimes were distinct although they led to a single event.

Motions for severance. The defendants objected to being

tried together especially as only two of them were alleged to

be connected to Barragan’s murder and the other five were

alleged to be involved with the murder of Hernandez. The

defendants moved several times for severance during the trial

and were denied.

[17] All seven defendants were charged with only one

count of conspiracy carried out by a variety of means. If there

was a spillover from proof of one criminal act to proof of

another criminal act it followed from the overarching character of the criminal enterprise. The district court did not abuse

its discretion in denying the motions. See Fernandez, 388

F.3d at 1241-46; United States v. Dinome, 954 F.2d 839, 843

(2d Cir. 1992).

[18] Severance for Abarca. Abarca’s trial counsel submitted to the court a request that the trial be severed or at least

continued. Her motion was denied, and he now appeals the

denial. His argument may be more appropriately addressed in

an action of habeas corpus because it focuses on deficiencies

in his counsel’s performance. See United States v. Simas, 937

F.2d 459, 463 (9th Cir. 1991).

CONCLUSION

For the reasons stated, the judgment of the district court is

AFFIRMED.

8462 UNITED STATES v. MARTINEZ