IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50392

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTURO GALLEGOS CASTRELLON, also known as Benny, also known as 

Farmero, also known as 51, also known as Guero, also known as Pecas, also 

known as Tury, also known as 86, also known as "Tury", also known as 

"Guero", also known as "Farmero", also known as "Benny", also known as 

"Pecas", also known as "51",

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CR-2213

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

A jury convicted Arturo Gallegos Castrellon (“Gallegos”) of several 

federal crimes, but he appeals only the conviction for 18 U.S.C. § 956—

conspiracy to commit murder in a foreign country. He argues that the evidence 

was insufficient to establish two essential elements of the offense: no 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2016

Lyle W. Cayce

Clerk

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conspirator performed an overt act in the United States, and no conspirator 

was in the United States at the time he conspired. We find that the evidence 

is sufficient and AFFIRM the conviction.

I.

On March 31, 2010, Gallegos ordered a hit team to assassinate the 

occupants of two vehicles transporting children after a birthday party. The hit 

team complied with his order and riddled the two vehicles with bullets. Two 

people died in one car, and another person died in the second car. The children 

were the only survivors.

Gallegos served as a lieutenant in the paramilitary group Barrio Azteca 

(“Azteca”) in Juarez, Mexico. His main role was to organize hit teams for Azteca 

in its ongoing war with a rival cartel. He received much of his information on 

potential targets from the Azteca headquarters in El Paso, Texas.

Because Azteca had branches in both El Paso and Juarez, they focused 

on sharing information and believed that “without communication, the gang

cannot exist.” To ensure reliable communication between the United States 

and Mexico, Azteca required its members to be familiar with their activities in 

each place. This prevented the gang from being “caught off-guard for any” 

reason.

Azteca also relied on a system of hierarchy and punishment to run its 

gang efficiently. The hierarchy of Azteca ranged from prospect to soldier to 

lieutenant to captain. If a soldier failed to follow the order of a lieutenant or 

captain, he could “end up killed.”

Gallegos ordered Chino Valles (“Valles”) who was in charge of 

communication between Juarez and El Paso to ask the Aztecas in El Paso to 

research the Texas license plate on a white Honda Pilot. Gallegos had noticed 

the vehicle outside his home in Juarez several times and believed that it 

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belonged to a rival cartel. Moreover, he thought that the El Paso Aztecas could 

determine its owner through its Texas plate.

Gallegos also instructed his hit teams to “look-out” for the vehicle. They 

found two similar vehicles at a birthday party attended by employees of the 

United States Consulate. Even though they did not match perfectly, the two 

vehicles leaving the children’s party were targeted on Gallegos’ order. The 

assassins killed two individuals in one car and one person in the other.

Mexican authorities arrested Gallegos and transferred him to the United 

States. The United States prosecuted and convicted Gallegos on eleven counts 

of various crimes, including one count of conspiracy to commit murder. The 

district court sentenced Gallegos to four consecutive terms of life 

imprisonment.1 Gallegos challenges only his conviction for conspiracy to 

commit murder outside the United States.

II.

We review de novo the district court’s denial of a motion for judgment as 

a matter of law based on a preserved challenge to the sufficiency of the 

evidence.2 If the defendant fails to preserve his challenge by renewing it at the 

close of evidence, however, we review for plain error.3 Here, although Gallegos

moved for a judgment as a matter of law after the government’s case, he failed 

to renew the objection at the close of the evidence. Accordingly, we review the 

district court’s denial of his motion for plain error.

 

1 Gallegos received seven terms of life imprisonment served concurrently, and three 

terms of life imprisonment served consecutive to all other sentences.

2 United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).

3 United States v. Davis, 690 F.3d 330, 336 & n.6 (5th Cir. 2012) (“[W]here a defendant 

moves for a judgment of acquittal at the end of the Government’s case but, after presenting 

evidence, fails to renew that motion, the defendant has forfeited his insufficiency challenge 

and our review is for [plain error].”) (citing United States v. Delgado, 672 F.3d 320, 331 n.9 

(5th Cir. 2012) (en banc) (explaining that “[a]lthough the plain-error test should always be 

cited, we recognize that the ‘manifest miscarriage of justice’ formulation is itself a reasonable 

restatement of the four-prong test.”))).

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To show plain error, the government must ordinarily satisfy a four-prong 

test: (1) there must be an error or defect, (2) the legal error must be clear or 

obvious, (3) the error affected defendant’s substantial rights, and (4) the error 

seriously affects the fairness, integrity or public reputation of the judicial 

proceedings.4 When we review a denial of a motion for judgment as a matter of 

law, based on an unpreserved sufficiency challenge, an error is considered

obvious under the second prong only where “the record is devoid of evidence

pointing to guilt.”5 To prevail on appeal, therefore, Gallegos must show that 

the evidence is more than insufficient; he must show that the record is devoid 

of evidence pointing to guilt.6

III.

Conspiracy to commit murder in a foreign country requires proof of four 

elements: the defendant and at least one other person agreed to commit a 

murder outside the United States; the defendant willfully joined the 

agreement with the intent to further its unlawful purpose; at least one 

conspirator committed an overt act in furtherance of the conspiracy in the 

United States; and, at least one conspirator was in the United States at the 

time he conspired.7 Gallegos challenges the sufficiency of the government’s 

proof on the latter two elements—essentially, he argues that the record is 

devoid of evidence establishing that the El Paso Aztecas were coconspirators 

in the murder.

“The Government is not required to prove the existence of the conspiracy 

and the agreement between the co-conspirators and the defendant by direct 

evidence, but may present circumstantial evidence, such as the co-conspirator’s 

 

4 Delgado, 672 F.3d at 329 (citing United States v. Olano, 507 U.S. 725, 732-36 (1993)). 

5 See Delgado, 672 F.3d at 331 (emphasis omitted). 

6 See id.

7 See United States v. Martinez-Herrera, 539 F. App’x 598, 600 (5th Cir. 2013) (citing 

United States v. Wharton, 320 F.3d 526, 537-38 (5th Cir. 2003)).

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concerted actions, from which the jury can infer that a conspiracy existed.”8

The record here contains such circumstantial evidence. Gallegos’ hit team 

leader—Jesus Ernesto Chaves Castillo (“Castillo”)—testified that he heard 

Gallegos order Valles to call the El Paso Aztecas and find out to whom the 

white vehicle was registered. 

We can reasonably infer that Valles telephoned El Paso based on his role 

in the Aztecas. 9 Because Valles conducted the communication between Juarez 

and El Paso, a telephone call to El Paso would be routine for him, and there is 

no reason to assume that he would not follow Gallegos’ direct order. Moreover, 

the chance that Valles contacted El Paso is heightened considering how 

important the Aztecas considered communication.

Second, we can reasonably infer that the El Paso Aztecas received this

call and understood the request. The notion that an El Paso Azteca would not 

take some action on an order by a lieutenant such as Gallegos is extremely 

unlikely—they could face punishment including death for failing to follow such 

an order. Moreover, this exchange between Valles and the Aztecas in El Paso 

constitutes an overt act in the United States.10 Finally, given the open 

communication between Juarez and El Paso—and the fact that Azteca 

members were required to be familiar with the organization’s activities in both 

locations—it is likely that the Aztecas in El Paso understood why Valles 

requested the investigation. There is no reason why Valles would not have 

discussed that surveillance by a rival cartel was the reason to check the vehicle.

 

8 United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991) (discussing drug conspiracy).

9 See United States v. Virgen-Moreno, 265 F.3d 276, 284-85 (5th Cir. 2001) (explaining 

that in the context of 21 U.S.C. § 841 “[d]irect evidence of a conspiracy is unnecessary; each 

element may be inferred from circumstantial evidence. . .[and the government] only needs to 

produce slight evidence to connect an individual to the conspiracy.”). 

10 United States v. Cardona-Ramirez, 358 F. App’x 562, 564 (5th Cir. 2009) (“[T]here 

is a sufficient factual basis to establish that a portion of the conspiracy, the overt act of 

receiving the telephone call, took place in the United States.”).

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Also, according to Castillo, calls to the El Paso branch about hits were not 

unusual. Because the vehicle allegedly belonged to a rival cartel and Valles 

often discussed hits with the Azteca representative in El Paso, they likely 

understood that Gallegos planned to take violent action against its owner and 

implicitly agreed to further this unlawful purpose.11

As the record contains evidence tending to show that Valles made the 

call to El Paso and that the El Paso Aztecas received the call, understood its 

import, and agreed to further its objective, the record is not devoid of evidence 

establishing that the El Paso Aztecas were coconspirators in the murder. The 

phone call from Valles to El Paso thus satisfies both the third element—that 

at least one conspirator committed an overt act in furtherance of the conspiracy 

in the United States—and the fourth element—that at least one conspirator 

was in the United States at the time he conspired—required to establish 

conspiracy to commit murder in a foreign country.12

IV.

For these reasons, we agree with the government that the record is not 

devoid of evidence on any of the elements of this offense, and AFFIRM the 

conviction.

 

11 See United States v. Montgomery, 210 F.3d 446, 449 (5th Cir. 2000) (noting that in 

the context of 21 U.S.C. § 846, the government must prove that an agreement existed, but 

“[t]he agreement may be implicit, and the jury may infer its existence from circumstantial 

evidence.”).

12 See Martinez-Herrera, 539 F. App’x at 600. 

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