PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

PEDRO GARCIA,

 Defendant - Appellant.

_________________________

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

v. 

GONZALO RAMIREZ, 

 Defendant – Appellant. 

Nos. 14-3006 & 14-3081

No. 14-3039

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF KANSAS 

(D.C. Nos. 6:12-CR-10089-MLB-2 and 6:12-CR-10089-MLB-3) 

 

J. Val Wachtel, Klenda Austerman LLC, Wichita, Kansas for Appellant Pedro Garcia. 

Andrew J. McGowan, Assistant Federal Public Defender, (Melody Brannon Evans, 

Federal Public Defender, with him on the brief), Topeka, Kansas, for Appellant Gonzalo 

Ramirez. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 14, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States 

Attorney, with him on the brief), Topeka, Kansas, for Appellee. 

 

Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges. 

HARTZ, Circuit Judge. 

 

Defendants Pedro Garcia and Gonzalo Ramirez were convicted of conspiring with 

other members of their criminal gang to violate the Racketeer Influenced and Corrupt 

Organizations Act (RICO), see 18 U.S.C. § 1962(d). They were also convicted of 

committing various violent crimes in aid of racketeering, see id. § 1959 (VICAR), and 

multiple firearm counts, see id. § 924(c)(1)(A). They challenge their convictions, arguing 

that (1) the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to 

disclose promises made to a key cooperating witness; (2) the government put on false 

evidence at trial in violation of Napue v. Illinois, 360 U.S. 264 (1959); (3) the jury was 

incorrectly instructed that the jurisdictional element of RICO requires showing only a 

minimal effect on interstate commerce; (4) VICAR was unconstitutionally applied 

because their violent crimes did not affect interstate commerce; and (5) the court 

erroneously admitted testimonial hearsay under the guise of a gang expert’s opinion, in 

violation of the Confrontation Clause.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We hold that (1) the 

government did not violate Brady because the undisclosed evidence was not material;

(2) the government did not violate Napue; (3) the challenge to the interstate-commerce 
3 

jury instruction on the RICO charge fails because it is based on the false premise that 

there was no evidence that the RICO enterprise engaged in economic activity; (4) the 

challenge to the VICAR convictions fails because it is based on the same false premise; 

and (5) testimonial hearsay was erroneously admitted but harmless because it was 

cumulative of other testimony. 

I. BACKGROUND 

A. The Evidence at Trial 

According to trial testimony by Shane Webb, a government “gang expert” and 

former Dodge City, Kansas police officer, the city was home to four rival gangs from at 

least 2008 to 2012. The Diablos Viejos (DVs) and Los Carnales Chingones were “sets” 

under the Norteños (Northerners) gang. Ramirez R., Vol. III at 926. Members of both 

sets wore red. Their rivals, who wore blue, were the Master Criminal Boys and 18th 

Streeters, sets under the Sureños (Southerners) gang. The DVs, to which Defendants 

belonged, engaged in criminal activity including assaults, batteries, robberies, shootings, 

homicides, and drug trafficking. Trial testimony concerned both the general criminal 

activities of the gang and three criminal incidents in particular. 

1. The House Shooting 

The first incident involved Defendant Ramirez (but not Defendant Garcia), who 

was convicted of wounding two victims by shooting into their house. Juan Torres, a DV 

member, was the principal witness to the events. On the night of October 4, 2008, 

Ramirez drove Torres, Angel Cerda, and two women to the house of the Hernandez 
4 

family. An altercation erupted between those in the vehicle and several men outside the 

house. Enraged, Ramirez drove with his passengers back to his house, where he picked 

up a rifle. They returned to the Hernandez neighborhood, parking in an alley near the 

Hernandez house. Ramirez, rifle in hand, ran through the alley and turned a corner 

toward the house. At least 19 shots were fired at the house. One hit the sleeping 

Rumalda Hipolito in the arm, and another hit her son, 18-year-old Abel Hernandez, in the 

leg. Ramirez returned to his car and drove it to Cerda’s property, parking the car in a 

barn. Cerda went to his house while the others fled into a nearby field, hiding in the tall 

grass until the coast was clear. 

2. The Home-Invasion Robbery 

The next incident involved both Defendants. Jesus Flores was the principal 

witness. On June 8, 2009, Defendants and at least two others affiliated with the 

Norteños, Jesus and Josh Flores, robbed the occupants of a house. That evening 

Defendants and the Floreses were at Garcia’s house when they left to go look for 

“scraps,” id. at 1727, meaning Sureños. Jesus Flores and Ramirez (and perhaps others) 

had guns. The group traveled through the alley behind Garcia’s house for a couple of 

blocks before stopping to break into the house of Isidoro Raleas-Velasquez, a 

Guatemalan immigrant. After Ramirez checked things out by peering through a side 

window, he and the others entered the house through the front door. Raleas and another 

occupant, Alonzo Diego-Hemon, were in the living room watching television when the 

invaders burst in. Ramirez grabbed Raleas and struck him on the head with his pistol. 
5 

Ramirez (and perhaps others) then took Raleas into his bedroom and stole $800 in cash. 

While this was going on, Diego was forced to the ground at gunpoint. The other 

assailants acted as lookouts and rummaged through the house for items to steal. The 

group returned to Garcia’s house and split the money. 

3. The Trailer-Park Shooting 

After the home-invasion robbery, Defendants and two other Norteños, cousins 

Anthony Wright and Russell Worthey, continued the night’s criminal activities. Several 

witnesses testified about the events. 

a. Wright’s Account 

 According to Wright, late in the afternoon of June 8 he drove his girlfriend’s gold 

Mazda to Worthey’s house and picked him up. They drove around Wright’s trailer park 

and spotted a group of people having a party in front of a trailer. All were wearing blue, 

so Wright decided that they were Sureños. 

After dark they drove to Garcia’s house, knocked on the back door, and waited. A 

few minutes later, as they were about to leave, they saw Defendants and Jesus and Josh 

Flores down the alley, running toward the house. At least some of them had red 

bandanas over their faces. Everyone went inside the house to the living room. Wright 

saw Defendants and the Floreses splitting up some cash. They told him that they had just 

completed a home invasion. Wright also saw that Defendants and Josh Flores had 

firearms, and Jesus probably did as well. Someone suggested they go look for Sureños. 
6 

Everyone left. Wright, Worthey, and Defendants got into the Mazda. Wright 

drove, Worthey sat in the front passenger seat, Garcia sat in the back-left passenger seat, 

and Ramirez sat in the back-right passenger seat. Defendants each had a gun. Recalling 

that he had seen Sureños in the trailer park earlier in the day, Wright drove there. They 

drove by the people in blue he had seen earlier, who were still in front of their trailer. 

After parking some distance away, the four men got out of the car and headed through the 

trailers toward the group. Defendants were in the lead, with guns in their hands and 

bandanas over their faces. 

They approached the group from behind their trailer, then came around to the 

front. Someone said “puro Norte” (pure north), and Defendants opened fire while the 

victims attempted to flee. Id. at 1289. Wright and Defendants ran back to the car, sitting 

in the same seats as before. They then picked up Worthey. As they drove off, Ramirez 

said to Garcia, “[Y]ou got that one.” Id. at 1291. Sometime later Garcia made a 

comment about everyone having kids, which Wright understood to mean that they should 

be quiet about the shooting to protect their families. Wright dropped off Defendants, then 

Worthey. 

b. Worthey’s Account 

Worthey’s testimony matched Wright’s in most respects. On June 7 (the day 

before the shooting) he was picked up by Wright and they drove to a trailer park, where 

they saw two persons outside on a porch. Wright flashed a gang sign at them, but they 

did not respond. Wright said that Sureños lived at that house. 
7 

The next day, June 8, as it was getting dark Wright picked up Worthey at his 

house to go cruising in Wright’s gold Mazda. They eventually drove to Garcia’s house, 

knocked on the back door, and turned to leave when nobody answered. But they then 

heard rapid footsteps and saw Defendants and the Floreses approaching from the alley. 

Two of the four had bandanas over their faces. Everyone went inside. Worthey saw that 

Josh Flores had a pistol, but he did not see any cash. 

Defendants, Worthey, and Wright then got into Wright’s Mazda to go for a cruise. 

Worthey did not see either Defendant with a gun. Wright drove, with Worthey in the 

front passenger seat, Garcia in the back-left passenger seat, and Ramirez in the backright. In the car Defendants discussed a home invasion that, Worthey gathered, had just 

taken place. After cruising around for an hour or so, the group drove to the trailer park. 

As they approached the location of the eventual victims, Wright said that there were 

some Sureños who lived nearby. They drove by the victims’ trailer and saw a group of 

men outside drinking beer. “[W]e’re going to get these mother fuckers,” Garcia said. Id. 

at 1476. 

Wright parked the car some distance away. He and Defendants got out of the car, 

and Defendants put bandanas over their faces. Worthey was hesitant to follow, but 

Ramirez said to him, “Let’s go home boy.” Id. at 1479. Worthey understood this as an 

order from the high-status Ramirez that he had to go with the group or else suffer a 

“violation,” id. at 1481, meaning a beating or other discipline. Worthey followed the rest 

of the group as they approached the trailer immediately behind the victims. They came 
8 

around to the front of the trailer in a line, with Garcia in front, then Ramirez, then 

Worthey, then Wright. Garcia shouted “puro Norte” and Ramirez pulled out a revolver. 

Id. at 1485. Worthey heard shots and ran. Although he did not see any of the shooting, 

he heard too many shots for them to have come from only Ramirez’s revolver. 

After the shooting, Wright in his gold Mazda picked up Worthey, who got into the 

front passenger seat. Defendants were already in the car, in the same seats as before. As 

they drove away, Garcia said, “I got that one, I got him,” and Ramirez responded, 

“[Y]eah, you got him,” id. at 1491. Worthey took this to mean that Garcia had shot 

someone. Garcia said that he knew he got him because of how he fell over a fence. He 

told the others to keep their mouths shut because they had kids. Wright dropped off 

Defendants in Dodge City, then dropped off Worthey. 

c. Other Witnesses 

Other witnesses also testified about the trailer-park shooting. Officers who arrived 

at the trailer park later that night said that they recovered 10 spent shell casings and one 

live round, and that they found one person dead, killed by a single bullet to the back. 

One of the men targeted testified that he saw three or four men and heard 

gunshots, but everything happened too quickly for him to notice the clothing or faces of 

the attackers. Another testified that he thought there were four or five gunmen, but he ran 

before he could get a good look at them. He heard gunshots and saw bullets kick up sand 

on the ground. 
9 

Two bystanders saw part of what happened. Ricardo Sanchez was in his trailer 

that night. He said that at about 11:00 p.m. he heard a car speed by his trailer and 

suddenly stop. Through a television monitor connected to a security camera outside his 

trailer he saw four men exit a small four-door car. One had a gun, and one, perhaps the 

same person, had a bandana over his face. The group ran behind his trailer, several shots 

were fired, and two of the men returned to the car and left. 

The second bystander, April Solis, was babysitting in a nearby trailer. She stated 

that sometime between 10:00 p.m. and midnight she heard popping noises that she first 

thought were fireworks but soon concluded were gunshots. She heard a group of people 

running and a vehicle pull up nearby. Peeking out the trailer window, she saw a grey 

four-door car driven by a pale man. Contrary to the testimony of Wright and Worthey 

(who said that Worthey sat in the front passenger seat and did not have a gun), she said 

that someone with a gun got in the front passenger seat and put the gun in the center 

console before the vehicle drove away. 

Two DV members also testified about the night of the shooting. Joe Galindo 

stated that Ramirez called to get a ride that night, saying that it was a Norteño matter. He 

found Defendants on a Dodge City street and drove them to Ramirez’s house. Galindo 

observed that “something was wrong because [Ramirez]’s prancin’ around. He was just 

walkin’ around like showin’ something was wrong.” Id. at 1600. Garcia “was just 

shakin’ his head.” Id. at 1601. Galindo asked Defendants what was wrong, and Garcia 

said that “a scrap died tonight. . . . [T]here was a scrap, a Sureno, trying to jump over the 
10 

fence and . . . he [Garcia] shot him in the back—or just shot him, and that the last words 

that Sureno heard was Norte puro.” Id. at 1602. Ramirez laughed. Garcia joked that 

Ramirez’s gun jammed, and Ramirez agreed that his gun had jammed. Defendants told 

Galindo not to tell anyone. 

The other DV member, Fabian Neave, testified that Garcia had confessed to him 

while they were both in jail. Garcia said that Wright and Worthey told him about the 

Sureños in the trailer park, that they drove there, and that Garcia had used a TEC-9 

firearm to shoot at the Sureños. 

B. Procedural History 

On April 16, 2012, Defendants and 21 others affiliated with the Norteños were 

indicted in the United States District Court for the District of Kansas. Both Defendants 

were charged with (1) a conspiracy to violate RICO, based on the Norteños’ drug 

trafficking and violent crimes; (2) four VICAR offenses and discharge of a firearm in 

furtherance of a crime of violence, based on the trailer-park shooting; and (3) two 

VICAR offenses and brandishing of a firearm in furtherance of a crime of violence, based 

on the home-invasion robbery. In addition, Ramirez was charged with three VICAR 

offenses and discharge of a firearm in furtherance of a crime of violence, based on the 

house shooting. 

Of the other 21 defendants, 20 pleaded guilty and one was dismissed. After trial 

from October 2 to October 17, 2013, Defendants were found guilty by a jury on all 

counts. Garcia was sentenced to life imprisonment plus 32 years, and Ramirez was 
11 

sentenced to life imprisonment plus 57 years. The district court denied Defendants’ 

motions for a new trial on Brady and Napue grounds, and they now appeal.

II. DISCUSSION 

A. Brady

“[T]he suppression by the prosecution of evidence favorable to an accused upon 

request violates due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 

U.S. at 87. 

1. The Claim 

Defendants claim that they are entitled to a new trial because the government 

failed to disclose promises made to key prosecution witness Worthey. Although they 

were informed of the written plea agreement between Worthey and the government, they 

were not told of a recorded conversation in which the government spoke of “work[ing] 

down from thirty” years’ imprisonment and assured Worthey that the government would 

also take into consideration his cooperation in an unrelated state murder case. Ramirez

R., Vol. II at 781. According to Defendants, the failure to disclose the promises 

prevented them from (1) showing that Worthey was “willing to do anything to curry 

favor” with the government, and (2) exposing that the sentence he was facing was far less 

than the “natural life” term he testified to on the stand. Ramirez Aplt. Br. at 61–62 

(internal quotation marks omitted). To evaluate these claims, we must review what was 
12 

disclosed before or at trial about the history of Worthey’s cooperation with the 

prosecution. 

Worthey at first did not cooperate. He was interviewed by Dodge City detectives 

10 days after the trailer-park shooting (June 17, 2009) and falsely denied involvement. In 

a November 2010 meeting with then-Detective Webb, Worthey again denied 

involvement and requested a lawyer. On May 9, 2012, after he was indicted in this case, 

Worthey declined to speak with law enforcement without a lawyer. 

Two weeks later, however, Worthey began cooperating. On May 22 he met with 

law enforcement and began to “tell the truth.” Ramirez R., Vol. III at 1542. He followed 

up with discussions on August 8 and December 17. On May 13, 2013, he signed a plea 

agreement, which included a statement of facts substantially identical to his trial 

testimony. At trial, Defendants’ counsel cross-examined Worthey about his earlier 

denials of involvement but raised no discrepancies between his 2012 interviews and his 

plea-agreement statement or his testimony. 

Defendants cross-examined Worthey at length about the promises in his plea 

agreement. Worthey acknowledged that in exchange for his guilty plea and testimony 

against Defendants the government would dismiss four of his six charges, refrain from 

filing additional charges, recommend an offense-level reduction under the sentencing 

guidelines, and file a substantial-assistance motion to further reduce his sentence. 

What was not disclosed before the verdict were two meetings between Worthey 

and law enforcement. The first was on March 15, 2013, two months before Worthey 
13 

executed the plea agreement and six-and-a-half months before trial. Worthey and his 

attorney met with Special Agent Steven Gravatt and Assistant United States Attorney 

(AUSA) Lanny Welch, one of the attorneys who would prosecute Defendants at trial. A 

transcript of the meeting reveals that Welch told Worthey that he was likely to get a 

sentence of less than 30 years: 

I talked to [Department of Justice officials in Washington] this morning and 

they said it’s gotta be the RICO count and the gun count because that’s 30 

years and we can work down from 30. I know that doesn’t make you 

happy, but . . . Russell, I can’t promise you everything. Cause it’s the 

judge’s decision in the end, okay, so . . . we could do everything for you 

that we say we’re going to do, and the judge still says, “Nah, I don’t care.” 

But I don’t think that’s going to happen. I’ve done a lot of cases with this 

judge and I’ve done a lot of murder cases with this judge, okay? And he 

has been very good about following our recommendations in the past, 

alright. And we’re going to tell him that you and Anthony [Wright] 

cooperated from the start. . . . 

Id., Vol. II at 781 (spelled-out numbers and parentheses omitted).

 The discussion then turned to Worthey’s cooperation in an unrelated state-court 

murder case against Jerone Brown. Worthey was assured a benefit for his cooperation in 

that case as well: 

Welch: . . . I’m gonna leave here shortly. There’s going to be a homicide 

detective from the Wichita PD come in to talk to you about this other thing, 

okay. 

Worthey: Yeah. 

Welch: Now, uh, if you give them information that helps them lead to new 

charges, then we’re gonna take that into consideration also. 

Worthey: Okay. 

Welch: We, we will help you with your recommendation . . . as we always 

said, just be honest. Tell them what you know. If it works out, great, 

okay? 
14 

Id. at 782 (emphasis added). 

The second meeting was on June 14, 2013. According to Defendants’ posttrial 

pleadings, Worthey met with Special Agent Gravatt and a local detective to provide 

information about the state case. On June 18, Worthey testified at a preliminary hearing 

in the state case that in jail he had heard Brown talk about his involvement in two 

murders (unrelated to the Norteños or Defendants). On January 6, 2014, the government 

filed a motion to reduce Worthey’s sentence to 120 months, citing his cooperation against 

Defendants and others in this case, his testimony at the state preliminary hearing, and his 

expected testimony at the state trial. That same day, Worthey testified at Brown’s trial 

and Defendants were sentenced in this case. 

On January 14, 2014, Ramirez’s counsel learned from a newspaper article that 

Worthey had testified at the state trial. Soon after, both Defendants moved for a new trial 

on Brady grounds. The government’s response in opposition—filed on January 27, the 

same day Worthey received the reduced, 120-month sentence that the government had 

requested earlier that month—falsely stated that Worthey “had been offered nothing in 

return by federal and state authorities” for his cooperation in the state case, id. at 226, a 

position the government reiterated in later filings on January 31 and February 19. After 

much briefing, which included an eventual concession from the government that Worthey 

did receive a benefit for his state-court cooperation, the district court denied the motions. 
15 

2. Analysis 

To establish a Brady claim, “the defendant must prove by a preponderance of the 

evidence: (1) the government suppressed evidence; (2) the evidence was favorable to the 

defendant; and (3) the evidence was material.” United States v. Reese, 745 F.3d 1075, 

1083 (2014). “Evidence is material if there is a reasonable probability that the result of 

the proceeding would have been different had the evidence been disclosed.” Id. “A 

reasonable probability means the likelihood of a different result is great enough to 

undermine confidence in the outcome.” Id. (internal quotation marks omitted). When a 

defendant appeals the denial of a Brady motion, we review the district court’s underlying 

factual findings for clear error and its ultimate ruling de novo. See id.

The government concedes that its failure to disclose Worthey’s March and June 

meetings satisfies the first two elements of the Brady test. Therefore, Defendants’ claim 

turns on whether the suppressed evidence was material. We hold that it was not.

Several considerations convince us that disclosure of the meetings would not have 

affected the verdict. Turning first to the failure to disclose Worthey’s state-court 

cooperation, we do not see, and Defendants do not explain, how the promise of leniency 

for testimony in a state proceeding would influence the witness’s testimony in a federal 

trial about a totally different crime. It is one thing to say, as courts often have, that a 

promise of leniency in return for favorable testimony can induce a witness to embellish or 

even falsify that testimony. See, e.g., Douglas v. Workman, 560 F.3d 1156, 1174‒75 

(10th Cir. 2009) (per curiam) (prosecution failed to disclose agreement with witness in 
16 

exchange for his trial testimony). But it is quite another to suggest that a witness will 

commit perjury in one case because he may receive a benefit from testifying in a wholly 

unrelated case. Here, the prospective benefit to Worthey from offering information about 

the state offense could induce him only to embellish his testimony about that case. 

AUSA Welch told Worthey, “[I]f you give [the Wichita police department] information 

that helps them lead to new charges, then we’re gonna take that into consideration also.” 

Ramirez R., Vol. II at 782. Worthey may have had reason to provide false information 

about the state-court defendant in hopes of a lighter sentence in this case. But that does 

not impugn his testimony against Defendants. 

Defendants suggest that Worthey’s testimony in the state case established that he 

was “willing to do anything to curry favor with prosecutors for a lower sentence.” 

Ramirez Aplt. Br. at 62. But we do not think that this argument adds substantially to the 

impeachment of Worthey’s credibility. In United States v. Trujillo, 136 F.3d 1388 (10th 

Cir. 1998), we rejected the same argument when the undisclosed cooperation of the 

witness concerned, unlike here, information adverse to a friend of the witness. The 

defendant argued that the Brady violation was material because it would “demonstrate to 

the jury [that the witness] is the kind of person who would implicate anyone, including a 

friend, regardless of the truthfulness of his statements if it would benefit him.” Id. at 

1393 (internal quotation marks omitted). We held, however, that the undisclosed 

evidence was not material but merely cumulative, observing that “[t]he jury was well 
17 

aware of [the witness’s] criminal propensities and motive for testifying that [the 

defendant] committed the . . . robbery.” Id. at 1394. So too here. 

As for the assurance to Worthey that the government would “work down from 

thirty,” Ramirez R., Vol. II at 781, this undisclosed information was also immaterial 

because the trial evidence had clearly established that Worthey would likely be receiving 

a reduced sentence in exchange for his cooperation. Worthey admitted that the 

sentencing guidelines indicated that he would be sentenced to less than life imprisonment 

and that his plea agreement provided that the government would bring no further charges 

and would file a motion to reduce his sentence. 

Moreover, the timing of the undisclosed meetings forecloses the possibility that

they corrupted Worthey’s testimony. Worthey provided information to law enforcement 

on at least three occasions in 2012. Defendants do not direct us to any differences 

between Worthey’s statements at the 2012 meetings and his testimony at trial, and no 

differences were elicited at trial. We fail to see how any assurances given Worthey at the 

2013 meetings influenced his testimony when the substance of that testimony had 

previously been communicated to law enforcement. See Mastracchio v. Vose, 274 F.3d 

590, 604 (1st Cir. 2001) (“The fact that [the witness] had staked out his position well 

before he received any emoluments renders remote any possibility that the jury would 

have thought that he had fabricated his story in return for cash.”).

We also note that Defendants vigorously impeached Worthey at trial. He 

acknowledged that the sentencing guidelines indicated that he would most likely be 
18 

sentenced to less than life imprisonment; that his plea agreement provided that the 

government would bring no further charges and would file a motion to reduce his 

sentence because of his guilty plea, his adoption of a statement of facts incriminating 

Defendants, and his commitment to testify against Defendants; and that the government 

could renege if it did not like his testimony. He also admitted that he was a gang 

member; that he had fought rival gang members; that he managed the gang’s money to 

help imprisoned gang members and to buy drugs and guns; that he used drugs and had 

once traded some speakers and an amplifier for methamphetamine when he was 14 or 15; 

that he had been convicted of two felony burglaries; that he had pleaded guilty to an 

assault involving a tire iron; that he had once gotten into a fistfight with Defendant 

Ramirez; that he was a cousin of fellow cooperating witness Wright; that pending state 

charges for assault were dropped only because the federal government decided to 

prosecute this case; and that before his arrest he had lied about his involvement in the 

trailer-park shooting. Further, the jury was instructed to treat with greater care the 

testimony of a witness who provides evidence in exchange for personal advantage. And 

in closing argument, counsel for both Defendants emphasized Worthey’s plea agreement 

as a reason not to believe him. Any additional impeachment stemming from the 

undisclosed meetings “would have provided only marginal additional support for the 

defense” and was not material. United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 

2011) (brackets and internal quotation marks omitted); see United States v. Page, 
19 

808 F.2d 723, 730 (10th Cir. 1987) (failure to disclose additional arrest immaterial under 

Brady when witness impeached with seven felony convictions).

As a final effort, Defendants contend that nondisclosure of Worthey’s meetings 

was material because they could have used that information to expose Worthey’s 

misstatements on direct examination about his contacts with the government. Defendants 

focus on Worthey’s omission of the March meeting when he was asked how many times 

he had met with the government. Yet even though Worthey did not mention the March 

meeting, it does not follow that, had the Defendants been informed about the meeting, 

they would have been able to exploit Worthey’s omission. Defendants’ argument 

assumes that the government would have disclosed the meeting to Defendants yet 

forgotten to remind Worthey about it before trial or raise it on direct examination. We do 

not think that sequence of events is plausible. 

We recognize that Worthey was a very important witness and conviction was 

hardly assured. But these considerations are no substitute for the absence of 

impeachment value in the undisclosed evidence. Although we disapprove of the 

government’s nondisclosure and its responding to Defendants’ posttrial motions with 

false denials (which, at best, were the result of gross incompetence), we hold that the 

nondisclosure was immaterial. Defendants’ Brady challenge fails. 

B. Napue

Defendants raise a claim under Napue, 360 U.S. at 269, which held that the Due 

Process Clause would be violated if the prosecutor knowingly failed to correct perjured 
20 

testimony in its case, even when the evidence went only to the credibility of the witness. 

A Napue violation occurs when (1) a government witness committed perjury, (2) the 

prosecution knew the testimony to be false, and (3) the testimony was material. See 

United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002). We review for clear 

error the district court’s factual findings on the first two elements. See Smith v. Sec’y of 

N.M. Dep’t of Corr., 50 F.3d 801, 828 (10th Cir. 1995). The false testimony is material 

“unless failure to disclose [the perjury] would be harmless beyond a reasonable doubt.” 

United States v. Bagley, 473 U.S. 667, 680 (1985). 

Defendants assert that the government countenanced the false testimony of 

Worthey and Special Agent Gravatt when each omitted to mention meetings between 

Worthey and the government after being asked questions that should have caused them to 

disclose the meetings. Their Napue claim closely resembles their Brady claim. Indeed, 

one’s first instinct might be to reject the Napue claim on the same ground that the Brady

claim was rejected—lack of materiality—because the nondisclosure in both claims is 

essentially the same—the failure to disclose two meetings between Worthey and 

government agents. But there is an important difference. The materiality standard is not 

the same for the two claims. Under Brady the standard is whether “there is a reasonable 

probability that the result of the proceeding would have been different had the evidence 

been disclosed.” Reese, 745 F.3d at 1083. Under Napue materiality is easier to establish: 

the failure to disclose is material unless it was harmless beyond a reasonable doubt. 
21 

There is a reason that the materiality standard for Napue violations is more easily 

satisfied. A defendant may have a Brady claim if the witness unintentionally gave false 

testimony or the prosecution did not correct testimony that it should have known was 

false. See Smith, 50 F.3d at 831. But this court has repeatedly spoken of Napue claims as 

requiring perjury by the witness, see, e.g., United States v. Crockett, 435 F.3d 1305, 

1316‒17 (10th Cir. 2006); Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991); 

McBride v. United States, 446 F.2d 229, 230 (10th Cir. 1971), and the prosecutor’s 

knowledge of the falsity, see Crockett, 435 F.3d at 1317; Caballero, 277 F.3d at 1243; 

Smith, 50 F.3d at 831 (failure of detective to convey information to prosecutor precluded 

Napue claim, but Brady claim survives). A prosecutor’s knowing use of perjured 

testimony is misconduct that goes beyond the denial of a fair trial, which is the focus of 

Brady. It is misconduct that undermines fundamental expectations for a “just” criminaljustice system. As the Supreme Court expressed the point, “[T]he knowing use of 

perjured testimony . . . involves a corruption of the truth-seeking function of the trial 

process.” Bagley, 473 U.S. at 680 (internal quotation marks omitted); accord Smith, 

50 F.3d at 826 n.38 (explaining difference between materiality standards under Napue

and Brady). 

Defendants, however, have failed to establish the elements of a Napue claim. We 

first address Gravatt’s testimony (about which only Ramirez complains). The alleged 

false testimony involved his denial of any recorded meetings: 

Q. As part of the investigation, you mentioned some debriefings? 
22 

A. Yes. 

Q. Following the Indictment in this case, uhm, you or some officer with 

the ATF participated with maybe Detective Bice in meeting with—you’ve 

been here all this—many of the witnesses we’ve seen? 

A. Yes. 

Q. Were any of those meetings recorded? 

A. No. 

. . . . 

Q. And you understand if those meetings are recorded, you’re required to 

turn them over to defense counsel? 

A. Yes. 

Ramirez R., Vol. III at 2436–37. On redirect examination, Gravatt was asked, “after all 

of these debriefings, were reports generated that were turned over to the defense in this 

case?” Id. at 2437. He responded, “Every single one, yes.” Id. 

Ramirez contends that this testimony was false because Gravatt attended 

Worthey’s March and June 2013 interviews, both of which were recorded. The district 

court disagreed, finding that Gravatt understood defense counsel’s imprecise questioning 

to refer to a series of proffer meetings attended by him and Detective Bice and that 

Gravatt truthfully responded that none of those meetings was recorded. This is not a 

clearly erroneous interpretation of the testimony. Consequently, Gravatt’s testimony did 

not violate Napue. 

 As for Worthey, the challenged testimony involves his omission of the March and 

June meetings during the cross-examination mentioned earlier: 

Q. After your arrest in this case, how many times did you meet with the 

Government? 

A. Three times. 

Q. Do you remember when those occasions were? 

A. No. 
23 

Q. You met with them on May 22nd of 2012; is that correct? A few weeks 

after you were first arrested? 

A. Correct. 

Q. And then again on June 14th, 2012? 

A. I don’t know about that one. I met once in August and once in 

December. 

Q. Okay. You remember meeting on August 8th of 2012? 

A. Correct. 

Q. And then again on December 17 of 2012? 

A. Correct. 

Q. And then since that time, have you met with the Government at all? 

A. Only on [sic] just to let me know that I was coming to testify. 

Q. And when was that? 

A. Like three weeks ago. 

Id. at 1547–48. 

The district court found that Worthey’s omission of the meetings did not amount 

to knowing false testimony or perjury, and that the prosecutor did not knowingly fail to 

correct Worthey’s testimony but simply failed to recall the meetings during the 

testimony. Defendants argue that it is clear that Worthey’s omission was intentional. We 

disagree. We can imagine no reason why Worthey would admit to three other meetings 

with the government yet purposely conceal the March and June meetings. As already 

discussed, any additional impeachment of or embarrassment to Worthey from revealing 

the meetings was minimal compared to the deluge of material about Worthey’s checkered 

past already divulged to the jury. And the meetings were brief, further suggesting that 

Worthey could have forgotten about them. The district court’s determination that 

Worthey did not commit perjury is not clearly erroneous. 
24 

Likewise, the district court could credit the prosecutor’s statement that he had 

forgotten the meetings. Indeed, Defendants present no serious challenge to that finding 

by the court. We therefore reject the Napue claim. 

C. RICO 

 Defendants were charged under RICO, 18 U.S.C. § 1962(d), with conspiring to 

violate 18 U.S.C. § 1962(c). Section 1962(c) states: 

It shall be unlawful for any person employed by or associated with any 

enterprise engaged in, or the activities of which affect, interstate or foreign 

commerce, to conduct or participate, directly or indirectly, in the conduct of 

such enterprise’s affairs through a pattern of racketeering activity or 

collection of unlawful debt. 

18 U.S.C. § 1962(c) (emphasis added). Defendants do not take issue with the district 

court’s jury instructions explaining the meanings of conspiracy, enterprise, or pattern of 

racketeering activity. But they challenge the following portion of the instruction 

explaining what is required for the activities of the enterprise to affect interstate 

commerce: “The evidence also need not show any particular degree of an effect on 

interstate commerce. The government is not required to prove a significant or substantial 

effect on interstate or foreign commerce. Rather, a minimal effect is sufficient.” 

Ramirez R., Vol. I at 1243. They argue that more than a minimal effect was required in 

this case. 

“We review de novo the jury instructions as a whole and view them in the context 

of the entire trial to determine if they accurately state the governing law and provide the 

jury with an accurate understanding of the relevant legal standards and factual issues in 
25 

the case.” United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir. 2008) (internal 

quotation marks omitted). The “shaping or phrasing of a particular jury instruction,” 

however, is reviewed only for abuse of discretion. Id. 

The government contends that we need not address this issue because it had no 

obligation to prove a RICO enterprise in the first place; rather, all it had to show under 

§ 1962(d) was that Defendants belonged to a conspiracy to associate with a RICO 

enterprise. We disagree. True, “§ 1962(d) does not require the Government to establish 

that an enterprise existed.” United States v. Harris, 695 F.3d 1125, 1132 (10th Cir. 

2012). But the jury still needed to be told what Defendants allegedly conspired to do. It 

had to find that Defendants “intend[ed] to further an endeavor which, if completed, would 

satisfy all of the elements of a substantive criminal offense,” Salinas v. United States, 522 

U.S. 52, 65 (1997) (emphasis added). In particular, the government had to prove that 

Defendants conspired to commit an offense with an interstate-commerce component, and 

the jury had to be instructed on the meaning of that component. We therefore must 

address Defendants’ argument. 

We have no binding precedent on the matter. As we said a decade ago, “Whether 

§ 1962(c) should be interpreted to require a substantial effect on interstate commerce is 

an open question in this circuit.” United States v. Smith, 413 F.3d 1253, 1274 (10th Cir. 

2005), overruled on other grounds by Boyle v. United States, 556 U.S. 938, 948–49 

(2009). Most other circuits, however, have held that RICO requires only a minimal effect 

on interstate commerce. See United States v. Marino, 277 F.3d 11, 34–35 (1st Cir. 2002); 
26 

United States v. Miller, 116 F.3d 641, 673–74 (2d Cir. 1997); United States v. Cornell, 

780 F.3d 616, 621‒23 (4th Cir. Mar. 16, 2015), pet’n for cert. docketed, No. 14-10267 

(U.S. June 15, 2015); United States v. Delgado, 401 F.3d 290, 297 (5th Cir. 2005); 

United States v. Riddle, 249 F.3d 529, 537 (6th Cir. 2001); United States v. Espinoza, 

52 F. App’x 846, 848–49 (7th Cir. 2002) (per curiam) (unpublished); United States v. 

Shryock, 342 F.3d 948, 984 & n.6 (9th Cir. 2003); United States v. Beasley, 72 F.3d 

1518, 1526 (11th Cir. 1996); cf. United States v. Maloney, 71 F.3d 645, 663 (7th Cir. 

1995) (minimal-effect jury instruction not plain error). 

Defendants do not dispute the general rule but argue that it does not apply when 

there is no evidence that the enterprise engaged in economic activity and that “there was 

no evidence that the DVs . . . ever engaged directly in interstate commerce or economic 

activity.” Garcia Aplt. Br. at 28. They rely on a decision by the Sixth Circuit and two 

district-court decisions from that circuit: Waucaush v. United States, 380 F.3d 251 (6th 

Cir. 2004); United States v. Garcia, 143 F. Supp. 2d 791 (E.D. Mich. 2000); and United 

States v. Garcia, 68 F. Supp. 2d 802 (E.D. Mich. 1999). Because the three decisions 

follow the same analysis, we need discuss only the circuit decision. In Waucaush federal 

prosecutors indicted a member of a street gang on RICO charges, alleging that he and his 

associates “murdered, conspired to murder, and . . . assaulted, with intent to murder, 

members of two rival gangs.” 380 F.3d at 253. Seeking habeas relief, the defendant 

argued that he could not have violated RICO because his gang was not an enterprise that 

“‘engaged in, or the activities of which affect[ed], interstate . . . commerce.’” Id. at 255 
27 

(quoting 18 U.S.C. § 1962(c)). The government did not assert that the gang engaged in 

any sort of commerce, so the only issue was whether the gang’s effect on interstate 

commerce had to be substantial or merely minimal to sustain a RICO conviction. The 

court said that in most cases involving a Commerce Clause challenge to RICO, a minimal 

effect sufficed because the enterprise engaged in economic activity, such as trafficking in 

drugs, extorting money, or fencing stolen merchandise. The defendant’s gang, however, 

participated only in “violence qua violence.” Id. at 256. In that circumstance, said the 

court, the government was required to prove that the enterprise had a substantial effect on 

interstate commerce, and the gang’s violence alone did not suffice. See id. at 258 (“The 

[gang’s] violent enterprise surely affected interstate commerce in some way—a corpse 

cannot shop, after all. But we may not ‘follow the but-for causal chain from the initial 

occurrence of violent crime . . . to every attenuated effect upon interstate commerce.’” 

(quoting United States v. Morrison, 529 U.S. 598, 615 (2000)). The court concluded that 

the defendant had not violated RICO. 

 That decision may be correct. See Morrison, 529 U.S. at 617 (“We . . . reject the 

argument that Congress may regulate noneconomic, violent criminal conduct based 

solely on that conduct’s aggregate effect on interstate commerce.”). But Defendants err 

in saying that Waucaush applies here because (according to them) their gang did not 

engage in economic activity. There was ample evidence that the Norteños’ enterprise 

included drug trafficking, and drug trafficking is undoubtedly economic activity. See, 

e.g., Shryock, 342 F.3d at 984 n.6 (“drug trafficking and extortion[] are quintessential 
28 

illegal economic activities”). The evidence of drug trafficking included testimony from 

law enforcement that the gang trafficked in methamphetamine, cocaine, and marijuana, as 

well as testimony from gang members and their associates that the gang distributed drugs 

and was trying to accomplish “more drug selling; more profits.” Ramirez R., Vol. III at 

2258. And there was evidence that some of the trafficking was interstate in character: 

members of the gang sent money to California for drugs and sold drugs mailed from 

California. Because the Norteños engaged in economic activity, the factual predicate for 

Defendants’ argument fails. They do not argue that the minimal-effect instruction was 

incorrect even if there was evidence that the Norteños engaged in economic activity. 

D. VICAR 

Defendants next contest their VICAR convictions, focusing here as well on the 

statute’s interstate-commerce requirement. The VICAR statute punishes violent crimes 

committed “for the purpose of gaining entrance to or maintaining or increasing position 

in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a). Similar to 

RICO, VICAR limits the definition of enterprise to a group “which is engaged in, or the 

activities of which affect, interstate or foreign commerce.” Id. § 1959(b)(2). The 

indictment identified the Norteños gang as such an enterprise and Defendants’ predicate 

VICAR offenses as various crimes under Kansas law, specifically, murder, assault with a 

dangerous weapon, and related attempt and conspiracy offenses. 

Defendants raise an as-applied challenge to their VICAR convictions. Their 

argument is much the same as their argument against the RICO instruction: “Application 
29 

of VICAR to [Defendants], violated the Commerce Clause because the murder and other 

violent crimes had no effect on interstate commerce and were non-commercial in nature, 

and [were] unrelated to organized interstate trafficking efforts in drugs or other 

contraband.” Garcia Aplt. Br. at 33. Our response is likewise similar. The factual 

predicate of the argument is incorrect. As previously discussed, the Norteños’ enterprise 

did have a commercial component—namely, drug trafficking. We reject the VICAR 

challenge because it is based on a false factual premise. 

E. The Gang Expert’s Testimony 

Defendants’ final challenge is to the admission of several statements by the 

government’s proffered gang expert, Shane Webb, who had focused on gang activity as 

an officer of the Dodge City Police Department. They argue that these statements 

involved no expertise at all, but rather were merely “parrot[ed]” testimonial hearsay in 

violation of their Confrontation Clause rights. United States v. Kamahele, 748 F.3d 984, 

1000 (10th Cir. 2014). We review de novo a district court’s legal conclusions regarding 

the Confrontation Clause. See United States v. Torrez-Ortega, 184 F.3d 1128, 1132 (10th 

Cir. 1999). The admission of evidence barred by the Confrontation Clause requires 

reversal of the conviction unless the admission was harmless beyond a reasonable doubt. 

See United States v. Summers, 414 F.3d 1287, 1303 (10th Cir. 2005). 

1. Gang-Expert Testimony and the Confrontation Clause 

The Sixth Amendment’s Confrontation Clause guarantees the right of the accused 

“to be confronted with the witnesses against him.” U.S. Const. amend. VI. It bars 
30 

“admission of 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 crossexamination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). Testimonial 

statements include “those in which state actors are involved in a formal, out-of-court 

interrogation of a witness to obtain evidence for trial.” Michigan v. Bryant, 131 S. Ct. 

1143, 1155 (2011). The statements may or may not be hearsay excluded under Federal 

Rule of Evidence 802. See Crawford, 541 U.S. at 51. 

Special considerations arise under the Confrontation Clause in the context of 

expert testimony. Federal Rule of Evidence 703 allows an expert to “base an opinion on 

facts or data in the case that the expert has been made aware of or personally observed”; 

and “[i]f experts in the particular field would reasonably rely on those kinds of facts or 

data in forming an opinion on the subject, they need not be admissible for the opinion to 

be admitted” (emphasis added). In particular, the rule could allow an expert to rely on 

testimonial hearsay. Of course, Rule 703 cannot override the Confrontation Clause, but 

we have held that the Rule and the Clause can be reconciled if the expert exercises 

“independent judgment” in assessing and using the hearsay (and other sources) to reach 

an expert opinion. Kamahele, 748 F.3d at 1000; see also United States v. Pablo, 696 

F.3d 1280, 1288 (10th Cir. 2012). As the Fourth Circuit reasoned: “As long as [an 

expert] is applying his training and experience to the sources before him and reaching an 

independent judgment, there will typically be no Crawford problem. The expert’s 
31 

opinion will be an original product that can be tested through cross-examination.” United 

States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). 

The independent-judgment requirement under the Confrontation Clause will 

generally be satisfied if the testimony by the expert satisfies the Rule 702 requirement 

that the expert testimony assist the jury because of the value of the witness’s expertise. 

See Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012) (plurality opinion) (“[T]rial courts 

can screen out experts who would act as mere conduits for hearsay by strictly enforcing 

the requirement that experts display some genuine ‘scientific, technical, or other 

specialized knowledge [that] will help the trier of fact to understand the evidence or to 

determine a fact in issue.’” (quoting Fed. R. Evid. 702(a))). On the other hand, if “[t]he 

jury [is] every bit as qualified to analyze” a piece of mundane evidence as the purported 

expert, the expert provides no added value on which to be cross-examined. United States 

v. Benson, 941 F.2d 598, 605 (7th Cir. 1991) (expert “had nothing to offer on this 

question that would assist the jury’s understanding of the issue”), mandate recalled and 

amended, 957 F.2d 301 (7th Cir. 1992). 

In this case we apply the above analysis to testimony by a gang expert. We have 

long recognized the usefulness of such testimony “because the average juror is often 

innocent of the ways of the criminal underworld.” United States v. Vann, 776 F.3d 746, 

758 (10th Cir. 2015) (brackets and internal quotation marks omitted). Expert testimony 

about a gang’s history, territory, colors, hand signs, graffiti use, naming practice, tattoos, 

structure, membership rules, and similar sociological evidence can assist the jury in 
32 

understanding and evaluating evidence concerning the specific crimes charged. See 

United States v. Archuleta, 737 F.3d 1287, 1294–95 (10th Cir. 2013); United States v. 

Robinson, 978 F.2d 1554, 1561–63 (10th Cir. 1992); United States v. Hartsfield, 976 F.2d 

1349, 1352 (10th Cir. 1992); United States v. Mejia, 545 F.3d 179, 187 (2d Cir. 2008). 

But there is no sociological expertise in testifying to gang members’ specific travels, 

specific uses of gang funds, or commission of specific crimes. See Mejia, 545 F.3d at

194–95; see also Benson, 941 F.2d at 605 (admission of IRS agent’s testimony an abuse 

of discretion when “[t]here was no complex transaction that had to be broken down so the 

jury could understand it, no tax law concept or accounting principle to explain”). When 

the expert’s testimony on such matters is not based on personal knowledge but on 

testimonial hearsay, the testimony violates not only the rules of evidence but also the 

Confrontation Clause. We have repeatedly cautioned about the impropriety of permitting 

an “expert” witness to “parrot[]” testimonial hearsay. Kamahele, 748 F.3d at 1000. As 

we said in Pablo, “If an expert simply parrots another individual’s out-of-court statement, 

rather than conveying an independent judgment that only incidentally discloses the 

statement to assist the jury in evaluating the expert’s opinion, then the expert is, in effect, 

disclosing that out-of-court statement for its substantive truth; the expert thereby becomes 

little more than a backdoor conduit for an otherwise inadmissible statement.” 696 F.3d at 

1288; see United States v. Garcia, 752 F.3d 382, 394 (4th Cir. 2004) (expert not 

permitted to “channel[]” statements from nontestifying witnesses). 
33 

An important consideration in distinguishing proper testimony from parroting is 

the generality or specificity of the expert testimony. As stated in Mejia, when gangexpert testimony descends to a discussion of specific events recounted by others, the 

expert is merely adding “unmerited credibility” to the sources, 545 F.3d at 192 (internal 

quotation marks omitted), and summarizing evidence in a way that should be reserved for 

the government’s closing argument. The court explained: 

If the officer expert strays beyond the bounds of appropriately “expert” 

matters, that officer becomes, rather than a sociologist describing the inner 

workings of a closed community, a chronicler of the recent past whose 

pronouncements on elements of the charged offense serve as shortcuts to 

proving guilt. As the officer’s purported expertise narrows from 

“organized crime” to “this particular gang,” from the meaning of “capo” to 

the criminality of the defendant, the officer’s testimony becomes more 

central to the case, more corroborative of the fact witnesses, and thus more 

like a summary of the facts than an aide in understanding them. 

Id. at 190. When an expert’s bailiwick is only “internal expertise” of the investigation at 

hand and the expert does no more than “disgorge . . . factual knowledge to the jury,” the 

expert is “no longer aiding the jury in its factfinding [but is] instructing the jury on the 

existence of the facts needed to satisfy the elements of the charged offense.” Id. at 191; 

cf. United States v. Dukagjini, 326 F.3d 45, 59 (2d Cir. 2003) (pre-Crawford opinion 

holding that expert testimony violated Confrontation Clause when gang expert “was not 

translating drug jargon, applying expert methodology, or relying on his general 

experience in law enforcement,” but rather “was relying on his conversations with nontestifying witnesses and co-defendants”). Such a witness cannot be distinguished from 
34 

any other witness conveying hearsay, and the parroting by the “expert” may violate the 

Confrontation Clause. 

2. The Gang Expert’s Statements 

These principles in hand, we turn to the facts of this case. The government called 

Webb as its first witness at trial. Defendants take issue with five of his statements.1

a. Statement One 

Webb testified about the DV’s home-invasion robberies of Guatemalan 

immigrants. He was asked, “And is there anything about the stature of Guatemalans that, 

according to DV gang members, make them an attractive target?” Ramirez R., Vol. III at 

982. He replied, “Yes. I’ve been told that they are small. They’re also scared about their 

immigration status and . . . they’re afraid if they call law enforcement that they will be 

deported.” Id. Defendants contend that admission of the answer was error. 

The hearsay is readily apparent from the exchange. Webb was asked for his 

opinion about whether Guatemalans’ stature makes them attractive targets “according to 

DV gang members.” Id. (emphasis added). His answer relayed at least one out-of-court 

statement: “I’ve been told that they are small.” Id. (emphasis added). And that 

 

1

 Defendants identify eight allegedly problematic statements in their briefing, but at trial 

they objected on Confrontation Clause grounds to only five of them. On appeal they do 

not argue that the admission of the other three statements was plain error, so we will not 

review them. See United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012) 

(“[W]here a defendant has forfeited an issue in the district court, in order to prevail in an 

appellate challenge regarding that issue, a defendant must make a sufficient showing of 

error under the plain-error standard.”). 
35 

statement was offered for its truth (not that Guatemalans are small, but why DV gang 

members target them). Webb indicated that the source of his information was 

investigative interviews, and the government has not suggested that the hearsay he relied 

on was other than testimonial. See Bryant, 131 S. Ct. at 1155 (statements gathered from 

“formal, out-of-court interrogation of a witness to obtain evidence for trial” are 

testimonial). 

The government cannot plausibly argue that Webb applied his expertise to this 

statement. It involves no interpretation of gang culture or iconography, no deciphering of 

coded messages, no calibrated judgment based on years of experience and the synthesis 

of multiple sources of information. He simply relayed what DV gang members told him. 

Admission of the testimony violated the Confrontation Clause. 

Still, we must decide whether in light of the whole record Webb’s testimony was 

harmless beyond a reasonable doubt. Factors for determining harmless error include “the 

importance of the witness’[s] . . . testimony in the prosecution’s case, the cumulative 

nature of the testimony, the presence or absence of corroborating or contradictory 

testimony, the extent of cross-examination otherwise permitted, and the overall strength 

of the prosecution’s case.” Summers, 414 F.3d at 1303 (internal quotation marks 

omitted). 

We conclude that the testimony was harmless. The “expert opinion” that DV 

members targeted Guatemalans added little to the other evidence on the matter. Jesus 

Flores and the victims gave first-hand testimony that Defendants participated in a home-
36 

invasion robbery of Guatemalans. DV member Galindo testified that he and other gang 

members were involved in about 20 robberies of Guatemalan immigrants, whom they 

targeted because they would hold their money in cash rather than deposit it in banks. 

And Webb testified at length without objection (at trial or on appeal) that Norteñoaffiliated gangs committed home-invasion robberies of Guatemalan immigrants. 

b. Statement Two 

Webb was next asked: “And do you have experience, Agent Webb, where 

Guatemalan immigrants have been the victims of these robberies and lost sizable amounts 

of money, currency?” Ramirez R., Vol. III at 982. He answered, “Yes.” Id. This 

testimony, too, is presumably based upon testimonial-hearsay statements of DV members 

and Guatemalan victims to the police. Cf. Mejia, 545 F.3d at 194–95 (no expertise 

needed to testify to compilation of crimes allegedly committed by gang). Nevertheless, it 

was harmless for the same reason that admission of the previous statement was harmless. 

c. Statement Three 

Webb testified about Defendants’ “status,” meaning seniority or respect, in the DV 

gang: 

Q. . . . [D]o you know Pedro Garcia and Gonzalo Ramirez to be people, 

gang members, that were considered to have status within the DV gang? 

A. Yes. 

Q. . . . Tell us how you know that. 

A. Through debriefing other gang members that have cooperated with us. 

Ramirez R., Vol. III at 989. This testimony is quintessential parroting. 
37 

 But Webb’s statement about Defendants’ status was harmless. At trial, Worthey 

agreed that Defendants “had a great deal of status,” id. at 1481, to the point of “the 

ultimate respect,” id. at 1493. Wright testified that Defendants were the type of gang 

members who “ha[d] heart,” meaning they would go with him if he was going to fight or 

do something of that nature, id. at 1256, and that gave Defendants “status,” id. at 1257. 

Torres testified that Garcia received more respect than other gang members, that Ramirez 

was viewed the same way, and that Ramirez’s “status within the gang” was one of 

respect. Id. at 2102. Given this testimony from fellow gang members, we are convinced 

that Webb’s reference to Defendants’ status was harmless.2

d. Statement Four 

Webb testified that DV gang members had told him that they were “jumped in,” 

meaning physically assaulted, as their initiation into the gang. Id. at 1007. This 

evidence, too, was harmless. The statement does little to inculpate Defendants in any 

meaningful way. And several gang members testified about their own and others’ jumpins. The testimony was so cumulative that by the third day of testimony the court 

instructed the government to move more quickly when questioning witnesses about 

jump-ins. Webb’s testimony on jump-ins did not contribute to the guilty verdicts. 

 

2

 It may be that Webb’s testimony about status was based solely on what he was told by 

persons who testified at trial. Because the trial witnesses were subject to crossexamination, the use of their hearsay statements would not violate the Confrontation 

Clause. See Crawford, 541 U.S. at 59 n.9 (“[W]hen the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of his 

prior testimonial statements.”). 
38 

e. Statement Five 

Finally, Webb testified about a ledger that recorded payments made by gang 

members at gang meetings. He was asked: “And you know this was a gang roster and . . . 

this was a ledger of monies being paid for meetings attended, you know that how?” Id. at 

1012. He replied: “From two—debriefing of two different individuals that described 

that.” Id. This is parroting. There is no application of experience or judgment; Webb 

simply repeated in court what two persons had told him about the ledger. Even so, the 

statement was harmless. The apparent point of this testimony was to demonstrate that 

there were “rosters of DV gang members and proof that there [were] meetings being held 

by the DV.” Id. But the jury also heard about the DV enterprise from no fewer than 

seven self-avowed gang members. And Worthey provided far more detail about the 

ledger, testifying that the DV gang held meetings and that at those meetings the members 

made monthly payments toward the gang, which he recorded in the ledger; another gang 

member, Juan Torres, corroborated this testimony. Webb’s statement about the ledger, 

like his other contested statements, was harmless. 

III. CONCLUSION 

We AFFIRM the judgment of the district court.