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

No. 10-51174

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. LORENZO OLIVAS-PENA; PEDRO BALDOVINAS; LORENZO DOMINGUEZ-SIANEZ; EDUARDO SORIANO-VELADOR; JUAN ESCOBEDO-BALERO, Defendants - Appellants

Appeals from the United States District Court for the Western District of Texas USDC No. 4:10-CR-2-10

Before KING, WIENER, and HAYNES, Circuit Judges. PER CURIAM: * A jury convicted Defendants-Appellants Lorenzo Olivas-Pena, Pedro Baldovinas, Lorenzo Dominguez-Sianez, Eduardo Soriano-Velador, and Juan Escobedo-Balero of conspiracy to cause a riot at a federal penal facility (Count 1); aiding and abetting others to c a u s e a riot at a federal penal facility (Count 2); and aiding and abetting others to intentionally use fire to commit either Count U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 29 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

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

. R. 47.5 .4. Case: 10-51174 Document: 00511772065 Page: 1 Date Filed: 02/29/2012No. 10-51174

1 or Count 2 (Count 3). On appeal, the defendan t s a r gu e that there was insufficient evidence to support their convictions. For the following reasons, we AFFIRM the district court’s judgments. The charges against the defendants arose from a five-day inm a t e r i o t at Reeves County Detention Center (“RCDC”) in 2009. RCDC has three separate 1 facilities—R I, R II, and R III. The inmates housed at R I a n d R II are exclusively illegal immigrants, and ninety-five percent o f these inmates are citizens of Mexico. There are thirty-on e states and one Federal District in the country of Mexico, and upon enteri n g R C DC, the inmates align with their respective states. The inmates of each state elect a state representative, who has the final say for that state’s i n m a tes and controls that state’s inmate population. This internal organization of inmates is not officially recognized by RCDC, but it exerts a tremendous influence over the inmate population. The incident that precipitated the outbreak of the riot was the placement of an inmate, Ramon Garcia, in the Special Housing Unit (“SHU”). When RCDC officials refused to release Garcia from the SHU, inmates started rioting in R I and R II—damaging doors and windows, break i n g o ut of their housing units, throwing items such as concrete at RCDC officers, and tearing holes in fences. Within several hours, the inmates had caused extensive damage to R I and R II. All of R I had been burned, and R II h a d been flooded due to the inmates’ destruction of the fire sprinklers. D u e t o t h i s severe damage to the housing units, the inmates began living outside in the recreation yards. Approximately five days after the outbreak of the riot, RCDC officials finally regained control, as the last group of inmates surrendered and returned to their housing units. At trial, the government called a number of RCDC officers to testify. The jury convicted the defendants on all counts. Because the defendants preserved

RCDC, loca ted in Peco s, T e x a s , is a fed eral pena l fac ilit y ope rat ed by a pr ivate 1

cor por atio n un dert he dir ect ion and regula tio n o f the Bureauof Pr iso ns. 2 Case: 10-51174 Document: 00511772065 Page: 2 Date Filed: 02/29/2012No. 10-51174

the issue of the sufficiency of the evidence, we review “whether, viewing all the evidence in the light most favorable to the verdict, a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt.” United States v. Villarreal , 324 F.3d 319, 322 (5th Cir. 2003) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). “The evidence need not exclude every reasonable hypothesis of innocenc e or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence.” United States v. Lopez , 74 F.3d 575, 577 (5th Cir. 1996) (citati ons omitted). 1. Count 1 On Count 1 of the indictment, the defendants were convicted of conspiracy to cause a riot at a federal penal facility, in violation of 18 U.S.C. §§ 371, 1792. 2 In order to obtain a conviction on this count, the government was required to prove that: (1) the defendant and at least one other person made an agreement to commit the crime of cau s i n g a riot at RCDC; (2) the defendant knew the unlawful purpose of the agreement and joined in it willfully; and (3) one of the

cons p i r a tors committed an overt act in furtherance of the conspiracy. See 3 United States v. Bourgeois , 950 F.2d 980, 9 83 (5th Cir. 1992); United States v. Robles-Pantoja , 887 F.2d 1250, 1254 (5th Cir. 1989). We have stated that a “jury
may infer a conspiracy agreement from circumstantial evidence

. . . and may rely
upon presence and association, a l ong with other evidence, in finding that a conspiracy existed.”Robles-Pantoja , 887 F.2d at 1254 (citations omitted).

Sec tio n 1792 pr ovide s: “Who ever ins tigat es , connives, wi llf ully att em pt s to caus e, 2

ass ist s, or cons pir es to c a u s e any mut iny or riot , at any Fede ral pena l, det enti on, or cor rec tio nal fac ilit y, sha ll be imp ris onednot mor e than tenyears or fine d unde r this tit le, or both .” 18 U .S .C. § 1792. The indict me nt lis tedthreeovert act s in fur ther ance of th e cons pir acy: (1) bre ak ing 3 wi ndow s, door s, fence s, and furn itur e at RCDC; (2) igniti ng fir es at RCDC; and (3) throw ing roc ks andc oncr eteatRCD C s taf f and sp raying RCDC st aff w ith fir e h os es . 3 Case: 10-51174 Document: 00511772065 Page: 3 Date Filed: 02/29/2012No. 10-51174

On appeal, the defendants argue that the government failed to prove that the defendants knowingly agreed to cause a riot at RCDC. The following 4 evidence against each defendant demonstra t e s t h a t a rational jury could have inferred that each defendant knowingly and willfully joined in the conspiracy to cause a riot at RCDC.

a. Escobedo-Balero The government’s evidence against Escobedo-Bal e r o was substantial. Escobedo-Balero was the state representative of Chihuahua, the most populous Mexican state at RCDC, and therefore he had the most control over the inmate population. At trial, many RCDC officers testified that Escobedo-Balero was the leader of the inmate riot—from the very beginning to the very end. Before the outbreak of the riot, he attended ev e r y meeting with RCDC officials. At the meetings, he became angry and demanding, threatenin g th e officials that, if they did not release Garcia from the SHU, he would not be responsible for what the inmate p o p u l a t ion would do. Also, just hours before the uprising, EscobedoBalero met with a group of approximately twenty inmates. Additionally, after visiting Garcia in the SHU, Escobedo-Balero incited inm a t e s to riot by yelling to them that there was going to be a disturbance. Furthermore, within seconds of his return to R I, chaos erupted among the inmates. Throughout the duration of the rio t , E s c obedo-Balero continued to exert tremendous con t r o l o v er the inmates. For instance, he was heard numerous

The def enda nts als o argue on app eal that the governm ent intr oduc ed no evide nce that 4 they com mi tte d any of the ov e r t a c ts allege d in the indi ctm ent. Ho we ver, the def enda nts ’ argum ent is mi sp lace d, beca u s e the governm ent wa s only requ ired to pr ove that one of the cons pir ator s, kn ow n or unk now n, com mi tte d an overt act in fur ther ance of the cons pir acy. See Bourge ois , 950 F.2d at 983. Subs tant ial evide nce introd uced at tri al indi cat ed that the overt act s allege d in the indi ctm ent occ urr ed and we re com mi tte d by inm ates

. A rat ional jury coul d have fou nd that the inm ates wh o com mi tte d the overt act s we re cons pir ator s, as the evide nce intr oduc ed at tri al indi cat ed that ther e wa s a pr eco nceived plan to caus e a riot at RCDC. There for e, the thir d elem ent of the cons pir acy count—t he overt act requ irem ent—is sat isf ied forea ch def

enda nt. 4 Case: 10-51174 Document: 00511772065 Page: 4 Date Filed: 02/29/2012No. 10-51174

times on the radio giving orders to inmates. Additionally, he was present during all of t h e negotiations with RCDC officials, and he would not allow RCDC officials to negotiate with other state representatives. Escobedo-Balero and his “crew” o f approximately twenty inmates were the last inmates to surrender to RCDC authorities. Before the group went inside, Escobedo-Balero thanked his

c r e w f o r t heir help, and the inmates played “We are the Champions” as the y walked inside. Escobedo-Balero was the last inmate to s urrender. From this overwhelming evidence, a jury could have rationally inf erred that EscobedoBalero was the main leader of the riot and entered into an agreement with other inmates to cause a riot at RCDC.

b. Baldovinas Baldovinas was the state r e p r e s entative of Michoacan, the state Garcia aligned with, which was an important fact given that Garcia’s placement in the SHU spark e d t he inmate riot. Baldovinas therefore had control over the Mich o acan inmate population. Lik e E s c ob e do - B al ero , B al dovin a s att e n d e d eve ry meeting with RCDC officials before the riot. Baldovinas became very angry and demanding at the meetings, and threatened the officers that, if Garcia was not released from the S H U , he would not be responsible for what would happen. Furthermore, seconds after he and Escobedo-Balero returned to R I, the inmates began rioting. From this evidence, a rational jury could have i n f e r r e d t hat Baldovinas—a state representative who had the power to incite his population to riot—did indeed encourage the inmates to riot upon his return to R I. Further bolstering the conclusion that Baldovinas and Escobedo-Balero’s conspiracy convictions should be affirmed is the similar case of United States v. G o nza lez-Alvidres , 281 F. App’x 351 (5th Cir. 2008), where we upheld t w o inmates’ convictions for conspiracy to cause a riot at a federal penal facility. We reasoned that a reasonable jury could have inferred a c o n s p iracy between the two defendants based on the following circumstantial evidence: the two inmates

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were the “functional leaders” of the cell block, the inmates became angry and made threats to officers, and they whis p e r ed and made hand motions to each

o ther. Id. at 352-53. Similarly, in the instant case, a rational jury co u l d h av e inferred that Baldovinas and Escobedo-Balero played key roles in the conspiracy to cause the riot, giv e n t h e i r status as state representatives, their threats to RCDC officers, and that the riot began within seconds after their return to R I.

c. Soriano-Velador Evidence introduced at trial indicated that Soriano-Velador had close ties to Escobedo-Balero. At one p o int during the riot, Soriano-Velador was seen wearing a disguise, which consisted of a face covering and a yellow “ s e c u r ity staff” jacket, as he was monitoring inmate traffic between two housing units. Soriano-Velador was heard on the radio directing the movement of inmates and

was seen mo vi n g firewood and food at the direction of Escobedo-Balero. Furth e r more, Soriano-Ve l a do r ac t e d a s a b o dy gu ar d f o r E s c ob e do - B al e ro , s t ayin g close to him during his negotiations with RCDC officials. Soriano-Velador was also in Escobedo-Balero’s last group of inmates to surrender to the authorities. The jury could h av e rationally inferred that Soriano-Velador played an important role in the conspiracy to cause a riot, given that he was in EscobedoBalero’s trusted group and that he controlled and directed the traffic of inmates.

d. Dominguez-Sianez The government’s evidence showed that Dom in gu e z - S i anez was a member of Escobedo-Balero’s crew. Dominguez-Sianez performed tasks on the orders of Escobedo-Balero, such as picking up firewood and food and taking these items back to t h e i nmates. Additionally, along with Soriano-Velador, DominguezSianez acted as a bodyguard for Escobedo-Baler o d u r ing his negotiations with RCDC officials. Dominguez-Sianez was in Escobed o-Balero’s last group of inmates to surrender to RCDC authorities. Based on this evidence, particularly the e vi d ence that showed that Dominguez-Sianez was a member of Escobedo6 Case: 10-51174 Document: 00511772065 Page: 6 Date Filed: 02/29/2012No. 10-51174

Balero’s crew, a r a tional jury could have found that Dominguez-Sianez knowingly joined in the conspiracy to cause a riot at RCDC.

e. Olivas-Pena The gove rnment’s evidence demonstrated that Olivas-Pena was a member of Escobedo-Balero’s crew. An RCDC officer testified that he saw Olivas-Pena and Escobedo-Balero having a meeting with twenty inmates shortly before the outbreak of the riot. Olivas-Pena was one of the inmate s i n charge of radio communications. RCDC officers t estified that, during the riot, they heard his voice on the radio giving orders regarding the movement of inmates, food, and firewood. Olivas-Pena was in Escobedo-Balero ’ s last group of inmates to surrender, along with Soriano-Velador and D o m inguez-Sianez. From this evidence, a rational jury could have inferred that Olivas-Pena knowingly agreed to participate in the conspiracy to cause a riot at RCDC. Based on the foregoing analysis, we affirm the defendants’ convictions on Count 1. 2. Count 2 On Count 2 of the indictment, the defendants were convicted of aiding and abetting others to cause a riot at a federal penal facility, in violation of 18 U.S.C. §§ 2, 1792. In order to obtain a conviction on this count, the government was required to prove that: (1) the offense of causing a riot at a federal penal facility

was committed by some person; (2) the defendant associated with the criminal venture; (3) the defendant purposefully particip at e d in th e c riminal venture; and (4) the defendant sought by action to make that venture successful. See United States v . Gulley , 526 F.3d 809, 816 (5th Cir. 2008). “A defendant associates himself with a criminal venture when he shares i n t h e c r i m i nal intent of the principal.” Id. (citation omitted). A defendant participates in a criminal venture if “the defendant acted in some affirmative manner designed to aid the venture.” Id. (citation and internal quotation marks omitted).

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On appeal, the defendants argue that the gover n m e nt presented no

e vi d e n ce that demonstrated that the defendants associated with and participated in causing a riot. However, we hold that th e e vi d e nce that supported each defendant’s conspiracy conviction, outlined above, also supports each defendant’s convi c t i o n for aiding and abetting others to cause a riot at RCDC. See United States v. Singh , 922 F.2d 1169, 1173 ( 5 t h C i r . 1991) (“Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction.”). Thus, we affirm the defendants’ convictions on Count 2. 3. Count 3 On Count 3 of the indictment, the defendants were convicted of aiding and abetting others to knowin gl y use fire to commit the offense set forth in either Count 1 or Count 2, in violation of 18 U.S.C. §§ 2, 844(h). In order to obtain a 5 conviction on Count 3, the government was requi red to prove beyond a reasonable doubt that: (1) the offense of using fire t o c o m m i t a federal felony offense was committed by some person; (2) the defendant associa t e d w i t h the criminal venture; (3) the defendant purposefully participated in the crim inal venture; and (4) the defendant sought by action to make that venture successful. See Gulley , 526 F.3d at 816. On appeal, the defendants argue that the government did not present any evidence to show that the defendants u sed fire to cause a riot at RCDC. However, the defendants’ argument is misplaced, because the government was only required to prove that some person used fire to commit the felony. Here, the government’s evidence clearly demonstra t e d that unknown inmates set fire to RCDC as part of the riot.

Sec tio n 844(h) st ates that anyone wh o “us es fir e or an explo sive to com mi t any fel ony 5 wh ich may be pr os ecut ed in a cour t of the Unit ed Sta tes ” sha ll “be se nten ced to im pr iso nme nt for10 years .” 18 U .S .C. § 844(h). 8 Case: 10-51174 Document: 00511772065 Page: 8 Date Filed: 02/29/2012No. 10-51174

The defendants also argue t h a t the government did not present any evidence that the defendants instigated others to use fire. However, the government was not required to prove with direct evidence that the defendants encouraged others to use fire to commit the felony offens e . See GonzalezAlvidres , 281 F. App’x a t 3 5 2

- 5 3 (upholding a defendant’s conviction under 18 U.S.C. § 844(h) b a s e d o n circumstantial evidence). In the instant case, the government presented much circumstantial evidence (as discussed above) from which a rational jury could have inferred that the defendants ass o c i a t e d with and participated in the criminal venture of using fire to cause a riot at RCDC. The government introduced evidence at trial that indicated that the riot had been planned and coordinated in advance by the inmates. Before the start of the riot, the inmates held a group meeting and had retrieved pool balls and h a d m a de homemade armor. Also, the riot erupted among the inmates in R I and R II in a very short time span. A jury could have reasonably inferred that the fires, w h i c h w ere started as the riot erupted, were part of the inmates’ preconceived plan. A rational jury could have found th a t Baldovinas and Escobedo-Balero encouraged the use of fire to cause a riot based on their status

a s l eaders of the inmate population, the threats they made to RCDC official s , and the fact that chaos erupted and fires were started shortly after their return to R I. With regard to Sori a n o - Ve l a do r , Dominguez-Sianez, and Olivas-Pena, the government presented evidence that they were part o f E s c ob e do - B alero’s trusted

crew and t h a t E s c o bedo-Balero was the ultimate leader of the riot. A rational jury could have inferred that Soriano-Velador, Dominguez-Sianez, and OlivasPena p l a y e d important roles in planning and causing the riot, including the aiding and abetting of others to use fire. Therefore , w e a ffirm the defendants’ convictions on Count 3. Because the e vi d e nce was sufficient to support the jury’s verdict, we AFFIRM the district court’s judgments of conviction.

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