United States v. Giovanni Lara, appellant.no. United States of America v. George Sepulveda, United States of America v. Terrence Boyd, United States of America,appellee v. Shariff Roman, United States of America v. George Perry, United States of America v. Eryn Vasquez

Citation: 181 F.3d 183Docket: 97-2225

Court: Court of Appeals for the First Circuit; July 1, 1999; Federal Appellate Court

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A federal grand jury indicted six defendants, known as Giovanni Lara, George Sepulveda, Terrence Boyd, Shariff Roman, George Perry, and Eryn Vasquez, for multiple crimes related to their involvement with the Providence chapter of the Almighty Latin King Nation. After a 44-day trial, all were convicted on charges including racketeering, conspiracy to commit racketeering, violent crimes in aid of racketeering (including two murders and two attempted murders), carjacking, witness intimidation, use of a firearm during a violent crime, and being a felon in possession of a firearm. The district court sentenced five defendants to life imprisonment and Vasquez to 100 months. The appeals court affirmed the convictions, emphasizing the gang's structure and disciplinary practices, which included various punishments for disrespect or breaches of conduct. The Latin Kings, originating in Chicago in the 1940s, expanded to Providence in the early 1990s and allowed diverse membership, with members demonstrating affiliation through colors, tattoos, and participation in criminal activities.

The Almighty Latin King Nation is structured hierarchically, with appellants occupying significant leadership roles in the Providence chapter. Sepulveda was the president, Boyd served as vice-president and later succeeded Sepulveda, Roman acted as chief enforcer and later vice-president, while Vasquez held the roles of philosopher and investigator. The document then outlines the appellants' claims of error, starting with issues related to jury selection, followed by evidentiary rulings, Rule 29 claims, and finally jury instruction concerns, with other claims dismissed without detail.

Regarding jury selection, most appellants, except Perry, challenged the jury pool's representativeness and criticized the prosecution's exclusion of an African-American juror. These claims were found to lack merit. The Constitution guarantees a trial by an impartial jury selected from a cross-section of the community, a principle reinforced by the Jury Selection and Service Act (JSSA). The appellants argued that the jury pools were unrepresentative due to Rhode Island's noncompliance with the National Voter Registration Act (NVRA), which mandates voter registration procedures. They contended that this noncompliance affected the jury venires, violating both the Sixth Amendment and the JSSA. This claim was preserved for the five appellants who supported it, although only Sepulveda and Boyd initially moved to dismiss the indictment on these grounds. The district court allowed the other appellants to adopt this position.

Establishing a fair cross-section violation under the Sixth Amendment or the Jury Selection and Service Act (JSSA) requires a defendant to demonstrate three elements: (1) cognizability, showing the excluded group is distinctive; (2) underrepresentation, indicating the group is not fairly represented in jury venires; and (3) systematic exclusion, proving that underrepresentation results from systematic exclusion in jury selection. The appellants may have met the first element but failed to satisfy the second or third. 

Underrepresentation must be supported by competent proof, typically statistical evidence, rather than conjecture. The affidavit presented by the appellants only addresses legislative history and does not provide evidence of unfair or disproportionate representation of Hispanic venirepersons compared to their community numbers. 

Additionally, to demonstrate systematic exclusion, there must be evidence that exclusionary practices specifically targeted the group in question. The appellants’ affidavit lacks any indication of systematic exclusion of Hispanics in the jury selection process. The existence of Rhode Island's noncompliance with the NVRA does not clarify whether jury selection was biased against or in favor of minorities. Consequently, without identifying any systemic issues affecting Hispanic representation in the jury wheel, the appellants did not meet the requirements of the Duren test.

As a result, the district court correctly rejected the appellants' pretrial motions to dismiss the indictment based on claims of a fair cross-section violation. Additionally, the appellants assert a Batson challenge, claiming that the prosecution improperly used a peremptory challenge against a juror, Bruce King, based on race.

During the voir dire process, a black male juror named King was tentatively seated and questioned by the judge, prosecutor, and defense attorneys. The defense noted that evidence would reference racial epithets and the unwelcoming stance of Latin King chapters towards African Americans, querying King about his ability to remain impartial. King asserted he could be fair under any circumstances, prompting applause from a spectator named Perry, which the court silenced. The prosecutor expressed concern that the applause might compromise King's impartiality and requested a discussion on the matter. Roman's counsel countered that King was a rare eligible black juror, and Judge Lisi allowed King to leave for the day, warning Perry against further disruptions.

The following day, the prosecutor moved to excuse King for cause, but the judge denied the motion, stating that King's statements indicated he was unaffected by Perry's applause. When peremptory strikes were to be exercised, the government challenged King, leading the appellants to argue that the strike was racially motivated, violating the Equal Protection Clause. After deliberation, the district court rejected their objections. The document acknowledges that race cannot serve as a proxy for juror competence or impartiality, affirming that defendants have an equal protection right to a jury selection free from racial bias. A three-part framework is outlined for assessing claims of race-based peremptory strikes, requiring the defendant to establish a prima facie case of discrimination, after which the prosecution must provide a race-neutral explanation for the strike.

The district court must determine if the defendant has demonstrated that a peremptory strike was based on purposeful racial discrimination, following a three-step framework. The prosecutor has the burden to provide a race-neutral explanation for the strike, which is viewed as a burden of production rather than persuasion, leaving the defendant to prove discriminatory intent. In this case, the government acknowledged that the defendants could establish a prima facie case of discrimination, allowing the inquiry to proceed directly to the second step. The prosecutor argued that juror Perry's applause could threaten juror King's impartiality, which the district judge accepted despite the appellants' claims of its inadequacy. The judge found the prosecutor’s explanation facially race-neutral, as it was based on Perry's behavior rather than his race. The final determination rests on whether the appellants have shown that the government’s explanation was a pretext for racial discrimination. The trial court credited the prosecutor's explanation and observed no pattern of discrimination in the use of peremptory challenges, which influences the assessment of the explanation's credibility.

Judge Lisi's decision to uphold the prosecutor's strike is challenged by the appellants, who claim she misapplied the legal standard. However, the record does not support this assertion, as it reveals no clear error in her judgment. The appellants highlight a prior comment from the prosecutor regarding potential peremptory challenges against jurors based on race, arguing it indicates racial bias in jury selection. Although the comment was deemed insensitive, the court found it did not undermine the prosecutor's race-neutral rationale. The legal standard requires that race should be irrelevant to juror fitness, and the judge's assessment of the prosecutor's credibility and demeanor during the trial was deemed appropriate and not subject to reversal. Concerns raised by the prosecutor about trial dynamics were acknowledged as understandable and not indicative of racial bias. 

Regarding evidentiary issues, Boyd contested the admission of certain videotaped statements under Federal Rule of Evidence 801(d)(2)(E). The government presented videotapes obtained via a confidential informant that included a reference to Boyd during discussions of a murder. Boyd objected to the admission of this evidence and requested a limiting instruction for the jury. The trial judge overruled the objection and did not provide the requested instruction. The appellate review of the evidence's admissibility is based on an abuse of discretion standard. Boyd's argument fails because it only addresses the murder-in-aid-of-racketeering charge, while he was also tried on racketeering-related charges, for which the tape was admissible.

The designation of a declaration as non-hearsay under Rule 801(d)(2)(E) applies broadly and is not limited to specific counts or conspiracies. Out-of-court statements by a declarant coconspirator made during and in furtherance of a conspiracy are admissible for their truth, regardless of whether the conspiracy is charged or uncharged and irrespective of its relation to the crime being proven. The trial court did not err in overruling Boyd's objection to the admission of such statements. Boyd's request for a limiting instruction was also appropriately denied, as the statements were relevant to the racketeering charge against him, and the instruction he sought could have confused the jury. Additionally, the videotape evidence was not significantly incriminating for Boyd; a statement suggesting he was available at the time of the murder did not establish his involvement. Witnesses testified to his actual presence at meetings planning the murder, making any potential error in the instruction harmless. 

Regarding testimony from cooperating witnesses, the government allowed several to testify in exchange for assurances against federal charges or leniency in sentencing. Five appellants, excluding Boyd, argued that the trial court should have barred this testimony, asserting that the failure to do so warranted a new trial.

The appellants rely on a witness-bribery statute, 18 U.S.C. 201(c)(2), which criminalizes giving anything of value to a witness in exchange for testimony. A Tenth Circuit ruling in 1998 (United States v. Singleton) interpreted this statute to exclude testimony obtained through promised leniency, leading to numerous "Singleton arguments" in federal courts. However, this interpretation has been deemed an aberration, as it has been overruled by the Tenth Circuit in a subsequent en banc decision (Singleton II) and rejected by other circuits. The court emphasizes that section 201(c)(2) does not apply to the federal government as a prosecutor, as general statutes do not bind the U.S. unless explicitly stated by Congress. This interpretation preserves the government's prerogative and avoids unintuitive outcomes.

The Singleton I panel's interpretation of section 201(c)(2) is deemed incorrect as it would undermine the enforcement of various recent statutes that anticipate the use of testimony in exchange for non-prosecution agreements, leniency recommendations, and other incentives. Relevant statutes include 28 U.S.C. 994(n), which allows for sentence reductions based on substantial assistance from defendants; 18 U.S.C. 3521, which provides protections for witnesses in exchange for their testimony; and 18 U.S.C. 6002 and 6003, which permit prosecutors to compel testimony despite self-incrimination risks if immunity from prosecution is granted. Following Singleton I would render these statutes ineffective, contradicting the principle that related statutes should be harmonized, with more recent or specific statutes taking precedence over older or more general ones.

Additionally, section 201(c)(2) may not apply to the government since the Dictionary Act does not define "whoever" to include the United States. Even if it did, the appropriate penalties for violating the statute would likely be fines or imprisonment rather than exclusionary rules. The court concludes that 18 U.S.C. 201(c)(2) does not prevent the government from offering leniency to cooperating witnesses, affirming that the district court acted correctly in admitting the contested testimony.

In terms of cross-examination scope, the defendant Perry argues that the district court allowed excessive questioning beyond his direct examination, which focused narrowly on one incident. However, the trial court permitted questioning on other crimes associated with him and his co-defendants, as well as a letter from jail that implicated his former girlfriend. The court finds no error in allowing this broader scope of cross-examination.

District court rulings regarding the scope of cross-examination are reviewed for abuse of discretion. The court found no such abuse in this case. Cross-examiners are permitted to explore issues not raised during direct examination if they are relevant, particularly concerning a witness's credibility. The indictment against Perry involved a carjacking related to a RICO conspiracy, and the government aimed to challenge Perry's denial of involvement by questioning him about other crimes linked to the Latin Kings. Additionally, the government sought to discredit Perry's portrayal of another individual, Lara, by highlighting discrepancies between Perry's testimony and prior statements to police, as well as suggesting Perry was protecting Lara due to gang loyalty. The court upheld the judge's decision to allow these inquiries, noting that even if they strayed from direct examination, Rule 611(b) allows judges discretion to permit broader questioning. The challenged questions were closely tied to significant trial issues, affirming that the judge's decisions were not an abuse of discretion.

The court addresses the denial of motions for judgment of acquittal by defendants Lara, Boyd, and Roman under Fed. R. Crim. P. 29, employing a plenary review similar to that in the trial court. The appellate standard requires evaluating evidence favorably for the prosecution, determining if it sufficiently demonstrates each crime element beyond a reasonable doubt, and resolving disputes and credibility issues in favor of the government. The jury's verdict remains unless no rational jury could find the defendant guilty.

Lara specifically contests the sufficiency of evidence relating to two convictions, starting with witness intimidation against Manuel Pacheco. The relevant statute requires proof that the defendant knowingly used intimidation or threats to influence testimony in an official proceeding. The prosecution argues that the evidence supports the conviction, showing that Pacheco assisted authorities in investigating the Latin Kings, which prompted fear among the organization’s leaders that he might testify. In November 1994, an order for Pacheco's "termination" was given, indicating potential violence. While incarcerated, Lara and other Latin Kings were approached by messengers to relay this order. Subsequently, Lara and others confronted Pacheco in the prison yard, surrounding and assaulting him, which supports the jury’s verdict for intimidation.

Lara argues that the evidence against him is insufficient, as there is no direct testimony confirming he received the termination order or was involved in the beating, with Vasquez contradicting this claim. However, Mesa and Santi testified that they traveled to the prison with Vasquez, discussed the termination order, and conveyed the message to the inmate. Vasquez signed the visitor log and admitted to meeting Lara. Pacheco identified Lara as part of the group that surrounded him during the attack. Despite the circumstantial nature of the evidence, the jury could reasonably reject Vasquez's self-serving denial and infer that he communicated the directive to Lara, as well as credit Pacheco's account to implicate Lara in the beating. The evidence was thus sufficient for a conviction on the witness intimidation charge.

Regarding the carjacking incident involving Temujin Vandergroen on September 6, 1994, Lara and Perry were convicted after Perry, feeling disrespected, asked Lara to assist in taking Vandergroen’s car. Perry, armed with a sawed-off shotgun, shot Vandergroen after he was directed to stop the vehicle, and they disposed of the body and the car afterward. Lara challenges the sufficiency of the evidence by questioning Pacheco's reliability, but the jury is tasked with determining witness credibility, and they had conflicting testimonies to consider. Lara also mentions Perry’s exculpatory testimony but suggests that Perry's courtroom behavior undermined this defense.

Perry's conduct did not prejudice the jury against Lara, as evidenced by their differentiated verdicts; the jury acquitted Lara while convicting Perry on multiple counts, including firearm charges related to a carjacking. The trial judge's prompt instruction to the jurors to disregard any negative inference from Perry's behavior supports this conclusion, aligning with the legal presumption that jurors adhere to instructions. Consequently, the district court appropriately denied Lara's request for an instructed verdict of acquittal on the charges of witness intimidation and carjacking.

Separately, Boyd and Roman contest the sufficiency of evidence supporting their convictions for the murder of Jose Mendez in aid of racketeering. The relevant events unfolded on November 5, 1994, when members of the Providence Latin Kings learned about a gang conflict with the Netas during a Connecticut party. Upon returning to Rhode Island, they held a meeting on November 7, where Sepulveda informed members about the war and proposed a plan to kill the Netas' leader, theorizing that eliminating the leader would destabilize the rival gang. Following this executive session, Boyd, Roman, and others met to finalize the assassination plan, designating four members, including Perry, to carry out the murder.

Witnesses testified that Boyd and Roman selected members for a "hit squad," which received weapons from the gang's cache the following day. At that time, the Providence Netas had four officers, including president Winston Navarette and vice-president Jose Mendez. When the hit squad arrived seeking Navarette, they learned he was out of town, leading to Mendez assuming leadership in his absence. The squad invited Mendez, who was identifiable by his Neta colors, to smoke marijuana before Perry shot and killed him. Boyd argued that the evidence did not sufficiently link him to the murder, claiming a lack of proof that the plan targeted the Neta leader or that the shooter recognized Mendez as the de facto leader. A procedural issue arose as Roman sought to adopt Boyd's sufficiency argument after Boyd's brief. The court provisionally allowed this adoption, noting that both Boyd and Roman contested the evidence on similar grounds despite some differences in specifics. The court dismissed Boyd’s and Roman’s first two arguments, citing testimony indicating the plan was aimed at the Neta leadership, with Boyd and Roman present during the planning. The jury's credibility assessments of witnesses were upheld, reinforcing the sufficiency of the evidence for the verdict.

Jurors are permitted to accept parts of a witness's testimony while disregarding others with internal inconsistencies. In the case discussed, the government lacked direct evidence that shooter Perry was aware of Jose Mendez's leadership role in the Netas at the murder time. However, direct evidence is not necessary to establish criminality; circumstantial evidence can be significant. Testimonies indicated that some Latin Kings were aware of Mendez's prominence, as his name was discussed as a potential leader during a meeting that Boyd and Roman attended. Although a consensus formed around Navarette as the top leader, the discussions implied that Latin King leaders recognized Mendez's high position.

Evidence of the Latin Kings' reactions post-murder supports the government's case, as their president commented positively on the murder's execution, and they did not pursue Navarette after Mendez's death, indicating the mission was deemed successful. The jury could reasonably infer that Perry knew of Mendez's status and acted in compliance with orders from the Latin King hierarchy. The jury rejected the alternative theory that Perry killed Mendez out of personal motives. This decision was within the jury's authority, as the evidence did not need to eliminate all other plausible hypotheses of innocence. The evidence collectively was sufficient to uphold the convictions.

Lara raised several issues regarding jury instructions on the carjacking count, with only one point warranting further discussion. The court instructed the jury correctly on the four elements necessary for conviction under 18 U.S.C. § 2119(3), specifically naming defendants Lara and Perry.

The excerpt addresses the legal interpretation of possession and liability in a carjacking case involving defendants Lara and Perry. It outlines the elements necessary for a conviction, highlighting that the government must prove at least one defendant possessed a firearm during the commission of the crime. Lara contests the jury instruction regarding possession, arguing it permitted conviction even if only Perry possessed the firearm. The court clarifies that possession can be established through knowledge and control, and multiple individuals can possess the same item if they are aware of its presence and intend to control it.

Judge Lisi's instructions on aiding and abetting under 18 U.S.C. § 2 are discussed, indicating that as long as the jury found either defendant intended to commit carjacking with a firearm, the other could be found guilty as an aider and abettor if he was aware of the plan and intended to assist. The court concludes that the jury's acquittal of Lara on a related firearm charge under 18 U.S.C. § 924(c) does not undermine this reasoning, as the latter charge requires a higher standard of "use" or "carry" of a firearm, which is distinct from mere possession. Thus, the jury could logically differentiate between the two statutes in their verdicts.

Lara's complaint primarily reflects concerns about perceived inconsistencies between his acquittal under section 924(c) and his conviction under section 2119(3), rather than any actual error in Judge Lisi's jury instructions. Despite Lara's denial of this notion, the impression remains that his assignment of error hinges on a claim of inconsistent verdicts. The court has consistently rejected challenges to criminal verdicts based on this premise in previous cases. A thorough review of the record demonstrates that the appellants were convicted by a properly constituted jury following a full and fair trial, with no reversible errors evident and overseen by a careful judge. The appeals lack factual or legal basis and were affirmed. Additionally, while the appellants did not specify a lack of Hispanic representation in the jury pool in lower court filings, they assert this on appeal. The discussion includes references to rules about hearsay and previous court rulings that dismissed similar claims due to inadequate argumentation. The excerpt also notes a specific incident involving a juror during closing arguments, detailing an interruption caused by a juror's inappropriate behavior, which was subsequently addressed by the judge with appropriate instructions to the jury.

Perry was found in criminal contempt during post-trial proceedings and sentenced to three months in prison, a decision that was upheld on appeal. Following an incident involving Perry, Lara sought a severance and a mistrial, but both motions were denied by Judge Lisi, and Lara did not appeal these rulings. Witnesses indicated that the order in question was aimed at the president of the Netas, specifically mentioning Navarette, but the jury could interpret this as targeting him in an official capacity. Additional evidence against Roman included testimony from Davis, who stated that Roman selected him for a mission to assess his commitment to the Latin Kings, and Roman’s own admissions on video regarding his role in planning, ordering, and covering up Mendez's murder. Judge Lisi clarified that under section 924(c), mere possession of a firearm is insufficient for conviction; the government must demonstrate the firearm's active employment, which can include actions like brandishing or firing.