Assistant U.S. Attorney Steven Gruel, who served as lead counsel on the case with Assistant U.S. Attorney Edward Torpoco and federal trial lawyer Robert Tully, said Operation Black Widow had two goals: to identify and remove the Nuestra Familia's top leadership and to attack the gang's street operations outside the state prison system. Five gang members, four of whom were already in prison, face murder charges for orchestrating the deaths of five men between March 1997 and April 1999, according to the indictment. (Id.) GRAPHIC VIDEO: Surveillance video shows inmates attack, stab correctional officer This video contains graphic content of two inmates attacking and stabbing a correctional officer at. Accordingly, the Court declines to address the merits of the parties' arguments with regard to whether the evidence at issue in these motions would be admissible outside the government's case in chief as premature. Lock Thus, the Court excludes expert testimony regarding the Bauer address under Rule 702. (Docket No. However, `statements made to keep coconspirators abreast of an ongoing conspiracy's activities satisfy the `in furtherance' of requirement.'" 985 at 35.) ("While the local rule and the scheduling orders required advance notice/summaries of coconspirator statements, the purpose of the rule and the orders was to allow for adequate time for the parties to litigate the admissibility of the statements."). 1959(a)(5), and assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. %PDF-1.7 To fall within this coconspirator exception, "the following preliminary facts must be shown: (1) there was a conspiracy, (2) the defendant and the declarant were participants in the conspiracy, and (3) the statement was made by the declarant during and in furtherance of the conspiracy." As required by Prunty, the prosecution showed "associational or organizational connection uniting" Nuestra Raza and Nuestra Familia. The Court agrees with arguments during hearings on this motion that it would be incorrect to accept the proposition that "`under the general law of conspiracy, if you join an ongoing conspiracy, you're responsible for everything that went on before it.'" He did, however, express concern the arrests may cause rival gang members to intensify their activities. The information and photos presented on this site have been collected from the . e. The 25-count indictment was returned Thursday by a grand jury that had heard testimony during the past year. On their face, most of the opinions do not appear to constitute "commonly used" slang. Parry said Monday that changes in Corrections Department policy would be made, but he refused to provide details. 985, Opinion 320 ("Karen Bauer is intermediary for letters t/from Cervantes and Villanueva. L. Rev. Cervantes acknowledged that immediately after the victim was stabbed, at least four bombers began punching and kicking the victim to allow Cervantes to escape being caught by guards with the stabbing weapon. In their plea agreements, Magdaleno, Romero, and Cervantes admit to participating in the distribution of narcotics to other inmates at Monterey County Jail. Please see the exhibits to the United States' Second Expert Disclosure, which provide detailed summaries of the content of the jail calls. The Court ordered identification of each opinion sought to be admitted as expert or lay testimony, and the government once again takes the approach that each opinion constitutes expert testimony. Opinion Number 541.) The term removal refers to a violent attack designed to remove (from both the custodial housing unit and the gang itself) a member of the gang who committed a serious violation of the gangs rules. 928 at 11. id. Share sensitive information only on official, secure websites. Any use of information, images and other copyrighted material from this channel without permission from PARADIGMMEDIA.com will be followed up and reported. It does not indicate whichif anywords in that call constitute commonly used slang or jargon, which words were newly heard by Feeney in this investigation, and, for the latter, what particular methodology he applied to translate each particular "coded" word. [that adds `e' or `ez' to words.]." 783,7 831, 832, 833, 846, 1021, 1022, 1023, and 1024. i (1) 2nd Expert Disclosure Letter of August 17, 2015 with attachments: (2) Discovery Letter of August 21, 2015, enclosing the follow relevant documents: (3) Jail Letter Index of August 21, 2015. Federal Courthouse 2014); United States v. Vera,770 F.3d 1232, 1241 (9th Cir. Inside prisons and local jails, all members and associates of Nuestra Familia and Norteos work together to maintain the structure and follow the rules of the Enterprise. Cervantes admitted that he was the hitter for the removal and stabbed the victim in the head. Twelve men and one woman face federal charges of murder, robbery, conspiracy and drug-related crimes. In order to corroborate or refute this status, the litigants must know the identity of the declarant." 702; see Docket No. The guilty pleas were accepted by the Honorable Beth L. Freeman, United States District Judge. 9, 2016) ("That gang expert testimony on symbols, code words, and the like has generally been admitted in this district does not mean that it is admissible irrespective of its reliability or helpfulness to the jury."). <>/OutputIntents[<>] /Metadata 340 0 R/ViewerPreferences 341 0 R>> knowingly participated in a conspiracy." . To the extent the government seeks to admit evidence that A. Cervantes and Sheldon Villanueva sent letters to an individual named "Karen Bauer," and the government seeks to admit as expert testimony that they were using Bauer's address as an intermediary, the government fails to explain how "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Norteo gang members pledge their allegiance and loyalty to Nuestra Familia and are instructed on its rules, rituals, and obligations. at 693. These folks have 24 hours a day to figure out how to beat the system, said Brian Parry, assistant director for the California Department of Corrections. Men punished Monterey County Jail inmates for not following Nuestra Familia gang rules . 1 0 obj (Docket No. The eight defendants will be dispersed to serve their terms in federal institutions outside California in an effort to break the back of a prison gang that has operated with impunity within the state prison system for years. Second, the following opinions do not appear on their face to be based upon Feeney's investigation of this particular organization, but the government's August 2015 disclosure suggests that in fact they might be: Opinion Numbers 1; 2; 7; 8; 17; 18; 19; 32; 53; 58; 59; 72; 74; 76; 79; 82; 84; 86; 89; 92; 151; 184; 187; 188; 243; 259; 270; 278; 294; 438; 476; 485.5 Because of the information contained in the August 2015 disclosure, the Court also RESERVES ruling on these opinions. It was unsealed Friday. Here, the Court is satisfied, given its knowledge of the case and many of the documents that have been submitted, that the government has made a sufficient proffer as to the each of the named defendants' potential for involvement in the charged conspiracy, and with respect to those categories of evidence for which the Court has denied motions to exclude wholesale. Magdaleno admitted that he stabbed the victim in the chest and back over 20 times. Cf. As addressed at the April 8, 2016 hearing, the government may not admit evidence of A. Cervantes's prior conviction or incidents that predate the time period to which the Court has limited the evidence in this case. 2007); United States v. Decoud,456 F.3d 996, 1014 (9th Cir. . 2007)). (PARADIGMMEDIA) Unplugged, does not make any warranties about the completeness, reliability and accuracy of this information. . (Docket No. SANTA ROSA, Calif. (AP) Police Chief Mike Dunbaugh likens the recent arrests of 13 Nuestra Familia gang members, including six Pelican Bay State Prison inmates, to cutting the head off a poisonous snake.. If the government demonstrates that these opinions might possibly be admissible as expert testimony, then, as explained in the paragraph above, the government would need to demonstrate for each coded word to be translated how it meets the Rule 702 and pertinent case law requirements. Any action you take upon the information you find on this channel (PARADIGMMEDIA) is strictly at your own risk. In motion in limine number 2, A. Cervantes seeks to exclude evidence of a variety of incidents that occurred before 2004. 2006). ("In establishing liability for the conspiracy charge, the circuit courts generally find conspirator liability for acts committed by co-conspirators both prior to, as well as during the defendant's participation." Marshal Hold. "`[V]ague and generalized' explanations are not sufficient; rather, the officer must explain how he applies his `knowledge to interpret particular words and phrases used in particular conversations.'" Further, "before a statement is that of a `co-conspirator' there must be independent proof of the defendant's and the declarant's status as members of the same ongoing conspiracy. Romero also admitted to helping plan two other removals on April 29 and October 23, 2013. Your donation will help us continue to cover COVID-19 and our other vital local news. x]ms9*>[DhJqB6 Gq~0TA9=_wh4ckf5j'O^YG?v2? In his motion in limine number 1, A. Cervantes seeks to exclude evidence of a prior conviction in 1999 "for racketeering, which included an admission of solicitation of murder as a racketeering act, in the Eastern District of California. "The statement alone is insufficient to prove these preliminary facts." Moreover, in Gil, the government met its burden, in part, by presenting evidence that two specifically identified defendants "were co-conspirators, and prov[ing], by a preponderance of the evidence, that [drug] ledgers [sought to be admitted] were the defendants' statements." 3553. As the Court finds that only a small portion of the proffered opinions might be classified as expert and not investigatory, i.e., lay opinion, the Court need not conduct a separate hearing to address their admissibility at this time. (footnote omitted)); id. A at 10.) Compare NF 544, 545 and NF 11190, 11191.").) "Of course, identification of the declarant will not, by itself, establish a proper foundation unless the identified declarant is a co-conspirator whose assertions were made in furtherance of and in the course of the conspiracy." Eventually, the FBI, U.S. Department of Justice and other state and local law enforcement agencies combined forces. ." For ease of reference, the Court has categorized the opinions at issue: First, the only numbered opinions which do not appear, on their face and read alongside the government's August 17, 2015 disclosure, to be based upon Feeney's investigation of this particular organization are as follows:4 Opinion Numbers 9; 10; 11; 13; 14; 15; 16; 21; 22; 23; 36 (except for perhaps "weather," which appears investigation-specific according to page 1 of the August 2015 disclosure, and Nephews, which appears investigation-specific according to Opinion Number 233); 37; 39; 41; 42; 44; 45; 62; 63; 64; 68; 70; 71; 73; 75; 77; 78; 81; 83; 85; 87; 88; 91; 92; 94; 98; 99; 102; 103; 105; 109 (to the extent not referring to "Norteos and Sureos"); 110; 111; 112; 113; 114; 116; 117; 119; 120; 124; 127 (to the extent there possibly could be a basis distinct from the explanation specific to Rico Garcia); 128; 132; 148; 154; 155; 156; 157; 158; 161; 166; 170; 174; 175; 178; 190; 191; 196; 199; 205; 206; 207; 213; 214; 219; 220; 221; 224; 226; 228; 230; 232; 233 (except for "Nephews, out of loyalty, the Nephews"); 234; 235 (except for "rotations"); 236 (to the extent there possibly could be a basis distinct from the explanation about Rangel); 237; 239; 240; 242; 245 (to the extent there possibly could be a basis independent of translating "rotations"); 246; 260; 261; 262 (except for references to "Brenda" and "Rosa"); 267; 269 (except for reference to "Brenda" and only to the extent there possibly could be a basis for translating "heat" as distinct from the investigation-specific basis provided for "weather" in the August 2015 disclosure); 273; 275; 288; 289; 290; 291; 293; 295; 308; 309; 310; 311 (except for reference to "Brenda"); 312 (except for reference to "Rosa"); 313; 314; 315; 323; 325 (only to the extent explaining that "Josie is [a] reference to Outlaw Josie Wales[]movie in which main character rode a horse"); 329 (except for reference to "Guenia"); 344; 346 (except for reference to "Guenia" and, as in number 127, only to the extent there possibly could be a basis distinct from the explanation specific to Rico Garcia); 352; 354; 355; 358; 361; 367; 378; 383; 391; 401; 402; 406; 437; 438; 440; 443; 467; 468; 482; 483; 484; 486; 487 (only if the basis for translating "heat" is distinct from the possibly investigation-specific basis provided for the "weather" opinion in the August 2015 disclosure); 495 (to the extent it does not reference "Cervantes"); 501 (to the extent it does not reference "Cousin Casper"); 524; 537; 555; 560; 565; and 571 (to the extent it has a basis independent of "the stabbing" as a particular stabbing). 928 at 10.). at 2.) This was seven weeks before the first witness. "However, Barrasa seemed happy after talking with the defendant.". Six gang members and inmates at Pelican Bay, James Morado, Cornelio Tristan, Gerald Rubalcaba, Sheldon Villanueva, Tex Hernandez and Daniel Perez, were transferred to federal custody Sunday.. 1024 at 8. The Ninth Circuit has recognized Mouzin's application outside the context of drug ledgers. at 1246 (quoting United States v. Castaneda,16 F.3d 1504, 1507 (9th Cir. A. Cervantes seeks an order directing the government to comply with Criminal Local Rule 16-1(c)(4), which states that "the government shall disclose . Judge Freeman scheduled the sentencing hearing for Cervantes for May 19, 2020; and the sentencing hearings for Magdaleno and Romero for June 23, 2020. Villanueva also conveyed to the same inmate that he wanted to "choke" Carlin. However, by finding in this manner, the government must address the issue with the Court outside the presence of the jury before proffering any such evidence. Magdaleno admitted that he orchestrated four removals of victims from housing units of the Monterey County Jail and directly participated in two of those removals as the hitter. 1022 at 1-2.) 2007) ("Statements made for personal objectives outside the conspiracy or as part of idle conversation are not admissible under Rule 801(d)(2)(E). 2009). xAlk75~]}JOQD1hZ|0I_(,5~[,==FsL$c56 1986). Immediately after the victim was stabbed, three bombers began punching and kicking the victim to allow Magdaleno to escape being caught by guards with the stabbing weapon. See Docket No. (quoting Robert R. Arreola et al., Federal Criminal Conspiracy, 34 Am.Crim.L.Rev. If they comply with their plea agreements, the additional charges will be dismissed at sentencing. In addition, the government's summary disclosures are referenced at the end of this order.i The objections based on Local Rule 16-1(c)(4) are also DENIED. Moreover, to the extent Feeney would attempt to testify as an expert decoding terms he encountered for the first time in his investigation of the Nuestra Familia organization (and related entities), he fails to explain a method that would satisfy the requirements of Rule 702 under Ninth Circuit case law. 2010) (concluding that error arose in allowing jury to convict on the basis of "what was reasonably foreseeable not only to [a defendant], but also to her co-schemers," explaining that "Castaneda . Site owners and content may change without notice and may occur before we have the opportunity to remove a link which may have gone bad. Theres a war occurring in our communities in California, Dunbaugh said. The Court may do so within the confines of the time afforded for trial and outside the presence of the jury. . . Please also be aware that when you leave our Channel, other Channels may have different privacy policies and terms which are beyond our control. First, A. Cervantes seeks to preclude Anthony Garrow from opining on the stabbing of Tobias Vigil, separate from "translation" testimony regarding coded words in particular documents. The plea agreements also describe the roles of the defendants in removals as a means of violently enforcing the most important of the gangs rules while they were in the jail. Click on the case name to see the full text of the citing case. In addition, "[u]nder this rule, an accused's knowledge of and participation in an alleged conspiracy with the putative coconspirator are preliminary facts that must be established, by a preponderance of the evidence, before the coconspirator's out-of-court statements can be introduced into evidence." (Docket No. Barrasa left the property at the end of April 2016, heading to Fontana to stay with a friend. "Rule 702 requires district courts to assure that an expert's methods for interpreting the new terminology are both reliable and adequately explained." Magdaleno, Romero, and Cervantes were also charged with conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. An official website of the United States government. Henry Cervantes, Defendant, represented by John Timothy Philipsborn , Attorney at Law. 617, 628-29) (emphasis in original). 1983) ("Statements of alleged co-conspirators made before the time it can be shown by independent evidence that [a defendant] had joined the conspiracy are not admissible to show his participation. Some of the predicate offenses were committed by members of Nuestra Raza. See Garcia, 497 F.3d at 967 & n.1; United States v. Cruz-Ramirez, 2011 WL 5599630, at *5 (N.D. Cal. or the fact of occurrences tied to Nuestra Familia. Riverside County Superior Court Judge Mac Fisher scheduled a sentencing hearing for Sept. 20 at the Riverside Hall of Justice. As with H. Cervantes's motion in limine number 3, the Court GRANTS this motion to the extent the Court will entertain specific requests for pertinent jury instructions, and otherwise DENIES it as overly broad WITHOUT PREJUDICE to objections particularized to acts or statements the defense seeks to exclude. Exclude evidence of a variety of incidents that occurred before 2004 in motion limine. The completeness, reliability and accuracy of this information alone is insufficient to prove these preliminary facts. occurrences to. Of occurrences tied to Nuestra Familia gang rules the presence of the citing.! 1246 ( quoting Robert R. Arreola et al., federal Criminal conspiracy, 34 Am.Crim.L.Rev Judge... Violation of 18 U.S.C helping plan two other removals on April 29 and October 23 2013. Were committed by members of Nuestra Raza ( 5 ), and obligations ' or ` '. 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