Friday, September 5, 2003
Ninth Circuit Affirms Convictions in Mexican Mafia RICO Case
Court Rules Judge Lew’s Use of Anonymous Jury Did Not Deny Defendants a Fair Trial
By KENNETH OFGANG, Staff Writer/Appellate Courts
The convictions of 11 defendants affiliated with the Mexican Mafia on charges of violating the Racketeer Influenced and Corrupt Organizations Act were affirmed yesterday by the Ninth U.S. Circuit Court of Appeals.
The panel rejected numerous arguments by defense lawyers, including a claim that their clients did not receive a fair trial in the U.S. District Court for the Central District of California because Judge Ronald S.W. Lew denied them access to the names and addresses of venire members, forcing them to go to trial with an anonymous jury.
The extraordinary measure was justified, Judge Stephen S. Trott wrote, because the defendants were members of an organization with a history of criminal violence that includes the killing and intimidation of witnesses and an ability to intimidate jurors.
The defendants—Raymond “Huero Shy” Shryock, Jesse Moreno, Ruben “Tupi” Hernandez, Alex “Pee Wee” Aguirre, Juan Arias, Randy “Cowboy” Therrien, Ruben “Nite Owl” Castro, Daniel Barela, David Gallardo, Raymond “Champ” Mendez, and “Shakey Joe” Hernandez—were all convicted of racketeering and racketeering conspiracy in 1997 following an eight-month trial .
In addition, 10 of the defendants were convicted of drug trafficking conspiracy, four of RICO-related murder, nine of conspiracy to commit RICO-related murder, four of carrying a firearm during the commission of a crime of violence, three of possession of drugs with intent to distribute, and one of being a felon in possession of a firearm.
The defendants received sentences ranging from 32 years in prison to life plus 25 years.
An expert witness, Sheriff’s Deputy Richard Valdemar, explained that the Mexican Mafia, or La Eme, is a prison gang formed in the 1950s that now has significant power of illegal activities in the prison system. Members who have been released from prison are expected to continue to support the gang’s activities, particularly the “taxing” of drug dealers in Southern California, the witness testified.
A 1992 film, “American Me,” produced and directed by Edward James Olmos, depicted a prison gang based on the Mexican Malia. Of the seven victims the defendants were convicted of killing, three were advisors on the film.
The organization, Valdemar testified, enforces a strict code of conduct in which three offenses—informing, homosexuality, and cowardice—are punishable by death.
Prosecutors presented some 275 audiotapes and 14 videotapes of conversations involving the defendants and other conspirators, along with the testimony of about 125 witnesses, including three who had been members or associates of La Eme.
The case resulted in a total of 20 convictions. Besides the 11 who lost their appeals yesterday, eight pled guilty prior to trial and one died pending appeal.
One defendant was acquitted.
Trott noted that the empanelment of anonymous juries is an issue not ruled on in the Ninth Circuit. But nine circuits have approved the procedure subject to review for abuse of discretion, the judge said.
He agreed with defense attorneys that the procedure carries with it the risk of prejudicing jurors against the defendants, by raising an inference that they are dangerous, and interferes with counsel’s ability to conduct voir dire and exercise meaningful peremptory challenges.
But the record, Trott said, supports the use of an anonymous jury in this case. The Mexican Mafia, he said, is “an extraordinarily violent organized criminal enterprise” which had engaged in such tactics as arranging to have inmates transferred to specific penal institutions under the guise of witness subpoenas, then attacking them in the attorney visiting rooms.
The panel also rejected several attacks on Lew’s instructions to the jury, although it faulted an instruction defining the elements of RICO liability.
Lew told jurors that the defendants could be found to have conducted or participated in a racketeering enterprise if they performed “acts, functions, or duties which are necessary or helpful in the operation of the enterprise.”
The instruction was deficient, Trott explained, because it failed to make clear that the defendant must be involved in the “operation or management” of the enterprise. But the error was harmless, the appellate jurist said, because there was “overwhelming” evidence that each defendant played a management role in the Mexican Mafia.
“For example, the evidence showed that during meetings Appellants voted on membership and authorization to assault or kill opponents, divided territory for the purpose of taxing drug dealers and street gangs, planned several crimes including murders, coordinated their drug trafficking activities, resolved disputes among members, and made other important decisions concerning the Mexican Mafia’s affairs,” Trott wrote.
The case is United States v. Shryock, 97-50468.
Copyright 2003, Metropolitan News Company