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. This order terminates Docket Nos. No claims to the accuracy of this information are made. . See Vera, 770 F.3d at 1241. 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. (See, e.g., Docket No. United States District Court, N.D. California.https://leagle.com/images/logo.png. 2014); United States v. Vera,770 F.3d 1232, 1241 (9th Cir. And Feeney translates the words, "We all know how good her daughter can act when her parents are home, and that even Reesh has said how she is a little liar," to mean "Gang members will act correctly when the leaders are watching, but will disobey orders when no one is watching." 801(d)(2)(E) in sufficient detail that the Court may rule on the admissibility of the statement." ; Docket No. PARADIGM MEDIA NEWS Channel is in compliance with 17 U.S.C and Digital Millennium Copyright Act (\"DMCA\") and other applicable intellectual property laws. (See id. Norteo gang members pledge their allegiance and loyalty to Nuestra Familia and are instructed on its rules, rituals, and obligations. at 1419-20 ("The testimony of the handwriting expert that Montoya was `probably' the author of the Abuelitos ledger, combined with circumstantial evidence that Montoya wrote the ledger entries, provides an adequate foundation for admitting the ledger as an admission by Montoya. 1045 at 5.) The eight pleaded guilty in San Francisco to charges of operating the prison gang as a racketeering enterprise. subject to the requirements of Federal Rule of Evidence 701," Vera, 770 F.3d at 1242; see also Gadson, 763 F.3d at 1210. 2014); United States v. Freeman,498 F.3d 893, 902 (9th Cir. 928 at 15.) var obConfig = { footer: '' }; Bookmarks are saved to your account and can be accessed from any device. Please also be aware that when you leave our Channel, other Channels may have different privacy policies and terms which are beyond our control. . Joe Gonzales orders the murder of familiano Richard Hernandez for failing to carry out orders. /sNZ<7m'QP`JN@\1k2#!Q7mt/vC|LB)]@%fJ@H=NqYrG%g#OnK"J0Ac87\Ip&'q`6HOM!0V \/ The government's argument that Feeney is "reading[,] or listening to, the repetition of words and phrases over hundreds of hours, as well as the context of such language," (Docket No. (See, e.g., Docket No. Some of the predicate offenses were committed by members of Nuestra Raza. (Id.) In sum, the Court GRANTS IN PART AND DENIES IN PART A. Cervantes's motion in limine number 4. Eventually the probe involved agents from the FBI, the state Department of Corrections and several local police agencies, working under the direction of the U.S. attorney's office in San Francisco. 1024 at 8. The Court GRANTS this motion to the extent the Court will entertain specific requests for pertinent jury instructions, and otherwise DENIES the motion as overly broad WITHOUT PREJUDICE to objections particularized to acts or statements the defense seeks to exclude. The information and photos presented on this site have been collected from the . (Docket No. Your donation will help us continue to cover COVID-19 and our other vital local news. In Decoud, for instance, "the expert gave a lengthy explanation of how he interpreted `diznerty' based on his understanding of a common speaking style . December 12, 1976. . 2008). Second, A. Cervantes requests a hearing to determine the admissibility of individual opinions and Feeney's methodology and, in the alternative, moves to exclude proffered opinions from Feeney that the government in its numbered expert opinion filing characterizes as expert testimony under Rule 702, but which could not meet the requirements of that rule and Ninth Circuit case law on expert "translations.". 783, 831, 832, 833, 846), and motions in limine filed by Andrew Cervantes ("A. Cervantes") (Docket Nos. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/StructParents 0>> 985 at 37, Opinion Number 546.) Decoud, 456 F.3d at 1014 n.6. See Gadson, 763 F.3d at 1210 (describing testimony about a nickname as "investigation-specific opinion testimony . These examples illustrate how Feeney seeks to go beyond translating particular words with fixed meanings and opine about the origin and effect of a Nuestra Familia document, Nuestra Familia rules, the expectations of Nuestra Familia members, and particular actions by particular individuals holding particular positions within Nuestra Familia. 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. Garcia and Ramirez are in federal custody awaiting trial. 1045 at 4.). 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." 928 at 13-16; id. These are proper subjects for lay opinion testimony, see FED. 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. Other inmates described Villanueva as extremely moody and sometimes physically aggressive -- a deep contrast with Carlin, who was "happy-go- lucky" and generally liked by the men in his cell block, according to a trial brief prepared by the prosecution. Not included in that basis for Feeney's opinions was information about other gangs he monitored and what such monitoring entailed such that it would apply to his proffered opinions. Cervantes admitted that he was the hitter for the removal and stabbed the victim in the head. 97 CR 357 Authorization not requested by USA the stabbing of a Lorton, VA, prison inmate by two inmates - Dublin and Dickerson. 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 . . Have a question about Government Services? L. Rev. (quoting Arreola, 34 Am. was made by the party's coconspirator during and in furtherance of the conspiracy." "The statement alone is insufficient to prove these preliminary facts." Magdaleno admitted that after he disposed of the shank, he joined the other bombers in beating the victim. Federal Courthouse Romero admitted that he approved the February 25, 2013, removal of a victim from one of the housing units of the Monterey County Jail. San Francisco, CA 94102, San Francisco: (415) 436-7200 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. It was unsealed Friday. For "cream of crop," the government's August 2015 disclosure includes the sentence: "The NF has a policy not to take people under their wing just for numbers[,] but rather quality. 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."). Please be sure to check the Privacy Policies of these sites as well as their Terms of Service before engaging in any business or uploading any information. Williams, 2016 WL 899145, at *6 ("To the extent that they are relevant and not unduly prejudicial, Sgt. Vera, 770 F.3d at 1241. Rather, they appear to be terms the meaning for which Feeney seeks to discern from his investigation of the Nuestra Familia organization itself, and this case, in particular. Pursuant to the terms of their plea agreements, Magdaleno has agreed that a reasonable and appropriate disposition of his case would include a term of imprisonment of 30 years to run concurrently with sentences imposed in connection with a number of state court convictions; Romero has agreed that a reasonable and appropriate disposition of his case would include a term of imprisonment of 18 years; and Cervantes has agreed that a reasonable and appropriate disposition of his case would include a term of imprisonment of 10 years. Bridgeforth, 441 F.3d at 869.2. H. Cervantes moves for a ruling "that both the nature of a conspiracy, and the timing of an individual's joining of a conspiracy, must be considered in deciding what a conspirator is allegedly liable for under the conspirator liability rules." In accepting the guilty pleas Monday, U.S. District Judge Charles Breyer said he hoped that scattering the top leadership would help shut the organization down. (Id. 1986). "It remains to be seen ultimately whether this prosecution was warranted, " Breyer said. Finally, all of the remaining opinionsnot identified in the two paragraphs aboveare investigatory, or otherwise could not satisfy Rule 702's requirements because no translation is given or a given translation is the same as the phrase supposedly in code. On their face, most of the opinions do not appear to constitute "commonly used" slang. Villanueva was charged with the murder and was relocated to a high security unit at the Riverside jail. Swipe is only available in chrome dev tools mobile mode. 985 at 35.) Readers around the Lake Tahoe Basin and beyond make the Tahoe Tribune's work possible. 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. [a] summary of any statement the government intends to offer under F. R. Evid. Villanueva is a high ranking member of the Nuestra Familia prison gang who is currently housed in Florence ADX. He was paired with Carlin in Housing Unit 17 at the Smith Correctional Facility. 985 at 37, Opinion Number 553.) United States v. Garcia,497 F.3d 964, 967 n.1 (9th Cir. Previously, the Court found that Feeney's disclosures set out his experience investigating Nuestra Familia for eight years, without indicating whether Feeney's experience extended beyond the Nuestra Familia. 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. Notwithstanding the foregoing, the Court ordered the government to file versions of documents with the specific statements the government intends to admit under the rule highlighted no later than April 15, 2016. Thus: "`due process constrains the application of Pinkerton where the relationship between the defendant and the substantive offense is slight,' and . 1959(a)(5), and assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. (quoting United States v. Sine,493 F.3d 1021, 1038 (9th Cir. 2009). [T]he evidence supported the finding that [the San Bruno ledger] was a statement made or adopted by Gil." Id. (Docket No. e. If they comply with their plea agreements, the additional charges will be dismissed at sentencing. Andrew F. Cervantes, Defendant, represented by K. Alexandra McClure , Law Offices of Alexandra McClure. or the fact of occurrences tied to Nuestra Familia. 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. . At the time of this call Sanchez was also the appointed Regimental Commander for the San Jose regiment and was functioning under the direction of the leadership in Pelican Bay. For example,6 Opinion 517 reads: "Tell Polvo that Demonito is a waste of time and mom doesn't want her around the house, period." Retirement Communities in the Palm Springs Area | 55+, 'We Aren't Joking. Five of the defendants will be sentenced to life in federal prison, and three will get 10-year terms. Both the victim and all defendants are black. Please see the exhibits to the United States' Second Expert Disclosure, which provide detailed summaries of the content of the jail calls. Parry said its impossible to monitor every single letter, phone call and visit of every single inmate. The undersigned similarly instructed the jury at the end of the case that the fact that a defendant was incarcerated necessarily meant he could not have been present at the scene of the crime."). Id. Thus, the Court excludes expert testimony regarding the Bauer address under Rule 702. An official website of the United States government. 5dk*@WlLLOz(.CN8we3_/?:i}"(hG$ua +U4i. RIVERSIDE, CA A Riverside jury Tuesday recommended the death penalty for a convicted felon who fatally stabbed his ex-girlfriend along Interstate 10 in Whitewater and, four months later, strangled his 82-year-old cellmate at the Smith Correctional Facility in Banning. % It will not eliminate the hate and prejudice within prisons, he said, adding that abolishing gang violence will not happen piecemeal. 831 at 3.) In addition, "[t]o establish that the declarant knowingly participated in a conspiracy, `the government cannot rely solely on the [alleged] co-conspirator statements themselves.'" Each admitted to having participated in at least two homicides as part of his guilty plea. <> xAlk75~]}JOQD1hZ|0I_(,5~[,==FsL$c56 (Docket No. (Docket No. 985, Opinion 320 ("Karen Bauer is intermediary for letters t/from Cervantes and Villanueva. Theres a war occurring in our communities in California, Dunbaugh said. "And by convicting 70 Nuestra Familia street members who were active in Northern California communities, we have rolled back the gang's operations on the streets.". (Docket No. Villanueva also conveyed to the same inmate that he wanted to "choke" Carlin. TTY: (415) 436-7221, Oakland: (510) 637-3680 . at 693. Cf. The government's disclosure stated, "At the Bureau of Prisons, Mr. Feeney's primary responsibility was to monitor gang activity, including activity of the Nuestra Familia." The Enterprise consisted of members and associates of the Nuestra Familia prison gang as well as Norteo street gangs in Salinas, Calif., and the surrounding areas. Daniel Perez, 42, Alberto Larez, 36, and Henry Cervantes, 40, will receive 10-year sentences. Finally, as noted above, the statement must be in furtherance of a particular conspiracy. Perez will not begin serving his sentence until he has completed a separate six-year state prison. Rather, the government "must produce some independent evidence which, viewed in light of the coconspirator statements, establishes the requisite connection between the accused and the conspiracy. H. Cervantes seeks to exclude any evidence regarding actions on any date after H. Cervantes's arrest in September 2011, or to provide limiting instructions on the purpose for which the jury may consider such evidence. Parry said Monday that changes in Corrections Department policy would be made, but he refused to provide details. Henry Cervantes, Defendant, represented by John Timothy Philipsborn , Attorney at Law. Pending before the Court are motions in limine and a motion to conduct hearings and issue preliminary rulings on certain categories of evidence, filed by Henry Cervantes ("H. Cervantes") (Docket Nos. )3 Having reviewed the filing, the Court finds that virtually all of the "opinions" relate to investigation-specific terms that lack any fixed meaning or that fall outside the category of commonly-used slang or jargon, and for which Feeney does not explain how his opinions result from a reliable expert methodology. If the parties collectively agree that more certainty is required on this front, the Court will entertain a joint request to conduct further proceedings on this issue in advance of trial. 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). (See Docket No. According to prosecutors, the 6-foot, 2-inch, 300-pound defendant had been in a relationship with Barrasa in the late 1990s, and in the fall of 2015, he persuaded her to join him at his brother's residence in Salida, Northern California. . . For instance, the government once again would have Feeney testify as an expert to what individual nicknames matched which defendants or alleged coconspirators in this case on the basis of listening to calls in this case. They were so successful in persuading gang members to give evidence against their colleagues that had the case gone to trial, the government was prepared to have 24 former gang members and associates testify as prosecution witnesses. 2006). USA, Plaintiff, represented by Joseph Michelangelo Alioto, Jr. , U.S. Department of Justice, Jennifer R. Sykes , Department of Justice, Robert Steven Tully , U.S. Dept of Justice, Wai Shun Wilson Leung , United States Attorney's Office & William Frentzen , U.S. Attorney's Office, NDCA. The 25-count indictment was returned Thursday by a grand jury that had heard testimony during the past year. Nov. 17, 2011) ("Nonetheless, to ensure no juror confusion, the undersigned instructed the jurors at the time evidence was admitted of the limited purpose of the evidence and the fact that most of the defendants on trial were in custody at the time of the incident. Inmates sneak out handwritten coded letters, or micro-writings, often transcribed and forwarded by their spouses and girlfriends and sometimes disguised as legal mail. This Court previously identified multiple categories of "translation" opinion testimony, found that the government's initial disclosures as to Feeney's proffered opinions conflated expert and lay opinion testimony, and ordered the government to file Feeney's proffered expert opinions and lay opinions for purposes of meeting the Ninth Circuit's requirements for admitting each type of opinion in the context of police officer opinion testimony about coded jargon testimony. The purpose of the subsequent beating is to inflict upon the victim maximum damage while giving the hitters time to wash themselves and get rid of weapons. The government's opposition on this point is conclusory. The proffered expert "translation" reads: "Call Ernest Killinger (aka Polvo/Powder) and tell him that Tobias Vigil (Demonito) is not fulfilling his obligations and is no good. 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. Shortly before 2 a.m. on May 12, Barrasa's body was located in Villanueva's sedan, which appeared to have crashed on eastbound Interstate 10, near Tipton Road, in Whitewater. (See Docket No. Local R. 16-1(c)(4); see also United States v. Cerna, 2011 WL 2119304, at *5 (N.D. Cal. She had been. (PARADIGMMEDIA) Unplugged, does not make any warranties about the completeness, reliability and accuracy of this information. Thus, the Court GRANTS the motions WITHOUT PREJUDICE to future motions if pertinent to a rebuttal. Eventually, the FBI, U.S. Department of Justice and other state and local law enforcement agencies combined forces. Lock May 27, 2011) ("In a myriad of ways, the statements sought to further the conspiracy's common objective and/or to set in motion transactions that were integral to the conspiracy."). ("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."). See Luce v. United States,469 U.S. 38, 40 n.2 (1984) (noting that motion in limine refers "to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered"). "By getting the gang's top leadership to plead guilty and agree to go into federal custody and be spread to the four corners of the federal prison system, we have succeeded in getting them out of California and disrupted their ability to lead the gang," Gruel said. at 1420 (noting evidence regarding the location of the ledgers, "entries [that] corresponded to surveilled activities," and attributions of deliveries to "a nickname associated with an established pseudonym for Gil"). See United States v. Lloyd,807 F.3d 1128, 1155 n.8 (9th Cir. 2007); United States v. Decoud,456 F.3d 996, 1014 (9th Cir. (See Docket No. 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.. 1063 at 1; Docket No. 1045 at 3) does not suffice. at 2.) Rudy Del Real and Rudolfo Quilon complete the order. 1024 at 4 (some quotation marks omitted).) Compare NF 544, 545 and NF 11190, 11191.").) 1959(a)(5), and conspiracy to commit assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. 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. Cf. Last month, the same jury convicted Villanueva of two counts of first- degree murder and found true a special circumstance allegation of taking multiple lives, making the defendant eligible for a death sentence. Shortly before 2 a.m. on May 12, Barrasa's body was located in Villanueva's sedan, which appeared to have crashed on eastbound Interstate 10, near Tipton Road, in Whitewater. at 1246 (quoting United States v. Castaneda,16 F.3d 1504, 1507 (9th Cir. . Romero also admitted to helping plan two other removals on April 29 and October 23, 2013. Completed Federal Capital Cases Involving an Inmate - 10/22/2015 Dublin, Keith E.D. HENRY CERVANTES, et al., Defendants. stream They are the two most powerful prison gangs in the state prison system, officials say. Twelve men and one woman face federal charges of murder, robbery, conspiracy and drug-related crimes. Cf. However, with respect to those alleged coconspirators not charged, e.g., Skip Villanueva, a sufficient proffer has not been made. ." Henry Cervantes, Defendant, represented by, Jaime Cervantes, Defendant, represented by, Richie Michelson, Defendant, represented by, Andrew F. Cervantes, Defendant, represented by, California Department of Corrections and Rehabilitation, Movant, represented by. N.D. Cal. including Sheldon Villanueva, one of two incarcerated "overseers" who ran NF. 2007) ("Statements made for personal objectives outside the conspiracy or as part of idle conversation are not admissible under Rule 801(d)(2)(E). Attorneys Claudia A. Quiroz and Stephen Meyer are prosecuting the case. A lock ( 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. 2 0 obj . Thus, the government must show that it is more likely than not that the declarant was a co-conspirator. 985.) Mug Shot for Sheldon Villanueva booked into the Multnomah county jail. (See Docket No. 1045 at 4-5.) However, `statements made to keep coconspirators abreast of an ongoing conspiracy's activities satisfy the `in furtherance' of requirement.'" 985 at 3; Docket No. Cr. Mar. Henry Cervantes, Vidal Fabela, David Rocha and Diana Vasquez were arrested at several locations across Northern California on Friday, Dunbaugh said. Perez will not begin serving his sentence until he has completed a separate six-year state prison sentence, which he has yet to begin. Id. 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. See Garcia, 497 F.3d at 967 & n.1; United States v. Cruz-Ramirez, 2011 WL 5599630, at *5 (N.D. Cal. See United States v. Gee,695 F.2d 1165, 1169 (9th Cir. All six lived in the Secure Housing Unit, a prison within a prison at Pelican Bay, and all were eligible for parole. In order to corroborate or refute this status, the litigants must know the identity of the declarant."