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The government presented evidence that some of the appellants were also involved, not just in the drug taxing schemes, but in direct drug distribution themselves. Pungitore, 910 F.2d 1084, 1100-01 (3d Cir.1990) (holding that”[t]he evidence also shows that the appellants killed in response to a member's showing of disloyalty to the organization ․ and to eliminate a faction of the enterprise's membership which threatened [one defendant's] leadership”). The indictment specifically alleged that the type of enterprise involved in this case is “an association in fact of individuals.” Under Supreme Court and Ninth Circuit precedent, establishing the existence of an associated-in-fact enterprise requires proof (1) of an ongoing organization, formal or informal, (2) which exhibits a hierarchical or consensual decision-making structure beyond that inherent in the alleged racketeering activity, and (3) in which the various associates function as a continuing unit. Second, as the Second Circuit has noted, “[c]ommon sense suggests that the existence of an association-in-fact is often-times more readily proven by what it does, rather than by abstract analysis of its structure.” Coonan, 938 F.2d at 1559 (emphasis in original) (internal citations and quotation marks omitted).
Fernandez, Contreras, Gonzales and Gavaldon were shown to be engaged in drug trafficking,particularly by supplying drugs to sellers. Moreover, in another Mexican Mafia case, we upheld the convictions of several Eme members against insufficient evidence challenges, where one count of the indictment charged five defendants with conspiracy “to kill [another member] because he was politicking against other members, threatening to kill other members, claimed to have made an individual a member without following the proper procedure, and for generally causing dissension within the organization.” Shryock, 342 F.3d at 967. Shryock, Appellants' Joint Opening Br., 2001 WL 34091052, at *170 (arguing that evidence was insufficient to establish enterprise because it showed “the existence of independent groups or members often in conflict with each other without any decision making structure”); Shryock, 342 F.3d at 988-89 (summarily rejecting all sufficiency challenges). The evidence at trial clearly established that the drug taxing and drug trafficking conspiracies were undertaken by individuals on behalf of the enterprise, and were in fact an integral part of the conduct of the Eme's affairs. Amato, 15 F.3d 230, 234 (2d Cir.1994) (holding, in context of criminal prosecution of members of one faction within a criminal enterprise that “[r]ivalry and dissension, however violent, do not necessarily signify dissolution of a conspiracy.”).
Fernandez, co-defendant Martinez and Torvisco led an effort to “organize” the street gangs in the San Fernando Valley in late 1998. First, contrary to Appellants' arguments, the jury specifically found that Fernandez and Sanchez had committed two predicate acts in addition to the charged murder conspiracies-the drug trafficking conspiracies in Los Angeles and in jail. Chen, 80 F.3d 1293, 1297, 1299-1300 (9th Cir.1996).
Gonzales, who was Fernandez's stepson, and Contreras were responsible for collecting tax money from gangs in the Valley on behalf of Fernandez and the Eme. A pattern of racketeering activity, in turn, requires at least two predicate acts, which include “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in [narcotics],” that is an offense under state law “and punishable by imprisonment for more than one year.” 18 U. Thus, even if there were insufficient evidence on the murder conspiracies, the jury found the requisite minimum of two predicate acts for these two Appellants. In order for a group of individuals to qualify as an enterprise, “the [decision-making] structure should provide some mechanism for controlling and directing the affairs of the group on an on-going, rather than an ad hoc, basis.” Chang, 80 F.3d at 1299 (citation and internal quotation marks omitted); see also Simon v.
The government presented evidence that Martinez, Fernandez and Sanchez had approved the murders of Turscak and Detevis and had discussed plans to carry them out. “Before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. Because our precedents have rejected the notion that an interstate nexus constitutes an element of offenses under the CSA in the drug trafficking context, the government was not required to plead such nexus in the indictment. Appellants' arguments fail for the same reasons that their attacks on counts one and two of the indictment fail. As we explained above, an indictment is sufficient if it sets forth the elements of the charged offense. Odom, 329 F.3d 1032, 1034 (9th Cir.2003) (citation omitted). Count One: Racketeering (Substantive Violations) Title 18 U. Under California law, “[a] conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit” a specified crime, “with the further specific intent to commit that crime ․, followed by an overt act committed in this state by one (or more) of the parties for the purpose of accomplishing the object of the agreement.” CAL. It is unclear, however, whether the overt act must be committed while the defendant is a part of the conspiracy in order for it to be used against him. JURY INSTRUCTIONS, CRIMINAL 6.10 (“It is not necessary to the guilt of any particular defendant that he personally committed an overt act, if he was one of the conspirators when the alleged overt act was committed.”) (alternative pronouns omitted), with 1 WITKIN & EPSTEIN, CALIFORNIA CRIMINAL LAW (3d ed.
On Easter Sunday in 1998, Torvisco, Rochin and others actually made an unsuccessful attempt to murder Turscak. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir.1977) (per curiam); see also United States v. We have held that an indictment setting forth the elements of the offense is generally sufficient. § 1959 requires that the “enterprise” in question be one “which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U. The indictment therefore adequately pled the interstate nexus as to these counts. The district court properly declined to dismiss the RICO charges against Sanchez Sanchez argues that the district court erred in denying his motion to dismiss the indictment because it failed to charge him properly with conspiracy to murder Nicholas Navarro. The district court properly rejected Sanchez's motion to dismiss the indictment. JURY INSTRUCTIONS, CRIMINAL (7th ed.2004) 6.10; see also People v. 2000) Elements § 95 (“[O]ne who joins with the existing conspirators in the criminal plan does not create a new conspiracy but becomes a member of the existing conspiracy.
Fernandez, Contreras, Gonzales and Sanchez were charged in count one with violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U. The Eme asserts its control through violence and intimidation.
That conspiracy involved Fernandez, Martinez and Gonzales, who discussed killing James “Bouncer” Lopez because of Lopez's interference with the collection of drug taxes in the Valley. They concede that the indictment stated that the Mexican Mafia was an enterprise, “which is engaged in, and whose activities affect, interstate and foreign commerce,” but they claim that the indictment must also allege facts supporting this “conclusory pleading.” 2002 WL 32302660 at *52. Because our precedents have previously drawn parallels between the jurisdictional requirements of the RICO statute and the Hobbs Act, see Juvenile Male, 118 F.3d at 1348 (relying on Hobbs Act precedent to reject challenge that RICO prosecution required showing of substantial effect on interstate commerce), we hold that the more lenient pleading requirements of Hobbs Act prosecutions should be applied to RICO cases. Ashcroft, 352 F.3d 1222, 1229, 1233 (9th Cir.2003) (holding that the CSA may be unconstitutional as applied to the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician), cert. Bracy, 67 F.3d 1421, 1429 (9th Cir.1995) (citing United States v. The indictment in this case expressly alleged the required elements and is therefore sufficient. Counts Fourteen, Fifteen and Twenty-One (VICAR Counts) adequately pled the element of a nexus to interstate commerce Appellants' final collective challenge to the indictment is that it failed to plead adequately an interstate nexus with regard to the VICAR counts. To the extent that the allegations regarding Navarro do not qualify as overt acts supporting the conspiracy count, they are simply surplusage. Moreover, we have previously noted that such surplusage “may be subject to a motion to strike at the instance of the [defendants] but surplusage is not fatal.” United States v. Even if the overt act must have been committed while Sanchez was a member of the conspiracy, his contention that no such act was committed between November 1998 and February 1999 is not supported by the evidence.
Fernandez was charged in counts fourteen, fifteen, eighteen and twenty-one with violations of the Violent Crimes in Aid of Racketeering Activity (“VICAR”) statute, 18 U. Sanchez was charged with two VICAR counts (fifteen and nineteen), also for conspiracy to commit murder. Although the indictment had originally charged twenty-four individuals, the district court severed a number of death eligible defendants from the non-capital defendants, the latter group including Appellants.
Fernandez, Sanchez, and Schoenberg were charged in count four with conspiracy to aid and abet drug distribution within the Los Angeles County Jail (“LACJ”) and other California prisons. § 1959, namely, conspiracies to murder four different individuals. The jury eventually convicted Appellants on all counts, except that it found Sanchez not guilty on VICAR count nineteen and it hung on VICAR count eighteen against Fernandez.
Evidence was also presented that appellants Fernandez, Sanchez and Schoenberg had engaged in efforts to smuggle drugs into the LACJ, conduct for which they were charged in count four. 03-1454), the conduct with which the defendants are charged here bears no resemblance to the peculiar circumstances we confronted in Raich. The evidence presented at trial showed that despite the violent dispute between the Martinez/Torvisco/Fernandez and Turscak/Detevis factions, members of the group still identified themselves as members or associates of the Eme; still invoked the reputation and power of the group as a whole when dealing with people outside the organization; and expected the entire organization to endure beyond the ‘war,’ after which relationships and methods of operation would return to normal. The statutory definition of “enterprise includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U. Additionally, the murder conspiracies were proof of the existence of an enterprise, because the dispute was between different factions of the enterprise struggling for position within and control of the organization. In this case there was evidence of more than the racketeering acts and conspiracies.
Finally, the government presented evidence of conspiracies to commit murders that underlay both the RICO and VICAR counts. Instead, the conduct charged in this case is the type of drug trafficking activity that this Court has repeatedly held to be within Congress' power to regulate. § 1962(c) is established by “proof of ‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.’ ” Howard v. Despite the dispute between two factions within the organization, therefore, the evidence clearly established a single Eme enterprise.2. Wiretap evidence showed, and several witnesses testified, that the Eme was a criminal organization of long standing, with a well-defined set of rules that were enforced by violence or the threat of violence, consistent procedures for recruitment and advancement, and the overall goal of controlling Latino gangs in southern California by maintaining and projecting its power both inside and outside of prison.3.