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United States v. Gurrola

United States Court of Appeals, Fifth Circuit

August 2, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
SAMUEL VELASCO GURROLA, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Texas

          Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.


         Defendant-appellant Samuel Velasco Gurrola ("Gurrola"), the leader of the Velasco Gurrola Criminal Enterprise (the "VCE"), appeals his conviction and sentence for three counts of conspiracy to kill in a foreign country and four counts of conspiracy to cause travel in foreign commerce in the commission of murder-for-hire. Finding no reversible error, we AFFIRM.[1]


         Viewed in the light most favorable to the verdict, the relevant facts are as follows: Gurrola formed the VCE in the early 2000's with his brother Emmanuel Velasco Gurrola ("Emmanuel"), his sister Dalia Valencia, aka Dalia Velasco ("Dalia"), and several other individuals. For a number of years, the VCE, spearheaded by Gurrola, engaged in racketeering, kidnapping, carjacking, and drug trafficking throughout the United States and northern Mexico.

         In February 2004, Gurrola married Ruth Sagredo Escobedo ("Ruth"). A few months later, Ruth's five-year-old daughter from a previous marriage, A.A., informed Ruth that Gurrola had sexually assaulted her. Ruth subsequently took steps to have criminal charges filed against Gurrola in Texas state court. The State filed charges against Gurrola in 2005, but Gurrola's trial counsel obtained a number of continuances over the next three and a half years. Eventually though, the court drew a hard line: it reset the case for trial on November 12, 2008, and it told the parties that there would be no more continuances.

         The State then notified Gurrola that Ruth was going to testify as the "outcry" witness, [2] which meant Ruth would be able to testify about A.A.'s out-of-court statements to Ruth describing the incident with Gurrola. As trial drew near, Gurrola began searching for a way to prevent Ruth from testifying. At a May 2008 pre-trial hearing, Gurrola approached Ruth and told her, in front of her family, that she would pay dearly if she did not drop the case. Gurrola then pointed to Ruth's father, Francisco Villareal ("Francisco"), and stated that he "would start with him." Despite this warning, Ruth aggressively urged the prosecutor to get the case to trial.

         In September 2008, Gurrola met with Emmanuel, Dalia, Alan Garcia ("Alan"), and Arturo Garcia ("Arturo") at Dalia's residence in El Paso. At that meeting, Gurrola contrived a careful plan to have Ruth murdered in her hometown of Juarez, Mexico.[3] This presented a problem for Gurrola because Ruth did not travel to Juarez often, and Gurrola faced a rapidly approaching trial date on the sexual assault charge. Gurrola decided that Ruth would have to be lured to Juarez. Gurrola then hired Alan to murder Ruth's father, Francisco, at his home in Juarez so that Ruth would have to travel to Juarez for the funeral.

         On October 3, 2008, a group of masked individuals invaded Francisco's home, murdered him execution-style, and stole approximately $140, 000 from his safe. As Gurrola had anticipated, Ruth returned home for Francisco's funeral. Coincidentally, that funeral occurred at the same time as the funeral of a Mexican law enforcement officer, which attracted a large law enforcement presence near Francisco's funeral. For this reason, the plan to murder Ruth could not be carried out.

         Despite her father's murder, Ruth did not ask the State to drop the charges against Gurrola. However, as the November 12, 2008 trial date approached, Gurrola's counsel pleaded for one final continuance because Gurrola was allegedly gravely ill and unable to stand trial. The state court reluctantly granted the continuance and set a final trial date for December 9, 2008.

         In the meantime, another plan congealed to lure Ruth to Juarez. On November 20, 2008, Cinthia Sagredo ("Cinthia"), Ruth's sister, was ambushed and murdered while working at the Sagredo family hotel in Juarez. As anticipated, Ruth attended Cinthia's funeral two days later. As Ruth and her boyfriend, Roberto Martinez ("Roberto"), drove in Cinthia's funeral procession, they were ambushed and brutally murdered. On December 9, 2008, Gurrola appeared ready to begin trial on the sexual assault charge. Deprived of its key witness, however, the State moved for a continuance and ultimately dismissed the case.

         After a lengthy investigation into the murders of Ruth, Francisco, Cinthia, and Roberto, as well as the VCE's other illegal operations, on September 22, 2015, federal warrants were issued for several VCE members, including Gurrola. He was arrested the next day in El Paso and later charged in a seven-count First Superseding Indictment for three counts of conspiracy to kill in a foreign country under 18 U.S.C. § 956(a) and four counts of conspiracy to cause travel in foreign commerce in the commission of murder-for-hire under 18 U.S.C. § 1958(a).

         At the week-long trial, the Government produced nearly twenty witnesses, but none more important than Arturo Garcia. Arturo testified extensively to conversations he both participated in and overheard in which Gurrola, Alan, and others devised a plan to kill Ruth and her family. Arturo further testified that, after Ruth's murder, Gurrola admitted to the murders. This testimony was buttressed by extensive circumstantial evidence. Ultimately, a jury found Gurrola guilty on all seven counts.

         The district court sentenced Gurrola to consecutive life sentences on counts one through four and concurrent life sentences on counts five through seven. The district court then ordered restitution, but it reserved determination of the final amount for a later date. On August 11, 2017, the district court entered a second amended judgment reflecting the final amount of restitution as $1, 550, 247.15. Gurrola timely appealed all seven convictions and sentences, including the final restitution award.


         On appeal, Gurrola asserts that the district court committed several errors in both his trial and sentencing. We address each argument in turn.

         A. The voir dire

         Gurrola's first claim of trial error is that the district court's restricted voir dire violated his Sixth Amendment right to a fair and impartial jury. The district court conducted the first part of voir dire by asking the venire a number of questions (his own questions and some questions submitted by both Gurrola and the Government prior to trial); the court then gave counsel for both sides five minutes for further questioning. At the expiration of Gurrola's allotted time, Gurrola's request for additional time was denied. Gurrola's main argument is that the restricted voir dire did not enable him to adequately determine whether perspective jurors would be biased against him because of the allegations against him in the state court criminal proceeding.

         This Court defers to the judgment of the district court regarding the time and scope of voir dire absent an abuse of discretion.[4] A district court does not abuse its discretion so long as the procedure used "created a reasonable assurance that prejudice would be discovered if present."[5]

         Here, the district court questioned the veniremembers regarding their ability to follow the law as instructed and their impartiality concerning issues that typically arise in a criminal trial. Though the district court did not ask any questions specifically regarding the sexual assault allegations, the venire learned of those allegations when the court read the Government's statement of the case without objection at the outset of voir dire. Several veniremembers, in response to questions from the court on various topics, admitted in open court that they could not be impartial after learning of Gurrola's alleged sexual assault of Ruth's minor child. Those veniremembers were excused without further questioning, and none of the remaining veniremembers indicated that they harbored bias or prejudice against Gurrola based on the sexual assault allegations. Moreover, as part of the court's voir dire, it invited counsel for both sides to submit questions for the court to ask the venire. Although Gurrola submitted questions, none of them touched the sexual assault issue. Then, during the time allotted to Gurrola's counsel to question the venire, he raised a number of issues involving impartiality, but he asked no questions regarding the sexual assault allegations.

         We have carefully reviewed the court's voir dire procedure and are satisfied that it was conducted to "create[ ] a reasonable assurance that prejudice would be discovered if present."[6] We thus find no error and conclude that Gurrola's argument that his Sixth Amendment rights were violated during voir dire is without merit.

         B. The district court's evidentiary rulings on hearsay objections

         Gurrola next argues that the district court erred by allowing the Government to introduce inadmissible hearsay evidence. Gurrola's primary challenges relate to testimony about his statements to Arturo Garcia concerning Ruth's murder, Alan's statements to and interactions with Arturo following Francisco's murder, Ruth's statements to various individuals preceding her murder, and Emmanuel's statement to Cesar Silva ("Cesar") regarding Francisco's murder and robbery.

         Because Gurrola objected to the admissibility of this testimony at trial, we review "for abuse of discretion, subject to the harmless error standard."[7] "A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence."[8]

         1. Gurrola's statements to Arturo

         At trial, Arturo testified to a number of highly incriminating statements allegedly made by Gurrola.[9] Gurrola argues that this testimony was inadmissible under the co-conspirator rule, Federal Rule of Evidence 801(d)(2)(E), on the ground that Arturo was not a member of the murder conspiracy at the relevant times. As the Government correctly maintains, regardless of their admissibility under the co-conspirator rule, Gurrola's own statements were admissible under Rule 801(d)(2)(A), which allows the introduction of statements "offered against an opposing party" that were "made by the party in an individual or representative capacity."[10] Therefore, the district court properly admitted Arturo's testimony.

         2. Arturo's testimony about the events following Francisco's murder

         Gurrola also claims that the district court erred by allowing Arturo to testify regarding a shoebox full of cash Alan stole from Francisco's home and certain events following Francisco's death because Arturo was not a co-conspirator of the murder conspiracy at that time. Gurrola's argument misses the mark.

         Rule 801(d)(2)(E) only applies to statements made by a co-conspirator. At trial, the court allowed Arturo to testify to his personal knowledge of the events he observed following Francisco's death-but not statements that Alan allegedly made. For example, Arturo testified without objection that, at Alan's behest, Arturo traveled to Juarez to help transport money from Francisco's safe into the United States. He also testified without objection that Alan had a shoebox full of money in his possession when Arturo first arrived in Juarez the day after Francisco's murder. However, when the Government asked Arturo to repeat several of Alan's precise statements, the district court sustained Gurrola's objection. Because the district court did not allow Arturo to testify to statements made by Alan, the hearsay rules were not implicated, and the district court did not abuse its discretion in admitting this evidence.

         3. Ruth's statements

         Next, Gurrola argues that the district court erred by admitting several of Ruth's statements through the testimony of her brother, Carlos Sagredo ("Carlos"). Gurrola contends that the Government did not meet its burden to show that Gurrola actually created Ruth's unavailability as required by Federal Rule of Evidence 804(b)(6), and that, in any event, Ruth's statements should have been excluded under Federal Rule of Evidence 403.

         Rule 804(b)(6), the forfeiture by wrongdoing exception, allows the introduction of statements offered against a party that has "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."[11] In order for the declarant's statements to be admissible, the wrongdoer must "ha[ve] in mind the particular purpose of making the witness unavailable."[12] The party offering this evidence must make this showing by a preponderance of the evidence.[13]

         The district court conducted a pre-trial hearing on the admissibility of Ruth's statements.[14] At the hearing, the case agent, Homeland Security Agent Thomas Salloway ("Agent Salloway"), testified that, during the course of his investigation, both Arturo Garcia and Cesar Silva informed him that they heard Gurrola say that Gurrola ordered Ruth murdered specifically to prevent her from testifying. Agent Salloway's testimony was highly probative of Gurrola's motive for having Ruth killed, and it was later confirmed by Arturo at trial. The district court was entitled to rely on Agent Salloway's testimony in rendering its pre-trial ruling and, consequently, it did not abuse its discretion by admitting Carlos's testimony under Rule 804(b)(6).[15]

         Gurrola's Rule 403 argument is likewise unpersuasive.[16] Carlos testified that Ruth told him "[s]he was afraid, because she was being followed" and that she "was receiving threatening phone calls." He further testified that Ruth told him Gurrola approached her after a court hearing and warned her to "drop the case or it will cost you" while pointing at Francisco. Though this evidence was prejudicial, it was highly probative of Gurrola's motive and plan, especially considering Francisco was the first murder victim. Thus, the district court did not abuse its discretion in overruling the Rule 403 objection.

         4. Emmanuel's statements to Cesar

         Lastly, Gurrola argues that the district court erred by admitting portions of Cesar Silva's hearsay testimony in violation of his rights under the Confrontation Clause of the Sixth Amendment. Gurrola primarily takes issue with Cesar's testimony that Emmanuel told Cesar about "a supposed kidnapping" where members of the VCE invaded a home in Juarez, killed an older Hispanic person, and stole money from a safe-a description that neatly fit the circumstances of Francisco's murder. Gurrola contends that admission of this testimony violated his rights under the Confrontation Clause because Emmanuel was not available to be cross-examined. The Government counters that Emmanuel's statement falls within the co-conspirator exemption from hearsay, Rule 801(d)(2)(E), and, therefore, was not subject to the Confrontation Clause.[17]

         The admissibility of Cesar's testimony depends on whether Emmanuel's statement falls under Rule 801(d)(2)(E).[18] To satisfy that rule, the proponent of a statement must show by a preponderance of the evidence that (1) a conspiracy existed, (2) the statement was made by a co-conspirator of the opposing party, (3) the statement was made during the course of the conspiracy, and (4) the statement was made in furtherance of the conspiracy.[19]

         The only element at issue here is whether Emmanuel's statement was made "in furtherance of" the murder conspiracy. The "in furtherance of" element "is not to be construed too strictly lest the purpose of the exception be defeated."[20] However, to pass muster, a statement must advance the ultimate objects of the conspiracy-"mere idle chatter" will not suffice.[21]

         On the one hand, Gurrola argues that Emmanuel's statement had nothing to do with the murders and that it was merely an effort to recruit Cesar into a wholly separate kidnapping conspiracy. The Government, on the other hand, argues that while one purpose of Emmanuel's statement was to convince Cesar to assist in kidnapping operations, its main purpose was to help Gurrola compensate Alan for murdering Ruth and her family. In support, the Government points to the murder-for-hire compensation agreement between Gurrola and Alan. Arturo testified at trial that Gurrola agreed to funnel lucrative kidnapping opportunities to Alan, and to assist Alan in those kidnappings, as additional compensation to Alan for his role as the assassin. We find no abuse of discretion in the admission of this evidence, especially considering that Emmanuel made this statement shortly after the murders occurred and, at that time, Gurrola presumably would have been trying to make good on his promise to Alan.

         C. The district court's admission of ...

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