US v. Henry Berrios

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00081-GBL-5 Copies to all parties and the district court/agency. [998446267] [08-4327, 08-4328, 08-4365, 08-4385, 08-4403]

US v. Henry Berrios

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4327 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. HENRY ALEXANDER BERRIOS, a/k/a Blackie, Defendant ­ Appellant.

No. 08-4328 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. SANTOS CARILLO-MORALES, a/k/a Santos Guillermo CarilloMorales, a/k/a Santo Guiller Carillo-Morales, a/k/a Polaco, Defendant ­ Appellant.

No. 08-4365 UNITED STATES OF AMERICA Plaintiff ­ Appellee, v.

Dockets.Justia.com

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DANIEL ALBERT BONILLA-DELCID, a/k/a Slow, Defendant ­ Appellant.

No. 08-4385 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RIGOBERTO HERNANDEZ Antonio Martinez, PORTILLO, a/k/a Tiny, a/k/a Carlos

Defendant ­ Appellant.

No. 08-4403 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. CESAR OMAR HERNANDEZ-PEREZ, a/k/a Mandrake, Defendant ­ Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:07-cr-00081-GBL-5; 1:07-cr-00081-GBL-7; 1:07-cr00081-GBL-3; 1:07-cr-00081-GBL-4; 1:07-cr-00081-GBL-1) Submitted: September 9, 2010 Decided: October 15, 2010

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Before SHEDD and KEENAN, Circuit Judges, and Robert J. CONRAD, Jr., Chief United States District Judge for the Western District of North Carolina, sitting by designation. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Cesar Omar HernandezPerez; Gregory E. Stambaugh, LAW OFFICE OF GREGORY E. STAMBAUGH, Manassas, Virginia, for Henry Alexander Berrios; Daniel T. Lopez, LOPEZ MELEEN & SPRANO PLC, Fairfax, Virginia, for Santos Carillo-Morales; John O. Iweanoge, II, THE IWEANOGES' FIRM, PC, Washington, D.C., for Daniel Albert Bonilla-Delcid; Dwight E. Crawley, LAW OFFICE OF DWIGHT E. CRAWLEY, Arlington, Virginia, for Rigoberto Hernandez Portillo. Dana J. Boente, United States Attorney, Patrick F. Stokes, Beth N. Gibson, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for the United States. Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Cesar Omar Hernandez-Perez, Daniel Albert Bonilla-Delcid, Rigoberto Hernandez Portillo, Henry Alexander Berrios, and

Santos Carillo-Morales appeal their convictions for four counts of committing violent crimes in aid of racketeering (VICAR), in violation of 18 U.S.C. § 1959. The convictions arise out of an

October 15, 2005, attack by thirteen members of Mara Salvatrucha (MS-13) on M.N., a fifteen-year old member of a rival gang, and two of his friends outside a mall in Springfield, Virginia. On appeal, the defendants challenge the sufficiency of the evidence supporting their convictions. "In reviewing the

sufficiency of the evidence, our role is limited to considering whether there is substantial evidence, taking the view most

favorable to the Government, to support the conviction." States v. Delfino, 510 F.3d 468, 471 (4th Cir.

United 2007).

"[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a

conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). To prove a VICAR violation, the Government must show: (1) that the organization was a RICO enterprise, (2) that the enterprise was engaged in racketeering activity as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged crime of violence, 4

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and (5) that his general purpose in so doing was to maintain or increase his position in the enterprise. United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994)

(internal citation marks omitted).

The defendants contend that

the evidence is insufficient to support a finding that their actions had the purpose of maintaining or increasing their role in MS-13 or to support a finding that M.N. was the object of the crime of violence. also Hernandez contest the Portillo, Bonilla-Delcid, of the and

Carillo-Morales

sufficiency

evidence

showing that they joined the conspiracy to assault and murder M.N. We have thoroughly reviewed the record on appeal and find

more than sufficient evidence to sustain the jury's verdict on all four counts in the indictment. In addition to challenging the sufficiency of the evidence, Berrios and Hernandez Portillo argue that the district court improperly admitted testimony that on two occasions they

violently attacked a rival gang member.

We review the district United While

court's evidentiary rulings for abuse of discretion. States v. Gray, 405 F.3d 227, 238 (4th Cir. 2005).

conceding that the testimony is relevant, Berrios and Hernandez Portillo contend that it is highly prejudicial and thus

inadmissible under Federal Rule of Evidence 403.

Pursuant to

Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed 5 by the danger of unfair

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prejudice."

We have reviewed the record and conclude that the

district court did not abuse its discretion in admitting this evidence. Based convictions. on the foregoing, we affirm the defendants'

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional

process. AFFIRMED

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