In U.S. v. Flores, No. 08-10775 (June 29, 2009), the Court affirmed the convictions and sentences of defendants convicted of RICO and murder crimes as members of the Sur-13 gang.
The Court found no fault in the district court’s excusing a potential juror for cause when she said she suffered from attention deficit disorder ("ADD"), noting that untreated ADD could interfere with a juror’s ability to pay attention in a lengthy trial.
The Court also rejected an argument that the venire was prejudiced by a potential juror’s comment that, as a corrections officer, he had dealt with some of the defendants on trial. The "short and nondescript" statements did not create a continuing influence on the trial.
The Court rejected the argument that a statement by a gang member describing the details of a murder was not made in "furtherance" of a conspiracy, and was therefore not admissible under F.R.E. 801(d)(2)(E). The defendant argued that the statement was made in contravention of the gang leader’s instruction to gang members not to talk about the murder. The Court found that the statement did "foster cohesiveness within the gang," and therefore fell within this hearsay exception.
The Court recognized that, in light of Apprendi, the district court might have erred in instructing the jury on that, because drug distribution inherently affects interstate commerce, an effect on interstate commerce could be found even if instrastate drug distribution was found,. However, any error in the instruction on the interstate nexus was harmless in light of the evidence of interstate commerce.
Turning to sentencing, the Court found that, just as a conspiracy is a continuing offense for purposes of determining whether a person can be prosecuted as an adult, and not as juvenile, it is also a continuing offense for sentencing purposes. The Court affirmed the sentences, including life sentences, as reasonable.
