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United States v. Lopez

United States Court of Appeals, Fourth Circuit

June 19, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
ALEXSI LOPEZ, a/k/a Alexis Lopez, Defendant-Appellant.

          Argued: January 26, 2017

         Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:12-cr-00075-PWG-2)


          Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ, Highland, Maryland, for Appellant.

          Amanda Brooke Harris, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          Before MOTZ, KING, and HARRIS, Circuit Judges.

          PAMELA HARRIS, Circuit Judge:

         In 2007, two young men robbed a brothel in Langley Park, Maryland, raping one victim and killing another. Several years later, DNA testing identified appellant Alexsi Lopez as a suspect, and Lopez was indicted in 2013, more than six years after the crime. Though Lopez was 17 years old at the time of the robbery, he was over 21 when indicted, and thus tried as an adult. A jury convicted Lopez of two counts under the Hobbs Act, 18 U.S.C. § 1951(a), the federal robbery statute.

         The gap of over six years between crime and indictment is the primary focus of Lopez's appeal. Lopez argues, first, that because he was under 18 when the robbery was committed, he should have been tried as a juvenile notwithstanding the passage of time before his indictment, and that to the extent the Juvenile Delinquency Act, 18 U.S.C. § 5031, provides otherwise, it is unconstitutional. Lopez also argues that his prosecution was untimely under the ordinary five-year statute of limitations for a Hobbs Act robbery, and that 18 U.S.C. § 3297, which extends the limitations period in certain cases involving DNA testing, does not apply. And third, Lopez claims that the government violated his due process rights by delaying his indictment without justification.

         We agree with the district court that Lopez's timing-related arguments are without merit. We also agree that the government established the connection to interstate commerce necessary to sustain a Hobbs Act conviction. And we find no error in the evidentiary rulings challenged on appeal, or in Lopez's sentencing. Accordingly, we affirm.



         The Langley Park area of Prince George's County, Maryland, includes several apartment complexes that house illegal businesses, including a network of brothels. Because those businesses are illegal, they are frequent targets of La Mara Salvatrucha, a gang, better known as MS-13; among other things, MS-13 seeks to impose weekly "rent" charges on these underground establishments.

         The events giving rise to this case occurred at a Langley Park brothel on February 28, 2007. The brothel, located in a first-floor apartment, was staffed on that day by two workers: Adelaida Garcia-Calderon, who regularly traveled from her home in New York to work as a prostitute; and a doorman, who collected money from customers. Two men entered the apartment and demanded money. After tying the doorman's hands and feet with the electric cord of a fan, they searched the apartment. One of the intruders, brandishing a knife, forced Garcia-Calderon into a bedroom, and then raped her at knifepoint. Although the man placed a pillow over much of Garcia-Calderon's face, Garcia-Calderon was able to see the sheath of the knife on a table by the bed.

         While Garcia-Calderon was in the bedroom, a man named Carlos Cordon inadvertently walked in on the robbery, and began to yell and plead with the man in the living room not to harm him. When Cordon would not "shut up" as instructed, the assailant repeatedly stabbed him. J.A. 110.[1] Cordon, whose body was discovered the next day behind the apartment building, died as a result of multiple sharp force injuries. Garcia-Calderon and the doorman survived the robbery: After the intruders left the premises, Garcia-Calderon untied the doorman and then, shocked and frightened, escaped through a window in the apartment.

         The Prince George's County Police Department ("PGCPD") directed the ensuing investigation. Garcia-Calderon was unable to identify either robber, including her rapist. But state investigators collected over 40 pieces of physical evidence from the crime scene, including the knife sheath from the table next to the bed where Garcia-Calderon was raped. Because the PGCPD did not have a DNA lab in operation at the time, it outsourced DNA testing to a private lab in Baltimore; and in light of the costs of private testing, the PGCPD followed a "triage process, " J.A. 571, under which it conserved resources by first sending only the five most important items to be tested. Although the five items selected by investigators did not initially return any results, in September of 2011, the PGCPD was informed that the DNA of Miguel Ramon Cerros-Cruz, an MS-13 member, was found on the electric cords used to bind the doorman during the 2007 robbery.

         The knife sheath was submitted for DNA testing with a second round of evidence in November of 2011. On April 23, 2012, the federal Combined DNA Index System (CODIS) matched the DNA found on the knife sheath to Lopez. Based on that finding, the PGCPD secured a warrant to collect a DNA sample from Lopez, and on June 27, 2012, after performing its own analysis, the PGCPD lab concluded that the DNA on the knife sheath matched the sample taken from Lopez.

         Having identified Lopez as a suspect, the PGCPD investigated further to confirm Lopez's involvement in the robbery. In May 2013, it secured the testimony of a confidential informant, a member of MS-13 serving a prison sentence. In late 2007, the informant overheard Lopez - then incarcerated in the same facility - tell another inmate that he and Cerros-Cruz had robbed a brothel and killed a man who refused to cooperate.

         With this additional information in hand, the government formally charged Lopez, and on July 15, 2013, more than six years after the robbery, a grand jury indicted both Lopez and Cerros-Cruz for one count of conspiracy to commit Hobbs Act robbery and one count of Hobbs Act robbery. See 18 U.S.C. § 1951. Cerros-Cruz entered into a plea agreement on the conspiracy count, and in return, the government dismissed the robbery count against him. As agreed upon by the parties, Cerros-Cruz was sentenced to ten years' imprisonment.

         Lopez elected to go to trial. Under the Juvenile Delinquency Act, which removes juveniles from the adult criminal justice system, the government generally may not try a juvenile in federal court. 18 U.S.C. § 5032. But because Lopez, 17 at the time of the crime, was 24 when he was indicted six years later, the government proceeded against him as an adult and in federal court.



         Before trial, Lopez moved to dismiss the indictment against him, arguing that the Juvenile Delinquency Act ("JDA" or "Act") prohibited the government from initiating proceedings in federal court. And to the extent that the JDA does not treat him as a juvenile, Lopez contended, the Act is unconstitutional under the due process and equal protection components of the Fifth Amendment as well as the Eighth Amendment. The district court denied Lopez's motion. Relying on United States v. Blake, 571 F.3d 331 (4th Cir. 2009), the court held that under the plain language of the JDA, "if charges are brought against the defendant . . . [when] he is 21 or older, even if the conduct [was] committed as a juvenile, " the prosecution falls outside the scope of the statute. J.A. 42. The court then rejected Lopez's constitutional challenge to the JDA so construed, noting that other courts have rejected similar challenges and that no authority supported Lopez's position.

         Lopez also moved to dismiss based on pre-indictment delay, raising two distinct claims. First, he maintained that the charges against him, filed more than six years after the offense, were barred by the five-year statute of limitations that applies to the Hobbs Act. The district court rejected that claim, relying on 18 U.S.C. § 3297, which restarts an otherwise applicable limitations period if "DNA testing implicates an identified person in the commission of a felony." S.A. 77-78 (quoting 18 U.S.C. § 3297). Because Lopez was not "implicate[d]" until 2012, when DNA results on the knife sheath were returned, the court reasoned, the government was well within the new five-year limitations period when it charged Lopez in 2013.

         Lopez's second claim - that over six years of pre-indictment delay violated his due process rights - fared no better. In denying Lopez's pre-trial motion to dismiss, the district court assumed for the sake of argument that Lopez could show the necessary prejudice arising from the delay. But because the delay was not caused by government misconduct and instead was justified by the government's continued investigation, the court held, Lopez could not make the second required showing: that "the reason for the delay violates . . . fundamental concepts of justice, fair play, and decency." S.A. 107 (citing United States v. Williams, 684 F.2d 296, 302 (4th Cir. 1982)). When it revisited Lopez's due process claim at the end of the trial, the district court amended its reasoning, finding this time that Lopez in fact could not make the "threshold showing" of prejudice necessary to sustain his claim. J.A. 768.


         The case proceeded to trial, where one of the government's key witnesses was the confidential informant who had been incarcerated with Lopez in 2007. The informant told the jury about the conversation he overheard between his cellmate, an MS-13 gang member, and Lopez, in which Lopez boasted about committing a robbery and murder at a brothel. He also testified that the MS-13 gang ...

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