United States of America v. Edy Oliverez-Jiminez, a/k/a Daniel, a/k/a FNU LNU, a/k/a Erasmo, a/k/a Ulysses,…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDY OLIVEREZ-JIMINEZ, a/k/a Daniel, a/k/a FNU LNU, a/k/a
Erasmo, a/k/a Ulysses, a/k/a Jesus,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:10-cr-00308-JRS-11)
Submitted: January 18, 2013 Decided: February 4, 2013
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew A. Protogyrou, PROTOGYROU & RIGNEY, PLC, Norfolk,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Michael R. Gill, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Edy Oliverez-Jiminez appeals from his convictions for
racketeering conspiracy (with murder and kidnapping as predicate
offenses), murder in aid of racketeering, and kidnapping in aid
of racketeering.1 On appeal, he contends that there was
insufficient evidence tying him to the kidnapping of Pascual
Ramos and Adrian Ceja and the murder of Ramos. He further
asserts that a hearsay statement was improperly admitted as a
co-conspirator’s statement made in furtherance of the
conspiracy. We affirm.
Oliverez-Jiminez first contends that the evidence was
insufficient to show that he knew or reasonably should have
known that Ramos and Ceja would be kidnapped and that Ramos
would be murdered in furtherance of a conspiracy to eliminate
the competition. In support of this argument, Oliverez-Jiminez
contends that (1) witness Sandra Obregon was an admitted liar
and thief who gave uncorroborated and contradictory testimony;
(2) while the evidence showed that Oliverez-Jiminez bought items
at a Family Dollar store which were recovered from the murder
scene, it was reasonable to conclude that he did not know the
1 Oliverez-Jiminez was also convicted of a false documents
conspiracy and a money laundering conspiracy. He does not
explicitly challenge these convictions. However, we find that
any challenge would be meritless for the reasons discussed in
this opinion.

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purpose of the items; and (3) neither Ceja nor the Family Dollar
employee was able to identify Oliverez-Jiminez.
When a defendant challenges the sufficiency of the
evidence supporting the jury’s guilty verdict, we view the
evidence and all reasonable inferences in favor of the
Government and will uphold the jury’s verdict if it is supported
by substantial evidence. United States v. Cameron, 573 F.3d
179, 183 (4th Cir. 2009). “[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.” Id. (internal quotation marks omitted).
In reviewing for substantial evidence, this court will not weigh
evidence or review witness credibility. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the
role of the jury to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. Id.; United
States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). Appellate
reversal on grounds of insufficient evidence “will be confined
to cases where the prosecution’s failure is clear.” United
States v. Green, 599 F.3d 360, 367 (4th Cir. 2010) (internal
quotation marks omitted).
We find that the evidence was more than sufficient to
tie Oliverez-Jiminez to the murder and kidnappings. Regarding
Obregon, we will not second guess the jury’s apparent decision

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to credit her testimony. Moreover, while Oliverez-Jiminez’s
purchase of the Family Dollar items might have been innocent,
the evidence must be viewed in the light most favorable to the
Government. Finally, the fact that neither the Family Dollar
employee nor Ceja were able to identify Oliverez-Jiminez is not
proof of his innocence, given the circumstances of their alleged
interaction.2
In any event, even viewing these evidentiary issues as
Oliverez-Jiminez argues would not lead to the conclusion that
there was insufficient evidence to show that Oliverez-Jiminez
was involved with the kidnapping and murder. To the contrary,
the record is replete with evidence showing not only that
Oliverez-Jiminez knew about the murder and kidnappings, but also
that he participated in them. Specifically, witness testimony
connected Oliverez-Jiminez to the victims; duct tape, sheets,
and thumb tacks, which were purchased one hour before the crime
at a Family Dollar store located near the murder scene and then
recovered from the murder scene, were tied to Oliverez-Jiminez
by forensic evidence; the murder victim’s phone and the pre-paid
phone used to set up the murder victim were found in the home
2 Connie Streetman, who worked at Family Dollar, testified
that the items were purchased by four nervous and anxious
Hispanic males. The Family Dollar video footage is of poor
quality. Ceja was bound by duct tape, beaten, and threatened by
four or five Hispanic males.

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where Oliverez-Jiminez lived and where he traveled immediately
after the murder; cell phone records placed Oliverez-Jimininez
near the murder scene at the time of the murder; and Oliverez-
Jiminez made a number of admissions regarding the murder. We do
not review the credibility of witnesses, and we assume the
factfinder resolved all contradictions in the testimony in favor
of the Government. United States v. Sun, 278 F.3d 302, 313 (4th
Cir. 2002). Given the plethora of evidence against Oliverez-
Jiminez and the deference due to the decision of the jury,
sufficient evidence supported Oliverez-Jiminez’s convictions.
Next, Oliverez-Jiminez challenges the admission of a
statement made by co-conspirator Erik Martinez-Ortiz that “they
had fucked up the comptition . . . and that Erasmo [Appellant]
had done it.” Oliverez-Jiminez contends that the statement was
improperly admitted because (1) the statement was made in
Virginia and (2) the Government failed to establish that the
statement was made in furtherance of the conspiracy.
A statement is not hearsay if it is offered against
the defendant and is a statement of a co-conspirator of the
defendant “during the course and in furtherance of the
conspiracy.” Fed. R. Evid. 801(d)(2)(E).3 For a statement to be
3 Rule 801 was amended in 2011. However, the amendments
were stylistic only.

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admissible under Fed. R. Evid. 801(d)(2)(E), there “must be
evidence that there was a conspiracy involving the declarant and
the nonoffering party, and that the statement was made during
the course and in furtherance of the conspiracy.” Bourjaily v.
United States, 483 U.S. 171, 175 (1987) (internal quotation
marks omitted). Accordingly, when the Government shows by a
preponderance of the evidence that (i) a conspiracy existed of
which the defendant and the party were members, and (ii) the co-
conspirator’s statement was made in furtherance of the
conspiracy, the statement is admissible. United States v. Neal,
78 F.3d 901, 905 (4th Cir. 1996).
Here, while Oliverez-Jiminez does not clearly dispute
it, there was ample evidence to show that Oliverez-Jiminez and
Martinez-Ortiz were both members of the FDE conspiracy.
Specifically, there was testimony and evidence that Martinez-
Ortiz worked for Oliverez-Jiminez in Little Rock and assisted
him in luring the victims to the trailer and beating them.
After the murder, both Oliverez-Jiminez and Martinez-Ortiz
relocated to Virginia from Little Rock.
Regarding the purpose of the statement, Martinez-Ortiz
was speaking to one of the people who was going to replace him
and Oliverez-Jiminez in Little Rock. The statement, thus,
served as a warning that the murder had created problems. In
addition, the statement would serve to foster trust and

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cohesiveness amongst the group and imparted information
regarding the progress and status of the conspiracy. As the
statement was clearly made in furtherance of the conspiracy,
there was no error in the admission of the testimony.
Based on the foregoing, we affirm Oliverez-Jiminez’s
convictions. 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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