601 F.3d 256 (4th Cir. 2010), 07-4577, United States v. Ayala

Docket Nº:07-4577, 07-4755.
Citation:601 F.3d 256
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edgar Alberto AYALA, a/k/a Pony, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Oscar Ramos Velasquez, a/k/a Casper, Defendant-Appellant.
Attorney:Gary Allen Ticknor, Elkridge, Maryland, for Appellants. Sandra Wilkinson, Office of the United States Attorney, Baltimore, Maryland, for Appellee. Richard C. Bittner, Glen Burnie, Maryland, for Appellant Oscar Ramos Velasquez. Rod J. Rosenstein, United States Attorney, James M. Trusty, Assistant ...
Judge Panel:Before WILKINSON and AGEE, Circuit Judges, and R. BRYAN HARWELL, United States District Judge for the District of South Carolina, sitting by designation. Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge AGEE and Judge HARWELL joined.
Case Date:April 08, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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601 F.3d 256 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edgar Alberto AYALA, a/k/a Pony, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Oscar Ramos Velasquez, a/k/a Casper, Defendant-Appellant.

Nos. 07-4577, 07-4755.

United States Court of Appeals, Fourth Circuit.

April 8, 2010

         Argued: Jan. 29, 2010.

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         ARGUED:

         Gary Allen Ticknor, Elkridge, Maryland, for Appellants.

         Sandra Wilkinson, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

          ON BRIEF:

         Richard C. Bittner, Glen Burnie, Maryland, for Appellant Oscar Ramos Velasquez.

         Rod J. Rosenstein, United States Attorney, James M. Trusty, Assistant United States Attorney, Laura Gwinn, Trial Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

          Before WILKINSON and AGEE, Circuit Judges, and R. BRYAN HARWELL, United States District Judge for the District of South Carolina, sitting by designation.

          Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge AGEE and Judge HARWELL joined.

         OPINION

          WILKINSON, Circuit Judge:

          This case concerns the prosecution of members of the violent street gang La Mara Salvatrucha under various statutes, including the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. §§ 1961-68, and the Violent Crimes in Aid of Racketeering (" VICAR" ) statute,

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18 U.S.C. § 1959. On appeal, the defendants raise numerous claims, some individually and others collectively. After careful consideration, we reject the defendants' various claims, affirm the judgment of the district court, and commend that court for its conscientious conduct of this six-week trial.

         I.

         A.

         La Mara Salvatrucha, otherwise known as MS-13, is one of the largest and most violent street gangs in the United States. The gang originated in Los Angeles, California in the 1980s. Since then, it has spread across the country and into foreign countries such as El Salvador, Honduras, and Mexico. Today, it has a large presence in the eastern United States, including parts of Maryland and Virginia.

         Violence defines MS-13's mission. The gang initiates its members through violence: existing members beat up the new members for a period of thirteen seconds. This ritual is meant to signify the beginning of a new, more brutal lifestyle. Once initiated, MS-13 members commit violent acts to defend the gang's territory against its rivals and to spread fear so that citizens do not report the gang's activities to the police. In fact, gang members are required to attack and, if possible, kill rival gang members whenever they see them. MS-13 members gain status within the gang through their willingness and ability to commit such violent acts.

         The gang maintains internal discipline through the use of violence as well. Members who do not follow the rules are routinely beaten, and those who cooperate with the police face penalty of death. The violent nature of MS-13 is captured by one of its mottos: " mata, viola, controla" which means " kill, rape, control."

         MS-13 is organized into local cliques. Each clique has two leaders: a " first word" and a " second word." The first word is responsible for running the clique's meetings, and the second word does so in his absence. At clique meetings, MS-13 members report on their violent activities which often include murders and robberies. The gang also discusses ongoing police investigations and devises ways to prevent others from cooperating with the police. In addition, members pay dues at meetings, which the clique uses to buy weapons, make loans to members, and support members who are in jail.

         Leaders of the various cliques frequently communicate and coordinate with one another to achieve the gang's objectives. They provide each other with material support, often in the form of guns or places to hide from the police.

         B.

         This case primarily involves two MS-13 cliques that operate in Prince George's County and Montgomery County, Maryland: the Sailors Locos Salvatruchos Westside (" Sailors" ) and the Teclas Locos Salvatruchos (" Teclas" ). A taskforce composed of federal and state agents conducted an extensive investigation into the activities of these cliques. The investigation was aided substantially by an informant within the ranks of the Sailors clique known as Noe Cruz. Cruz regularly provided the police with information about the gang's violent activities from December 2003 until August 2005. At that point, the police executed numerous search warrants and arrested many suspected gang members.

          Among those arrested were the defendants here, Edgar Alberto Ayala and Oscar Ramos Velasquez. The facts relevant

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to their involvement in MS-13 are as follows.

         1.

         At some point prior to February 2002, Ayala became a member of the Sailors clique of MS-13. Ayala attended meetings, paid dues, and even collected dues on behalf of the clique. He eventually became a leader in the clique, obtaining the rank of second word. During his time in MS-13, Ayala knew about or participated in several of the clique's violent activities.

         One of these was the murder of Randy Calderon who was a member of the Sailors clique. In the early morning hours of November 22, 2003, Calderon and another MS-13 member stabbed a rival gang member to death, wrapped his body in bed sheets, and tossed it in a dumpster. They did so at the apartment of fellow gang member Juan Moriera, without first obtaining Moriera's permission. Concerned that Calderon would confess the murder to the police and implicate him in the crime, Moriera shot and killed Calderon that same morning with the help of other MS-13 members.

         Ayala was well aware of the circumstances surrounding Calderon's death. Shortly after the murder, Ayala told a fellow gang member that it was necessary to kill Calderon to keep him from confessing the murder to the police. Ayala also attended a clique meeting where the murder was discussed. Moriera explained the details of the murder to the clique. Then Moriera and the clique's first word, Israel Cruz, announced a new rule: anyone who did not do as they were supposed to do would face the same fate as Calderon did.

         Ayala was also aware of a murder that took place in Suit-land, Maryland. On May 21, 2004, three MS-13 members, including Ayala's brother Alexis, beat a rival gang member to death and left his body at a cemetery. At a Sailors meeting soon thereafter, Alexis described the murder in detail. Ayala and Israel Cruz then advised Alexis to leave town to avoid the police. Ayala later attempted to cover up this murder by telling a Maryland grand jury that he had not spoken about it with his brother.

         Ayala participated in a gang-related shooting at an apartment complex in Alexandria, Virginia. On January 21, 2005, a group of Sailors, including Ayala, Noe Cruz, and Moriera, drove from Maryland to Virginia to look for rival gang members. As they drove by an apartment complex, they spotted some adolescents socializing on a stoop. Moriera suspected that these teenagers were members of a rival gang. The group then drove to a convenience store, where they met up with another MS-13 member who brought two handguns. Shortly thereafter, four MS-13 members, including Ayala, drove off in Ayala's vehicle to find the teenagers they had spotted earlier.

         According to the teenagers, two men approached them, and one opened fire with a pistol. The teenagers attempted to flee into the apartment building, but three of them were caught in the line of fire. A fifteen-year-old boy died in the attack, and two other teenagers were injured. One girl at the scene later identified Moriera as the shooter. Although no eyewitnesses reported seeing a second gun, police found bullets from two different guns at the scene.

          Lastly, Ayala and other MS-13 members attempted to commit a murder in the Baltimore, Maryland area. On February 23, 2005, Ayala, Israel Cruz, and Noe Cruz drove to Baltimore, met up with MS-13 members from another clique, and went to the home of an individual with whom the gang had a dispute. Their plan was that

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one MS-13 member would lure the individual from his home, while Ayala and Israel Cruz waited outside to shoot him with a handgun. The plan was ultimately unsuccessful, however, because their intended victim spotted one of his would-be assassins.

         At various points that day, Noe Cruz called the police on his cellular phone to inform them of the gang's plan. Although the police were unable to find the gang members before they attempted the murder, the police later located Ayala's vehicle, pulled it over, and discovered the handgun. Ayala was arrested and pled guilty in state court to transporting a firearm.

         2.

         At some point prior to November 2002, Velasquez became a member of the Teclas clique of MS-13. Velasquez attended meetings, paid dues, and even climbed the ranks to become first word for the clique. Like Ayala, Velasquez was aware of and participated in his clique's violent activities.

         One of these was a gang rape or, as MS-13 members call it, a " train." On the morning of May 12, 2003, Velasquez picked three teenage girls up from a high school under the pretense of taking them to a party. He took them to an apartment, where a few MS-13 members were waiting....

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