United States v. Palacios

Citation677 F.3d 234
Decision Date30 April 2012
Docket NumberNo. 08–5174.,08–5174.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Israel Ernesto PALACIOS, a/k/a Homie, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

OPINION TEXT STARTS HEREARGUED: Peter Linn Goldman, Alexandria, Virginia, for Appellant. Robert K. Hur, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge DIAZ joined.

OPINION

DUNCAN, Circuit Judge:

Appellant Israel Ernesto Palacios (a.k.a. “Homie”) was convicted by a jury of a number of crimes arising from his involvement in the street gang La Mara Salvatrucha, otherwise known as MS–13. Specifically, the jury found him guilty of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1); use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and murder resulting from the use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(j). He raises various challenges to these convictions on appeal, focusing on the district court's admission of certain testimony and the sufficiency of the evidence to support his convictions under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–68, and the Violent Crimes in Aid of Racketeering Act (“VICAR”), 18 U.S.C. § 1959. Finding Palacios's arguments unpersuasive, we affirm.

I.

We begin our discussion with an overview of the history, organization, and structure of MS–13, to which Palacios belonged. We then set forth the facts underlying Palacios's convictions, followed by a description of his indictment and trial.

A.

MS–13 is a transnational gang formed by El Salvadorian immigrants in Los Angeles, California in the 1980s.1 Originally organized to protect its members from being preyed upon by other gangs in southern California, MS–13 grew into a larger organization characterized by intimidation and violence. Enhancing its reputation for violence became the gang's primary purpose. MS–13 eventually expanded into Central America, Mexico, Canada, and other areas of the United States. In addition to Los Angeles, MS–13 strongholds in this country include metropolitan Washington, D.C.—including northern Virginia and southern Maryland—Long Island, New York; Houston, Texas; Boston, Massachusetts; and North Carolina. This case involves MS–13 activities in and around Prince George's County, Maryland.

Although MS–13 members are affiliated with their counterparts throughout North America, the gang is organized into smaller subgroups or “cliques” that operate locally. Each clique has its own leadership, conducts its own meetings, and is permitted to create rules in addition to—but not in place of—the rules of the broader gang. Cliques are run by a leader, known as the “first word”; a gang member who assumes the role of second in command, known as the “second word”; and a treasurer or secretary. Clique leaders gather periodically at regional meetings led by mid-level bosses, known as “ranfleros.” At these meetings, clique leaders share information about law enforcement activities in their areas, settle arguments, and discipline members who have violated gang rules. Ranfleros also relay directives from top MS–13 leaders who reside outside the United States.

The gang utilizes uniform rules, regulations, and symbols 2 throughout the many territories in which it is located. For example, the method of initiation into the gang is the same throughout its various iterations: a prospective MS–13 member is beaten for 13 seconds “to signify the beginning of a new, more brutal lifestyle.” United States v. Ayala, 601 F.3d 256, 261 (4th Cir.2010). Gang members are required to fight—and, if possible, kill—members of rival gangs. Those who have been initiated into MS–13 may not assist law enforcement, and they are prohibited from using numbers or colors associated with rival gangs. MS–13 members are required to attend local clique meetings and pay dues. These dues are used for, among other things, sending money to gang members in other countries, financing attorneys for gang members who have been arrested, and buying weapons or other equipment for the use of the gang. Cliques maintain discipline by imposing punishments—ranging from a short beating (a “13”) to death (a “green light”)—in response to violations of gang rules. MS–13 cliques also have an internet presence and have been known to post information on websites such as My Space.

B.

The primary MS–13 clique involved in this prosecution is known as the Langley Park Salvatruchas (“LPS”). Palacios co-founded LPS and operated as its second word and, subsequently, as its first word. Trial testimony indicated that, as relevant to this appeal, Palacios helped orchestrate the murder of Nancy Diaz during the time he was second word of LPS.

Palacios and Roberto Argueta (a.k.a. “Buda”)—who was LPS first word at the time—heard rumors that Diaz, a female friend of LPS members, had been fraternizing with rival gang members. The two investigated whether the rumors were true, questioning Suyapa Chicas,3 Palacios's girlfriend at the time, about whether Diaz had been spending time with members of rival gangs. Chicas confirmed that she had heard the same rumors. Sometime thereafter, Argueta and Palacios brought up the issue of Diaz's supposed interactions with rival gangs at an LPS clique meeting. As the conversation proceeded, Palacios and the other LPS leaders determined that Diaz needed to be killed and began planning her death. At the conclusion of the meeting, Argueta issued a final order that Diaz should be killed. Palacios was involved in the discussion throughout and stood by Argueta's side as he issued the order.

LPS members Jesus Canales (a.k.a. “Fantasma”) and Jeffrey Villatoro (a.k.a. “Magic”) carried out the order to kill Diaz. On October 25, 2004, Canales and Villatoro drove Diaz and her friend Alyssa Tran to a cemetery near Langley Park, Maryland, informing the two women that they were going to drink together. Instead, once inside the cemetery grounds, Canales and Villatoro fell behind the two women. Tran heard a gunshot from behind and felt Villatoro pull her to the ground. Villatoro then shot Tran in the face. When Canales discovered Tran had not perished from the gunshot wound, Canales stabbed her twice in the chest. Tran somehow survived the attack and began searching for Diaz. When Tran found Diaz, the latter was dead.

C.

In August 2005, a federal grand jury sitting in the District of Maryland indicted Palacios and 18 others on various charges arising from their participation in MS–13. On June 4, 2007, the grand jury returned a fourth superseding indictment charging Palacios with conspiracy to participate in racketeering activity, conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, assault with a dangerous weapon in aid of racketeering, two counts of use of a firearm in relation to a crime of violence, and murder resulting from the use and carrying of a firearm in relation to a crime of violence.

1.

Prior to trial, the parties entered into a discovery agreement. The agreement provided, in relevant part:

The government agrees that it will provide reasonable notice of the existence of alleged other crimes, wrongs or acts committed by [Palacios] pursuant to Rule 404(b) of the Federal Rules of Evidence, along with copies of all physical and documentary evidence believed by the government to fall within the ambit of Rule 404(b) which the government intends to introduce at trial in its case-in-chief. The government acknowledges its continuing duty to disclose Rule 404(b) evidence as it is recognized as such after the time period in which the government has provided Rule 16 material.

J.A. 97.

The government made several pretrial disclosures regarding evidence and testimony it intended to introduce. On May 12, 2008, nine weeks before trial, the government sent a letter to Palacios's attorney indicating that it planned to introduce evidence of an attempted robbery in which Palacios was involved in 2001, an alleged attack on rival gang members for which Palacios was arrested in 2002, and a shooting in which Palacios was involved in 2004. On June 4, 2008, six weeks before trial, the government sent another letter disclosing its intention to introduce evidence regarding, inter alia, two robberies in which Palacios participated in 2001 and a 2004 incident during which Palacios fired gunshots at rival gang members. All of these incidents were related to Palacios's participation in MS–13.

In response to these letters, Palacios moved to exclude these matters from trial or, in the alternative, to require the government to amend the indictment to include them as charged overt acts in furtherance of a conspiracy. During a June 9, 2008, hearing on the motion, the district court noted:

[T]hey don't have to charge in an indictment every act they allege a defendant participated in.... I told [the government] they needed to [give notice] well in advance, and they did it at least a month to two months in advance and gave [the relevant information] to [Palacios].

J.A. 238–39. It further stated that this information was “not 404(b) evidence,” but rather evidence of “events that the Government was using as part and parcel of the conspiracy.” J.A. 253. The district court noted that [the government] is not required in a conspiracy case to give advance notice of any discrete acts it contends [were] part of the conspiracy.” J.A. 259. It concluded by stating that [t]he Government has done in this case what I directed...

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