United States v. Cordova, 11-3034

Decision Date24 November 2015
Docket NumberC/w 11-3043,C/w 11-3044,No. 11-3034,11-3034
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeals from the United States District Court for the District of Columbia

(No. 1:08-cr-00167-1)

(No. 1:08-cr-00167-2)

(No. 1:08-cr-00167-4)

Robert S. Becker, Anthony D. Martin, and Mary E. Davis, all appointed by the court, argued the causes and filed the joint briefs for Appellants. Sherlock V. Grigsby entered an appearance.

Lauren R. Bates, Assistant U.S. Attorney, argued the cause for Appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Gilberto Guerrero, Jr., and Nihar Ranjan Mohanty, Assistant U.S. Attorneys.

Before: TATEL, MILLETT, and WILKINS, Circuit Judges.

PER CURIAM: William Cordova, Jose Gutierrez, and Melvin Sorto appeal their convictions for conspiracy, violent crimes in aid of racketeering, murder, assault, and federal and District of Columbia weapons offenses. They raise eight claims, four of which we address here; the others we address in a judgment issued contemporaneously with this opinion. Finding none of the challenges examined herein meritorious, we affirm as to these issues.


Cordova, Gutierrez, and Sorto (collectively "Appellants") belong to Mara Salvatrucha, an international criminal gang also known as MS-13. All three men are originally from El Salvador. When Cordova and Gutierrez arrived in the District of Columbia, they moved in with Misael Esquina-Flores and his parents, Feliciana Esquina-Flores and Tomas Esquina, whom they had known in El Salvador. Local MS-13 members treated Cordova and Gutierrez deferentially because they came from El Salvador. Believing that the local gang presence was weak, Cordova and Gutierrez actively encouraged members to commit more violent crimes to improve MS-13's status in the local gang hierarchy.

On the evening of July 30, 2006, Cordova and Gutierrez pulled up next to another car, announced to the three men inside that they were MS-13 members, ordered the men not to move, and then opened fire, injuring those inside. None of the victims died.

On April 22, 2007, Cordova and Gutierrez struck again, this time joined by Sorto. In retaliation for an attack on MS-13 by members of a rival gang, the three men trailed the rival gang members back to their home turf. They then opened fire on the group, killing Edwin Ventura and severely wounding Nelson Maldonado.

Later in 2007, Cordova and Gutierrez shot Feliciana Esquina-Flores while she was waiting for a bus. Although Feliciana survived the shooting, she is now blind.

Based on these three armed assaults, the government charged Appellants with conspiracy, violent crimes in aid of racketeering, murder, assault, and federal and District of Columbia weapons offenses. A jury convicted Appellants on all counts.


Cordova, Gutierrez, and Sorto argue that court-imposed restrictions limiting their personal access to certain discovery documents deprived them of their Sixth Amendment rights to effective representation and to assist in their defense. Because they suffered no plausible prejudice, we reject the argument.


At a pretrial conference, the District Court ordered the government to disclose to Appellants every Thursday any prior statements of witnesses who would be called to testify the following week. Those prior statements are commonly referred to as "Jencks Act materials," 18 U.S.C. § 3500. The District Court's order was more favorable to Appellants in that regard than the Jencks Act's requirement of disclosure after a government witness testifies on direct examination, id. § 3500(b); see also FED. R. CRIM. P. 26.2.

The District Court subsequently issued a protective order directing that Appellants could only review the Jencks Act materials in the physical presence of counsel or, as later clarified, defense paralegals or investigators. The order forbade Appellants' possession of the materials or copies of them. For some unknown reason, the record contains nothing at all about the entry of this protective order. There is no protective order in the record, no notice of its entry on the docket, no trace of an in-court, on-the-record discussion concerning the order's entry, and no written or transcribed explanation of the bases for the judge's decision to adopt the order. All that the record and briefing indicate is that there was such a protective order and that all parties were aware of its terms. None of the parties had any explanation for why the protective order and all material surrounding its entry are missing from the record.

Midway through the second week of trial, counsel for Gutierrez asked the court to reconsider the protective order. Gutierrez, whose English was limited, sought to "have the Jencks [materials] so that he could study it so that [meetings with counsel] would go a lot quicker." Trial Tr. 3 (Nov. 3, 2010, Afternoon Session). His attorney explained that, "instead of [counsel] translating the documents, [Gutierrez] would have had a chance to review them and think about them, and make our meeting[s] shorter and also more productive." Id.

The government opposed the request, citing concerns about security and the safety of witnesses involved in this prosecution of alleged MS-13 gang members. The government insisted that, "for those men to have that [Jencks] information back at the D.C. jail, floating around, free rein, from inmate to inmate, is a disaster." Id. at 62.

Gutierrez responded that the protective order could not rest upon alleged concerns about the identity of witnesses because that information was already known to Appellants and could easily be shared with others regardless of any restrictions on their access to the Jencks Act materials. The requested modification, Gutierrez's counsel emphasized, was only to "get a copy when he leaves here in the evening of the Jencks material" for upcoming witnesses "so that he could review those, and . . . we could discuss them." Id. at 62-63.

The District Court denied Gutierrez's request "for the reasons previously articulated" - reasons that, alas, are not preserved anywhere in the record. Id. at 63.

The next day, after learning that a defense investigator had previously and mistakenly left some Jencks Act materials with Sorto at the jail and that Sorto had carried the documents "back and forth" to trial, id. at 65, the District Court instructed the Marshals not to permit Appellants to take any papers to or from the court at any time. Counsel then expressed concern that this new restriction would prevent Appellants from being able to keep and review their own notes from the trial or, once back at the jail, to write down thoughts or questions to bring to counsel the following day. That led to an in camera meeting between the District Court, counsel, and the Marshals Service, during which the parties agreed that:

At the end of each court date, the counsel for the defendants will collect all papers of whatever kind that may have been either brought to court or used between counsel and their client, and keep it in their possession - counsel's possession - overnight. With regard to returning to court the next day, the defendants will be permitted, if they wish, to make notations or jot down their thoughts on paper that they happen to have access to at the prison for the purposes of follow-up discussions with their counsel when they return to court whenever the next day the court is in session.

Trial Tr. 78-79 (Nov. 4, 2010, Afternoon Session). The District Court reiterated that Appellants would not be permitted to "leave the court with anything at the end of the day" and that "under no circumstances shall there be any additional copies of the discovery that are presented to the defense that are made for working purpose or for anyone else to see, nor under any circumstances are [defense paralegals, investigators, and associates] to provide a copy to the defendants to keep and take with them back to the jail." Id. at 79-80.


Under the Sixth Amendment, criminal defendants have a constitutional right to "be confronted with the witnesses against [them], . . . and to have the assistance of counsel for [their] defense." U.S. CONST. amend. VI. Appellants assert that the protective order's restrictions on their access to Jencks Act materials violated their Sixth Amendment rights by hampering counsel's ability to mount, and Appellants' ability to participate in, an effective defense against the government's witnesses. More specifically, Appellants argue that requiring defense team members to superintend their review of discovery materials pressured the defense into either (1) devoting time to sitting with Appellants as they reviewed papers rather than dedicating that time to other trial preparations, or (2) cabining the time Appellants had to review the papers. Either way, Appellants argue, the order deprived counsel of the full benefit of Appellants' individual input on the Jencks Act materials, which could have contributed important contextual information and impeachment evidence. Appellants also contend that, had they been afforded greater access to the Jencks Act materials, they would have been able to assist their attorneys in identifying potential credibility issues and new topics for investigation.

The Federal Rules of Criminal Procedure give district courts the discretion to enter protective orders (subject always to the Sixth Amendment's limitations). "At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." FED. R. CRIM. P. 16(d). Moreover, a "trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to...

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