United States v. Machado-Erazo
| Decision Date | 17 August 2018 |
| Docket Number | No. 15-3040,C/w 15-3041, 15-3043,15-3040 |
| Citation | 901 F.3d 326 |
| Parties | UNITED STATES of America, Appellee v. Noe MACHADO-ERAZO, also known as Gallo, also known as Noe Marchado-Erazo, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Kira Anne West, Boerne, TX, Christine Pembroke, Marc Eisenstein, and Thomas G. Corcoran Jr., all appointed by the court, argued the causes for Appellants. With them on the joint briefs was Barry Coburn, Washington, DC, appointed by the court.
Elizabeth Gabriel, Assistant U.S. Attorney, U.S. Attorney’s Office, argued the cause for Appellee. With her on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys.
Before: Rogers, Wilkins and Katsas, Circuit Judges.
Appellants—Yester Ayala (aka "Freeway" or "Daddy Yankee"), Noe Machado-Erazo (aka "Gallo"), and Jose Martinez-Amaya (aka "Crimen" or "Mecri")—were charged with conspiracy to violate the Racketeer Influenced and Corrupt Organizations ("RICO") statute, in violation of 18 U.S.C. § 1962(d), and various other crimes. After a three-week trial, the jury returned guilty verdicts as to all three Appellants.
The District Court sentenced Machado-Erazo and Martinez-Amaya to concurrent terms of life imprisonment for RICO conspiracy and murder in aid of racketeering, and to 10 years’ consecutive imprisonment for possession of a firearm during and in relation to a crime of violence. Ayala was sentenced to concurrent terms of imprisonment for 20 years for RICO conspiracy and 30 years each for the remaining counts, and concurrent terms of five years of supervised release for each D.C. murder count.
Appellants now challenge their convictions and sentences on various grounds. Because we find none of Appellants’ challenges persuasive, we affirm.
According to the evidence presented at trial, Appellants were members of MS-13, a transnational gang founded in El Salvador. At the time, MS-13 used a hierarchical structure. The principal leaders of the gang, known as "la Ranflas," are located in El Salvador. The second level of the hierarchy, "programs," function as collections of the lowest rung of the hierarchy, local "suborganization[s]" or "cell[s]" known as "cliques." While Appellants were involved with MS-13, the cliques convened regular meetings at which members paid dues and discussed clique activities. The cliques also obtained funding by collecting "taxes" ("renta") from certain entities within their respective territories. Each clique had two leaders, the primary leader, who had the "first word" ("primera palabra"), and the secondary leader, who had the "second word" ("segunda palabra"). Within a clique, MS-13 members were assigned specific roles, including "recruiter," "extortionist," "keep[er] [of] weapons," and treasurer. Groups of cliques comprised "programs," which were run by the gang’s leadership in El Salvador (the "Ranfla").
Members of MS-13 marked their territory with graffiti, used hand signals to identify themselves, and tattooed their bodies with gang symbols. Gang members were expected to abide by strictly enforced "rules" that mandated attendance at regularly scheduled clique meetings, the payment of dues, the refusal to cooperate with law enforcement, and the murder of rival gang members ("chavalas"). Members who failed to follow these rules were subjected to physical punishment or death. MS-13’s leaders authorized the killing of a recalcitrant member by issuing a "green light," which other gang members were expected to execute when possible or face punishment or death themselves.
At trial, the Government presented evidence that Machado-Erazo and Martinez-Amaya were members of the Normandie clique in the D.C. area, and that both had leadership roles. Machado-Erazo helped financially support the clique through drug dealing and the extortion of local brothels and other drug dealers. Moises Humberto Rivera-Luna (aka "Viejo Santos"), who oversaw MS-13’s activities in the Washington, D.C. area despite being incarcerated in El Salvador, called on Machado-Erazo to "improve the [Normandie] clique." J.A. 1603-04. Machado-Erazo worked with one of the clique’s leaders, Jorge Solorzano, to achieve this goal. Machado-Erazo was also one of the leaders of "La Hermandad," a program of local cliques with the purpose of "clean[ing] up the cliques" by "kill[ing] ... the snitches." J.A. 1395, 1617-18, 1739.
Martinez-Amaya was sent from El Salvador to assist the Normandie clique when Dennis Gil-Bernardez (aka "Pando"), its longtime leader, was arrested in December 2008. J.A. 1082 (), 1244 ( that Martinez-Amaya (aka "Crimen") was sent to D.C. after Pando was arrested). Martinez-Amaya served as second-in-command to Solorzano, and when Solorzano was arrested, Martinez-Amaya became the clique leader.
The Government separately presented evidence that Ayala was a member of the Sailors clique, another clique in the D.C. area, and was one of its leaders in 2008.
By superseding indictment filed on May 9, 2013, Appellants and four co-conspirators were charged with conspiracy to violate the RICO statute, in violation of 18 U.S.C. § 1962(d). Ayala was also charged with two counts of murder in aid of racketeering ("VICAR murder"), in violation of 18 U.S.C. § 1959(a)(1), and two counts of first-degree murder while armed, in violation of D.C. Code §§ 22-2101 and 22-4502. In addition to the RICO conspiracy charge, Machado-Erazo and Martinez-Amaya were charged with one count each of VICAR murder and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).
Appellants’ trial lasted from June 18, 2013, to August 6, 2013. Presentation of evidence lasted approximately fourteen court days, and the jury deliberated for eleven days. The parties called approximately fifty witnesses and introduced over two hundred exhibits. United States v. Machado-Erazo , 986 F.Supp.2d 39, 43 (D.D.C. 2013). Among the government’s evidence were testimony of co-conspirators regarding MS-13 activities in the D.C. area, consensual recordings of MS-13 meetings, and wiretaps of calls among MS-13 members, including the three defendants. Id.
The jury returned verdicts of guilty as to all three defendants. Machado-Erazo and Martinez-Amaya were found guilty of (1) violating RICO, (2) VICAR murder, and (3) possession of a firearm during and in relation to a crime of violence. The jury answered the special finding in the affirmative, determining that both defendants "did feloniously, willfully, and of deliberately premeditated malice aforethought kill and murder Felipe Leonardo Enriquez." J.A. 709, 711. The jury also found that the pattern of racketeering activity agreed to included (i) murder in violation of the D.C. Code or Maryland law; (ii) extortion in violation of the D.C. Code or Maryland law; and (iii) obstruction of justice. The jury found, however, that the pattern of racketeering activity did not include robbery, violation of federal narcotics laws, or witness retaliation or tampering. J.A. 708-09, 710-11.
Ayala was also convicted of participating in the same RICO conspiracy. The jury found that Ayala agreed to the same three racketeering activities, and returned guilty verdicts against Ayala as to two counts of VICAR murder and two counts of murder under the D.C. Code deriving from the killings of Luis Alberto Membreno-Zelaya on or about November 6, 2008, and of Giovanni Sanchez on or about December 12, 2008. J.A. 712-15.
After the jury rendered its verdict, Machado-Erazo and Martinez-Amaya filed timely renewed motions for judgment of acquittal and for a new trial based on the insufficiency of the evidence, as well as on other grounds not relevant here. The District Court denied both motions. See Machado-Erazo , 986 F.Supp.2d at 57. Subsequently, the District Court sentenced Machado-Erazo and Martinez-Amaya to concurrent terms of life imprisonment for RICO conspiracy and VICAR murder, and to 10 years’ consecutive imprisonment for possession of a firearm during and in relation to a crime of violence. The court sentenced Ayala to concurrent terms of imprisonment for 20 years for RICO conspiracy and 30 years each for the remaining counts, and concurrent terms of five years of supervised release for each D.C. murder count.
Appellants now challenge their convictions and sentences on various grounds. We consider Appellants’ claims that other crimes evidence was improperly admitted in part II, their claims that cell-site data was improperly admitted in part III, and their other claims in an unpublished judgment issued herewith.
Appellants challenge the admission under Federal Rules of Evidence 404(b) and 403 of the following acts of violence perpetrated by co-conspirators: (1) the July 29, 2008, murder of Luis Chavez-Ponce by Gil-Bernardez; (2) the October 6, 2008, shooting of Malcom Wilson, David Cook, and Dalton Beck by Gil-Bernardez; (3) August and September 2008 shootings in Sterling, Virginia; (4) the October 16, 2009, armed gang fight in Wheaton, Maryland; and (5) the December 9, 2009, shooting of Glorisnel Sorto by Mario Lopez-Ramirez.
Appellants argue that the Government did not tie this evidence to Appellants, and as such, the testimony with respect to these incidents, as well as photographs of the crime scenes, were not relevant and were unduly prejudicial. Appellants’ Br. 36-37. Appellants assert that the "evidence was nothing more than evidence of bad character, or guilt by association, intended to sway the jury," and make the jury believe "that appellants would likely have committed the acts ... alleged[.]" Id. at 37. The Government, however, argues that admitting this evidence was not in error because these crimes, some of which were charged as overt acts, were direct proof of the conspiracy, and thus were not...
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