United States v. Ramos-Cruz

• Decision Date: 18 January 2012
• Docket Number: No. 08–4647.,08–4647.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Israel RAMOS–CRUZ, a/k/a Taylor, a/k/a Tailor, a/k/a Sastre, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

667 F.3d 487

UNITED STATES of America, Plaintiff–Appellee,

v.Israel RAMOS–CRUZ, a/k/a Taylor, a/k/a Tailor, a/k/a Sastre, Defendant–Appellant.

No. 08–4647.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2011.Decided: Jan. 18, 2012.

ARGUED: Sapna Mirchandani, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. John Alexander Romano, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, James M. Trusty, Deputy Chief, Gang Unit, United States Department of Justice, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Chan Park, Robert K. Hur, Assistant United States Attorneys, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

Before NIEMEYER, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER joined. Judge FLOYD wrote a separate opinion concurring in part and concurring in the judgment.

OPINION

DUNCAN, Circuit Judge:

A jury convicted appellant Israel Ramos–Cruz on nine criminal counts related to his membership in the gang La Mara Salvatrucha (also known as “MS–13”). Ramos–Cruz appeals his convictions under 18 U.S.C. § 1512(a)(1)(C) for aiding and abetting witness-tampering murder and under 18 U.S.C. § 922(g)(5)(A) for being an illegal alien in possession of a firearm. He also challenges the district court's decision to permit two witnesses to testify against him without revealing their names or other identifying information and the district court's denial of his motion to suppress evidence obtained during a search of his home. Although the district court based its § 1512(a)(1)(C) jury instructions on our decision in United States v. Harris, 498 F.3d 278 (4th Cir.2007), which—while this appeal was pending—was abrogated by the Supreme Court's decision in Fowler v. United States, ––– U.S. ––––, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), we conclude that the error in instructing the jury was harmless. Finding no other error, we affirm the district court's judgment.

I.

A.

Ramos–Cruz is a citizen of El Salvador who entered the United States illegally in 1999. In 2001, he was initiated into a subgroup or “clique” of the MS–13 gang ¹ known as the Sailors Locotes Salvatruchos Westside (the “Sailors”) that operates primarily in Prince George's County, Maryland, just outside of Washington, D.C. As part of his initiation, Ramos–Cruz took the nickname “Taylor.” He eventually rose to a leadership position within the Sailors, acting as clique leader or “first word” from approximately 2003 to 2005. Although Ramos–Cruz's convictions were based upon wide-ranging criminal activity, we focus on the events relevant to the issues before us on appeal. We lay out additional facts as necessary in our analysis.

1.

On November 21, 2003, three members of the Sailors participated in the murder of Eluith Madrigal. Randy Calderon, a Sailor, brought Madrigal to the home of Juan Carlos Moreira, one of the founders of the Sailors clique, claiming that Madrigal was a member of a rival gang. Nelson Bernal, another founding member of the Sailors, was also present. Calderon and Madrigal began to fight, and the fight ended with Calderon and Bernal stabbing Madrigal to death. Moreira was angry that the murder had taken place in his home, and he ordered Calderon and Bernal to dispose of the body.

Following Madrigal's murder, Moreira drove Calderon, Bernal, and Moreira and Bernal's girlfriends to the residence of clique leader Ramos–Cruz. At trial, Bernal's girlfriend Sari Llenas testified that, during the car ride, Calderon seemed upset and mentioned calling the police.

Once the group arrived, Ramos–Cruz conferred with Moreira in private. Ramos–Cruz then announced that Moreira, Calderon, and another member of the Sailors nicknamed “Curly” were going to paint graffiti to commemorate the murder of Madrigal. Bernal testified to hearing Calderon say, “I know you think I'm not going to be tough enough, but nothing [sic] going to find out. I'm not going to tell nobody. I know you all want to kill me, but it's okay.... I'm going to be tough.” J.A. 874–75. Ramos–Cruz did not respond, and Moreira told Calderon to shut up. Emilia Masaya, a member of the Sailors also present at Ramos–Cruz's home, testified to seeing Ramos–Cruz give Moreira a gun before Moreira left with Calderon.

Calderon did not return to Ramos–Cruz's residence that night; Moreira and Curly reappeared alone. Masaya testified to hearing Moreira tell Ramos–Cruz, “I got him.” J.A. 1378. Members of the Prince George's County Police Department found Calderon's body the next morning—the morning of November 22, 2003—near a bridge next to a can of spray paint. Calderon had been shot in the head.

Ramos–Cruz convened a meeting of the Sailors several days later. During this gathering, he announced that Moreira had killed Calderon because Calderon had violated a gang rule and because he was considering talking to the police. These events form the basis of Ramos–Cruz's conviction under § 1512(a)(1)(C).

2.

In January 2004, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) began a collaboration with the Prince George's County Police Department known as the Regional Anti–Gang Enforcement (“RAGE”) Task Force. The purpose of this collaboration was to address increased gang violence in the greater Washington metropolitan area. MS–13 was a primary focus of the task force.

On August 17, 2004, members of the RAGE task force executed a search warrant for Ramos–Cruz's residence. The warrant authorized officers to search the premises for evidence of malicious destruction of property. During their search, officers seized a loaded .380 caliber semiautomatic handgun. The DNA found on the gun matched Ramos–Cruz's DNA. Officers also seized other evidence, including several machetes; a fixed-blade knife; gloves marked with “MS–13,” “Taylor,” and “SLSW”; and a composition book containing MS–13 graffiti designs. The firearm found during this search, combined with Ramos–Cruz's immigration status, discussed further below, form the basis of his conviction under § 922(g)(5)(A).

B.

On June 4, 2007, a federal grand jury returned a fourth superseding indictment against Ramos–Cruz and fifteen others for crimes arising out of their involvement in MS–13. Ramos–Cruz was charged with conspiracy to participate in racketeering activity in violation of 18 U.S.C. § 1962(d), assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3), 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), witness-tampering murder in violation of 18 U.S.C. § 1512(a)(1)(C), two counts of use and carrying of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), murder resulting from the use and carrying of a firearm during a crime of violence in violation of 18 U.S.C. § 924(j), and being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A).

1.

Prior to trial, Ramos–Cruz moved to suppress the evidence obtained during the August 17, 2004 search of his home. He argued that the affidavit on which the search warrant was based was insufficient to establish probable cause and that officers violated the knock-and-announce rule when they entered his residence. At a December 10, 2007, hearing before the district court, Ramos–Cruz withdrew his knock-and-announce argument, acknowledging that the Supreme Court's decision in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), established that the exclusionary rule does not apply to knock-and-announce violations. The court then denied Ramos–Cruz's motion.

Also prior to trial, the government moved for permission for two El Salvadorian police officers to testify under pseudonyms and without revealing their dates and places of birth and home and work addresses. The government based its request on concern for the safety of the two officers and their families were it made public that they had testified against MS–13 members in a U.S. court. Ramos–Cruz objected, emphasizing his need to investigate the witnesses' backgrounds independently. The government submitted in camera affidavits from both prospective witnesses explaining the threat against them; it also disclosed to Ramos–Cruz in advance the substance of their proposed testimony. The district court noted that it had previously permitted these two witnesses to testify under the same precautionary measures in earlier trials involving the same MS–13 conspiracy. See United States v. Zelaya, 336 Fed.Appx. 355, 357–58 (4th Cir.2009) (unpublished) (affirming the district court's decision). It then conducted an ex parte hearing to determine whether the circumstances that had persuaded it to allow these witnesses to testify under pseudonyms in the past still existed. The court concluded that the potential threat to the officers' safety remained significant. The court also questioned the witnesses and determined that the government had no disclosure obligations under Giglio v. United States, 405 U.S. 150, 154–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Accordingly, the district court granted the government's motion.

2.

Ramos–Cruz's trial began on February 5, 2008. He was tried with Santos Maximino Garcia, after the trials of the other defendants charged in the fourth superseding indictment were severed. Ramos–Cruz pleaded not guilty to all charges against him. A six-week trial ensued.

At trial, the government presented evidence regarding the facts discussed above relevant to Ramos–Cruz's convictions under § 1512(a)(1)(C) and § 922(g)(5)(A). It also presented additional evidence about...