United States v. Zelaya

• Decision Date: 14 November 2018
• Docket Number: No. 16-4857, No. 17-4052, No. 16-4859,No. 16-4752,16-4752
• Citation: 908 F.3d 920
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Miguel ZELAYA, a/k/a Most Wanted, Defendant – Appellant. United States of America, Plaintiff – Appellee, v. Luis Ordonez-Vega, a/k/a Big Boy, Defendant – Appellant. United States of America, Plaintiff – Appellee, v. Jorge Sosa, a/k/a Koki, a/k/a Loco, Defendant – Appellant. United States of America, Plaintiff – Appellee, v. William Gavidia, a/k/a Duro, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

908 F.3d 920

UNITED STATES of America, Plaintiff – Appellee,

v.Miguel ZELAYA, a/k/a Most Wanted, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Luis Ordonez-Vega, a/k/a Big Boy, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Jorge Sosa, a/k/a Koki, a/k/a Loco, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.William Gavidia, a/k/a Duro, Defendant – Appellant.

No. 16-4752

No. 16-4857

No. 16-4859

No. 17-4052

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2018

Decided: November 14, 2018

ARGUED: William Robinson Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE, Charlotte, North Carolina; Lisa S. Costner, LISA S. COSTNER, PA, Winston-Salem, North Carolina; Walter Hoytt Paramore, III, LAW OFFICES OF W.H. PARAMORE, III, Jacksonville, North Carolina; Aaron Edmund Michel, Charlotte, North Carolina, for Appellants. William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Dana O. Washington, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before KING, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge King joined. Judge Floyd wrote an opinion concurring in part and dissenting in part.

DUNCAN, Circuit Judge:

Appellants Miguel Zelaya, Luis Ordonez-Vega, Jorge Sosa, and William Gavidia were each convicted of participating in a racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). Zelaya, Ordonez-Vega, and Sosa were also convicted of committing violent crimes in aid of racketeering under 18 U.S.C. § 1959 ("VICAR") and of using a firearm in furtherance of a violent crime under 18 U.S.C. § 924 for their respective roles in several unrelated shootings. Appellants challenge these convictions on twelve separate grounds, and Appellant Gavidia challenges his sentence. Finding no reversible error, we affirm.

I.

Appellants are members of the street gang La Mara Salvatrucha, or MS-13. Formed in the 1980s by Salvadoran immigrants to Los Angeles for protection against rival street gangs, MS-13 has grown into a violent organization with active "cliques," or local chapters with varying levels of autonomy, operating throughout the United States and several Central American countries. MS-13 cliques may extort local businesses or drug dealers, participate in international narcotics trafficking, and remit funds to gang leadership in El Salvador. Appellants were members of MS-13 cliques in and around Charlotte, North Carolina. We briefly describe the relevant background of each Appellant and provide additional information as necessary in the context of their respective arguments.

Zelaya became interested in MS-13 at a young age. He held himself out to MS-13 leaders in Charlotte as a fully-initiated member and engaged in bar fights with rival gangs alongside MS-13 associates. On December 18, 2013, Zelaya shot and killed Jose Ibarra outside of a bar, believing that Ibarra had threatened a friend. Ballistics evidence connected Zelaya to the shooting, and he confessed to police after waiving his Miranda rights. In his confession he accurately described the murder scene. Before trial but while imprisoned, he bragged to another MS-13 member about the killing.

Ordonez-Vega was already an MS-13 member when he moved from New York to Charlotte. Police in New York had encountered Ordonez-Vega in connection with anti-gang efforts, and had noted a "Mara Salvatrucha" tattoo across his chest. On June 6, 2014, Ordonez-Vega and several other MS-13 members, including Christian Pena, were gathered in a parking lot outside of a strip mall. They noticed Noel Navarro-Hernandez riding his bicycle in circles around a parked car belonging to one of the MS-13 members. After Navarro-Hernandez entered the mall, the MS-13 members determined that he was likely a rival and plotted to rob him. Pena and Ordonez-Vega executed the plan. When Navarro-Hernandez came out of the mall, Pena directed him to go behind the building where Ordonez-Vega was waiting. Pena accompanied Navarro-Hernandez. When they arrived behind the mall, Ordonez-Vega shot Navarro-Hernandez to death.

Sosa was a member of the MS-13 clique Charlotte Locotes and also participated in gang fights as an MS-13 member. On the evening of June 30, 2013, Sosa was drinking at a private residence with his cousin Tomas Maradiaga (who is not affiliated with MS-13). Sosa started arguing with a man who had not paid for his drinks, and the argument escalated. It spilled onto the front lawn of the house, where the man brandished a stick at Sosa. Sosa left the party with Maradiaga and retrieved an assault rifle. They returned as the individual with whom Sosa had argued was leaving in a car with another guest. Sosa and Maradiaga drove after them and shot at their car repeatedly, although no one was killed. After the shooting, Fec Rodriguez Vareal, or "Chelito," a fellow MS-13 member, called Maradiaga to warn him to leave town.

Gavidia was a member of the Coronados Little Cycos Salvatrucha clique. As part of the clique, he committed robberies, sold cocaine, and taxed drug dealers. Eyewitnesses described several gang-related gunfights in which Gavidia participated. In January 2010, Gavidia was involved in a shootout between his clique and a rival gang outside of a Charlotte club. Although he did not fire a weapon during the fight, he helped another gang member reload his gun. In January 2013, Gavidia was involved in another fight outside of a club during which he went looking for but could not locate his gun. Albert Vela Garcia, a fellow MS-13 member, ultimately found the gun and shot at their rivals while fleeing. Gavidia then helped Vela Garcia paint the car in which he had fled to disguise the bullet hole from the altercation.

II.

Appellants were indicted along with thirty-three codefendants in May 2015. Before trial, Sosa and Gavidia unsuccessfully moved for severance because the charges against them, unlike those against Zelaya and Ordonez-Vega, did not involve murder. Ordonez-Vega also unsuccessfully moved to exclude testimony from two New York police officers about his gang affiliation.

Of the thirty-seven indicted defendants, Appellants alone proceeded to trial. Several codefendants agreed to testify against Appellants at trial as cooperating government witnesses. The jury heard evidence over five days in early April 2016. Sergeant Samuel Arnold of the Los Angeles Police Department testified about the history and evolution of MS-13 nationally and internationally, and William Hastings, a gang intelligence officer in the Charlotte-Mecklenburg Police Department, testified about MS-13’s activity in Charlotte. Cooperating witnesses testified to the gang affiliations of Zelaya, Ordonez-Vega, Sosa, and Gavidia. Pena, a cooperating witness, testified as an eyewitness to Ordonez-Vega’s murder of Navarro-Hernandez. Maradiaga testified about Sosa’s shooting incident. Vela Garcia, another cooperating witness, testified about Gavidia’s gang activities, including the shootouts with rival gangs. Zelaya testified, asserting innocence. Ordonez-Vega testified, maintaining that he shot Navarro-Hernandez in self-defense.

On the third day of trial, Sosa moved for a mistrial based on a witness’s reference to an uncharged MS-13 murder during her testimony establishing Sosa as a gang member. At the close of trial, all four Appellants moved for a judgment of acquittal based on insufficient evidence. The court denied these motions, and after two days of deliberation the jury returned a guilty verdict on all counts on April 12, 2016. Gavidia moved for a new trial following the verdict; his motion was denied.

These appeals followed.

III.

Appellants raise several challenges to their convictions. All four challenge the district court’s denial of their Rule 29 motions for acquittal. See Fed. R. Crim. P. 29. In addition, Sosa and Gavidia challenge the district court’s refusal to sever their trials and denial of their motions for new trials. Ordonez-Vega challenges the admission of certain evidence, and Sosa challenges certain jury instructions and seeks a new trial based on the cumulative effect of various alleged errors. Gavidia also challenges his sentence. We address each issue in turn.

A.

All four Appellants challenge the district court’s denial of their motions for acquittal under Rule 29. See id .

We review a district court’s denial of a motion for acquittal de novo. United States v. Kellam , 568 F.3d 125, 132 (4th Cir. 2009). Denial is proper where, viewed in the light most favorable to the prosecution, substantial evidence supports a guilty verdict. United States v. Smith , 451 F.3d 209, 216 (4th Cir. 2006). Substantial evidence is evidence sufficient for a reasonable jury to find proof beyond a reasonable doubt of each element of the charged offense. Id. In evaluating the sufficiency of evidence, "[w]e don’t consider the credibility of witnesses." United States v. Burfoot , 899 F.3d 326, 334 (4th Cir. 2018).

1.

Zelaya and Gavidia argue that there was insufficient evidence to support their RICO convictions. We have held that a RICO conviction under 18 U.S.C. § 1962(d) requires proof that: (1) "an enterprise affecting interstate commerce existed;" (2) "each defendant knowingly and intentionally agreed with another person to conduct or participate in [its] affairs;" and (3) "each defendant knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering acts." United States v. Cornell , 780 F.3d 616, 621 (4th Cir. 2015) (citation and internal quotations omitted). A "defendant need not have a managerial role in an enterprise to be convicted." United States v. Mouzone , 687 F.3d 207, 218 (4th Cir. 2012).

Gavidia argues that there was insufficient evidence to establish the first element of his RICO conviction. To the...