United States District Court, District of Columbia
For HENRY DIAZ-ANTUNUEZ, also known as STEWIE, also known as STUVI, Defendant: Manuel J. Retureta, LEAD ATTORNEY, RETURETA & WASSEM, P.L.L.C., Washington, DC.
For USA, Plaintiff: Laura R. Bach, LEAD ATTORNEY, William John O'Malley, Jr., U.S. ATTORNEY'S OFFICE, Washington, DC; Nihar Ranjan Mohanty, LEAD ATTORNEY, U.S. ATTORNEY, Narcotics Section, Washington, DC; Seth Adam Meinero, LEAD ATTORNEY, ASSISTANT UNITED STATES ATTORNEY, Violent Crimes & Narcotics Trafficking Section, Washington, DC; Laura Jean Gwinn, U.S. DEPARTMENT OF JUSTICE, Criminal Division/Gang Unit, Washington, DC.
ROSEMARY M. COLLYER, United States District Judge.
Defendant Henry Diaz-Antunuez is one of nineteen persons charged in this case with offenses related to the gang MS-13. He moves to dismiss the federal court indictment as it relates to him. The lengthy Superseding Indictment charges other Defendants with crimes under federal law, such as conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, and crimes under District of
Columbia law, such as robbery, kidnapping, murder, and burglary. Mr. Diaz-Antunuez is charged with no federal offense and only one D.C. Code offense, first-degree murder while armed, which he allegedly committed at the age of sixteen. Mr. Diaz-Antunuez protests that the government should have treated him as a juvenile, as it concededly must when a person under age eighteen is charged with a federal offense. The Court held oral argument on Mr. Diaz-Antunuez's motion on March 12, 2013 and denied it from the bench, concluding that federal law and the D.C. Code permit Mr. Diaz-Antunuez to be tried as an adult in federal court, based on an alleged D.C. Code violation for which the District of Columbia would treat him as an adult if he were prosecuted in D.C. Superior Court. This opinion provides the underlying analysis should there be an appeal.
A. Background of Charges
Mr. Diaz-Antunuez was born on September 24, 1992. He was sixteen years old when the alleged murder occurred on November 6, 2008 and nineteen years old when arrested on November 3, 2011. He is twenty years old at present.
Mr. Diaz-Antunuez is Defendant number nineteen in United States v. Silva, Criminal No. 10-256 (RMC), in which he and eighteen other alleged members of the gang MS-13 (La Mara Salvatrucha) are charged with gang-related offenses. The United States alleged that eighteen of the Defendants were involved in a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § § 1961-68, that began " at least" as early as " the late 1990s" and that continues to the present. Superseding Indictment [Dkt. 101] ¶ 16. Mr. Diaz-Antunuez is not charged with any federal crime, under RICO or otherwise. He is scheduled to go to trial in June 2013 with two co-defendants, Noe Machado-Erazo (Defendant number eight) and Jose Martinez-Amaya (Defendant number nine), who are charged with conspiracy to violate RICO (" RICO conspiracy" ).
The government describes MS-13 as follows:
La Mara Salvatrucha, also known as the MS-13 gang (hereafter " MS-13" ), is a gang composed primarily of immigrants or descendants of immigrants from El Salvador, with members operating throughout the United States, including within the District of Columbia. The name " Mara Salvatrucha " is a combination of several slang terms. The word " Mara " is the term used in El Salvador for " gang." The phrase " Salvatrucha " is a combination of the words " Salva ," which is an abbreviation for " Salvadoran," and " trucha ," which is a slang term for the warning " fear us," " look out," or " heads up."
. . .
MS-13 is a national and international criminal organization with over 10,000 members regularly conducting gang activities in at least twenty states and the District of Columbia, as well as in Mexico, Honduras, Guatemala, and El Salvador. MS-13 is one of the largest street gangs in the United States. Gang members actively recruit members, including juveniles, from communities with a large number of immigrants from El Salvador. Members, however, can also have ethnic heritage from other Central American countries. In the United States, MS-13 has been functioning since at least the 1980s.
. . .
[M]embers of MS-13 were expected to protect the name, reputation, and status of the gang from rival gang members and other persons. MS-13 members required
that all individuals should show respect and deference to the gang and its membership. To protect the gang and to enhance its reputation, MS-13 members were expected to use any means necessary to force respect from those who show disrespect, including acts of intimidation and violence. MS-13's creed is exemplified by one of its mottos, " Matar, robar, violar, controlar," which translates in sum and substance to, " Kill, steal, rape, control."
. . .
MS-13 members were required to commit acts of violence to maintain membership and discipline within the gang, including violence against rival gang members or those they perceived to be rival gang members, as well as MS-13 members and associates who violated the gang's rules. As a result of MS-13's frequent use of violence, innocent persons were often injured or killed. Participation in criminal activity by an MS-13 member, particularly violent acts directed at rival gang members or as ordered by the gang leadership, increased the level of respect accorded that member, resulting in that member maintaining or increasing his position in the gang, and possibly resulting in recognition as a leader
Id. ¶ ¶ 1, 3, 6, 7.
Mr. Diaz-Antunuez was not named in the original Indictment, filed in September 2010. See [Dkt. 1]. He is charged only in Count 28 of the Superseding Indictment, with first-degree murder while armed in violation of D.C. Code § § 22-2101, 4502. Messrs. Machado-Erazo and Martinez-Amaya are both charged in only one count of the Superseding Indictment, Count 1, which alleges RICO conspiracy in violation of 18 U.S.C. § 1962(d).  See Superseding Indictment ¶ 16. They are not charged in Count 28. However, Count 28 did charge Dennis Gil-Bernardez, Defendant number fifteen, with first-degree murder while armed. Mr. Gil-Bernardez has since pled guilty to RICO conspiracy, but his plea agreement included dismissal of Count 28 against him.
Count 28 states as follows:
DENNIS L. GIL-BERNARDEZ, also known as Pando, also known as Dopre, HENRY DIAZ-ANTUNUEZ, also known as Stewie, also known as Stuvi, and other individuals whose identity is known to the Grand Jury, within the District of Columbia, while armed with a dangerous weapon, that is a knife or other sharp object, purposely and with deliberate and premeditated malice, killed Louis Alberto Membreno-Zelaya, also known as " El Brujo", by stabbing him with a knife or other sharp object on or about November 6, 2008, thereby causing injuries from which Louis Alberto Membreno-Zelaya, also known as " El Brujo" died on or ...