ROSEMARY M. COLLYER United States District Judge.
The three Defendants in this criminal case, Noe Machado-Erazo, Jose Martinez-Amaya, and Yester Ayala, are charged with offenses related to their involvement in the transnational gang MS-13. Prior to trial, the government sought special protection for its potential expert witness on MS-13’s operations and structure. That potential witness—identified here as Juan Diaz—is a member of the Salvadoran National Civil Police who lives in El Salvador and works in gang enforcement. The government feared violent reprisal against him and his family if he were identified publicly as giving testimony against MS-13, which remains extremely powerful and dangerous in his home country. The government asked the Court to permit the Mr. Diaz to testify using a pseudonym and to limit the extent of required disclosure of Mr. Diaz’s personal information to the Defendants and their counsel. Following a sealed ex parte hearing on June 17, 2013, the Court granted the government’s motion. The Court now writes to expand on the reasoning for its decision.
The Defendants are among twenty persons charged with offenses related to alleged involvement in MS-13 in United States v. Silva, Criminal No. 10-256 (RMC). In the most recent Superseding Indictment, Dkt. 330, Defendants are charged with, inter alia, involvement 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. 330] ¶ 16. “MS-13, including its leadership, members and associates, in the District of Columbia, Maryland, El Salvador, and elsewhere” are the alleged RICO “enterprise.” See Id . ¶ 13.
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.
On February 1, 2012, well in advance of any of the scheduled trial dates in this case, the government filed a Motion for Protective Order as to Proposed Expert Witness, Dkt. 114. See also Gov’t Notice of Intent to Pursue Mot. [Dkt. 282] (stating that government would pursue the protective-order motion in connection with the trial of these three defendants). In its motion, the government asked the Court’s permission “to withhold the identity and personal information of a proposed expert witness, ” Juan Diaz, whom the Government anticipated offering as an expert witness “on the leadership, nature and activities of MS-13 in El Salvador [and] its relationship to MS-13 in the United States.” Mem. Supp. Gov’t Mot. (“Gov’t Mem.”) [Dkt. 114-1] at 1, 6. The government disclosed a summary of Mr. Diaz’s qualifications and proposed testimony to defendants pursuant to Rule 16(a)(1)(6), but it asserted that “disclosure of the witness’s true name, residence, place of birth, or specific place or manner of employment . . . would expose this witness and/or his family unnecessarily to serious danger from retaliation.” Id. at 6. The government also submitted a one-page affidavit from Juan Diaz under seal. See Gov’t Notice of Filing (“Diaz Aff.”) [Dkt. 117].
Defendants filed an opposition on March 15, 2012, contending that their Confrontation Clause rights under the Sixth Amendment required the Court to deny the government’s request. See Def. Opp. [Dkt. 128]. They argued that they needed access to Juan Diaz’s true identity because without it, “defense counsel would be forced to leave the broad, self-serving representations made by the government and ‘Juan Diaz’ unchallenged, as defense counsel would not be able to conduct any independent investigation” into, inter alia, Mr. Diaz’s credentials as an expert or potential impeachment material. Id. at 7.
The Court first addressed the government’s motion at a motions hearing held on March 13, 2013. On that date, the Court reserved ruling on the motion and scheduled an ex parte, sealed hearing to “evaluate the extent of the danger faced by the government’s proposed expert witness.” See March 13, 2013 Order [Dkt. 305] at 1. On June 17, 2013, the day before trial began, the Court held the ex parte, sealed hearing, at which Juan Diaz testified. At the hearing, Mr. Diaz expanded upon the information set forth in his sealed affidavit. The Court summarizes his sworn affidavit and testimony in a general manner in this Opinion without providing details that could be used to determine his identity.
Mr. Diaz is a seventeen-year veteran of Salvadoran National Civil Police who presently holds the rank of investigator. His work includes investigating gangs, including MS-13 and 18th Street (Calle Dieciocho in Spanish). Mr. Diaz explained that members of Salvadoran gangs, including MS-13, have put out kill orders, referred to as “green lights, ” for members of Salvadoran law enforcement who investigate gang activity. He also identified several examples of menacing or violent activity undertaken by gangs with the express goal of intimidating law enforcement, including during off hours or while law enforcement agents are at home. In his affidavit, for example, Mr. Diaz identified an incident in late 2010 in which gang members in El Salvador made videos threatening to harm judges, prosecutors, and government agents. He also identified an incident on January 16, 2012, in which a 36-year-old, 10-year police veteran named Juan Carlos Zepeda Burgos was killed in Ciudad Arce in El Salvador, and an incident on February 14, 2011, in which Agent Hugo Max Gonzalez Rubio was killed in Apopa, El Salvador, his body left in the street in a black plastic bag. According to Mr. Diaz, homicides of police officers in El Salvador have increased since 2010.
Mr. Diaz explained that, in trials in El Salvador, the names of witnesses whose safety might be endangered are generally not disclosed. Instead, they are permitted to testify using code names and numbers. He also explained that, while gangs often tolerate police testimony in El Salvador, his proffered testimony in this case would be different and would likely result in MS-13 issuing a green light against him for two reasons. First, gangs distinguish between fact testimony given by officers about investigations they conducted personally, which is seen as routine and fair, and expert testimony about MS-13 generally, which is viewed as a provocation and is more likely to cause retribution. Second, MS-13 members believe that only members may discuss the gang’s rules, so having a police officer testify about those rules in court would be seen as a challenge to the gang.
Mr. Diaz explained that he and his family would be at risk if his real name or identifying information were released, noting that senior members of MS-13 are aware of cases in the United States involving MS-13 and would be likely to learn of his involvement. Asked by the Court how serious the danger was, Mr. Diaz testified: “It would be a serious risk for me . . . if it were an open case, if my name were to come out or my picture were to come out.” He also stated that, because of MS-13’s presence in the United States, the gang would be required to carry out a green light in either country.
At the conclusion of the hearing, the Court granted the government’s motion, noting that “Mr. Diaz’s testimony established imminent and grave risk to his safety and his family’s safety if his real name were used.” See June 17, 2013 Protective Order [Dkt. 372] at1. The Court directed that Mr. Diaz be permitted to testify at trial under pseudonym, that the government could withhold from Defendants and their counsel Mr. Diaz’s true identity (“including but not limited to: home and work address, specific employment, date of birth, El Salvadoran identification number, and place of birth”), and that “counsel for Defendants [could] not in any way seek to elicit testimony or seek to admit evidence before the jury concerning the expert witness’s true identity or the fact that his identity before the jury [was] a pseudonym.” Id. at 1–2.
Mr. Diaz testified at trial on June 18 and 20, 2013. The Court permitted him to offer testimony as an expert “on MS-13 in El Salvador, its structure, its rules and activities.” June 18, 2013 P.M. Trial Tr. at 10, 15. As proffered by the government, Gov’t Mem. at 3, he did not “testify about any particular defendant or his activities.” Although counsel for Mr. Machado-Erazo conducted a voir dire of Mr. Diaz, no defendant objected to ...