United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For CARLOS M. SILVA, also known as CARLOS M. SILVA-COREZ, also known as CANGRI, Defendant: Christopher Michael Davis, DAVIS & DAVIS, Washington, DC.
For OMAR R. AGUILAR, also known as OMAR RIVERA-AGUILAR, also known as PELIGRO, also known as FLACO, also known as FLACO FROM FULTON, Defendant: Paul Yoshio Kiyonaga, LEAD ATTORNEY, KIYONAGA & SOLTIS, PC, Washington, DC; John James Carney, CARNEY & CARNEY, Washington, DC.
For WILFREDO MEJIA, also known as FREDDIE, also known as MAJESTIC, Defendant: Pleasant S. Brodnax, III, Washington, DC.
For HENRY SARBA, also known as FLACO, also known as HENRY SARAVIA, also known as FLACO FROM PARK VIEW, Defendant: Edward Charles Sussman, LAW OFFICE OF EDWARD C. SUSSMAN, Washington, DC.
For MICHELLE NICOLE RIOS, also known as LA LICENSIADA, Defendant: Stephen F. Brennwald, LEAD ATTORNEY, BRENNWALD & ROBERTSON, LLP, Washington, DC.
For HECTOR DIAZ-FLORES, also known as LITTLEMAN, Defendant: Joseph T. Flood, LEAD ATTORNEY, PRO HAC VICE, LAW OFFICE OF JOSEPH T. FLOOD, Fairfax, VA; Mark John Carroll, LEAD ATTORNEY, LAW OFFICE OF MARK J. CARROLL, Potomac, MD.
For MANUEL ANTONIO SARAVIA, also known as CHOLO, Defendant: Joseph Roll Conte, LEAD ATTORNEY, LAW OFFICES OF J.R. CONTE, P.L.L.C., Washington, DC.
For JOSE MARTINEZ-AMAYA, also known as CRIMEN, Defendant: Joseph Virgilio, LEAD ATTORNEY, Washington, DC.
For RUDY MARTINEZ, also known as RUDY MARTINEZ, also known as KRYPTA, also known as LUIS GARCIA, also known as RUDIS CASTRO-MARTINEZ, Defendant: Joanne Roney Hepworth, LEAD ATTORNEY, HEPWORTH & PENDRY, Washington, DC.
For MARIO LOPEZ-RAMIREZ, also known as PAVA, Defendant: Joanne D. Slaight, LEAD ATTORNEY, LAW OFFICE OF JOANNE D. SLAIGHT, Washington, DC.
For WILLIAM SARAVIA-BENITEZ, also known as SHADY, also known as HECHICERO, Defendant: Nathan I. Silver, II, LEAD ATTORNEY, LAW OFFICES OF NATHAN I. SILVER, Bethesda, MD.
For DENNIS L. GIL-BERNARDEZ, also known as PANDO, also known as DOPRE, Defendant: William B. Purpura, Jr., LEAD ATTORNEY, LAW OFFICE OF PURPURA & PURPURA, Baltimore, MD.
For JUAN MELGAR-HERNANDEZ, also known as TRISTE, Defendant: Carmen D. Hernandez, LEAD ATTORNEY, Highland, MD.
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 YESTER AYALA, also known as FREEWAY, also known as DADDY YANKEE, Defendant: Billy L. Ponds, LEAD ATTORNEY, PONDS LAW FIRM, 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.
Royce C. Lamberth, U.S. District Judge.
Before the Court are the Motion  for Judgment of Acquittal or, in the Alternative, for New Trial filed by Defendant Jose Martinez-Amaya and the Motion
for Judgment of Acquittal and New Trial and Reconsideration of Severance filed by Defendant Noe Machado-Erazo. After a lengthy jury trial, Machado-Erazo and Martinez-Amaya were found guilty of three offenses related to their involvement in the gang La Mara Salvatrucha Trece (" MS-13" ). Making nearly identical arguments, they contend that the evidence at trial was insufficient to establish their guilt; that venue was not proper in the District of Columbia; and that their trial should have been severed from the trial of a third MS-13 co-defendant, Yester Ayala, who was also found guilty.  Upon consideration of the Motions and supporting Memoranda, the Government's Consolidated Opposition , the entire record herein, and the applicable law, the Court will deny the Motions for the reasons set forth below.
This case has, at times, encompassed as many as twenty defendants charged with offenses related to their involvement in MS-13. Most have pled guilty, and others remain fugitives. Machado-Erazo, Martinez-Amaya, and Ayala elected to proceed to trial. Machado-Erazo and Martinez-Amaya (hereinafter " the defendants" ) were charged by Superseding Indictment with one count of conspiracy in violation of the Racketeer Influenced Corrupt Organizations (" RICO" ) Act, 18 U.S.C. § 1962(d); one count of Murder in Aid of Racketeering (" VICAR murder" ), 18 U.S.C. § 1959(a)(1); and one count of Possession of a Firearm During and in Relation to a Crime of Violence, 18 U.S.C. § 924(c)(1)(A). See Superseding Indictment, ECF No. 330. The Superseding Indictment also charged the defendants with the murder underlying the VICAR count as a special sentencing factor to be found by a jury. Id. at 23 (Special Sentencing Factor Six).
The trial in this case lasted from June 18, 2013, until 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. Among the government's evidence were consensual recordings of MS-13 meetings and wiretaps of calls among MS-13 members, including the three defendants. The jury returned verdicts of guilty as to both defendants on all three counts. Verdict Form 2-4, ECF No. 402. The jury answered the special finding for both defendants in the affirmative, determining that both, " aided and abetted by others, . . . did feloniously, willfully, and of deliberately premeditated malice aforethought kill and murder Felipe Leonardo Enriquez." Id. at 2, 4. The jury also found that the pattern of racketeering activity agreed to by the defendants 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. Id. at 1-4. However, the jury found that the pattern of racketeering activity did not include robbery, violation of federal narcotics laws, or witness retaliation or tampering. Id. The third co-defendant, Ayala, was also charged with participating in the same RICO conspiracy; he was found guilty. Id. at 5. The jury found that Ayala agreed to the same three racketeering activities as Machado-Erazo and Martinez-Amaya, and it also returned guilty verdicts against Ayala as to two counts of VICAR murder and two counts of D.C. Code murder 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. Id. at 5-8.
Machado-Erazo and Martinez-Amaya filed timely renewed motions for judgment of acquittal, see Fed. R. Crim. P. 29(c)(1), and for a new trial, see Fed. R. Crim. P. 33(b)(2). In addition to their challenges to the sufficiency of the evidence, Martinez-Amaya and Machado-Erazo " renew" previously filed motions to dismiss based on improper venue and motions for severance.  Machado-Erazo Mot. 1; Martinez-Amaya Mot. 1.
II. LEGAL STANDARDS
A. Motion for a New Trial
Under Rule 33 of the Federal Rules of Criminal Procedure, " [u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Whether to grant a new trial is " committed to the sound discretion of the trial judge, [and is subject to reversal] only for abuse of discretion or misapplication of the law." United States v. Reese, 561 F.2d 894, 902, 183 U.S.App. D.C. 1 (D.C. Cir. 1977). The burden of demonstrating that a new trial would be " in the interest of justice" rests with the defendant. United States v. Mangieri, 694 F.2d 1270, 1285, 224 U.S.App. D.C. 295 (D.C. Cir. 1982). However, a new trial should be granted only if the error was not harmless and affected the defendant's substantial rights. United States v. Walker, 899 F.Supp. 14, 15 (D.D.C. 1995) ( quoting United States v. Johnson, 769 F.Supp. 389, 395-96 (D.D.C. 1991)). The inquiry is " whether the error itself had substantial influence." Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Pursuant to Federal Rule of Criminal Procedure 52(a), harmless error--that is, " [a]ny error, defect, irregularity or variance which does not affect substantial rights" --shall be disregarded. Fed. R. Crim. P. 52(a). The government bears the burden of proving harmlessness. United States v. Palmera Pineda, 592 F.3d 199, 201, 389 U.S.App. D.C. 146 (D.C. Cir. 2010).
B. Motion for a Judgment of Acquittal
Under Rule 29(c) of the Federal Rules of Criminal Procedure, a defendant may renew a motion for a judgment of acquittal after a guilty verdict has been rendered. Fed. R. Crim. P. 29(c). The Court's review of the jury's verdict is limited to " whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Washington, 12 F.3d 1128, 1135-36, 304 U.S.App. D.C. 263 (D.C. Cir. 1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also United States v. Wahl, 290 F.3d 370, 375, 351 U.S.App. D.C. 284 (D.C. Cir. 2002). That is, a motion for judgment of acquittal should be granted only when " a reasonable juror must necessarily have had a reasonable doubt as to the defendant's guilt." United States v. Weisz, 718 F.2d 413, 437, 231 U.S.App. D.C. 1 (D.C. Cir. 1983). The Court " must presume that the jury properly carried out its functions of evaluating the credibility of witnesses, finding the facts, and drawing justifiable
inferences." United States v. Campbell, 702 F.2d 262, 264, 226 U.S.App. D.C. 283 (D.C. Cir. 1983); see also United States v. Kayode, 254 F.3d 204, 212-13, 349 U.S.App. D.C. 127 (D.C. Cir. 2001).
The Court addresses first the defendants' argument that the evidence at trial was insufficient to support the guilty verdicts and then turns ...