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United States v. Josemartinez-Amaya

United States District Court, District Circuit

October 1, 2013



ROYCE C. LAMBERTH, District Judge.

Before the Court are the Motion [428] for Judgment of Acquittal or, in the Alternative, for New Trial filed by Defendant Jose Martinez-Amaya and the Motion [429] 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.[1] Upon consideration of the Motions and supporting Memoranda, the Government's Consolidated Opposition [432], 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.[2] Machado-Erazo Mot. 1; Martinez-Amaya Mot. 1.


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 (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 (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 (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 (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 (D.C. Cir. 1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also United States v. Wahl, 290 F.3d 370, 375 (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 (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 (D.C. Cir. 1983); see also United States v. Kayode, 254 F.3d 204, 212-13 (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 to their venue and severance arguments.

A. Sufficiency of the Evidence

1. RICO Conspiracy

Count One of the Indictment charged Machado-Erazo and Martinez-Amaya and other named and unnamed MS-13 members with RICO conspiracy arising from their membership in MS-13 and their participation in gang-related activities. See Superseding Indictment ¶ 16. Each defendant argues that "the government failed to prove his participation" in the racketeering acts charged in Count One. Machado-Erazo Mot. 5, Martinez-Amaya Mot. 4. Specifically, Machado-Erazo and Martinez-Amaya contend that the government did not prove that they agreed to or were involved in murder, extortion, or obstruction of justice, which are the three racketeering acts that the jury found that the RICO conspiracy included. Machado-Erazo Mot. 5-7, Martinez-Amaya Mot. 4-5. In response, the government contends that the evidence was more than sufficient to support the jury's verdicts. Opp. 4-5 (citing trial transcripts and trial exhibits). The government emphasizes that a pattern of racketeering activity to support a RICO conspiracy charge can be shown through "any individual offense committed within the time frame of the indictment so long as it is related to the enterprise's activities." Id. at 2-4 & 2 n.1.

18 U.S.C. § 1962(d) criminalizes conspiracy to violate the RICO Act. Section 1962(c) of the RICO Act, which the defendants were charged with conspiring to violate, provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

A "pattern of racketeering activity... requires at least two acts of racketeering activity" no more than ten years apart. 18 U.S.C. § 1961(5). Racketeering activity is defined in 18 U.S.C. § 1961(1) and includes, as relevant here, murder and extortion in violation of state law and obstruction of justice in violation of 18 U.S.C. § 1503.

The defendants focus their arguments in the instant motions on the racketeering acts, but the Court notes that the other elements of RICO conspiracy were met. There is no doubt that MS-13 is a transnational criminal organization that qualifies as a RICO enterprise that affects interstate commerce, as other courts have recognized, e.g., United States v. Mejia, 545 F.3d 179, 203 (2d Cir. 2008), and as the evidence at trial showed, e.g., June 18, 2013 P.M. Trial Tr. 6-49 & June 19, 2013 A.M. Trial Tr. 6-38 (background testimony of government expert witness about MS-13). For example, Juan Diaz, an investigator with the National Civil Police of El Salvador who has seventeen years of experience investigating gangs, testified that MS-13 has approximately 17, 000 members in El Salvador and that its leaders there direct the gang's operations in the United States, including in the greater Washington, D.C. area. June 18, 2013 P.M. Trial Tr. 17, 19; June 19, 2013 A.M. Trial Tr. 10. There are approximately 5, 000 MS-13 members in the greater D.C. metropolitan area. June 17, 2013 P.M. Trial Tr. 84. Of the 20 MS-13 members charged in this case, most belonged to two subgroups, or "cliques, " that have connections to El Salvador and are active in the D.C. area-Normandie Locos Salvatruchas (often called Normandie or NLS) or Sailors Locos Salvatruchas (often called Sailors or SLSW). See, e.g., July 17, 2013 P.M. Trial Tr. 82-83 (testimony of Sgt. George Norris regarding MS-13 cliques in the D.C. metropolitan area).

The evidence at trial also established that Machado-Erazo and Martinez-Amaya were active MS-13 members-specifically, members of the Normandie clique with the gang nicknames Gallo and Crimen respectively.[3] See, e.g., Gov't Ex. 117A (photographs of Machado-Erazo's MS-13 tattoos); Gov't Ex. 118 (photographs of Martinez-Amaya's MS-13 tattoos); Gov't Ex. 138 (photograph of Machado-Erazo wearing "Normandie N.L.S." baseball cap). Martinez-Amaya served as a leader of the Normandie clique and sometimes communicated with one of the MS-13 leaders in El Salvador, Moises Humberto Rivera-Luna, known by the nickname "Viejo Santos." See, e.g., July 9, 2013 A.M. Trial Tr. 80. Machado-Erazo was one of the leaders of "La Hermandad, " a program, or collection, of D.C.-area MS-13 cliques. See, e.g., Gov't Ex. 906 (transcript of MS-13 meeting, recorded by a confidential source, run by Machado-Erazo); Gov't Ex. 907 at 31 (transcript of additional meeting run by Machado-Erazo, including the statement: "I mean, the thing is that you always have to belong to Normandy, homie, not get careless and not deny the barrio.").

The Court thus turns to the defendants' arguments that there was no evidence that they agreed to or were involved in the three racketeering acts found by the jury. As a threshold matter, the Court first addresses a legal argument that underlies all of the contentions raised by Machado-Erazo and Martinez-Amaya in the instant motions, including their venue and severance claims: that there was insufficient evidence linking their MS-13 activities as part of the Normandie clique to those committed by other alleged co-conspirators, particularly Ayala and the Sailors clique.

a. There Was a Single, Overarching MS-13 Conspiracy

In pretrial motions and in the motions now before the Court, Machado-Erazo and Martinez-Amaya have asserted that, at best, the government has established the existence of several independent MS-13 conspiracies. Thus, they argue, Machado-Erazo and Martinez-Amaya-Normandie clique members who were mostly active in Maryland-were not part of a conspiracy with MS-13 members in other cliques, in the District of Columbia or otherwise. This supposed line of demarcation, if accepted by the Court, would mean: that Machado-Erazo and Martinez-Amaya cannot be held accountable for acts committed by the other ...

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