United States v. Zelaya

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4773
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY ZELAYA, a/k/a Homeboy, a/k/a Jose Manuel Alvarado,
Defendant - Appellant.
No. 07-4834
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE HIPOLITO CRUZ DIAZ, a/k/a Pirana,
Defendant - Appellant.
No. 07-4938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR VASQUEZ, a/k/a Duke, a/k/a Sir Duke, a/k/a Pato,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:05-cr-00393-DKC-19; 8:05-cr-00393-DKC-9; 8:05-cr-00393-DKC-
17)
Argued: May 14, 2009 Decided: July 7, 2009
Before SHEDD and DUNCAN, Circuit Judges, and Frederick P.
STAMP, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Timothy S. Mitchell, LAW OFFICES OF TIMOTHY S. MITCHELL,
Greenbelt, Maryland, for Appellant Henry Zelaya; Joseph John
Gigliotti, Sr., Silver Spring, Maryland, for Appellant Omar
Vasquez; Manuel J. Retureta, RETURETA & WASSEM, PLLC,
Washington, D.C., for Appellant Jose Hipolito Cruz Diaz. James
Marton Trusty, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Defendants-appellants Henry Zelaya, Jose Hipolito Cruz
Diaz, and Omar Vasquez were indicted by a grand jury sitting in
the Southern Division of the District of Maryland of violating
18 U.S.C. § 1961(d), conspiracy to commit racketeering offenses
(“RICO”) (“Count 1”). A superseding indictment added one count
of conspiracy to commit murder in aid of racketeering, in
violation of 18 U.S.C. § 1959(a)(5) (“Count 21”). The
defendants were tried by a jury and found guilty as charged.
The defendants now appeal their convictions. For the reasons
that follow, we affirm.
I.
The government provided evidence at trial that the
defendants are members of an international gang known as La Mara
Salvatrucha (“MS-13”). MS-13 is a national and international
criminal organization, consisting of approximately 10,000
members, that regularly conducts gang activities in at least 25
states and the District of Columbia, as well as Mexico,
Honduras, and El Salvador. Once in the gang, members frequently
engage in criminal activity, including murders, assaults, and
kidnappings, as committing acts of violence is required to
maintain membership. MS-13 members commonly recite the phrase
“mata, viola, controla,” which means “kill, rape, control.”
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MS-13 is organized into “cliques” that operate under the
umbrella rules of MS-13 and work cooperatively to commit acts of
violence. Members meet on a regular basis to discuss acts of
violence committed by their cliques, and leaders of cliques from
across the United States will meet to discuss gang rules and
business, to resolve any issues or problems among the cliques,
and to unite gang members across the country. Furthermore, MS-
13 members pay dues to be provided to those members imprisoned
both in the United States and El Salvador.
At trial, the government presented at least sixty-eight
witnesses, including gang experts, gang members and associates,
local and federal law enforcement agents, and forensic
scientists. Testimony provided at trial showed that Zelaya
founded a clique of MS-13 in the state of Maryland and
participated in various instances of criminal conduct as part of
the clique, including murdering a rival gang member and robbing
at gunpoint individuals in a prostitution house. Further
testimony indicated that Cruz Diaz, among other things, was
involved in gun possession, celebrations of stabbings of rival
gang members, and the punishing of MS-13 members for not killing
members of other gangs when the opportunities arose. Finally,
the government presented evidence that as a leader of multiple
MS-13 cliques in the metropolitan District of Columbia area,
Vasquez taught newer gang members how to talk, dress, and flash
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signs. Further, Vasquez participated in a shooting targeting a
member of a rival gang and sentenced a MS-13 member and his
girlfriend to twenty-six seconds of beating.
Discovery disclosure disputes arose throughout the trial,
as the defendants argued that the government failed to disclose
both a statement from Cruz Diaz that he was a member of an MS-13
clique and certain Jencks material, as well as allowed evidence
of a gang rape allegedly committed by Zelaya and other MS-13
members. The defendants also objected to the district court
allowing two individuals from El Salvador to testify under
pseudonyms. As a result of these discovery disputes, defense
counsel moved for both a severance and a mistrial at different
points in the trial. The district court denied both of these
motions, instead, providing cautionary instructions to the jury
on the necessary issues.
At the conclusion of trial, the defendants were convicted
of all counts. Zelaya was sentenced to life imprisonment. Cruz
Diaz was sentenced to 420 months imprisonment on Count 1 and 120
months imprisonment on Count 21, to be served concurrently.
Vasquez received life imprisonment on Count 1 and 120 months
imprisonment on Count 21, also to be served concurrently.
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II.
On appeal, the defendants argue that the trial court abused
its discretion and violated the defendants’ Sixth Amendment
rights to confrontation by preventing them from learning the
identity of two El Salvadorian witnesses. Specifically, the
defendants argue that these witnesses were central to the
government’s theory that there were connections between the
defendants and MS-13 members in El Salvador, and that they
should have been able to conduct research on these witnesses to
assess their credibility, veracity, and reputations in the
community. In response, the government argues that the
disclosure of these witness’ true names would unnecessarily
expose these witnesses and their families to serious danger from
retaliation.
Limitations on a defendant’s cross-examination of a
government witness is reviewed on appeal for an abuse of
discretion. United States v. Smith, 451 F.3d 209, 220 (4th Cir.
2006). This Court holds that the district court did not abuse
its discretion in disallowing the defendants from learning the
names of the two El Salvadorian witnesses.
It is well-settled law that inquiry regarding a witness’
full name and place of residence is normally allowed on cross-
examination. Smith v. Illinois, 390 U.S. 129, 131-32 (1968)
(“To forbid this most rudimentary inquiry at the threshold is
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effectively to emasculate the right of cross-examination
itself.”). “The constitutional right of confrontation
guaranteed to a state criminal defendant by the fourteenth
amendment has as one of its most important aspects the right to
cross-examine a hostile witness in order to undermine the
credibility of the witness by highlighting the possible
influence of bias on the testimony of the witness.” Hoover v.
State of Maryland, 714 F.2d 301, 305 (4th Cir. 1983).
The right to cross-examination, however, is not absolute.
Indeed, the district judge may limit cross-examination when the
information sought may endanger a witness’ safety. Chavis v.
North Carolina, 637 F.2d 213, 226 (4th Cir. 1980). See also
United States v. Borda, 178 F.3d 1286, at *7 (4th Cir. 1999)
(unpublished) (“When a trial court is satisfied that there is an
actual threat to a witness if his identity is disclosed, courts
have held that it is proper to withhold this information.”);
United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969)
(“[W]here there is a threat to the life of the witness, the
right of the defendant to have the witness’ true name, address,
and place of employment is not absolute.”). This threat must be
“actual and not a result of conjecture.” Palermo, 410 F.2d at
472. The government bears the burden of proving that such a
threat exists. Id. When an actual threat is shown, the
“district judge must determine whether the information must be
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disclosed in order not to deny effective cross-examination.”
Id.Our review of the appellate briefs and the sealed
affidavits, as well as the sealed transcripts of an ex parte and
in camera hearing in which the district judge conducted an
examination of the witnesses, * persuade us that the district
court did not abuse its discretion in preventing the defendants
from learning the true identity of the two El Salvadorian
government witnesses. The information provided to the district
court indicated that the threat to these witnesses and their
families, should their true identities be provided, was “actual
and not a result of conjecture.” Id. Furthermore, the
government disclosed to the defense details of these two
witnesses, including a pretrial notice regarding the nature of
their testimony and a transcript of their previous sworn
testimony on the same subject matter presented in this case.
This information enabled the defendants to effectively cross-
examine the witnesses without threatening their safety.
*
These sealed transcripts, not included in the joint
appendix originally filed by the parties in this appeal, were
requested by the panel during argument and thereafter forwarded
to the Court by the government.
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III.
The defendants also raise several other district court
errors allegedly committed at trial, including whether the
evidence sufficiently established that MS-13 is a criminal
enterprise that the defendants conspired with; whether the
defendants’ discovery complaints violated their due process
rights; whether the district court abused its discretion in
denying Cruz Diaz’s and Vasquez’s motion for severance and
motion for mistrial; and whether the cumulative error doctrine
invalidates the defendants’ convictions. Defendant Zelaya also
contends that his sentence of life imprisonment is unreasonable.
We have carefully reviewed the record, briefs, applicable law,
and oral arguments of the parties, and are persuaded that the
district court did not commit error regarding these issues.
Accordingly, on these issues, we affirm on the reasoning of the
district court as set forth in both the trial and sentencing
hearing transcripts.
IV.
For the foregoing reasons, the defendants’ convictions and
sentences are
AFFIRMED.
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