UNITED STATES OF AMERICA v. MIGUEL ZELAYA et al
US Court of Appeals for the Fourth Circuit, Duncan, November 14, 2018
VICAR – A gang member’s use of an assault rifle to shoot up the car of someone who had argued with him could be considered a crime of violence done to “maintain or increase his position in the enterprise”
(Concur and Dissent – Floyd – Not enough evidence to show Sosa’s shooting was gang-related)
Facts:
37 members of MS-13 from the Charlotte, NC area were indicted for violations of RICO, VICAR, and using a firearm in furtherance of a violent crime, including Miguel Zelaya, Luis Ordonez-Vega, Jorge Sosa, and William Gavidia.
Sosa was a member of the MS-13 clique Charlotte Locotes and participated in gang fights as an MS-13 member. In 2013, Sosa was drinking at a private residence with his cousin, Tomas Maradiaga (who is not affiliated with MS-13). Sosa started arguing with a man who had not paid for his drinks, and the argument escalated. The man brandished a stick at Sosa. Sosa left the party with Maradiaga and retrieved an assault rifle. They returned as
the man was leaving in a car with another guest. Sosa and Maradiaga drove after them and shot at their car repeatedly, although no one was killed. After the shooting, Fec Rodriguez Vareal, or “Chelito,” a fellow MS-13 member, called Maradiaga to warn him to leave town.
At trial, Sergeant Samuel Arnold of the Los Angeles Police Department testified about the history and evolution of MS-13 nationally and internationally, and William Hastings, a gang intelligence officer in the Charlotte-Mecklenburg Police Department, testified about MS13’s activity in Charlotte. Cooperating witnesses testified to the gang affiliations of
Zelaya, Ordonez-Vega, Sosa, and Gavidia as well as the individual acts of violence for which they were each charged.
Each was convicted and appealed.
Sosa appealed on the ground that his crime of violence wasn’t related to his membership in MS-13.
Held: The Court held that there was enough evidence that Sosa’s crime of violence was related to his membership in MS-13 that a jury could find him guilty.
RICO – A RICO conspiracy requires:
– an enterprise “affecting interstate commerce”
– The defendant knowingly and intentionally agreed with another person to conduct or participate in the enterprise’s affairs
– Each defendant knowingly and willfully agreed that he or some other member of the conspiracy would commit at least two racketeering acts.
From the Case: MS-13 was shown to be an enterprise “affecting interstate commerce” where the government “introduced Sergeant Arnold’s expert testimony about the scale, structure, symbology, and rules of MS-13 nationally and internationally and the testimony of Detective Hastings about its history in Charlotte, North Carolina specifically. Cooperating witnesses testified repeatedly and consistently about the “rules” of the gang. Pena also testified that he and Gavidia sold cocaine as part of this enterprise. This was more than sufficient to prove the existence of MS-13 as an enterprise with at least a de minimis effect on interstate commerce within the reach of the RICO statute.”
VICAR – A VICAR charge (VIolent Crimes in Aid of Racketeering activity) requires:
– there was a RICO enterprise engaged in RICO racketeering activity
– the defendant was part of the enterprise
– the defendant committed a crime of violence
– the defendant’s purpose in committing the crime of violence was to “maintain or increase his position in the enterprise”
VICAR – A defendant can be convicted under VICAR if he knew his violent crime was expected of him by reason of his membership in the enterprise or he committed it in furtherance of that membership.
From the Case: Sosa’s shooting “was not conducted alongside other MS-13 gang members and was not directed against rival gang members. However, for purposes of assessing whether it was permissible to allow a jury to infer that the shooting was “expected of” Sosa by reason of his position in MS-13, or done in order to “maintain” that position, the combination of the shooting’s nature as a grossly disproportionate retaliation to a public slight and Sosa’s after-the-fact engagement of a fellow MS-13 member to help him manage the consequences of the crime by directing Maradiaga to leave town suffice to permit the jury to infer a gang-related motive.”
From the Case: “In particular, the excessive nature of the response, which was objectively apparent and involved Sosa shooting nearly a dozen rounds from an assault rifle at the victims, suggests a motive of making a statement rather than merely exacting payback… looking cumulatively at the circumstances present in this case, there was sufficient evidence for the question to go to the jury. We therefore affirm Sosa’s convictions.”
Evidence – While “prior bad acts” are generally not allowed in evidence, they may be considered when they are part of the crime charged.
From the Case: New York police officers were allowed to testify that they saw one of the defendants with gang tattoos and that he admitted he was a member of MS-13.