Gang Expert Testimony OK’d

A defendant who served as “first word” for a local “clique” of the transnational gang La Mara Salvatrucha cannot overturn his murder and racketeering-related convictions for the murder of a woman who had contacts with rival gang members; the 4^th Circuit approves the use of testimony from a police expert on gangs as an element of the case against defendant.

The primary MS-13 “clique,” or local unit, involved in this prosecution is the Langley Park Salvatruchas (LPS). Defendant cofounded LPS and served as its second in command and subsequently as its first in command, or “first word.” Trial testimony indicated he helped orchestrate the murder of Nancy Diaz during the time he was “second word” of LPS, for allegedly consorting with rival gang members. A jury convicted defendant of conspiracy to participate in a racketeering enterprise, conspiracy to commit murder in aid of racketeering, murder in aid of racketeering and use of a firearm in relation to a crime of violence.

Defendant’s appellate claims fall into two categories: challenges to the admission of certain witness testimony and challenges to the sufficiency of the evidence to support his convictions.

The district court did not err in permitting expert testimony on gangs from Sgt. George Norris. We rejected an identical claim in U.S. v. Ayala, 601 F.3d 256 (4^th Cir. 2010), which involved the same MS-13 conspiracy we confront here, as well as the same expert. We reiterate our position in Ayala that the admission of Norris’s testimony was not a Crawford violation, even if his expert opinion was partly based on testimonial hearsay.

Nor did the district court abuse its discretion by allowing “prior bad acts” evidence. The evidence he cites is not properly characterized as “prior bad acts,” as it related to the murder, conspiracy and racketeering charges against defendant. Finally, admission of testimony from defendant’s cell mate was not reversible error. The government had no part in the cell mate’s interactions with defendant and the cell mate could not be regarded as a government agent.

Defendant’s primary contention as to why the trial evidence was insufficient to allow a jury to find that MS-13 was an “enterprise” under 18 U.S.C. § 1962 is that the local clique’s primary activity was “local street crime,” often spur of the moment, impulsive acts.

The expert, Sgt. Norris, informed the jury that MS-13 has rules and regulations that govern the gang on a transnational basis, as well as common symbols, gestures, colors and parlance, but the gang is broken down into individual cliques at a local level, each of which has its own leadership, meetings and rules. Norris explained the formal, ritualized process involved in becoming a member, how they pay dues for attorneys for arrested members, and communicate through the internet. Norris testified the gang likely has at least 100,000 members through Central and North America. The expert testimony was corroborated by persons with direct association with the gang. The evidence was more than sufficient to support the jury verdict.

Convictions affirmed.

U.S. v. Palacios (Duncan) No. 08-5174, April 30, 2012; USDC at Greenbelt, Md. (Chasanow) Peter L. Goldman for appellant; Robert K. Hur, AUSA, for appellee. VLW 012-2-099, 24 pp.