United States v. Antonio Argueta

Opinion

AMENDED OPINION

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4375

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONIO ROBERTO ARGUETA, a/k/a Alex Antonio Cruz, a/k/a Buda,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District Judge. (8:05-cr-00393-DKC-6)

Argued: January 27, 2012 Decided: March 21, 2012

Amended Opinion Filed: March 27, 2012

Before NIEMEYER and KEENAN, Circuit Judges, and J. Michelle CHILDS, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Childs wrote the opinion, in which Judge Niemeyer and Judge Keenan joined.

ARGUED: Marta Kahn, Baltimore, Maryland, for Appellant. James Marton Trusty, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Robert K. Hur, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 CHILDS, District Judge:

A jury convicted appellant Roberto Antonio Argueta on eight

counts of criminal conduct related to his affiliation with the

gang La Mara Salvatrucha (also known as “MS–13”), including

numerous counts for conspiracy, racketeering, and murder. On

appeal, Argueta contends that the district court erred during

trial by permitting an expert witness to testify under a

pseudonym and permitting cross-examination of a defense witness

concerning his participation in a Buddhist meditation ritual.

Argueta further argues that the evidence presented during trial

was not sufficient to support the jury’s findings on the

racketeering charges, or to support the jury’s verdicts on the

indictments for conspiracy to murder, murder, and assault.

Upon review, we find no error and affirm Argueta’s convictions

on all counts.

I.

MS-13 began in California in the 1980s with Central

American youth as a means of self-protection and self-

preservation. Gradually, the gang spread to other states and

Central America, including El Salvador. The organization is

broken down into separate subgroups or “cliques.” However, the

cliques share common rules, customs, rituals, and symbols. They

also display similar colors, tattoos, hand-signs, and graffiti

3 to establish the gang’s presence in certain communities. The

common goals of the MS-13 cliques are to preserve the gang by

fighting rival gang members or others perceived as threats to

the gang, and to engage in criminal activity for the financial

support of the gang.

Argueta is a member of a subgroup or “clique” of the MS-13

gang known as the Langley Park Salvatruchos (“LPS”). Other

members of LPS referred to Argueta by the nickname “Buda.”

Argueta also occupied a leadership position within LPS.

In October 2004, LPS gang members murdered Nancy Diaz and

attempted to murder Alyssa Tran. Ms. Diaz was the girlfriend of

an LPS member and was rumored to be fraternizing with rival gang

members. Because of her activities with rival gang members,

Defendant allegedly ordered other LPS gang members to kill Ms.

Diaz. LPS did not originally plan to kill Alyssa Tran.

However, she became the target of the kill order because she

accompanied Ms. Diaz to visit LPS members on the day of the

murder.

As a result of Ms. Diaz’s murder and other crimes, a

federal grand jury returned a fourth superseding indictment

against Argueta. He was charged with conspiracy to participate

in a racketeering enterprise in violation of 18 U.S.C.A. §

1962(d), two counts of assault in aid of racketeering activity

in violation of 18 U.S.C.A. § 1959(a)(5), conspiracy to commit

4 murder in aid of racketeering in violation of 18 U.S.C.A. §

1959(a)(5), murder in the aid of racketeering in violation of 18

U.S.C.A. § 1959(a)(1), and three counts of use of a firearm in a

crime of violence in the commission of a federal crime and death

resulting from use of that firearm in violation of 18 U.S.C.A.

§§ 924(c) and 924(j).

Prior to trial, the government sought leave to allow Juan

Diaz (pseudonym), an El Salvadorian police officer to testify

under a pseudonym because of concerns for his safety and other

professional implications pertaining to the disclosure of his

personal information. In an ex parte hearing, the government

indicated that Mr. Diaz had previously testified in MS-13

conspiracy trials without disclosing his true name, address,

place of birth, or other information that would tend to disclose

his identity. The government further affirmed that Mr. Diaz’s

testimony would not include any observations of, or contact

with, any of the defendants on trial in connection with the

instant case and argued that such limitations on the officer’s

testimony should alleviate any concerns about the Sixth

Amendment right to confrontation. The district court granted

the government’s motion, which allowed Mr. Diaz to testify under

the pseudonym without disclosing any identifying information to

the jury, Argueta, or Argueta’s defense counsel.

5 During the trial, the government presented expert witness

testimony from Mr. Diaz regarding the operations of the MS-13

gang. He testified about the general structure of the gang

membership including the hierarchy of senior leadership within

each clique. He also described the highest levels of leadership

as “first word” and “second word,” whose responsibilities

included overseeing the clique’s finances, disbursement and use

of weapons, and discipline. Mr. Diaz further testified that

only the clique leader designated as “first word” could issue

orders authorizing or providing the “greenlight” for a murder.

The government also presented expert witness testimony from

Frank Florez, a detective with the Los Angeles Police Department

assigned to a gang task force. Mr. Flores testified regarding

the history, characteristics, and operations of MS-13 in the

United States and El Salvador. He also testified that

leadership is obtained by earning a reputation through violent

acts in allegiance to their motto of “matar, violar, controlar”

or kill, rape, control. Flores further corroborated Mr. Diaz’s

testimony regarding “first word” and the issuance of a

“greenlight” to kill targeted victims.

In addition to the expert witness testimony, the government

presented several other witnesses in support of their case

against Argueta. Jesus Canales testified that Argueta ordered

the murder of Ms. Diaz at a meeting of the LPS clique. He also

6 testified that he participated in the murder of Ms. Diaz and the

attempted murder of Ms. Tran with fellow LPS member Jeffrey

Villatoro based on the order from Argueta. Alirio Osorio also

testified that he heard Argueta issue the “green light” at a

meeting and that Argueta was present on the day of Ms. Diaz’s

murder at which time he also authorized the plan to kill Ms.

Tran. However, Ms. Tran, who survived a gunshot wound to the

face and two stab wounds, testified that she did not see Argueta

the day of the incident. Essentially, the government’s theory

of the case was that Argueta was the person in the LPS clique

who held the position of “first word” at the time of Ms. Diaz’s

murder and that he was responsible for her murder.

Argueta’s defense counsel presented an expert witness, Dr.

Thomas Ward, in an attempt to refute some of the government’s

expert witness testimony regarding the MS-13 gang. Dr. Ward

opined that decision making within the gang was a much more

“organic” process and that “first word” has more to do with the

structure of a meeting than decision-making authority. He

further described the concept of a “green light” as more akin to

a decision made by the consensus from the group instead of a

decision left to the sole authority of “first word.”

The jury convicted Argueta on all counts of the indictment.

The district court sentenced him to life imprisonment plus a

consecutive term of 420 months.

7 This appeal followed.

II.

Argueta first contends that the district court erred in

allowing an expert witness to testify on behalf of the

government under a pseudonym without disclosing any of the

witness’s identifying information to Argueta’s defense counsel.

Specifically, Argueta argues that the district court violated

his Sixth Amendment right of confrontation by allowing the

government to withhold information such as the witness’s true

name, home and work addresses, or date and place of birth

because he was prevented from conducting any investigation to

aid in the cross-examination of the witness.

This issue is controlled by the court’s recent decision in

United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. 2012), where

the court found that the district court did not err in allowing

this same El Salvadorian police officer to testify under a

pseudonym in another case concerning the MS-13 gang. In making

this finding, the court noted that the right of confrontation is

not absolute and that the trial court could limit cross-

examination where the information sought poses an actual threat

or danger to the witness. Id.

As was the case in Ramos-Cruz, the government provided

Argueta with the substance of Mr. Diaz’s testimony, which

8 concerned only general information regarding the MS-13 gang

operations and did not specifically involve Argueta. The

government also provided Argueta with transcripts of the

witness’s testimony in prior cases. Furthermore, the district

court conducted an in camera review of affidavits attesting to

the personal and professional safety implications of disclosing

Mr. Diaz’s true identity and conducted an ex parte hearing

regarding the continuing danger to Mr. Diaz and his family.

Based on this evidence of an actual threat to Mr. Diaz’s safety,

the district court allowed his testimony under the pseudonym.

For the reasons articulated in Ramos-Cruz, we find no abuse

of discretion in the district court’s decision to allow Mr. Diaz

to testify under the pseudonym without disclosing any

identifying information to Argueta’s defense counsel. See id.

III.

Argueta also contends that the district court erred in

allowing the government to cross-examine the defense’s expert

witness, Dr. Ward, regarding his participation in a Buddhist

meditation ritual. Argueta argues that such cross-examination

is contrary to Rule 610 of the Federal Rules of Evidence because

the cross-examination attacked Dr. Ward’s spiritual beliefs.

This court reviews a district court’s evidentiary rulings

for abuse of discretion. United States v. Cole, 631 F.3d 146,

9 153 (4th Cir. 2011). Additionally, the scope of cross-

examination is within the sound discretion of the district

court. United States v. McMillon, 14 F.3d 948, 956 (4th Cir.

1994). In determining whether the district court has abused its

discretion in an evidentiary ruling, the court will view the

evidence in the light most favorable to the proponent and will

find an abuse of discretion only where the ruling is arbitrary

and irrational. Id.

Rule 610 of the Federal Rules of Evidence prohibits the use

of evidence related to a witness’s religious beliefs to support

or attack the witness’s credibility. Fed. R. Evid. 610.

However, nothing in the rule proscribes references to religious

matters for other legitimate purposes. See id.

Here, Argueta presented Dr. Ward as an expert on street

gangs. However, the government sought to attack Dr. Ward’s

expertise by highlighting his numerous and varied research

interests, including the use of urine in different cultures,

mental retardation in the elderly, HIV clinical trials, and

meditation. With specific reference to Dr. Ward’s interest in

meditation, the government questioned Dr. Ward regarding his

participation in a “dark retreat,” a Buddhist meditation ritual.

The ritual was listed as a research experience on Dr. Ward’s

online biographical summary posted by the university at which he

worked as an adjunct professor. The government did not inquire

10 as to the religious aspects of the ritual, but primarily focused

on the logistics of the ritual and the possible psychological

effects of the ritual.

Contrary to Argueta’s assertions, the government’s cross-

examination of Dr. Ward was not intended to show that Dr. Ward’s

religious beliefs impaired his credibility, but rather to

demonstrate that Dr. Ward’s interests in a multitude of

seemingly unrelated topics underscored his lack of expertise in

any particular subject matter. Accordingly, the district court

properly allowed the government to question Dr. Ward regarding

his meditation experience.

IV.

Argueta also challenges the sufficiency of the evidence

presented by the government in support of his convictions.

In reviewing a challenge to the sufficiency of evidence,

this court must view the evidence in the light most favorable to

the government and determine whether any rational trier of fact

could find the essential elements of the crime beyond a

reasonable doubt. United States v. Foster, 507 F.3d 233, 245

(4th Cir. 2007). We will uphold the verdict where substantial

evidence supports it. Id. at 244–45. Substantial evidence

consists of “evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

11 defendant’s guilt beyond a reasonable doubt.” United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (internal

citation omitted). In reviewing the evidence, the court does

not weigh the credibility of the witnesses. United States v.

Green, 599 F.3d 360, 367 (4th Cir. 2010). The court will

reverse a verdict only in those cases of clear failure of proof

by the government. Foster, 507 F.3d at 244–45. “A defendant

challenging the sufficiency of the evidence faces a heavy

burden.” Id. at 245.

A.

Argueta first alleges that there was insufficient evidence

to support the jury’s verdict on the charges related to

conspiracy to violate the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. He asserts

that the government failed to meet its burden to prove that the

alleged enterprise engaged in or affected interstate commerce.

More particularly, Argueta argues that the government was

required to show that the enterprise’s activities had a

substantial effect on interstate commerce.

To prove a violation of the RICO conspiracy statute, the

government must demonstrate: 1) the existence of a conspiracy to

participate in an enterprise; 2) that the enterprise affects

interstate commerce through a pattern of racketeering activity;

3) that the defendant joined the conspiracy with knowledge of

12 the purpose of the conspiracy; and 5) that during the time the

defendant was a member of the conspiracy, the defendant knew

that someone would commit at least two racketeering acts in

furtherance of the enterprise. See 18 U.S.C. § 1962; Salinas v.

United States, 522 U.S. 52, 64 (1997) (“A conspirator must

intend to further an endeavor which, if completed, would satisfy

all of the elements of a substantive criminal offense, but it

suffices that he adopt the goal of furthering or facilitating

the criminal endeavor.”). In determining whether conduct of an

enterprise affects interstate commerce, this court has rejected

the argument that the government must make a substantial showing

of the enterprise’s connection to interstate commerce. United

States v. Gray, 137 F.3d 765, 773 (4th Cir. 1998). Rather, the

court has found that the government need only “meet the minimal

standard required to satisfy the interstate commerce

requirement.” Id.; accord United States v. Lobo-Lopez, 2012 WL

665981, at *4 (4th Cir., March 1, 2012) (rejecting the

defendant’s arguments that the government must show substantial

effects on commerce to meet its burden of proof and upholding a

verdict against the defendant for conspiracy to violate RICO

under circumstances similar to the circumstances of Argueta’s

case).

In support of its claims against Argueta on the indictments

for conspiracy to violate RICO, the government presented

13 evidence that MS-13 members traveled from Maryland to Virginia

to hunt for rival gang members and regularly traveled between

the United States and Central America to conduct gang business.

The government also offered evidence that weapons used by MS-13,

specifically the LPS clique, were not manufactured in Maryland

and traveled in interstate commerce. Additionally, the

government provided evidence to demonstrate that MS-13 members

used the United States mails, telephones, and the internet to

communicate with one another within the United States and

internationally. Finally, the government introduced evidence

regarding the removal of graffiti in Langley Park, Maryland,

which required out-of-state communications and services.

Many courts have found the type of evidence submitted by

the government in this case to be sufficient to demonstrate an

effect on interstate commerce sufficient to support a RICO

conviction. See United States v. Mejia, 545 F.3d 179, 203-04

(2d Cir. 2008) (finding sufficient effects on interstate

commerce where the enterprise’s out-of-state members traveled to

New York for meetings; enterprise funds were used to purchase

firearms manufactured out of state; members of Mexican subunits

of the enterprise acted as smugglers; leaders coordinated

activities by making interstate telephone calls; and the

enterprise smuggled narcotics internationally, transported

stolen vehicles interstate, and sent money to individuals in El

14 Salvador); United States v. Delgado, 401 F.3d 290, 297 (5th Cir.

2005) (finding use of Western Union, telephones, the U.S. Postal

Service, and pagers to transfer money and communicate with each

other in furtherance of the group’s criminal purposes was

sufficient to demonstrate that the enterprise affected

interstate commerce); United States v. Pipkins, 378 F.3d 1281

(11th Cir. 2004) (finding that RICO conspirators’ use of

instrumentalities of interstate commerce, including pagers,

telephones, and mobile phones, affected interstate commerce);

United States v. Muskovsky, 863 F.2d 1319, 1325 (7th Cir. 1988)

(finding effect on interstate commerce based on the use of

interstate telephone calls to verify credit card transactions).

After carefully reviewing the record, we find that the evidence

was sufficient to support the jury’s verdict against Argueta on

the indictments for conspiracy to violate RICO.

B.

Lastly, Argueta contests the sufficiency of the evidence

offered by the government to support the jury’s verdict

convicting him of conspiracy to murder and murder of Ms. Diaz

and the assault of Ms. Tran. His primary claim is that the

government offered little direct evidence implicating Argueta in

the crimes. Argueta further attacks the credibility and

reliability of the witnesses presented by the government to

offer evidence on these matters.

15 At trial, the government presented witness testimony

regarding Argueta’s role in the murder of Ms. Diaz and the

assault of Ms. Tran. Alirio Osorio and Jesus Canales testified

that Argueta issued a “greenlight” to kill Ms. Diaz at a

meeting. Canales further testified that, on the day of the

murder and assault, Argueta also authorized a plan to murder Ms.

Tran. Although there were discrepancies concerning whether

Argueta was present on the day of the murder and assault, the

witnesses corroborated each other’s testimony regarding

Argueta’s authorizations of the crimes.

It is the province of the jury, not the reviewing court, to

“weigh[] the credibility of the evidence and resolve any

conflicts in the evidence presented.” United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks

and citation omitted).

We have reviewed the evidence supporting Argueta’s

convictions for conspiracy to murder, murder, and assault and we

find the evidence more than sufficient to sustain the

convictions.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.