Filed: Mar. 27, 2012
Latest Update: Feb. 22, 2020
Summary: AMENDED OPINION UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4375 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO ROBERTO ARGUETA, a/k/a Alex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, C
Summary: AMENDED OPINION UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4375 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO ROBERTO ARGUETA, a/k/a Alex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, Ci..
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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UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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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.
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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
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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.
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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
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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,
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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
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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
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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
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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.
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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.
V.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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