United States v. Ramos-Cruz, No. 08-4647

Decided: January 18, 2012

Israel Ramos-Cruz, a citizen of El Salvador, came to America in 1999 and became a member of the infamous MS-13 gang, eventually rising to become a leader of one of its local cliques, the Sailors Locotes Salvatruchos Westside or “Sailors.” After a gang fight occurred in a member’s home, Ramos-Cruz was involved in the cover up, which included the murder of a fellow member because that person had threatened to go the police. Later, and ostensibly not directly related to the murder, ATF agents working alongside local police stormed Ramos-Cruz’s home and found a number of weapons.

At trial, the district court allowed two witnesses to testify under pseudonyms for fear of their safety if their true identities were revealed to the MS-13 members. The court also allowed testimony from the government to show that Ramos-Cruz was in the country illegally and did not allow Ramos-Cruz’s immigration attorney to testify as to his temporary protected status (TPS) application. Finally, after the close of arguments, the court provided the jury with instructions about aiding and abetting the commission of a murder with intent to prevent communication with law enforcement, stating specifically that “[t]he [g]overnment does not have to prove that the person specifically intended to interfere with a federal investigation. All the statute requires is that the [g]overnment establish that at the time the person engaged in obstructionist conduct, he had the intent to influence an investigation that eventually happened to be federal and that the investigation involved the possible commission of a federal crime.” The district judge also instructed the jury that a person with a pending TPS application is considered to be in the country illegally. The jury returned a guilty verdict and Ramos-Cruz was sentenced to life in prison, plus 35 years.

Ramos-Cruz appealed the jury instructions about aiding and abetting liability for murder with the intent to prevent communication with law enforcement, his conviction as an illegal alien in possession of a firearm, the decision to allow witnesses to testify without revealing their identities, and the probable cause determination to allow officers to raid and search his home.

The Fourth Circuit found the jury instruction regarding the murder to be insufficient under Fowler v. United States, 131 S. Ct. 2045 (2011), wherein the Court held that the government must show a reasonable likelihood that the victim would have spoken to federal officers had he or she not been killed to prevent it. Nevertheless, though the instruction itself did not conform with Fowler, the court held that the evidence did tend to show a reasonable likelihood—and noted that this showing need not be beyond a reasonable doubt—of communication with authorities and the error was therefore harmless.

Next, the court did not address whether a person with a valid, pending TPS application is in the country illegally. However, it affirmed Ramos-Cruz’s conviction on this count because the evidence by the government was enough to support a finding by the jury that the defendant’s application had been denied.

Additionally, the court affirmed the decision to allow the witnesses to testify under pseudonyms because the government showed an actual threat to their safety if their identities were revealed. Indeed, this Circuit had addressed—albeit in an unpublished opinion—this very issue involving the exact same witnesses and facts against a different defendant and held there that the identities could be protected.

Finally, the court rejected the argument that officers had no probable cause to search his home. The affidavit provided to obtain a warrant showed Ramos-Cruz to be a member of MS-13 and, based on training and experience of the officers involved, likely to keep graffiti-creating materials in his home.

Judge Floyd concurred in the judgment of the court but declined to join the majority’s opinion regarding the decision to allow witnesses to testify under pseudonyms. Judge Floyd recognized the safety concerns for the witnesses but found the Sixth Amendment right to Confrontation too strong to overcome and that by not allowing the defense to obtain necessary background information about the witnesses, Ramos-Cruz’s defense was incapable of performing a sufficient cross-examination or impeachment.

Full Opinion

-C. Alexander Cable

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