United States v. Palacios, No. 08-5174

Decided: April 30, 2012

The defendant, Palacios, was found guilty of conspiracy to participate in a racketeering enterprise, conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, use of a firearm in relation to a crime of violence, and murder resulting from the use of a firearm in a crime of violence. On appeal Palacios’ challenges focus on the lower court’s admission of certain testimony and the sufficiency of the evidence supporting his convictions under RICO and VICAR. The Appellate court affirmed the judgment of the District Court.

Palacios was a member of the transnational street gang La Mara Salvatruchas (“MS-13”), whose primary purpose has become enhancing the gang’s reputation for violence. The activity underlying this case involves the “clique” in and around Prince George’s County, Maryland – a clique known as the Langley Park Salvatruchas (“LPS”). Palacios co-founded this clique and served various leadership positions in the clique. Per trial testimony, Palacios helped orchestrate the murder of Nancy Diaz while holding these leadership positions. Palacios and another leader of the LPS ordered Diaz’s murder by two other gang members in response to Diaz fraternizing with members of a rival gang. These two gang members, Canales and Villatoro, moved forward with the order and, attempted to murder Diaz and her friend Alyssa Tran. Diaz was killed, however, Tran survived the attack, which involved a gunshot to the face and multiple stab wounds to the chest.

Prior to trial, the parties entered into a typical discovery agreement, in which the government agreed to provide reasonable notice to Palacios if it intended to introduce evidence falling under Federal Rules of Evidence (“FRE”) 404(b). As such, the government made many pretrial disclosures regarding evidence it planned to introduce at trial, including two disclosures, sent nine and six weeks prior to trial, notifying Palacios of its intent to introduce evidence of multiple incidents relating to Palacios’ activity in MS-13. Palacios moved to exclude this evidence from trial, or, in the alternative, to require the government to amend the indictment to include the incidents at issue as charged overt acts in furtherance of a conspiracy. The District Court stated that the government is not required to include in the indictment every act it alleges the defendant to have participated in. The government complied with the only requirements – advance notice and providing Palacios with the relevant information – thus, the District Court denied Palacios motion to exclude the evidence. Furthermore, the District Court noted that the evidence in question was not actually FRE 404(b) evidence, but rather was evidence of events that formed part of the government’s case for conspiracy. As such, the government would not even be required to give advance notice of evidence of acts it contends were part of the conspiracy, though in this case it did.

During the trial the government called several witnesses. Testimony especially relevant to Palacios arguments on appeal includes: (1) Sergeant Norris of the Prince George County Police Department’s testimony as an expert witness regarding background info on MS-13, and as a lay witness regarding events he personally observed during investigation of Maryland-area MS-13, (2) former MS-13 member, Garcia-Martinez’s testimony regarding statements Palacios made to Garcia-Martinez – that Palacios would “come back and return to kill all the snitches” – while they were in prison together, (3) testimony from Chicas, Palacios’ former girlfriend, divulging Palacios’ extensive involvement in MS-13, LPS, and the murder of Diaz, and (4) testimony from Osorio, a former LPS member turned government informant, which included his observations of LPS and Palacios’ involvement in Diaz’s murder.

Palacios moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 at the close of the government’s case in chief. The District Court denied his motion. After the jury found Palacios guilty of the crimes listed above, Palacios filed a renewed motion for judgment of acquittal and a motion for a new trial – both were denied by the District Court. Palacios appealed the resulting sentence of life imprisonment, followed by a consecutive sentence of 240 months imprisonment.

The Appellate Court divided Palacios’ five specific arguments on appeal into two categories: challenges to the District Court’s admission of certain testimony and challenges to the sufficiency of the evidence supporting his convictions.

Under the first category, the admission of certain testimony, Palacios first argues that the District Court abused its discretion by admitting the expert testimony of Sergeant Norris, which allegedly contained inadmissible hearsay. The Appellate Court noted that under FRE 703, an expert witness can provide testimony based on inadmissible hearsay when it has been sufficiently established that such hearsay statements are the type of information reasonably relied upon by experts in the field. The Court further noted, however, that the Confrontation Clause bars the admission of testimonial hearsay. The Court advised that whether an expert is applying his training and expertise so as to produce an original product that can be tested through cross-examination, is key to determining whether an expert is giving an independent judgment or simply relaying testimonial hearsay. Applying this to the case at hand, the Court found that Sergeant Norris formed an independent opinion based on all his sources of extensive knowledge regarding MS-13, and as such, the admission of his expert testimony was not an abuse of discretion even if his expert opinion was based in part on testimonial hearsay.

Palacios next argued that the District Court abused its discretion by admitting the prior bad acts evidence, specifically listed above, without proper notice.  The Court stated that the evidence at issue does not fall within the realm of FRE 404(b), and as such, the government was not required to disclose any of the relevant information. Thus, the Court rejected this line of argument.

Palacios’ final argument under this first category is that the District Court abused its discretion by allowing Garcia-Martinez to testify without prior disclosure. Specifically, Palacios contends that this was a violation of Federal Rule of Criminal Procedure 16 (“Rule 16”) because Garcia-Martinez was allegedly acting as a government agent when he spoke with Palacios. The Court noted that Rule 16 requires the disclosure of witness statements only where those statements were made in response to interrogation by someone acting as a government agent. The Court further stated that to determine if an informant was acting as an agent of the government, a court must look to the totality of the circumstances to determine if the informant’s actions are “fairly attributable to the government.” The Court went on to state that it has never found a jailhouse informant to be acting as a government agent where there were no specific instructions or promises from the government prior to the informant’s conversation with the accused person. In this case, Garcia-Martinez received no specific instructions or promises from the government before his exchange with Palacios. Thus, the Court found that Garcia-Martinez was not acting as a government agent, and the District Court did not abuse its discretion by admitting his testimony without prior disclosure.

Under the second category of Palacios’ arguments, challenges to the sufficiency of the evidence supporting his convictions, Palacios argued there was insufficient evidence at trial to prove that MS-13 was an enterprise, a required element of a conviction under RICO. Specifically, Palacios contends that the evidence describes a local organization, comprised of independently functioning cliques that are primarily involved in local impulsive street crime, and as such, was insufficient to allow a jury to find that MS-13 was a RICO enterprise. The Appellate Court rejected this argument, finding the evidence more than sufficient to support a jury finding of a RICO enterprise. The Court emphasized the testimony describing MS-13 as being an ongoing organization, having a common purpose, and with members functioning as a continuing unit.

Still under this second category, challenges to the sufficiency of the evidence supporting his convictions, Palacios’ final argument on appeal is that Chicas and Orsorio, the two witnesses whose testimony connected Palacios to Diaz’s murder, were not credible witnesses. The Appellate Court rejected this argument as having no merit.

In summary, the Appellate Court affirmed the District Court’s judgment, finding specifically that: (1) the District Court did not abuse its discretion by admitting the expert testimony of Sergeant Norris, (2) the District Court did not abuse its discretion by admitting evidence of Palacios’ prior bad acts relating to his activity in MS-13, (3) the District Court did not abuse its discretion by admitting the testimony of Garcia-Martinez without prior notice, (4) there was sufficient evidence presented to support a jury finding that MS-13 was an enterprise as required for a conviction under RICO, and (5) that Chicas and Orsorio were credible witnesses.

Full Opinion

– Kassandra Moore

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