UNITED STATES of America, Plaintiff—Appellee, v. Henry ZELAYA, a/k/a Homeboy, a/k/a Jose Manuel Alvarado, Defendant—Appellant. United States of America, Plaintiff—Appellee, v. Jose Hipolito Cruz Diaz, a/k/a Pirana, Defendant—Appellant. United States of America, Plaintiff—Appellee, v. Omar Vasquez, a/k/a Duke, a/k/a Sir Duke, a/k/a Pato, Defendant—Appellant.
Nos. 07-4773, 07-4834, 074938
United States Court of Appeals, Fourth Circuit
Decided: July 7, 2009
339 F. App‘x 355
Argued: May 14, 2009
Finally, counsel contends that the district court‘s consideration of hearsay evidence at sentencing violated Reyna‘s constitutional right of confrontation. In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court held that the Confrontation Clause prohibits the admission at trial of testimonial statements that are not subject to cross-examination. Id. at 50-51, 124 S. Ct. 1354. However, no circuit court to have considered the effect of Crawford has concluded that the rule announced in Crawford applies at sentencing. See, e.g., United States v. Bras, 483 F.3d 103, 109 (D.C.Cir.2007) (determining Crawford did not alter general rule that hearsay evidence admitted at sentencing does not violate defendant‘s confrontation rights); see also United States v. Brown, 430 F.3d 942, 943-44 (8th Cir.2005) (noting courts have held that Crawford did not alter general rule of admissibility of hearsay evidence at sentencing).
Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendants-appellants Henry Zelaya, Jose Hipolito Cruz Diaz, and Omar Vasquez were indicted by a grand jury sitting in the Southern Division of the District of Maryland of violating
I.
The government provided evidence at trial that the defendants are members of an international gang known as La Mara Salvatrucha (“MS-13“). MS-13 is a national and international criminal organization, consisting of approximately 10,000 members, that regularly conducts gang activities in at least 25 states and the District of Columbia, as well as Mexico, Honduras, and El Salvador. Once in the gang, members frequently engage in criminal activity, including murders, assaults, and kidnappings, as committing acts of violence is required to maintain membership. MS-13 members commonly recite the phrase “mata, viola, controla,” which means “kill, rape, control.”
ARGUED: Timothy S. Mitchell, Law Offices of Timothy S. Mitchell, Greenbelt, Maryland, for Appellant Henry Zelaya; Joseph John Gigliotti, Sr., Silver Spring, Maryland, for Appellant Omar Vasquez; Manuel J. Retureta, Retureta & Wassem, PLLC, Washington, D.C., for Appellant Jose Hipolito Cruz Diaz. James Marion Trusty, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
At trial, the government presented at least sixty-eight witnesses, including gang experts, gang members and associates, local and federal law enforcement agents, and forensic scientists. Testimony provided at trial showed that Zelaya founded a clique of MS-13 in the state of Maryland and participated in various instances of criminal conduct as part of the clique, including murdering a rival gang member and robbing at gunpoint individuals in a prostitution house. Further testimony indicated that Cruz Diaz, among other things, was involved in gun possession, celebrations of stabbings of rival gang members, and the punishing of MS-13 members for not killing members of other gangs when the opportunities arose. Finally, the government presented evidence that as a leader of multiple MS-13 cliques in the metropolitan District of Columbia area, Vasquez taught newer gang members how to talk, dress, and flash signs. Further, Vasquez participated in a shooting targeting a member of a rival gang and sentenced a MS-13 member and his girlfriend to twenty-six seconds of beating.
Discovery disclosure disputes arose throughout the trial, as the defendants argued that the government failed to disclose both a statement from Cruz Diaz that he was a member of an MS-13 clique and certain Jencks material, as well as allowed evidence of a gang rape allegedly committed by Zelaya and other MS-13 members. The defendants also objected to the district court allowing two individuals from El Salvador to testify under pseudonyms. As a result of these discovery disputes, defense counsel moved for both a severance and a mistrial at different points in the trial. The district court denied both of these motions, instead, providing cautionary instructions to the jury on the necessary issues.
At the conclusion of trial, the defendants were convicted of all counts. Zelaya was sentenced to life imprisonment. Cruz Diaz was sentenced to 420 months imprisonment on Count 1 and 120 months imprisonment on Count 21, to be served concurrently. Vasquez received life imprisonment on Count 1 and 120 months imprisonment on Count 21, also to be served concurrently.
II.
On appeal, the defendants argue that the trial court abused its discretion and violated the defendants’ Sixth Amendment rights to confrontation by preventing them from learning the identity of two El Salvadorian witnesses. Specifically, the defendants argue that these witnesses were central to the government‘s theory that there were connections between the defendants and MS-13 members in El Salvador, and that they should have been able to conduct research on these witnesses to assess their credibility, veracity, and reputations in the community. In response, the government argues that the disclosure of these witness’ true names would unnecessarily expose these witnesses and their families to serious danger from retaliation.
Limitations on a defendant‘s cross-examination of a government witness is reviewed on appeal for an abuse of discre-
It is well-settled law that inquiry regarding a witness’ full name and place of residence is normally allowed on cross-examination. Smith v. Illinois, 390 U.S. 129, 131-32, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968) (“To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.“). “The constitutional right of confrontation guaranteed to a state criminal defendant by the fourteenth amendment has as one of its most important aspects the right to cross-examine a hostile witness in order to undermine the credibility of the witness by highlighting the possible influence of bias on the testimony of the witness.” Hoover v. State of Maryland, 714 F.2d 301, 305 (4th Cir.1983).
The right to cross-examination, however, is not absolute. Indeed, the district judge may limit cross-examination when the information sought may endanger a witness’ safety. Chavis v. North Carolina, 637 F.2d 213, 226 (4th Cir.1980). See also United States v. Borda, 178 F.3d 1286, at *7 (4th Cir.1999) (unpublished) (“When a trial court is satisfied that there is an actual threat to a witness if his identity is disclosed, courts have held that it is proper to withhold this information.“); United States v. Palermo, 410 F.2d 468, 472 (7th Cir.1969) (“[W]here there is a threat to the life of the witness, the right of the defendant to have the witness’ true name, address, and place of employment is not absolute.“). This threat must be “actual and not a result of conjecture.” Palermo, 410 F.2d at 472. The government bears the burden of proving that such a threat exists. Id. When an actual threat is shown, the “district judge must determine whether the information must be disclosed in order not to deny effective cross-examination.” Id.
Our review of the appellate briefs and the sealed affidavits, as well as the sealed transcripts of an ex parte and in camera hearing in which the district judge conducted an examination of the witnesses,* persuade us that the district court did not abuse its discretion in preventing the defendants from learning the true identity of the two El Salvadorian government witnesses. The information provided to the district court indicated that the threat to these witnesses and their families, should their true identities be provided, was “actual and not a result of conjecture.” Id. Furthermore, the government disclosed to the defense details of these two witnesses, including a pretrial notice regarding the nature of their testimony and a transcript of their previous sworn testimony on the same subject matter presented in this case. This information enabled the defendants to effectively cross-examine the witnesses without threatening their safety.
III.
The defendants also raise several other district court errors allegedly committed at trial, including whether the evidence sufficiently established that MS-13 is a criminal enterprise that the defendants conspired with; whether the defendants’ discovery complaints violated their due process rights; whether the district court abused its discretion in denying Cruz Diaz‘s and Vasquez‘s motion for severance
IV.
For the foregoing reasons, the defendants’ convictions and sentences are AFFIRMED.
UNITED STATES of America, Plaintiff—Appellee, v. Lawrence W. NELSON, a/k/a Zikee, Defendant—Appellant.
No. 06-4456
United States Court of Appeals, Fourth Circuit
Decided: July 7, 2009
339 F. App‘x 359
Submitted: May 29, 2009
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In United States v. Nelson, 276 Fed. Appx. 331 (4th Cir.2008), we affirmed Lawrence W. Nelson‘s 360-month sentence imposed by the district court after a jury convicted Nelson of conspiracy to distribute and possess with intent to distribute more than fifty grams of crack cocaine, in violation of