UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILFREDO MONTOYA BAIRES, a/k/a Nino,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:05-cr-00478)
Submitted: September 12, 2007 Decided: November 15, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lana M. Manitta, RICH GREENBERG ROSENTHAL & COSTLE, LLP,
Alexandria, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, Patrick F. Stokes, Morris R. Parker, Jr.,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wilfredo Montoya-Baires shot and killed Jose Escobar, a
fellow member of the Mara Salvatrucha (“MS-13") gang. He appeals
from his resulting convictions and life sentence imposed following
a jury verdict of guilty of conspiracy to commit murder in aid of
racketeering, 18 U.S.C. § 1959(a)(5) (2000), murder in aid of
racketeering, 18 U.S.C. §§ 2, 1959(a)(1) (2000), use of a firearm
in the commission of a crime of violence, 18 U.S.C. §§ 2,
924(c)(1)(A) (West Supp. 2007), and possession of a firearm and
ammunition by an alien illegally in the United States, 18 U.S.C.
§ 922(g)(5) (2000). On appeal, Baires challenges the district
court’s decision to allow the government to present additional
evidence of racketeering activity beyond the three instances
initially approved. He also contends that the district court
abused its discretion in limiting the manner of cross-examination
of government witnesses who testified with the aid of interpreters
and he challenges the constitutionality of his life sentence. We
affirm.
Baires’ first argument on appeal is that the district
court abused its discretion by allowing the government to present
excessive, cumulative evidence of “racketeering acts” committed by
members of the MS-13 gang, of which Baires was a member. He
contends that the probative value of such evidence, beyond that
which was necessary to prove that MS-13 is a racketeering
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organization, was outweighed by the prejudicial effect the evidence
had on his case, in violation of Fed. R. Evid. 403.
Prior to trial, the district court held a hearing and
determined that it would allow the government to present evidence
of three racketeering acts and, after that, the government could
request permission to present more, and the court then would
consider whether any additional such evidence would be more
prejudicial than probative. The government presented the testimony
of Detective Rick Rodriguez and three MS-13 gang members as to the
general background of the MS-13 gang, their rules, and some
activities, including stealing cars and transporting them across
state lines and into Central America. Joel Mattos, an MS-13
member, also testified that he sold drugs while a member of the
gang and that the MS-13 gang stole cars and took the cars or car
parts to other states. Mattos testified that one of the gang’s
rules was that MS-13 members did not cooperate with the police. If
a member did cooperate with the police, he would be killed. Gang
members also had to kill or hurt rival gang members. Killing a
rival gang member—or an MS-13 member who the gang leaders
determined had cooperated with the police—would result in increased
respect and position in the gang.
Angel Barrera also testified about the rules of MS-13.
Barrera testified about how he and three other MS-13 members
tricked a rival gang member, Joaquin Diaz, into accompanying them
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in their vehicle, took him to an isolated area in a park, stabbed
him repeatedly, kicked him, cut off his wrists, and cut his throat.
Osmin Alfaro-Fuentes testified that the MS-13 gang
leaders gave him a mission to kill a rival gang member. He
attempted to carry out the mission by shooting five times into a
car that he believed was occupied by rival gang members. After
discovering that no one in the vehicle was hurt, Alfaro-Fuentes
tried again, this time completing his mission and killing Jose
Sandoval, a seventeen-year-old suspected rival gang member, and
shooting Sandoval’s sixteen-year-old sister, Lorena.
Over Baires’ objection, the district court allowed the
government to call Lorena Sandoval in order to corroborate the
testimony of gang members, who may not be found to be credible.
The court admonished the government not to use photographs and to
“do it quickly.” The court also advised Baires’ attorneys that
they could renew the objection if the testimony became excessive.
Lorena Sandoval merely testified that a guy approached her and her
brother on a bicycle, mentioned the 18th Street gang—a rival of the
MS-13 gang. As soon as Jose admitted to being in the 18th Street
gang, the guy shot her and her brother. She further testified that
she had been shot in the back and suffered a collapsed lung.
The government then requested permission to present
evidence of one more act of violence. The district court agreed to
allow evidence of one more violent act and reminded the jury that
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the purpose of the preceding evidence was to show racketeering acts
by an enterprise, not to prove any bad conduct by Baires.
Christopher Padilla, a member of the Southside Locos
gang, testified that he and two other members of his gang chased an
MS-13 gang member to an apartment building. An MS-13 member came
out of the apartment with a machete and chased Padilla. Two other
MS-13 members caught Padilla, and the machete-bearing MS-13 member
hit him in the forehead, back, hands, and head with the machete and
the other two kicked him. Padilla testified about his injuries,
including that he lost four fingers on his left hand.
Baires argues that the testimony of Lorena Sandoval and
Christopher Padilla was excessive and cumulative and that it should
have been excluded under Fed. R. Evid. 403. The district court’s
decision to admit evidence is given broad deference and will be
overruled only upon an abuse of discretion. United States v.
Rivera, 412 F.3d 562, 571 (4th Cir.), cert. denied, 126 S. Ct. 670
(2005); United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998).
In reviewing the admission of evidence, this court is to construe
the evidence in the “light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial
effect.” United States v. Simpson, 910 F.2d 154, 157 (4th Cir.
1990).
In order to convict for murder in aid of racketeering
activity under 18 U.S.C. § 1959 (2000), the government had to prove
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beyond a reasonable doubt: (1) that the organization was a RICO
enterprise; (2) that the enterprise was engaged in racketeering
activity as defined in RICO; (3) that the defendant had a position
in the enterprise; (4) that the defendant committed the alleged
crime of violence; and (5) that his general purpose in so doing was
to maintain or increase his position in the enterprise. United
States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994). An enterprise
must “exhibit three basic characteristics: (1) a common or shared
purpose; (2) some continuity of structure and personnel; and (3) an
ascertainable structure distinct from that in a pattern of
racketeering.” United States v. Nabors, 45 F.3d 238, 240 (8th Cir.
1995).
The evidence Baires challenges did not simply go to
proving that a number of violent acts were committed or that the
activities were racketeering acts, but rather were presented to
prove additional elements of the crime, namely the “continuity,
unity, shared purpose, and identifiable structure” of MS-13, which
proved that it was a RICO enterprise. Fiel, 35 F.3d at 1003 (“The
hallmark concepts that identify RICO enterprises are ‘continuity,
unity, shared purpose and identifiable structure.’”); see United
States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991) (holding that
evidence of uncharged acts of violence by members is probative of
the existence of a RICO enterprise). The evidence also was
relevant to show motive for killing. Specifically, the
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government’s witnesses testified that killing a rival gang member
or killing a person believed to be cooperating with the police
would increase the member’s status in the gang and his reputation.
This evidence of gang ambition and gang loyalty as a motive was
presented as a reason why Baires would kill Escobar. This evidence
was necessary to counter Baires’ contention that the killing
occurred in the spur of the moment and during a heated argument.
This evidence served to help the jury understand Baires’ reasons
for reporting to the MS-13 leaders that Escobar was a snitch, thus
authorizing the killing of Escobar, and setting Baires up for
advancement within the gang for carrying out the execution order on
Escobar. See United States v. Bolden, 325 F.3d 471, 494 (4th Cir.
2003) (discussing evidence presented as to motive).
Baires argues that Padilla’s testimony and the testimony
of Lorena Sandoval were purely prejudicial. However, we find that
the corroboration provided by Lorena Sandoval to the testimony of
Alfaro-Fuentes, an admitted gang member and felon, is clearly
probative, for, as the district court acknowledged, Alfaro-Fuentes’
credibility was subject to challenge in light of his being an
incarcerated felon who was testifying in the hope of having his
sentence reduced. The testimony of Padilla regarding the attack on
him was probative of the rules of the MS-13 gang and the fact that
the gang was a RICO enterprise. Additionally, the evidence
concerning the attack and attempted murder of Padilla was not
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significantly different from the evidence of the brutal attack and
murder of Joaquin Diaz. Moreover, the district court issued a
cautionary instruction just prior to Padilla’s testimony and again
at the end of the trial, thereby obviating any unfair prejudice
that might have resulted from the testimony. See Love, 134 F.3d at
603 (holding that cautionary instructions generally obviate any
unfair prejudice from testimony).
Accordingly, we find that the district court did not
abuse its discretion in admitting this evidence as probative of the
existence of a RICO enterprise, the fact that killing of rivals and
snitches was encouraged and required by the enterprise, and as to
Baires’ motive in killing Escobar. See Rivera, 412 F.3d at 571.
Baires next argues that the district court abused its
discretion by limiting his cross-examination, in violation of his
Sixth Amendment right to confront the witnesses against him.
Specifically, during the cross-examination of two witnesses who
testified for the government with the aid of an interpreter, the
district court judge sustained the government’s objection to the
form of a question and directed Baires’ attorney to “ask questions.
Don’t simply state a proposition. Ask a question.” The court
explained that, given the language barrier, statements of fact on
cross-examination were “unfair to the witness.”
Baires contends that the witnesses stated that they
understood some English, and they did not indicate that they had
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difficulty understanding counsel’s cross-examination. Baires
asserts that the court’s requirement that counsel only use
questions limited counsel’s ability to effectively confront the two
key witnesses to the shooting of Jose Escobar.
The Confrontation Clause guarantees the accused the right
to cross-examine witnesses. U.S. Const. amend. VI; United
States v. Smith, 451 F.3d 209, 221 (4th Cir.), cert. denied, 127 S.
Ct. 197 (2006). Thus, “a trial court should accord a criminal
defendant a reasonable opportunity to conduct cross-examination
that might undermine a witness’s testimony.” Id.; see Quinn v.
Haynes, 234 F.3d 837, 847 (4th Cir. 2000). However, the trial
judge retains wide latitude to impose “reasonable limits on such
cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety
or interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Here, Baires’ ability to cross-examine the government’s
witnesses was not unconstitutionally restricted, because the
district court limited only the manner of cross-examination, not
the scope of it. This was a reasonable way for the district court
to resolve what it perceived as confusion caused to the Spanish-
speaking witnesses by the manner of cross-examination using of
statements, rather than questions. See Fed. R. Evid. 611(c)
(“ordinarily leading questions should be permitted on cross-
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examination”). Notably, the court did not prevent Baires’ counsel
from questioning Freddy Escobar or Raul Escobar with respect to
their potential biases and motives or with respect to any
substantive areas. The court was not so much limiting
cross-examination, as seeking to prevent any confusion caused by
translations and the language barrier. We find no abuse of
discretion in this instance. See Smith, 451 F.3d at 220; United
States v. Cropp, 127 F.3d 354, 358 (4th Cir. 1997).
Baires’ final argument is that his life sentence is
unconstitutional because it was imposed as a mandatory minimum
sentence under the statute of conviction. See 18 U.S.C.
§ 1959(a)(1). He contends that because the Supreme Court in United
States v. Booker, 543 U.S. 220, 234 (2005), made mandatory
guideline sentences unconstitutional, a mandatory statutory
sentence must also be unconstitutional. He seeks to be resentenced
with consideration given to the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007).
We have held that Booker did not change the fact that a
sentencing court cannot impose a sentence below the statutory
minimum. United States v. Robinson, 404 F.3d 850, 862 (4th Cir.),
cert. denied, 126 S. Ct. 288 (2005); see United States v. Green,
436 F.3d 449, 455-56 n.* (4th Cir.) (providing that statutory
“maximum and minimum sentences must be honored except as statute
otherwise authorizes”), cert. denied, 126 S. Ct. 2309 (2006).
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Thus, we find no error in the district court’s determination of
Baires’ sentence.
In conclusion, we affirm Baires’ conviction and sentence.
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
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