United States v. Martinez-Amaya

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 10-256-08, -09, -20 (RMC)
)
NOE MACHADO-ERAZO, )
JOSE MARTINEZ-AMAYA, and )
YESTER AYALA, )
)
Defendants. )
_________________________________ )

OPINION

The three Defendants in this criminal case, Noe Machado-Erazo, Jose Martinez-

Amaya, and Yester Ayala, are charged with offenses related to their involvement in the

transnational gang MS-13. Prior to trial, the government sought special protection for its

potential expert witness on MS-13’s operations and structure. That potential witness—identified

here as Juan Diaz—is a member of the Salvadoran National Civil Police who lives in El Salvador

and works in gang enforcement. The government feared violent reprisal against him and his

family if he were identified publicly as giving testimony against MS-13, which remains

extremely powerful and dangerous in his home country. The government asked the Court to

permit the Mr. Diaz to testify using a pseudonym and to limit the extent of required disclosure of

Mr. Diaz’s personal information to the Defendants and their counsel. Following a sealed ex

parte hearing on June 17, 2013, the Court granted the government’s motion. The Court now

writes to expand on the reasoning for its decision.

1
 I. FACTS

The Defendants are among twenty persons charged with offenses related to

alleged involvement in MS-13 in United States v. Silva, Criminal No. 10-256 (RMC). 1 In the

most recent Superseding Indictment, Dkt. 330, Defendants are charged with, inter alia,

involvement in a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. §§ 1961–68, that began “at least” as early as “the late 1990s” and that

continues to the present. Superseding Indictment [Dkt. 330] ¶ 16. “MS-13, including its

leadership, members and associates, in the District of Columbia, Maryland, El Salvador, and

elsewhere” are the alleged RICO “enterprise.” See id. ¶ 13.

The government describes MS-13 as follows:

La Mara Salvatrucha, also known as the MS-13 gang (hereafter
“MS-13”), is a gang composed primarily of immigrants or
descendants of immigrants from El Salvador, with members
operating throughout the United States, including within the
District of Columbia. The name “Mara Salvatrucha” is a
combination of several slang terms. The word “Mara” is the term
used in El Salvador for “gang.” The phrase “Salvatrucha” is a
combination of the words “Salva,” which is an abbreviation for
“Salvadoran,” and “trucha,” which is a slang term for the warning
“fear us,” “look out,” or “heads up.”

...

MS-13 is a national and international criminal organization with
over 10,000 members regularly conducting gang activities in at
least twenty states and the District of Columbia, as well as in
Mexico, Honduras, Guatemala, and El Salvador. MS-13 is one of
the largest street gangs in the United States. Gang members
actively recruit members, including juveniles, from communities
with a large number of immigrants from El Salvador. Members,
however, can also have ethnic heritage from other Central

1
Because other co-defendants have pled guilty, are pending extradition, or (in one case) had all
federal charges dismissed, Messrs. Machado-Erazo, Martinez-Amaya, and Ayala are the only
remaining active defendants.

2
 American countries. In the United States, MS-13 has been
functioning since at least the 1980s.

...

[M]embers of MS-13 were expected to protect the name,
reputation, and status of the gang from rival gang members and
other persons. MS-13 members required that all individuals should
show respect and deference to the gang and its membership. To
protect the gang and to enhance its reputation, MS-13 members
were expected to use any means necessary to force respect from
those who show disrespect, including acts of intimidation and
violence. MS-13’s creed is exemplified by one of its mottos,
“Matar, robar, violar, controlar,” which translates in sum and
substance to, “Kill, steal, rape, control.”

...

MS-13 members were required to commit acts of violence to
maintain membership and discipline within the gang, including
violence against rival gang members or those they perceived to be
rival gang members, as well as MS-13 members and associates
who violated the gang’s rules. As a result of MS-13’s frequent use
of violence, innocent persons were often injured or killed.
Participation in criminal activity by an MS-13 member,
particularly violent acts directed at rival gang members or as
ordered by the gang leadership, increased the level of respect
accorded that member, resulting in that member maintaining or
increasing his position in the gang, and possibly resulting in
recognition as a leader

Id. ¶¶ 1, 3, 6, 7.

On February 1, 2012, well in advance of any of the scheduled trial dates in this

case, the government filed a Motion for Protective Order as to Proposed Expert Witness, Dkt.

114. 2 See also Gov’t Notice of Intent to Pursue Mot. [Dkt. 282] (stating that government would

pursue the protective-order motion in connection with the trial of these three defendants). In its

motion, the government asked the Court’s permission “to withhold the identity and personal

2
The defendants were divided into groupings for trial. See, e.g., Second Minute Order dated
Nov. 4, 2011. The earliest trial date would have been September 24, 2012. As of this date, only
the remaining three active Defendants have proceeded to trial.

3
information of a proposed expert witness,” Juan Diaz, whom the Government anticipated

offering as an expert witness “on the leadership, nature and activities of MS-13 in El Salvador

[and] its relationship to MS-13 in the United States.” Mem. Supp. Gov’t Mot. (“Gov’t Mem.”)

[Dkt. 114-1] at 1, 6. The government disclosed a summary of Mr. Diaz’s qualifications and

proposed testimony to defendants pursuant to Rule 16(a)(1)(6), but it asserted that “disclosure of

the witness’s true name, residence, place of birth, or specific place or manner of employment . . .

would expose this witness and/or his family unnecessarily to serious danger from retaliation.”

Id. at 6. The government also submitted a one-page affidavit from Juan Diaz under seal. See

Gov’t Notice of Filing (“Diaz Aff.”) [Dkt. 117].

Defendants filed an opposition on March 15, 2012, contending that their

Confrontation Clause rights under the Sixth Amendment required the Court to deny the

government’s request. 3 See Def. Opp. [Dkt. 128]. They argued that they needed access to Juan

Diaz’s true identity because without it, “defense counsel would be forced to leave the broad, self-

serving representations made by the government and ‘Juan Diaz’ unchallenged, as defense

counsel would not be able to conduct any independent investigation” into, inter alia, Mr. Diaz’s

credentials as an expert or potential impeachment material. Id. at 7.

The Court first addressed the government’s motion at a motions hearing held on

March 13, 2013. On that date, the Court reserved ruling on the motion and scheduled an ex

parte, sealed hearing to “evaluate the extent of the danger faced by the government’s proposed

expert witness.” See March 13, 2013 Order [Dkt. 305] at 1. On June 17, 2013, the day before

3
The opposition was filed on behalf of another defendant, Omar Aguilar, by Mr. Aguilar’s
counsel, Paul Kiyonaga and John Carney. The remaining three Defendants adopted Mr.
Aguilar’s opposition.

4
trial began, the Court held the ex parte, sealed hearing, at which Juan Diaz testified. 4 At the

hearing, Mr. Diaz expanded upon the information set forth in his sealed affidavit. The Court

summarizes his sworn affidavit and testimony in a general manner in this Opinion without

providing details that could be used to determine his identity.

Mr. Diaz is a seventeen-year veteran of Salvadoran National Civil Police who

presently holds the rank of investigator. His work includes investigating gangs, including MS-13

and 18th Street (Calle Dieciocho in Spanish). Mr. Diaz explained that members of Salvadoran

gangs, including MS-13, have put out kill orders, referred to as “green lights,” for members of

Salvadoran law enforcement who investigate gang activity. He also identified several examples

of menacing or violent activity undertaken by gangs with the express goal of intimidating law

enforcement, including during off hours or while law enforcement agents are at home. In his

affidavit, for example, Mr. Diaz identified an incident in late 2010 in which gang members in El

Salvador made videos threatening to harm judges, prosecutors, and government agents. He also

identified an incident on January 16, 2012, in which a 36-year-old, 10-year police veteran named

Juan Carlos Zepeda Burgos was killed in Ciudad Arce in El Salvador, and an incident on

February 14, 2011, in which Agent Hugo Max Gonzalez Rubio was killed in Apopa, El

Salvador, his body left in the street in a black plastic bag. According to Mr. Diaz, homicides of

police officers in El Salvador have increased since 2010. 5

4
Due to an unanticipated medical emergency, the case was transferred to Chief Judge Royce C.
Lamberth for trial following jury selection (held on June 14, 2013) and resolution of all pretrial
motions.
5
The government also observes: “In United States District Court for the Central District of
California, MS-13 members were indicted for, amongst other counts, conspiring to murder a Los
Angeles gang task force officer; that case is pending trial. On July 15, 2011, Walter Torres-
Duke, a member of MS-13, pled guilty in United States District Court for the Eastern District of
New York, to conspiring to murder an ICE agent who had investigated cliques in the Long Island
area.” Gov’t Mem. at 2.
5
 Mr. Diaz explained that, in trials in El Salvador, the names of witnesses whose

safety might be endangered are generally not disclosed. Instead, they are permitted to testify

using code names and numbers. He also explained that, while gangs often tolerate police

testimony in El Salvador, his proffered testimony in this case would be different and would

likely result in MS-13 issuing a green light against him for two reasons. First, gangs distinguish

between fact testimony given by officers about investigations they conducted personally, which

is seen as routine and fair, and expert testimony about MS-13 generally, which is viewed as a

provocation and is more likely to cause retribution. Second, MS-13 members believe that only

members may discuss the gang’s rules, so having a police officer testify about those rules in

court would be seen as a challenge to the gang.

Mr. Diaz explained that he and his family would be at risk if his real name or

identifying information were released, noting that senior members of MS-13 are aware of cases

in the United States involving MS-13 and would be likely to learn of his involvement. Asked by

the Court how serious the danger was, Mr. Diaz testified: “It would be a serious risk for me . . . if

it were an open case, if my name were to come out or my picture were to come out.” He also

stated that, because of MS-13’s presence in the United States, the gang would be required to

carry out a green light in either country.

At the conclusion of the hearing, the Court granted the government’s motion,

noting that “Mr. Diaz’s testimony established imminent and grave risk to his safety and his

family’s safety if his real name were used.” See June 17, 2013 Protective Order [Dkt. 372] at1.

The Court directed that Mr. Diaz be permitted to testify at trial under pseudonym, that the

government could withhold from Defendants and their counsel Mr. Diaz’s true identity

(“including but not limited to: home and work address, specific employment, date of birth, El

6
Salvadoran identification number, and place of birth”), and that “counsel for Defendants [could]

not in any way seek to elicit testimony or seek to admit evidence before the jury concerning the

expert witness’s true identity or the fact that his identity before the jury [was] a pseudonym.” Id.

at 1–2.

Mr. Diaz testified at trial on June 18 and 20, 2013. The Court permitted him to

offer testimony as an expert “on MS-13 in El Salvador, its structure, its rules and activities.”

June 18, 2013 P.M. Trial Tr. at 10, 15. As proffered by the government, Gov’t Mem. at 3, he did

not “testify about any particular defendant or his activities.” Although counsel for Mr. Machado-

Erazo conducted a voir dire of Mr. Diaz, no defendant objected to Mr. Diaz testifying as an

expert. The Court has not been made aware of any issues of compliance with the protective

order.

II. ANALYSIS

A. The Nature of the Right of Confrontation

“In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause

guarantees criminal defendants the right to confront witnesses offering testimonial evidence in

court and to cross-examine those witnesses. See Crawford v. Washington, 541 U.S. 36, 51

(2004) (“[T]he principal evil at which the Confrontation Clause was directed was the civil-law

mode of criminal procedure, and particularly its use of ex parte examinations as evidence against

the accused.”). Defendants thus generally have the right to question an adverse witness about

identifying information, including name and address. See Smith v. Illinois, 390 U.S. 129, 131

(1968) (“[T]he very starting point in exposing falsehood and bringing out the truth through cross-

examination must necessarily be to ask the witness who he is and where he lives.”). The right to

a witness’s identity, however, is not absolute. See, e.g., Chavis v. North Carolina, 637 F.2d 213,

7
226 (4th Cir. 1980) (“[C]ases have held that a trial court may limit cross-examination if the

information sought could endanger the witness.”); Smith, 390 U.S. at 133–34 (instructing that a

trial court may limit otherwise permissible questions if they would endanger the witness) (White,

J., concurring).

As the Supreme Court stated in the context of requiring the government to reveal

the identity of a non-testifying confidential informant:

We believe that no fixed rule with respect to disclosure is
justifiable. The problem is one that calls for balancing the public
interest in protecting the flow of information against the
individual’s right to prepare his defense. Whether a proper balance
renders nondisclosure erroneous must depend on the particular
circumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
informer’s testimony, and other relevant factors.

Roviaro v. United States, 353 U.S. 53, 62 (1957).

In balancing the defendants’ ability to cross-examine effectively with a witness’s

safety, a number of cases have held that a trial court may protect the true identity of a testifying

witness for that witness’s safety. See United States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir.

2012); United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011); Siegfriedt v. Fair, 982 F.2d 14,

17 (1st Cir. 1992); United States v. Rangel, 534 F.2d 147, 148 (9th Cir. 1976); 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. . . . Under almost all circumstances, [however,] the true name of the witness must be

disclosed.”); cf. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (Trial judges possess “wide

latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, the witness’[s] safety, or

interrogation that is repetitive or only marginally relevant.”). In such cases, the government

8
bears the burden in demonstrating “that the threat to the witness is actual and not a result of

conjecture.” Ramos-Cruz, 667 F.3d at 500 (quoting Palermo, 410 F.2d at 472). In doing so, the

government need not tie a threat to specific defendants. See United States v. Celis, 608 F.3d 818,

832 (D.C. Cir. 2010) (“The appropriateness of using pseudonyms to protect witnesses does not

depend on whether the threat to the witness comes directly from a defendant or from another

source.”). To the extent possible, however, courts encourage disclosure of background material

to defendants to permit cross-examination to be as effective as possible. E.g., El-Mezain, 664

F.3d at 492 (“The Government disclosed to the defense over twenty volumes of material that Avi

used to formulate his expert opinion about Hamas financing. Moreover, the Government agreed

in pretrial filings that the defense would be permitted to ask Avi about his background, his

training and experience with the ISA, his legal education, and his potential bias in favor of

Israelis in the West Bank.”).

B. Factually Similar Fourth & D.C. Circuit Cases

The government relies heavily on Fourth Circuit precedent endorsing the exact

procedure it proposes here with respect to expert testimony offered in trials in the District of

Maryland by this same Juan Diaz. See Gov’t Mem. at 3–4. The government explains:

In August 2005, in the District of Maryland, one of the first
indictments charging MS-13 members with RICO conspiracy and
other racketeering acts was returned against more than twenty MS-
13 members. Several trials were held over the years, resulting in
convictions for RICO conspiracy, VICAR murder and assault, and
other crimes against all those who had been indicted. The El
Salvadoran police officer who has been noted as an expert in the
instant case testified at many of those trials, using the pseudonym
“Juan Diaz.” During the discovery process for each trial, the
Honorable Deborah Chasanow, a United States District Judge for
the District of Maryland, after reviewing affidavits and receiving in
camera testimony from [Mr.] Diaz, issued a protective order
permitting the government to withhold Juan Diaz’s actual identity
from the defense. Moreover, the court ruled each time that [Mr.]
Diaz could testify under the pseudonym because revealing his
9
 name or other personal information could pose a substantial risk to
his or his family’s safety. [Mr.] Diaz testified in those trials about
the nature and activities of MS-13 in El Salvador; he did not testify
about any particular defendant or his activities.

Id. (citing United States v. Cruz et al., Cr. No. 8:05-cr-393-DKC (D. Md. filed Aug. 23, 2005)).

The Fourth Circuit upheld complete withholding of Juan Diaz’s true identity in

different trials on three occasions: United States v. Argueta, 470 F. App’x 176, 179–80 (4th Cir.),

cert. denied, 133 S. Ct. 524 (2012); United States v. Ramos-Cruz, 667 F.3d 487, 500–01 (4th Cir.

2012) (no petition for certiorari filed); United States v. Zelaya, 336 F. App’x 355, 357–58 (4th

Cir. 2009), cert. denied, 130 S. Ct. 2341 (2010).

The Fourth Circuit’s first decision was in Zelaya, in which the court stated that a

judge can restrict information about a witness on cross-examination if the government showed a

danger to the witness’s safety that was “actual and not a result of conjecture.” 336 F. App’x at

358 (quoting Palermo, 410 F.2d at 472). When the government makes such a showing, the judge

must then determine “whether the information must be disclosed in order not to deny effective

cross-examination.” Id. (quoting Palermo, 410 F.2d at 472). Applying that standard, the Zelaya

court held:

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.”
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.

10
Id. (citation omitted).

In Ramos-Cruz, the Fourth Circuit adopted the reasoning of Zelaya and upheld the

district court’s decision to withhold “Juan Diaz’s” (and one other witness’s) true identity from

defense counsel and to permit pseudonymous testimony. Ramos-Cruz, 667 F.3d at 500–01. The

convictions were affirmed unanimously, but one judge dissented from the panel’s holding on the

pseudonymous-testimony issue.

In Ramos-Cruz, the witnesses submitted in camera affidavits “explaining the

specific threat to them were their identities revealed.” Id. at 501. Because the affidavits were

sworn in 2006 and 2007, well in advance of trial, the district court “conducted an ex parte

hearing and examined the two El Salvadorian officers to determine whether the disclosure of

their names, addresses, or dates and places of birth to the defendant would continue to pose a

danger to the officers and their families.” Id. At the hearing, the district court concluded that the

threat was still extant and granted the requested protective order.

Ramos-Cruz found no abuse of discretion in withholding the witnesses’ identities.

The court found that the witnesses “specifically explained the heightened level of danger to

which El Salvadorians who testify against MS-13 in U.S. Courts are subject. They then

connected that threat to the specific investigative work they perform.” Id. Such specificity was

sufficient to grant the protective order. Id. The Ramos-Cruz court also emphasized “the limited

focus of the witnesses’ testimony.” Id. The witnesses did not offer any direct evidence

involving Mr. Ramos-Cruz or his activities; instead, “[t]hey merely provided background

information about the internal working of MS-13 generally.” Id.

The Fourth Circuit treated Argueta as a straightforward case in which Ramos-

Cruz “controlled.” 470 F. App’x at 179. It again found “no abuse of discretion in the district

court’s decision to allow Mr. Diaz to testify under the pseudonym without disclosing any
11
identifying information to Argueta’s defense counsel.” Id. at 180. In reaching that conclusion,

the Fourth Circuit stated:

As was the case in Ramos–Cruz, the government provided Argueta
with the substance of Mr. Diaz’s testimony, which 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.

The defendants in this case argue that relying on the Fourth Circuit cases is

inconsistent with the D.C. Circuit’s opinion in United States v. Celis, 608 F.3d 818 (D.C. Cir.

2010). 6 In Celis, the government sought a protective order from the district court similar to the

one sought here. Id. at 829 (“[T]he government had filed under seal a motion in limine seeking a

protective order barring the release of the true identities of witnesses from Colombia and

allowing these witnesses to testify under pseudonyms.”). The district court granted the motion in

part. Instead of completely protecting the identities of the witnesses, the trial judge required the

government, seven days before the witness was to testify, to disclose the witnesses’ true

identities to defense counsel, the defendant, and one member of the defense team located in the

United States. Id. The true identities could also be shared with individuals in Colombia but only

with prior approval from the Court. Id. Finally, the witnesses were allowed to testify under

pseudonyms. Id.

6
The defendants in Celis were associated with Fuerzas Armadas Revolucionaras de Colombia
(“FARC”), “the most significant drug trafficking organization in Colombia.” Celis, 608 F.3d at
826.

12
 On appeal, the D.C. Circuit approved the use of the protective order based on the

specific facts of that case. See 608 F.3d at 833 (“The protective order and its management by the

district court reflect an appropriate balancing of interests in the relevant case-specific context in

view of the factors described in Alford and Smith as well as Roviaro, 353 U.S. at 61–62”). The

Celis court reasoned:

The district court balanced the reality of potentially life-threatening
dangers to the protected witnesses and their families, and the
defense need to prepare to cross-examine the protected witnesses
by allowing defense access to the true identities of the protected
witnesses days before their testimony and, when shown to be
necessary for those purposes, allowed investigation using these
true identities in the United States and in Colombia.

Id.

C. Application to this Case

Defendants’ opposition to the procedure proposed by the government depends on

the argument that this Circuit’s precedent, Celis, is inconsistent with the Fourth Circuit’s

precedent in Ramos-Cruz and the related cases. See Def. Opp. at 5 (“[T]he Ramos-Cruz and

Zelaya opinions[ ] are inconsistent with the jurisprudence of the Supreme Court as demonstrated

above and do not reflect the law in this Circuit.”). Put another way, Defendants assert that Celis

stands for the proposition that complete withholding of a witness’s true identity is impermissible

in the D.C. Circuit; instead, at the very least, the defense must have at least some access to the

real name of the witness for investigative purposes. Id. (arguing that Celis “affirmed the use of

pseudonyms during testimony primarily because the true identities of the witnesses were shared

with defense counsel”).

Closer reading of Celis confirms that the D.C. Circuit was not adopting a per se

rule requiring disclosure of a witness’s true identity. The Celis court endorsed the procedure

followed by the district court on the facts of that case, 667 F.3d at 833 (referring to “an

13
appropriate balancing of interests in the relevant case-specific context”), but it did not purport to

make that procedure a binding minimum standard of disclosure. Thus, Celis is consistent with

Ramos-Cruz and the Fourth Circuit cases, establishing that the district court must balance

witness safety with a need to give meaning to the Confrontation Clause right. Id. (“The

protective order and the district court’s management of it involved a delicate balancing of

interests necessitated by extraordinary circumstances warranting special measures to protect key

witnesses”). Celis cautions that courts must make careful factual findings, doing everything

possible to make sure that defendants receive the information that they can, but it does not create

a per se rule of disclosure.

“[T]aking into consideration the crime charged, the possible defenses, the possible

significance of the informer’s testimony, and other relevant factors,” and after “balancing the

public interest in protecting the flow of information against the individual’s right to prepare his

defense,” see Roviaro, 353 U.S. at 62, the Court granted the government’s motion because the

threat to Juan Diaz is “actual and not a result of conjecture.” Ramos-Cruz, 667 F.3d at 500.

Review of Mr. Diaz’s affidavit, as well as his testimony at the sealed ex parte hearing,

demonstrated that Salvadoran law enforcement agents who provide testimony against MS-13

face a grave and immediate danger of violent, likely fatal, retribution. This showing is at least as

great as that accepted by the Fourth Circuit in Ramos-Cruz and the related cases. See id. at 501

(“The witnesses here, however, specifically explained the heightened level of danger to which El

Salvadorians who testify against MS–13 in U.S. courts are subject. They then connected that

threat to the specific investigative work they perform in El Salvador. We believe that this level of

specificity is sufficient.”). Crucially, Mr. Diaz testified that the danger to law enforcement

officers who testify against MS-13 is ongoing and, in fact, has increased since 2010. He also

14
made clear that, because MS-13’s reach crosses the thousands of miles between the United States

and El Salvador, gang members are quite capable of learning of his expert testimony in this case

and, if they did, would likely retaliate because they would view it as a threat or provocation, far

more threatening to them than his normal investigative work in El Salvador. The Court thus

found that Juan Diaz, as well as his family, would face grave, actual danger if he were to give the

proffered testimony under his true name.

The inquiry thus shifted to whether the Defendants’ right to cross-examination

could be preserved without access to Juan Diaz’s true identity. See El-Mezain, 664 F.3d at 492

(discussing nature of information disclosed to the defense and concluding that the “defense was

therefore well-armed with information upon which to confront and cross-examine both Avi and

Major Lior,” who testified under pseudonym). The Court concluded that it could. Here, as in

Ramos-Cruz and the other Fourth Circuit cases, the government disclosed a summary of Juan

Diaz’s qualifications and expert testimony to the Defendants pursuant to Fed. R. Crim. P.

16(a)(1)(G). See Ramos-Cruz, 667 F.3d at 501 (noting that the government “disclosed the

substance of the testimony the two witnesses in question would provide at trial”). Through the

government’s steadfast reliance on the Maryland MS-13 cases, Defendants were on notice that

this same Juan Diaz had testified several times in that district under the same pseudonym, and

they could have procured transcripts of his testimony in those cases to prepare themselves. In

addition, the government proffered that Mr. Diaz would testify generally at trial about his

credentials and qualifications as an expert witness on MS-13 and would be subject to cross-

examination about them. 7 Because the Defendants had access to Juan Diaz’s expert report, a

7
Mr. Diaz’s trial testimony bore the government’s proffer out precisely. Mr. Diaz testified and
was subject to an extensive voir dire about his qualifications and knowledge base, all without
revealing any personal identifying information.

15
summary of his qualifications, and his prior testimony, they had access to almost the entire

universe of possible ammunition for cross-examination. See El-Mezain, 664 F.3d at 492–93

(noting that defendants were able to demonstrate, inter alia, pseudonymous expert’s “lack of

knowledge and familiarity with the subject matter” and bias). Additionally, as in the Maryland

MS-13 cases, “Juan Diaz” was only offered to provide “background information about the

internal working of MS-13 generally,” not to give factual testimony about any activities

undertaken by these specific defendants. 8 Ramos-Cruz, 667 F.3d at 501 (emphasizing “the

limited focus of the witnesses’ testimony”). That Juan Diaz would only provide background

information on MS-13 is an important distinction between this case and Celis, in which the

witnesses shielded by the protective order were “insider witnesses” who lived in Colombia and

testified “about their own involvement with appellants and the FARC in drug trafficking.” Id. at

830 n.5 & 833. The more general nature of his testimony and the Defendants’ ready access to

impeachment material about that testimony distinguished these facts from, for example, a

pseudonymous eyewitness whose background and expected testimony are a mystery to the

accused.

These factors show that, even without Mr. Diaz’s true identity, Defendants had an

opportunity for effective cross-examination. See Van Arsdall, 475 U.S. at 679 (“[T]he

Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense might wish.”

(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985))). Accordingly, “when . . . safety

concerns are balanced against the defendants’ ability to conduct meaningful cross-examination,

the scale tips in favor of maintaining the secrecy of the witnesses’ names.” See El-Mezain, 664
8
Again, the government was true to its word at trial. Mr. Diaz only gave general testimony
about MS-13, never touching on the specific acts allegedly committed by these Defendants.

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F.3d at 492; see also Roviaro, 363 U.S. at 62 (requiring the Court to “balance[e] the public

interest in protecting the flow of information against the individual’s right to prepare his

defense”).

III. CONCLUSION

For the foregoing reasons, when the need to preserve the Defendants’ right to

effective cross-examination was balanced with the genuine and continuing threat to the safety of

Juan Diaz and his family, the Court found that Juan Diaz could testify as an expert witness on the

structure and operations of MS-13 in El Salvador without disclosure of his true name or personal

identifying information to the defense. The Court thus granted the Government’s Motion for

Protective Order as to Proposed Expert Witness, Dkt. 114.

DATE: June 28, 2013

/s/
ROSEMARY M. COLLYER
United States District Judge

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