UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5018
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR OMAR LOBO-LOPEZ, a/k/a Joker,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:08-cr-00194-TSE-1)
Argued: December 7, 2011 Decided: March 1, 2012
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Lana Marie Manitta, RICH ROSENTHAL BRINCEFIELD MANITTA
DZUBIN & KROEGER, LLP, Alexandria, Virginia; John Cady Kiyonaga,
KIYONAGA & KIYONAGA, Alexandria, Virginia, for Appellant.
Morris Rudolph Parker, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H.
MacBride, United States Attorney, Patricia T. Giles, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On May 5, 2007, MS-13 member Oscar Omar Lobo-Lopez shot
18th Street member Melvin Reyes with a .380 caliber semi-
automatic handgun while he and another MS-13 member, Amador,
pursued Reyes. When Reyes fell to the ground, Lobo-Lopez stood
by while Amador used his .38 caliber revolver to kill Reyes with
several shots at close range. The two men then fled the scene
in a car with three other MS-13 members.
A federal grand jury charged Lobo-Lopez with conspiracy to
commit murder in aid of racketeering activity, in violation of
18 U.S.C. § 1959(a)(5); murder in aid of racketeering activity,
in violation of 18 U.S.C. § 1959(a)(1); and use of a firearm
during a crime of violence causing death, in violation of 18
U.S.C. §§ 2, 924(c)(1)(A), (j). On April 21, 2009, a jury found
Lobo-Lopez guilty on all three counts.
Lobo-Lopez now appeals his conviction, alleging that the
district court erred in admitting expert testimony and in
denying his motions to compel discovery, motion for judgment of
acquittal, and motions for a new trial. We address each of his
contentions in turn and affirm the district court.
I.
Prior to trial, Lobo-Lopez moved to compel discovery of the
identity of individuals who provided information to the
2
government regarding Reyes’s murder, asserting that Brady v.
Maryland, 373 U.S. 83 (1963), required disclosure. The district
court granted Lobo-Lopez’s motion as to two of the individuals,
but denied it as to the others. “In reviewing the district
court’s denial of [a] Brady motion, we review its legal
conclusions de novo and its factual findings for clear error.”
United States v. King, 628 F.3d 693, 702 (4th Cir. 2011).
Brady requires prosecutors to disclose “evidence favorable
to an accused upon request . . . where the evidence is material
either to guilt or to punishment.” 373 U.S. at 87.
Accordingly, prosecutors violate Brady when they fail to
disclose impeachment material or exculpatory evidence that with
reasonable probability would change the outcome of the trial.
United States v. Bagley, 473 U.S. 667, 682 (1985). To establish
a Brady violation, “[t]he evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
As the district court noted, although we have previously
indicated that knowledge of an eyewitness’s identity may
constitute Brady material that is “favorable to the accused,”
see, e.g., Monroe v. Angelone, 323 F.3d 286 (4th Cir. 2003);
Sennett v. Sheriff of Fairfax Cnty., 608 F.2d 537 (4th Cir.
3
1979), we have also ruled that Brady does not require disclosure
of such information on “the remote possibility that [it]
would . . . help[] the defense,” United States v. Polowichak,
783 F.2d 410, 414 (4th Cir. 1986).
Here, the district court denied Lobo-Lopez’s motion as to
the individuals that form the subject of his appeal because he
neglected to show that the individuals’ likely testimony would
prove exculpatory. For example, Lobo-Lopez requested disclosure
of the identity of Witnesses #8, 9, 11, and 21 because they were
“eyewitnesses to the offense and/or the perpetrators’ actions
directly before and after the shooting.” Lobo-Lopez argued that
the government “fail[e]d to pursue an identification of the
perpetrators” because it did not ask these eyewitnesses to
select the perpetrators from a photo array. Moreover, he
asserted that access to these individuals would prove “material
and helpful to the defense.”
Similarly, as to Witnesses #14, 17, 19, 20, 21, and ASO 17,
Lobo-Lopez argued that because these individuals “provided
information to police about threats made against the victim by
various persons,” their testimony “increas[ed] the pool of
potential shooters” and access to their identity would be
“relevant and helpful to the defense.” Nevertheless, the
district court declined to grant Lobo-Lopez’s motion because he
failed to “show[] that these individuals’ likely testimony would
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either tend to exculpate . . . Lobo-Lopez or impeach the
credibility of one of the government’s witnesses.”
Finally, as to Witness #11, Lobo-Lopez maintained that
because Witness #7 reported that Witness #11 saw three
individuals in a breezeway prior to the shooting and the only
individual holding what Witness #11 thought was a .38 caliber
revolver did not match Lobo-Lopez’s description at the time,
access to Witness #11’s identity could produce exculpatory
testimony or testimony that would impeach Witness #7, who
“stated that two individuals in the breezeway had guns.” But
the district court declined to hold that Witness #11’s testimony
would prove exculpatory, reasoning that because “one of the
other individuals Witness [#]11 described as helping to load the
gun could [have been] Lobo-Lopez” and because “the government’s
theory of the case [was] that the victim was killed by two
shooters, one with a .38 revolver and one with a [.]380 handgun,
Witness [#]11’s likely testimony [would] not [be] favorable for
. . . Lobo-Lopez.”
Our review of the district court’s decision indicates that
it carefully considered the likely testimony that each of these
individuals would offer and whether that testimony would impeach
a government witness or prove exculpatory. Although we
recognize that Witness #11 might have impeached Witness #7, we
cannot conclude that such impeachment would have changed the
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outcome of the trial. Accordingly, we hold that the district
court did not err in denying Lobo-Lopez’s motion.
II.
Lobo-Lopez also made a pre-trial motion to disallow expert
testimony by Detective Saa and now appeals the district court’s
denial of that motion. Lobo-Lopez contends (1) that Saa lacked
qualifications to testify as an expert and (2) that Saa’s
testimony constituted hearsay and violated the Confrontation
Clause.
“We review for abuse of discretion the district court’s
decision to admit expert testimony under Federal Rule of
Evidence 702.” United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007). 1 Lobo-Lopez avows that Saa lacked appropriate
credentials to testify as an expert because the formal education
listed on his curriculum vitae consisted of instruction from “a
1
Federal Rule of Evidence 702 provides as follows:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods
reliably to the facts of the case.
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state approved Criminal Justice Academy” and “specialized
training in the investigation and interdiction of street gangs.”
We disagree.
Saa is a detective with the Herndon Police Department,
Criminal Investigation Section, and has been assigned to the
Northern Virginia Regional Gang Task Force since 2007. Saa’s
duties include “the investigation [and] information
dissemination of gang intel and gang investigation.”
Approximately eighty-five percent of Saa’s gang investigation
focuses on MS-13. Saa has received training at conferences on
the investigation of gangs’ criminal activity in the United
States and in El Salvador. He has also provided training to
other law enforcement officers on MS-13 and 18th Street. Saa
has led MS-13 investigations and conducted surveillance on MS-13
gang activity. He testified that he has participated in
surveillance of MS-13 activity approximately fifty times and
that he has interviewed approximately fifty MS-13 members during
his career.
Rule 702 does not require that a court rely solely on an
individual’s education to qualify him as an expert. Rather,
“the text . . . expressly contemplates that an expert may be
qualified on the basis of experience.” Id. at 274 (quoting Fed.
R. Evid. 702 advisory committee’s note) (internal quotation
marks omitted). Here, Saa testified to extensive experience in
7
investigating MS-13, surveilling MS-13, interviewing MS-13
members, and training law enforcement on MS-13 and 18th Street.
Accordingly, we cannot conclude that the district court abused
its discretion in qualifying Saa as an expert on MS-13.
Nor do we conclude that the district court abused its
discretion in admitting Saa’s testimony over Lobo-Lopez’s
contention that it was hearsay and violated the Confrontation
Clause. The Confrontation Clause bars the “admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a
prior opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 53–54 (2004). Notably, however,
although “Crawford forbids the introduction of testimonial
hearsay as evidence in itself, . . . it in no way prevents
expert witnesses from offering their independent judgments
merely because those judgments were in some part informed by
their exposure to otherwise inadmissible evidence.” United
States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). “An
expert witness’s reliance on evidence that Crawford would bar if
offered directly only becomes a problem where the witness is
used as little more than a conduit or transmitter for
testimonial hearsay, rather than as a true expert whose
considered opinion sheds light on some specialized factual
situation.” Id.
8
Significantly, although Lobo-Lopez contends that Saa’s
testimony violated the Confrontation Clause, he neglects to cite
any examples of problematic statements. Our review of Saa’s
testimony indicates that he did not simply act as a conduit for
transmitting testimonial hearsay, but instead offered statements
that “shed light on” the internal structure, rules, terminology,
and methods of MS-13. Accordingly, we conclude that his
testimony comported with Crawford and affirm the district
court’s decision to admit it.
III.
During trial, Lobo-Lopez requested a jury instruction that
required the government to prove that MS-13 has a substantial
effect on interstate commerce, and the district court denied the
request. We review de novo whether a district court properly
instructed a jury on the statutory elements of an offense,
United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996), but we
review the content of the instruction and a court’s decision to
give it for abuse of discretion, United States v. Lighty, 616
F.3d 321, 366 (4th Cir. 2010).
A district court’s refusal to give a proffered jury
instruction is reversible error when the instruction “(1) was
correct; (2) was not substantially covered by the court’s charge
to the jury; and (3) dealt with some point in the trial so
9
important, that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his
defense.” Id. (quoting United States v. Passaro, 577 F.3d 207,
221 (4th Cir. 2009)) (internal quotation marks omitted).
Establishing a § 1959 claim requires the government to
prove 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 in
question 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)
(quoting United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.
1992)) (internal quotation marks omitted). A RICO “‘enterprise’
includes . . . any union or group of individuals associated in
fact although not a legal entity, which is engaged in, or the
activities of which affect, interstate or foreign commerce.” 18
U.S.C. § 1959(b)(2).
Lobo-Lopez claims that a circuit split exists regarding
whether a criminal enterprise must have a substantial effect on
interstate commerce or a de minimus effect. But we have
previously indicated that “evidence of [an] enterprise’s
connection with interstate commerce” need not be “copious” and
that the “standard required to satisfy the interstate commerce
requirement” is “minimal.” United States v. Gray, 137 F.3d 765,
10
772–73 (4th Cir. 1998); see also United States v. Crenshaw, 359
F.3d 977, 985 n.3 (8th Cir. 2004) (citing Gray and noting that
“other courts have held that the enterprise need only have a
minimal effect on interstate commerce in individual cases under
§ 1959”). Because Lobo-Lopez’s proposed instruction was
incorrect, we conclude that the district court did not abuse its
discretion in declining to give it.
IV.
Lobo-Lopez complains that the government failed to prove
that MS-13 is an enterprise as required for establishment of a
§ 1959 claim and appeals the district court’s denial of his
motion for judgment of acquittal and a new trial on that basis.
“We review the denial of [Lobo-Lopez’s] motion for judgment
of acquittal de novo.” United States v. Hickman, 626 F.3d 756,
762 (4th Cir. 2010). “‘[V]iewing the evidence in the light most
favorable to the [g]overnment,’ we are to determine whether the
conviction is supported by ‘substantial evidence,’ where
‘substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion . . . beyond a reasonable doubt.’” Id. (first
alteration in original) (citation omitted) (quoting United
States v. Young, 609 F.3d 348, 355 (4th Cir. 2010); United
States v. Bynum, 604 F.3d 161, 166 (4th Cir. 2010)). We review
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the denial of a motion for a new trial for abuse of discretion.
United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).
As noted above, a RICO “‘enterprise’ includes . . . any
union or group of individuals associated in fact although not a
legal entity, which is engaged in, or the activities of which
affect, interstate or foreign commerce.” 18 U.S.C.
§ 1959(b)(2). “Such an enterprise may be any group of
individuals associated in fact, and the earmarks of association
are ‘continuity, unity, shared purpose, and identifiable
structure.’” Gray, 137 F.3d at 772 (quoting Fiel, 35 F.3d at
1003).
Lobo-Lopez argues that the government failed to present
substantial evidence of an enterprise because (1) “[n]o
government witness described a global mission, common purpose[,]
or undertaking uniting members of MS-13[] beyond the diffuse
commission of violent acts,” and (2) no “witness describe[d] any
structure of leadership or means of coordinated action for MS-
13.” Contrary to Lobo-Lopez’s contention, however, the
government presented substantial evidence of MS-13’s
“continuity, unity, shared purpose, and identifiable structure.”
Saa relayed that MS-13 exists “[t]hroughout the United
States, and in Central America and in Canada” and that its
purpose “is to instill fear and terror in the community” by
committing violent acts. He also indicated that MS-13 “has its
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own distinct separate cliques, and it has a leadership structure
within those cliques.” Saa further testified that members
identify themselves by wearing blue and white, through
handshakes, and sometimes with tattoos; and that members are
instructed to follow rules such as not cooperating with law
enforcement, attacking rival gang members “on sight,” and never
leaving “a fellow gang member behind.” Violating these rules
results in a “physical beating” or death. Additionally, another
government witness testified that individuals join MS-13 through
an initiation process known as “jumping in,” where gang members
beat the initiant, and after joining, they attend clique
meetings and pay dues.
In our view, such testimony provides evidence that “a
reasonable finder of fact could accept as adequate and
sufficient” to conclude that MS-13 is an enterprise.
Accordingly, we hold that the district court did not err in
denying Lobo-Lopez’s motions for judgment of acquittal and a new
trial on the ground that the government failed to prove that MS-
13 is an enterprise.
V.
Approximately two months prior to Lobo-Lopez’s trial,
Amador pled guilty to murdering Reyes. Amador subsequently told
the government details about the circumstances of the murder and
13
implicated three other MS-13 members—Flecha, Snarf, and Ciego—in
addition to himself and Lobo-Lopez. In March 2009, the
government located Flecha at a detention facility in New York
and attempted to interview him about the murder, but Flecha
refused to comment on the murder.
The government interviewed Ciego in late March 2009. Ciego
confirmed that he, Flecha, and Snarf were involved in the
murder, but denied Lobo-Lopez’s and Amador’s involvement. Ciego
also implicated a young MS-13 member, but claimed that he could
not remember his name. Within days of receiving this
potentially exculpatory information, the government told defense
counsel what Ciego shared and provided his name and address.
Defense counsel subsequently contacted Ciego and informed the
government that although Ciego intended to invoke his Fifth
Amendment right against self-incrimination, counsel would
nonetheless introduce Ciego’s exculpatory statements under a
hearsay exception. At trial, however, counsel made no attempt
to introduce the statements.
After trial, Lobo-Lopez, alleging a Brady violation, moved
to compel disclosure of “all FBI 302s reporting statements
pertaining to [specified witnesses, including Ciego and Flecha], 2
2
Although Lobo-Lopez named several individuals in his
motion, his appeal, with the exception of a brief point
(Continued)
14
as well as any documents reflecting or pertaining to any alleged
participation in or knowledge of the crime by any of them, and
any documentation pertaining to the whereabouts—or any change
thereof—of any of them since May 5, 2007.” The district court
denied this motion, stating that (1) knowledge of Flecha’s
identity and contact information was unlikely to prove
exculpatory because Flecha “offered the government no
information relating to the Reyes murder, let alone information
supporting defendant’s case” and (2) the government had
disclosed all exculpatory information that it received regarding
Ciego. Lobo-Lopez also filed a motion for a new trial on
similar grounds, but the district court denied this motion as
well.
On appeal, Lobo-Lopez asserts that the district court
erred. He first contends that access to all of the FBI 302s
regarding Ciego would have aided his decision about whether to
present Ciego’s exculpatory statements at trial and would have
supplied “background information providing others with a motive
for the crime.” He also contends that access to Flecha’s
identity and contact information could have provided statements
that “would have impeached the only acknowledged participant to
regarding one witness that was not raised below, addresses the
district court’s ruling only as to Flecha and Ciego.
15
have testified, co-defendant Dado,” or that would have
corroborated Ciego’s account of events. We disagree. As to
Ciego, the government promptly provided defense counsel with his
name and contact information, and with his exculpatory
statements. Accordingly, Lobo-Lopez had sufficient information
with which to interview Ciego prior to trial and acquire the
same information that the government obtained. Furthermore,
because Flecha categorially declined to discuss the Reyes murder
with the government, Lobo-Lopez cannot show that access to his
identity and contact information would have proven exculpatory.
Thus, we uphold the district court’s decision to deny Lobo-
Lopez’s motions.
VI.
Finally, Lobo-Lopez argues that the district court erred in
denying his motion for a new trial based on newly discovered
evidence. We have specified five requirements for granting a
new trial under Federal Rule of Criminal Procedure 33 for “newly
discovered evidence”:
(a) The evidence must be, in fact, newly discovered,
i.e., discovered since the trial; (b) facts must be
alleged from which the court may infer diligence on
the part of the movant; (c) the evidence relied on,
must not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it
must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably
produce an acquittal.
16
Mills v. United States, 281 F.2d 736, 738 (4th Cir. 1960)
(quoting Johnson v. United States, 32 F.2d 127, 130 (8th Cir.
1929)) (internal quotation marks omitted). Moreover, “a new
trial should be granted only when the evidence weighs heavily
against the verdict.” United States v. Arrington, 757 F.2d
1484, 1486 (4th Cir. 1985). We review the denial of a motion
for a new trial under Rule 33 for abuse of discretion. United
States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).
After Lobo-Lopez’s trial, an incarcerated MS-13 member
“provided information to federal law enforcement officers about
a hit on an 18th Street member” occurring in late summer 2007.
The individual indicated that he was at a house frequented by
gang members when “a call came in that an 18th St[reet] member
had been killed.” He indicated that Lobo-Lopez and Amador were
at the house when the call came in and that “approximately 40
minutes later, two men came to the house and received
congratulations.” The individual identified one of the men who
received congratulations in a photograph, but, notably, further
investigation revealed that this man was incarcerated at the
time of the Reyes murder. The individual also told law
enforcement officers that he had spoken with Ciego in jail and
that Ciego told him that (1) Lobo-Lopez was not present at the
murder and (2) Amador pled guilty because his parents urged him
17
to and because he believed that “‘too many witnesses’ would say
he was” present at the murder.
When Lobo-Lopez moved for a new trial based on this
evidence, the district court denied the motion for two reasons.
First, the court held that Lobo-Lopez had failed to satisfy the
requirements of Rule 33 because the “new evidence [was]
comprised entirely of inadmissible hearsay.” Drawing on our
precedent, the court noted that inadmissible evidence could not
form the basis of a new trial motion. See United States v.
MacDonald, 779 F.2d 962, 964 (4th Cir. 1985). At best, the
court reasoned, “[t]he statements could only be admitted for an
impeachment purpose and impeaching evidence is not a valid basis
for a new trial.”
Second, the court reasoned that even if the statements were
admissible, they were “simply not credible in light of evidence
that the . . . MS-13 member alleged by the inmate to have
participated in the Reyes murder was actually incarcerated at
the time of the murder.” Accordingly, the court held that
because the “evidence—if admissible—would be afforded little
credence by a jury at a new trial,” Lobo-Lopez failed to carry
his burden of showing that the evidence “would likely result in
acquittal.”
We agree with the district court. The “newly discovered
evidence” that Lobo-Lopez offered either was not based on
18
personal knowledge or was incredible. Thus, it cannot meet the
threshold necessary for granting a new trial and the district
court did not abuse its discretion in concluding as much.
VII.
For the foregoing reasons, we affirm Lobo-Lopez’s
conviction.
AFFIRMED
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