PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 08-5174
ISRAEL ERNESTO PALACIOS, a/k/a
Homie,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District Judge.
(8:05-cr-00393-DKC-14)
Argued: March 22, 2012
Decided: April 30, 2012
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Agee and Judge Diaz joined.
COUNSEL
ARGUED: Peter Linn Goldman, Alexandria, Virginia, for
Appellant. Robert K. Hur, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. PALACIOS
ON BRIEF: Rod J. Rosenstein, United States Attorney, Bal-
timore, Maryland, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Appellant Israel Ernesto Palacios (a.k.a. "Homie") was con-
victed by a jury of a number of crimes arising from his
involvement in the street gang La Mara Salvatrucha, other-
wise known as MS-13. Specifically, the jury found him guilty
of conspiracy to participate in a racketeering enterprise, in
violation of 18 U.S.C. § 1962(d); conspiracy to commit mur-
der in aid of racketeering, in violation of 18 U.S.C.
§ 1959(a)(5); murder in aid of racketeering, in violation of 18
U.S.C. § 1959(a)(1); use of a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c); and murder
resulting from the use of a firearm in a crime of violence, in
violation of 18 U.S.C. § 924(j). He raises various challenges
to these convictions on appeal, focusing on the district court’s
admission of certain testimony and the sufficiency of the evi-
dence to support his convictions under the Racketeer Influ-
enced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
§§ 1961-68, and the Violent Crimes in Aid of Racketeering
Act ("VICAR"), 18 U.S.C. § 1959. Finding Palacios’s argu-
ments unpersuasive, we affirm.
I.
We begin our discussion with an overview of the history,
organization, and structure of MS-13, to which Palacios
belonged. We then set forth the facts underlying Palacios’s
convictions, followed by a description of his indictment and
trial.
UNITED STATES v. PALACIOS 3
A.
MS-13 is a transnational gang formed by El Salvadorian
immigrants in Los Angeles, California in the 1980s.1 Origi-
nally organized to protect its members from being preyed
upon by other gangs in southern California, MS-13 grew into
a larger organization characterized by intimidation and vio-
lence. Enhancing its reputation for violence became the
gang’s primary purpose. MS-13 eventually expanded into
Central America, Mexico, Canada, and other areas of the
United States. In addition to Los Angeles, MS-13 strongholds
in this country include metropolitan Washington,
D.C.—including northern Virginia and southern Mary-
land—Long Island, New York; Houston, Texas; Boston, Mas-
sachusetts; and North Carolina. This case involves MS-13
activities in and around Prince George’s County, Maryland.
Although MS-13 members are affiliated with their counter-
parts throughout North America, the gang is organized into
smaller subgroups or "cliques" that operate locally. Each
clique has its own leadership, conducts its own meetings, and
is permitted to create rules in addition to—but not in place
of—the rules of the broader gang. Cliques are run by a leader,
known as the "first word"; a gang member who assumes the
role of second in command, known as the "second word"; and
a treasurer or secretary. Clique leaders gather periodically at
regional meetings led by mid-level bosses, known as "ran-
fleros." At these meetings, clique leaders share information
about law enforcement activities in their areas, settle argu-
ments, and discipline members who have violated gang rules.
Ranfleros also relay directives from top MS-13 leaders who
reside outside the United States.
1
We have previously discussed the origins and practices of MS-13 in an
opinion concerning the same larger MS-13 conspiracy in which Palacios
was involved. See United States v. Ayala, 601 F.3d 256, 261 (4th Cir.
2010).
4 UNITED STATES v. PALACIOS
The gang utilizes uniform rules, regulations, and symbols2
throughout the many territories in which it is located. For
example, the method of initiation into the gang is the same
throughout its various iterations: a prospective MS-13 mem-
ber is beaten for 13 seconds "to signify the beginning of a
new, more brutal lifestyle." United States v. Ayala, 601 F.3d
256, 261 (4th Cir. 2010). Gang members are required to
fight—and, if possible, kill—members of rival gangs. Those
who have been initiated into MS-13 may not assist law
enforcement, and they are prohibited from using numbers or
colors associated with rival gangs. MS-13 members are
required to attend local clique meetings and pay dues. These
dues are used for, among other things, sending money to gang
members in other countries, financing attorneys for gang
members who have been arrested, and buying weapons or
other equipment for the use of the gang. Cliques maintain dis-
cipline by imposing punishments—ranging from a short beat-
ing (a "13") to death (a "green light")—in response to
violations of gang rules. MS-13 cliques also have an internet
presence and have been known to post information on web-
sites such as MySpace.
B.
The primary MS-13 clique involved in this prosecution is
known as the Langley Park Salvatruchas ("LPS"). Palacios
co-founded LPS and operated as its second word and, subse-
quently, as its first word. Trial testimony indicated that, as rel-
evant to this appeal, Palacios helped orchestrate the murder of
Nancy Diaz during the time he was second word of LPS.
Palacios and Roberto Argueta (a.k.a. "Buda")—who was
LPS first word at the time—heard rumors that Diaz, a female
friend of LPS members, had been fraternizing with rival gang
members. The two investigated whether the rumors were true,
2
MS-13’s uniform symbols include the letters "M" and "S"; the numbers
"13," "X3," and "3C"; the colors blue and white; and devil horns.
UNITED STATES v. PALACIOS 5
questioning Suyapa Chicas,3 Palacios’s girlfriend at the time,
about whether Diaz had been spending time with members of
rival gangs. Chicas confirmed that she had heard the same
rumors. Sometime thereafter, Argueta and Palacios brought
up the issue of Diaz’s supposed interactions with rival gangs
at an LPS clique meeting. As the conversation proceeded,
Palacios and the other LPS leaders determined that Diaz
needed to be killed and began planning her death. At the con-
clusion of the meeting, Argueta issued a final order that Diaz
should be killed. Palacios was involved in the discussion
throughout and stood by Argueta’s side as he issued the order.
LPS members Jesus Canales (a.k.a. "Fantasma") and Jef-
frey Villatoro (a.k.a. "Magic") carried out the order to kill
Diaz. On October 25, 2004, Canales and Villatoro drove Diaz
and her friend Alyssa Tran to a cemetery near Langley Park,
Maryland, informing the two women that they were going to
drink together. Instead, once inside the cemetery grounds,
Canales and Villatoro fell behind the two women. Tran heard
a gunshot from behind and felt Villatoro pull her to the
ground. Villatoro then shot Tran in the face. When Canales
discovered Tran had not perished from the gunshot wound,
Canales stabbed her twice in the chest. Tran somehow sur-
vived the attack and began searching for Diaz. When Tran
found Diaz, the latter was dead.
C.
In August 2005, a federal grand jury sitting in the District
of Maryland indicted Palacios and 18 others on various
charges arising from their participation in MS-13. On June 4,
2007, the grand jury returned a fourth superseding indictment
charging Palacios with conspiracy to participate in racketeer-
ing activity, conspiracy to commit murder in aid of racketeer-
ing, murder in aid of racketeering, assault with a dangerous
3
Chicas’s first name is alternatively spelled "Suyaba" in certain trial
documents and in Palacios’s brief.
6 UNITED STATES v. PALACIOS
weapon in aid of racketeering, two counts of use of a firearm
in relation to a crime of violence, and murder resulting from
the use and carrying of a firearm in relation to a crime of vio-
lence.
1.
Prior to trial, the parties entered into a discovery agree-
ment. The agreement provided, in relevant part:
The government agrees that it will provide reason-
able notice of the existence of alleged other crimes,
wrongs or acts committed by [Palacios] pursuant to
Rule 404(b) of the Federal Rules of Evidence, along
with copies of all physical and documentary evi-
dence believed by the government to fall within the
ambit of Rule 404(b) which the government intends
to introduce at trial in its case-in-chief. The govern-
ment acknowledges its continuing duty to disclose
Rule 404(b) evidence as it is recognized as such after
the time period in which the government has pro-
vided Rule 16 material.
J.A. 97.
The government made several pretrial disclosures regarding
evidence and testimony it intended to introduce. On May 12,
2008, nine weeks before trial, the government sent a letter to
Palacios’s attorney indicating that it planned to introduce evi-
dence of an attempted robbery in which Palacios was
involved in 2001, an alleged attack on rival gang members for
which Palacios was arrested in 2002, and a shooting in which
Palacios was involved in 2004. On June 4, 2008, six weeks
before trial, the government sent another letter disclosing its
intention to introduce evidence regarding, inter alia, two rob-
beries in which Palacios participated in 2001 and a 2004 inci-
dent during which Palacios fired gunshots at rival gang
UNITED STATES v. PALACIOS 7
members. All of these incidents were related to Palacios’s
participation in MS-13.
In response to these letters, Palacios moved to exclude
these matters from trial or, in the alternative, to require the
government to amend the indictment to include them as
charged overt acts in furtherance of a conspiracy. During a
June 9, 2008, hearing on the motion, the district court noted:
[T]hey don’t have to charge in an indictment every
act they allege a defendant participated in . . . . I told
[the government] they needed to [give notice] well
in advance, and they did it at least a month to two
months in advance and gave [the relevant informa-
tion] to [Palacios].
J.A. 238-39. It further stated that this information was "not
404(b) evidence," but rather evidence of "events that the Gov-
ernment was using as part and parcel of the conspiracy." J.A.
253. The district court noted that "[the government] is not
required in a conspiracy case to give advance notice of any
discrete acts it contends [were] part of the conspiracy." J.A.
259. It concluded by stating that "[t]he Government has done
in this case what I directed them to do in terms of advance
preparation . . . , and I am not going to prevent them from
using this evidence on the ground of the timing of the disclo-
sure." J.A. 260. It therefore denied Palacios’s motion.
2.
Palacios’s trial began on July 15, 2008 and lasted until
August 8, 2008. As pertinent to this appeal, the government
called as witnesses Sergeant George Norris of the Prince
George’s County Police Department; former MS-13 member
Wilbur Garcia-Martinez; Palacios’s former girlfriend Suyapa
Chicas; and Alirio Osorio, a former LPS member who later
became a government informant.
8 UNITED STATES v. PALACIOS
Sergeant Norris testified both as an expert witness and a
fact witness. Based on his training and experience investigat-
ing MS-13 as part of the Prince George’s County Police
Department Gang Unit, Norris provided expert testimony on
the gang’s development, organization, policies, practices, and
symbols. He also provided lay testimony about events he per-
sonally observed while investigating Maryland-area MS-13
cliques. The district court permitted Norris to testify in both
capacities, but it required the government to indicate when it
was transitioning from Norris’s expert opinion to his personal
observations.
Garcia-Martinez testified primarily about statements Pala-
cios made to him when the two were incarcerated together. In
2006, Garcia-Martinez pleaded guilty to participating in the
same broader Maryland-area MS-13 conspiracy that Palacios
was charged with participating in. Around January 2008,
Garcia-Martinez and Palacios were placed in the same prison
cell for a period of approximately two months at a SuperMax
facility in Baltimore, Maryland. Garcia-Martinez testified
that, at some point during that time, Palacios told Garcia-
Martinez that, if Palacios were found guilty but later released
from prison, "he would come back and return to kill all the
snitches." J.A. 1678.
Chicas testified extensively about her knowledge of Pala-
cios’s involvement in MS-13. She provided information about
a number of criminal acts Palacios committed during his time
as a member of the gang—some of which were charged in the
indictment and others of which were not. She specifically pro-
vided information about the operation of the LPS clique, as
well as about the murder of Nancy Diaz.
Osorio also testified about Palacios’s involvement in Diaz’s
murder, as well as about his observations regarding the struc-
ture and organization of the LPS clique. The substance of this
testimony tracked the facts discussed in section B.
UNITED STATES v. PALACIOS 9
At the close of the government’s evidence, Palacios filed a
motion for judgment of acquittal pursuant to Federal Rule of
Criminal Procedure 29. The district court denied the motion.
3.
On August 8, 2008, the jury found Palacios guilty of con-
spiracy 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 vio-
lence, and murder resulting from the use of a firearm in rela-
tion to a crime of violence.4 Palacios filed a renewed motion
for judgment of acquittal and a motion for a new trial on
August 20, 2008, both of which the district court denied.
On November 12, 2008, the district court sentenced Pala-
cios to life imprisonment, followed by a consecutive sentence
of 240 months’ imprisonment. This appeal followed.
II.
Palacios raises five arguments on appeal, which fall into
two broader categories: challenges to the district court’s
admission of certain witness testimony and challenges to the
sufficiency of the evidence to support his convictions. We dis-
cuss Palacios’s specific claims falling within each category in
turn.
A.
With respect to the admission of evidence, Palacios first
argues that the district court abused its discretion by permit-
4
The jury acquitted Palacios of assault with a dangerous weapon in aid
of racketeering and an additional count of using a firearm in relation to a
crime of violence. Both of these charges were predicated upon the attack
of Alyssa Tran, which, as discussed above, occurred in conjunction with
Nancy Diaz’s murder.
10 UNITED STATES v. PALACIOS
ting Sergeant George Norris to testify as an expert, contend-
ing that through his testimony, Norris acted as a conduit for
testimonial hearsay, thereby violating Palacios’s rights under
the Confrontation Clause. Second, Palacios asserts that the
district court abused its discretion by admitting evidence of
his prior bad acts, claiming that the government failed to give
adequate notice of its intent to introduce such evidence. Third,
Palacios argues that the district court abused its discretion by
admitting the testimony of Palacios’s cellmate Garcia-
Martinez, contending that Garcia-Martinez "acted as an agent
of the government" when he discussed MS-13 with Palacios.
Appellant’s Br. 72.
"We review for abuse of discretion a trial court’s decision
concerning the admissibility of evidence." United States v.
Summers, 666 F.3d 192, 197 (4th Cir. 2011). We will not find
that a district court abused its discretion "unless its ruling was
arbitrary and irrational." Id. (quotation marks omitted). "We
review de novo, however, an evidentiary ruling implicating
the Confrontation Clause." Id.
1.
We first consider Palacios’s contention that the district
court abused its discretion by admitting the expert testimony
of Sergeant Norris. Palacios argues that Norris’s testimony
contained inadmissible hearsay and that Norris’s use of such
hearsay violated Palacios’s rights under the Confrontation
Clause of the Sixth Amendment, as interpreted by Crawford
v. Washington, 541 U.S. 36 (2004). We disagree.
Federal Rule of Evidence 703 allows an expert witness to
"base an opinion on facts or data in the case that the expert
has been made aware of or personally observed." This
includes inadmissible evidence—including hearsay—"[i]f
experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject."
Fed. R. Evid. 703; see also United States v. Leeson, 453 F.3d
UNITED STATES v. PALACIOS 11
631, 637 (4th Cir. 2006) (holding that a district court did not
abuse its discretion by admitting expert testimony based on
hearsay when it had been "sufficiently established" that such
hearsay statements were the type of information "reasonably
relied upon by experts in [the] field").
Under Crawford, testimonial hearsay raises special con-
cerns, however, because it implicates a defendant’s constitu-
tional rights. See United States v. Johnson, 587 F.3d 625, 635
(4th Cir. 2009). Crawford established that the Confrontation
Clause bars the "admission of testimonial statements of a wit-
ness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for
cross-examination." 541 U.S. at 53-54. The Supreme Court
has not provided a definitive definition of "testimonial," but
a statement "procured with a primary purpose of creating an
out-of-court substitute for trial testimony" is the quintessential
example of testimonial hearsay. Michigan v. Bryant, 131 S.
Ct. 1143, 1155 (2011). Although "Crawford forbids the intro-
duction of testimonial hearsay as evidence in itself," we have
recognized that "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." Johnson, 587 F.3d at 635.
The touchstone for determining whether an expert is "giving
an independent judgment or merely acting as a transmitter for
testimonial hearsay" is whether an expert "is applying his
training and expertise to the sources before him," thereby pro-
ducing "an original product that can be tested through cross-
examination." Id.
Applying this test, we rejected a claim identical to the one
before us in United States v. Ayala, 601 F.3d 256 (4th Cir.
2010). Ayala involved the same MS-13 conspiracy we con-
front here, and similar to Palacios, the appellants in that case
claimed that the district court’s admission of the expert testi-
mony of Sergeant Norris and two other law enforcement offi-
cials violated their Confrontation Clause rights because the
12 UNITED STATES v. PALACIOS
testimony "relied in part on interviews with unnamed declar-
ants." Id. at 274. We held that no Crawford violation had
occurred, observing:
As an initial matter, it is unclear whether the inter-
views these experts relied on were even testimonial,
given that the record is rather bare about the circum-
stances in which they were conducted. But even if
we assume that each expert did rely on testimonial
statements, that fact alone does not offend the Con-
frontation Clause because the experts did not act as
mere transmitters and in fact did not repeat state-
ments of particular declarants to the jury. Instead,
they offered their independent judgments, most of
which related to the gang’s general nature as a vio-
lent organization and were not about the defendants
in particular. These judgments resulted from many
years of observing the gang, studying its methods,
and speaking with its members. Given that each
expert was subject to cross-examination about his
judgment, we find no error in the admission of their
testimony.
Id. at 275.
Here, Sergeant Norris explained the bases for his expertise
regarding MS-13. These included extensive gang culture
training, interactions with other law enforcement officers who
specialize in gangs, personal observation through surveillance
and executing search warrants, and "[h]undreds and hundreds
. . . , if not thousands" of interviews with MS-13 members and
victims of MS-13 gang violence. J.A. 637. As in Alaya, the
record before us is unclear as to whether these interviews
were testimonial. See 601 F.3d at 275. Palacios, in fact, makes
no assertion that they were. Assuming at least some of the
interviews Norris conducted produced testimonial hearsay,
however, Norris did not specifically reference any of these
interviews during his expert testimony, nor did he make any
UNITED STATES v. PALACIOS 13
mention of Palacios in particular. Rather, he used these inter-
views, along with the other sources of his extensive knowl-
edge about MS-13, to form an independent opinion about the
gang’s history, operation, structure, practices, and symbols.
Norris was available for cross-examination regarding this
opinion. As such, we reiterate our position in Alaya that the
admission of Norris’s testimony was not a Crawford viola-
tion, even if his expert opinion was based, in part, on testimo-
nial hearsay.
The Second Circuit’s decision in United States v. Mejia,
545 F.3d 179 (2d Cir. 2008), upon which Palacios relies, does
not alter the analysis. In that case, the Second Circuit held that
a police officer’s expert testimony violated Rule 703 and the
appellants’ Sixth Amendment rights by repeating on the stand
"out-of-court testimonial statements made by individuals dur-
ing custodial interrogations." Id. at 199. We distinguished this
case in Johnson by noting that it turned upon the fact that "the
expert simply passed along an important testimonial fact he
learned from a particular interview," which did not require
him to apply any independent expertise. 587 F.3d at 636. The
expert testimony in Mejia was thus unlike the expert testi-
mony in Johnson—and in this case—in which the expert wit-
ness "appl[ied] [his] expertise, derived over many years and
from multiple sources" to provide an independently formed
opinion. See Johnson, 587 F.3d at 636. We therefore find
Palacios’s claim to be without merit.5
5
As discussed above, Norris also testified as a fact witness in this case.
In this role, he was permitted to describe his personal observations of spe-
cific MS-13 activities. Palacios contended at oral argument that the district
court abused its discretion by failing to properly delineate between Nor-
ris’s role as an expert and his role as a fact witness. Palacios did not raise
this contention in his opening brief and, as such, has waived it. See, e.g.,
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001). Even if Palacios had
not waived this argument, however, we do not agree with his contention.
The government clearly stated when it was transitioning from Norris’s tes-
timony as an expert witness to his testimony as a fact witness. Moreover,
the district court sustained several objections Palacios raised at trial, in
14 UNITED STATES v. PALACIOS
2.
Palacios next contends that the district court abused its dis-
cretion by "allowing the government to introduce evidence of
alleged prior bad acts by Mr. Palacios without notice to the
defense." Appellant’s Br. 44. This argument fails. As we
explain, the evidence introduced by the government that Pala-
cios refers to as "prior bad acts" does not implicate "other
crimes, wrongs, or acts" governed by Federal Rule of Evi-
dence Rule 404(b). Given that the testimony to which Pala-
cios points was not governed by Rule 404(b), the government
was under no obligation to disclose any of this informa-
tion—and none of the authorities to which Palacios points
suggest otherwise.
a.
Palacios claims that the district court improperly allowed
the government to introduce evidence of his "prior bad
acts"—a phrase that typically refers to evidence governed by
Rule 404(b). See, e.g., United States v. Chin, 83 F.3d 83, 87-
88 (4th Cir. 1996).
The Rule 404(b) inquiry, however, applies only to
evidence of other acts that are extrinsic to the one
charged. Acts intrinsic to the alleged crime do not
fall under Rule 404(b)’s limitations on admissible
evidence. Evidence of uncharged conduct is not
other crimes evidence subject to Rule 404 if the
uncharged conduct arose out of the same series of
which he contended Norris was confusing the two roles. Finally, Norris’s
lay testimony was quite limited and mentioned Palacios only once. Based
on this record, which demonstrates that the district court "implement[ed]
adequate safeguards to prevent juror confusion," we cannot say that the
district court abused its discretion by allowing Norris to testify as both an
expert and fact witness. See United States v. Baptiste, 596 F.3d 214, 223-
24 (4th Cir. 2010).
UNITED STATES v. PALACIOS 15
transactions as the charged offense, or if evidence of
the uncharged conduct is necessary to complete the
story of the crime on trial.
United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009)
(quotation marks, alterations, and citations omitted). "It is
well established that when seeking to prove a conspiracy, the
government is permitted to present evidence of acts commit-
ted in furtherance of the conspiracy even though they are not
all specifically described in the indictment." United States v.
Janati, 374 F.3d 263, 270 (4th Cir. 2004). Evidence that does
not fall within the purview of Rule 404(b) is admissible if it
is relevant—meaning having "any tendency to make" the
existence of any fact that "is of consequence" to the determi-
nation of the action "more or less probable than it would be
without the evidence," Fed. R. Evid. 401—and it is not other-
wise required to be excluded by the Constitution, statute, or
federal rule, Fed. R. Evid. 402.
Here, Palacios claims that certain testimony of three gov-
ernment witnesses improperly referenced his prior bad acts
without prior disclosure. Specifically, Palacios contends that
the district court erred by allowing Suyapa Chicas to testify
about: a robbery she saw Palacios commit with another MS-
13 member, Palacios’s firing of a gun in the direction of
members of a rival gang, and two conversations Palacios had
with her about Nancy Diaz. Palacios also contends that the
district court improperly allowed Alirio Osorio to testify
about meetings in which Palacios and other MS-13 members
discussed the murders of Diaz and others. Finally, Palacios
claims that the district court improperly permitted Wilbur
Garcia-Martinez to testify about Palacios’s possession of a
gun and about Palacios’s claim that he would "kill all the
snitches."6 J.A. 1744.
6
Our review of the record indicates that Palacios objected to some, but
not all, of this testimony at trial. He also moved to exclude some, but not
all, of these statements in the pretrial motion discussed above. Because we
conclude that Palacios’s arguments fail even assuming he preserved an
objection to every statement, we do not distinguish between the statements
to which Palacios objected and those he did not.
16 UNITED STATES v. PALACIOS
All of this testimony, however, is express proof of the con-
duct for which Palacios was indicted—or otherwise "neces-
sary to complete the story of the crime on trial"—not
evidence of other bad acts. See Basham, 561 F.3d at 326 (quo-
tation marks omitted). Any discussion of Diaz is directly
related to the murder in aid of racketeering and conspiracy to
commit murder in aid of racketeering charges included in the
indictment. And the remaining testimony to which Palacios
draws our attention, such as the description of the robbery,
relates to Palacios’s participation in MS-13 and can be prop-
erly characterized as "acts committed in furtherance of the
conspiracy." See Janati, 374 F.3d at 270. For these reasons,
we agree with the district court’s conclusion that Palacios’s
characterization of this evidence as "prior bad acts" is incor-
rect, and we find that the government was under no Rule
404(b) disclosure obligations.
b.
Palacios points to three additional sources that he claims
required the government to disclose the above-cited evidence
prior to trial: Federal Rule of Criminal Procedure 16, the pre-
trial discovery agreement between the parties, and certain
statements of the district court. We agree with the district
court that none of these sources required disclosure.
"Generally, criminal defendants do not have a constitu-
tional right to discovery, absent a statute, rule of criminal pro-
cedure, or some other entitlement." United States v. Uzenski,
434 F.3d 690, 709 (4th Cir. 2006). Rule 16 imposes upon par-
ties an ongoing duty to disclose "additional evidence or mate-
rial" discovered "before or during trial . . . if . . . the other
party previously requested, or the court ordered, its produc-
tion." Fed. R. Crim. P. 16(c). Rule 16 also provides, however,
"[n]or does this rule authorize the discovery or inspection of
statements made by prospective government witnesses." Id. at
16(a)(2).
UNITED STATES v. PALACIOS 17
Palacios’s contention that Rule 16 required the government
to disclose the evidence to which he points before trial is
incorrect. Rule 16(a)(2) expressly states that the government
is not required to disclose the statements of government wit-
nesses. See also United States v. Cole, 857 F.2d 971, 975 (4th
Cir. 1988) ("We . . . decline to carve an exception from [Rule
16(a)(2)’s] prohibition for statements of government wit-
nesses that happen to contain statements made by a defen-
dant."). Palacios’s citation to Rule 16(c) is also of no avail, as
he did not request, nor did the district court order, the govern-
ment to disclose any such evidence prior to trial.
We also find Palacios’s contention that either the pretrial
agreement or the district court’s statements required disclo-
sure to be without merit. As discussed, the pretrial agreement
merely stated that the government would "provide reasonable
notice of the existence of alleged other crimes, wrongs, or acts
committed by [Palacios] pursuant to Rule 404(b) . . . which
the government intends to introduce at trial"—and this evi-
dence was not governed by 404(b). J.A. 97. Finally, our
review of the hearing to which Palacios draws our attention,
detailed above, provides no indication that the district court
issued any instruction to the government regarding disclosure
that the government subsequently failed to follow. In short,
Palacios provides no authority to support his claim that the
government should have given him pretrial notice about the
substance of this testimony.7
3.
Palacios’s final contention regarding the admission of testi-
mony is that the district court abused its discretion by permit-
ting his former cellmate Wilbur Garcia-Martinez to testify,
7
We note that we find Palacios’s argument particularly unsympathetic
because the government did disclose, more than a month prior to trial, its
intention to put forth much of the evidence to which Palacios
objects—despite having no binding obligation to do so.
18 UNITED STATES v. PALACIOS
without prior disclosure, that Palacios had promised to "kill
all the snitches." J.A. 1678. Palacios claims the prosecution’s
failure to disclose this testimony violated Federal Rule of
Criminal Procedure 16 because Garcia-Martinez was acting as
a government agent when he spoke with Palacios. He bases
this contention on the fact that Garcia-Martinez had entered
into a plea agreement with the government prior to his inter-
actions with Palacios, claiming that Garcia-Martinez spoke to
Palacios with the intention of "seeking to curry favor with the
Government regarding a Rule 35(b) Motion for reduction of
sentence" and that Garcia-Martinez’s plea agreement consti-
tuted "a binding contract on Mr. Garcia to assist the govern-
ment." Appellant’s Br. 71. We find these arguments
unpersuasive.
Rule 16 provides that "[u]pon a defendant’s request, the
government must disclose . . . the substance of any relevant
oral statement made by the defendant . . . in response to inter-
rogation by a person the defendant knew was a government
agent." Fed. R. Crim. P. 16(a)(1)(A). We have emphasized
that the rule "only requires the disclosure of witness state-
ments made in response to interrogation by a person acting as
a government agent." United States v. Carter, 300 F.3d 415,
423 (4th Cir. 2002) (quotation marks omitted). To determine
whether an informant was acting as a government agent at the
time he spoke with a defendant, "[t]he court must look at all
of the circumstances to determine whether the informant’s
actions are ‘fairly attributable to the government.’" United
States v. Lentz, 524 F.3d 501, 520 (4th Cir. 2008) (quoting
Thomas v. Cox, 708 F.2d 132, 136 (4th Cir. 1983)). For exam-
ple, the Supreme Court has held that an inmate jailed in the
same cell block as a defendant who "was acting under instruc-
tions as a paid informant for the Government"—instructions
to "be alert to any statements made by [the defendant]" but
"not to question [the defendant] about the charges"—on a
contingent-fee basis was a government agent for Sixth
Amendment purposes.8 United States v. Henry, 447 U.S. 264,
8
The majority of the cases cited in this section involve a defendant who
has alleged a violation of his Sixth Amendment right to counsel, rather
UNITED STATES v. PALACIOS 19
268, 270 (1980). The Court recognized, however, that a "jail-
house informant" was not necessarily a government agent if
he was merely "instructed to overhear conversations and to
engage a criminal defendant in some conversations." Id. at
276. We have never held that a jailhouse informant was acting
as a government agent in the absence of specific instructions
from the government or promises from the government prior
to the informant’s conversations with an accused person. See
Harker v. Maryland, 800 F.2d 437, 444-45 (4th Cir. 1986)
(jailhouse informant was not a government agent when he
was "not paid, nor was he acting under the instructions or
solicitations of the government," but only "responded to a
general request for information, and no promises were made
to him"); Carter, 300 F.3d at 423 (defendant’s cellmate was
not acting as a government agent when he "later agreed to be
a government witness").
Based on this case law, Garcia-Martinez was not acting as
a government agent here. The district court found that the
government did not play any role in having Garcia-Martinez
placed in the same cell as Palacios. It also found that he did
not receive specific instructions about what to do or not do if
he came into contact with MS-13 members while incarcer-
ated. As the district court put it, "[t]here has been no evidence
that [Garcia] was placed [in the same cell as Palacios] for the
purpose even of overhearing things, never mind eliciting them
or, in fact, that he thought that it was his job to try to get
information on the part of the government." J.A. 1704. There
was also no evidence that the government promised Garcia-
Martinez any reduction in sentence prior to his conversations
with Palacios.
than erroneous admission of testimony without prior disclosure in viola-
tion of Rule 16. Palacios has not alleged that Garcia-Martinez’s testimony
violated his Sixth Amendment rights, but we find the analysis equally
appropriate in this context.
20 UNITED STATES v. PALACIOS
Palacios does not contest these factual findings upon
appeal, nor does he claim that the government directly pro-
vided instructions to Garcia-Martinez prior to his speaking
with Palacios. Given that the government had no part in
Garcia-Martinez’s interactions with Palacios, the district court
was correct to reject Palacios’s argument that Garcia-
Martinez’s plea agreement—which did include a clause about
Garcia-Martinez’s ongoing obligation to cooperate with the
government—alone made him a government agent. Thus, the
district court did not abuse its discretion by admitting Garcia-
Martinez’s testimony without prior disclosure.
B.
We now consider Palacios’s arguments concerning the suf-
ficiency of the evidence to support his convictions. He first
claims that the evidence introduced at trial was insufficient to
prove that MS-13 was an enterprise, as required to secure a
conviction under the RICO statute. Palacios also argues that
there was insufficient evidence to convict him of murder in
aid of racketeering under the VICAR statute, principally
because the testimony supporting the murder element of this
count was "limited" and "fundamentally flawed." Appellant’s
Br. 64. We address these contentions in turn.
"We review the sufficiency of the evidence to support a
conviction by determining whether there is substantial evi-
dence in the record, when viewed in the light most favorable
to the government, to support the conviction." United States
v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (quotation marks
omitted). "[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to sup-
port a conclusion of a defendant’s guilt beyond a reasonable
doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). "[D]eterminations of credibility are within
the sole province of the jury and are not susceptible to judicial
review." Id. at 863 (quotation marks omitted).
UNITED STATES v. PALACIOS 21
1.
Palacios’s primary contention as to why the evidence pre-
sented at trial was insufficient to allow a jury to find that MS-
13 was an "enterprise" under 18 U.S.C. § 1962 is that "the
record describes an essentially local organization, mainly of
autonomous cliques, which function independently" and
whose primary "activity is local street crime, often spur of the
moment, impulsive acts." Appellant’s Br. 61. We disagree.
The evidence presented is easily sufficient to allow a jury to
determine that MS-13 was a RICO enterprise.9
RICO makes it "unlawful for any person . . . associated
with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or partici-
pate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity." 18 U.S.C.
§ 1962(c). It also criminalizes conspiracy to engage in such
activity. Id. at § 1962(d). Section 1961(4) defines an "enter-
prise" as "includ[ing] any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity."
In United States v. Turkette, 452 U.S. 576 (1981), the
Supreme Court clarified that the term "enterprise" encom-
passes "both legitimate and illegitimate enterprises within its
scope." Id. at 580. It held that an enterprise is a "group of per-
sons associated together for a common purpose of engaging
in a course of conduct," which is "proved by evidence of an
ongoing organization, formal or informal, and by evidence
that the various associates function as a continuing unit." Id.
9
Although we have previously rejected challenges to the sufficiency of
the evidence to support the convictions for RICO conspiracy of MS-13
members involved in the same series of Maryland-area prosecutions we
confront here, see Ayala, 601 F.3d at 274 n.2; United States v. Zelaya, 336
F. App’x 355, 358-59 (4th Cir. 2009) (unpublished), we have never
spelled out our reasoning in a published opinion. We do so here.
22 UNITED STATES v. PALACIOS
at 583. The Supreme Court more recently explained in Boyle
v. United States, 556 U.S. 938 (2009), that "an association-in-
fact enterprise must have at least three structural features: a
purpose, relationships among those associated with the enter-
prise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose." Id. at 945. It cautioned, how-
ever, against reading the term "enterprise" too narrowly:
[A]n association-in-fact enterprise is simply a con-
tinuing unit that functions with a common purpose.
Such a group need not have a hierarchical structure
or a "chain of command"; decisions may be made on
an ad hoc basis and by any number of methods . . . .
Members of the group need not have fixed roles; dif-
ferent members may perform different roles at dif-
ferent times. The group need not have a name,
regular meetings, dues, established rules and regula-
tions, disciplinary procedures, or induction or initia-
tion ceremonies. While the group must function as a
continuing unit and remain in existence long enough
to pursue a course of conduct, nothing in RICO
exempts an enterprise whose associates engage in
spurts of activity punctuated by periods of quies-
cence. Nor is the statute limited to groups whose
crimes are sophisticated, diverse, complex, or
unique; for example, a group that does nothing but
engage in extortion through old-fashioned, unsophis-
ticated, and brutal means may fall squarely within
the statute’s reach.
Id. at 948.
Based on this guidance from the Supreme Court, the gov-
ernment here easily presented sufficient evidence to allow a
reasonable jury to determine that MS-13 was an enterprise.
Specifically, the testimony of Sergeant Norris provided the
jury with adequate support for its finding that MS-13 mem-
bers had a "common purpose of engaging in a course of con-
UNITED STATES v. PALACIOS 23
duct," that the organization was "ongoing," and that "the
various associates function[ed] as a continuing unit." See Tur-
kette, 452 U.S. at 583. Norris explained that MS-13 was origi-
nally formed by El Salvadorian immigrants in the Los
Angeles area for protection from other gangs and that estab-
lishing and maintaining its reputation for violence continues
to be the central purpose of MS-13. He informed the jury that
MS-13 members further this purpose by committing violent
crimes and through other activities like painting graffiti. He
testified that MS-13 has rules and regulations that govern the
gang on a transnational basis, as well as common symbols,
gestures, colors, and parlance, but that the gang is broken
down into individual cliques at a local level, each of which
has its own leadership, meetings, and rules. Norris explained
the formal, ritualized process involved in becoming a member
of MS-13. He also told the jury that MS-13 members pay dues
to help pay for, among other things, attorneys for gang mem-
bers who have been arrested, and that members of different
cliques use the internet to communicate with each other. Nor-
ris concluded his expert testimony by opining that MS-13
likely has at least 100,000 members throughout the United
States, El Salvador, Guatemala, Honduras, Mexico, and Can-
ada. Norris’s testimony about the operation and organization
of local MS-13 cliques—and in particular, the meetings they
held and the manner in which they enforced gang rules—was
corroborated by the testimony of Alirio Osorio and Suyapa
Chicas. This evidence was more than sufficient to support the
jury’s verdict. As such, we reject Palacios’s challenge.
2.
Finally, Palacios argues that the government did not present
sufficient evidence to allow a jury to convict him of murder
in aid of racketeering. His only contention in support of this
claim is that the witnesses whose testimony provided the nec-
essary evidence connecting him to Nancy Diaz’s mur-
der—Suyapa Chicas and Alirio Osorio—were not credible for
various reasons. This argument has no merit.
24 UNITED STATES v. PALACIOS
"[T]he jury, not the reviewing court, weighs the credibility
of the evidence and resolves any conflicts in the evidence
presented. And, in conducting such a review, we are obliged
to view the evidence and all reasonable inferences to be
drawn therefrom in the light most favorable to the prosecu-
tion." United States v. Smith, 451 F.3d 209, 217 (4th Cir.
2006) (quotation marks and citations omitted). As such, we
easily reject Palacios’s final claim.
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.