United States v. Ayala

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 07-4577
EDGAR ALBERTO AYALA, a/k/a
Pony,
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 07-4755
OSCAR RAMOS VELASQUEZ, a/k/a
Casper,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(8:05-cr-00393-DKC-4; 8:05-cr-00393-DKC-18)

Argued: January 29, 2010

Decided: April 8, 2010

Before WILKINSON and AGEE, Circuit Judges, and R.
Bryan HARWELL, United States District Judge for the
District of South Carolina, sitting by designation.
2 UNITED STATES v. AYALA
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Harwell joined.

COUNSEL

ARGUED: Gary Allen Ticknor, Elkridge, Maryland, for
Appellants. Sandra Wilkinson, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Richard C. Bittner, Glen Burnie, Maryland, for
Appellant Oscar Ramos Velasquez. Rod J. Rosenstein, United
States Attorney, James M. Trusty, Assistant United States
Attorney, Laura Gwinn, Trial Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.

OPINION

WILKINSON, Circuit Judge:

This case concerns the prosecution of members of the vio-
lent street gang La Mara Salvatrucha under various statutes,
including the Racketeer Influenced and Corrupt Organizations
Act ("RICO"), 18 U.S.C. §§ 1961-68, and the Violent Crimes
in Aid of Racketeering ("VICAR") statute, 18 U.S.C. § 1959.
On appeal, the defendants raise numerous claims, some indi-
vidually and others collectively. After careful consideration,
we reject the defendants’ various claims, affirm the judgment
of the district court, and commend that court for its conscien-
tious conduct of this six-week trial.

I.

A.

La Mara Salvatrucha, otherwise known as MS-13, is one of
the largest and most violent street gangs in the United States.
 UNITED STATES v. AYALA 3
The gang originated in Los Angeles, California in the 1980s.
Since then, it has spread across the country and into foreign
countries such as El Salvador, Honduras, and Mexico. Today,
it has a large presence in the eastern United States, including
parts of Maryland and Virginia.

Violence defines MS-13’s mission. The gang initiates its
members through violence: existing members beat up the new
members for a period of thirteen seconds. This ritual is meant
to signify the beginning of a new, more brutal lifestyle. Once
initiated, MS-13 members commit violent acts to defend the
gang’s territory against its rivals and to spread fear so that cit-
izens do not report the gang’s activities to the police. In fact,
gang members are required to attack and, if possible, kill rival
gang members whenever they see them. MS-13 members gain
status within the gang through their willingness and ability to
commit such violent acts.

The gang maintains internal discipline through the use of
violence as well. Members who do not follow the rules are
routinely beaten, and those who cooperate with the police face
penalty of death. The violent nature of MS-13 is captured by
one of its mottos: "mata, viola, controla" which means "kill,
rape, control."

MS-13 is organized into local cliques. Each clique has two
leaders: a "first word" and a "second word." The first word is
responsible for running the clique’s meetings, and the second
word does so in his absence. At clique meetings, MS-13
members report on their violent activities which often include
murders and robberies. The gang also discusses ongoing
police investigations and devises ways to prevent others from
cooperating with the police. In addition, members pay dues at
meetings, which the clique uses to buy weapons, make loans
to members, and support members who are in jail.

Leaders of the various cliques frequently communicate and
coordinate with one another to achieve the gang’s objectives.
4 UNITED STATES v. AYALA
They provide each other with material support, often in the
form of guns or places to hide from the police.

B.

This case primarily involves two MS-13 cliques that oper-
ate in Prince George’s County and Montgomery County,
Maryland: the Sailors Locos Salvatruchos Westside
("Sailors") and the Teclas Locos Salvatruchos ("Teclas"). A
taskforce composed of federal and state agents conducted an
extensive investigation into the activities of these cliques. The
investigation was aided substantially by an informant within
the ranks of the Sailors clique known as Noe Cruz. Cruz regu-
larly provided the police with information about the gang’s
violent activities from December 2003 until August 2005. At
that point, the police executed numerous search warrants and
arrested many suspected gang members.

Among those arrested were the defendants here, Edgar
Alberto Ayala and Oscar Ramos Velasquez. The facts rele-
vant to their involvement in MS-13 are as follows.

1.

At some point prior to February 2002, Ayala became a
member of the Sailors clique of MS-13. Ayala attended meet-
ings, paid dues, and even collected dues on behalf of the
clique. He eventually became a leader in the clique, obtaining
the rank of second word. During his time in MS-13, Ayala
knew about or participated in several of the clique’s violent
activities.

One of these was the murder of Randy Calderon who was
a member of the Sailors clique. In the early morning hours of
November 22, 2003, Calderon and another MS-13 member
stabbed a rival gang member to death, wrapped his body in
bed sheets, and tossed it in a dumpster. They did so at the
apartment of fellow gang member Juan Moriera, without first
 UNITED STATES v. AYALA 5
obtaining Moriera’s permission. Concerned that Calderon
would confess the murder to the police and implicate him in
the crime, Moriera shot and killed Calderon that same morn-
ing with the help of other MS-13 members.

Ayala was well aware of the circumstances surrounding
Calderon’s death. Shortly after the murder, Ayala told a fel-
low gang member that it was necessary to kill Calderon to
keep him from confessing the murder to the police. Ayala also
attended a clique meeting where the murder was discussed.
Moriera explained the details of the murder to the clique.
Then Moriera and the clique’s first word, Israel Cruz,
announced a new rule: anyone who did not do as they were
supposed to do would face the same fate as Calderon did.

Ayala was also aware of a murder that took place in Suit-
land, Maryland. On May 21, 2004, three MS-13 members,
including Ayala’s brother Alexis, beat a rival gang member to
death and left his body at a cemetery. At a Sailors meeting
soon thereafter, Alexis described the murder in detail. Ayala
and Israel Cruz then advised Alexis to leave town to avoid the
police. Ayala later attempted to cover up this murder by tell-
ing a Maryland grand jury that he had not spoken about it
with his brother.

Ayala participated in a gang-related shooting at an apart-
ment complex in Alexandria, Virginia. On January 21, 2005,
a group of Sailors, including Ayala, Noe Cruz, and Moriera,
drove from Maryland to Virginia to look for rival gang mem-
bers. As they drove by an apartment complex, they spotted
some adolescents socializing on a stoop. Moriera suspected
that these teenagers were members of a rival gang. The group
then drove to a convenience store, where they met up with
another MS-13 member who brought two handguns. Shortly
thereafter, four MS-13 members, including Ayala, drove off
in Ayala’s vehicle to find the teenagers they had spotted ear-
lier.
6 UNITED STATES v. AYALA
According to the teenagers, two men approached them, and
one opened fire with a pistol. The teenagers attempted to flee
into the apartment building, but three of them were caught in
the line of fire. A fifteen-year-old boy died in the attack, and
two other teenagers were injured. One girl at the scene later
identified Moriera as the shooter. Although no eyewitnesses
reported seeing a second gun, police found bullets from two
different guns at the scene.

Lastly, Ayala and other MS-13 members attempted to com-
mit a murder in the Baltimore, Maryland area. On February
23, 2005, Ayala, Israel Cruz, and Noe Cruz drove to Balti-
more, met up with MS-13 members from another clique, and
went to the home of an individual with whom the gang had
a dispute. Their plan was that one MS-13 member would lure
the individual from his home, while Ayala and Israel Cruz
waited outside to shoot him with a handgun. The plan was
ultimately unsuccessful, however, because their intended vic-
tim spotted one of his would-be assassins.

At various points that day, Noe Cruz called the police on
his cellular phone to inform them of the gang’s plan.
Although the police were unable to find the gang members
before they attempted the murder, the police later located
Ayala’s vehicle, pulled it over, and discovered the handgun.
Ayala was arrested and pled guilty in state court to transport-
ing a firearm.

2.

At some point prior to November 2002, Velasquez became
a member of the Teclas clique of MS-13. Velasquez attended
meetings, paid dues, and even climbed the ranks to become
first word for the clique. Like Ayala, Velasquez was aware of
and participated in his clique’s violent activities.

One of these was a gang rape or, as MS-13 members call
it, a "train." On the morning of May 12, 2003, Velasquez
 UNITED STATES v. AYALA 7
picked three teenage girls up from a high school under the
pretense of taking them to a party. He took them to an apart-
ment, where a few MS-13 members were waiting. At some
point thereafter, ten to fifteen more gang members arrived.
After realizing that one of the teenage girls was the sister of
an MS-13 member, one of the men took the girl outside of the
apartment to talk. The gang members remaining inside then
forced the two other girls into separate bedrooms and formed
lines outside each room. One by one, they entered the rooms
to rape the girls, each man being allotted five minutes at a
time.

According to one of the girls, Velasquez took her into a
bedroom and tried to have sex with her. When she refused his
advances, he called two other men into the room. One of these
men choked her, while the other held her arms down on the
bed. After she started to scream, Velasquez pointed a gun at
her head and told her to stay quiet. Ten or so men then took
turns entering the room, and all but two of them raped her. At
various points, she could see Velasquez standing by the door.
Velasquez even entered the room at one point and told her she
would have to shower after the men were finished with her.

The other girl provided a similar account. One of the men
made sexual advances toward her in the kitchen of the apart-
ment. When she refused, he forced her into one of the bed-
rooms with the help of other gang members. Approximately
thirteen men raped her in that room, and one of them was
Velasquez. He entered the room with a gun in his hand,
threatened to kill her, and forced her to have intercourse.

Eventually, the third girl reentered the apartment and saw
the lines outside the bedrooms. As she started to scream, the
gang members dispersed and fled the apartment. The girls
then ran outside and called the police.

Velasquez was also involved in the stabbing of a rival gang
member. During the early morning hours of September 18,
8 UNITED STATES v. AYALA
2004, Velasquez and several other MS-13 members con-
fronted a smaller group of members from a rival gang in the
parking lot of a nightclub called the Coco Cabana. They sur-
rounded an individual named Jhony Diaz and proceeded to
attack him. During the ensuing melee, Diaz was stabbed ten
times. The fight broke up when the police arrived on the
scene. The MS-13 members quickly fled, leaving Diaz bleed-
ing on the ground.

C.

On August 23, 2005, a grand jury in the District of Mary-
land returned an indictment against Ayala, Velasquez, and
several others for crimes arising out of their involvement in
MS-13. The district court severed the case and scheduled the
first trial against Ayala and Velasquez. On September 18,
2006, the grand jury returned a second superseding indict-
ment, naming only these two defendants.

Both defendants were charged with conspiracy to partici-
pate in racketeering activity in violation of 18 U.S.C.
§ 1962(d). Among other things, the indictment alleged that
MS-13 was an enterprise engaged in a pattern of racketeering
activities, including murder, kidnapping, robbery, obstruction
of justice, witness tampering, and interference with commerce
by threats of violence. Both defendants were also charged
with a VICAR offense, conspiring to commit assaults with
dangerous weapons, in violation of 18 U.S.C. § 1959(a)(6)
and 18 U.S.C. § 2.

In addition, Ayala was charged with another VICAR
offense, conspiring to commit murder, in violation of 18
U.S.C. § 1959(a)(5) and 18 U.S.C. § 2 in connection with the
shooting in Alexandria, Virginia. He also faced a charge for
using or carrying a firearm during and in relation to a crime
of violence in violation of 18 U.S.C. § 924(c) and 18 U.S.C.
§ 2 in connection with his trip to Baltimore, Maryland.
 UNITED STATES v. AYALA 9
Velasquez was also charged with another VICAR offense,
assault with a dangerous weapon, in violation of 18 U.S.C.
§ 1959(a)(3) and 18 U.S.C. § 2 and with using or carrying a
firearm during and in relation to a crime of violence in viola-
tion of 18 U.S.C. § 924(c) and 18 U.S.C. § 2 in connection
with the gang rape. He was also charged with one last VICAR
offense, assault with a dangerous weapon, in violation of 18
U.S.C. § 1959(a)(3) and 18 U.S.C. § 2 for his participation in
the stabbing of Jhony Diaz.

Both defendants pled not guilty, and a jury convicted them
on all counts. The district court subsequently sentenced Ayala
to 420 months of imprisonment, five years of supervised
release, and a $300 assessment. It sentenced Velasquez to 444
months of imprisonment, five years of supervised release, and
a $400 assessment.

On appeal, the defendants raise a number of issues, some
individually and some collectively. We address the individual
claims first, setting forth additional facts as they become nec-
essary.

II.

First, Ayala challenges his conviction for conspiring to
commit murder in violation of the VICAR statute, 18 U.S.C.
§ 1959(a)(5). He argues that this murder conspiracy was part
of the same course of conduct that constituted the larger rack-
eteering conspiracy for which he was convicted under RICO,
18 U.S.C. § 1962(d). Thus, he contends that he was punished
multiple times for the same offense in violation of the Double
Jeopardy Clause of the Fifth Amendment.

The Double Jeopardy Clause states that no person shall "be
subject for the same offence to be twice put in jeopardy of life
or limb." In the context of a single criminal prosecution, the
clause "protects against multiple punishments for the same
offense." North Carolina v. Pearce, 395 U.S. 711, 717
10 UNITED STATES v. AYALA
(1969). This guarantee simply prevents "the sentencing court
from prescribing greater punishment than the legislature
intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983);
United States v. Martin, 523 F.3d 281, 290 (4th Cir. 2008). It
does not, however, prohibit the legislature from punishing the
same act or course of conduct under different statutes.
Albernaz v. United States, 450 U.S. 333, 344 (1981).

Thus, when a defendant violates more than one statute in
a single course of conduct, a court may impose multiple pun-
ishments without violating the Double Jeopardy Clause if the
legislature authorizes it to do so. United States v. Terry, 86
F.3d 353, 355 (4th Cir. 1996). Ultimately, our "only task is to
determine whether Congress intended to impose multiple pun-
ishments." United States v. Chandia, 514 F.3d 365, 372 (4th
Cir. 2008). For "the power to define criminal offenses and to
prescribe the punishments to be imposed upon those found
guilty of them[ ] resides wholly with the Congress." Whalen
v. United States, 445 U.S. 684, 689 (1980).

To make that determination, we are guided by the Supreme
Court’s decision in Blockburger v. United States, 284 U.S.
299 (1932). "[W]here the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which
the other does not." Id. at 304. When applying this test in mul-
tiple punishment cases, our "exclusive focus" is "upon the ele-
ments of the statutory provisions in question," not the
particular facts of the underlying case. United States v. Allen,
13 F.3d 105, 109 n.4 (4th Cir. 1993). If each provision
requires proof of a distinct element, "then multiple punish-
ments are presumed to be authorized absent a clear showing
of contrary Congressional intent." Terry, 86 F.3d at 356 (cit-
ing Albernaz, 450 U.S. at 340).

Applying Blockburger here, we conclude that Congress
intended murder conspiracy under § 1959(a)(5) and racketeer-
 UNITED STATES v. AYALA 11
ing conspiracy under § 1962(d) to be distinct offenses. Estab-
lishing a murder conspiracy under § 1959(a)(5) requires proof
that the defendant conspired "for the purpose of gaining
entrance to or maintaining or increasing position in an enter-
prise engaged in racketeering activity" or as consideration for
"anything of pecuniary value" from such an enterprise. There
is simply no such requirement to prove a racketeering con-
spiracy under § 1962(d). Moreover, establishing a murder
conspiracy under § 1959(a)(5) requires proof of a specific
conspiracy to "commit murder," a fact which is not a neces-
sary element of a racketeering conspiracy under § 1962(d).
Conversely, establishing a racketeering conspiracy under
§ 1962(d) requires proof of a conspiracy to conduct an enter-
prise through "a pattern of racketeering activity," which the
RICO statute defines as "at least two acts." 18 U.S.C.
§ 1961(5). Section 1959(a)(5), by contrast, only requires
proof of a conspiracy to commit a single act.

Thus, each offense requires proof of at least one fact that
the other does not. That is, a jury could find a defendant guilty
of one offense without necessarily finding him guilty of the
other and vice-versa. Accordingly, "we presume that Con-
gress authorized multiple punishments." Chandia, 514 F.3d at
372.

The burden then shifts to Ayala to make a clear showing of
contrary legislative intent. Terry, 86 F.3d at 356. Ayala has
not met that burden, however. If anything, we think that the
available evidence suggests that Congress did indeed intend
to impose multiple punishments. For one thing, it placed the
two offenses in different chapters and provided each with its
own penalties. See 18 U.S.C. § 1959(a)(1)-(6) (penalties for
VICAR violations); § 1963(a)-(m) (penalties for RICO viola-
tions). For another, Congress was clearly aware of the RICO
statute when it enacted the VICAR statute, given that the lat-
ter defines "racketeering activity" by reference to a provision
of RICO. See 18 U.S.C. § 1959(b)(1) (referencing "section
1961 of this title"). Had it wanted to impose a single punish-
12 UNITED STATES v. AYALA
ment when a defendant violated both statutes during the same
course of conduct, Congress easily could have said so, yet
Ayala points us to no such indication in the text or legislative
history of the statutes.

Our conclusion is bolstered by the fact that these statutes
are directed at two different but related problems. See
Albernaz, 450 U.S. at 343. While the RICO statute addresses
participation in racketeering enterprises generally, the VICAR
statute addresses the particular danger posed by those, like
Ayala, who are willing to commit violent crimes in order to
bolster their positions within such enterprises. In this sense,
the VICAR statute "complements" the RICO act by allowing
the government to address these interrelated problems. United
States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992).

We find additional support in the case law of other circuits.
The Second Circuit, for instance, has held that a defendant
may be punished in a single prosecution for substantive viola-
tions of both the RICO and VICAR statutes. United States v.
Polanco, 145 F.3d 536, 542 (2d Cir. 1998). Likewise, the
First Circuit has held that a defendant may be punished for
both a VICAR conspiracy and a substantive RICO offense.
United States v. Marino, 277 F.3d 11, 39 (1st Cir. 2002);
United States v. Nascimento, 491 F.3d 25, 48 (1st Cir. 2007)
(same). In the related context of successive prosecutions, the
Third Circuit has rejected a double jeopardy challenge where
the first prosecution included a RICO conspiracy charge and
the second included a VICAR conspiracy charge. United
States v. Merlino, 310 F.3d 137, 141 (3d Cir. 2002). It
observed that "[b]ecause that VICAR offense requires proof
of an element that the RICO offense does not, and vice-versa,
they are different offenses for the purposes of the Double
Jeopardy Clause." Id. While the exact scenarios in these cases
differ, the consensus is that the VICAR and RICO statutes
create separate punishable offenses.

Thus, we conclude that there is no Double Jeopardy bar to
punishing a defendant for both a murder conspiracy under
 UNITED STATES v. AYALA 13
§ 1959(a)(5) and a racketeering conspiracy under § 1962(d)
when the offenses arise out of the same course of conduct.

III.

Next, Ayala challenges his conviction under 18 U.S.C.
§ 924(c) for using or carrying a firearm during and in relation
to a crime of violence on August 23, 2005. The government’s
theory was that the crime of violence in question was the
RICO conspiracy for which Ayala was also convicted in this
case. At trial, Ayala moved for judgment of acquittal on the
§ 924(c) charge, arguing that the RICO conspiracy was not a
crime of violence. The district court denied the motion, how-
ever, reasoning that the conspiracy qualified as a crime of vio-
lence because the predicate acts alleged in the indictment
were themselves violent.

On appeal, Ayala renews his argument that the RICO con-
spiracy was not a crime of violence under § 924(c). He notes
that many RICO predicate acts are not violent crimes, and he
faults the government for not specifying in the indictment
which predicate act he intended to commit on the day he pos-
sessed the firearm. He further contends that we may not look
to the particular facts of the case to determine whether he was
involved in a violent crime that day.

Ayala’s argument is misplaced. We have recognized that a
conspiracy can itself be "a separate crime of violence provid-
ing its own predicate for § 924(c)(1) liability." United States
v. Phan, 121 F.3d 149, 152-53 (4th Cir. 1997). It is therefore
immaterial that the government did not specify which predi-
cate act was intended on the day at issue. The question is sim-
ply whether the RICO conspiracy itself was a crime of
violence under § 924(c).

Section 924(c) defines a crime of violence as, among other
things, a felony "that by its nature, involves a substantial risk
that physical force against the person or property of another
14 UNITED STATES v. AYALA
may be used in the course of committing the offense." 18
U.S.C. § 924(c)(3)(B). Under this definition, a conspiracy "is
itself a crime of violence when its objectives are violent
crimes." United States v. Elder, 88 F.3d 127, 129 (2d Cir.
1996). This is because "[w]hen conspirators have formed a
partnership in crime to achieve a violent objective, . . . they
have substantially increased the risk that their actions will
result in serious physical harm to others." United States v.
White, 571 F.3d 365, 371 (4th Cir. 2009) (making this obser-
vation when interpreting 18 U.S.C. § 924(e)).

To determine whether the objectives of this conspiracy
were violent crimes, we need not delve into the particular
facts of the case as Ayala contends. Instead, the question is
intrinsic to the indictment itself. Here, the indictment charges
a pattern of violent racketeering activities, including murder,
kidnapping, and robbery. It is hard to imagine a conspiracy
which, by its nature, poses more of a risk that physical force
will be used against persons or property. Other courts have
held that RICO conspiracies that surely posed less risk quali-
fied as crimes of violence under similarly worded statutes.
See, e.g., United States v. Ciccone, 312 F.3d 535, 541-42 (2d
Cir. 2002) (holding that a RICO conspiracy to commit extor-
tion was a crime of violence under the Bail Reform Act);
United States v. Juvenile Male, 118 F.3d 1344, 1350 (9th Cir.
1997) (holding that a RICO conspiracy to commit robberies
affecting interstate commerce was a crime of violence under
the Juvenile Delinquency Act). Thus, we have no difficulty in
concluding that a RICO conspiracy to commit crimes includ-
ing murder, kidnapping, and robbery is by its nature a crime
of violence under § 924(c)(3)(B). Accordingly, we find no
error in the district court’s ruling and affirm Ayala’s convic-
tion under that section.

IV.

Next, Ayala raises several evidentiary claims, which we
address in turn. First, Ayala challenges the admission of state-
 UNITED STATES v. AYALA 15
ments under the coconspirator exception to the hearsay rule.
See Fed. R. Evid. 801(d)(2)(E). Ayala contends that the dis-
trict court permitted MS-13 members to testify about discus-
sions that took place at clique meetings without attributing
statements to particular declarants. In Ayala’s view, this was
in error because the declarant of these statements may have
been Noe Cruz, who was a government informant and thus
not a member of the conspiracy. We review a district court’s
decision to admit coconspirator statements for abuse of dis-
cretion, United States v. Blevins, 960 F.2d 1252, 1255 (4th
Cir. 1992), and find no such abuse here.

For a statement to be admissible under Rule 801(d)(2)(E),
there "must be evidence [1] that there was a conspiracy
involving the declarant and the nonoffering party, and [2] that
the statement was made ‘during the course and in furtherance
of the conspiracy.’" Bourjaily v. United States, 483 U.S. 171,
175 (1987). Regarding the first requirement, it is not neces-
sary for the offering party to identify the declarant by name.
See United States v. Squillacote, 221 F.3d 542, 564 (4th Cir.
2000) (admitting an unsigned document under Rule
801(d)(2)(E) "notwithstanding the government’s inability to
identify the declarants"). Instead, the offering party need only
"show that the unknown declarant was more likely than not
a conspirator." United States v. Helmel, 769 F.2d 1306, 1313
(8th Cir. 1985).

Here, Ayala’s concern appears to be that an unattributed
statement may have been made by Cruz, rather than by a
member of the conspiracy. But it is not clear which statements
Ayala is complaining about. Although he frames his argument
in broad terms, he admits that it is "hard to find" any exam-
ples where Cruz’s statements may actually have come into
evidence. Br. of Appellants at 22.

In fact, Ayala produces only one possible example from the
entire record. MS-13 member Emilia Masaya testified about
a meeting where she learned from an unidentified declarant
16 UNITED STATES v. AYALA
that Ayala was arrested after going to Baltimore, Maryland to
commit a murder. Ayala contends that this statement must
have come from Cruz, but the record does not back up this
claim. To be sure, it was later revealed at trial that Cruz
attended the meeting in question, but there is no indication
either way about whether he was the one who brought up the
matter. He certainly knew about the arrest prior to the meet-
ing, but the record indicates that other gang members did as
well. And given that Masaya was repeating a comment from
a meeting where all but one of the attendees were coconspira-
tors, we cannot conclude that the district court abused its dis-
cretion in admitting the statement. In any event, we find that
the statement was harmless under Federal Rule of Criminal
Procedure 52(a) in light of the substantial other evidence at
trial about Ayala’s arrest and the events leading up to it.

In his brief, Ayala also cites a number of instances where
Noe Cruz testified about statements made by other MS-13
members at clique meetings and gatherings. For example,
Cruz recalled a meeting where Moriera told the Sailors clique
that he had murdered Calderon and then cautioned the mem-
bers not to act as Calderon had. To the extent that Ayala is
challenging these statements, we find that they were clearly
admissible under the coconspirator exception. The fact that
Cruz was not a member of the conspiracy at the time he heard
these remarks is simply irrelevant to their admissibility under
Rule 801(d)(2)(E). All that is required is that a statement be
made by one of the defendant’s coconspirators, not to a
coconspirator, in the course and in furtherance of the conspir-
acy. See, e.g., United States v. Williamson, 53 F.3d 1500,
1519 (10th Cir. 1995); United States v. Beech-Nut Nutrition
Corp., 871 F.2d 1181, 1199 (2d Cir. 1989).

Indeed, this court has previously recognized that statements
"made by a co-conspirator to a third party who is not then a
member of the conspiracy" are admissible when made in the
course and furtherance thereof. United States v. Shores, 33
F.3d 438, 444 (4th Cir. 1994). Accordingly, that a comment
 UNITED STATES v. AYALA 17
was made to or in the presence of a government informant
does not, without more, render it inadmissible under Rule
801(d)(2)(E). See, e.g., United States v. Mealy, 851 F.2d 890,
901 (7th Cir. 1988). Here, the statements were made by
Ayala’s coconspirators and they regarded the gang’s criminal
activities and efforts to maintain discipline. Thus, the state-
ments were plainly admissible under the coconspirator excep-
tion, notwithstanding the fact that Cruz was an informant at
the time he heard them.

V.

Second, Ayala argues that the district court erred by admit-
ting evidence of a guilty plea he made in state court. The facts
relevant to this claim are as follows.

A.

As discussed above, Ayala was arrested on February 23,
2005 and charged in state court with transporting a firearm.
Laura Gwinn, an assistant state’s attorney, handled his case.
At the time, Gwinn was aware that there was an ongoing
investigation into the activities of MS-13 that could lead to
federal RICO charges. In fact, she would later be designated
as a special assistant prosecutor in the resulting federal case.
She was not, however, a federal prosecutor at the time she
handled Ayala’s state case.

At some point prior to July 2005, Gwinn contacted Ayala’s
counsel to discuss the possibility of a plea agreement for the
firearms charge. Gwinn proposed that Ayala enter a guilty
plea in return for a sentence of nine months of imprisonment
and three years of probation. Ayala’s counsel then proposed
that the nine months be served as home detention. Gwinn
agreed, and Ayala entered a guilty plea pursuant to these
terms on July 18, 2005. At no point did Gwinn disclose the
existence of the ongoing investigation.
18 UNITED STATES v. AYALA
Ayala was released on home detention on August 5, 2005.
Then on August 23, 2005, a federal grand jury indicted him
for crimes arising out of his involvement in MS-13, which led
to the instant prosecution. At trial in this case, the government
sought to introduce Ayala’s guilty plea as evidence that he
possessed a firearm on February 23, 2005. Ayala objected,
arguing that his plea was involuntary because he was not
informed that the plea might be used against him in a subse-
quent federal prosecution. After careful consideration, the dis-
trict court rejected the argument and admitted evidence of the
guilty plea under Federal Rule of Evidence 801(d)(2)(A) as an
admission by a party-opponent.

B.

On appeal, Ayala argues that his state court plea was con-
stitutionally invalid and thus inadmissible because he was not
informed that it might be used as evidence against him in a
future federal prosecution.

So far as we are aware, Ayala has never raised any objec-
tion to the validity of his state plea before this time, and a
strong presumption of validity attaches to a plea that has
never been questioned and no court has found infirm. As the
First Circuit has noted, there is a question about whether this
is even the appropriate venue to be litigating the plea’s valid-
ity. "Ordinarily, it is inappropriate for a federal court to
review such a claim without allowing the state courts a prior
opportunity to do so." United States v. Bouthot, 878 F.2d
1506, 1511 (1st Cir. 1989). Even apart from the fact that
Ayala has never sought before this moment to withdraw the
plea, the district court’s decision to admit it was sound.

For a guilty plea to be constitutionally valid, a defendant
must be informed of the "direct" but not the "collateral" con-
sequences of the plea. Cuthrell v. Dir., Patuxent Inst., 475
F.2d 1364, 1365 (4th Cir. 1973); see also Brady v. United
States, 397 U.S. 742, 755 (1970). This distinction "turns on
 UNITED STATES v. AYALA 19
whether the result represents a definite, immediate and largely
automatic effect on the range of the defendant’s punishment."
Cuthrell, 475 F.2d at 1366. While this distinction may be elu-
sive in some cases, it is not so here.

Whether a guilty plea in state court might be used in a sub-
sequent federal prosecution is plainly a collateral conse-
quence. In our system of dual sovereigns, state and federal
courts run on separate tracks; thus, a guilty plea in one does
not automatically lead to consequences in the other. As the
Seventh Circuit has explained, "the state court has no direct
role in federal prosecutions. The state and federal systems are
separate and distinct, and the defendant need only be
informed of the direct consequences he may face within the
particular system." United States v. Long, 852 F.2d 975, 979
(7th Cir. 1988); accord United States v. Williams, 104 F.3d
213, 216 (8th Cir. 1997); United States v. Maestas, 941 F.2d
273, 279 (5th Cir. 1991); Bouthot, 878 F.2d at 1511.

This analysis holds even where, as here, state officials are
aware of a pending federal investigation in which the defen-
dant’s guilty plea might be used. Bouthot, 878 F.2d at 1511-
12; United States v. Jordan, 870 F.2d 1310, 1317 (7th Cir.
1989). In these circumstances, federal prosecution is not auto-
matic. Instead, it turns on whether federal officials elect to
bring a charge, a choice over which state officials have no
control. See Jordan, 870 F.2d at 1317 ("[F]ederal prosecution
was only a possibility over which the State’s Attorney had no
control . . . ."). As the district court observed in this case, after
Ayala pled guilty in state court, federal prosecutors still had
to decide "what charges they would seek to bring and
whether, indeed, Mr. Ayala would even be involved." Thus,
we conclude that Ayala’s plea was not invalid simply because
he was not informed of the possibility that it might be used
against him in a subsequent federal prosecution. Indeed, this
possibility is obvious and exists in almost every case, particu-
larly cases that involve firearms.
20 UNITED STATES v. AYALA
Ayala also alleges that the state prosecutor somehow mis-
led him into entering the plea agreement. He argues that
Gwinn’s failure to disclose the possibility of a federal prose-
cution was tantamount to misrepresentation because it left
him with the impression that he would be able to serve out his
state sentence without interruption.

This misrepresentation claim is little more than a repackag-
ing of the one above. We reject it as well. The district court
concluded that Gwinn never "said anything that [was] mis-
leading," nor did she make a "promise to Mr. Ayala that he
would not be prosecuted in Federal Court for crimes arising
out of the event that was the subject of his guilty plea." Ayala
does not contest those findings, and we decline to equate a
prosecutor’s silence about collateral consequences with mis-
representation. The cases simply prohibit prosecutors from
making false statements or breaking promises. See, e.g., San-
tobello v. New York, 404 U.S. 257, 262 (1971). They most
certainly do not "place an affirmative duty on the prosecution
to discuss all possible ramifications of a defendant’s guilty
plea." Jordan, 870 F.2d at 1316.

Accordingly, Gwinn did not engage in misrepresentation by
remaining silent about the federal investigation. If anything,
Gwinn may well have had an obligation not to discuss it. It
appears that Gwinn knew about the federal grand jury, in
which case she likely was barred from disclosing its existence
under Federal Rule of Criminal Procedure 6(e). But at a mini-
mum, she risked seriously jeopardizing that investigation had
she disclosed its existence to a known member of MS-13.

For these reasons, we find no error in the district court’s
decision to admit evidence of Ayala’s guilty plea.1
1
Ayala also claims that Gwinn offered him the plea as a ruse to place
him on home detention to provide the justification for the search of his
residence weeks later. This claim fails for numerous reasons, namely that
Ayala voluntarily opted for the benefit of home detention as opposed to
imprisonment, that he violated a court order by his continuing contact with
MS-13 members while in the home, and that irrespective of his home
detention, the address was one long associated with him and likely would
have been the subject of a search in any event.
 UNITED STATES v. AYALA 21
VI.

Third, Ayala challenges the admission of statements that he
and his fellow MS-13 members made before a state grand
jury. The relevant facts are as follows.

A.

In July 2004, three members of the Sailors clique—Noe
Cruz, Israel Cruz, and Santos Garcia—were subpoenaed to
testify before a state grand jury. The grand jury was investi-
gating a gang-related murder committed by Ayala’s brother
and two other MS-13 members in Suitland, Maryland. Ayala
and Emilia Masaya had not been subpoenaed but decided to
accompany the others to the courthouse on the day in ques-
tion. Prior to entering the courthouse, all five MS-13 members
met at a nearby restaurant, where they agreed to deny their
knowledge of the murder.

After the group arrived at the courthouse, an investigator
approached Ayala about the possibility of testifying before the
grand jury. He informed Ayala that he would be subpoenaed
at a later date and gave him the option to go ahead and testify
that day. He also advised Ayala that he had the right to an
attorney.

Ayala elected to testify that day. After Ayala was sworn in,
the state’s attorney informed him that he had a right against
self-incrimination and the right to an attorney. Ayala stated
that he understood those rights and did not wish to be repre-
sented. He then proceeded to testify, falsely denying that his
brother had spoken with him about the murder.

Israel Cruz and Santos Garcia also testified before the
grand jury and denied any knowledge of the murder. In order
to maintain the cover of Noe Cruz, the government informant,
the state’s attorney called him before the grand jury and told
him the questions she had asked the others. After leaving the
22 UNITED STATES v. AYALA
courthouse, the gang members discussed the fact that they had
lied to the grand jury as planned.

At trial in this case, the government sought to introduce the
grand jury statements of Israel Cruz, Santos Garcia, and
Ayala as evidence that they obstructed justice in furtherance
of the RICO conspiracy. Ayala argued (1) that the testimony
of Cruz and Garcia was inadmissible under the Confrontation
Clause and (2) that his own testimony was inadmissible
because he had not been informed that he had a right to
appointed counsel. The district court rejected both arguments
and admitted the statements. On appeal, Ayala challenges
both rulings.

B.

Ayala argues that the district court admitted the grand jury
statements of Israel Cruz and Santos Garcia in violation of the
Confrontation Clause. He contends that these statements were
"testimonial" and thus inadmissible under Crawford v. Wash-
ington, 541 U.S. 36 (2004), given that he did not have an
opportunity to cross-examine either individual.

Crawford generally 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 had a prior
opportunity for cross-examination." Id. at 53-54. To be sure,
sworn statements before a grand jury are plainly testimonial.
See id. at 51-52 (providing examples of the "core class" of
testimonial statements including "formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions") (internal quotation omitted). But Crawford is
quite explicit that the Confrontation Clause does not eliminate
the use of testimonial statements across the board. As the
Court explained, it "does not bar the use of testimonial state-
ments for purposes other than establishing the truth of the
matter asserted." Id. at 60 n. 9.
 UNITED STATES v. AYALA 23
Here, the district court admitted the statements not for their
truth but merely to prove that Cruz and Santos made certain
denials before the grand jury. "[E]vidence is not hearsay when
it is used only to prove that a prior statement was made and
not to prove the truth of the statement." Anderson v. United
States, 417 U.S. 211, 220 n.8 (1974). As the district court
explained, the statements were the equivalent of a "physical
exhibit that demonstrates that words were spoken." By intro-
ducing them, the government was simply laying a foundation
to show that the statements were false and made in further-
ance of the conspiracy. It did so by calling at trial witnesses
Noe Cruz and Emilia Masaya, who testified about the group’s
plan to cover up their knowledge of the murder and who, of
course, were subject to cross-examination. Accordingly, the
admission of the grand jury statements did not violate the
Confrontation Clause.

C.

Next, Ayala argues that his own grand jury testimony was
improperly obtained because he was not informed that he had
a right to appointed counsel under the Sixth and Fourteenth
Amendments. This claim is easily dismissed. It is well estab-
lished that the Sixth Amendment right to counsel "does not
attach until a prosecution is commenced" against a defendant.
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). Commence-
ment refers to "the initiation of adversary judicial criminal
proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment." United
States v. Gouveia, 467 U.S. 180, 188 (1984) (internal quota-
tion omitted). Although Ayala was the subject of an ongoing
investigation, he had not been charged at the time he testified
before the grand jury. Thus, his Sixth Amendment right to
counsel had not yet attached, and we find no error in the dis-
trict court’s decision to admit his statements. Accord, e.g.
United States v. Myers, 123 F.3d 350, 359 (6th Cir. 1997);
United States v. Vasquez, 675 F.2d 16, 17 (2d Cir. 1982).
24 UNITED STATES v. AYALA
VII.

We now turn to Velasquez’s claims. Velasquez argues that
the district court unduly limited his ability to cross-examine
the two teenage victims of the gang rape. Specifically, he
claims that the district court erred by precluding him from
inquiring about the girls’ prior inconsistent statements, their
medical treatment, and their psychiatric treatment. We review
restrictions on cross-examination for abuse of discretion.
United States v. Ambers, 85 F.3d 173, 175 (4th Cir. 1996).

The Confrontation Clause of the Sixth Amendment guaran-
tees a criminal defendant an opportunity for effective cross-
examination. See Davis v. Alaska, 415 U.S. 308, 315-16
(1974). The clause does not, however, confer the right to
cross-examine "in whatever way, and to whatever extent, the
defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (per curiam). District courts thus "retain wide latitude
insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on con-
cerns about, among other things, harassment, prejudice, con-
fusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant." Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986).

Although Velasquez asserts that the district court seriously
hampered his ability to cross-examine the witnesses, the
record reveals an entirely different story. The court permitted
Velasquez’s counsel to question the witnesses on a wide vari-
ety of matters including whether they had previously skipped
school, whether they used alcohol, what clothing one of them
wore, and whether they had voluntarily kissed and danced
with some of the men at the apartment. By contrast, the limi-
tations he complains about were minor.

Velasquez first contends that the district court unduly lim-
ited his ability to question the victims about their prior state-
ments. The record shows, however, the court permitted his
 UNITED STATES v. AYALA 25
counsel to question the girls at quite some length on discrep-
ancies between statements they gave to police and to medical
examiners. The court merely sustained objections when
Velasquez’s counsel put his questions in improper form by,
among other things, assuming facts not in evidence, calling
for speculation, or asking the witnesses to comment on the
veracity of others. The district court plainly had discretion to
require Velasquez’s counsel to abide by these elementary pre-
cepts to ensure that the jury was not misled, and these restric-
tions did nothing to limit the substance of his questioning.

Velasquez next complains that he should have been given
more freedom to examine the victims’ medical treatment, but
this claim is meritless as well. In the only example he cites,
one of the girls testified that she had not been on any medica-
tion at the time of the gang rape. Velasquez’s counsel then
asked her whether she was currently on any medication, and
the district court sustained the government’s objection after
his counsel failed to proffer any relevant basis for the ques-
tion. Given this failure by counsel, there was clearly no abuse
of discretion by the district court.

Lastly, Velasquez challenges the district court’s decision
not to allow him to ask one girl whether she was under the
care of any counselor, psychotherapist, or psychiatrist. We
have previously cautioned that permitting a defendant to
cross-examine an adverse witness on such matters tends to be
"unnecessarily demeaning" and will "generally introduce into
the case a collateral issue, leading to a large amount of testi-
mony substantially extraneous to the essential facts and issues
of the controversy being tried." United States v. Lopez, 611
F.2d 44, 45 (4th Cir. 1979). Thus, district courts should
"weigh the potential unfairness of a free wheeling inquiry
intended to stigmatize the witness against whatever material-
ity the evidence might have." Id. at 46 (internal quotation
omitted). Here, it is not clear what relevance, if any, this
information had because Velasquez’s counsel did not explain
his reasons for asking the question. Moreover, the district
26 UNITED STATES v. AYALA
court was rightly concerned about the danger of demeaning a
witness who had already endured one horrific and humiliating
experience. Accordingly, we find no abuse of discretion here.2

VIII.

We now turn to the defendants’ collective claims. Both
defendants challenge the district court’s decision not to
instruct the jury on the definition of reasonable doubt. But
"the well-established rule of this Circuit is that although the
district court may define reasonable doubt to a jury . . . the
district court is not required to do so." United States v. Wal-
ton, 207 F.3d 694, 696-97 (4th Cir. 2000) (en banc). As we
have observed, "attempting to explain the words ‘beyond a
reasonable doubt’ is more dangerous than leaving a jury to
wrestle with only the words themselves." Id. at 698. Accord-
ingly, the district court did not err in declining to issue such
an instruction.

IX.

Lastly, the defendants contend that the district court admit-
ted the testimony of three expert witnesses in violation of the
2
Velasquez also challenges the district court’s exclusion of love letters
and family photographs that he ostensibly submitted to show that he did
not write or dress like a typical MS-13 member. The district court found
the letters irrelevant because the government had not put on evidence that
gang members always wrote in a particular fashion. It likewise found the
photographs irrelevant because they were either taken before he entered
the gang or simply did not show him wearing clothes that were inconsis-
tent with gang membership. We find no error in these rulings.
Lastly, Velasquez challenges the sufficiency of the evidence supporting
his convictions for RICO conspiracy in violation of 18 U.S.C. § 1962(d),
use of a firearm during and in relation to a crime of violence in violation
of 18 U.S.C. § 924(c) and 18 U.S.C. § 2, and assault with a dangerous
weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3) and
18 U.S.C. § 2. After carefully reviewing the record, we find that the evi-
dence was sufficient to support the jury’s verdict on each of these counts.
 UNITED STATES v. AYALA 27
Confrontation Clause as interpreted by Crawford v. Washing-
ton, 541 U.S. 36 (2004), because the experts relied in part on
interviews with unnamed declarants. The facts relevant to this
claim are as follows.

A.

At trial, the government called three experts on the history,
structure, and practices of MS-13 to the stand. First, Detective
Frank Flores of the Los Angeles Police Department provided
a general overview of the gang’s history, structure, and opera-
tions. Second, a police officer from El Salvador, appearing
under a pseudonym for his own protection, testified about the
gang’s structure and its activities in El Salvador. Third, Ser-
geant George Norris of the Prince George’s County Police
Department testified that some items seized during the inves-
tigation, such as membership rolls and dues sheets, were
likely associated with MS-13.

Each expert based his opinion on extensive experience
investigating MS-13. Sergeant Norris, for instance, explained
that he had conducted surveillance of the gang on many occa-
sions and had participated in the execution of over fifty search
warrants related to the gang. Each expert stated that much of
his knowledge about the gang resulted from interviews with
gang members, the families of gang members, and the gang’s
victims. Detective Flores, for example, remarked he had per-
sonally "contacted or interviewed well over 500" MS-13
members over the last seven and a half years.

B.

In Crawford, the Supreme Court held that the Confronta-
tion Clause bars the "admission of testimonial statements of
a witness who did not appear at trial unless he was unavail-
able to testify, and the defendant had had a prior opportunity
for cross-examination." 541 U.S. at 53-54. "[F]or a statement
to be testimonial," we have explained, "the declarant must
28 UNITED STATES v. AYALA
have had a reasonable expectation that his statement would be
used prosecutorially." United States v. Udeozor, 515 F.3d
260, 269 (4th Cir. 2008).

Here, the defendants acknowledge that the experts’ testi-
mony was proper under Federal Rule of Evidence 703, which
permits experts to rely on otherwise inadmissible evidence if
"of a type reasonably relied upon by experts in the particular
field." But they contend that Crawford silently invalidated
Rule 703 insofar as it permits experts to rely on statements,
such as the interviews here, that happen to be testimonial.

We have previously rejected this very argument. While
"Crawford forbids the introduction of testimonial hearsay as
evidence in itself," it does not "prevent[ ] expert witnesses
from offering their independent judgments merely because
those judgments were in some part informed by their expo-
sure to otherwise inadmissible evidence." United States v.
Johnson, 587 F.3d 625, 635 (4th Cir. 2009). In Johnson, we
recognized the danger, however, that an expert might be "used
as little more than a conduit or transmitter for testimonial
hearsay." Id. Accordingly, we held that the question when
applying Crawford to expert testimony is "whether the expert
is, in essence, giving an independent judgment or merely act-
ing as a transmitter for testimonial hearsay." Id.

Applying that test here, we find no Crawford violation. As
an initial matter, it is unclear whether the interviews these
experts relied on were even testimonial, given that the record
is rather bare about the circumstances in which they were con-
ducted. But even if we assume that each expert did rely on
testimonial statements, that fact alone does not offend the
Confrontation Clause because the experts did not act as mere
transmitters and in fact did not repeat statements of particular
declarants to the jury. Instead, they offered their independent
judgments, most of which related to the gang’s general nature
as a violent organization and were not about the defendants in
particular. These judgments resulted from many years of
 UNITED STATES v. AYALA 29
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.

X.

For the reasons above, the judgment of the district court is

AFFIRMED.