Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the last few years, the federal government has stepped up its prosecution of gangs, including prison gangs, under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962. The clear goal of these prosecutions is to hit at the heart of the leadership of organizations dedicated to illegal activities, including narcotics sales, obstruction of justice and murder. Whether its focus is the Mexican Mafia (“Eme”) or a white supremacist organization like the Aryan Brotherhood, the government has increasingly used the superconspiracy law of RICO to tie together patterns of criminal activity and seek long sentences and even the death penalty against its participants. While it is clearly established that RICO can be used to prosecute prison and street gangs (see, e.g., U.S. v. Fernandez, 388 F.3d 1199 (9th Cir. 2004)), such prosecutions are not without their difficulties. A myriad of issues can arise in using RICO to prosecute these cases. Regularly, courts must resolve disputes over the use of anonymous juries, joinder of multiple parties, use of wiretap evidence, courtroom security and limitations on both discovery and cross-examination for the defense. Anonymous juries are a regular issue in RICO cases An issue that regularly arises in RICO prosecutions is the use of anonymous juries. In federal court, the judge has discretion to empanel an anonymous jury. U.S. v. Shryock, 342 F.3d 948, 971 (9th Cir. 2003), cert. denied, 541 U.S. 965 (2004). Because anonymous juries may signal that defendants are dangerous and guilty, judges are required to have a strong reason to use them. See U.S. v. DeLuca, 137 F.3d 24, 31 (1st Cir. 1998). Additionally, the court must employ “reasonable safeguards . . . to minimize any risk of infringement upon the fundamental rights of the accused.” Id. In prison gang cases, courts regularly look to five factors to decide whether an anonymous jury is warranted: (1) the defendants’ involvement with organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment. U.S. v. Krout, 66 F.3d 1420, 1427 (5th Cir. 1995). Given the record of violence by many prison gangs, as well as their connections outside the prisons and their commitment to silencing any opponents, courts have been very open to using anonymous juries for their trials. See U.S. v. Shryock, 342 F.3d at 970; U.S. v. Krout, 66 F.3d 1420, 1426 (5th Cir. 1995). However, to minimize the prejudice to defendants, courts have been encouraged to come up with neutral explanations for their decisions. For example, judges will often tell jurors that jury anonymity is “routine,” and that there is a general need for juror confidentiality. Whether these explanations really convince jurors is unknown, but the appellate courts believe these white lies adequately safeguard against the possibility of prejudice. See, e.g., U.S. v. Fernandez, 388 F.3d 1199 (9th Cir. 2004); U.S. v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998); U.S. v. Edmond, 52 F.3d 1080, 1093 (D.C. Cir. 1995); U.S. v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991). Not surprisingly, the violent reputation of prison gangs usually prompts many courts to institute additional security measures for these RICO cases. These measures may include limited audience seating, metal detectors, log-in forms and required spectator identification. See, e.g., U.S. v. Shryock, 342 F.3d at 974-75. Once again, the court enjoys broad discretion in deciding whether such measures are appropriate. It is not a denial of a defendant’s Sixth Amendment right to an open, public trial for the court to take measures that may de facto limit access to the courtroom so long as the measures are supported by a showing of possible disruption and there is a reasonable amount of seating available to the defense, a court’s decision to employ security measures is considered “eminently reasonable,” especially when defendants are on trial for extraordinarily violent crimes. Id. at 975. The violent nature of prison gang cases has also been cited as a ground to limit cross-examination by defense counsel about prosecution informants. For example, in one particular Mexican Mafia case, the defense wanted access to an informant’s prison records in order to cross-examine the prosecution’s gang expert. The court denied the request. See U.S. v. Shryock, 342 F.3d at 979. The appellate court found that, at most, the court’s decision and the limitation it necessarily placed on defense counsel’s ability to cross-examine the government’s expert was harmless error. Id. at 979-80. There is ordinarily so much evidence of the general operations of some of these prison gangs, including wiretaps, prison tapes, video recordings and other witness testimony, that courts need not disclose information regarding government informants if their safety would be unnecessarily endangered. Given the procedural disadvantages of being tried in a RICO case and the taint of being tried with co-defendants charged with particularly heinous offenses, it is not surprising that one of the most common issues in prison gang cases is joinder. Improper joinder under Federal Rule of Criminal Procedure 8 is considered to be inherently prejudicial. U.S. v. Krout, 66 F.3d 1420, 1428 (5th Cir. 1995). Yet it is practically impossible to win on such a motion in a RICO case because the crime, by definition, allows the government to tie together a pattern of illegal behavior involving people loosely connected to a criminal enterprise. Moreover, courts are reluctant to grant a Rule 14 severance in such cases because an act by one gang member may facilitate a crime by another person. Thus, with minimal evidence that the defendants operate on behalf of the same criminal organization, they may be tried together in a large case that signals to the jury the very threat of the gang on trial. Of course, a standard issue in all RICO cases is a challenge to the applicability of the statute to nonmafia cases. Many gangs operate both in and out of prison. For example, the Netas are a gang that originated in the prison system of Puerto Rico. It is largely made up of ex-convicts and members of the prison population throughout New Jersey and New York. In U.S. v. Pimentel, 346 F.3d 285 (2d Cir. 2003), prosecutors charged Joanna Pimentel, the “Madriana” (godmother) of the Netas, with calling a hit on a gang member for raping several of the women in the gang and threatening Pimentel with retaliation when she put the gang member “on trial” for his behavior. Pimentel and her co-defendant were not just charged with conspiracy to murder. They were charged with using their activities to increase their position in the gang, in violation of the racketeering laws. The appellate court upheld the conviction. Violent crimes designed to have a defendant maintain or increase his or her position in a RICO enterprise violate federal law. Moreover, RICO laws expressly allow the government to combine a pattern of different types of criminal activities-such as murder, kidnapping, drug offenses and extortion-to prove a pattern of racketeering activity. Thus, a RICO charge, more so than other types of crimes, allows the prosecution to tell the entire sordid story of a gang’s operation. To do so, prosecutors predictably rely on co-conspirator statements. See U.S. v. Diaz, 176 F.3d 52, 83 (2d Cir. 1999). Given the scope of many of these gangs, the evidence rules allow a vast amount of what otherwise would be hearsay into the trial. Moreover, under the Pinkerton doctrine, all of the co-conspirators are responsible for the crimes of each other, including murder. Id. at 100. Additionally, courts are quite liberal in allowing Rule 404(b) evidence of other similar acts in prison gang cases. Thus, the government can introduce testimony regarding the creation of the gang, its modus operandi, the stockpiling of weapons, and its prior acts of violence that secured its stature as a RICO enterprise. Diaz, 176 F.3d at 79. Courts also typically admit evidence of gang-related tattoos to prove gang membership. Fernandez, 388 F.3d at 1246. Wiretap evidence is a factor in gang prosecutions Finally, the admissibility of wiretap evidence is frequently an issue in prison gang prosecutions. While courts rarely suppress wiretap evidence, challenges to surveillance is a fruitful area for the defense to learn the history of the prosecution’s investigation, its reliance on informants and the scope of its investigation methods. Evidence obtained in Franks hearings can lead to information useful in the cross-examination of government witnesses at trial. Occasionally, defense counsel may also convince the court that the agents’ boilerplate assertions in their affidavits do not substitute for a legitimate investigation warranting a wiretap. More frequently, however, courts will criticize the government but not penalize it. See, e.g., Fernandez, 388 F.3d at 1237. In the end, defense counsel have a difficult job defending prison murder cases. The most fruitful tactic is probably the most basic: attacking the credibility of the prosecution’s witnesses. Inevitably, prosecutors rely on the testimony of other gang members who come with their own baggage. They are convicts, liars and opportunists. If defense counsel can get the jury to despise the witnesses more than the defense, they may have a fighting chance. Laurie L. Levenson is a professor of law, William M. Rains fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.