United States v. Marvin Gutierrez

majority opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-4308

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

CRISTIAN ARIEL AREVALO ARIAS, a/k/a Serio,

Defendant – Appellant.

No. 24-4325

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

MARVIN MENJIVAR GUTIERREZ, a/k/a Astuto,

Defendant – Appellant.

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No. 24-4358

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

CARLOS JOSE TURCIOS VILLATORO, a/k/a Carlos Jose Turicios Villatoro, a/k/a

Oculto,

Defendant – Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at

Alexandria. Leonie M. Brinkema, District Judge. (1:21-cr-000260-LMB-5; 1:21-cr000260-LMB-2; 1:21-cr-000260-LMB-6)

Argued: March 20, 2026 Decided: September 3, 2026

Before RICHARDSON, QUATTLEBAUM, and BERNER, Circuit Judges.

Nos. 24-4308 and 24-4325 affirmed and No. 24-4358 vacated and remanded by published

opinion. Judge Quattlebaum wrote the opinion in which Judge Richardson and Judge

Berner joined.

Nos. 24-4308/4325. ARGUED: Bernadette Mary Donovan, DONOVAN & ENGLE,

PLLC, Charlottesville, Virginia, for Appellants. Jacqueline Romy Bechara, OFFICE OF

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:

Lawrence Hunter Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK,

TALBERT & WOODWARD, P.C., Virginia Beach, Virginia, for Appellant Marvin

Menjivar Gutierrez. Matthew K. Hoff, Violent Crime & Racketeering Section, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Erik S. Siebert, United States

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Attorney, Alexandria, Virginia, John C. Blanchard, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

No. 24-4358. ARGUED: Gregory M. Lipper, LIPPER LAW PLLC, Washington, D.C.,

for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Elizabeth L. Van Pelt,

LIBBEY VAN PELT LAW, PLLC, Arlington, Virginia, for Appellant. Matthew K. Hoff,

Violent Crime & Racketeering Section, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Jessica D. Aber, United States Attorney, Vetan Kapoor, Assistant United

States Attorney, Alexandria, Virginia, John C. Blanchard, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

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QUATTLEBAUM, Circuit Judge:

These appeals arise from a joint trial of three MS-13 members charged with

racketeering, murder, witness tampering and drug offenses. After counsels’ closing

arguments, the district court instructed the jury to completely disregard one defendant’s

entire closing after finding portions of it improper. That instruction cured any prejudice the

two codefendants may have experienced if the argument was indeed improper because it

expressly removed the challenged argument from their cases. But the same instruction was

a prejudicial abuse of discretion for the defendant whose entire summation was stricken.

So, we vacate the convictions of that defendant. But, because we find no reversible error

on the issues the other defendants raise, we affirm their convictions.

I. BACKGROUND

To set up the issues on appeal, we start with an overview of the events giving rise

to this case and its procedural history, focusing on the trial testimony of a key government

witness. As we move into our discussion of the parties’ arguments, we will include

additional factual information specific to those issues.

Woodbridge, Virginia experienced a spree of violent crime in the summer of 2019.

Milton Beltran Lopez and Jairo Geremeas Mayorga were murdered in June, Eric Tate was

murdered in August and Antonio Smith was murdered in September. Following extensive

investigations into these murders and other criminal activities, state and federal authorities

zeroed in on several individuals who were either members of or had close ties to the Sitios

Locos Salvatrucha (STLS) clique of MS-13.

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In January 2022, a federal grand jury in the Eastern District of Virginia returned a

superseding indictment against 12 defendants: Marvin Menjivar Gutiérrez, Melvin Canales

Saldana, Mario Antonio Guevara Rivera, Cristian Ariel Arevalo Arias, Carlos Jose Turcios

Villatoro, Abner Jose Molina Rodriguez, Manilester Andrade Rivas, Jairo Gustavo

Aguilera Sagastizado, Walter Jeovanny Rubio Lemus, Juan Carlos Hernández Landaverde,

Karen Estefany Figueroa Alfaro and Juan Manuel Vasquez Reyes. 1 As the government’s

investigation continued, several of these defendants—including Guevara, Molina and

Vasquez—pled guilty and agreed to cooperate with law enforcement.

On June 15, 2023, the grand jury returned a second superseding indictment against

eight defendants. The second superseding indictment charged Menjivar, Arevalo and

Turcios in two overarching conspiracies: racketeering (Count One)—which the indictment

charged under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

§ 1962—and cocaine distribution (Count Two). It also charged all three of these defendants

with various charges related to the murders. The indictment charged most of these offenses

as violent crimes in aid of racketeering activity (VICAR). See 18 U.S.C. § 1959. It charged

the three defendants with three counts related to the murder of Beltran: VICAR conspiracymurder (Count Three), VICAR murder (Count Four) and use of a firearm during a crime

of violence causing death (Count Five). It charged Arevalo and Turcios with three counts

In a previous indictment, the grand jury had charged Aguilera alone with various

crimes related to murdering Smith. And a Special Agent with the Federal Bureau of

Investigation had previously filed a criminal complaint, accusing Rubio of conspiring to

distribute cocaine.

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related to the murder of Geremeas: VICAR murder (Count Six), use of a firearm during a

crime of violence causing death (Count Seven) and witness tampering by killing (Count

Eight). And in connection with Tate’s murder, it charged Arevalo with three counts:

VICAR conspiracy-murder (Count Nine), VICAR murder (Count Ten) and use of a firearm

during a crime of violence causing death (Count Eleven). And, finally, the grand jury also

charged Arevalo with one count of distributing cocaine (Count Seventeen). 2

Six of the eight individuals went to trial. 3 However, during a pre-trial conference on

December 20, 2023, the district court determined that trying all six defendants at the same

time would be difficult due to the complexity of the case. As a result, the district court

severed the cases for trial, electing to hold two trials with three defendants at a time. The

first trial began on January 8, 2024, and concerned the charges against Canales, Andrade

and Aguilera. 4 The second trial began on January 22, 2024, and concerned the charges

against Menjivar, Arevalo and Turcios—the three defendants at issue in this appeal.

Though the second superseding indictment charged other defendants, as mentioned

above, we only describe the charges as to Menjivar, Arevalo and Turcios, since they are

the three defendants in this appeal.

It is not obvious from the record what happened to the other two defendants, but

the disposition of the cases against them is not relevant to our opinion.

The appeals stemming from the first trial have been consolidated under the lead

case of United States v. Aguilera Sagastizado, No. 24-4251 (4th Cir. argued Mar. 20, 2026).

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A. Guevara’s Trial Testimony

The second trial lasted two full weeks. The government called over a dozen

witnesses. And Menjivar, Arevalo and Turcios called six witnesses. Among the

government’s witnesses was Guevara, who pled guilty and agreed to cooperate. The

government relied heavily on his recitation of the four murders. Because this testimony

provides the factual context for all the issues presented by this appeal, we describe it at the

outset.

1. STLS Background

Guevara testified on the structure and membership of STLS. At the time of the

events in this case, Menjivar was the First Word of STLS and Canales was the Second

Word. The First Word and the Second Word are positions for first and second in

command. 5 Guevara also stated that he, Molina, Turcios, Arevalo and Andrade were all

Observacións. An Observación is a junior member of MS-13 who is usually overseen by

more experienced gang members. MS-13 members are typically required to perform acts

of violence to be promoted within the gang. Lower ranked members aspire to become

Homeboys—meaning full-fledged members—which almost always requires committing

one or more homicides.

The information about the MS-13 ranks comes from an expert witness the

government called at trial. Guevara testified about who occupied those ranks at the time of

the events giving rise to this case.

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2. The Double Murder

Guevara explained that at some point during an STLS meeting, Menjivar and

Canales admonished the other STLS members to start killing rival gang members to move

up the ranks. The two leaders gave the others three months to find someone to kill. After

that, Arevalo was drinking at a hotel when he heard Beltran claiming to be a Sureño, a

member of a rival gang. So, Guevara, Arevalo and Turcios got permission from Menjivar

to kill Beltran and began searching for Beltran in places where they knew he hung out,

such as a grocery store called La Americana and a wooded area close to his house.

On the evening of June 21, 2019, Guevara, Arevalo and Turcios stopped for gas at

a station across the street from La Americana. As Arevalo walked into the station to buy

cigarettes and other items, he heard a voice coming from behind one of the gas station’s

trash cans that sounded like Beltran’s. But there were too many people around for them to

kill Beltran there. So, they decided to lure Beltran into the woods behind the market by

telling Beltran that they would give him drugs.

Arevalo dropped off Guevara and Turcios, who were armed with a 9mm Glock and

blades, in the wooded area and then returned to pick up Beltran. While Guevara and Turcios

were waiting in the woods, Arevalo texted them to say he had picked up Beltran but that

someone—who we now know was Geremeas—was with him. They decided to kill

Geremeas too because “if that person was hanging out with a rival, he probably was a rival”

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and because “if [they] were going to kill [Beltran], [they] could not leave the other person

alive because he would have already seen [them].” J.A. 958–59. 6

When Arevalo returned with Beltran and Geremeas, Turcios shot Beltran multiple

times. Geremeas tried to run away, but Turcios shot him too. Guevara then shot Beltran

several times. As he did so, Geremeas started to run away again, so Guevara shot Geremeas

as well. Arevalo then stabbed and shot Beltran. Guevara, Arevalo and Turcios all received

credit for two murders for purposes of advancing their rank in STLS.

3. Tate’s Murder

In August 2019, Canales instructed Guevara to give Arevalo or Andrede a gun for

them to use in a murder they were planning. Guevara did as he was told.

Later, Arevalo told Guevara that he, Andrade, Molina and Wilmer Candelario

Cabrera Rivera—one of the other defendants who was charged in the second superseding

indictment—had been to some apartments behind the La Americana to look for a rival to

kill. While they were there, they saw “a dark-skinned person” who “looked suspicious.”

J.A. 1014. We now know that this person was Tate. Tate stopped at the entrance of La

Americana and then turned around. Arevalo and Andrade followed him, walking around

some cars so that Tate would not see them.

Arevalo shot Tate in the back and handed the gun to Andrade. When Andrade froze,

Arevalo instructed him, “dog, shoot.” J.A. 1015. So, Andrade started shooting Tate.

Unless otherwise noted, citations to the record are to the docket in United States

v. Arevalo Arias, No. 24-4308.

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Andrade then tried to run away, but Tate, still alive, took out his own gun and fired.

Andrade shot Tate again. By this point, Molina returned and also shot Tate. While it is

unclear whether Arevalo received any credit, Andrade, Cabrera and Molina were all

promoted after Tate’s murder.

4. Smith’s Murder

In September 2019, Guevara testified that he, Aguilera and Molina were driving

around looking for someone to kill. They found several potential victims but did not kill

them because they were worried they would be seen. Eventually, they parked their car and

found Smith walking toward them.

Guevara then turned to Aguilera and stated, “we’re going to kill this one.” J.A. 1025.

Aguilera agreed. Guevara started shooting Smith in the back. Smith fell and turned over,

so Guevara shot him in the chest. Smith cried out, “oh my God, no, amigo, stop.” J.A.

1025. But Guevara continued shooting. Aguilera then asked for the gun, Guevara handed

it to him and Aguilera began shooting. Guevara, Aguilera and Molina were eligible for

promotions for murdering Smith. 7

B. The Verdict and this Appeal

Following the presentation of all the evidence, the jury found both Turcios and

Menjivar guilty on each count with which they were changed. And it found Arevalo guilty

It is not entirely clear from Guevara’s testimony what Molina’s involvement was

in this homicide. But we know from his testimony that Molina was present because

Guevara testified that after he and Aguilera returned to the car, Molina was holding a

weapon.

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on his counts except VICAR conspiracy-murder of Tate, VICAR murder of Tate and using

a firearm during the VICAR murder of Tate. 8

Menjivar, Arevalo and Turcios now appeal their convictions, asserting a host of

challenges to various rulings the district court made throughout the proceedings. 9

II. DISCUSSION

All three defendants challenge the district court’s decisions about Turcios’ closing

argument, so we begin by considering the district court’s handling of that issue and will

proceed to the other issues raised by defendants after that. For each issue, we start by

providing some additional background on the district court’s challenged rulings.

A. Turcios’ Closing Argument

1. Background

Turcios’ convictions turned substantially on his involvement in the double murder

of Beltran and Geremeas on June 21, 2019. And his defense primarily revolved around an

alibi and an alternative theory of the double murder. His first witness was Monse Ambriz.

Ambriz testified that she knew Turcios through Turcios’ cousin. According to Ambriz,

Turcios had been living with his aunt, but after she kicked him out he started living in a

The district court sentenced Menjivar to life in prison on Counts One and Four and

to 10 years on Counts Two and Three, to run concurrently. It sentenced Arevalo to life on

Counts One, Four, Six and Eight and to 10 years on Counts Two, Three and Seventeen, to

run concurrently. And it sentenced Turcios to life on Counts One, Four, Six and Eight, five

years in prison on Count Two and 10 years in prison on Count Three, to run concurrently.

We have jurisdiction over these appeals from the district court’s final judgment

under 28 U.S.C. § 1291.

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tent behind a trailer park. Ambriz testified that, on the evening of June 21, 2019, Turcios

texted her to ask for some food. So, she waited until her parents went to sleep, made Turcios

some eggs and met him at his tent at around 11 p.m. She stayed with Turcios in his tent for

approximately one hour.

After Ambriz, Turcios called Thomas Buckley and Philip Becnel, two private

investigators. Buckley testified that he and Becnel went to both the gas station and the La

Americana grocery store, where Arevalo had said he heard Beltran. Buckley went inside

the gas station while Becnel spoke in a normal voice standing next to the dumpsters.

Buckley stated that he could not hear Becnel at all.

After all parties rested, Turcios was the final defendant to give a closing argument.

His counsel began by honoring the victims and then explained why Turcios did not take

the stand. She said Turcios had a grade-school education in El Salvador and did not speak

English. She asked, “How can he ever compete with these prosecutors who are skilled in

cross-examination and highly educated?” J.A. 2063. So, she explained that Turcios had

decided “that it’s best to let [counsel] speak for [Turcios] as best as [she] can to tell his

story.” J.A. 2064.

Counsel then suggested that two of the government’s cooperating witnesses were

telling the truth when they testified about the other defendants’ involvement in STLS’

crimes. As for one of these witnesses, counsel stated, “[h]er tears on cross examination,

that was real pain to me. . . . I suggest to you that she probably was telling the truth, and

she probably got it right.” J.A. 2064–65. As for the other cooperating witness, counsel said,

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“[h]e had real regret to me.” J.A. 2065. But counsel contrasted those witnesses with

Guevara:

[Guevara] is a different story. The shifty eyes. The no emotion. That’s

what a sociopath looks like. I hope you never meet someone like him again

in your life. All of the guns, all of the lying, the brutality . . . . I told you in

opening statement that if you ran into [Guevara] on the street, you wouldn’t

trust him what it is time -- to tell you what time it is. I stand by that. And you

might run into him in the street, because if the government files their motion

and Judge Brinkema grants it, he may get out of jail and stay in this country.

J.A. 2065–66.

Counsel then offered the following theory of how the murders took place:

Here’s what I suggest happened. [Guevara] was driving around that

night with someone else, maybe [Molina]. There’s a lot of evidence of that.

It’s a Friday night, they’re out at the clubs, they’re selling cocaine, they’re

doing cocaine, something [Turcios] wasn’t involved with; right? They stop

at the Seven Mart, not at the Exxon, at the Seven Mart. My printer is dying,

so this is a horrible photo. This is not the one in evidence, you can look at the

one in evidence. And I can’t talk while I’m back there, but I’m going to go

back there, and I’m going to point out the dumpster.

I suggest to you that they’re driving around out randomly. If they

really wanted to get [Beltran] this night, [Guevara] said he knew where his

house was, he would have been waiting outside his house. No. They went

there, they heard [Beltran’s] voice, they saw [Beltran’s] voice -- or they saw

[Beltran], and [Guevara] and whoever was with him lured him with drugs

into the woods, shot and killed him and stabbed [Geremeas]. You heard from

Monse Ambriz, someone who, out of the goodness of her heart, came here

to testify. [Turcios] can’t do anything for her. He’s been in jail. He’ll get

deport- -- he can't do anything for her. She came in, and she told you that she

hiked up the hill behind the trailer park, and she was with him from 11 p.m.

to 12 a.m. that night. I suggest to you that perhaps [Turcios] then walked to

the Exxon -- that’s why the Exxon is in the story -- and they picked him up

after.

J.A. 2068–69. At one point, the government rose to object. But the district court instructed,

“Don’t object.” J.A. 2074. Eventually, Turcios’ counsel concluded—“I’m so worried I

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forgot something. [Turcios] has been in my mind for two and a half years, and this is the

hardest part of the case, because this is when I hand him over to you. . . . [P]lease take care

of him.” J.A. 2077.

After the closing arguments, Arevalo’s counsel complained to the court that

Turcios’ counsel’s comments about why Turcios did not testify indirectly and

inappropriately suggested Arevalo had no reason not to testify. Arevalo’s counsel then

argued for a severance because Turcios’ counsel had improperly argued, for the first time,

that the other defendants committed the murders without Turcios when, up until that point,

they had jointly defended the case. Ultimately, Arevalo moved for a mistrial and to have

his case severed from Turcios. And Menjivar’s counsel reiterated that it may have been

improper for Turcios’ counsel to comment on the credibility of the government’s

cooperating witnesses.

The district court seemingly had similar concerns. It noted “counsel are not

supposed to vouch for witnesses” and agreed Turcios’ “closing argument went way beyond

the bounds of appropriate conduct.” J.A. 2095. But the district court denied the motion to

sever and motion for a mistrial and proposed a jury instruction:

During the closing argument for [Turcios], [his counsel] made

improper and inappropriate statements regarding the credibility of the

witness in this case. Her closing argument improperly relied on her personal

perception of the witnesses’ credibility -- which is called vouching, and is

not permitted -- and her argument did not focus solely on the evidence

presented during the trial. I am, therefore, instructing you to completely

disregard the entire closing argument offered by [Turcios’ counsel] on behalf

of [Turcios]. You may not use any of the information or arguments she

offered as you deliberate in this case; however, nothing in this instruction

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changes the requirement that you cannot find [Turcios] guilty of any offense

unless the government has proven his guilt for that offense beyond a

reasonable doubt.

J.A. 2100.

Turcios objected to the proposed instruction and asked whether the district court

could instruct the jury to disregard only the offending remarks rather than the entire closing

argument. The district court declined this request:

Quite frankly, I thought it was way too emotional for federal court as

well. It was an inappropriate closing argument almost from the beginning.

But, nevertheless, once or twice, poor [government’s counsel] stood up to

object, and I gave him the hand signal to sit down.

But you were talking about things that were simply not in the record,

your description about how the indictment came forward, you were sort of

saying it was all because of [Guevara], and the government did properly

address that in the rebuttal argument, but that was not a proper closing

argument. So I’m not changing my approach to the instruction.

J.A. 2102. The district court later gave the proposed jury instruction.

After all three defendants were convicted, Arevalo and Menjivar moved for a new

trial based on Turcios’ improper closing argument and the prejudicial effects they alleged

stemmed from that argument. The district court reiterated its finding that Turcios’ closing

argument “was improper, for among other things, improperly vouching for a witness and

alluding to facts not in evidence.” J.A. 2503. However, the district court denied Arevalo

and Menjivar’s motion for a new trial. The court explained that its jury instruction was

sufficient to cure any prejudicial effect Menjivar or Arevalo may have faced, and the court

added that “[t]he overwhelming evidence introduced at trial—coupled with the

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comprehensiveness of the Court’s instructions to the jury—support the verdicts returned

by the jury and the interests of justice do not require a new trial.” J.A. 2504.

2. Discussion

Arevalo and Menjivar agree with the district court’s assessment that Turcios’

closing argument was improper. But they contend that the district court’s curative

instruction was insufficient to remedy their prejudice, so the district court should have

granted a mistrial. In contrast, Turcios contends his closing argument was proper. But he

argues that even if parts were improper, the district court erred by instructing the jury to

completely disregard his argument because that instruction effectively denied him the

opportunity to make a closing argument at all—which he contends violated his rights under

the Fifth and Sixth Amendments.

a. Standard of Review

We begin with our standard of review. District courts enjoy broad discretion in

limiting or controlling closing arguments to ensure those arguments do not “stray unduly

from the mark, or otherwise impede the fair and orderly conduct of the trial.” Herring v.

New York, 422 U.S. 853, 862 (1975). And for this reason, we normally review a district

court’s limitations on closing arguments for abuse of discretion. See, e.g., United States v.

Wiley, 93 F.4th 619, 631 (4th Cir. 2024). But the right of a criminal defendant to make a

closing argument is protected by the Sixth Amendment. See Herring, 422 U.S. at 856–63.

Thus, a district court may abuse its discretion when it effectively denies a criminal

defendant the opportunity to make a closing argument. See id.; see also United States v.

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King, 650 F.2d 534, 537 (4th Cir. 1981) (“Of course, the trial court retains the broad

discretion to limit the scope and duration of all phases of a trial, including closing

argument; however, this discretion must be exercised with proper regard for the

defendant’s constitutional rights.”). 10 Similarly, we review for abuse of discretion the

district court’s denial of a motion for a mistrial, its denial of a motion for severance and its

decision regarding curative instructions. See Westmoreland v. TWC Admin. LLC, 924 F.3d

718, 731 (4th Cir. 2019); United States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010); United

States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008).

b. Menjivar and Arevalo

With our standard of review in mind, we first turn to Menjivar and Arevalo’s

contention that several aspects of Turcios’ closing argument were improper. They claim

Turcios’ counsel improperly (1) waited until closing to introduce a mutually antagonistic

defense, (2) vouched for two of the government’s witnesses, (3) argued facts not in

evidence and (4) engaged in discussion of Turcios’ decision to not testify. Menjivar and

Because Turcios characterizes the district court’s actions in this case as effectively

denying him his right to make a closing argument, he suggests that this is both a

constitutional error and a pure legal question that we should review de novo. Perhaps there

is tension between abuse of discretion review and the protection of constitutional rights.

But if there is, we read both the Supreme Court’s decision in Herring, 422 U.S. at 856–63,

and our decision in King, 650 F.2d at 537, as resolving that tension by recognizing that a

district court retains discretion in controlling closing arguments but may abuse that

discretion if it crosses the line into denying a defendant the ability to make such an

argument. Moreover, even when we review for abuse of discretion, we review the district

court’s legal conclusions de novo, so a district court abuses its discretion if it makes an

error of law. See Koon v. United States, 518 U.S. 81, 100 (1996); United States v. Nixon,

130 F.4th 420, 428 (4th Cir. 2025).

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Arevalo argue that these various improprieties should have resulted in a mistrial because,

despite the curative instruction, the risk that the jury would be influenced by Turcios’

improper arguments was too great. They also argue that the district court’s curative

instruction may have created an additional problem—that the jury might disregard parts of

all three defendants’ closing arguments.

We do not need to decide if Turcios’ closing argument was improper to resolve

whether the district court erred in denying Menjivar and Arevalo’s request for a mistrial.

Even if it was, any prejudice to Menjivar or Arevalo that may have resulted from Turcios’

closing argument was rectified by the district court’s curative instruction.

We presume that jurors follow such a curative instruction. Samia v. United States,

599 U.S. 635, 646–47 (2023). True, that presumption is not absolute. Menjivar and Arevalo

contend that there are some instances when the risk of prejudice to a defendant is so great

that courts cannot rely on this presumption. But the presumption “yields only in the

‘exceptional’ case where inadmissible evidence makes so strong an impression that its

prejudicial effect cannot realistically be erased by an instruction to disregard.” United

States v. Ritter, 167 F.4th 677, 683 (4th Cir. 2026) (quoting Hopt v. Utah, 120 U.S. 430,

438 (1887)).

In Bruton v. United States, 391 U.S. 123 (1968)—a case Menjivar and Arevalo

analogize to—the Supreme Court held that a jury instruction could not cure the prejudice

faced by one defendant when he was implicated in a confession introduced into evidence

against his co-defendant. Id. at 136–37. The Court explained that “there are some contexts

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in which the risk that the jury will not, or cannot, follow instructions is so great, and the

consequences of failure so vital to the defendant, that the practical and human limitations

of the jury system cannot be ignored.” Id. at 135. Since then, however, the Court has

resisted extending the Bruton rule. For example, in Richardson v. Marsh, 481 U.S. 200,

202 (1987), the Court examined “whether Bruton requires the same result when the

codefendant’s confession is redacted to omit any reference to the defendant, but the

defendant is nonetheless linked to the confession by evidence properly admitted against

him at trial.” Id. at 202. The Court held that it did not, reiterating the importance of the

general presumption that juries follow instructions. Id. at 211. And in Samia, the Court

declined to extend Bruton to a situation when an officer testified about one defendant’s

confession without mentioning the non-confessing defendant. Samia, 599 U.S. at 653–54.

The Court explained that “to disregard or to make unnecessary exceptions to [the general

presumption] ‘would make inroads into th[e] entire complex code of . . . criminal

evidentiary law, and would threaten other large areas of trial jurisprudence.’” Id. at 647

(alterations in original) (quoting Spencer v. Texas, 385 U.S. 554, 562 (1967)).

For two reasons, we likewise decline to extend Bruton and, instead, presume that

the jury followed the district court’s instructions. First, as just described, the Supreme

Court has declined to extend Bruton beyond its facts, and applying Bruton here would do

just that. 11 Second, Turcios’ closing did not implicate the same concerns underlying

There may still be instances outside of the facts of this case when a curative

instruction is insufficient to ameliorate the effects of the introduction of inadmissible

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Bruton. That’s because Bruton was animated by the fact that the confession was in

evidence. See Bruton, 391 U.S. at 127 (“Here Evans’ oral confessions were in fact testified

to, and were therefore actually in evidence.”). But, in contrast, Turcios’ counsel’s

statements during closing were arguments, not evidence. See Long v. Hooks, 972 F.3d 442,

463 (4th Cir. 2020) (en banc) (“[I]t is elemental that counsel’s arguments are not evidence

in a case. It is literally black letter law.”).

We also find that, contrary to Menjivar and Arevalo’s suggestion, the text of the

district court’s curative instruction did not “create[] a risk that the jury would discount all

defense closing arguments, especially given the jury’s knowledge of defense

coordination.” Op. Br. at 69. Rather, the instruction identified Turcios’ closing argument

alone, directed the jury to disregard it and reiterated that the government bore the burden

of proving each defendant’s guilt beyond a reasonable doubt. Neither Menjivar nor Arevalo

identifies a record-specific reason to conclude that the jury could not follow that targeted

evidence. But, in those instances, the defendant must demonstrate “there is an

‘overwhelming probability’ that the jury will be unable to follow the court’s

instructions . . . and a strong likelihood that the effect of the evidence would be

‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (first quoting

Richardson, 481 U.S. at 208; and then quoting Bruton, 391 U.S. at 136); accord United

States v. Benson, 957 F.3d 218, 230 (4th Cir. 2020) (“[W]e can only reverse if there is

some specific reason to doubt that the jury adhered to the district court’s limiting

instruction.”). The only fact Menjivar and Arevalo offer to suggest the jury was unable to

follow the district court’s curative instruction is their observation that the jury acquitted

Arevalo of Tate’s murder while convicting Menjivar and Arevalo of every charge related

to the double homicide. But there could be many reasons for this decision, which we will

not parse here. And besides, the jury apparently did not believe the theories Turcios offered

in his closing, given that it convicted Turcios along with Menjivar and Arevalo for

murdering Beltran.

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direction. Thus, the district court did not abuse its discretion in formulating this instruction.

See Westmoreland, 924 F.3d at 731 (“Absent legal error, we review a district court’s jury

charge under the highly deferential abuse of discretion standard.”).

In sum, we find that the district court did not abuse its discretion in denying

Menjivar and Arevalo’s request for a mistrial because that curative instruction was

sufficient to cure any prejudice faced by Arevalo and Menjivar. 12

It is not entirely clear if Menjivar and Arevalo separately appeal the district court’s

denial of their motion to sever. If they do, we find the district court did not abuse its

discretion in declining to sever Turcios based on the antagonistic defense he offered in his

closing argument. Federal Rule of Criminal Procedure 14(a) states, “[i]f the joinder of

offenses or defendants in an indictment, an information, or a consolidation for trial appears

to prejudice a defendant or the government, the court may order separate trials of counts,

sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim.

P. 14(a). “The presence of conflicting or antagonistic defenses alone does not require

severance under Rule 14(a).” Lighty, 616 F.3d at 348; accord United States v. Odom, 888

F.2d 1014, 1017 (4th Cir. 1989) (“[A]ntagonistic defenses do not per se require severance,

even when the defendants attempt to cast the blame on each other.”). Indeed, “[a] joint trial

of co-conspirators is preferable unless such a trial will generate conditions so prejudicial

to one of the defendants as to deny him a fair trial.” Odom, 888 F.2d at 1018. “Instead,

‘[t]here must be such a stark contrast presented by the defenses that the jury is presented

with the proposition that to believe the core of one defense it must disbelieve the core of

the other, . . . or that the jury will unjustifiably infer that this conflict alone demonstrates

that both are guilty.’” Lighty, 616 F.3d at 348–49 (quoting United States v. Najjar, 300

F.3d 466, 474 (4th Cir. 2002)). Here, the jury was not required to believe Turcios’ defense

to convict Menjivar or Arevalo. In fact, it actually convicted Menjivar, Arevalo and Turcios

of murdering Beltran. Thus, we find this was not a case that required severance.

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c. Turcios

As for Turcios, recall he argued it was improper for the district court to strike his

entire closing argument. While denying he made any improper arguments, he claims that

only the purportedly improper parts should have been stricken.

The same presumption that defeats Menjivar and Arevalo’s claims establishes

Turcios’. We presume that the jurors followed the instruction and disregarded his entire

summation, including every proper argument it contained. See Samia, 599 U.S. at 647. As

a result, Turcios argues that he was denied the opportunity to make a closing argument at

all. Turcios argues that violated his Sixth Amendment right to counsel under the Supreme

Court’s decision in Herring and our decision in King.

In Herring, the defendant challenged a New York law that permitted a judge to deny

counsel any opportunity to make a closing argument in a nonjury trial. 422 U.S. at 853–54.

The Supreme Court acknowledged that the trial court “must be and is given great latitude

in controlling the duration and limiting the scope of closing summations,” such as by

“ensur[ing] that argument does not stray unduly from the mark, or otherwise impede the

fair and orderly conduct of the trial.” Id. at 862. But the Court went on to conclude that

“there can be no justification for a statute that empowers a trial judge to deny absolutely

the opportunity for any closing summation at all” because “the difference in any case

between total denial of final argument and a concise but persuasive summation could spell

the difference, for the defendant, between liberty and unjust imprisonment.” Id. at 863. The

Court noted that, by the end of the trial, the factfinder’s memory may have faded, and the

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closing is important to point the factfinder to the appropriate evidence. Id. at 864. Thus,

“[i]n denying the appellant this right under the authority of its statute, New York denied

him the assistance of counsel that the Constitution guarantees.” Id. at 865.

In King, the defendant was charged with participating in an anti-war demonstration

at the Pentagon. 650 F.2d at 535. At the close of a bench trial in front of a magistrate judge,

the judge reviewed the evidence and found the defendant guilty. Id. at 536. Defense counsel

protested that he had not intended to waive a closing argument by resting the case. Id. In

response, the judge stated defense counsel could make a closing argument if he wanted but

that it would not change the judge’s mind on the defendant’s guilt. Id. We found that, by

making his decision before closing arguments, the magistrate judge effectively denied the

defendant the right to make a closing argument, “and the denial of that right is not harmless

error.” Id. Notably, the government argued that the defendant had been given the

opportunity to make a closing argument. Id. But we rejected this argument because, while

technically true, the magistrate judge’s statement that closing arguments would not change

his mind showed that “[t]his [was] not the kind of environment in which a defendant’s

interests c[ould] be effectively advocated,” meaning there was no “real opportunity to

proceed with closing argument.” Id. at 537.

This case is different from Herring and King. In Herring, the court barred closing

arguments. 422 U.S. at 865. And in King, the district court instructed the defendant that he

need not deliver a closing argument because that argument would not be considered. 650

F.2d at 536. Here, Turcios was given the opportunity to make a closing argument—the

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district court just found his closing argument contained several improprieties. The district

court does have the authority to control or limit a party’s improper closing arguments. See

Herring, 422 U.S. at 862. But rather than striking the purportedly objectionable parts of

the closing argument, the district court struck the entire thing.

Even if there were several individual aspects of Turcios’ argument that were

improper, much of the argument was not. For instance, at one point during the closing,

Turcios’ counsel argued that there was little evidence corroborating Guevara’s testimony

and that there was evidence indicating Guevara had previously implicated gang members

other than Turcios when discussing the murders with other witnesses. And Turcios’ counsel

also argued there was not much evidence indicating Turcios was anything more than a

peripheral member of the gang. Whether or not these arguments were convincing aside, no

one suggests they were improper. Thus, while the district court enjoys broad discretion to

control closing arguments, it abused that discretion in this case by striking all of the

argument, even the unobjectionable parts. 13

The government did not argue whether this error was harmless. That raises at least

two questions—whether this is the type of error that could be harmless and whether we

can, or even must, consider whether such an error is harmless if that argument is not

addressed. But we need not, and thus do not, answer those questions here because, even if

we were to consider harmlessness, this error was not harmless. For instance, consider the

permissible argument Turcios’ counsel made about Guevara that we mentioned above. As

we explained earlier, Guevara was a key government witness, and his testimony provided

the factual basis for the double murders. Would the jury have reached the same result if it

could have considered Turcios’ argument about his credibility? We cannot say. Cf.

Herring, 422 U.S. at 863 (“[T]he difference in any case between total denial of final

argument and a concise but persuasive summation could spell the difference, for the

defendant, between liberty and unjust imprisonment.”). Thus, given the evidence presented

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Obviously, by the time the district court ruled, the closings had been completed. By

that point, it might have been very difficult to selectively strike only those improper parts

while preserving the benign portions. But this problem could have been avoided if the

district court permitted contemporaneous objections during Turcios’ closing. Indeed, the

very purpose of a contemporaneous objection is to alert the court and opposing counsel to

an issue, so that the issue can be immediately corrected. See, e.g., Puckett v. United States,

556 U.S. 129, 134 (2009) (“And of course the contemporaneous-objection rule prevents a

litigant from sandbagging the court—remaining silent about his objection and belatedly

raising the error only if the case does not conclude in his favor.” (internal quotation marks

omitted) (quoting Wainwright v. Sykes, 433 U.S. 72, 89 (1977))). 14 Regardless, because the

district court abused its discretion in striking Turcios’ entire closing argument, we vacate

in this case, we cannot conclude that discarding these permissible portions of Turcios’

closing argument was harmless.

A categorical prohibition on contemporaneous objections is generally ill-advised.

District courts possess broad discretion to regulate closing arguments. But a timely

objection identifies the precise statement at issue while its context remains fresh, permits

an immediate ruling or a targeted curative instruction and creates a record for appellate

review. See United States v. Young, 470 U.S. 1, 13–14 (1985); Puckett, 556 U.S. at 134,

140. By postponing all objections until the arguments had ended, the district court deprived

itself of the most effective means of distinguishing any improper remarks from the proper

portions of Turcios’ summation. That choice contributed directly to the overbroad remedy

that followed.

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his conviction and remand the case against him to the district court for further proceedings

consistent with this opinion. 15

B. Cross-Examination of Guevara

1. Background

Guevara pled guilty and agreed to cooperate with the government in their

investigation of MS-13. As already discussed, Guevara became the government’s key

witness and provided much of the factual information in the government’s prosecution of

the remaining defendants.

In September 2023, the government moved to limit the scope of the crossexamination of Guevara. At the time of many of the events giving rise to this case, Guevara

was living with his girlfriend, Keyly Guzman. Guzman was charged with offenses

associated with her own involvement in STLS’ crimes. During her sealed sentencing, she

filed an affidavit accusing Guevara of brutally raping and beating her during their

relationship.

The government’s motion sought to preclude cross-examination of Guevara on

Guzman’s allegations. It argued that questions about sexual assault allegations were not

probative of a witness’ capacity for truthfulness, that rape and sexual assault allegations

In addition to the issue concerning limitations on his closing argument, Turcios

argues there was insufficient evidence to support his conviction for conspiracy to distribute

cocaine. We disagree. Cf. Burks v. United States, 437 U.S. 1, 10–11 (1978). But we decline

to address his final argument that the district court erred in declining to give a jury

instruction on alibi because we otherwise vacate his conviction. See, e.g., United States v.

Hall, 858 F.3d 254, 264 (4th Cir. 2017).

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are prior bad acts and inadmissible under Federal Rule of Evidence 404(b) and that the

allegations should be kept out under Rule 403. The district court granted the government’s

motion over defendants’ objection. It determined Guzman’s allegations were not a proper

basis for cross-examination, explaining “[w]e’re not going to have a trial within a trial

about, you know, evidence that doesn’t go directly to credibility.” J.A. 308.

2. Discussion

On appeal, Menjivar and Arevalo argue the district court erred in limiting their

ability to cross-examine Guevara on his relationship with Guzman. According to Menjivar

and Arevalo, this limitation deprived them of their Sixth Amendment right to confront the

witnesses against them. We disagree.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.

amend. VI. Because “[c]ross-examination is the principal means by which the believability

of a witness and the truth of his testimony are tested,” one of the primary purposes of the

Confrontation Clause is to protect a criminal defendant’s opportunity to cross-examine the

government’s witnesses. Davis v. Alaska, 415 U.S. 308, 316 (1974). And “the exposure of

a witness’ motivation in testifying is a proper and important function of the constitutionally

protected right of cross-examination.” Id. at 316–17. But “the Confrontation Clause

guarantees an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.” Delaware v.

Van Arsdall, 475 U.S. 673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20

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(1985) (per curiam)). “On the contrary, trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” 16

Id.

Menjivar and Arevalo contend they were deprived of their opportunity to effectively

cross-examine Guevara for four reasons. First, they argue that “evidence Guevara had been

accused of uncharged crimes was classic bias evidence” and should have been fodder for

cross-examination. Op. Br. at 29. While the government did not immunize Guevara from

prosecution for sexual assault based on Guzman’s allegations, Menjivar and Arevalo

contend Guevara may have perceived that was a benefit he was receiving in exchange for

his testimony. Second, they argue the allegations against Guevara indicate he was “hiding

information and downplaying culpability” because he initially did not mention anything

about his sexual assaults. Op. Br. at 32–33. Third, they argue Guevara began raping

At times we have “review[ed] for abuse of discretion a trial court’s limitations on

a defendant’s cross-examination of a prosecution witness.” United States v. Smith, 451 F.3d

209, 220 (4th Cir. 2006); accord United States v. Zayyad, 741 F.3d 452, 458 (4th Cir.

2014); United States v. Ayala, 601 F.3d 256, 273 (4th Cir. 2010). And notably, we have

applied abuse of discretion review in many of those cases even when the Confrontation

Clause is implicated. See Smith, 451 F.3d at 220–22; Ayala, 601 F.3d at 273. However, at

other times we have stated that we review alleged Confrontation Clause violations de novo,

including restrictions on a defendant’s ability to cross-examine government witnesses.

United States v. Freitekh, 114 F.4th 292, 313 (4th Cir. 2024); see also United States v.

Seward, 135 F.4th 161, 166 (4th Cir. 2025). Under either standard, we find that the district

court acted within its “wide latitude” for “impos[ing] reasonable limits on such crossexamination.” Van Arsdall, 475 U.S. at 679.

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Guzman soon after he murdered Beltran and Geremeas, indicating Guevara committed the

murders for his own sexual gratification, rather than to further the interests of STLS. And

because some of the charges in this case require the government to prove the murder was

committed “for the purpose of gaining entrance to or maintaining or increasing position in

an enterprise engaged in racketeering activity,” Menjivar and Arvelo argue Guevara may

have had another motive to commit the crimes that was unrelated to their involvement. Op.

Br. at 33 (quoting 18 U.S.C. § 1959). And fourth, Menjivar and Arevalo argue Guzman’s

sexual assault allegations show Guevara acted on his own, outside of Menjivar’s direction

or the control of MS-13. Their point seems to be that Guevara was never punished by

Menjivar or other members for sexually assaulting Guzman, despite her being “a

subordinate gang associate.” Op. Br. at 34.

Menjivar and Arevalo are correct that, when a defendant is offered immunity in

exchange for his testimony, “[t]he vital question, which the defendant is constitutionally

entitled to explore by cross-examination, is what the witness understands he or she will

receive,” rather than what the government or the “reasonable man” might understand.

Hoover v. Maryland, 714 F.2d 301, 305 (4th Cir. 1983). Thus, in Hoover, we determined

that a trial court violated a defendant’s Sixth Amendment rights when it prevented the

defendant from cross-examining a government witness on that witness’ understanding of

his immunity agreement with the government. Id. at 304–05. But, here, and unlike in

Hoover, the government never immunized Guevara from charges related to Guzman’s

sexual abuse allegations. And there is no reason, beyond Menjivar and Arevalo’s

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speculation, to suspect Guevara perceived any benefit from testifying based on possible,

hypothetical charges stemming from those allegations. See United States v. Rabinowitz,

578 F.2d 910, 912 (2d Cir. 1978) (per curiam) (concluding a district court did not abuse its

discretion in limiting cross-examination of a government witness’s prior acts of sodomy

on children when “there were no pending or anticipated charges against the witness for

which he would even need to curry favor”).

Moreover, Menjivar and Arevalo’s argument that they could have used Guzman’s

allegations to show Guevara had a “tendency to downplay his own criminal behavior” is

not convincing. Op. Br. at 32. While they were ultimately unable to ask Guevara

specifically about Guzman’s allegations, Guevara testified on his participation in several

other violent acts. Obviously, he testified—in graphic detail—on his shooting Beltran,

Geremeas and Smith. And beyond that, Arevalo was also able to ask during crossexamination about numerous violent incidences in which Guevara freely admitted to

planning to kill at least seven other individuals. On many of those occasions, Guevara was

hunting for someone to kill, and it did not matter who. In one particularly disturbing

instance, he also admitted to “attempt[ing] to lure a woman [he] had sex with . . . out of her

home to kill her” and stated he was “plan[ning] . . . to shoot her in the head.” J.A 1099.

Given this testimony, evidence on Guzman’s unsubstantiated allegations would have been

only “marginally relevant” to the question of how Guevara describes his own criminal

behavior and history of violence. Van Arsdall, 475 U.S. at 679. And it was reasonable for

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the district court to limit this testimony out of concerns about it becoming “a trial within a

trial.” J.A. 308. 17

In short, the district court did not violate the Confrontation Clause when preventing

Menjivar and Arevalo from cross-examining Guevara on Guzman’s sexual assault

allegations. It was reasonable for the district court to find that questions about Guzman’s

sexual assault allegations would likely confuse the issues and cause “a trial within a trial

about . . . evidence that doesn’t go directly to credibility.” J.A. 308. And this limitation is

consistent with the “wide latitude” we afford district courts in limiting cross-examination

“based on concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” 18

Van Arsdall, 475 U.S. at 679.

The other arguments Menjivar and Arevalo make fare no better. To the extent

Menjivar or Arevalo intended to use this evidence to show Guevara had a propensity

toward violence, that would have been improper under Federal Rule of Evidence 404(a)(1).

See Fed. R. Evid. 404(a)(1) (“Evidence of a person’s character or character trait is not

admissible to prove that on a particular occasion the person acted in accordance with the

character or trait.”); see also Quinn v. Haynes, 234 F.3d 837, 847 (4th Cir. 2000) (“[T]he

Confrontation Clause does not trump established rules of evidence, but rather must yield

to such rules when their application is reasonable.”). And even if Guzman’s allegations

showed Guevara had some sort of sexual gratification motive for murder, that would not

be relevant to show why Menjivar or Arevalo committed murder. Similarly, Menjivar and

Arevalo have not shown why Guzman’s allegations were relevant in showing Guevara

acted outside of the direction of STLS leadership.

To the extent Menjivar and Arevalo believed the district court violated the Federal

Rules of Evidence in limiting cross-examination, we find that it was a permissible exercise

of the district court’s discretion to limit cross-examination under Federal Rules of Evidence

401, 403 and 404.

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C. Menjivar and Arevalo’s Motion to Dismiss the Indictment

Menjivar and Arevalo also challenge the denial of their motion to dismiss the

indictment based on due process violations. We reject that challenge.

1. Background

In November 2019, as part of their investigation, officers with the Prince William

County Police Department secured a warrant to search Molina’s home based on their

suspicion of his participation in gang activity. Inside, they found several firearms and

narcotics. The officers took Molina into custody and questioned him. They asked him

several times about the murders, and he denied any involvement multiple times. But after

several hours, he eventually confessed, claiming to have committed the murders himself.

In January 2020, Detective Michelle McAllister of the Prince William County

Police Department interviewed Molina’s mother, Ana Rodriguez. In the interview,

Detective McAllister asked Rodriguez several questions about jailhouse calls Molina

allegedly made to her. Detective McAllister told Rodriguez that she was reading from notes

made by the Spanish translator who listened to all of Molina’s jailhouse calls to her and

that the notes said Molina instructed his mother to tell people he was home with her on

June 22—the day of the double murder. And Rodriguez apparently responded to Molina,

“Bueno.” J.A. 3865, Def. Ex. 134 at 00:00:45.

Eventually, in September 2020, after several months of sitting in jail, Molina

recanted and explained he had actually not murdered Beltran or Geremeas. He explained

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that he had originally confessed to these murders out of fear and loyalty to MS-13 but that

he no longer felt MS-13 was being loyal to him.

In December 2019, Detective McAllister also interviewed Vasquez—who as you

may recall was previously indicted as a co-defendant—as part of her investigation.

Vasquez was not a member of STLS but worked with Guevara as a painter. He also

regularly purchased drugs from MS-13 members. Detective McAllister asked Vasquez if

he knew whether Guevara had murdered Beltran and Geremeas. Vasquez explained that

the morning after those murders, Guevara told him that he had committed those murders

and had brought the gun he used with him to work and had hidden it in a paint can. Vasquez

said that his boss allowed Guevara to keep the gun hidden inside the paint can at their work

and that Vasquez and his boss later delivered the paint can to Guevara at his house. Vasquez

also stated that, according to Guevara, there had been “four or five” people present when

Guevara committed the double murder, but the only individuals Vasquez recalled Guevara

telling him were present were Guevara and Molina. J.A. 3128–29.

In a subsequent interview with the Federal Bureau of Investigation on December

20, 2019, Vasquez stated that he also gave Guevara a grinder along with the paint can when

he delivered the can to Guevara’s house and that he believed Guevara intended to use the

grinder to destroy the gun. Vasquez also told the FBI that Guevara had stated Molina was

present for the double murder.

Vasquez pled guilty to being an accessory after the fact in the murder of both Beltran

and Geremeas. He was sentenced on June 11, 2023. Vasquez faced a guidelines range of

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70 to 87 months, and the government requested he receive 70 months. The district court

asked the government whether it was “planning to call [Vasquez] as a witness” in

defendants’ murder trial. J.A. 3488. And the government responded, “No, Your

Honor. . . . Definitely not.” J.A. 3488. The court explained that the reason it asked the

question was because Vasquez was not in the United States legally, so if the court sentenced

him to time served—as the court was inclined to do—he would be deported and would not

be in the United States at the time of trial. So, the government reiterated it was not going

to call him. The district court then sentenced Vasquez to a sentence of time served plus

supervised release. And Vasquez was removed from the United States.

In December 2023, defendants moved to dismiss the indictment based on multiple

due process violations. Defendants first explained that, in preparing for trial, defense

counsel came across the recording of Detective McAllister’s interview with Molina’s

mother where McAllister confronted his mother about Molina’s use of the jail phone to

construct an alibi. Based on this recording, defense counsel requested that the government

produce copies of Molina’s jailhouse calls to his mother. The government responded by

explaining that the jail had not retained the call records or notes on the call. And the

government also informed defense counsel that the jail’s system automatically deleted the

call recordings after two years. In response, defendants argued that failure to preserve the

jail recordings or records of those recordings violated their due process rights. The district

court denied defendants’ motion to dismiss based on Molina’s missing jailhouse calls

because the defendants could call either Molina or his mother to testify.

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The defendants also argued the government violated their due process rights by

deporting Vasquez, who they argued was likely to have evidence in their favor. The district

court denied defendants’ motion to dismiss on this ground as well. The court first explained

that it was a “risky decision” for the government to deport Vasquez because “he was so

close to this case in terms of, you know, he had handled the weapon that allegedly is

involved in one of the murders, he was involved, as I recall it, to an understanding how the

weapon was destroyed.” J.A. 407. Ultimately, however, the district court stated it was not

going to dismiss the indictment because, while the government’s decision to deport

Vasquez “was unwise[ and] shouldn’t have happened,” there was no evidence of bad faith

on the government’s part. J.A. 407.

On January 15, 2024, during the first trial, defense counsel discovered that a tipster

had reported to police that Molina and Guevara admitted they committed the double

murder. Defense counsel requested additional information from the government, and the

government produced the tipster’s name, phone number, email address and Facebook

account information. Arevalo, alleging this information had never been produced to

defense counsel, moved for the government to dismiss the homicide indictments, for an

instruction telling the jury about the tipster, for the court to prevent the government from

calling Molina at trial and for other relief based on this withheld information.

Even though Molina had already testified in the first trial, the district court struck

his testimony and barred him from testifying in the second trial. But the district court later

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clarified it was not prohibiting defense counsel from calling Molina in the second trial if

the defense chose to do so.

During the second trial, the government called FBI Special Agent Paul Fisher, who

conducted the interview with Vasquez on December 20, 2019. Special Agent Fisher

discussed both the interview and the tip the FBI received about Guevara and Molina saying

they committed the murder. While Special Agent Fisher had some difficulty recalling the

interview, he refreshed his recollection with his written report and acknowledged the report

said Vasquez had stated Guevara committed the double murders with Molina. He also

acknowledged in front of the jury that Vasquez had since been deported.

The jury also heard recordings from Vasquez’s December 13, 2019 interview. While

the government objected to Arevalo playing these recordings, the district court overruled

that objection. The court explained that it reviewed the transcript of Vasquez’s sentencing

and found that Vasquez should not have been deported and that his removal was a

“sufficiently serious” error. J.A. 1838. The district court reiterated that it did not “really

think this [was] an example of bad faith, but . . . it was an example of foolishness on the

government’s part not to have kept him here. He clearly is a witness who had relevant

information.” J.A. 1838. Still, the district court also added that Vasquez had stated he

planned to refuse to testify, so the court was not sure if he would have said anything even

if he was available to be called as a witness. In any event, the district court permitted

defendants to play the audio recordings from Vasquez’s interview.

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Arevalo also called Detective McAllister to testify in the second trial. Arevalo asked

her about Molina’s jailhouse calls to his mother. Detective McAllister stated that

“[s]omeone on the investigative team tasked me to interview Abner Molina’s mother after

listening to those jail tapes.” J.A. 1906. But she no longer had any notes from the call, nor

did she recall being given any specific translation or transcript of the call. She explained

that the police department’s typical practice was for Spanish-speaking police officers to

listen to the calls. Still, Detective McAllister acknowledged that, when she listened to the

recording of her interview with Molina’s mother, “it did appear that I was specifically

reading from something to get specific language about what was said on the jail call.” J.A.

1908–09. Arevalo then introduced the interview recording into evidence. And after

listening to that recording, Detective McAllister agreed that she went into the interview

believing that Molina had directed his mother to say he was with her on June 22.

Arevalo also asked Detective McAllister about her interviews with Vasquez. And

portions of the audio recordings of this interview and a transcript of the interview were

admitted into evidence. 19 She stated that Vasquez said in the interview that Guevara and

Molina were together on the day of Tate’s murder. And Arevalo asked Detective

McAllister about an interview audio clip in which she asked Vasquez about the double

homicide and Vasquez said the only people he knew to be present at the time were Guevara

However, outside the presence of the jury, the court instructed the parties that

these recordings were not helpful and were “a complete waste of time” because there was

not much said in the portions of the recordings played for the jury. J.A. 1914.

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and Molina. During cross-examination, Detective McAllister stated that the interview with

Vasquez was not productive because Vasquez “was not deemed credible at any point by

any law enforcement officer that I’m aware of. In the interview he made so many

conflicting statements, it’s pretty much why the interview took so long to clarify what he

was saying.” J.A. 1947.

2. Discussion

In challenging the district court’s denial of their motion to dismiss, Menjivar and

Arevalo claim three due process violations infected the proceedings below. 20 First, they

argue it was a due process violation for the government to deport Vasquez because he was

a material witness and his testimony was favorable to their defense. Second, they argue the

government violated their due process rights when it failed to preserve the recordings of

the jail call between Molina and his mother and the notes of those recordings. And finally,

they argue their due process rights were violated by the government’s late disclosure of

evidence about Molina possibly confessing to a tipster. We take each of these arguments

in turn. 21

“We review a district court’s legal conclusions with respect to a motion to dismiss

the indictment de novo, and its factual findings for clear error.” United States v. Kaixiang

Zhu, 854 F.3d 247, 253 (4th Cir. 2017).

It is not entirely clear whether they believe each of these three violations entitle

them to relief. Certainly, they argue Vasquez’s deportation “independently warrant[s]

dismissal.” Op. Br. at 40. But they then argue the destruction of Molina’s jail call and the

Brady violation “exacerbated” the harm caused by Vasquez’s deportation. Op. Br. at 48,

55. In any event, we ultimately find none of these arguments warrant dismissal either way.

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a. Vasquez’s Deportation

The Supreme Court articulated the standard for determining whether the deportation

of an alien witness who is illegally in the United States violates the defendant’s due process

rights in United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). Such a deportation, by

itself, does not amount to a due process violation. Id. at 872–73. After all, “the

responsibility of the Executive Branch faithfully to execute the immigration policy adopted

by Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive’s

good-faith determination that they possess no evidence favorable to the defendant in a

criminal prosecution.” Id. at 872.

Rather, to establish a due process violation in these circumstances, the defendant

must make a “plausible showing that the testimony of the deported witnesses would have

been material and favorable to his defense, in ways not merely cumulative to the testimony

of available witnesses.” Id. at 873. Notably, because “prompt deportation deprives the

defendant of an opportunity to interview the witnesses to determine precisely what

favorable evidence they possess, . . . the defendant cannot be expected to render a detailed

description of their lost testimony.” Id.

In determining whether a deported witness’ testimony was material, the Supreme

Court borrowed the same standard used when assessing the loss of material evidence in

other circumstances. Id. Thus, “sanctions will be warranted for deportation of alien

witnesses only if there is a reasonable likelihood that the testimony could have affected the

judgment of the trier of fact.” Id. at 873–74. “In general, evidence whose function is

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impeachment may be considered to be material where the witness in question supplied the

only evidence linking the defendant to the crime” or “where the witness supplied the only

evidence of an essential element of the offense.” United States v. Bartko, 728 F.3d 327,

339 (4th Cir. 2013) (quoting United States v. Avellino, 136 F.3d 249, 256, 257 (2d Cir.

1998)). But impeachment evidence is not material “where it was cumulative of evidence

of bias or partiality already presented and thus would have provided only marginal

additional support for [the] defense.” Id. (alteration in original) (internal quotation marks

omitted) (quoting United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011)).

Menjivar and Arevalo argue they have made the requisite showing that Vasquez’s

testimony was material and favorable to their defense. They contend Vasquez told

investigators that Guevara shot Tate only after Tate shot first. They argue that this

information is material because it supports Arevalo’s self-defense theory and because it

contradicts Guevara’s trial testimony that he was not present and that Arevalo was present

at the time Tate was shot. They also point to other interviews in which Vasquez told

investigators that Guevara and Molina both admitted to being present at the time of the

double homicide, that Guevara admitted to committing the double homicide with Molina,

that Vasquez assisted in destroying the murder weapon in the double homicide and that

Vasquez never implicated Arevalo. And Menjivar and Arevalo point to two letters Molina

mailed to an informant, in which Molina stated he had concerns about Vasquez and did not

know why Guevara trusted him. They contend that all of this shows it is likely Vasquez

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had material information that either would have been exculpatory or could have been used

to impeach Guevara’s testimony.

We disagree for two reasons. First, it seems doubtful that Vasquez’s testimony

would have materially impeached Guevara. Menjivar and Arevalo’s primary purpose in

calling Vasquez seems to have been to impeach aspects of Guevara’s testimony on how

the murders took place. However, even without Vasquez’s testimony, defendants

challenged Guevara’s account of the murders with other evidence. For instance, Special

Agent Fisher acknowledged during Arevalo’s cross-examination that Molina had initially

confessed to the double murders, Detective McAllister also confirmed in her testimony that

Molina had apparently requested that his mother provide an alibi for him on the day of the

double murders, and she also testified that Vasquez told her the only people he knew to be

present during the double murders were Guevara and Molina. In addition, the jury heard

the portion of the audio recording of Vasquez’s interview in which he said Guevara and

Molina were together for Tate’s murder. So, the jury heard evidence contradicting

Guevara’s account of both the double murders and Tate’s murder. These are the two topics

Menjivar and Arevalo wanted to use Vasquez’s testimony to impeach Guevara on, so the

testimony was immaterial for these impeachment purposes.

Second, even if Vasquez’s testimony were material as impeachment evidence, it still

would have been cumulative of other evidence admitted at trial. To reiterate, the jury heard

recordings of Vasquez’s interview and testimony from Detective McAllister on what

Vasquez said during those interviews. While there may have been some value for the jury

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to hear from Vasquez himself, his testimony would have been cumulative of this other

evidence, and Arevalo and Menjivar have not shown that there was a “reasonable

likelihood that the testimony could have affected the judgment of the trier of fact.”

Valenzuela-Bernal, 458 U.S. at 874. So, we affirm the district court’s finding that

defendants have not demonstrated a due process violation for this reason. 22

We have not answered whether Valenzuela-Bernal requires the defendant to also

prove the government acted in bad faith in deporting the potential witness. In Kaixiang

Zhu, we acknowledged that, in addition to the materiality requirement, “[a] majority of the

Circuits read Valenzuela-Bernal as establishing a second requirement as well—that the

government acted in bad faith in deporting a key witness, in a conscious effort to gain a

tactical advantage by suppressing exculpatory evidence.” 854 F.3d at 255 (collecting

cases). However, after acknowledging the question, we explicitly declined to answer

whether Valenzuela-Bernal also requires bad faith. Id. On at least one other occasion,

however, we suggested, in dicta, that Valenzuela-Bernal should not be read as having a bad

faith requirement. See United States v. Moussaoui, 382 F.3d 453, 475 (4th Cir. 2004) (“The

Court nevertheless held [in Valenzuela-Bernal] that the Government’s good faith

deportation of the potential witnesses would be sanctionable if the witnesses were material

to the defense.”). Since Menjivar and Arevalo’s arguments fail for other reasons, we need

not, and do not, answer the bad faith question today. But if there is a bad faith requirement,

Menjivar and Arevalo have failed to satisfy it. Notably, the government sought a sentence

of 70 months for Vasquez. Despite that, the district court departed or varied downward and

sentenced him to time served even though he had only served 41 months. It is true that, in

doing so, the court asked for input from the government and specifically acknowledged

that Vasquez would likely be deported with that sentence and that the government stated it

was not planning to call Vasquez at trial. But if Vasquez had been sentenced to the full 70

months in July 2023, as the government requested, he likely would still have been in the

United States when the trial took place in January 2024. As a result, we do not believe the

government deported Vasquez “in a conscious effort to gain a tactical advantage.”

Kaixiang Zhu, 854 F.3d at 255. Thus, if there is a bad faith requirement, this would be

another reason to affirm the district court.

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b. Molina’s Jail Calls and Notes

Next, Menjivar and Arevalo argue the police’s failure to preserve jail call recordings

or notes on a jail call between Molina and his mother exacerbated the harm caused by

Vasquez’s deportation. They point specifically to the recording of Detective McAllister

interviewing Molina’s mother—in which Detective McAllister said several times that she

had heard of a recording of a call during which Molina asked his mother to create an alibi

for him. Menjivar and Arevalo argue that both the notes and the recordings of the jail calls

existed and that the destruction of material evidence violates due process if the defendant

could not otherwise get copies of the evidence. And they argue the jail call recordings are

highly exculpatory because they tend to show Molina committed the double homicide.

The government has a duty to preserve evidence “that might be expected to play a

significant role in [a] suspect’s defense.” California v. Trombetta, 467 U.S. 479, 488

(1984). And failure to preserve evidence can be a due process violation. Cf. id. at 488–90

(finding the destruction of evidence was not a due process violation when its exculpatory

value was not apparent when it was destroyed and the defendants had alternative evidence

at their disposal). Thus, to demonstrate a due process violation based on the government’s

failure to preserve such evidence, the defendant has the burden of proving that the evidence

was constitutionally material—that is, the “evidence must both possess an exculpatory

value that was apparent before the evidence was destroyed, and be of such a nature that the

defendant would be unable to obtain comparable evidence by other reasonably available

means.” Id. at 489. When the defendant cannot make this showing because the unpreserved

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evidence was only “potentially useful,” the defendant can only succeed in showing a due

process violation based on the failure to preserve the evidence by showing bad faith on the

part of the police. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

Menjivar and Arevalo have neither shown that the jail calls and notes were

constitutionally material nor have they shown that the police acted in bad faith in failing to

preserve this evidence. Starting with constitutional materiality, even if this evidence existed

at one point and had apparent exculpatory value before it was destroyed, 23 Menjivar and

Arevalo reasonably could have produced comparable evidence. Notably, the jury heard a

recording of Detective McAllister’s interview with Molina’s mother, during which

Detective McAllister mentioned Molina calling his mother to concoct an alibi. And

Detective McAllister testified during Arevalo’s cross-examination that, going into that

interview, she believed Molina had called his mother to convince her to help him fabricate

an alibi. This is the very same information that Arevalo and Menjivar would have hoped

to illicit by introducing Molina’s jailhouse calls to his mother and the notes from those

Whether the evidence had apparent exculpatory value before it was destroyed is

debatable. First, Molina confessed to the double homicide in November 2019. He made the

jail calls to his mom between November 2019 and November 2020. At that time, there

were no other defendants to exculpate. But because the district court did not make factual

findings about when the evidence was destroyed, it is difficult for us to determine what the

apparent exculpatory value of the evidence would have been leading up to its destruction.

Cf. United States v. Johnson, 996 F.3d 200, 215–16 (4th Cir. 2021) (remanding due process

claim based on government’s alleged failure to produce evidence when the district court

failed to make factual findings). Second, even after that, Molina’s call to his mom could

simply show that he was trying to shore up a defense at trial to the double murder charges

without pointing the finger at other MS-13 members, which would be consistent with the

reasons he falsely confessed in the first place.

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calls. And, if that were not enough, Arevalo or Menjivar could have called Molina or his

mother to testify at trial to ask additional questions about this topic.

Beyond that, to the extent the jail call recordings or any notes were potentially

useful, defendants have failed to show the government acted in bad faith in failing to

preserve them. As for the call recordings, they were purged under the jail’s standard policy

to discard call recordings after two years. This is similar to our previous decision holding

that police did not act in bad faith in failing to preserve a traffic stop video when “the tape

had been subject to the police department’s standard 90-day hold policy and was then

‘routinely destroyed,’ with no bad faith on the part of law enforcement in the tape’s

destruction.” United States v. Montieth, 662 F.3d 660, 666 n.1 (4th Cir. 2011) (quoting

Youngblood, 488 U.S. at 57). And Menjivar and Arevalo have not cited any evidence

indicating the police acted in bad faith in destroying notes of the call, if such notes existed.

c. Alleged Brady Violation

Finally, Menjivar and Arevalo argue the withheld evidence about Molina and

Guevara confessing to a tipster exacerbated the prejudice caused by Vasquez’s deportation.

“A failure to disclose violates due process only if the evidence in question (1) is favorable

to the defendant because it is either exculpatory or impeaching; (2) was suppressed by the

government; and (3) is material in that its suppression prejudiced the defendant.” United

States v. Sterling, 724 F.3d 482, 511 (4th Cir. 2013). “When the government’s

contumacious conduct involves a delay in producing discovery, rather than a failure to turn

over required materials, the relevant inquiry is ‘whether the defendant’s counsel was

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prevented by the delay from using the disclosed material effectively in preparing and

presenting the defendant’s case.’” Id. (quoting United States v. Ingraldi, 793 F.2d 408,

411–12 (1st Cir. 1986)).

Menjivar and Arevalo note that in May 2020, they learned a witness claimed that

both Molina and Guevara bragged about having committed the double murder. When

defense counsel followed up, the government produced additional exculpatory information

about the tipster that had never been disclosed. So, Arevalo moved, based on this

disclosure, for the dismissal of the homicide indictments. The district court refused to let

Molina testify for the government but did not dismiss the indictments. Menjivar and

Arevalo now argue the withheld exculpatory information exacerbates the problem of

Vasquez’s deportation because the information, when coupled with Vasquez’s potential

testimony, could have helped them prove Molina and Guevara were the real killers.

In response, the government argues that the late disclosure of the tipster’s name and

contact information was not a due process violation. First, the government argues there was

no due process violation because it disclosed the information early enough for the

defendants to use it at trial. Indeed, the government points out it disclosed the information

on January 16, 2024, and the defendants’ trial did not begin until January 22, 2024. It even

notes that defendants used the material at trial while questioning Special Agent Fisher.

Second, the government argues that, because there was no bad faith, the sanction of

preventing Molina from testifying was appropriate.

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Even if the government’s late disclosure of the information identifying the tipster

was a Brady violation, we agree with the district court that it did not require dismissal. In

his motion based on the alleged Brady violation, Arevalo appeared to request either

dismissal or other sanctions, such as barring Molina from testifying at trial. See J.A. 3396

(“Arevalo requests (1) the dismissal of the homicide indictments, (2) that the government

be barred from calling Abner Molina Rodriguez as a witness, (3) that if the government is

permitted to call Molina, certain limitations be imposed on his testimony and related

evidence, and (4) that the Court instruct the jury as requested below.”). Notably, defendants

did not request a continuance to locate and talk to the tipster. And, as the government points

out, a continuance is the preferred remedy in such circumstances. See Sterling, 724 F.3d at

512. Indeed, in United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005), we stated that

a motion to dismiss is not a proper remedy for a late Brady disclosure and found, in that

case, that the district court did not err in denying a motion to dismiss based on the

government’s late disclosure of information identifying a witness when the defendant did

not move for a continuance. Thus, we find that the district court’s remedy of barring Molina

from testifying for the government was sufficient to cure any alleged violation.

D. The Special Finding

Finally, Arevalo argues that the district court erred in failing to set aside the jury’s

special finding that Arevalo killed Tate as part of the Count One RICO conspiracy.

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1. Background

In addition to the questions of guilt on the various charges, the jury was asked to

make a series of special findings in connection with their guilty verdict for Arevalo on

Count One’s RICO conspiracy. In particular, Special Finding Three under the RICO

conspiracy asked the jury to make a determination on whether Arevalo was involved in

Tate’s murder:

(3) We, the jury, having found the defendant guilty of the offense

charged in Count One, further unanimously find that as part of that

offense, the defendant, on or about August 29, 2019, while aiding

and abetting others, did willfully, deliberately, maliciously, and

with premeditation kill Eric Lainer Tate (check one):

YES NO

J.A. 2232. The jury checked “YES,” despite acquitting Arevalo on the VICAR murder and

murder-conspiracy counts related to Tate’s murder. J.A. 2234–35.

After the trial, Arevalo moved for the district court to set aside the jury’s Special

Finding Three of Count One, arguing it was inconsistent with the jury’s acquittal of him

on the VICAR counts related to Tate’s murder. He argued the district court should either

grant him an acquittal on the Special Finding under Rule 29 or set aside the finding as

alternative relief in the interests of justice under either Rule 29(d)(1) or Rule 33. The district

court denied the motion, largely because “the jury’s determinations as to special finding

three and the separate substantive counts are not wholly irreconcilable or impossible.” J.A.

2499. The district court explained that the VICAR counts require that Arevalo must have

committed the murder “for the purpose of gaining entrance to or maintaining or increasing

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position in an enterprise engaged in racketeering activity.” J.A. 2499 (quoting 18 U.S.C.

§ 1959(a)). In contrast, it explained the Special Finding on the predicate act in support of

Count One does not require proof of this element.

2. Discussion

On appeal, Arevalo maintains that the district court erred because the jury’s special

finding directly conflicts with its acquittal on the VICAR counts related to Tate’s murder.

While he concedes, citing United States v. Powell, 469 U.S. 57 (1984), that “a defendant

is not entitled to a new trial just because there are inconsistent verdicts between two

counts,” he argues that we should, nevertheless, order a new trial in this case for two

reasons. Op. Br. at 72. First, he contends that in Powell, the Supreme Court specifically

declined to address situations when “a guilty verdict on one count logically excludes a

finding of guilt on the other.” Op. Br. at 72 (quoting Powell, 469 U.S. at 69 n.8). Second,

he argues that inconsistencies between counts of conviction and special findings, which are

alleged here, should be treated differently from inconsistencies between different counts of

conviction, which Powell addressed. That’s because he fears the jury may not have

understood that by checking “YES” or “NO” they were reaching effectively the same

conclusion as if they were required to select between “guilty” and “not guilty.” Op. Br. at

74–75. Arevalo also argues that the inconsistency here may indicate a Sixth Amendment

violation. He notes that the penalty for a racketeering conspiracy conviction increases from

twenty years to life when a defendant commits a crime that could be punished with life in

prison. And because he was acquitted of the VICAR counts related to Tate’s murder, he

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contends the jury must not have found the facts supporting the RICO-conspiracy special

finding beyond a reasonable doubt, even though those facts increased his sentence.

Count One charged Arevalo with a RICO conspiracy: conspiring to participate in

the affairs of an enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962(c),

(d). And the predicate racketeering acts include drug trafficking and murder. 18 U.S.C.

§ 1961(1)(A).

Arevalo was acquitted of the VICAR charges related to Tate’s murder. Those

charges alleged murder, and conspiracy to murder, in aid of racketeering, both in violation

of 18 U.S.C. § 1959(a)(1) and (a)(5). 24 Among other things, a VICAR charge requires proof

that the defendant committed or agreed to commit the violent act either for pecuniary

consideration from the enterprise or “for the purpose of gaining entrance to or maintaining

or increasing position in” the enterprise. § 1959(a).

Section 1959(a) criminalizes when someone,

as consideration for the receipt of, or as consideration for a promise or

agreement to pay, anything of pecuniary value from an enterprise engaged in

racketeering activity, or for the purpose of gaining entrance to or maintaining

or increasing position in an enterprise engaged in racketeering activity,

murders, kidnaps, maims, assaults with a dangerous weapon, commits assault

resulting in serious bodily injury upon, or threatens to commit a crime of

violence against any individual in violation of the laws of any State or the

United States, or attempts or conspires so to do . . . .

18 U.S.C. § 1959(a).

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We have previously held, when examining whether charging a defendant under both

RICO (§ 1962(d)) and VICAR (§ 1959(a)(5)) violates the Double Jeopardy clause, that

murder conspiracy charged under these two sections requires proof of different elements.

See United States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010). In that case, we reasoned

that

[e]stablishing 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 enterprise engaged in racketeering activity’ or as

consideration for ‘anything of pecuniary value’ from such an enterprise[,

whereas t]here is simply no such requirement to prove a racketeering

conspiracy under § 1962(d).

Id. Thus, we found that “a jury could find a defendant guilty of one offense without

necessarily finding him guilty of the other and vice-versa.” Id. Nor did Special Finding

Three require that enterprise-related purpose. The jury therefore could find in Special

Finding Three that Arevalo aided and abetted Tate’s murder while harboring reasonable

doubt about the distinct VICAR-purpose element.

Additionally, it is true that the jury should not be asked to answer “yes” or “no” to

factual questions on a special verdict form if it is not asked to find the defendant “guilty”

or “not guilty.” See United States v. Ramirez-Castillo, 748 F.3d 205, 214–15 (4th Cir.

2014). That’s because “the jury’s constitutional responsibility is not merely to determine

the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or

innocence.” Id. at 214 (emphasis omitted) (quoting United States v. Gaudin, 515 U.S. 506,

514 (1995)). But here, the jury drew an ultimate conclusion on Arevalo’s guilt when it

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found him “Guilty” on Count One. J.A. 2232. Once that is done, nothing precludes asking

the jury yes or no questions on factual findings. And the district court instructed the jury

that it could answer “yes” only if it unanimously found that the government proved that

fact beyond a reasonable doubt. J.A. 2144; see also J.A. 2169. Thus, the district court did

not err in failing to set aside Arevalo’s conviction. And we affirm the district court’s denial

of Arevalo’s motion.

III. CONCLUSION

For the reasons set forth above, we find that the district court abused its discretion

in instructing the jury to exclude all of Turcios’ closing argument. And we vacate his

conviction, accordingly, and remand the case against him for further proceedings consistent

with this opinion. However, because this curative instruction was sufficient to cure any

prejudice that may have been suffered by Arevalo and Menjivar as a result of Turcios’

closing argument, the district court did not abuse its discretion in denying their motion for

a mistrial. Also, the district court did not err in limiting defendants’ ability to cross-examine

Guevara, in denying their motion to dismiss the indictment or in declining to set aside

Special Finding Three. Thus, we affirm Menjivar’s and Arevalo’s convictions.

Nos. 24-4308 and 24-4325 are AFFIRMED

No. 24-4358 is VACATED AND REMANDED

United States v. Marvin Gutierrez

Authorities cited

Opinion · public domain