                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4358


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERICK TURCIOS-LAZO,   a/k/a    Scorpion,    a/k/a   Alacran,   a/k/a
Cebolla,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:08-cr-00370-LMB-1)


Submitted:   March 19, 2010                    Decided:    May 21, 2010


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Peter L. Goldman, O’REILLY & MARK, P.C., Alexandria, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Morris
R. Parker, Jr., Benjamin L. Hatch, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Erick Eduardo Turcios-Lazo appeals his conviction for

conspiracy         to       murder      Lisandra      Quintanilla           in      aid    of

racketeering,         in    violation     of   18    U.S.C.       § 1959(a)(5)       (2006),

through      his     participation       in    the   Mara     Salvatrucha         (“MS-13”)

gang.     He asserts that the district court erred by admitting

certain evidence and contends that the evidence did not support

his conviction.            Finding no reversible error, we affirm.

               Turcios-Lazo asserts that the district court violated

Fed.    R.     Evid.       403    by   admitting     evidence       of   three      murders

unrelated to the charge in the indictment and in which he was

not involved.           “Evidence is unfairly prejudicial and thus should

be excluded under Rule 403 when there is a genuine risk that the

emotions of a jury will be excited to irrational behavior, and

this    risk    is    disproportionate         to    the   probative        value    of   the

offered evidence.”               United States v. Siegel, 536 F.3d 306, 319

(4th    Cir.)      (internal       quotation       marks    and    citation       omitted),

cert. denied, 129 S. Ct. 770 (2008).                   We have reviewed the trial

transcript and conclude that the district court did not abuse

its discretion in admitting evidence of the murders.                             See United

States v. Rooks, __ F.3d __, __, 2010 WL 668924, at *3 (4th Cir.

Feb. 25, 2010) (providing standard); United States v. Jones, 566

F.3d 353, 363 (3d Cir.) (collecting cases finding evidence of

murders,       some     gruesome,      committed     by    other     gang    members      not

                                               2
unfairly prejudicial where evidence demonstrated defendant did

not    commit       murders        and    was       used    to       prove    existence        of

enterprise), cert. denied, 130 S. Ct. 528 (2009).                             Moreover, the

district      court        reduced       the    risk       of    unfair       prejudice        by

instructing the jury that Turcios-Lazo was on trial only for the

offense charged in the indictment, see Rooks, __ F.3d at __,

2010 WL 668924, at *5, and “[w]e presume that juries follow [the

court’s limiting] instructions.”                     United States v. Johnson, 587

F.3d   625,     631    (4th       Cir.   2009).        We   therefore         conclude       that

Turcios-Lazo is not entitled to relief on this claim.

              Next,        Turcios-Lazo        challenges        the    district         court’s

admission of testimony from Detective Saa, an expert witness,

because the testimony relied on hearsay from MS-13 members, was

based on knowledge he collected from sources not written by him,

and    violated       the     Confrontation          Clause.           Assuming,          without

deciding, that the district court’s admission of Saa’s testimony

violated Fed. R. Evid. 703, and the Confrontation Clause, we

conclude      that     any    error      was    harmless        in    light   of        extensive

testimony from actual MS-13 members about the gang’s structure,

organization, rules, and punishments; the murders on which the

Government         relied    to    establish        that    MS-13      was    an    enterprise

engaged       in      racketeering         activities           as     well        as     MS-13’s

involvement in drug dealing and extortion; and Turcios-Lazo’s

participation         in    the    conspiracy        to    murder      Quintanilla.           See

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Neder v. United States, 527 U.S. 1, 15 (1999) (“[T]he test for

determining whether a constitutional error is harmless . . . is

whether     it    appears      beyond    a    reasonable            doubt    that    the    error

complained       of    did    not   contribute          to   the      verdict       obtained.”)

(internal quotation marks and citation omitted); Johnson, 587

F.3d at 637 (“Erroneously admitted evidence is harmless if a

reviewing        court   is    able     to   say,       with     fair       assurance,      after

pondering        all   that    happened       without        stripping        the    erroneous

action from the whole, that the judgment was not substantially

swayed by the [nonconstitutional] error.”) (internal quotation

marks and citation omitted).

              Finally,        Turcios-Lazo            contends      that     the    Government

failed to prove that MS-13 was an enterprise, as defined in 18

U.S.C. § 1959(b)(2) (2006), and that he joined in the conspiracy

to   kill    Quintanilla.             Although         Turcios-Lazo         filed     a    motion

pursuant to Fed. R. Crim. P. 29, he did not rely specifically on

the grounds he asserts on appeal.                       Thus, our review is only for

plain error.           United States v. Wallace, 515 F.3d 327, 331-32

(4th   Cir.      2008)   (discussing         standard          of    review);       see    United

States v. Mehta, 594 F.3d 277, 279 (4th Cir. 2010) (“Substantial

evidence is evidence that a reasonable fact-finder could accept

as   adequate      and   sufficient          to       establish      a   defendant’s        guilt

beyond a reasonable doubt.”).



                                                  4
             Taking the evidence in the light most favorable to the

Government,      see    Glasser    v.   United    States,        315   U.S.     60,    80

(1942), our careful review of the trial transcript leads us to

conclude that the jury did not err, plainly or otherwise, in

concluding      that    the   evidence    established       that       MS-13    was    an

enterprise and that Turcios-Lazo participated in the conspiracy

to kill Quintanilla.            See United States v. Fiel, 35 F.3d 997,

1003 (4th Cir. 1994) (discussing elements of offense).                          To the

extent    Turcios-Lazo          challenges       the     credibility           of     the

Government’s      witnesses,       this   court        “do[es]     not    weigh       the

evidence or assess the credibility of witnesses, but assume[s]

that the jury resolved any discrepancies [in the testimony] in

favor of the government.”           United States v. Kelly, 510 F.3d 433,

440 (4th Cir. 2007).

             Accordingly, we affirm the district court’s judgment.

We   dispense    with    oral     argument    because     the     facts   and       legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                               AFFIRMED




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