                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
UNITED STATES OF AMERICA           )
                                   )
      v.                           )    Criminal Action No. 10-256-19 (RMC)
                                   )
HENRY DIAZ-ANTUNUEZ,               )
                                   )
            Defendant.             )
_________________________________  )

                                            OPINION

               Defendant Henry Diaz-Antunuez is one of nineteen persons charged in this case

with offenses related to the gang MS-13. He moves to dismiss the federal court indictment as it

relates to him. The lengthy Superseding Indictment charges other Defendants with crimes under

federal law, such as conspiracy to violate the Racketeer Influenced and Corrupt Organizations

Act, and crimes under District of Columbia law, such as robbery, kidnapping, murder, and

burglary. Mr. Diaz-Antunuez is charged with no federal offense and only one D.C. Code

offense, first-degree murder while armed, which he allegedly committed at the age of sixteen.

Mr. Diaz-Antunuez protests that the government should have treated him as a juvenile, as it

concededly must when a person under age eighteen is charged with a federal offense. The Court

held oral argument on Mr. Diaz-Antunuez’s motion on March 12, 2013 and denied it from the

bench, concluding that federal law and the D.C. Code permit Mr. Diaz-Antunuez to be tried as an

adult in federal court, based on an alleged D.C. Code violation for which the District of

Columbia would treat him as an adult if he were prosecuted in D.C. Superior Court. This

opinion provides the underlying analysis should there be an appeal.




                                                 1
                                          I. FACTS

              A. Background of Charges

              Mr. Diaz-Antunuez was born on September 24, 1992. He was sixteen years old

when the alleged murder occurred on November 6, 2008 and nineteen years old when arrested on

November 3, 2011. He is twenty years old at present.

              Mr. Diaz-Antunuez is Defendant number nineteen in United States v. Silva,

Criminal No. 10-256 (RMC), in which he and eighteen other alleged members of the gang MS-

13 (La Mara Salvatrucha) are charged with gang-related offenses. The United States alleged that

eighteen of the Defendants were involved in a conspiracy to violate the Racketeer Influenced and

Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961–68, that began “at least” as early as

“the late 1990s” and that continues to the present. Superseding Indictment [Dkt. 101] ¶ 16. Mr.

Diaz-Antunuez is not charged with any federal crime, under RICO or otherwise. He is scheduled

to go to trial in June 2013 with two co-defendants, Noe Machado-Erazo (Defendant number

eight) and Jose Martinez-Amaya (Defendant number nine), who are charged with conspiracy to

violate RICO (“RICO conspiracy”).

              The government describes MS-13 as follows:

              La Mara Salvatrucha, also known as the MS-13 gang (hereafter
              “MS-13”), is a gang composed primarily of immigrants or
              descendants of immigrants from El Salvador, with members
              operating throughout the United States, including within the
              District of Columbia. The name “Mara Salvatrucha” is a
              combination of several slang terms. The word “Mara” is the term
              used in El Salvador for “gang.” The phrase “Salvatrucha” is a
              combination of the words “Salva,” which is an abbreviation for
              “Salvadoran,” and “trucha,” which is a slang term for the warning
              “fear us,” “look out,” or “heads up.”

              ...

              MS-13 is a national and international criminal organization with
              over 10,000 members regularly conducting gang activities in at
                                               2
                 least twenty states and the District of Columbia, as well as in
                 Mexico, Honduras, Guatemala, and El Salvador. MS-13 is one of
                 the largest street gangs in the United States. Gang members
                 actively recruit members, including juveniles, from communities
                 with a large number of immigrants from El Salvador. Members,
                 however, can also have ethnic heritage from other Central
                 American countries. In the United States, MS-13 has been
                 functioning since at least the 1980s.

                 ...

                 [M]embers of MS-13 were expected to protect the name,
                 reputation, and status of the gang from rival gang members and
                 other persons. MS-13 members required that all individuals should
                 show respect and deference to the gang and its membership. To
                 protect the gang and to enhance its reputation, MS-13 members
                 were expected to use any means necessary to force respect from
                 those who show disrespect, including acts of intimidation and
                 violence. MS-13’s creed is exemplified by one of its mottos,
                 “Matar, robar, violar, controlar,” which translates in sum and
                 substance to, “Kill, steal, rape, control.”

                 ...

                 MS-13 members were required to commit acts of violence to
                 maintain membership and discipline within the gang, including
                 violence against rival gang members or those they perceived to be
                 rival gang members, as well as MS-13 members and associates
                 who violated the gang’s rules. As a result of MS-13’s frequent use
                 of violence, innocent persons were often injured or killed.
                 Participation in criminal activity by an MS-13 member,
                 particularly violent acts directed at rival gang members or as
                 ordered by the gang leadership, increased the level of respect
                 accorded that member, resulting in that member maintaining or
                 increasing his position in the gang, and possibly resulting in
                 recognition as a leader

Id. ¶¶ 1, 3, 6, 7.

                 Mr. Diaz-Antunuez was not named in the original Indictment, filed in September

2010. See [Dkt. 1]. He is charged only in Count 28 of the Superseding Indictment, with first-

degree murder while armed in violation of D.C. Code §§ 22-2101, 4502. Messrs. Machado-

Erazo and Martinez-Amaya are both charged in only one count of the Superseding Indictment,


                                                 3
Count 1, which alleges RICO conspiracy in violation of 18 U.S.C. § 1962(d). 1 See Superseding

Indictment ¶ 16. They are not charged in Count 28. However, Count 28 did charge Dennis Gil-

Bernardez, Defendant number fifteen, with first-degree murder while armed. Mr. Gil-Bernardez

has since pled guilty to RICO conspiracy, but his plea agreement included dismissal of Count 28

against him.

               Count 28 states as follows:

               DENNIS L. GIL-BERNARDEZ, also known as Pando, also
               known as Dopre, HENRY DIAZ-ANTUNUEZ, also known as
               Stewie, also known as Stuvi, and other individuals whose identity
               is known to the Grand Jury, within the District of Columbia, while
               armed with a dangerous weapon, that is a knife or other sharp
               object, purposely and with deliberate and premeditated malice,
               killed Louis Alberto Membreno-Zelaya, also known as “El Brujo”,
               by stabbing him with a knife or other sharp object on or about
               November 6, 2008, thereby causing injuries from which Louis
               Alberto Membreno-Zelaya, also known as “El Brujo” died on or
               about November 6, 2008. (First Degree Murder While Armed
               (Premeditated), in violation of 22 D.C. Code, Sections 2101, 4502
               (2007 ed.)).

Superseding Indictment at 37–38. D.C. Code § 22-2101 is the substantive offense of first-degree

murder; it provides that “[w]hoever, being of sound memory and discretion, kills another

purposely, either of deliberate and premeditated malice . . . is guilty of murder in the first

degree.” Section 22-4502 contains sentencing enhancements for commission of violent crimes,

including murder, while armed; its effect here will depend on the extent of Mr. Diaz-Antunuez’s

prior criminal record, if he is convicted. 2 Mr. Diaz-Antunuez faces a mandatory-minimum



1
  During a motions hearing on March 12, 2013, the government advised the Court that it may file
a Second Superseding Indictment adding charges of a violation of 18 U.S.C. § 1959(a)(1),
Violent Crime in Aid of Racketeering (“VICAR”) against Messrs. Machado-Erazo and Martinez-
Amaya. As of the filing of this Opinion, it had not done so.
2
 Defendants charged in federal court with D.C. Code offenses are sentenced pursuant to the
D.C. Voluntary Sentencing Guidelines, not the United States Sentencing Guidelines. United
                                                  4
sentence of thirty years of imprisonment under the D.C. Code if found guilty. 3 See id. §§ 22-

2101, 22-2104, 22-4502.

               The murder of Mr. Membreno-Zelaya is alleged to have been an overt act in aid

of the RICO conspiracy. Superseding Indictment ¶ 22(i), (j) (“Overt Acts”). The Superseding

Indictment also gives further background as to the Membreno-Zelaya slaying:

               Between on or about the summer of 2008 through November 6,
               2008, from a jail in El Salvador, MOISES HUMBERTO RIVERA-
               LUNA, also known as Santos, also known as Viejo Santos, issued
               and conveyed through DENNIS L. GIL-BERNARDEZ also known
               as Pando, also known as Dopre, a greenlight which ordered the
               murder of Louis Alberto Membreno-Zelaya, also known as “El
               Brujo.” GIL-BERNARDEZ subsequently ordered the greenlight to
               cliques in the Washington, D.C. metropolitan area.
               ...
               On or about November 6, 2008, in the District of Columbia
               persons whose identity is known to the Grand Jury stabbed and
               killed Louis Alberto Membreno-Zelaya, also known as “El Brujo”
               in accordance with the greenlight which had been issued by
               RIVERA-LUNA and GIL-BERNARDEZ.

Id.

               Charged with the Membreno-Zelaya murder along with Mr. Diaz-Antunuez, Mr.

Gil-Bernardez entered a guilty plea under Federal Rule of Criminal Procedure 11(c)(1)(C) on

December 7, 2012. He pled guilty to Count 1, RICO conspiracy, and admitted guilt as to:

attempted murder in the District of Columbia (as to Dimas Perez, on April 7, 2008); murder in


States v. Cutchin, 956 F.2d 1216, 1219 (D.C. Cir. 1992) (“Defendants found guilty of violations
of the D.C. Code can only be sentenced under the D.C. Code.”).
3
 Ordinarily, the maximum statutory penalty for first-degree murder while armed is life
imprisonment without release. See D.C. Code §§ 22-2104(a), 22-4502; see also District of
Columbia Sentencing and Criminal Code Revision Commission, Voluntary Sentencing
Guidelines Manual, at C-15. Because Mr. Diaz-Antunuez was under eighteen at the time of the
offense, he cannot be sentenced to life imprisonment without release. See D.C. Code § 22-
2104(a) (“[N]o person who was less than 18 years of age at the time the murder was committed
shall be sentenced to life imprisonment without release.”).

                                                5
Maryland (as to Luis Chavez-Ponce, on July 29, 2008); and attempted murder in Virginia (as to

three unknown persons, on October 6, 2008). See Plea Agr. [Dkt. 272], Factual Proffer [Dkt.

273]. He also admitted speaking to a “member of MS-13 who was incarcerated in El Salvador”

during a meeting of the MS-13 Normandie clique and announcing a “green-light” on Mr.

Membreno-Zelaya. Factual Proffer ¶ 21. Mr. Gil-Bernardez “appointed certain MS-13

members” to look for Mr. Membreno-Zelaya and advised other cliques of the green light. Id.

According to Mr. Gil-Bernardez’s Factual Proffer, MS-13 members then stabbed Mr.

Membreno-Zelaya to death on November 6, 2008. Id.

               The Court accepted the plea agreement and imposed a sentence of seventy-six

years (912 months), to run concurrent with a sentence imposed on Mr. Gil-Bernardez by the

United States District Court for the Eastern District of Virginia for other crimes that were

charged in that case, Criminal No. 1:09-cr-216 (E.D. Va. filed May 6, 2009). See Judgment

[Dkt. 278].

               Thus, the current state of affairs for Mr. Diaz-Antunuez is as follows. He faces

trial in federal court on a D.C. Code violation for a murder that is an alleged overt act of a RICO

conspiracy with which he is not charged but with which two co-defendants are charged, while his

co-defendant on the D.C. Code murder charge—who was also charged with RICO conspiracy, in

violation of federal law—is no longer in the case.

               B. Procedural History as to Mr. Diaz-Antunuez

               The government named Mr. Diaz-Antunuez as a Defendant in this case in the

Superseding Indictment filed on November 1, 2011. He was arrested on November 3, 2011, and

has been held ever since. After difficulties arose between Mr. Diaz-Antunuez and his first

appointed counsel, the Court appointed Manuel Retureta to represent Mr. Diaz-Antunuez. Mr.



                                                 6
Retureta filed his appearance on January 3, 2013, see Dkt. 277, and he filed the instant Motion to

Dismiss the Indictment on February 19, 2013, see Def. Mot., Dkt. 295. The government opposed

the motion, see Dkt. 297, and Mr. Diaz-Antunuez filed a reply brief, see Dkt. 299. Oral

argument on the motion was scheduled for March 6, 2013, and was rescheduled to March 12,

2013, due to inclement weather that closed the courthouse.

                                    II. LEGAL STANDARD

               “[A]t any time while the case is pending, the court may hear a claim that the

indictment or information fails to invoke the court’s jurisdiction or to state an offense.” Fed. R.

Crim. P. 12(b)(3)(B). In ruling on a motion to dismiss, a court views the indictment as a whole

and assumes its factual allegations to be true. Boyce Motor Lines v. United States, 342 U.S. 337,

343 n.16 (1952); see also United States v. Ferris, 807 F.2d 269, 271 (1st Cir. 1986). The

question is usually whether the allegations, if proven, would be sufficient to permit a jury to find

that the crimes charged were committed. United States v. Sampson, 371 U.S. 75, 76 (1962).

                                         III. ANALYSIS

               Mr. Diaz-Antunuez argues that the Superseding Indictment must be dismissed as

to him for two reasons: (1) he should have been treated as a juvenile under the Federal Juvenile

Delinquency Act (“FJDA”), 18 U.S.C. § 5301 et seq.; and (2) the Court either lacks or should

decline jurisdiction over the only offense with which he is charged, a D.C. Code offense. See

Def. Mot. at 4. As set forth below, the Court concludes that the FJDA does not apply because

Mr. Diaz-Antunuez is not charged with a federal offense. Because joinder of Mr. Diaz-Antunuez

in the Superseding Indictment was proper under Federal Rule of Criminal Procedure 8(b), the

Court has jurisdiction over him under D.C. Code § 11-502(3). Finally, the present record shows

no prejudice to Mr. Diaz-Antunuez from a joint trial with Messrs. Machado-Erazo and Martinez-

Amaya, and the Court thus declines to exercise its discretion to relinquish its jurisdiction.

                                                  7
               A. The FJDA Does Not Apply

               Mr. Diaz-Antunuez was sixteen years old at the time of the alleged murder. He

relies on his youth to argue that the government was required to comply with the FJDA before

prosecuting him in federal court. See Def. Mot. 4–7. The FJDA gives a federal court

jurisdiction over juveniles—ordinarily prosecuted in state courts—only after satisfaction of a

number of prerequisites, and it requires the federal court to follow certain procedures to account

for the unique nature of such cases. See United States v. Thomas, 114 F.3d 228, 263 (D.C. Cir.

1997) (noting that alleged juvenile delinquents “receive special rights and immunities, are

shielded from publicity, are confined apart from adult criminals and are protected from certain

consequences of adult conviction”). The FJDA defines a “juvenile” as a person who has not yet

attained his eighteenth birthday. See 18 U.S.C. § 5031. For prosecutions affected by the

strictures of the FJDA, a federal court’s subject matter jurisdiction depends upon the

government’s compliance with the statute, including, inter alia, a certification by the Attorney

General pursuant to 18 U.S.C. § 5032. In re Sealed Case (Juvenile Transfer), 131 F.3d 208, 211

(D.C. Cir. 1997) (noting that certification by the Attorney General has been “uniformly

treated . . . as jurisdictional” by federal circuit courts of appeals). Mr. Diaz-Antunuez asserts that

the government did not comply with the FJDA, including by proceeding against him as an adult

without Attorney General certification. Def. Mot. at 7–8. He contends that “the government has

proceeded . . . with full knowledge that he is a juvenile and in blatant disregard of the safeguards

and requirements mandated by [the FJDA].” Def. Mot. at 8.

               The government responds that federal jurisdiction does not depend on the FJDA

but, rather, exclusively on D.C. Code § 11-502(3), which grants concurrent jurisdiction to federal

and District of Columbia courts in certain circumstances. Opp. at 1–5. Under this view of the

law, the government had no obligation to comply with the FJDA because that statute applies only
                                                  8
when a juvenile is charged with “violation of a law of the United States” prior to the age of

eighteen. See 18 U.S.C. § 5031 (emphasis added). The government relies on D.C. Code § 11-

502(3), which provides: “In addition to its jurisdiction as a United States district court . . . the

United States District Court for the District of Columbia has jurisdiction of . . . [a]ny offense

under any law applicable exclusively to the District of Columbia which offense is joined in the

same information or indictment with any Federal offense.” Furthermore, the government notes

that Mr. Diaz-Antunuez would not be treated as a juvenile if prosecuted in D.C. Superior Court

because he was sixteen at the time of the alleged offense. See Opp. at 1–5 (citing D.C. Code

§ 16-2302(a)).

                 Mr. Diaz-Antunuez correctly notes that the D.C. Code and FJDA differ as to the

age at which juvenile delinquents are treated as adults, but the Court finds that the statutory

provisions are clear. The FJDA does not apply to this case because it speaks only to instances in

which the government alleges a “violation of a law of the United States committed by a person

prior to his eighteenth birthday which would have been a crime if committed by an adult.” 18

U.S.C. § 5031 (emphasis added). Mr. Diaz-Antunuez is not charged with violating a “law of the

United States;” he is charged with violating a law of the District of Columbia. D.C. Code § 11-

502(3) allows this Court to preside over proceedings involving an “offense under [ ] law

applicable exclusively to the District of Columbia,” which clearly includes an alleged violation

of D.C. Code §§ 22-2101, 22-4502. Notably, Mr. Diaz-Antunuez would be treated as an adult by

the Superior Court. See D.C. Code §§ 16-2301(3)(A)(i), 16-2302(a) (giving the Superior Court

Family Division jurisdiction over alleged offenses by a “child” but stating that “‘child’ does not

include an individual who is sixteen years of age or older and charged by the United States

attorney with murder . . . .”); see also In re D.H., 666 A.2d 462, 478 (D.C. 1995) (“The United



                                                   9
States Attorney is authorized to charge a juvenile who is sixteen or over as an adult for certain

enumerated crimes, including murder . . . .”). Thus, presiding over his trial for an alleged

violation of the D.C. Code, this Court can and will also treat Mr. Diaz-Antunuez as an adult.

               Counsel for Mr. Diaz-Antunuez argued that Congress intended the FJDA to apply

in all United States District Court proceedings as a jurisdictional prerequisite that the

government must satisfy to prosecute a juvenile in federal court, even for violations of the D.C.

Code. This argument has certain attractions because any federal judicial district outside the

District of Columbia would have jurisdiction over a juvenile committing a crime at age sixteen—

such as Mr. Diaz-Antunuez is charged—only if the government charged him with a federal

offense and complied with the FJDA. But the District of Columbia is a non-state that is, at its

legal foundation, a federal enclave. Propert v. District of Columbia, 948 F.2d 1327, 1330 n.5

(D.C. Cir. 1991) (“D.C. is a political entity created by the federal government . . . .” (citing

Bolling v. Sharpe, 347 U.S. 497, 499 (1954)). The United States Attorney for the District of

Columbia can choose to prosecute certain crimes in either local or federal court. And there is no

ambiguity in either the FJDA or D.C. Code § 11-502(3). See Carcieri v. Salazar, 555 U.S. 379,

387 (2009) (holding that in interpreting a statute a court “must first determine whether the

statutory text is plain and unambiguous” (citations omitted)). Because neither statute is

ambiguous, the Court must give effect to each as they are written. See Watt v. Alaska, 451 U.S.

259, 267 (1981) (“We must read the statutes to give effect to each if we can do so while

preserving their sense and purpose.” (citations omitted)). The FJDA does not apply because Mr.

Diaz-Antunuez is not charged with a federal crime. While that would exclude him from federal

court in other states, that is not the case in the District of Columbia.




                                                  10
                B. Jurisdiction Is Proper Under D.C. Code § 11-502(3)

                Having concluded that its jurisdiction over Mr. Diaz-Antunuez must rest on D.C.

Code § 11-502(3), the Court turns to the next issue: whether such jurisdiction is proper.

                        1. Legal Standard—Concurrent Jurisdiction

                Under D.C. Code § 11-502(3) as interpreted by the D.C. Circuit, this Court has

jurisdiction over any local offense properly joined with a federal offense in a charging document

under Federal Rule of Criminal Procedure 8(b) at some point prior to trial, regardless of any

disposition of any charges against any of the defendants prior to trial. D.C. Code § 11-502(3)

provides that “[i]n addition to its jurisdiction as a United States district court . . . the United

States District Court for the District of Columbia has jurisdiction of . . . [a]ny offense under any

law applicable exclusively to the District of Columbia which offense is joined in the same

information or indictment with any Federal offense.” This Court has jurisdiction “over local

offenses so long as an indictment properly joins federal and local offenses under Federal Rule of

Criminal Procedure 8[b].” United States v. Johnson, 46 F.3d 1166, 1172 (D.C. Cir. 1995); see

also United States v. Jackson, 562 F.2d 789, 793 (D.C. Cir. 1977) (observing that a contrary

construction would mean that the district court would have jurisdiction “regardless of how

unconnected or dissimilar those crimes might be”).

                As a legal principle applicable to this District of Columbia/federal court question,

offenses under District of Columbia and federal law that are properly joined in a federal

indictment establish jurisdiction in the district court so that subsequent disposition of the federal

offense does not remove federal court jurisdiction. United States v. Kember, 648 F.2d 1354,

1359 (D.C. Cir. 1980); see also United States v. Shepard, 515 F.2d 1324, 1331 (D.C. Cir. 1975)

(“[W]here federal and local offenses have been properly joined in one indictment and jeopardy

has attached, the District Court may proceed to a determination of the local offenses regardless

                                                   11
of any intervening disposition of the federal counts.”). 4 When federal and local charges are not

actually joined in the same charging document—even though they might have been—the district

court lacks the power to adjudicate the local charges. United States v. Koritko, 860 F.2d 738,

739 (D.C. Cir. 1989). Further, when local charges have been “disassociated” from the federal

offenses, a federal district court in the District of Columbia may, in its discretion, decline

jurisdiction over the local charges. Kember, 648 F.2d at 1359–60.

               Accordingly, the analysis here must consider multiple issues. There is no doubt

that this Court has jurisdiction pursuant to D.C. Code § 11-502(3) if the D.C. Code charge

against Mr. Diaz-Antunuez is properly joined in the federal Superseding Indictment under Rule

8(b). If joinder was proper, the question becomes whether severance under Rule 14(a) is

appropriate; if Mr. Diaz-Antunuez is severed, the Court may decline jurisdiction.

                       2. Legal Standard—Joinder Under Rule 8(b)

               Joinder of defendants and offenses in multi-defendant cases is governed by

Federal Rule of Criminal Procedure 8(b), which provides in part: “The indictment or information

may charge 2 or more defendants if they are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions, constituting an offense or offenses.”

Fed. R. Crim. P. 8(b); United States v. Wilson, 26 F.3d 142, 153 n.4 (D.C. Cir. 1994) (“In cases

involving multiple defendants, the weight of authority in this circuit and elsewhere regards Rule

8(b) as providing the sole standard for determining the permissibility of joinder of offenses.”

(internal quotation marks omitted)); see also Jackson, 562 F.2d at 794 (“It is firmly established

in the case law that the propriety of joinder in cases where there are multiple defendants must be



4
 This is analogous to supplemental jurisdiction over state-law claims in civil cases. See
generally 28 U.S.C. § 1367.

                                                  12
tested by Rule 8(b) alone and that Rule 8(a) has no application.” (quoting 1 C. Wright, Federal

Practice and Procedure § 144, at 318-19 (1969)).

                While it is “difficult to prevail on a claim that there has been misjoinder under

Rule 8(b), there are definite limits to what the government can put together in a single

indictment.” United States v. Nicely, 922 F.2d 850, 853 (D.C. Cir. 1991). Rule 8(b) “may not be

read to embrace similar or even identical offenses, unless those offenses are related. . . . There

must be a logical relationship between the acts or transactions within the series.” Id. (citing

United States v. Perry, 731 F.2d 985, 990 (D.C. Cir. 1984)). “Rule 8(b) can be satisfied either by

the indictment alone, as ‘for instance when a conspiracy charge links all the offenses and

defendants,’ or by ‘subsequent pre-trial representations.’” United States v. Spriggs, 102 F.3d

1245, 1255 (D.C. Cir. 1996) (quoting Perry, 731 F.2d at 990); see also United States v.

Gbemisola, 225 F.3d 753, 760 (D.C. Cir. 2000) (holding that joinder is proper, even in cases

without a conspiracy count, when prosecutors “present evidence that [defendants’] offenses arose

out of their participation in the same drug distribution scheme.” (internal quotation marks

omitted; alteration in original)).

                Moreover, “[j]oint trials are favored in RICO cases,” United States v. Richardson,

167 F.3d 621, 624 (D.C. Cir. 1999), and “an offense that is chargeable as a RICO predicate may

be joined to an offense that is not chargeable as a RICO predicate so long as the two offenses

satisfy this test of ‘logical relationship,’” United States v. Brown, 823 F.2d 591, 598 (D.C. Cir.

1987) (quoting Perry, 731 F.2d at 990).

                        3. Joinder Was Proper

                The “logical relationship” test is satisfied in this case because the murder with

which Mr. Diaz-Antunuez is charged was allegedly an overt act committed on MS-13’s behalf,

in aid of the RICO conspiracy that underlies all other charges in the Superseding Indictment. See
                                                 13
Nicely, 922 F.2d at 853. According to the Superseding Indictment, which the Court accepts as

true for the purposes of the instant motion, Mr. Diaz-Antunuez and other MS-13 members killed

Mr. Membreno-Zelaya “in accordance with the greenlight”—that is, an order to murder—issued

by superior MS-13 members, including Mr. Gil-Bernardez and Mr. Rivera-Luna. See

Superseding Indictment ¶ 22(i), (j). All charges in the Superseding Indictment relate to the

alleged RICO conspiracy in which Mr. Rivera-Luna and Mr. Gil-Bernardez, among others,

participated. See id. ¶ 16. Review of the Superseding Indictment confirms that “[a]ll of the

charged offenses, local and federal, were . . . part of a common scheme or plan, which means

that, for purposes of Rule 8(b), they were part of the same series of acts or transactions,” and

thus are properly joined. See United States v. Moore, 651 F.3d 30, 69 (D.C. Cir. 2011). While

Mr. Diaz-Antunuez himself is not charged with RICO conspiracy, that absence is not relevant;

Rule 8 requires that “the local offenses charged were [allegedly] committed as acts in furtherance

of the charged conspiracy and/or as predicate acts in the charged RICO conspiracy,” which

applies here. See id. (finding joinder proper under D.C. Code § 11-502(3) where indictment

alleged, inter alia, RICO conspiracy and D.C. Code offenses, including murder). Thus, Rule

8(b)’s requirement that offenses may only be joined if they involve the “same series of acts or

transactions” is satisfied, and joinder is proper.

               Because Mr. Diaz-Antunuez was properly joined in the Superseding Indictment

under Rule 8(b), the Court has jurisdiction over the D.C. Code offense with which he is charged.

See Moore, 651 F.3d at 69 (“Because . . . the superseding indictment establishes that joinder of

the local offenses was proper, . . . the district court had jurisdiction under § 11–502(3).”); see

also United States v. Drew, 5 F. Supp. 2d 16, 18 (D.D.C. 1998) (holding that jurisdiction was

proper because charges were properly joined under Rule 8 where federal firearms charge was



                                                     14
joined with local protective order violations that were “intimately linked with, and culminated

in” incident that led to federal charge).

               C. Severance Under Rule 14(a) Is Not Required

               Although Mr. Diaz-Antunuez’s Motion to Dismiss is not titled as a motion to

sever, he joined in other Defendants’ motions to sever, see Dkt. 283, and he had asserted

severance arguments as part of an earlier motion that primarily addressed other issues, see Dkt.

172. At oral argument on the instant Motion to Dismiss, both parties made arguments

concerning severance, which the Court invited and has considered.

               Even when joinder of defendants and offenses is proper under Rule 8(b), Federal

Rule of Criminal Procedure 14(a) permits a court to sever defendants or counts, or “provide any

other relief that justice requires,” if the joinder “appears to prejudice a defendant or the

government.” Fed. R. Crim. P. 14(a). The Supreme Court has instructed that “when defendants

properly have been joined under Rule 8(b), a district court should grant a severance under Rule

14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of

the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”

Zafiro v. United States, 506 U.S. 534, 539 (1993). The High Court suggested that such risk is

“heightened” when, for example, “many defendants are tried together in a complex case and they

have markedly different degrees of culpability,” or when evidence “that would not be admissible

if a defendant were tried alone is admitted against a codefendant.” Id. The Supreme Court also

suggested that such risk might be present when there is “[e]vidence that is probative of a

defendant’s guilt but technically admissible only against a codefendant” and when “a defendant

might suffer prejudice if essential exculpatory evidence that would be available to a defendant

tried alone were unavailable in a joint trial.” Id.



                                                  15
               Accordingly, the D.C. Circuit has instructed that “[s]everance may be required . . .

when the evidence against one defendant is far more damaging than the evidence against the

other defendant[s].” United States v. Halliman, 923 F.2d 873, 884 (D.C. Cir. 1991) (internal

quotation marks omitted); see also Richardson, 167 F.3d at 624. “The few cases in which [the

D.C. Circuit has] overturned a trial court’s denial of a motion to sever have involved clear

disparities between the weight, quantity, or type of the evidence against the movant and against

the other defendants.” Halliman, 923 F.2d at 884. The critical question is “whether a jury could

reasonably compartmentalize the evidence introduced against each individual defendant.” Id.

The trial court “has a continuing duty at all stages of the trial to grant a severance if prejudice

does appear.” Schaffer v. United States, 362 U.S. 511, 516 (1960); Perry, 731 F.2d at 992. In

many trials, however, measures less drastic than severance, such as limiting instructions, often

suffice to cure any risk of prejudice. Zafiro, 506 U.S. at 539.

               Mr. Diaz-Antunuez contends that Mr. Gil-Bernardez’s plea and absence from the

upcoming trial destroy any “link” between the D.C. Code charge against Mr. Diaz-Antunuez and

the Superseding Indictment. Def. Mot. at 11. He argues that he is charged with an isolated

offense that bears no real connection to the far-reaching gang activities with which Messrs.

Machado-Erazo and Martinez-Amaya are charged. Id.; see also Reply at 10 (“[G]iven the

absence of Gil-Bernardez and Rivera-Luna, it would be inappropriate for [the government] to

argue that the murder was an overt act of the conspiracy at trial when Mr. Antunuez is charged

solely with a local offense.”). Moreover, because he is charged with committing an offense at

age sixteen, Mr. Diaz-Antunuez asserts that “the District of Columbia has a unique interest in

prosecuting” and that the Superior Court is “especially suited to render a judgment or adjudicate

delinquency in such” a case. Def. Mot. at 12.



                                                  16
                 The government asserts that the Court should retain jurisdiction over the first-

degree murder charge because “the Brujo [Membreno-Zelaya] murder is one of the overt acts of

the RICO conspiracy” as to which the government intends to present evidence at trial. Opp. at 6.

According to the government, the offense with which Mr. Diaz-Antunuez is charged “shows the

enterprise at its core—a green light authorized by MS-13 members in El Salvador and then

carried out by several MS-13 members [in the United States].” Id. In addition, according to the

government, “severing [Mr. Diaz-Antunuez] from the case at this point would serve no useful

purpose” and would only delay Mr. Diaz-Antunuez’s trial. Id. at 7.

                 As the record stands, the danger of prejudice is more diaphanous than real. As

indicated, Mr. Diaz-Antunuez would be treated as an adult in either Superior Court or in this

Court under D.C. Code § 16-2301(3)(A)(i). Therefore, deferring to the juvenile expertise of the

D.C. Superior Court’s Family Division is not an option. Moreover, there is no “serious risk” of

Mr. Diaz-Antunuez being unfairly prejudiced by a joint trial with Messrs. Machado-Erazo and

Mr. Martinez-Amaya. See Zafiro, 506 U.S. at 539. He has made no proffer of mutually

antagonistic defenses or Bruton problems. 5 During the March 13, 2013 hearing, the government

proffered that it will show at trial that the murder of Mr. Membreno-Zelaya was not a detached

event, unrelated to the offenses with which the co-defendants are charged. Rather, the

government proffered evidence that it contends will show that Mr. Diaz-Antunuez was involved

in MS-13 beyond the alleged murder and that he was not merely a neophyte or applicant to the

gang. The proffer significantly lessens the danger to Mr. Diaz-Antunuez of unfair prejudice

from evidence of the gang activities. Furthermore, to the extent unfair prejudice arises—and the

Court reiterates that none has been shown to date—the Court can and will instruct the jury to


5
    See Bruton v. United States, 391 U.S. 123 (1968).

                                                  17
distinguish those charges against Messrs. Machado-Erazo and Martinez-Amaya from the single

charge against Mr. Diaz-Antunuez. Because the former arise under federal law and the latter

only under D.C. law, jury instructions and the verdict form will make the differences plain. See

Zafiro, 506 U.S. at 539; see also United States v. Wilson, 605 F.3d 985, 1017 (D.C. Cir. 2010)

(quoting Zafiro and discussing limits on examinations and limiting instructions as preferable

options to severance).

               The Court concludes that no showing requiring severance has been made at this

time.

               D. The Court Will Not Relinquish Jurisdiction

               It is clear that a federal district court in the District of Columbia lacks jurisdiction

despite D.C. Code § 11-502(3) when joinder was faulty initially, e.g., Jackson, 562 F.2d at 794–

95, and that a district court “should decline to try local offenses when those offenses have been

disassociated from any federal charges prior to trial and retention of the case would not comport

with the responsibilities of the District Court with respect to matters of federal concern.”

Kember, 648 F.2d at 1359–60 (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966); other citation and quotation marks omitted). The latter circumstance raises a “matter of

sound exercise of the court’s discretion, not a question of its power.” Id.

               Because the murder of Mr. Membreno-Zelaya is alleged to be an overt act of the

alleged RICO conspiracy, there is a definite connection between that murder, charged in Count

28, and the RICO conspiracy, charged in Count 1. That connection demonstrates that there are

“matters of federal concern,” see Kember, 648 F.2d at 1359–60, associated with the murder, even

though it is charged against Mr. Diaz-Antunuez under the D.C. Code. Even without the

continued prosecution of Mr. Gil-Bernardez, it would therefore be inappropriate for the Court to

relinquish jurisdiction over the D.C. Code charge. The Court also notes that the charges were
                                                  18
properly joined under Rule 8(b) and that the D.C. Code expressly empowers the federal district

court to try the charge against Mr. Diaz-Antunuez. Additionally, it is appropriate to retain

jurisdiction over a case with which the Court has become intimately familiar. Trial of Mr. Diaz-

Antunuez in Superior Court would necessitate a further lengthy delay. There is nothing to be

gained, and justice would not be served, if this case were dismissed from federal court after all

this time and on the eve of trial. See, e.g., United States v. Montgomery, 815 F. Supp. 7, 11–12

(D.D.C. 1993) (exercising discretion to retain jurisdiction over local charges when federal

charges dismissed as violation of Commerce Clause on “eve of trial” due to preparation

invested); United States v. Edmond, 738 F. Supp. 572, 575, 579 (D.D.C. 1990) (exercising

discretion to retain jurisdiction over local charges scheduled for second trial following dismissal

of federal charges on double jeopardy grounds after first trial “in view of the substantial time and

resources” it had invested in the case and the delay that would result if defendants had to be tried

in Superior Court). Finally, as indicated, Mr. Diaz-Antunuez faces no greater sentence as a D.C.

Code defendant in federal court than he would face in Superior Court; if Mr. Diaz-Antunuez is

convicted, this Court will apply the D.C. Voluntary Sentencing Guidelines, not the federal

guidelines. See United States v. Cutchin, 956 F.2d 1216, 1219 (D.C. Cir. 1992) (“It suffices to

say . . . that the [United States] Sentencing Guidelines apply only to federal crimes under 18

U.S.C. § 3551(a). Defendants found guilty of violations of the D.C. Code can only be sentenced

under the D.C. Code.”).

                                       IV. CONCLUSION

               The Federal Juvenile Delinquency Act does not apply to this case because Mr.

Diaz-Antunuez is charged only with a non-federal offense under the D.C. Code. This Court has

jurisdiction over the first-degree murder while armed charge because it was properly joined to



                                                 19
the Superseding Indictment, and severance is not required. The Court thus confirms its order

issued from the bench on March 12, 2013.



DATE: March 15, 2013

                                                                  /s/
                                                   ROSEMARY M. COLLYER
                                                   United States District Judge




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