                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5018


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

OSCAR OMAR LOBO-LOPEZ, a/k/a Joker,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  T. S. Ellis, III, Senior
District Judge. (1:08-cr-00194-TSE-1)


Argued:   December 7, 2011                 Decided:   March 1, 2012


Before SHEDD, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Lana Marie Manitta, RICH ROSENTHAL BRINCEFIELD MANITTA
DZUBIN & KROEGER, LLP, Alexandria, Virginia; John Cady Kiyonaga,
KIYONAGA & KIYONAGA, Alexandria, Virginia, for Appellant.
Morris Rudolph Parker, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H.
MacBride, United States Attorney, Patricia T. Giles, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       On May 5, 2007, MS-13 member Oscar Omar Lobo-Lopez shot

18th   Street    member   Melvin    Reyes       with     a    .380   caliber    semi-

automatic handgun while he and another MS-13 member, Amador,

pursued Reyes.     When Reyes fell to the ground, Lobo-Lopez stood

by while Amador used his .38 caliber revolver to kill Reyes with

several shots at close range.            The two men then fled the scene

in a car with three other MS-13 members.

       A federal grand jury charged Lobo-Lopez with conspiracy to

commit murder in aid of racketeering activity, in violation of

18 U.S.C. § 1959(a)(5); murder in aid of racketeering activity,

in violation of 18 U.S.C. § 1959(a)(1); and use of a firearm

during a crime of violence causing death, in violation of 18

U.S.C. §§ 2, 924(c)(1)(A), (j).               On April 21, 2009, a jury found

Lobo-Lopez guilty on all three counts.

       Lobo-Lopez now appeals his conviction, alleging that the

district   court    erred   in     admitting       expert      testimony   and    in

denying his motions to compel discovery, motion for judgment of

acquittal, and motions for a new trial.                  We address each of his

contentions in turn and affirm the district court.



                                         I.

       Prior to trial, Lobo-Lopez moved to compel discovery of the

identity    of    individuals      who        provided       information   to    the

                                         2
government     regarding         Reyes’s      murder,     asserting       that    Brady       v.

Maryland, 373 U.S. 83 (1963), required disclosure.                            The district

court granted Lobo-Lopez’s motion as to two of the individuals,

but denied it as to the others.                        “In reviewing the district

court’s     denial     of    [a]     Brady        motion,      we    review      its    legal

conclusions de novo and its factual findings for clear error.”

United States v. King, 628 F.3d 693, 702 (4th Cir. 2011).

     Brady requires prosecutors to disclose “evidence favorable

to an accused upon request . . . where the evidence is material

either    to    guilt       or     to    punishment.”               373   U.S.     at       87.

Accordingly,       prosecutors          violate        Brady    when      they    fail       to

disclose impeachment material or exculpatory evidence that with

reasonable probability would change the outcome of the trial.

United States v. Bagley, 473 U.S. 667, 682 (1985).                            To establish

a Brady violation, “[t]he evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is

impeaching;     that     evidence        must      have   been      suppressed         by   the

State,    either      willfully     or     inadvertently;           and   prejudice         must

have ensued.”      Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

     As the district court noted, although we have previously

indicated      that     knowledge        of       an   eyewitness’s        identity         may

constitute Brady material that is “favorable to the accused,”

see, e.g., Monroe v. Angelone, 323 F.3d 286 (4th Cir. 2003);

Sennett v. Sheriff of Fairfax Cnty., 608 F.2d 537 (4th Cir.

                                              3
1979), we have also ruled that Brady does not require disclosure

of    such    information        on        “the       remote      possibility    that     [it]

would . . . help[] the defense,”                        United States v. Polowichak,

783 F.2d 410, 414 (4th Cir. 1986).

      Here, the district court denied Lobo-Lopez’s motion as to

the individuals that form the subject of his appeal because he

neglected to show that the individuals’ likely testimony would

prove exculpatory.          For example, Lobo-Lopez requested disclosure

of the identity of Witnesses #8, 9, 11, and 21 because they were

“eyewitnesses to the offense and/or the perpetrators’ actions

directly before and after the shooting.”                           Lobo-Lopez argued that

the   government       “fail[e]d           to    pursue      an   identification     of    the

perpetrators”         because    it        did    not       ask   these    eyewitnesses     to

select    the    perpetrators          from       a    photo      array.     Moreover,      he

asserted that access to these individuals would prove “material

and helpful to the defense.”

      Similarly, as to Witnesses #14, 17, 19, 20, 21, and ASO 17,

Lobo-Lopez       argued     that       because          these      individuals     “provided

information to police about threats made against the victim by

various      persons,”     their       testimony            “increas[ed]     the    pool    of

potential       shooters”       and     access         to    their    identity     would    be

“relevant       and    helpful        to    the       defense.”        Nevertheless,       the

district court declined to grant Lobo-Lopez’s motion because he

failed to “show[] that these individuals’ likely testimony would

                                                  4
either     tend      to    exculpate . . . Lobo-Lopez              or     impeach      the

credibility of one of the government’s witnesses.”

        Finally,     as   to    Witness     #11,    Lobo-Lopez      maintained         that

because     Witness       #7     reported       that    Witness     #11     saw     three

individuals in a breezeway prior to the shooting and the only

individual holding what Witness #11 thought was a .38 caliber

revolver did not match Lobo-Lopez’s description at the time,

access    to     Witness       #11’s   identity        could    produce    exculpatory

testimony      or    testimony      that    would       impeach    Witness       #7,    who

“stated that two individuals in the breezeway had guns.”                               But

the district court declined to hold that Witness #11’s testimony

would    prove      exculpatory,       reasoning       that    because    “one    of   the

other individuals Witness [#]11 described as helping to load the

gun could [have been] Lobo-Lopez” and because “the government’s

theory of the case [was] that the victim was killed by two

shooters, one with a .38 revolver and one with a [.]380 handgun,

Witness [#]11’s likely testimony [would] not [be] favorable for

. . . Lobo-Lopez.”

     Our review of the district court’s decision indicates that

it carefully considered the likely testimony that each of these

individuals would offer and whether that testimony would impeach

a   government        witness     or    prove      exculpatory.           Although      we

recognize that Witness #11 might have impeached Witness #7, we

cannot conclude that such impeachment would have changed the

                                            5
outcome of the trial.              Accordingly, we hold that the district

court did not err in denying Lobo-Lopez’s motion.



                                             II.

       Lobo-Lopez also made a pre-trial motion to disallow expert

testimony by Detective Saa and now appeals the district court’s

denial of that motion.             Lobo-Lopez contends (1) that Saa lacked

qualifications         to     testify   as    an    expert      and    (2)   that   Saa’s

testimony       constituted      hearsay      and    violated      the    Confrontation

Clause.

       “We review for abuse of discretion the district court’s

decision       to     admit    expert    testimony        under       Federal   Rule   of

Evidence 702.”          United States v. Wilson, 484 F.3d 267, 273 (4th

Cir.       2007). 1     Lobo-Lopez      avows      that   Saa     lacked     appropriate

credentials to testify as an expert because the formal education

listed on his curriculum vitae consisted of instruction from “a

       1
           Federal Rule of Evidence 702 provides as follows:

            If   scientific,   technical,   or  other   specialized
            knowledge will assist the trier of fact to understand
            the evidence or to determine a fact in issue, a witness
            qualified as an expert by knowledge, skill, experience,
            training, or education, may testify thereto in the form
            of an opinion or otherwise, if (1) the testimony is
            based upon sufficient facts or data, (2) the testimony
            is the product of reliable principles and methods, and
            (3) the witness has applied the principles and methods
            reliably to the facts of the case.




                                             6
state     approved        Criminal          Justice       Academy”          and     “specialized

training in the investigation and interdiction of street gangs.”

We disagree.

       Saa    is   a     detective         with    the    Herndon       Police       Department,

Criminal Investigation Section, and has been assigned to the

Northern Virginia Regional Gang Task Force since 2007.                                       Saa’s

duties        include          “the         investigation              [and]         information

dissemination            of        gang      intel       and        gang      investigation.”

Approximately          eighty-five         percent       of    Saa’s    gang      investigation

focuses on MS-13.              Saa has received training at conferences on

the    investigation          of    gangs’        criminal      activity       in    the    United

States and in El Salvador.                     He has also provided training to

other law enforcement officers on MS-13 and 18th Street.                                      Saa

has led MS-13 investigations and conducted surveillance on MS-13

gang     activity.            He    testified         that     he     has    participated      in

surveillance        of    MS-13      activity         approximately         fifty     times    and

that he has interviewed approximately fifty MS-13 members during

his career.

       Rule 702 does not require that a court rely solely on an

individual’s education to qualify him as an expert.                                        Rather,

“the text . . . expressly contemplates that an expert may be

qualified on the basis of experience.”                          Id. at 274 (quoting Fed.

R.    Evid.   702      advisory           committee’s         note)    (internal      quotation

marks omitted). Here, Saa testified to extensive experience in

                                                  7
investigating           MS-13,        surveilling             MS-13,    interviewing         MS-13

members, and training law enforcement on MS-13 and 18th Street.

Accordingly, we cannot conclude that the district court abused

its discretion in qualifying Saa as an expert on MS-13.

       Nor    do    we    conclude          that       the    district      court     abused    its

discretion         in     admitting         Saa’s        testimony          over     Lobo-Lopez’s

contention that it was hearsay and violated the Confrontation

Clause.         The       Confrontation            Clause       bars     the       “admission   of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had a

prior     opportunity            for        cross-examination.”                     Crawford     v.

Washington,         541    U.S.       36,    53–54           (2004).        Notably,     however,

although       “Crawford         forbids       the       introduction          of     testimonial

hearsay as evidence in itself, . . . it in no way prevents

expert       witnesses         from     offering         their     independent          judgments

merely because those judgments were in some part informed by

their    exposure         to    otherwise          inadmissible        evidence.”            United

States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009).                                           “An

expert witness’s reliance on evidence that Crawford would bar if

offered directly only becomes a problem where the witness is

used     as    little          more    than        a     conduit       or     transmitter       for

testimonial         hearsay,          rather       than       as   a    true       expert    whose

considered         opinion       sheds      light        on    some    specialized          factual

situation.”        Id.

                                                   8
      Significantly,      although        Lobo-Lopez          contends        that        Saa’s

testimony violated the Confrontation Clause, he neglects to cite

any examples of problematic statements.                           Our review of Saa’s

testimony indicates that he did not simply act as a conduit for

transmitting testimonial hearsay, but instead offered statements

that “shed light on” the internal structure, rules, terminology,

and   methods     of   MS-13.         Accordingly,           we    conclude        that    his

testimony     comported    with        Crawford        and    affirm         the    district

court’s decision to admit it.



                                         III.

      During trial, Lobo-Lopez requested a jury instruction that

required the government to prove that MS-13 has a substantial

effect on interstate commerce, and the district court denied the

request.     We review de novo whether a district court properly

instructed    a   jury    on    the    statutory        elements        of    an   offense,

United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996), but we

review the content of the instruction and a court’s decision to

give it for abuse of discretion, United States v. Lighty, 616

F.3d 321, 366 (4th Cir. 2010).

      A    district    court’s        refusal     to     give       a   proffered          jury

instruction is reversible error when the instruction “(1) was

correct; (2) was not substantially covered by the court’s charge

to the jury; and (3) dealt with some point in the trial so

                                          9
important,    that     failure        to       give    the    requested       instruction

seriously    impaired      the     defendant’s           ability       to    conduct      his

defense.”    Id. (quoting United States v. Passaro, 577 F.3d 207,

221 (4th Cir. 2009)) (internal quotation marks omitted).

     Establishing      a   §    1959       claim      requires      the     government    to

prove beyond a reasonable doubt

     (1) that the organization was a RICO enterprise, (2)
     that the enterprise was engaged in racketeering
     activity as defined in RICO, (3) that the defendant in
     question had a position in the enterprise, (4) that
     the defendant committed the alleged crime of violence,
     and (5) that his general purpose in so doing was to
     maintain or increase his position in the enterprise.

United   States   v.    Fiel,      35      F.3d       997,   1003    (4th     Cir.      1994)

(quoting United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.

1992)) (internal quotation marks omitted).                        A RICO “‘enterprise’

includes . . . any union or group of individuals associated in

fact although not a legal entity, which is engaged in, or the

activities of which affect, interstate or foreign commerce.”                              18

U.S.C. § 1959(b)(2).

     Lobo-Lopez      claims      that      a    circuit      split   exists       regarding

whether a criminal enterprise must have a substantial effect on

interstate   commerce      or     a     de     minimus       effect.        But    we    have

previously    indicated         that       “evidence         of     [an]     enterprise’s

connection with interstate commerce” need not be “copious” and

that the “standard required to satisfy the interstate commerce

requirement” is “minimal.”             United States v. Gray, 137 F.3d 765,

                                               10
772–73 (4th Cir. 1998); see also United States v. Crenshaw, 359

F.3d 977, 985 n.3 (8th Cir. 2004) (citing Gray and noting that

“other courts have held that the enterprise need only have a

minimal effect on interstate commerce in individual cases under

§   1959”).          Because         Lobo-Lopez’s            proposed    instruction        was

incorrect, we conclude that the district court did not abuse its

discretion in declining to give it.



                                                 IV.

       Lobo-Lopez complains that the government failed to prove

that MS-13 is an enterprise as required for establishment of a

§ 1959   claim      and       appeals    the      district      court’s     denial     of   his

motion for judgment of acquittal and a new trial on that basis.

       “We review the denial of [Lobo-Lopez’s] motion for judgment

of acquittal de novo.”                United States v. Hickman, 626 F.3d 756,

762 (4th Cir. 2010).                “‘[V]iewing the evidence in the light most

favorable to the [g]overnment,’ we are to determine whether the

conviction      is       supported          by     ‘substantial         evidence,’      where

‘substantial evidence is evidence that a reasonable finder of

fact   could     accept        as     adequate         and   sufficient     to   support      a

conclusion     .     .    .    beyond       a    reasonable      doubt.’”        Id.   (first

alteration     in        original)       (citation           omitted)    (quoting      United

States   v.    Young,         609    F.3d       348,   355    (4th   Cir.   2010);     United

States v. Bynum, 604 F.3d 161, 166 (4th Cir. 2010)).                              We review

                                                  11
the denial of a motion for a new trial for abuse of discretion.

United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).

          As noted above, a RICO “‘enterprise’ includes . . . any

union or group of individuals associated in fact although not a

legal entity, which is engaged in, or the activities of which

affect,       interstate         or     foreign         commerce.”             18     U.S.C.

§ 1959(b)(2).           “Such     an     enterprise        may    be     any     group     of

individuals associated in fact, and the earmarks of association

are    ‘continuity,        unity,        shared     purpose,       and     identifiable

structure.’”        Gray, 137 F.3d at 772 (quoting Fiel, 35 F.3d at

1003).

       Lobo-Lopez       argues    that    the     government      failed       to     present

substantial        evidence      of     an    enterprise         because        (1)     “[n]o

government witness described a global mission, common purpose[,]

or undertaking uniting members of MS-13[] beyond the diffuse

commission of violent acts,” and (2) no “witness describe[d] any

structure of leadership or means of coordinated action for MS-

13.”         Contrary     to     Lobo-Lopez’s           contention,       however,         the

government         presented          substantial         evidence         of         MS-13’s

“continuity, unity, shared purpose, and identifiable structure.”

       Saa    relayed    that     MS-13      exists      “[t]hroughout         the    United

States,      and   in   Central       America     and    in   Canada”     and       that   its

purpose “is to instill fear and terror in the community” by

committing violent acts.               He also indicated that MS-13 “has its

                                             12
own distinct separate cliques, and it has a leadership structure

within      those     cliques.”           Saa    further      testified         that    members

identify       themselves          by     wearing        blue      and        white,    through

handshakes, and sometimes with tattoos; and that members are

instructed      to    follow       rules    such      as    not    cooperating         with    law

enforcement, attacking rival gang members “on sight,” and never

leaving “a fellow gang member behind.”                             Violating these rules

results in a “physical beating” or death.                          Additionally, another

government witness testified that individuals join MS-13 through

an initiation process known as “jumping in,” where gang members

beat     the   initiant,       and        after       joining,      they       attend    clique

meetings and pay dues.

       In    our     view,   such        testimony         provides      evidence       that    “a

reasonable         finder     of     fact        could      accept       as     adequate       and

sufficient”          to     conclude        that       MS-13        is     an     enterprise.

Accordingly, we hold that the district court did not err in

denying Lobo-Lopez’s motions for judgment of acquittal and a new

trial on the ground that the government failed to prove that MS-

13 is an enterprise.



                                                 V.

       Approximately         two        months     prior      to    Lobo-Lopez’s         trial,

Amador pled guilty to murdering Reyes.                        Amador subsequently told

the government details about the circumstances of the murder and

                                                 13
implicated three other MS-13 members—Flecha, Snarf, and Ciego—in

addition       to    himself    and     Lobo-Lopez.           In       March    2009,       the

government located Flecha at a detention facility in New York

and   attempted       to    interview    him      about    the    murder,       but   Flecha

refused to comment on the murder.

       The government interviewed Ciego in late March 2009.                             Ciego

confirmed      that     he,    Flecha,    and      Snarf     were      involved       in   the

murder, but denied Lobo-Lopez’s and Amador’s involvement.                               Ciego

also implicated a young MS-13 member, but claimed that he could

not    remember       his     name.        Within     days        of     receiving         this

potentially exculpatory information, the government told defense

counsel what Ciego shared and provided his name and address.

Defense counsel subsequently contacted Ciego and informed the

government      that       although   Ciego       intended    to       invoke   his     Fifth

Amendment       right       against      self-incrimination,             counsel        would

nonetheless         introduce    Ciego’s      exculpatory         statements      under       a

hearsay exception.            At trial, however, counsel made no attempt

to introduce the statements.

       After trial, Lobo-Lopez, alleging a Brady violation, moved

to    compel    disclosure       of   “all     FBI    302s       reporting      statements

pertaining to [specified witnesses, including Ciego and Flecha], 2



       2
        Although Lobo-Lopez              named several individuals in his
motion, his appeal, with                 the exception of a brief point
(Continued)
                                             14
as well as any documents reflecting or pertaining to any alleged

participation in or knowledge of the crime by any of them, and

any documentation pertaining to the whereabouts—or any change

thereof—of any of them since May 5, 2007.”                        The district court

denied      this    motion,     stating      that     (1)     knowledge      of    Flecha’s

identity      and      contact       information        was     unlikely          to   prove

exculpatory         because      Flecha       “offered          the       government      no

information relating to the Reyes murder, let alone information

supporting         defendant’s       case”    and       (2)     the   government          had

disclosed all exculpatory information that it received regarding

Ciego.       Lobo-Lopez       also    filed       a   motion    for   a    new    trial    on

similar grounds, but the district court denied this motion as

well.

      On     appeal,    Lobo-Lopez        asserts       that    the       district     court

erred.      He first contends that access to all of the FBI 302s

regarding Ciego would have aided his decision about whether to

present Ciego’s exculpatory statements at trial and would have

supplied “background information providing others with a motive

for   the    crime.”       He    also     contends       that    access      to    Flecha’s

identity and contact information could have provided statements

that “would have impeached the only acknowledged participant to



regarding one witness that was not raised below, addresses the
district court’s ruling only as to Flecha and Ciego.



                                             15
have    testified,      co-defendant          Dado,”    or     that     would    have

corroborated Ciego’s account of events.                   We disagree.          As to

Ciego, the government promptly provided defense counsel with his

name    and    contact       information,       and     with    his     exculpatory

statements.      Accordingly, Lobo-Lopez had sufficient information

with which to interview Ciego prior to trial and acquire the

same    information    that    the   government        obtained.        Furthermore,

because Flecha categorially declined to discuss the Reyes murder

with the government, Lobo-Lopez cannot show that access to his

identity and contact information would have proven exculpatory.

Thus,   we    uphold   the    district    court’s      decision    to    deny   Lobo-

Lopez’s motions.



                                         VI.

       Finally, Lobo-Lopez argues that the district court erred in

denying his motion for a new trial based on newly discovered

evidence.      We have specified five requirements for granting a

new trial under Federal Rule of Criminal Procedure 33 for “newly

discovered evidence”:

       (a) The evidence must be, in fact, newly discovered,
       i.e., discovered since the trial; (b) facts must be
       alleged from which the court may infer diligence on
       the part of the movant; (c) the evidence relied on,
       must not be merely cumulative or impeaching; (d) it
       must be material to the issues involved; and (e) it
       must be such, and of such nature, as that, on a new
       trial, the newly discovered evidence would probably
       produce an acquittal.

                                         16
Mills   v.     United     States,      281   F.2d      736,    738   (4th     Cir.    1960)

(quoting Johnson v. United States, 32 F.2d 127, 130 (8th Cir.

1929)) (internal quotation marks omitted).                           Moreover, “a new

trial should be granted only when the evidence weighs heavily

against      the     verdict.”      United     States     v.    Arrington,      757    F.2d

1484, 1486 (4th Cir. 1985).                  We review the denial of a motion

for a new trial under Rule 33 for abuse of discretion.                               United

States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).

       After       Lobo-Lopez’s     trial,        an   incarcerated     MS-13        member

“provided information to federal law enforcement officers about

a hit on an 18th Street member” occurring in late summer 2007.

The individual indicated that he was at a house frequented by

gang members when “a call came in that an 18th St[reet] member

had been killed.”          He indicated that Lobo-Lopez and Amador were

at the house when the call came in and that “approximately 40

minutes      later,      two     men    came      to    the    house    and     received

congratulations.”          The individual identified one of the men who

received congratulations in a photograph, but, notably, further

investigation revealed that this man was incarcerated at the

time    of     the    Reyes    murder.         The     individual      also    told     law

enforcement officers that he had spoken with Ciego in jail and

that Ciego told him that (1) Lobo-Lopez was not present at the

murder and (2) Amador pled guilty because his parents urged him


                                             17
to and because he believed that “‘too many witnesses’ would say

he was” present at the murder.

       When     Lobo-Lopez           moved    for    a   new    trial       based    on     this

evidence, the district court denied the motion for two reasons.

First, the court held that Lobo-Lopez had failed to satisfy the

requirements            of    Rule    33     because     the        “new    evidence        [was]

comprised entirely of inadmissible hearsay.”                                Drawing on our

precedent, the court noted that inadmissible evidence could not

form the basis of a new trial motion.                               See United States v.

MacDonald, 779 F.2d 962, 964 (4th Cir. 1985).                                 At best, the

court reasoned, “[t]he statements could only be admitted for an

impeachment purpose and impeaching evidence is not a valid basis

for a new trial.”

       Second, the court reasoned that even if the statements were

admissible, they were “simply not credible in light of evidence

that   the     .    .    .    MS-13    member    alleged       by    the    inmate     to   have

participated in the Reyes murder was actually incarcerated at

the    time    of       the   murder.”        Accordingly,          the    court    held     that

because       the   “evidence—if           admissible—would          be     afforded    little

credence by a jury at a new trial,” Lobo-Lopez failed to carry

his burden of showing that the evidence “would likely result in

acquittal.”

       We agree with the district court.                        The “newly discovered

evidence”       that         Lobo-Lopez      offered     either       was    not     based     on

                                                18
personal knowledge or was incredible.   Thus, it cannot meet the

threshold necessary for granting a new trial and the district

court did not abuse its discretion in concluding as much.



                               VII.

     For   the   foregoing   reasons,   we   affirm   Lobo-Lopez’s

conviction.

                                                            AFFIRMED




                                19
