Court Affirms VICAR, and Other, Convictions; Vacates One Life Sentence

US v. Ortiz-Orellana: Ortiz-Orellana and his codefendant, Perez-Chach, were MS-13 members who were involved in two murders, one of a supposed informant (they killed the wrong guy), the other of a rival gang member. They were convicted at trial of RICO conspiracy, multiple counts of VICAR murder in aid of racketeering, and related firearm offenses. Each was convicted at trial and sentenced to multiple life sentences.

The Fourth Circuit affirmed Ortiz-Orellana’s and Perez-Chach’s conviction, and most of their sentences. Both of them argued that the district court erred by allowing the Government to use summary exhibits at trial and failing to provide a limiting instruction as to those exhibits. The charts involved phone calls made by the codefendants, from which the Government was required to redact names. Nor were the charts admitted into evidence, but used only as an “illustrative aid” during the testimony of an FBI agent. The court held that the district court’s instructions on the charts (including that they were not “independent evidence” and could not be given “greater consideration” than the evidence upon which they were based) and, thus, no abuse of discretion. Because Ortiz-Orellana and Perez-Chach did not ask for any additional limiting instruction review was for plain error and the court found none. Ortiz-Orellana separately argued that his VICAR convictions were not based on a “crime of violence” because the Maryland state murder offenses involved could sustain convictions on a felony-murder theory. While that was true, the court ultimately held that the statutes in question were divisible and, upon reviewing the Shepard documents, it was “clear” that Ortiz-Orellana “committed a deliberate, premeditated, and willful killing,” which made it a crime of violence. The court did vacate Ortiz-Orellana’s sentence as to one count, where the district court (in contravention of a recent Supreme Court decision) held that it was required to impose the life sentence on that count consecutively to all others.