A Honduran man who prosecutors hoped would be a star witness in an MS-13 gang trial has been convicted in federal court in San Francisco of lying about having taken part in eight murders in his native country.
Former MS-13, or Mara Salvatrucha, gang member Roberto Acosta was convicted by a jury in the court of U.S. District Judge Charles Breyer on Tuesday of making a false statement to federal authorities.
He will be sentenced by Breyer on Oct. 5 and faces up to five years in prison.
Acosta, whose gang nicknames were “Zoro” and “Little Bad Boy,” became an informant and infiltrated a San Francisco branch of the gang in 2005 and 2006 and again in 2008, when he returned illegally to the United States after having been deported.
Federal prosecutors had expected him to give key testimony at the current racketeering and murder conspiracy trial in San Francisco of seven members of MS-13’s 20th Street Clique, which was based at the 20th and Mission streets in the city.
That trial began in April in the court of U.S. District Judge William Alsup and is expected to continue into August.
But in February, Acosta told a federal prosecutor and immigration agents for the first time that he had taken part in eight gang-related murders in Honduras in 2003 and 2004, participating directly in five and arranging for three others.
Acosta had not previously disclosed those murders to his handlers, despite repeatedly having been asked to reveal previous acts of violence, according to a trial brief filed by prosecutors.
Prosecutors then cancelled plans to use Acosta as a witness. On March 29, a week before the gang trial began, they obtained a grand jury indictment accusing him of lying.
“Acosta’s failure to disclose his participation in the eight murders, despite repeated questions about the same, form the basis of the charge against him,” Assistant U.S. Attorney Christine Wong wrote in the trial brief filed this month.
Wong said Acosta was responsible for overseeing the gang’s Honduran drug distribution operations at the time of the slayings and was ordered by gang leaders to carry out the killings.
Acosta’s trial took two days. He is in custody while awaiting sentencing.
Acosta’s defense attorney, Elena Condes, could not be reached for comment today.
The seven defendants in Alsup’s court are among about three dozen MS-13 gang members who were indicted in four successive indictments in 2008 and 2009. About 18 others pleaded guilty to various charges and some became witnesses at the trial.
The 20th Street Clique’s racketeering, or operation of a continuing criminal enterprise, is alleged to have included murder, attempted murder, assault, drug dealing, extortion, robbery and car theft.
Three defendants–Erick “Spooky” Lopez, Jonathan “Soldado” Cruz Ramirez and Guillermo “Shorty” Herrera–are specifically charged with four gunshot murders carried out on San Francisco streets in 2008.
As part of their defense strategy, attorneys for the seven men claim that Acosta and another informant, Salvadoran-born Jaime Martinez, induced gang members to engage in violent acts, in violation of Justice Department guidelines for informants.
They also contend that Acosta caused young people to join the gang by encouraging them to let him tattoo them with the group’s devil’s horns emblem, an irrevocable mark of gang membership.
FBI and Immigration and Customs Enforcement agents have denied those claims during their testimony.
On the witness stand on Tuesday, ICE agent Chris Merendino, who was a handler for both Acosta and Martinez, said he told Acosta that he should not offer to tattoo anyone, but that it was all right to do so if someone asked Acosta to inscribe the gang emblem.
“We instructed him that if he wasn’t offering tattoos, it was OK to be solicited and to provide them. We just told him that he shouldn’t offer or recommend tattoos,” Merendino said.
The agent added, “We did ask him to take photos” of any tattoos he administered, for use as possible future evidence.
In further testimony today, Merendino said he did not know of Acosta’s participation in the eight Honduran murders until another agent told him about the revelation in February.
He said he was told that Acosta’s unexpected disclosure at a debriefing session was “unsolicited, impromptu.”
Merendino said ICE agents who were considering using Acosta as an informant had tried to check on his criminal background by looking through FBI and police databases and by asking a U.S. attachi in Tegucigalpa, Honduras, to work with police there to investigate his record.
Defense Martin Sabelli, representing Herrera, asked, “If he had told you about the murders, would you have used him as an informant?”
“No,” Merendino answered.
The defense attorneys have asked Alsup to allow them to argue to the jury that the men were illegally entrapped or induced by the informants, acting as government agents, to participate in crimes.
Prosecutors have denied there was any inducement, which they say is legally defined as occurring only when there is repeated solicitation by a government agent and an initial reluctance by a defendant to commit the crime.
“There is absolutely zero record of inducement here,” Assistant U.S. Attorney William Frentzen told Alsup on Tuesday.
In a brief filed on Monday, prosecutors argued, “Every defendant can be shown to be predisposed” to commit the alleged crimes.
“It is undisputed on the record that MS-13 was a violent gang and that the main rule of the gang was the commission of violence against rivals,” the prosecutors wrote.
Alsup heard arguments at the start of the trial session this morning and will hear further arguments Thursday morning on whether to grant the defense request for a jury instruction on an entrapment defense.
Julia Cheever, Bay City News