An MS-13 gang member who became an informant and then was convicted of lying about murders he committed in his native Honduras won an order from a federal judge in San Francisco today for a new trial.
U.S. District Judge Charles Breyer ruled that prosecutors hadn’t proved that Roberto Acosta’s alleged lie was material, or relevant, to actions by his handlers in U.S. Immigration and Customs Enforcement.
The Honduran-born Acosta, whose gang nicknames were “Zorro” and “Little Bad Boy,” became an informant and infiltrated a San Francisco branch of the MS-13, or Mara Salvatrucha, gang between 2005 and 2008.
His reports contributed to the federal indictments of a total of 34 Bay Area MS-13 members and associates in 2008 and 2009 on charges including racketeering conspiracy and murder conspiracy.
Prosecutors had planned to use him as a key witness in a trial of seven members of the group last year.
But federal attorneys abruptly withdrew him as a witness and charged him with lying after he allegedly told them in February 2011 that he had participated in eight previously undisclosed gang-related murders in Honduras in 2003 and 2004, including five he personally committed and three others he arranged.
Prosecutors said in filings that Acosta had until then told them only about three other Honduran slayings, in which he passed on orders for the murders of three bus drivers who failed to make payments to MS-13.
Acosta was accused in an indictment of making a false statement when he denied in a December 2008 meeting with an ICE agent and prosecutors that he had been involved in any murders other than those of the bus drivers.
He was convicted of that charge in July after a two-day jury trial in Breyer’s court.
He faced a possible sentence of up to five years in prison, but the sentencing was put on hold while Breyer considered the request for a new trial. Acosta has been in custody since last February.
In today’s ruling, Breyer wrote that prosecutors hadn’t proved that Acosta’s alleged lie in late 2008 had affected actions or decisions by ICE, since by that time the immigration authorities were no longer using him as an informant.
He said prosecutors also hadn’t produced any witnesses to testify that the alleged lie had caused them to forgo using Acosta as a witness in the 2011 MS-13 trial in the court of another federal judge, U.S. District Judge William Alsup. That five-month trial was under way at the same time as Acosta’s perjury trial in Breyer’s court.
In addition, Breyer said, jury instructions prepared by Acosta’s prosecutors had told jurors to consider only the effect of the alleged lie on ICE agents’ actions and did not instruct jurors to look at the impact on prosecution decisions in the racketeering trial in Alsup’s court.
“A defendant can only be convicted based on a theory on which a jury is instructed,” Breyer wrote.
Dennis Riordan, a lawyer for Acosta, said Acosta is now entitled to a new trial within 60 days, unless prosecutors decide to appeal the ruling.
A spokesman for U.S. Attorney Melinda Haag was not available for comment today.
Of the 34 defendants charged in the MS-13 racketeering case, 31 either pleaded guilty or were convicted in several federal trials, and two were acquitted.
The remaining defendant, former informant Manuel Franco, 26, of San Francisco, is currently on trial on racketeering and murder conspiracy charges before a jury in Alsup’s court.
Separately, alleged MS-13 member Edwin Ramos, 25, of El Sobrante, is now on trial in San Francisco Superior Court on charges of murdering Anthony Bologna and two of his sons in the Excelsior District of the city on June 22, 2008.
Julia Cheever, Bay City News