- The Washington Times - Thursday, June 23, 2005

RICHMOND — A federal appeals court yesterday affirmed the murder convictions of two gang members who killed a man who they suspected was a member of a rival street gang.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously rejected Denis Rivera’s claim that the jury should not have been allowed to consider statements made by Brenda Paz, an informant who was murdered while Rivera was in jail awaiting trial.

The court also found no merit in Noe David Ramirez-Guardado’s argument that he should have been tried separately because evidence against Rivera prejudiced the jury against him.

Rivera and Ramirez-Guardado, members of the MS-13 street gang, were convicted of the September 2001 stabbing death of Joaquim Diaz. They were sentenced to life in prison. A third man, Luis Alberto Cartagena, was acquitted.

Mr. Diaz, 19, was lured into the wooded area of a park on federal land, repeatedly stabbed and nearly beheaded. Miss Paz told investigators that Rivera told her slashing Mr. Diaz’s throat was like “cutting up chicken in preparation to cook it.”

Miss Paz was placed in the federal witness-protection program, but she left the program voluntarily and was murdered. Authorities said Rivera plotted her slaying from his jail cell after learning Miss Paz, his pregnant former girlfriend, planned to testify against him.

Prosecutors subsequently put Rivera and three others on trial for Miss Paz’s murder, but a jury last month acquitted Rivera and another man on all counts. The other two were convicted and sentenced to life in prison.

U.S. District Judge T.S. Ellis III admitted Miss Paz’s statements under an evidentiary rule that prohibits defendants from benefiting if their conduct is responsible for a witness’s being unavailable at trial.

The appellate court ruled that Miss Paz’s statements could be used against Rivera as long as a preponderance of the evidence demonstrated that Rivera was involved in Miss Paz’s death. The court found sufficient evidence to meet that standard, even though a jury later acquitted Rivera in Miss Paz’s death.

The court also rejected Rivera’s claim that his attorneys should have been allowed to question detectives investigating Miss Paz’s murder to test their theory that MS-13 killed her. Authorities said the questioning could jeopardize their ongoing investigation of the gang.

The appeals court acknowledged that a defendant has a right to question favorable witnesses but said Rivera provided no evidence that the detectives’ testimony would help him.

“Rivera has an absolute Sixth Amendment right to have witnesses called in his favor; he does not have a Sixth Amendment right to conduct an exploratory foray based on mere speculation,” Judge Allyson Duncan wrote in the opinion, which was joined by Judges William Wilkins and Robert King.

Rivera also said Miss Paz’s statement that he compared cutting Mr. Diaz’s throat to cutting up a chicken was unduly inflammatory. The appeals court disagreed, saying it was consistent with other evidence about the victim pleading for his life and Rivera cutting Mr. Diaz’s throat after noticing that he still was moving after the initial stabbing.

Ramirez-Guardado said the statements by Miss Paz and evidence that Rivera was planning a violent jailbreak would not have been introduced against him in a separate trial. That evidence against Rivera unfairly prejudiced the jury against him, Ramirez-Guardado said.

However, the appeals court said the acquittal of Mr. Cartagena strongly indicated that the jury was not unduly prejudiced by that evidence.


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