FOURTH CIRCUIT DENIES DOUBLE JEOPARDY CLAIM IN MS 13 CASE

Edgar Ayala and Oscar Velasquez are members of La Mara Salvatrucha (generally known as MS 13). They were convicted of various RICO and VICAR offenses in Maryland involving gang related murders, rapes and robberies. RICO is the Racketeer Influenced and Corrupt Organizations Act AND VICAR is the Violent Crimes in Aid of Racketeering statute.

Ayala was the Second Word, or second in command of the Sailors Locos Salvatruchos Westside section of MS13 and Velasques for the First Word or head of the the Teclas Locos Salvatruchos. Both sections were located in the Baltimore area. MS 13, originally found in Los Angeles is now spread throughout the country and Central America. It is known for its use of violence to maintain group discipline, turf control and opposition to other gangs.

Both defendants were convicted of conspiracy to participate in racketeering activity and a VICAR offense, conspiring to commit murder, Ayala was also charged with the VICAR offense of conspiracy to commit murder. On appeal Ayala claimed it was double jeopardy to charge him with both offenses since they were both based on the same conduct. But the Court found that the RICO offense and the VICAR offfenses are two different offenses and Ayala could be convicted of both even though the same conduct led to both convictions. Using the Blockburger test, the court ruled that since the RICO conspiracy and the VICAR conspiracy have at lease one element that is not held in common with the other, Congress in passing the RICO and VICAR sgtatutes want to punish different things and therefore a person could be convicted of both even though they are based on the same behavior.

The VICAR offense unlike the RICO offense requires an intent to elevate one’s position in the gang. The RICO offense, unlike the VICAR offense, requires proof of a pattern of racketeering activity. Thus while the same murder can be used to prove each offense, the offenses are different and according to the court one can be convicted of both without violating double jeopardy.