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High court calls violence in racketeering an impeachable offense

Gang members convicted of violent crimes can certainly be reminded of their convictions when testifying as witnesses in criminal cases, Maryland’s top court has unanimously held in ruling that a defense attorney was wrongfully denied the opportunity to note a prosecution witness’ violent past during cross-examination.

Generally, counsel can raise witnesses’ past convictions to impeach their credibility only when their crimes involved deception because that could indicate their willingness to lie on the stand, the Court of Appeals said last week. Violent crimes in aid of racketeering, the so-called VICAR offenses, also indicate such willingness, the court added.

“Convictions for VICAR offenses cross the conceptual dividing line between crimes involving the basic level of dishonesty required to commit any crime and those characterized by inherent deceitfulness, furtive conduct, and disregard for societal cohesiveness,” Judge Joseph M. Getty wrote for the high court. “Individuals who choose to involve themselves with an enterprise engaged in racketeering activity and who choose to commit or conspire to commit violent acts with the express purpose of aiding such an enterprise are also likely willing to lie under oath.”

The court rendered its decision in ruling that a Prince George’s County Circuit Court judge should have permitted Wilfredo Rosales’ attorney to question prosecution witness Hector Hernandez-Melendez – Rosales’ victim — about his federal VICAR conviction. The judge denied defense counsel’s request, saying that committing violence in furtherance of racketeering is not a crime involving deceit.

The intermediate Court of Special Appeals upheld Rosales’ conviction, saying the judge had properly denied defense counsel’s request.

Though finding the judge’s denial to have been in error, the high court upheld Rosales’ conviction for having participated in a violent gang, MS-13, and for retaliating in 2012 against a witness, Hernandez-Melendez, who had testified against three MS-13 members in a federal homicide trial three years earlier.

The court also affirmed Rosales’ sentence of 22 years in prison, with 11 years suspended.

According to trial testimony, Rosales and other MS-13 members confronted Hernandez-Melendez in Langley Hampshire Neighborhood Park and threw their former fellow gang member to the ground, where he was stabbed. He survived.

The Court of Appeals concluded the jury would have found Rosales guilty even if it had been alerted to the fact of Hernandez-Melendez’s 2011 conviction for conspiring to commit a violent act while a member of MS-13.

The high court noted that defense counsel had referred to Hernandez-Melendez as a “convicted felon” during opening statements and as a “gangster” throughout the 2013 trial. In addition, Hernandez-Melendez testified that he would “attack other gangs” and that he had been “in jail for about four years” and was currently on probation, as he also was when attacked.

“The rationale in favor of admitting the VICAR convictions … is that criminal activity in aid of racketeering enterprise is probative of credibility,” Getty wrote. “If the jury already knew that Mr. Hernandez-Melendez was involved with an enterprise engaged in racketeering – the MS-13 gang – and that he was incarcerated for this association, knowing the name, date, and sentence imposed would add little value to the jury’s consideration of the witness’ credibility.”

The Maryland Attorney General’s Office said in a statement Tuesday that it was “pleased that the Court of Appeals affirmed Mr. Rosales’s conviction.”

Rosales’ attorney, Assistant Maryland Public Defender Piedad Gomez, did not return a telephone message seeking comment on the decision.

The high court rendered its decision in Wilfredo Rosales v. State of Maryland, No. 6, September Term 2018.

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