Cruz-Quintanilla v. State , 455 Md. 35 ( 2017 )

Oscar Cruz-Quintanilla v. State of Maryland, No. 44, September Term, 2016. Opinion by
Barbera, C.J.
CRIMINAL LAW — SENTENCING DETERMINATION — EVIDENCE — Trial
court did not abuse its discretion by permitting testimony at the sentencing hearing
regarding defendant’s gang membership, where, unlike in Dawson v. Delaware, 503 U.S.
159 (1992), the evidence established that all MS-13 members are aware of, and required to
participate in, the criminal acts of violence of the gang.
Circuit Court for Prince George’s County
Case No. CT131649B
Argued: February 3, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 44
September Term, 2016
OSCAR CRUZ-QUINTANILLA
v.
STATE OF MARYLAND
Barbera, C.J.,
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Barbera, C.J.
Filed: July 31, 2017
We consider in this case whether evidence of a convicted defendant’s membership
in a gang is admissible at sentencing, where the gang membership is unrelated to the
underlying criminal conviction but the evidence establishes that all gang members are
aware of, and required to participate in, the criminal acts of violence of the gang. For the
reasons that follow, we answer that question in the affirmative.
I
The trial, sentencing, and appeal
Petitioner Oscar Cruz-Quintanilla was indicted in the Circuit Court for Prince
George’s County on numerous charges in connection with the robbery of the home of
Adolfo Sical-Rosales and his wife, Rosa Murillo-Aguilar, on July 26, 2013. Following a
jury trial, he was convicted of reckless endangerment; wearing, carrying, or transporting a
handgun; and conspiracy to commit robbery with a dangerous weapon. For purposes of
this opinion, there is no need to summarize all of what occurred at trial. Relevant to this
appeal is what occurred at sentencing.
At sentencing, the State sought to introduce for the first time evidence that Cruz-
Quintanilla was a member of the gang known as MS-13. Over defense counsel’s
objections, the court permitted Sergeant George Norris of the Prince George’s County
Police Department to testify regarding Cruz-Quintanilla’s MS-13 membership.
Sergeant Norris testified that various tattoos on Cruz-Quintanilla’s body, shown in
photographs admitted into evidence, indicate that he is a member of MS-13. According to
police records of the Sergeant’s encounters with MS-13 members and Cruz-Quintanilla
specifically, Cruz-Quintanilla has been a documented MS-13 member since at least 2004.
Sergeant Norris further testified that “[o]ne of the common mottos” for MS-13 is “mata,
m-a-t-a, vola, v-o-l-a, controla, c-o-n-t-r-o-l-a, which is kill, rape, and control.” Any MS-
13 member would “have to know that MS-13 engages in violence because the mere
initiation of MS-13 involves violence. It involves you getting beaten by your own MS-13
member friends.” Sergeant Norris stated that “there are several actions that you have to
take prior to being jumped in [i.e., initiated], which is putting in work for the gang or
committing crimes for the gang to show that you are loyal to the gang and show that they
can trust you, that you’re going to support the gang.” Sergeant Norris added that one cannot
be a member of MS-13 and decline to participate in violence. Any MS-13 member who
declines to participate in the gang’s criminal acts of violence is subject to discipline by
other gang members.
The State argued for the imposition of a total sentence of 26 years. The State based
its recommendation on the evidence of Cruz-Quintanilla’s MS-13 gang membership since
2004, the nature of the crimes of which he was convicted, and his prior record.1 The court,
noting that it had considered “[a]ll of the evidence” in the case, sentenced Cruz-Quintanilla
to terms of three years of imprisonment on the weapon and reckless endangerment
convictions, to be served concurrently. For the conspiracy to commit armed robbery
conviction, the court sentenced Cruz-Quintanilla to 20 years of imprisonment, with all but
1
The State noted that Cruz-Quintanilla’s prior record included a probation before
judgment in 2006, a conviction for burglary in the fourth degree and harassment in 2006,
and a “guilty” for driving without a commercial driver’s license in 2011.
2
nine years suspended, to run consecutive to the two other sentences. Upon Cruz-
Quintanilla’s release, he must serve a period of probation of five years.2
On appeal, Cruz-Quintanilla asserted, among other arguments, that the circuit court
erred in admitting evidence of his gang membership at sentencing. The Court of Special
Appeals affirmed the judgment of the circuit court. Cruz-Quintanilla v. State, 228 Md.
App. 64, 71-72 (2016). Emphasizing “‘that a sentencing court is vested with virtually
boundless discretion’ in imposing a sentence,” the intermediate appellate court concluded
that “it was properly within the discretion of the sentencing court to consider evidence
regarding the nature and activities of MS-13 as it pertained to the court’s consideration of
[Cruz-Quintanilla’s] character.” Id. at 68, 70 (citation omitted). The Court of Special
Appeals recognized that, although in some instances admission of evidence regarding
beliefs or memberships protected by the First Amendment is prohibited during sentencing,
“that evidence may be admissible in appropriate cases in which evidence of criminal or
violent conduct of the gang is introduced.” Id. at 69 (citing Dawson v. Delaware, 503 U.S.
159, 165-66 (1992)). Because Sergeant Norris’s testimony established that Cruz-
Quintanilla endorsed not only the beliefs of MS-13, but also its criminal activities, that
evidence was properly admitted. Id.We granted Cruz-Quintanilla’s petition for writ of certiorari to answer “[w]hether
trial courts may admit gang membership evidence in a sentencing hearing when the gang
2
The court included among the probation conditions that Cruz-Quintanilla “not be
involved in any gang activity or be a member of any gang.” He does not contest that
condition on appeal.
3
membership is unrelated to the convictions and the defendant is not connected to any
criminal offenses on behalf of the gang.” Cruz-Quintanilla v. State, 450 Md. 101 (2016).
As noted at the outset of this opinion, the answer to that question is “yes.”
II
Discussion
A trial judge’s discretion during sentencing proceedings
This Court has long adhered to the general principle that the “sentencing judge is
vested with virtually boundless discretion” in devising an appropriate sentence. Smith v.
State, 308 Md. 162, 166 (1986) (citation omitted); see also Abdul-Maleek v. State, 426 Md.
59, 71 (2012); Jones v. State, 414 Md. 686, 693 (2010); Jennings v. State, 339 Md. 675,
683 (1995). The sentencing judge is afforded such discretion “to best accomplish the
objectives of sentencing—punishment, deterrence and rehabilitation.” Smith, 308 Md. at
166. To achieve those objectives, the sentencing judge is not constrained simply to “the
narrow issue of guilt.” Id. at 167 (citation omitted). Rather, “[h]ighly relevant—if not
essential—to [the judge’s] selection of an appropriate sentence is the possession of the
fullest information possible concerning the defendant’s life and characteristics.” Id.(citation omitted). So it is that, in exercising that discretion, the sentencing judge may take
into account the defendant’s “reputation, prior offenses, health, habits, mental and moral
propensities, and social background.” Jackson v. State, 364 Md. 192, 199 (2001) (citation
omitted). “The consideration of a wide variety of information about a specific defendant
permits the sentencing judge to individualize the sentence to fit ‘the offender and not
merely the crime.’” Smith, 308 Md. at 167 (quoting Williams v. New York, 337 U.S. 241,
4
247 (1949)). Given the broad discretion accorded the sentencing judge, “generally, this
Court reviews for abuse of discretion a trial court’s decision as to a defendant’s sentence.”
Sharp v. State, 446 Md. 669, 685 (2016).
The sentencing judge’s discretion, although broad, is not without its limits. A given
sentence is subject to review on any of three potential grounds: “(1) whether the sentence
constitutes cruel and unusual punishment or violates other constitutional requirements; (2)
whether the sentencing judge was motivated by ill-will, prejudice or other impermissible
considerations; and (3) whether the sentence is within statutory limits.” Jackson, 364 Md.
at 200 (internal emphasis omitted) (quoting Gary v. State, 341 Md. 513, 516 (1996)). Cruz-
Quintanilla’s challenge to his sentence is based on the first of these grounds, as he argues
that the sentence violates the First Amendment to the United States Constitution because
it is based in part on the gang-related evidence.
Sentencing and the Constitution
The First Amendment to the Constitution, applicable to the states through the
Fourteenth Amendment, Schneider v. State, 308 U.S. 147, 160 (1939), provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.”
Freedom of association is implicitly guaranteed by the First Amendment. Roberts v. U.S.
Jaycees, 468 U.S. 609, 618 (1984). The Supreme Court explained:
Our decisions have referred to constitutionally protected “freedom of
association” in two distinct senses. In one line of decisions, the Court has
concluded that choices to enter into and maintain certain intimate human
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relationships must be secured against undue intrusion by the State because
of the role of such relationships in safeguarding the individual freedom that
is central to our constitutional scheme. In this respect, freedom of association
receives protection as a fundamental element of personal liberty. In another
set of decisions, the Court has recognized a right to associate for the purpose
of engaging in those activities protected by the First Amendment—speech,
assembly, petition for the redress of grievances, and the exercise of religion.
The Constitution guarantees freedom of association of this kind as an
indispensable means of preserving other individual liberties.
Id. at 617-18.
“[T]he nature and degree of constitutional protection afforded freedom of
association may vary depending on the extent to which one or the other aspect of the
constitutionally protected liberty is at stake in a given case.” Id. at 618. Indeed, despite
First Amendment protection afforded to beliefs, memberships, and other affiliations, such
protection is by no means absolute. For instance, “freedom of association may be restricted
if reasonably necessary to accomplish the essential needs of the state and public order.”
Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974).
Pertinent to our discussion here, the Supreme Court has addressed the bounds of
First Amendment protections at the sentencing phase of a criminal prosecution. In Barclay
v. Florida, 463 U.S. 939, 949 (1983) (plurality opinion), the plurality concluded that the
“United States Constitution does not prohibit a trial judge from taking into account the
elements of racial hatred in this murder” during sentencing, where the defendant’s “desire
to start a race war [was] relevant to several statutory aggravating factors.” See also
Wisconsin v. Mitchell, 508 U.S. 476, 479 (1993) (considering the constitutionality of a state
statute enhancing the maximum penalty for an offense if the defendant intentionally selects
a victim based on the victim’s race).
6
The Supreme Court also addressed First Amendment sentencing implications in
Dawson, 503 U.S. at 159, a decision that plays a central role in both parties’ arguments in
the present case. The sentencing evidence at issue in Dawson, much like the evidence in
this case, addressed the defendant’s membership in an organized gang. Also like the
evidence offered at sentencing in the present case, the gang-related evidence offered by the
prosecution at sentencing did not relate to the crime of which Dawson was convicted. But,
as we shall see, the similarities in Dawson and the case before us essentially end there.
Dawson and its progeny
Dawson was charged and convicted of first degree murder and related crimes
committed during his escape from prison, and the State sought the death penalty. Id. at
160-61. Before the sentencing proceeding, the parties agreed to a stipulation pertaining to
Dawson’s membership in the Aryan Brotherhood. The stipulation was limited to the
following:
The Aryan Brotherhood refers to a white racist prison gang that began in the
1960’s in California in response to other gangs of racial minorities. Separate
gangs calling themselves the Aryan Brotherhood now exist in many state
prisons including Delaware.
Id. at 162. The stipulation was read to the jury together with evidence of Dawson’s tattoo
of the words “Aryan Brotherhood” on his hand and evidence that Dawson used the name
“Abaddon,” and had a tattoo of the name “Abaddon” on his stomach. Id. at 161-62.
Abaddon means “one of Satan’s disciples.” Id. at 161. Although Dawson agreed to the
admission of the stipulation into evidence, he continued to assert that the admission
violated the First and Fourteenth Amendments to the Constitution. Id. at 162. The jury
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elected to have Dawson sentenced to death. Id. at 163. The Supreme Court of Delaware
affirmed the convictions and the death sentence. That court held that the evidence related
to the Aryan Brotherhood did not violate Dawson’s constitutional rights because the
stipulation pertained to Dawson’s character, and not his race, religion, or political
affiliation. Id.The United States Supreme Court granted certiorari and reversed the judgment of
the state supreme court. Id. Dawson argued before the Supreme Court that the Constitution
prohibits during sentencing the admission of evidence concerning any beliefs or activities
protected under the First Amendment. Id. at 164. The Court noted at the outset of its
discussion that “the Constitution does not erect a per se barrier to the admission of evidence
concerning one’s beliefs and associations at sentencing simply because those beliefs and
associations are protected by the First Amendment.” Id. at 165. This pronouncement was
consistent with the Court’s decision, eight years earlier, in United States v. Abel, 469 U.S.
45 (1984). The Dawson Court noted in its holding in Abel that the Government could
impeach a witness for the defense with evidence that the witness and the defendant were
members of the Aryan Brotherhood and that the members were required to lie on behalf of
one another. Dawson, 503 U.S. at 164. The Court added: “Though Abel did not involve
a . . . sentencing proceeding, its logic is perfectly applicable to such a proceeding.”
Dawson, 503 U.S. at 165.
The Supreme Court ultimately determined that the stipulation should not have been
admitted in Dawson’s case because “the prosecution did not prove that the Aryan
Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts,”
8
and therefore the “narrowness of the stipulation left the Aryan Brotherhood evidence
totally without relevance to Dawson’s sentencing proceeding.” Id. at 165-66. Instead, the
stipulation focused solely on Dawson’s abstract beliefs. Id. Important to the present case,
the Dawson Court observed:
Before the penalty hearing, the prosecution claimed that its expert witness
would show that the Aryan Brotherhood is a white racist prison gang that is
associated with drugs and violent escape attempts at prisons, and that
advocates the murder of fellow inmates. If credible and otherwise admissible
evidence to that effect had been presented, we would have a much different
case.
Id. at 165 (emphasis added). “Because Delaware failed to do more” than offer the bare
stipulation that Dawson was a member of the Aryan Brotherhood, the Court concluded that
the stipulation, standing alone, was not properly admitted as relevant character evidence.
Id. at 167. However, the Dawson Court did not limit its opinion to that holding.
Particularly instructive here, the Supreme Court also offered guidance for future
cases, where more than the bare stipulation offered in Dawson’s case is presented:
In many cases, for example, associational evidence might serve a legitimate
purpose in showing that a defendant represents a future danger to society. A
defendant’s membership in an organization that endorses the killing of any
identifiable group, for example, might be relevant to a jury’s inquiry into
whether the defendant will be dangerous in the future.
Id. at 166 (emphasis added). The thrust of the Court’s commentary in Dawson is clear—
evidence of a defendant’s membership or association in an organized gang is relevant and
admissible during sentencing if the State establishes that the gang’s purposes and objectives
are criminal in nature.
9
Were there any doubt as to the scope of the holding in Dawson, the cases decided
since that opinion reaffirm that a sentencing court may consider a defendant’s gang
membership as relevant to the imposition of a proper sentence, so long as the evidence
presented goes beyond the abstract beliefs of the gang. United States v. Hernandez-
Villanueva, 473 F.3d 118 (4th Cir. 2007), provides one example.
The defendant, Hernandez-Villanueva, was convicted of unauthorized reentry into
the United States. Id. at 123. During sentencing, the prosecution requested a sentence
higher than that called for in the Sentencing Guidelines, citing Hernandez-Villanueva’s
MS-13 membership. Id. at 120. Sergeant Norris (the expert who testified in the case at
bar) testified that, based on several factors, Hernandez-Villanueva remained a member of
the gang as of the time of sentencing. Id. Sergeant Norris also testified about the history
and practices of MS-13. He explained in part that:
Some of the money paid in dues is remitted to MS-13; other money is used
by the local gang for a variety of legal and illegal activities. In a nutshell,
like most other street gangs, the basic purpose of MS-13 and each of its local
gangs is “to control the streets, to be the number one gang.” This purpose is
achieved “through intimidation, fear, and violence.”
Id.The trial judge sentenced Hernandez-Villanueva to eighteen months imprisonment,
exceeding the sentencing guidelines’ recommended sentence of zero to six months. Id.The United States Court of Appeals for the Fourth Circuit upheld the sentence, concluding
that the evidence regarding the MS-13 membership called for a higher sentence than in the
guidelines, due in part to the violent nature of the gang. Id. at 123. The Fourth Circuit
distinguished Sergeant Norris’s testimony from the stipulation in Dawson and
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“conclude[d] that all of th[o]se considerations support[ed] the decision of the court to
impose a sentence above the advisory sentencing range and that any associational rights
enjoyed by Villanueva were not violated.” Hernandez-Villanueva, 473 F.3d at 123.
Other post-Dawson cases are to like effect. See, e.g., Mitchell, 508 U.S. at 485-86,
490 (holding that a Wisconsin statute authorizing an enhanced sentence when a defendant
intentionally selects a victim based on the victim’s race does not violate free speech rights
by purporting to punish the defendant’s biased beliefs); Schneider v. McDaniel, 674 F.3d
1144, 1150 (9th Cir. 2012) (concluding that evidence of a defendant’s membership in the
Aryan Brotherhood was properly admitted during sentencing and stating that, “[i]n
Dawson, the Supreme Court expressly recognized that the case would be different if the
evidence proved something more than Dawson’s abstract beliefs”); Kapadia v. Tally, 229
F.3d 641, 648 (7th Cir. 2000) (“Nothing in the Constitution prevents the sentencing court
from factoring a defendant’s statements [regarding his beliefs] into sentencing when those
statements are relevant to the crime or to legitimate sentencing considerations.”) (emphasis
added); People v. Coleman, 633 N.E.2d 654, 673 (Ill. 1994) (“[U]nlike in Dawson, the
evidence of defendant’s gang affiliation was properly admitted here to show his behavior,
violations, and discipline in prison. The information was not admitted for the sole purpose
of showing defendant’s abstract beliefs.”); State v. Cooks, 720 So.2d 637, 650 (La. 1998)
(“[T]he prosecution in the instant case escaped the trap illustrated in Dawson by
introducing strong evidence to establish a relevant link between the defendant’s character,
his sentencing, and evidence of his gang involvement.” (internal emphasis omitted)).
III
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The present case
Cruz-Quintanilla contends, as he did before the Court of Special Appeals, that the
First Amendment prohibits the circuit court from fashioning a sentence that at least in part
was based on evidence of his membership in MS-13. Relying in large part upon Dawson,
he argues that mere membership in a criminal gang is insufficient; there must be evidence
of the defendant’s personal connection to the criminal gang activity.
The State counters that “Dawson expressly sanctions the evidence presented in this
case.” The State emphasizes that the admissibility at sentencing of a defendant’s gang
membership does not turn on whether the government presents direct evidence of the
defendant’s past, present, or future commission of criminal acts on behalf of the gang.
Rather, the State asserts, the proper inquiry is whether the evidence presented establishes
the criminal nature of the gang.
The parties do not dispute that Cruz-Quintanilla’s membership in MS-13 is subject
to First Amendment protection. But, such protection is not absolute and does not render
inadmissible any and all evidence relating to the gang. See Dawson, 503 U.S. at 165. As
we shall explain, unlike the stipulation in Dawson, the evidence presented in this case
provided sufficient and pertinent detail to render the evidence admissible during the
sentencing hearing.
Cruz-Quintanilla leads with the contention that, because there is no direct evidence
that he has performed or will perform criminal acts on behalf of the gang, his membership
is not relevant to his character or his potential to be a future danger. We disagree. The
evidence offered by the State at sentencing establishes that all MS-13 members must
12
commit a crime as part of “jumping-in”; they must engage in violent and criminal acts
thereafter; and, if they do not, they are subject to punishment. The Dawson Court made
clear that such evidence is admissible, even without direct evidence that the defendant
engaged in such activity. See Dawson, 503 U.S. at 166 (observing that evidence of the
Aryan Brotherhood’s commission of any unlawful or violent acts, or even endorsement of
such acts—as opposed to evidence of Dawson’s individual criminal acts on behalf of the
gang—would have been sufficient to be admitted during sentencing).
In furtherance of his argument that the evidence presented at sentencing did not
demonstrate his personal connection to gang-related criminal activity, Cruz-Quintanilla
asks us to adopt the three-part test from the United States Court of Appeals for the District
of Columbia Circuit in United States v. Lemon, 723 F.2d 922 (D.C. Cir. 1983). That test,
Cruz-Quintanilla asserts, requires that the evidence establish (1) the defendant’s gang
membership; (2) that the gang has illegal goals; and (3) a direct link between the defendant
and the gang’s illegal activity. See id. at 941-42. We reject the argument, for two reasons.
First, Lemon preceded by almost nine years the Supreme Court’s decision in
Dawson, and the Dawson Court did not discuss Lemon or even impliedly endorse the D.C.
Circuit’s analysis of the First Amendment issue presented there. Second, Lemon is far
different from the case at bar. Lemon involved a defendant who, according to the
prosecution, was a member of the Black Hebrews—a religious organization with alleged
criminal goals. See id. at 925, 940. The D.C. Circuit assumed, for purposes of its analysis,
Lemon’s assertion that the group engaged in “legitimate” religious activities. Id. at 936-
38. Based on the assumption that the Black Hebrews “embraces both illegal and legal
13
aims,” the federal appeals court determined that “there must be sufficiently reliable
evidence of the defendant’s connection to illegal activity within the Black Hebrews to
insure that he is not being given a harsher sentence for mere association with the group and
its legitimate aims and activities.” Id. at 939-40 (emphasis added).
Unlike in Lemon and fully in keeping with the principles set forth by the Supreme
Court in Dawson, the only evidence offered at Cruz-Quintanilla’s sentencing hearing
established that MS-13’s objectives, well known to its members, are to “kill, rape, and
control”; to become a member, one must commit a crime; and all members of the gang
know that they are expected to “participate in violence” or be subject to discipline by other
gang members. Because MS-13 has not been shown to be a religious or political
organization with both illegal and legal aims, the evidence of the criminal nature of the
gang alone was sufficient for sentencing purposes. Cruz-Quintanilla is not being punished
for mere association with a group and its legitimate aims and activities.
In short, unlike in Dawson, the testimony in the present case went beyond any
abstract beliefs and established that all MS-13 gang members engage in “unlawful or
violent acts, or . . . endorse[] such acts.” See Dawson, 503 U.S. at 166. We therefore agree
with the Court of Special Appeals that, “the evidence regarding MS-13 was not limited to
the constitutionally protected beliefs of the gang” and “[i]t would be reasonable to infer
from the evidence that as a documented member of MS-13, [Cruz-Quintanilla] endorses
not just MS-13’s beliefs, but also its criminal activities.” Cruz-Quintanilla, 228 Md. App.
at 69. The sentencing court did not err or abuse its discretion in admitting that evidence
and considering it in fashioning an appropriate sentence.
14
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED;
COSTS TO BE PAID BY
PETITIONER.
15