No. 24-4325

Page 2No. 24-4358

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:21-cr-000260-LMB-5; 1:21-cr000260-LMB-2; 1:21-cr-000260-LMB-6)

Argued: March 20, 2026 Decided: September 3, 2026

Before RICHARDSON, QUATTLEBAUM, and BERNER, Circuit Judges.

Nos. 24-4308 and 24-4325 affirmed and No. 24-4358 vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion in which Judge Richardson and Judge Berner joined.

Nos. 24-4308/4325. ARGUED: Bernadette Mary Donovan, DONOVAN & ENGLE, PLLC, Charlottesville, Virginia, for Appellants. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Lawrence Hunter Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK, TALBERT & WOODWARD, P.C., Virginia Beach, Virginia, for Appellant Marvin Menjivar Gutierrez. Matthew K. Hoff, Violent Crime & Racketeering Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Erik S. Siebert, United StatesPage 3 Attorney, Alexandria, Virginia, John C. Blanchard, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

No. 24-4358. ARGUED: Gregory M. Lipper, LIPPER LAW PLLC, Washington, D.C., for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Elizabeth L. Van Pelt, LIBBEY VAN PELT LAW, PLLC, Arlington, Virginia, for Appellant. Matthew K. Hoff, Violent Crime & Racketeering Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jessica D. Aber, United States Attorney, Vetan Kapoor, Assistant United States Attorney, Alexandria, Virginia, John C. Blanchard, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Page 4QUATTLEBAUM, Circuit Judge:

These appeals arise from a joint trial of three MS-13 members charged with racketeering, murder, witness tampering and drug offenses. After counsels' closing arguments, the district court instructed the jury to completely disregard one defendant’s entire closing after finding portions of it improper. That instruction cured any prejudice the two codefendants may have experienced if the argument was indeed improper because it expressly removed the challenged argument from their cases. But the same instruction was a prejudicial abuse of discretion for the defendant whose entire summation was stricken. So, we vacate the convictions of that defendant. But, because we find no reversible error on the issues the other defendants raise, we affirm their convictions.

To set up the issues on appeal, we start with an overview of the events giving rise to this case and its procedural history, focusing on the trial testimony of a key government witness. As we move into our discussion of the parties' arguments, we will include additional factual information specific to those issues.

Woodbridge, Virginia experienced a spree of violent crime in the summer of 2019. Milton Beltran Lopez and Jairo Geremeas Mayorga were murdered in June, Eric Tate was murdered in August and Antonio Smith was murdered in September. Following extensive investigations into these murders and other criminal activities, state and federal authorities zeroed in on several individuals who were either members of or had close ties to the Sitios Locos Salvatrucha (STLS) clique of MS-13.

Page 5In January 2022, a federal grand jury in the Eastern District of Virginia returned a superseding indictment against 12 defendants: Marvin Menjivar Gutiérrez, Melvin Canales Saldana, Mario Antonio Guevara Rivera, Cristian Ariel Arevalo Arias, Carlos Jose Turcios Villatoro, Abner Jose Molina Rodriguez, Manilester Andrade Rivas, Jairo Gustavo Aguilera Sagastizado, Walter Jeovanny Rubio Lemus, Juan Carlos Hernández Landaverde, Karen Estefany Figueroa Alfaro and Juan Manuel Vasquez Reyes.¹ As the government's investigation continued, several of these defendants-including Guevara, Molina and Vasquez—pled guilty and agreed to cooperate with law enforcement.

On June 15, 2023, the grand jury returned a second superseding indictment against eight defendants. The second superseding indictment charged Menjivar, Arevalo and Turcios in two overarching conspiracies: racketeering (Count One)—which the indictment charged under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962—and cocaine distribution (Count Two). It also charged all three of these defendants with various charges related to the murders. The indictment charged most of these offenses as violent crimes in aid of racketeering activity (VICAR). See 18 U.S.C. § 1959. It charged the three defendants with three counts related to the murder of Beltran: VICAR conspiracymurder (Count Three), VICAR murder (Count Four) and use of a firearm during a crime of violence causing death (Count Five). It charged Arevalo and Turcios with three counts Page 6related to the murder of Geremeas: VICAR murder (Count Six), use of a firearm during a crime of violence causing death (Count Seven) and witness tampering by killing (Count Eight). And in connection with Tate's murder, it charged Arevalo with three counts: VICAR conspiracy-murder (Count Nine), VICAR murder (Count Ten) and use of a firearm during a crime of violence causing death (Count Eleven). And, finally, the grand jury also charged Arevalo with one count of distributing cocaine (Count Seventeen).²

Six of the eight individuals went to trial.³ However, during a pre-trial conference on December 20, 2023, the district court determined that trying all six defendants at the same time would be difficult due to the complexity of the case. As a result, the district court severed the cases for trial, electing to hold two trials with three defendants at a time. The first trial began on January 8, 2024, and concerned the charges against Canales, Andrade and Aguilera.⁴ The second trial began on January 22, 2024, and concerned the charges against Menjivar, Arevalo and Turcios—the three defendants at issue in this appeal.

The second trial lasted two full weeks. The government called over a dozen witnesses. And Menjivar, Arevalo and Turcios called six witnesses. Among the government's witnesses was Guevara, who pled guilty and agreed to cooperate. The government relied heavily on his recitation of the four murders. Because this testimony provides the factual context for all the issues presented by this appeal, we describe it at the outset.

Guevara testified on the structure and membership of STLS. At the time of the events in this case, Menjivar was the First Word of STLS and Canales was the Second Word. The First Word and the Second Word are positions for first and second in command.⁵ Guevara also stated that he, Molina, Turcios, Arevalo and Andrade were all Observacións. An Observación is a junior member of MS-13 who is usually overseen by more experienced gang members. MS-13 members are typically required to perform acts of violence to be promoted within the gang. Lower ranked members aspire to become Homeboys—meaning full-fledged members—which almost always requires committing one or more homicides.

Page 8Guevara explained that at some point during an STLS meeting, Menjivar and Canales admonished the other STLS members to start killing rival gang members to move up the ranks. The two leaders gave the others three months to find someone to kill. After that, Arevalo was drinking at a hotel when he heard Beltran claiming to be a Sureño, a member of a rival gang. So, Guevara, Arevalo and Turcios got permission from Menjivar to kill Beltran and began searching for Beltran in places where they knew he hung out, such as a grocery store called La Americana and a wooded area close to his house.

On the evening of June 21, 2019, Guevara, Arevalo and Turcios stopped for gas at a station across the street from La Americana. As Arevalo walked into the station to buy cigarettes and other items, he heard a voice coming from behind one of the gas station’s trash cans that sounded like Beltran’s. But there were too many people around for them to kill Beltran there. So, they decided to lure Beltran into the woods behind the market by telling Beltran that they would give him drugs.

Arevalo dropped off Guevara and Turcios, who were armed with a 9mm Glock and blades, in the wooded area and then returned to pick up Beltran. While Guevara and Turcios were waiting in the woods, Arevalo texted them to say he had picked up Beltran but that someone-who we now know was Geremeas-was with him. They decided to kill Geremeas too because “if that person was hanging out with a rival, he probably was a rival”Page 9 and because “if [they] were going to kill [Beltran], [they] could not leave the other person alive because he would have already seen [them].” J.A. 958–59.⁶

When Arevalo returned with Beltran and Geremeas, Turcios shot Beltran multiple times. Geremeas tried to run away, but Turcios shot him too. Guevara then shot Beltran several times. As he did so, Geremeas started to run away again, so Guevara shot Geremeas as well. Arevalo then stabbed and shot Beltran. Guevara, Arevalo and Turcios all received credit for two murders for purposes of advancing their rank in STLS.

In August 2019, Canales instructed Guevara to give Arevalo or Andrede a gun for them to use in a murder they were planning. Guevara did as he was told.

Later, Arevalo told Guevara that he, Andrade, Molina and Wilmer Candelario Cabrera Rivera—one of the other defendants who was charged in the second superseding indictment—had been to some apartments behind the La Americana to look for a rival to kill. While they were there, they saw “a dark-skinned person” who “looked suspicious.” J.A. 1014. We now know that this person was Tate. Tate stopped at the entrance of La Americana and then turned around. Arevalo and Andrade followed him, walking around some cars so that Tate would not see them.

Arevalo shot Tate in the back and handed the gun to Andrade. When Andrade froze, Arevalo instructed him, 'dog, shoot.' J.A. 1015. So, Andrade started shooting Tate.

Page 10Andrade then tried to run away, but Tate, still alive, took out his own gun and fired. Andrade shot Tate again. By this point, Molina returned and also shot Tate. While it is unclear whether Arevalo received any credit, Andrade, Cabrera and Molina were all promoted after Tate’s murder.

In September 2019, Guevara testified that he, Aguilera and Molina were driving around looking for someone to kill. They found several potential victims but did not kill them because they were worried they would be seen. Eventually, they parked their car and found Smith walking toward them.

Guevara then turned to Aguilera and stated, “we’re going to kill this one.” J.A. 1025. Aguilera agreed. Guevara started shooting Smith in the back. Smith fell and turned over, so Guevara shot him in the chest. Smith cried out, “oh my God, no, amigo, stop.” J.A. 1025. But Guevara continued shooting. Aguilera then asked for the gun, Guevara handed it to him and Aguilera began shooting. Guevara, Aguilera and Molina were eligible for promotions for murdering Smith.⁷

Following the presentation of all the evidence, the jury found both Turcios and Menjivar guilty on each count with which they were changed. And it found Arevalo guilty Page 11on his counts except VICAR conspiracy-murder of Tate, VICAR murder of Tate and using a firearm during the VICAR murder of Tate.⁸

Menjivar, Arevalo and Turcios now appeal their convictions, asserting a host of challenges to various rulings the district court made throughout the proceedings.⁹

All three defendants challenge the district court’s decisions about Turcios’ closing argument, so we begin by considering the district court’s handling of that issue and will proceed to the other issues raised by defendants after that. For each issue, we start by providing some additional background on the district court’s challenged rulings.

Turcios’ convictions turned substantially on his involvement in the double murder of Beltran and Geremeas on June 21, 2019. And his defense primarily revolved around an alibi and an alternative theory of the double murder. His first witness was Monse Ambriz. Ambriz testified that she knew Turcios through Turcios’ cousin. According to Ambriz, Turcios had been living with his aunt, but after she kicked him out he started living in a Page 12tent behind a trailer park. Ambriz testified that, on the evening of June 21, 2019, Turcios texted her to ask for some food. So, she waited until her parents went to sleep, made Turcios some eggs and met him at his tent at around 11 p.m. She stayed with Turcios in his tent for approximately one hour.

After Ambriz, Turcios called Thomas Buckley and Philip Becnel, two private investigators. Buckley testified that he and Becnel went to both the gas station and the La Americana grocery store, where Arevalo had said he heard Beltran. Buckley went inside the gas station while Becnel spoke in a normal voice standing next to the dumpsters. Buckley stated that he could not hear Becnel at all.

After all parties rested, Turcios was the final defendant to give a closing argument. His counsel began by honoring the victims and then explained why Turcios did not take the stand. She said Turcios had a grade-school education in El Salvador and did not speak English. She asked, “How can he ever compete with these prosecutors who are skilled in cross-examination and highly educated?” J.A. 2063. So, she explained that Turcios had decided “that it’s best to let [counsel] speak for [Turcios] as best as [she] can to tell his story.” J.A. 2064.

Counsel then suggested that two of the government’s cooperating witnesses were telling the truth when they testified about the other defendants' involvement in STLS' crimes. As for one of these witnesses, counsel stated, “[h]er tears on cross examination, that was real pain to me. . . . I suggest to you that she probably was telling the truth, and she probably got it right.” J.A. 2064–65. As for the other cooperating witness, counsel said,Page 13 '[h]e had real regret to me.' J.A. 2065. But counsel contrasted those witnesses with Guevara:

[Guevara] is a different story. The shifty eyes. The no emotion. That’s what a sociopath looks like. I hope you never meet someone like him again in your life. All of the guns, all of the lying, the brutality . . . . I told you in opening statement that if you ran into [Guevara] on the street, you wouldn’t trust him what it is time -- to tell you what time it is. I stand by that. And you might run into him in the street, because if the government files their motion and Judge Brinkema grants it, he may get out of jail and stay in this country.

J.A. 2065–66.

Counsel then offered the following theory of how the murders took place:

Here’s what I suggest happened. [Guevara] was driving around that night with someone else, maybe [Molina]. There’s a lot of evidence of that. It’s a Friday night, they’re out at the clubs, they’re selling cocaine, they’re doing cocaine, something [Turcios] wasn’t involved with; right? They stop at the Seven Mart, not at the Exxon, at the Seven Mart. My printer is dying, so this is a horrible photo. This is not the one in evidence, you can look at the one in evidence. And I can’t talk while I’m back there, but I’m going to go back there, and I’m going to point out the dumpster.

I suggest to you that they're driving around out randomly. If they really wanted to get [Beltran] this night, [Guevara] said he knew where his house was, he would have been waiting outside his house. No. They went there, they heard [Beltran’s] voice, they saw [Beltran’s] voice -- or they saw [Beltran], and [Guevara] and whoever was with him lured him with drugs into the woods, shot and killed him and stabbed [Geremeas]. You heard from Monse Ambriz, someone who, out of the goodness of her heart, came here to testify. [Turcios] can’t do anything for her. He’s been in jail. He’ll get deport- -- he can't do anything for her. She came in, and she told you that she hiked up the hill behind the trailer park, and she was with him from 11 p.m. to 12 a.m. that night. I suggest to you that perhaps [Turcios] then walked to the Exxon -- that’s why the Exxon is in the story -- and they picked him up after.

J.A. 2068–69. At one point, the government rose to object. But the district court instructed, 'Don't object.' J.A. 2074. Eventually, Turcios' counsel concluded-'I'm so worried IPage 14 forgot something. [Turcios] has been in my mind for two and a half years, and this is the hardest part of the case, because this is when I hand him over to you. . . . [P]lease take care of him.” J.A. 2077.

After the closing arguments, Arevalo's counsel complained to the court that Turcios’ counsel’s comments about why Turcios did not testify indirectly and inappropriately suggested Arevalo had no reason not to testify. Arevalo’s counsel then argued for a severance because Turcios’ counsel had improperly argued, for the first time, that the other defendants committed the murders without Turcios when, up until that point, they had jointly defended the case. Ultimately, Arevalo moved for a mistrial and to have his case severed from Turcios. And Menjivar’s counsel reiterated that it may have been improper for Turcios' counsel to comment on the credibility of the government's cooperating witnesses.

The district court seemingly had similar concerns. It noted 'counsel are not supposed to vouch for witnesses” and agreed Turcios’ “closing argument went way beyond the bounds of appropriate conduct.” J.A. 2095. But the district court denied the motion to sever and motion for a mistrial and proposed a jury instruction:

During the closing argument for [Turcios], [his counsel] made improper and inappropriate statements regarding the credibility of the witness in this case. Her closing argument improperly relied on her personal perception of the witnesses’ credibility -- which is called vouching, and is not permitted -- and her argument did not focus solely on the evidence presented during the trial. I am, therefore, instructing you to completely disregard the entire closing argument offered by [Turcios’ counsel] on behalf of [Turcios]. You may not use any of the information or arguments she offered as you deliberate in this case; however, nothing in this instruction

Page 15changes the requirement that you cannot find [Turcios] guilty of any offense unless the government has proven his guilt for that offense beyond a reasonable doubt.

J.A. 2100.

Turcios objected to the proposed instruction and asked whether the district court could instruct the jury to disregard only the offending remarks rather than the entire closing argument. The district court declined this request:

Quite frankly, I thought it was way too emotional for federal court as well. It was an inappropriate closing argument almost from the beginning. But, nevertheless, once or twice, poor [government’s counsel] stood up to object, and I gave him the hand signal to sit down.

But you were talking about things that were simply not in the record, your description about how the indictment came forward, you were sort of saying it was all because of [Guevara], and the government did properly address that in the rebuttal argument, but that was not a proper closing argument. So I’m not changing my approach to the instruction.

J.A. 2102. The district court later gave the proposed jury instruction.

After all three defendants were convicted, Arevalo and Menjivar moved for a new trial based on Turcios’ improper closing argument and the prejudicial effects they alleged stemmed from that argument. The district court reiterated its finding that Turcios’ closing argument “was improper, for among other things, improperly vouching for a witness and alluding to facts not in evidence.” J.A. 2503. However, the district court denied Arevalo and Menjivar’s motion for a new trial. The court explained that its jury instruction was sufficient to cure any prejudicial effect Menjivar or Arevalo may have faced, and the court added that “[t]he overwhelming evidence introduced at trial—coupled with the Page 16comprehensiveness of the Court’s instructions to the jury—support the verdicts returned by the jury and the interests of justice do not require a new trial.” J.A. 2504.

2. Discussion

Arevalo and Menjivar agree with the district court's assessment that Turcios' closing argument was improper. But they contend that the district court's curative instruction was insufficient to remedy their prejudice, so the district court should have granted a mistrial. In contrast, Turcios contends his closing argument was proper. But he argues that even if parts were improper, the district court erred by instructing the jury to completely disregard his argument because that instruction effectively denied him the opportunity to make a closing argument at all—which he contends violated his rights under the Fifth and Sixth Amendments.

We begin with our standard of review. District courts enjoy broad discretion in limiting or controlling closing arguments to ensure those arguments do not “stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial.” Herring v. New York , 422 U.S. 853, 862 (1975). And for this reason, we normally review a district court’s limitations on closing arguments for abuse of discretion. See, e.g. , United States v. Wiley , 93 F.4th 619, 631 (4th Cir. 2024). But the right of a criminal defendant to make a closing argument is protected by the Sixth Amendment. See Herring , 422 U.S. at 856-63. Thus, a district court may abuse its discretion when it effectively denies a criminal defendant the opportunity to make a closing argument. See id. ; see also United States v.

Page 17King , 650 F.2d 534, 537 (4th Cir. 1981) ('Of course, the trial court retains the broad discretion to limit the scope and duration of all phases of a trial, including closing argument; however, this discretion must be exercised with proper regard for the defendant's constitutional rights.').¹⁰ Similarly, we review for abuse of discretion the district court’s denial of a motion for a mistrial, its denial of a motion for severance and its decision regarding curative instructions. See Westmoreland v. TWC Admin. LLC , 924 F.3d 718, 731 (4th Cir. 2019); United States v. Lighty , 616 F.3d 321, 348 (4th Cir. 2010); United States v. Wallace , 515 F.3d 327, 330 (4th Cir. 2008).

With our standard of review in mind, we first turn to Menjivar and Arevalo's contention that several aspects of Turcios’ closing argument were improper. They claim Turcios’ counsel improperly (1) waited until closing to introduce a mutually antagonistic defense, (2) vouched for two of the government's witnesses, (3) argued facts not in evidence and (4) engaged in discussion of Turcios’ decision to not testify. Menjivar and Page 18Arevalo argue that these various improprieties should have resulted in a mistrial because, despite the curative instruction, the risk that the jury would be influenced by Turcios' improper arguments was too great. They also argue that the district court's curative instruction may have created an additional problem—that the jury might disregard parts of all three defendants’ closing arguments.

We do not need to decide if Turcios’ closing argument was improper to resolve whether the district court erred in denying Menjivar and Arevalo’s request for a mistrial. Even if it was, any prejudice to Menjivar or Arevalo that may have resulted from Turcios’ closing argument was rectified by the district court’s curative instruction.

We presume that jurors follow such a curative instruction. Samia v. United States , 599 U.S. 635, 646–47 (2023). True, that presumption is not absolute. Menjivar and Arevalo contend that there are some instances when the risk of prejudice to a defendant is so great that courts cannot rely on this presumption. But the presumption 'yields only in the 'exceptional' case where inadmissible evidence makes so strong an impression that its prejudicial effect cannot realistically be erased by an instruction to disregard.' United States v. Ritter , 167 F.4th 677, 683 (4th Cir. 2026) (quoting Hopt v. Utah , 120 U.S. 430, 438 (1887)).

In Bruton v. United States , 391 U.S. 123 (1968)-a case Menjivar and Arevalo analogize to—the Supreme Court held that a jury instruction could not cure the prejudice faced by one defendant when he was implicated in a confession introduced into evidence against his co-defendant. Id. at 136-37. The Court explained that 'there are some contexts Page 19in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' Id. at 135. Since then, however, the Court has resisted extending the Bruton rule. For example, in Richardson v. Marsh , 481 U.S. 200, 202 (1987), the Court examined 'whether Bruton requires the same result when the codefendant's confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial.” Id. at 202. The Court held that it did not, reiterating the importance of the general presumption that juries follow instructions. Id. at 211. And in Samia , the Court declined to extend Bruton to a situation when an officer testified about one defendant’s confession without mentioning the non-confessing defendant. Samia , 599 U.S. at 653–54. The Court explained that “to disregard or to make unnecessary exceptions to [the general presumption] 'would make inroads into th[e] entire complex code of . . . criminal evidentiary law, and would threaten other large areas of trial jurisprudence.’” Id. at 647 (alterations in original) (quoting Spencer v. Texas , 385 U.S. 554, 562 (1967)).

For two reasons, we likewise decline to extend Bruton and, instead, presume that the jury followed the district court's instructions. First, as just described, the Supreme Court has declined to extend Bruton beyond its facts, and applying Bruton here would do just that . 11 Second, Turcios' closing did not implicate the same concerns underlying Page 20Bruton . That's because Bruton was animated by the fact that the confession was in evidence. See Bruton , 391 U.S. at 127 (“Here Evans’ oral confessions were in fact testified to, and were therefore actually in evidence.'). But, in contrast, Turcios' counsel's statements during closing were arguments, not evidence. See Long v. Hooks , 972 F.3d 442, 463 (4th Cir. 2020) (en banc) (“[I]t is elemental that counsel’s arguments are not evidence in a case. It is literally black letter law.”).

We also find that, contrary to Menjivar and Arevalo’s suggestion, the text of the district court’s curative instruction did not “create[] a risk that the jury would discount all defense closing arguments, especially given the jury’s knowledge of defense coordination.” Op. Br. at 69. Rather, the instruction identified Turcios’ closing argument alone, directed the jury to disregard it and reiterated that the government bore the burden of proving each defendant’s guilt beyond a reasonable doubt. Neither Menjivar nor Arevalo identifies a record-specific reason to conclude that the jury could not follow that targeted Page 21direction. Thus, the district court did not abuse its discretion in formulating this instruction. See Westmoreland , 924 F.3d at 731 (“Absent legal error, we review a district court’s jury charge under the highly deferential abuse of discretion standard.”).

In sum, we find that the district court did not abuse its discretion in denying Menjivar and Arevalo's request for a mistrial because that curative instruction was sufficient to cure any prejudice faced by Arevalo and Menjivar.¹²

As for Turcios, recall he argued it was improper for the district court to strike his entire closing argument. While denying he made any improper arguments, he claims that only the purportedly improper parts should have been stricken.

The same presumption that defeats Menjivar and Arevalo's claims establishes Turcios’. We presume that the jurors followed the instruction and disregarded his entire summation, including every proper argument it contained. See Samia , 599 U.S. at 647. As a result, Turcios argues that he was denied the opportunity to make a closing argument at all. Turcios argues that violated his Sixth Amendment right to counsel under the Supreme Court's decision in Herring and our decision in King .

In Herring , the defendant challenged a New York law that permitted a judge to deny counsel any opportunity to make a closing argument in a nonjury trial. 422 U.S. at 853–54. The Supreme Court acknowledged that the trial court “must be and is given great latitude in controlling the duration and limiting the scope of closing summations,' such as by “ensur[ing] that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial.” Id. at 862. But the Court went on to conclude that “there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all' because 'the difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.' Id. at 863. The Court noted that, by the end of the trial, the factfinder’s memory may have faded, and the Page 23closing is important to point the factfinder to the appropriate evidence. Id. at 864. Thus, “[i]n denying the appellant this right under the authority of its statute, New York denied him the assistance of counsel that the Constitution guarantees.' Id. at 865.

In King , the defendant was charged with participating in an anti-war demonstration at the Pentagon. 650 F.2d at 535. At the close of a bench trial in front of a magistrate judge, the judge reviewed the evidence and found the defendant guilty. Id. at 536. Defense counsel protested that he had not intended to waive a closing argument by resting the case. Id. In response, the judge stated defense counsel could make a closing argument if he wanted but that it would not change the judge’s mind on the defendant’s guilt. Id. We found that, by making his decision before closing arguments, the magistrate judge effectively denied the defendant the right to make a closing argument, “and the denial of that right is not harmless error.” Id. Notably, the government argued that the defendant had been given the opportunity to make a closing argument. Id. But we rejected this argument because, while technically true, the magistrate judge’s statement that closing arguments would not change his mind showed that “[t]his [was] not the kind of environment in which a defendant’s interests c[ould] be effectively advocated,' meaning there was no 'real opportunity to proceed with closing argument.' Id. at 537.

This case is different from Herring and King . In Herring , the court barred closing arguments. 422 U.S. at 865. And in King , the district court instructed the defendant that he need not deliver a closing argument because that argument would not be considered. 650 F.2d at 536. Here, Turcios was given the opportunity to make a closing argument—the Page 24district court just found his closing argument contained several improprieties. The district court does have the authority to control or limit a party’s improper closing arguments. See Herring , 422 U.S. at 862. But rather than striking the purportedly objectionable parts of the closing argument, the district court struck the entire thing.

Even if there were several individual aspects of Turcios' argument that were improper, much of the argument was not. For instance, at one point during the closing, Turcios’ counsel argued that there was little evidence corroborating Guevara’s testimony and that there was evidence indicating Guevara had previously implicated gang members other than Turcios when discussing the murders with other witnesses. And Turcios’ counsel also argued there was not much evidence indicating Turcios was anything more than a peripheral member of the gang. Whether or not these arguments were convincing aside, no one suggests they were improper. Thus, while the district court enjoys broad discretion to control closing arguments, it abused that discretion in this case by striking all of the argument, even the unobjectionable parts.¹³

Page 25Obviously, by the time the district court ruled, the closings had been completed. By that point, it might have been very difficult to selectively strike only those improper parts while preserving the benign portions. But this problem could have been avoided if the district court permitted contemporaneous objections during Turcios’ closing. Indeed, the very purpose of a contemporaneous objection is to alert the court and opposing counsel to an issue, so that the issue can be immediately corrected. See, e.g. , Puckett v. United States , 556 U.S. 129, 134 (2009) (“And of course the contemporaneous-objection rule prevents a litigant from sandbagging the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” (internal quotation marks omitted) (quoting Wainwright v. Sykes , 433 U.S. 72, 89 (1977))).¹⁴ Regardless, because the district court abused its discretion in striking Turcios’ entire closing argument, we vacate Page 26his conviction and remand the case against him to the district court for further proceedings consistent with this opinion.¹⁵

Guevara pled guilty and agreed to cooperate with the government in their investigation of MS-13. As already discussed, Guevara became the government's key witness and provided much of the factual information in the government’s prosecution of the remaining defendants.

In September 2023, the government moved to limit the scope of the crossexamination of Guevara. At the time of many of the events giving rise to this case, Guevara was living with his girlfriend, Keyly Guzman. Guzman was charged with offenses associated with her own involvement in STLS’ crimes. During her sealed sentencing, she filed an affidavit accusing Guevara of brutally raping and beating her during their relationship.

The government's motion sought to preclude cross-examination of Guevara on Guzman's allegations. It argued that questions about sexual assault allegations were not probative of a witness’ capacity for truthfulness, that rape and sexual assault allegations Page 27are prior bad acts and inadmissible under Federal Rule of Evidence 404(b) and that the allegations should be kept out under Rule 403. The district court granted the government’s motion over defendants’ objection. It determined Guzman’s allegations were not a proper basis for cross-examination, explaining “[w]e’re not going to have a trial within a trial about, you know, evidence that doesn’t go directly to credibility.” J.A. 308.

On appeal, Menjivar and Arevalo argue the district court erred in limiting their ability to cross-examine Guevara on his relationship with Guzman. According to Menjivar and Arevalo, this limitation deprived them of their Sixth Amendment right to confront the witnesses against them. We disagree.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' U.S. Const. amend. VI. Because “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested,” one of the primary purposes of the Confrontation Clause is to protect a criminal defendant’s opportunity to cross-examine the government's witnesses. Davis v. Alaska , 415 U.S. 308, 316 (1974). And “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.' Id. at 316-17. But 'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986) (quoting Delaware v. Fensterer , 474 U.S. 15, 20Page 28 (1985) (per curiam)). 'On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” 16

Id.

Menjivar and Arevalo contend they were deprived of their opportunity to effectively cross-examine Guevara for four reasons. First, they argue that “evidence Guevara had been accused of uncharged crimes was classic bias evidence” and should have been fodder for cross-examination. Op. Br. at 29. While the government did not immunize Guevara from prosecution for sexual assault based on Guzman's allegations, Menjivar and Arevalo contend Guevara may have perceived that was a benefit he was receiving in exchange for his testimony. Second, they argue the allegations against Guevara indicate he was “hiding information and downplaying culpability” because he initially did not mention anything about his sexual assaults. Op. Br. at 32-33. Third, they argue Guevara began raping Page 29Guzman soon after he murdered Beltran and Geremeas, indicating Guevara committed the murders for his own sexual gratification, rather than to further the interests of STLS. And because some of the charges in this case require the government to prove the murder was committed “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity,” Menjivar and Arvelo argue Guevara may have had another motive to commit the crimes that was unrelated to their involvement. Op. Br. at 33 (quoting 18 U.S.C. § 1959). And fourth, Menjivar and Arevalo argue Guzman’s sexual assault allegations show Guevara acted on his own, outside of Menjivar’s direction or the control of MS-13. Their point seems to be that Guevara was never punished by Menjivar or other members for sexually assaulting Guzman, despite her being 'a subordinate gang associate.” Op. Br. at 34.

Menjivar and Arevalo are correct that, when a defendant is offered immunity in exchange for his testimony, “[t]he vital question, which the defendant is constitutionally entitled to explore by cross-examination, is what the witness understands he or she will receive,' rather than what the government or the 'reasonable man' might understand. Hoover v. Maryland , 714 F.2d 301, 305 (4th Cir. 1983). Thus, in Hoover , we determined that a trial court violated a defendant's Sixth Amendment rights when it prevented the defendant from cross-examining a government witness on that witness’ understanding of his immunity agreement with the government. Id. at 304-05. But, here, and unlike in Hoover , the government never immunized Guevara from charges related to Guzman's sexual abuse allegations. And there is no reason, beyond Menjivar and Arevalo's Page 30speculation, to suspect Guevara perceived any benefit from testifying based on possible, hypothetical charges stemming from those allegations. See United States v. Rabinowitz , 578 F.2d 910, 912 (2d Cir. 1978) (per curiam) (concluding a district court did not abuse its discretion in limiting cross-examination of a government witness’s prior acts of sodomy on children when “there were no pending or anticipated charges against the witness for which he would even need to curry favor”).

Moreover, Menjivar and Arevalo’s argument that they could have used Guzman’s allegations to show Guevara had a “tendency to downplay his own criminal behavior” is not convincing. Op. Br. at 32. While they were ultimately unable to ask Guevara specifically about Guzman’s allegations, Guevara testified on his participation in several other violent acts. Obviously, he testified-in graphic detail-on his shooting Beltran, Geremeas and Smith. And beyond that, Arevalo was also able to ask during crossexamination about numerous violent incidences in which Guevara freely admitted to planning to kill at least seven other individuals. On many of those occasions, Guevara was hunting for someone to kill, and it did not matter who. In one particularly disturbing instance, he also admitted to “attempt[ing] to lure a woman [he] had sex with . . . out of her home to kill her” and stated he was “plan[ning] . . . to shoot her in the head.” J.A 1099. Given this testimony, evidence on Guzman’s unsubstantiated allegations would have been only “marginally relevant” to the question of how Guevara describes his own criminal behavior and history of violence. Van Arsdall , 475 U.S. at 679. And it was reasonable for Page 31the district court to limit this testimony out of concerns about it becoming “a trial within a trial.” J.A. 308.¹⁷

In short, the district court did not violate the Confrontation Clause when preventing Menjivar and Arevalo from cross-examining Guevara on Guzman's sexual assault allegations. It was reasonable for the district court to find that questions about Guzman’s sexual assault allegations would likely confuse the issues and cause “a trial within a trial about . . . evidence that doesn’t go directly to credibility.” J.A. 308. And this limitation is consistent with the “wide latitude” we afford district courts in limiting cross-examination “based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” 18 Van Arsdall , 475 U.S. at 679.

Menjivar and Arevalo also challenge the denial of their motion to dismiss the indictment based on due process violations. We reject that challenge.

In November 2019, as part of their investigation, officers with the Prince William County Police Department secured a warrant to search Molina's home based on their suspicion of his participation in gang activity. Inside, they found several firearms and narcotics. The officers took Molina into custody and questioned him. They asked him several times about the murders, and he denied any involvement multiple times. But after several hours, he eventually confessed, claiming to have committed the murders himself.

In January 2020, Detective Michelle McAllister of the Prince William County Police Department interviewed Molina's mother, Ana Rodriguez. In the interview, Detective McAllister asked Rodriguez several questions about jailhouse calls Molina allegedly made to her. Detective McAllister told Rodriguez that she was reading from notes made by the Spanish translator who listened to all of Molina’s jailhouse calls to her and that the notes said Molina instructed his mother to tell people he was home with her on June 22—the day of the double murder. And Rodriguez apparently responded to Molina, “Bueno.” J.A. 3865, Def. Ex. 134 at 00:00:45.

Eventually, in September 2020, after several months of sitting in jail, Molina recanted and explained he had actually not murdered Beltran or Geremeas. He explained Page 33that he had originally confessed to these murders out of fear and loyalty to MS-13 but that he no longer felt MS-13 was being loyal to him.

In December 2019, Detective McAllister also interviewed Vasquez—who as you may recall was previously indicted as a co-defendant-as part of her investigation. Vasquez was not a member of STLS but worked with Guevara as a painter. He also regularly purchased drugs from MS-13 members. Detective McAllister asked Vasquez if he knew whether Guevara had murdered Beltran and Geremeas. Vasquez explained that the morning after those murders, Guevara told him that he had committed those murders and had brought the gun he used with him to work and had hidden it in a paint can. Vasquez said that his boss allowed Guevara to keep the gun hidden inside the paint can at their work and that Vasquez and his boss later delivered the paint can to Guevara at his house. Vasquez also stated that, according to Guevara, there had been “four or five” people present when Guevara committed the double murder, but the only individuals Vasquez recalled Guevara telling him were present were Guevara and Molina. J.A. 3128–29.

In a subsequent interview with the Federal Bureau of Investigation on December 20, 2019, Vasquez stated that he also gave Guevara a grinder along with the paint can when he delivered the can to Guevara’s house and that he believed Guevara intended to use the grinder to destroy the gun. Vasquez also told the FBI that Guevara had stated Molina was present for the double murder.

Vasquez pled guilty to being an accessory after the fact in the murder of both Beltran and Geremeas. He was sentenced on June 11, 2023. Vasquez faced a guidelines range ofPage 34 70 to 87 months, and the government requested he receive 70 months. The district court asked the government whether it was 'planning to call [Vasquez] as a witness' in defendants' murder trial. J.A. 3488. And the government responded, 'No, Your Honor. . . . Definitely not.' J.A. 3488. The court explained that the reason it asked the question was because Vasquez was not in the United States legally, so if the court sentenced him to time served—as the court was inclined to do—he would be deported and would not be in the United States at the time of trial. So, the government reiterated it was not going to call him. The district court then sentenced Vasquez to a sentence of time served plus supervised release. And Vasquez was removed from the United States.

In December 2023, defendants moved to dismiss the indictment based on multiple due process violations. Defendants first explained that, in preparing for trial, defense counsel came across the recording of Detective McAllister's interview with Molina's mother where McAllister confronted his mother about Molina’s use of the jail phone to construct an alibi. Based on this recording, defense counsel requested that the government produce copies of Molina’s jailhouse calls to his mother. The government responded by explaining that the jail had not retained the call records or notes on the call. And the government also informed defense counsel that the jail’s system automatically deleted the call recordings after two years. In response, defendants argued that failure to preserve the jail recordings or records of those recordings violated their due process rights. The district court denied defendants' motion to dismiss based on Molina's missing jailhouse calls because the defendants could call either Molina or his mother to testify.

Page 35The defendants also argued the government violated their due process rights by deporting Vasquez, who they argued was likely to have evidence in their favor. The district court denied defendants’ motion to dismiss on this ground as well. The court first explained that it was a “risky decision” for the government to deport Vasquez because “he was so close to this case in terms of, you know, he had handled the weapon that allegedly is involved in one of the murders, he was involved, as I recall it, to an understanding how the weapon was destroyed.” J.A. 407. Ultimately, however, the district court stated it was not going to dismiss the indictment because, while the government's decision to deport Vasquez “was unwise[ and] shouldn’t have happened,” there was no evidence of bad faith on the government’s part. J.A. 407.

On January 15, 2024, during the first trial, defense counsel discovered that a tipster had reported to police that Molina and Guevara admitted they committed the double murder. Defense counsel requested additional information from the government, and the government produced the tipster's name, phone number, email address and Facebook account information. Arevalo, alleging this information had never been produced to defense counsel, moved for the government to dismiss the homicide indictments, for an instruction telling the jury about the tipster, for the court to prevent the government from calling Molina at trial and for other relief based on this withheld information.

Even though Molina had already testified in the first trial, the district court struck his testimony and barred him from testifying in the second trial. But the district court later Page 36clarified it was not prohibiting defense counsel from calling Molina in the second trial if the defense chose to do so.

During the second trial, the government called FBI Special Agent Paul Fisher, who conducted the interview with Vasquez on December 20, 2019. Special Agent Fisher discussed both the interview and the tip the FBI received about Guevara and Molina saying they committed the murder. While Special Agent Fisher had some difficulty recalling the interview, he refreshed his recollection with his written report and acknowledged the report said Vasquez had stated Guevara committed the double murders with Molina. He also acknowledged in front of the jury that Vasquez had since been deported.

The jury also heard recordings from Vasquez’s December 13, 2019 interview. While the government objected to Arevalo playing these recordings, the district court overruled that objection. The court explained that it reviewed the transcript of Vasquez’s sentencing and found that Vasquez should not have been deported and that his removal was a “sufficiently serious” error. J.A. 1838. The district court reiterated that it did not “really think this [was] an example of bad faith, but . . . it was an example of foolishness on the government’s part not to have kept him here. He clearly is a witness who had relevant information.' J.A. 1838. Still, the district court also added that Vasquez had stated he planned to refuse to testify, so the court was not sure if he would have said anything even if he was available to be called as a witness. In any event, the district court permitted defendants to play the audio recordings from Vasquez’s interview.

Page 37Arevalo also called Detective McAllister to testify in the second trial. Arevalo asked her about Molina's jailhouse calls to his mother. Detective McAllister stated that “[s]omeone on the investigative team tasked me to interview Abner Molina’s mother after listening to those jail tapes.” J.A. 1906. But she no longer had any notes from the call, nor did she recall being given any specific translation or transcript of the call. She explained that the police department’s typical practice was for Spanish-speaking police officers to listen to the calls. Still, Detective McAllister acknowledged that, when she listened to the recording of her interview with Molina’s mother, “it did appear that I was specifically reading from something to get specific language about what was said on the jail call.” J.A. 1908-09. Arevalo then introduced the interview recording into evidence. And after listening to that recording, Detective McAllister agreed that she went into the interview believing that Molina had directed his mother to say he was with her on June 22.

Arevalo also asked Detective McAllister about her interviews with Vasquez. And portions of the audio recordings of this interview and a transcript of the interview were admitted into evidence.¹⁹ She stated that Vasquez said in the interview that Guevara and Molina were together on the day of Tate's murder. And Arevalo asked Detective McAllister about an interview audio clip in which she asked Vasquez about the double homicide and Vasquez said the only people he knew to be present at the time were Guevara Page 38and Molina. During cross-examination, Detective McAllister stated that the interview with Vasquez was not productive because Vasquez “was not deemed credible at any point by any law enforcement officer that I'm aware of. In the interview he made so many conflicting statements, it’s pretty much why the interview took so long to clarify what he was saying.” J.A. 1947.

In challenging the district court’s denial of their motion to dismiss, Menjivar and Arevalo claim three due process violations infected the proceedings below.²⁰ First, they argue it was a due process violation for the government to deport Vasquez because he was a material witness and his testimony was favorable to their defense. Second, they argue the government violated their due process rights when it failed to preserve the recordings of the jail call between Molina and his mother and the notes of those recordings. And finally, they argue their due process rights were violated by the government’s late disclosure of evidence about Molina possibly confessing to a tipster. We take each of these arguments in turn.²¹

The Supreme Court articulated the standard for determining whether the deportation of an alien witness who is illegally in the United States violates the defendant’s due process rights in United States v. Valenzuela-Bernal , 458 U.S. 858 (1982). Such a deportation, by itself, does not amount to a due process violation. Id. at 872-73. After all, 'the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive’s good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution.” Id. at 872.

Rather, to establish a due process violation in these circumstances, the defendant must make a “plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.' Id. at 873. Notably, because 'prompt deportation deprives the defendant of an opportunity to interview the witnesses to determine precisely what favorable evidence they possess, . . . the defendant cannot be expected to render a detailed description of their lost testimony.' Id.

In determining whether a deported witness’ testimony was material, the Supreme Court borrowed the same standard used when assessing the loss of material evidence in other circumstances. Id. Thus, 'sanctions will be warranted for deportation of alien witnesses only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.' Id. at 873-74. 'In general, evidence whose function is Page 40impeachment may be considered to be material where the witness in question supplied the only evidence linking the defendant to the crime” or “where the witness supplied the only evidence of an essential element of the offense.” United States v. Bartko , 728 F.3d 327, 339 (4th Cir. 2013) (quoting United States v. Avellino , 136 F.3d 249, 256, 257 (2d Cir. 1998)). But impeachment evidence is not material “where it was cumulative of evidence of bias or partiality already presented and thus would have provided only marginal additional support for [the] defense.” Id. (alteration in original) (internal quotation marks omitted) (quoting United States v. Cooper , 654 F.3d 1104, 1120 (10th Cir. 2011)).

Menjivar and Arevalo argue they have made the requisite showing that Vasquez’s testimony was material and favorable to their defense. They contend Vasquez told investigators that Guevara shot Tate only after Tate shot first. They argue that this information is material because it supports Arevalo’s self-defense theory and because it contradicts Guevara’s trial testimony that he was not present and that Arevalo was present at the time Tate was shot. They also point to other interviews in which Vasquez told investigators that Guevara and Molina both admitted to being present at the time of the double homicide, that Guevara admitted to committing the double homicide with Molina, that Vasquez assisted in destroying the murder weapon in the double homicide and that Vasquez never implicated Arevalo. And Menjivar and Arevalo point to two letters Molina mailed to an informant, in which Molina stated he had concerns about Vasquez and did not know why Guevara trusted him. They contend that all of this shows it is likely Vasquez Page 41had material information that either would have been exculpatory or could have been used to impeach Guevara’s testimony.

We disagree for two reasons. First, it seems doubtful that Vasquez's testimony would have materially impeached Guevara. Menjivar and Arevalo’s primary purpose in calling Vasquez seems to have been to impeach aspects of Guevara’s testimony on how the murders took place. However, even without Vasquez's testimony, defendants challenged Guevara’s account of the murders with other evidence. For instance, Special Agent Fisher acknowledged during Arevalo’s cross-examination that Molina had initially confessed to the double murders, Detective McAllister also confirmed in her testimony that Molina had apparently requested that his mother provide an alibi for him on the day of the double murders, and she also testified that Vasquez told her the only people he knew to be present during the double murders were Guevara and Molina. In addition, the jury heard the portion of the audio recording of Vasquez’s interview in which he said Guevara and Molina were together for Tate's murder. So, the jury heard evidence contradicting Guevara’s account of both the double murders and Tate’s murder. These are the two topics Menjivar and Arevalo wanted to use Vasquez’s testimony to impeach Guevara on, so the testimony was immaterial for these impeachment purposes.

Second, even if Vasquez’s testimony were material as impeachment evidence, it still would have been cumulative of other evidence admitted at trial. To reiterate, the jury heard recordings of Vasquez's interview and testimony from Detective McAllister on what Vasquez said during those interviews. While there may have been some value for the jury Page 42to hear from Vasquez himself, his testimony would have been cumulative of this other evidence, and Arevalo and Menjivar have not shown that there was a 'reasonable likelihood that the testimony could have affected the judgment of the trier of fact.' Valenzuela-Bernal , 458 U.S. at 874. So, we affirm the district court's finding that defendants have not demonstrated a due process violation for this reason.²²

Next, Menjivar and Arevalo argue the police’s failure to preserve jail call recordings or notes on a jail call between Molina and his mother exacerbated the harm caused by Vasquez’s deportation. They point specifically to the recording of Detective McAllister interviewing Molina’s mother—in which Detective McAllister said several times that she had heard of a recording of a call during which Molina asked his mother to create an alibi for him. Menjivar and Arevalo argue that both the notes and the recordings of the jail calls existed and that the destruction of material evidence violates due process if the defendant could not otherwise get copies of the evidence. And they argue the jail call recordings are highly exculpatory because they tend to show Molina committed the double homicide.

The government has a duty to preserve evidence “that might be expected to play a significant role in [a] suspect's defense.' California v. Trombetta , 467 U.S. 479, 488 (1984). And failure to preserve evidence can be a due process violation. Cf. id. at 488-90 (finding the destruction of evidence was not a due process violation when its exculpatory value was not apparent when it was destroyed and the defendants had alternative evidence at their disposal). Thus, to demonstrate a due process violation based on the government’s failure to preserve such evidence, the defendant has the burden of proving that the evidence was constitutionally material-that is, the 'evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' Id. at 489. When the defendant cannot make this showing because the unpreserved Page 44evidence was only “potentially useful,” the defendant can only succeed in showing a due process violation based on the failure to preserve the evidence by showing bad faith on the part of the police. Arizona v. Youngblood , 488 U.S. 51, 58 (1988).

Menjivar and Arevalo have neither shown that the jail calls and notes were constitutionally material nor have they shown that the police acted in bad faith in failing to preserve this evidence. Starting with constitutional materiality, even if this evidence existed at one point and had apparent exculpatory value before it was destroyed, 23 Menjivar and Arevalo reasonably could have produced comparable evidence. Notably, the jury heard a recording of Detective McAllister's interview with Molina's mother, during which Detective McAllister mentioned Molina calling his mother to concoct an alibi. And Detective McAllister testified during Arevalo's cross-examination that, going into that interview, she believed Molina had called his mother to convince her to help him fabricate an alibi. This is the very same information that Arevalo and Menjivar would have hoped to illicit by introducing Molina’s jailhouse calls to his mother and the notes from those Page 45calls. And, if that were not enough, Arevalo or Menjivar could have called Molina or his mother to testify at trial to ask additional questions about this topic.

Beyond that, to the extent the jail call recordings or any notes were potentially useful, defendants have failed to show the government acted in bad faith in failing to preserve them. As for the call recordings, they were purged under the jail’s standard policy to discard call recordings after two years. This is similar to our previous decision holding that police did not act in bad faith in failing to preserve a traffic stop video when “the tape had been subject to the police department's standard 90-day hold policy and was then 'routinely destroyed,' with no bad faith on the part of law enforcement in the tape's destruction.” United States v. Montieth , 662 F.3d 660, 666 n.1 (4th Cir. 2011) (quoting Youngblood , 488 U.S. at 57). And Menjivar and Arevalo have not cited any evidence indicating the police acted in bad faith in destroying notes of the call, if such notes existed.

Finally, Menjivar and Arevalo argue the withheld evidence about Molina and Guevara confessing to a tipster exacerbated the prejudice caused by Vasquez’s deportation. “A failure to disclose violates due process only if the evidence in question (1) is favorable to the defendant because it is either exculpatory or impeaching; (2) was suppressed by the government; and (3) is material in that its suppression prejudiced the defendant.” United States v. Sterling , 724 F.3d 482, 511 (4th Cir. 2013). 'When the government's contumacious conduct involves a delay in producing discovery, rather than a failure to turn over required materials, the relevant inquiry is 'whether the defendant's counsel was Page 46prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant’s case.’” Id. (quoting United States v. Ingraldi , 793 F.2d 408, 411–12 (1st Cir. 1986)).

Menjivar and Arevalo note that in May 2020, they learned a witness claimed that both Molina and Guevara bragged about having committed the double murder. When defense counsel followed up, the government produced additional exculpatory information about the tipster that had never been disclosed. So, Arevalo moved, based on this disclosure, for the dismissal of the homicide indictments. The district court refused to let Molina testify for the government but did not dismiss the indictments. Menjivar and Arevalo now argue the withheld exculpatory information exacerbates the problem of Vasquez’s deportation because the information, when coupled with Vasquez’s potential testimony, could have helped them prove Molina and Guevara were the real killers.

In response, the government argues that the late disclosure of the tipster’s name and contact information was not a due process violation. First, the government argues there was no due process violation because it disclosed the information early enough for the defendants to use it at trial. Indeed, the government points out it disclosed the information on January 16, 2024, and the defendants’ trial did not begin until January 22, 2024. It even notes that defendants used the material at trial while questioning Special Agent Fisher. Second, the government argues that, because there was no bad faith, the sanction of preventing Molina from testifying was appropriate.

Page 47Even if the government’s late disclosure of the information identifying the tipster was a Brady violation, we agree with the district court that it did not require dismissal. In his motion based on the alleged Brady violation, Arevalo appeared to request either dismissal or other sanctions, such as barring Molina from testifying at trial. See J.A. 3396 (“Arevalo requests (1) the dismissal of the homicide indictments, (2) that the government be barred from calling Abner Molina Rodriguez as a witness, (3) that if the government is permitted to call Molina, certain limitations be imposed on his testimony and related evidence, and (4) that the Court instruct the jury as requested below.”). Notably, defendants did not request a continuance to locate and talk to the tipster. And, as the government points out, a continuance is the preferred remedy in such circumstances. See Sterling , 724 F.3d at 512. Indeed, in United States v. Collins , 415 F.3d 304, 311 (4th Cir. 2005), we stated that a motion to dismiss is not a proper remedy for a late Brady disclosure and found, in that case, that the district court did not err in denying a motion to dismiss based on the government’s late disclosure of information identifying a witness when the defendant did not move for a continuance. Thus, we find that the district court’s remedy of barring Molina from testifying for the government was sufficient to cure any alleged violation.

Finally, Arevalo argues that the district court erred in failing to set aside the jury’s special finding that Arevalo killed Tate as part of the Count One RICO conspiracy.

Page 48In addition to the questions of guilt on the various charges, the jury was asked to make a series of special findings in connection with their guilty verdict for Arevalo on Count One's RICO conspiracy. In particular, Special Finding Three under the RICO conspiracy asked the jury to make a determination on whether Arevalo was involved in Tate’s murder:

1. (3) We, the jury, having found the defendant guilty of the offense charged in Count One, further unanimously find that as part of that offense, the defendant, on or about August 29, 2019, while aiding and abetting others, did willfully, deliberately, maliciously, and with premeditation kill Eric Lainer Tate (check one):

YES NO

J.A. 2232. The jury checked “YES,” despite acquitting Arevalo on the VICAR murder and murder-conspiracy counts related to Tate’s murder. J.A. 2234–35.

After the trial, Arevalo moved for the district court to set aside the jury’s Special Finding Three of Count One, arguing it was inconsistent with the jury’s acquittal of him on the VICAR counts related to Tate’s murder. He argued the district court should either grant him an acquittal on the Special Finding under Rule 29 or set aside the finding as alternative relief in the interests of justice under either Rule 29(d)(1) or Rule 33. The district court denied the motion, largely because “the jury’s determinations as to special finding three and the separate substantive counts are not wholly irreconcilable or impossible.” J.A. 2499. The district court explained that the VICAR counts require that Arevalo must have committed the murder “for the purpose of gaining entrance to or maintaining or increasing Page 49position in an enterprise engaged in racketeering activity.” J.A. 2499 (quoting 18 U.S.C. § 1959(a)). In contrast, it explained the Special Finding on the predicate act in support of Count One does not require proof of this element.

On appeal, Arevalo maintains that the district court erred because the jury’s special finding directly conflicts with its acquittal on the VICAR counts related to Tate’s murder. While he concedes, citing United States v. Powell , 469 U.S. 57 (1984), that “a defendant is not entitled to a new trial just because there are inconsistent verdicts between two counts,' he argues that we should, nevertheless, order a new trial in this case for two reasons. Op. Br. at 72. First, he contends that in Powell , the Supreme Court specifically declined to address situations when “a guilty verdict on one count logically excludes a finding of guilt on the other.” Op. Br. at 72 (quoting Powell , 469 U.S. at 69 n.8). Second, he argues that inconsistencies between counts of conviction and special findings, which are alleged here, should be treated differently from inconsistencies between different counts of conviction, which Powell addressed. That's because he fears the jury may not have understood that by checking 'YES' or 'NO' they were reaching effectively the same conclusion as if they were required to select between “guilty” and “not guilty.” Op. Br. at 74–75. Arevalo also argues that the inconsistency here may indicate a Sixth Amendment violation. He notes that the penalty for a racketeering conspiracy conviction increases from twenty years to life when a defendant commits a crime that could be punished with life in prison. And because he was acquitted of the VICAR counts related to Tate’s murder, he Page 50contends the jury must not have found the facts supporting the RICO-conspiracy special finding beyond a reasonable doubt, even though those facts increased his sentence.

Count One charged Arevalo with a RICO conspiracy: conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity.¹⁸ U.S.C. § 1962(c), (d). And the predicate racketeering acts include drug trafficking and murder.¹⁸ U.S.C. § 1961(1)(A).

Arevalo was acquitted of the VICAR charges related to Tate's murder. Those charges alleged murder, and conspiracy to murder, in aid of racketeering, both in violation of 18 U.S.C. § 1959(a)(1) and (a)(5).²⁴ Among other things, a VICAR charge requires proof that the defendant committed or agreed to commit the violent act either for pecuniary consideration from the enterprise or “for the purpose of gaining entrance to or maintaining or increasing position in” the enterprise. § 1959(a).

18 U.S.C. § 1959(a).

Page 51We have previously held, when examining whether charging a defendant under both RICO (§ 1962(d)) and VICAR (§ 1959(a)(5)) violates the Double Jeopardy clause, that murder conspiracy charged under these two sections requires proof of different elements. See United States v. Ayala , 601 F.3d 256, 265 (4th Cir. 2010). In that case, we reasoned that

[e]stablishing a murder conspiracy under § 1959(a)(5) requires proof that the defendant conspired ‘for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity’ or as consideration for 'anything of pecuniary value' from such an enterprise[, whereas t]here is simply no such requirement to prove a racketeering conspiracy under § 1962(d).

Id. Thus, we found that 'a jury could find a defendant guilty of one offense without necessarily finding him guilty of the other and vice-versa.” Id. Nor did Special Finding Three require that enterprise-related purpose. The jury therefore could find in Special Finding Three that Arevalo aided and abetted Tate’s murder while harboring reasonable doubt about the distinct VICAR-purpose element.

Additionally, it is true that the jury should not be asked to answer “yes” or “no” to factual questions on a special verdict form if it is not asked to find the defendant “guilty” or 'not guilty.' See United States v. Ramirez-Castillo , 748 F.3d 205, 214-15 (4th Cir. 2014). That’s because “the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.' Id. at 214 (emphasis omitted) (quoting United States v. Gaudin , 515 U.S. 506, 514 (1995)). But here, the jury drew an ultimate conclusion on Arevalo’s guilt when it Page 52found him “Guilty” on Count One. J.A. 2232. Once that is done, nothing precludes asking the jury yes or no questions on factual findings. And the district court instructed the jury that it could answer “yes” only if it unanimously found that the government proved that fact beyond a reasonable doubt. J.A. 2144; see also J.A. 2169. Thus, the district court did not err in failing to set aside Arevalo’s conviction. And we affirm the district court’s denial of Arevalo’s motion.

For the reasons set forth above, we find that the district court abused its discretion in instructing the jury to exclude all of Turcios' closing argument. And we vacate his conviction, accordingly, and remand the case against him for further proceedings consistent with this opinion. However, because this curative instruction was sufficient to cure any prejudice that may have been suffered by Arevalo and Menjivar as a result of Turcios’ closing argument, the district court did not abuse its discretion in denying their motion for a mistrial. Also, the district court did not err in limiting defendants’ ability to cross-examine Guevara, in denying their motion to dismiss the indictment or in declining to set aside Special Finding Three. Thus, we affirm Menjivar’s and Arevalo’s convictions.

Nos. 24-4308 and 24-4325 are AFFIRMED

No. 24-4358 is VACATED AND REMANDED