Fourth Circuit Narrows “Gang-Duress” and Confirms Admissibility of Expert Gang Testimony after Crawford
A Comprehensive Commentary on United States v. Pablo Velasco Barrera, 92 F.4th ___ (4th Cir. 2025)

1. Introduction

The consolidated appeal in United States v. Pablo Velasco Barrera addressed the convictions of five MS-13 members for the kidnapping and murder of two minors in Northern Virginia. Tried jointly for eight racketeering-related counts, the defendants challenged virtually every aspect of their prosecution—from the admissibility of graphic videos to the validity of expert gang testimony, from joinder to jury instructions on duress. The Fourth Circuit, in an opinion authored by Judge Berner and joined by Judges Wilkinson and Quattlebaum, affirmed all convictions and most sentences, vacating only the sentencing package of one defendant for Rogers inconsistencies.

Key issues included:

• Whether an MS-13 member is entitled to a duress instruction premised on fear of gang reprisal;
• Whether gang-expert testimony relying in part on hearsay violates the Confrontation Clause post-Crawford;
• Scope of the “historical racketeering” evidence doctrine when proving a VICAR enterprise;
• Proper joinder of multiple murders and multiple defendants in a single trial;
• Admissibility of gruesome video and photographic evidence under Rule 403;
• Application of Miranda, knock-and-talk, and consent principles in the arrest of a defendant at his mother’s apartment; and
• Mandatory life-without-parole sentences on an “emerging adult” defendant who had just turned eighteen.

2. Summary of the Judgment

The Fourth Circuit (i) affirmed the convictions of all five appellants on each of the eight counts; (ii) vacated and remanded only the sentence of Henry Zelaya Martinez to cure inconsistencies between oral and written conditions of supervised release (Rogers error); and (iii) issued several clarifications now constituting circuit precedent:

1. Gang-related generalized threats do not satisfy the first prong of the federal duress defense, foreclosing a “gang-duress” instruction in VICAR murder and kidnapping prosecutions.
2. Expert testimony on MS-13 structure and practices, even if informed by testimonial hearsay, is admissible when the expert renders an independent assessment rather than acting as a mere “conduit,” harmonizing Rule 703 with Crawford and Fourth Circuit precedents (Johnson, Ayala).
3. “Historical racketeering evidence” of other murders by the enterprise is highly probative to the VICAR enterprise element and generally survives Rule 403 scrutiny.
4. Joinder of multiple murder counts and multiple defendants in a single MS-13 conspiracy trial is “highly favored” under Rules 8(a) and 8(b); prejudice requires more than speculative spill-over.

3. Analysis

3.1 Precedents Cited and Their Influence

• Crawford v. Washington, 541 U.S. 36 (2004) – Established the bar against admission of testimonial hearsay absent cross-examination. The panel distinguished between experts who parrot hearsay and those who give independent opinions.
• United States v. Johnson, 587 F.3d 625 (4th Cir. 2009) & United States v. Ayala, 601 F.3d 256 (4th Cir. 2010) – Both cases laid the groundwork for admitting gang-expert testimony post-Crawford. Judge Berner applied their “independent judgment” test to uphold Sgt. Guzman’s testimony.
• United States v. Crittendon, 883 F.2d 326 (4th Cir. 1989) – The leading Fourth-Circuit duress framework. The panel held that generalized MS-13 fear failed factor one (“present, specific threat”).
• Schmuck v. United States, 489 U.S. 705 (1989) – Elements test for lesser-included offenses. Used to deny the requested aggravated-assault instruction.
• Zafiro v. United States, 506 U.S. 534 (1993) – Preference for joint trials; channeling of severance analysis.
• United States v. Rogers, 961 F.3d 291 (4th Cir. 2020) – Written/oral sentencing discrepancy doctrine; drove the partial vacatur for Henry Zelaya.
• Miller v. Alabama, 567 U.S. 460 (2012) – Mandatory LWOP for juveniles prohibited; the panel refused to extend its logic to an 18-year-old (relying on Chavez).

3.2 Court’s Legal Reasoning – Key Holdings

3.2.1 The “Gang-Duress” Clarification

The court assumed arguendo that duress could apply to VICAR murder but held that the defendants offered no evidence of a present, specific, and unlawful threat. MS-13’s standing rule—“disobey and you’ll be punished”—is insufficient. By ending the analysis at factor one, the panel effectively erects a bright-line rule: ordinary gang coercion does not trigger duress in federal violent-crime prosecutions.

3.2.2 Expert Testimony and the Confrontation Clause

Sgt. Guzman’s testimony survived challenge because he “applied his expertise to the evidence” rather than read out summaries of out-of-court statements. The court reaffirmed that an expert’s exposure to testimonial hearsay does not automatically taint his in-court opinion so long as the opinion is independently formed (the Johnson/Ayala framework).

3.2.3 Historical Racketeering Evidence

Three unrelated MS-13 murders were admitted to prove the “enterprise” element. The panel emphasized the “high probative value” to VICAR, aligning with Tenth-Circuit precedent (Martinez, 2024). Cautionary instructions and cross-examination sufficed to contain Rule 403 prejudice.

3.2.4 Joinder and Severance

Because both murders were part of the same racketeering scheme, joinder met the “logical relationship” test. The defendants failed to show specific trial-right prejudice; thus, Rule 14 severance was denied. The decision strengthens the already heavy presumption toward joint trials in multi-defendant gang cases.

3.2.5 Sentencing Issues

The panel declined to extend Miller & Graham to an “emerging adult,” keeping the constitutional bright line at age 18. It did, however, enforce Rogers, vacating Henry Zelaya’s sentence because of written/oral mismatches on marijuana use and cost-sharing for treatment.

3.3 Potential Impact

• Duress Defense in Gang Cases: Prosecutors may cite Velasco Barrera to pre-empt duress instructions when defendants claim generalized fear of gang discipline. Defense counsel must now come forward with concrete, imminent threats.
• Expert Gang Testimony: The decision provides a clear blueprint for qualifying gang experts post-Crawford. So long as experts testify to their own synthesis, confrontation challenges should fail.
• Rule 403 & Graphic Evidence: The court’s tolerance for gruesome footage—where it is non-duplicative and corroborative—sets a high hurdle for exclusion in future violent-crime trials.
• Emerging-Adult Sentencing: By refusing to expand juvenile Eighth-Amendment jurisprudence to 18-year-olds, the Fourth Circuit preserves the current majority rule but invites continued scholarly debate on neurological maturity.
• Rogers Compliance: District judges must ensure exact alignment between oral pronouncements and written judgments. The panel’s quick vacatur signals zero tolerance for discrepancies, even when the substantive sentence is unchanged.

4. Complex Concepts Simplified

• VICAR (Violent Crimes in Aid of Racketeering), 18 U.S.C. § 1959: A statute allowing federal prosecution of violent acts performed to advance a racketeering enterprise. The Government must show (1) an “enterprise,” (2) a racketeering “pattern,” and (3) that the defendant’s purpose was to maintain or increase status in that enterprise.
• Duress Defense (Federal): A four-part test from Crittendon. Most difficult prong: the defendant must face an immediate, specific threat of serious harm if he refuses to commit the crime.
• Present Sense Impression (Rule 803(1)): A hearsay exception for statements describing an event made while perceiving it or immediately thereafter—assumed trustworthy because there is no time to fabricate.
• Joinder vs. Severance: “Joinder” means charging/trying together; “severance” is the court’s discretionary remedy to prevent prejudice. Rule 8 sets the baseline; Rule 14 provides the safety valve.
• Rogers Error: Occurs when the district court’s written judgment imposes conditions not stated orally at sentencing. Remedy: vacate and remand for resentencing.

5. Conclusion

United States v. Pablo Velasco Barrera reinforces the Fourth Circuit’s pragmatic, prosecution-friendly approach to gang-violence trials while drawing clear constitutional boundaries. It:

1. Shields juries from speculative gang-duress claims;
2. Solidifies the admissibility of gang expertise under Rule 703 without violating Crawford;
3. Affirms broad discretion to admit prior-enterprise murders as “historical racketeering evidence”;
4. Calls for meticulous consistency in sentencing colloquies (Rogers compliance); and
5. Leaves undisturbed the bright-line constitutional treatment of defendants who have reached 18.

Going forward, district courts within the Fourth Circuit can rely on this decision when suppressing duress instructions grounded solely on generalized gang threats, qualifying gang experts, managing graphic evidence, and deciding joinder. Defense counsel, in turn, must marshal specific facts of imminent danger to overcome the court’s newly articulated limits on duress, and must scrutinize every written judgment for Rogers discrepancies. As gang-related violence continues to intersect with federal racketeering laws, Velasco Barrera stands as a pivotal reference point for both prosecutors and defense attorneys alike.