Curative Instruction by Striking a Witness’s Testimony Can Cure Mid‑Trial Brady Prejudice; Digital Warrants May Permit Broad Review Where Seizure Is Cabined to Enumerated Crimes

1. Introduction

These consolidated appeals arise from a six‑day jury trial in the Eastern District of Virginia involving murders committed by members of the MS‑13 clique “Sitios Locos Salvatrucha (STLS).” The defendants—Jairo Gustavo Aguilera Sagastizado (“Aguilera”), Melvin Canales Saldana (“Canales”), and Manilester Andrade Rivas (“Andrade”)—were convicted of various racketeering, drug, and murder-related crimes.

The key appellate issues were:

• Brady remedy: Whether striking cooperating witness Abner Jose Molina Rodriguez’s (“Molina”) testimony and instructing the jury to disregard it was an adequate cure for the Government’s mid‑trial Brady/Giglio violation, or whether a mistrial/new trial was required.
• Fourth Amendment digital warrants: Whether warrants for Canales’s cell phones and cloud-based accounts lacked probable cause and particularity because they permitted a broad search of digital data.
• Sufficiency of the evidence: Whether evidence supported (a) Andrade’s VICAR conspiracy-to-murder conviction where the victim was allegedly “random,” and (b) Canales’s VICAR conspiracy, VICAR murder, and special sentencing finding on an aiding-and-abetting theory.
• Jury instructions: Whether the conspiracy-to-murder instruction was erroneous under Virginia law because it referenced conspiracy to commit “second-degree murder,” and if so, whether the charge as a whole cured any error.

2. Summary of the Opinion

The Fourth Circuit affirmed all challenged rulings and convictions. On the Brady issue, the court held the district court did not abuse its discretion in remedying the late disclosure by striking Molina’s testimony and giving a curative instruction, relying on the presumption that juries follow limiting instructions.

On the suppression issue, the court upheld warrants for cell phones and cloud accounts, concluding they were supported by probable cause and sufficiently particular because, although they allowed broad review of stored data, they limited what could be seized to “fruits, evidence, or instrumentalities” of enumerated crimes—consistent with the Fourth Circuit’s endorsed two‑step digital search-and-seizure framework.

On sufficiency, the court held:

• Andrade’s conviction for VICAR conspiracy to murder Tate stands because conspirators may agree to kill an unidentified person; the conspiracy may “attach” to the selected victim once the group acts in concert toward the murder.
• Canales’s convictions and special sentencing finding stand because conditional intent (“kill a rival if procedures/conditions are met”) can satisfy Virginia’s specific-intent requirement; and aiding-and-abetting liability does not require that a principal be convicted, only that the underlying offense was committed by someone.

On jury instructions, the panel held that even assuming arguendo a misstatement of Virginia law, the charge “as a whole” adequately conveyed the requirement that defendants knowingly agreed and intended to murder the victim, defeating a claim of prejudicial confusion.

3. Analysis

3.1 Precedents Cited

A. Standards of review and framing

• United States v. Sanders, 107 F.4th 234 (4th Cir. 2024): supplied the “view the facts in the light most favorable” posture for suppression and trial evidence review.
• United States v. Bailey, 74 F.4th 151 (4th Cir. 2023) and United States v. Buster, 26 F.4th 627 (4th Cir. 2022): set the de novo/clear error split for suppression rulings and the prosecution-favorable factual view on appeal.
• United States v. Freitekh, 114 F.4th 292 (4th Cir. 2024); United States v. Murphy, 35 F.3d 143 (4th Cir. 1994); United States v. Penniegraft, 641 F.3d 566 (4th Cir. 2011): governed substantial-evidence review and the rule against appellate credibility reweighing.

B. Racketeering/VICAR framework

• United States v. Contreras, 149 F.4th 349 (4th Cir. 2025) and United States v. Keene, 955 F.3d 391 (4th Cir. 2020): used to describe VICAR’s required nexus—violent crime committed as part of an enterprise and pattern of racketeering activity under 18 U.S.C. § 1959.
• United States v. Simmons, 11 F.4th 239 (4th Cir. 2021): central to the opinion’s treatment of Virginia specific intent and “conditional” intent in VICAR attempted murder; the panel analogized Canales’s conditional permission/expectation that others would kill to Simmons’s conditional kill order.

C. Brady/Giglio and remedies

• Brady v. Maryland, 373 U.S. 83 (1963): baseline duty to disclose material favorable evidence.
• Giglio v. United States, 405 U.S. 150 (1972) and Wearry v. Cain, 577 U.S. 385 (2016): establish that impeachment material undermining a witness’s credibility is Brady material.
• United States v. Bagley, 473 U.S. 667 (1985): equates the significance of suppressing exculpatory and impeachment evidence.
• United States v. Savage, 885 F.3d 212 (4th Cir. 2018): provided the circuit’s articulation of Brady and, notably here, a contrast between Brady and Jencks timing/disclosure obligations.
• United States v. Wilson, 624 F.3d 640 (4th Cir. 2010); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013); United States v. Russell, 971 F.2d 1098 (4th Cir. 1992): governed belated disclosure analysis—due process is violated when timing prevents “effective use,” and the district court has sanction discretion.
• United States v. Saint Louis, 889 F.3d 145 (4th Cir. 2018) (quoting United States v. Wallace, 515 F.3d 327 (4th Cir. 2008)) and Richardson v. Marsh, 481 U.S. 200 (1987): supported the key proposition that prejudice may be cured by cautionary instructions and that appellate courts presume juries follow them.

D. Digital warrants: probable cause, particularity, and the “two-step” approach

• United States v. Lowers, 170 F.4th 134 (4th Cir. 2026): recently held warrants are required to search/seize cloud-based storage accounts and their contents, anchoring the panel’s Fourth Amendment discussion.
• Kentucky v. King, 563 U.S. 452 (2011): restated that a warrant must be supported by probable cause and be particularized.
• Illinois v. Gates, 462 U.S. 213 (1983) and United States v. Blakeney, 949 F.3d 851 (4th Cir. 2020): provided the “fair probability” definition of probable cause.
• United States v. Zelaya-Veliz, 94 F.4th 321 (4th Cir. 2024) (quoting United States v. Cobb, 970 F.3d 319 (4th Cir. 2020)): supplied the critical doctrinal move: warrants may permissibly authorize broad initial collection/review of digital data so long as the seizure is confined to evidence of enumerated crimes (the “two-step process”).
• United States v. Williams, 592 F.3d 511 (4th Cir. 2010): reinforced the practical necessity of cursory examination of large digital collections to determine relevance.
• Maryland v. Garrison, 480 U.S. 79 (1987): provided the rationale for the particularity requirement—preventing “wide-ranging exploratory searches.”
• United States v. McCall, 84 F.4th 1317 (11th Cir. 2023): cited (via Zelaya-Veliz) for “preferred” time-based limitations in digital warrants.

E. Virginia conspiracy, intent, and accomplice liability

• Cartwright v. Commonwealth, 288 S.E.2d 491 (Va. 1982): conspiracy requires concerted action to commit an unlawful offense.
• Amato v. Commonwealth, 352 S.E.2d 4 (Va. Ct. App. 1987) (quoting United States v. Godel, 361 F.2d 21 (4th Cir. 1966)): common purpose may be inferred from collocated circumstances, supporting inference-based conspiracy proof.
• Gray v. Commonwealth, 519 S.E.2d 825 (Va. Ct. App. 1999), aff’d, 537 S.E.2d 862 (Va. 2000); Winston v. Commonwealth, 604 S.E.2d 21 (Va. 2004): defined Virginia conspiracy as a specific-intent crime, and “specific intent” as intent to accomplish the precise act charged.
• Holloway v. United States, 526 U.S. 1 (1977): used (via Simmons) for the proposition that intent may be “conditional” and still qualify as intent to kill.
• Vasquez v. Dotson, 899 S.E.2d 631 (Va. 2024): emphasized that conspiracy to murder is an agreement to commit a future murder that may or may not occur—supporting liability even before a victim is fixed.
• Hancock v. Commonwealth, 407 S.E.2d 301 (Va. Ct. App. 1991): intent may be inferred from intending the immediate, direct, and necessary consequences of voluntary acts (used to infer Canales’s intent from procuring the gun).
• Frye v. Commonwealth, 345 S.E.2d 267 (Va. 1986) and Rollston v. Commonwealth, 399 S.E.2d 823 (Va. Ct. App. 1991): set two routes to aiding-and-abetting liability (overt assistance/incitement or shared intent/previous communication of criminal purpose).
• Sult v. Commonwealth, 275 S.E.2d 608 (Va. 1981) and Dusenbery v. Commonwealth, 263 S.E.2d 392 (Va. 1980): established that while the underlying offense must have been committed by a principal, the principal need not be convicted for the accomplice to be convicted.
• Rhodes v. Commonwealth, 384 S.E.2d 95 (Va. 1989): distinguished first-degree murder (premeditation/specific intent) from second-degree murder (no premeditation requirement), framing Andrade’s instruction argument.

F. Inconsistent verdicts and jury-instruction review

• United States v. Louthian, 756 F.3d 295 (4th Cir. 2014) (quoting United States v. Thomas, 900 F.2d 37 (4th Cir. 1990)): inconsistent verdicts between defendants do not permit a defendant to challenge his conviction based on another’s acquittal.
• Yates v. United States, 354 U.S. 298 (1957): distinguished as inapposite because its invalid-theory problem involved an improperly charged crime, unlike this case.
• United States v. McCabe, 103 F.4th 259 (4th Cir. 2024): provided the abuse-of-discretion/de novo split for instruction choice versus legal accuracy.
• Cupp v. Naughten, 414 U.S. 141 (1973); United States v. Askew, 98 F.4th 116 (4th Cir. 2024) (quoting Noel v. Artson, 641 F.3d 580 (4th Cir. 2011)): required viewing instructions “as a whole,” affirming if they adequately informed the jury of controlling principles.
• United States v. Mogavero, 521 F.2d 625 (4th Cir. 1975): invoked by Andrade, but distinguished because Mogavero involved burden shifting not cured by generic instructions; here, repeated specific instructions cured any arguable defect.

3.2 Legal Reasoning

A. Brady/Giglio: why striking Molina’s testimony was “enough”

The claimed Brady violation concerned the Government’s mid-trial disclosure of a tipster’s identity and contact information that could impeach Molina—whose credibility was already central because he had made inconsistent statements about an earlier double murder. The district court treated the nondisclosure as a Brady violation and, to cure prejudice, instructed the jury to disregard Molina’s testimony.

The Fourth Circuit’s reasoning has three linked steps:

1. Belated Brady evidence warrants relief only if timing blocks “effective use” (United States v. Sterling quoting United States v. Russell), and the choice of sanction is committed to trial-court discretion.
2. Curative instructions can eliminate prejudice, and where a jury can make individual guilt determinations following the instruction, “no prejudice exists” (United States v. Saint Louis quoting United States v. Wallace).
3. The remedy matched the problem: by striking Molina’s testimony, defendants no longer needed the late impeachment material to undermine him; thus the timing defect ceased to matter. The panel then applied the Richardson v. Marsh presumption that juries follow limiting instructions.

The practical message is that, at least where the district court removes the tainted testimony from the jury’s consideration, the Fourth Circuit will be reluctant to require the “extraordinary” remedies of mistrial or new trial absent a specific showing that the instruction could not realistically be followed or that remaining evidence could not support individualized guilt findings.

B. Digital searches: probable cause + particularity in a two-step world

Canales argued the warrants were overbroad: affidavits may have shown probable cause for discrete items, but the warrants permitted a sweeping search of entire phones and cloud accounts. The panel responded by expressly relying on the Fourth Circuit’s “two-step process” described in United States v. Zelaya-Veliz (quoting United States v. Cobb): officers may need to obtain and review large volumes of digital material first, then seize only the evidence tied to enumerated crimes.

Two points are doing the real work:

• Search vs. seizure are analytically separated: while broad review may be authorized to locate responsive evidence, the warrant must still limit what can be seized (here, “fruits, evidence, or instrumentalities” of specified federal offenses). The opinion treats that constraint as the key particularity safeguard.
• Temporal tailoring remains important but not always mandatory: the panel acknowledged (via Zelaya-Veliz and United States v. McCall) that time-based limits are “preferred” and that warrants without them can “raise a problem,” but concluded the warrants here were not problematic on their facts.

The decision also fits into the post-United States v. Lowers landscape by reaffirming that cloud storage is fully within warrant requirements, then evaluating breadth through the particularity lens rather than treating digital breadth as per se unconstitutional.

C. VICAR conspiracy to murder: agreement first, victim later

Andrade argued there was insufficient evidence for a conspiracy to murder Tate because the conspirators set out to kill someone and selected Tate “randomly.” The panel’s answer is doctrinally significant in gang-violence prosecutions: conspiracy does not require that conspirators begin with a named victim; it requires an agreement to commit the unlawful object.

The court tied this to Virginia principles:

• Under Cartwright v. Commonwealth, conspiracy exists when conspirators agree “by some concerted action” to commit the offense.
• Under Amato v. Commonwealth (quoting United States v. Godel), the “common purpose and plan” may be inferred from circumstances that develop and cohere over time.
• Under Vasquez v. Dotson, conspiracy to murder is an agreement to commit a future murder that may or may not occur—underscoring that identification of the ultimate victim is not a necessary starting condition for conspiratorial liability.

Thus, evidence that the group went out with a shared plan to kill, and then collectively acted once Tate was selected, was enough for the jury to find a conspiracy to murder Tate.

D. Conditional intent and absent conspirators: Canales’s liability

Canales attacked the specific-intent element, emphasizing MS‑13 procedures for confirming rival identity and obtaining approval, and noting he was not present at the shooting. The court’s reasoning proceeds on “conditional intent”: an intent to kill conditioned on some criterion (e.g., “if the target is a rival” or “if time doesn’t allow confirmation”) remains intent to kill.

The court relied on United States v. Simmons (using Holloway v. United States) to hold that a conditional kill directive can satisfy Virginia’s specific-intent requirement as recognized in Gray v. Commonwealth and Winston v. Commonwealth. The court also inferred intent from conduct—procuring and providing the gun—under Hancock v. Commonwealth.

E. Aiding and abetting without a convicted principal; inconsistent verdicts

Canales argued he could not be convicted as an accomplice where another shooter (Andrade) was acquitted of murder. The panel made two clarifications:

• Inconsistent verdicts between defendants are not a basis for reversal (United States v. Louthian quoting United States v. Thomas).
• An accomplice may be convicted even if no principal is convicted, so long as the evidence proves someone committed the offense (Sult v. Commonwealth; Dusenbery v. Commonwealth). Here, evidence supported that a different participant (Arevalo) acted as a principal shooter even if Andrade was acquitted.

The panel also applied Virginia aiding-and-abetting doctrine from Frye v. Commonwealth and Rollston v. Commonwealth, emphasizing both “overt act” assistance and “shared criminal intent/communication” routes to accomplice liability.

F. Jury instructions: “second-degree murder” reference and harmlessness in the whole charge

Andrade challenged the instruction stating conspiracy to commit “first- or second-degree murder” requires intent to commit either, arguing Virginia cannot recognize conspiracy to commit second-degree murder because conspiracy is specific intent while second-degree murder lacks premeditation (Rhodes v. Commonwealth).

Without definitively resolving the Virginia-law point, the panel applied the “instructions as a whole” approach (Cupp v. Naughten; United States v. Askew quoting Noel v. Artson), concluding the jury was repeatedly told it must find knowing agreement and intent to murder the decedent. The court distinguished United States v. Mogavero because Mogavero involved burden shifting not cured by generic statements; here, the repeated element-specific directions cured any potential confusion.

3.3 Impact

A. Trial management of mid-trial Brady problems

The opinion reinforces a pragmatic remedial tool: striking the affected witness’s testimony plus a clear curative instruction can be deemed sufficient to cure Brady prejudice—making mistrials/new trials harder to obtain where the court can surgically remove the disputed evidence and the remaining record supports guilt determinations. Future litigants should expect appellate courts to ask: did the remedy eliminate the need for “effective use” of the late disclosure, and can jurors realistically follow the instruction?

B. Digital warrants and privacy: continued validation of two-step execution

The decision continues the Fourth Circuit’s trajectory (especially United States v. Zelaya-Veliz and United States v. Lowers) toward: (i) treating cloud accounts as fully warrant-protected, while (ii) tolerating broad initial review of digital repositories where seizure is cabined to evidence of enumerated offenses. It also signals that time-based limitations are the “preferred” narrowing tool, but their absence will not automatically invalidate a warrant if other particularity constraints sufficiently guide executing officers.

C. VICAR prosecutions: flexible proof of conspiracy and intent

For racketeering/enterprise violence cases, the opinion lowers the practical barrier to proving conspiracy where victims are selected opportunistically: the government need not prove the conspirators set out with a named victim, only a shared murderous objective that crystallizes around the victim when the conspirators act in concert. Additionally, “conditional intent” analysis strengthens the government’s ability to attribute specific intent to higher-ranking participants who arm or authorize subordinates under contingent rules.

4. Complex Concepts Simplified

• Brady evidence: evidence favorable to the defense that the prosecution must disclose; includes both exculpatory evidence and impeachment evidence. Giglio evidence is Brady material that specifically impeaches a witness’s credibility.
• Jencks materials: prior statements of a government witness related to their testimony (often produced near/after direct examination). Mislabeling Brady material as Jencks can create timing prejudice because Brady must be disclosed early enough for effective use.
• Curative instruction/striking testimony: the court tells jurors to disregard a witness’s testimony entirely; appellate courts usually presume jurors follow this direction (Richardson v. Marsh).
• Probable cause: a “fair probability” that evidence of a crime will be found in the place to be searched (Illinois v. Gates).
• Particularity: a warrant must describe what is to be searched and seized to prevent “general rummaging.” In digital cases, courts may allow broad review but require tight limits on what can be seized and often prefer time-based limits.
• VICAR: a federal statute punishing violent crimes committed to maintain or increase position in a racketeering enterprise (18 U.S.C. § 1959).
• Conditional specific intent: intent to kill “if” conditions are met can still count as intent to kill (via Holloway v. United States and United States v. Simmons).
• Aiding and abetting: liability for helping or encouraging the crime, or sharing the criminal intent with the principal (Frye v. Commonwealth). A principal need not be convicted for an accomplice to be convicted if the offense was committed by someone (Dusenbery v. Commonwealth).
• Inconsistent verdicts: one defendant’s acquittal does not invalidate another’s conviction on the same theory/count (United States v. Louthian).
• Instructions “as a whole”: appellate courts evaluate the entire jury charge together, not one phrase in isolation (Cupp v. Naughten).

5. Conclusion

This unpublished Fourth Circuit decision affirms (1) a restrained but powerful Brady remedy—striking testimony and instructing the jury to disregard it—as sufficient absent a concrete showing that jurors could not compartmentalize; (2) the constitutionality of digital warrants that employ a two-step review-then-seize model so long as seizures are limited to enumerated crimes and the warrant is not impermissibly untethered; and (3) flexible but doctrine-grounded approaches to VICAR/Virginia conspiracy and accomplice liability, including conspiracies formed before a victim is identified and “conditional intent” supporting specific-intent requirements.