The recent decision by the US government to charge MS13’s top leaders in El Salvador with terrorism is either a sign of how little they understand the gang or a sign of how well they understand their own justice system.
The December 2020 indictment, which was released on January 14, said 14 leaders of the Mara Salvatrucha (MS13), most of whom are in jail in El Salvador, directed their members to commit murders in the United States, establish training camps in El Salvador, and obtain assault rifles, improvised explosive devices (IEDs) and rocket-propelled grenades to commit acts of violence in both places.
The indictment also says the leaders directed extortion and drug trafficking in the US. Part of the proceeds were sent to El Salvador where the gang allegedly used them to further their ends, which included interacting and providing support for the country’s political parties and using murder as a lever in a so-called “truce” so they could obtain more favorable conditions in prison and “cash payments.”
The indictment has brought the fight against the MS13 full circle. In 1988 – in the throes of the crack epidemic and rising homicide rates in places like Los Angeles where the MS13 born earlier that decade – the California state legislature passed the Street Terrorism Enforcement and Prevention (STEP) Act. Although it had terrorism in the name, the law likened gangs to the mafia.
“‘Criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts,” lawmakers wrote, echoing wording later used by the United Nations in describing transnational organized crime.
The law was supposed to curb gang activity, which, according to a later study by Journal of the American Medical Association (JAMA), was responsible for close to 500 murders that year in Los Angeles County alone. It criminalized gang affiliation and gave prosecutors the possibility of requesting sentencing “enhancements” for gang-related criminal acts or for those that occurred near a school. In a preview of even more draconian measures to come, its penalties reached life imprisonment for crimes that would have been measured in years under previously established legal codes.
The STEP Act, and subsequent laws that followed, were designed to deter gangs, but few were deterred. Crime kept rising. By 1992, the JAMA study said, there were just under 1,000 gang-related killings in Los Angeles County. Arrests followed – in 1992, there were 167,807 felony arrests of Hispanic males in Los Angeles County alone. Prisons ballooned with MS13 and other Latino gang members, many of whom included the eventual leadership of the MS13 who were later deported to Central America where they were arrested again and set up shop in the country’s prisons.
In a way, the STEP Act was the original sin in the fight against gangs, the one that established the framework through which policymakers saw gangs for the next 30 years: as organized crime groups. And the US Department of Justice (DOJ) picked this up, using their own mafia-like legal tools to prosecute the MS13.
The most notable of these tools is the Racketeer Influenced and Corrupt Organization Act (RICO). RICO was created to fight organized crime, but prosecutors found that it allowed them to bundle gang members into mafia-like conspiracies as well. In the 1990s, prosecutors successfully tested these statutes on the prison gang known as the Mexican Mafia and the MS13’s main rival, Barrio 18, in cases in California. By the mid-2000s, federal authorities were charging MS13 members in RICO cases.
RICO is an incredibly powerful legal tool. And defense attorneys say it is often abused, with some of them referring to it as the “Alice in Wonderland” statute because, they say, it allows prosecutors to imagine any scenario to fit their case. Indeed, both RICO and terrorism cases are, at their core, conspiracy cases, allowing prosecutors to indict the hard-to-reach criminal leaders who keep themselves at arms distance from the criminal activities of their underlings.
The idea of conspiracy has evolved to favor prosecutors. In conspiracies, defendants can be guilty of crimes they have no knowledge of and have partners whose names they don’t know or with people they have never met. Prosecutors can enter circumstantial evidence and use exceptions to the hearsay rule.
However, in reality, most gangs were not like the Mafia, which was involved in drug trafficking, political corruption and other sophisticated criminal schemes. The MS13, for example, was bad at dealing drugs – their members smoked it, stole it or just simply didn’t want to deal with it since it exposed them to serious jail time.
The same is true on an international level. The MS13 has thousands of members and hundreds of cells operating across a wide expanse that covers some of the most lucrative drug distribution routes and sales points in the world. But entrepreneurial leaders that have tried to steer the MS13 towards trafficking drugs have been sidelined, ostracized, or simply realized the gang was not ready to do the job.
The most famous of these entrepreneurial leaders was Nelson Comandari, a Salvadoran whose family had ties to the Central American underworld and Colombian drug trafficking organizations. Comandari used those ties to obtain supplies for the gang and others, most notably the gang’s mentors, the Mexican Mafia. Comandari even tried to unify the gang’s disparate cells in the West Coast to those on the East Coast but to no avail.
Frustrated, he started working outside the gang’s circles. A look at his organizational chart (below) shows how Comandari’s inner circle included just two MS13 members. The rest were Mexican Mafia (denoted with the letters “EME” below) and others. His operations, which had begun in Los Angeles, moved further afield until prosecutors in New York picked up his scent, and he was captured in Texas in 2005. He later became a protected witness in RICO cases against his former MS13 colleagues.
Comandari’s prosecution did not deter some of his mentees who also tried to establish drug trafficking operations. Like Comandari, they mostly operated outside of the gang’s purview, choosing instead to work with and try to ingratiate themselves with the Mexican Mafia, who eventually accepted a few of them as members. But ultimately, they too failed. The most recent of these was Nelson Alexander Flores, alias “Mula,” who was captured in Tijuana and later sent to Ohio to face trial.
These MS13 members might have been drug traffickers, but the MS13 was not a drug trafficking organization. It was built more on shared origins, social connections, experiences, interests and collective acts of violence than on criminal proceeds.
In this way, it parallels terrorist groups whose allure to the wayward, isolated, disaffected and abused youth is similar to that of gangs, as another part of the US government, the Agency for International Development (USAID), noted in its own research in 2016.
Criminal investigators eventually noticed as well.
“The DNA of a gang and the DNA of a terrorism group are more similar” than to the DNA of a drug trafficking organization, one US investigator said when asked about the logic behind charging gangs with terrorism.
The realization gave rise to the idea to prosecute the gangs as terrorists. It helped that the Trump administration had made the gangs enemy number one and that El Salvador’s Supreme Court had designated the MS13 as a terrorist group in a ruling in 2015. In 2019, then-Attorney General William Barr signed off on it after a visit to El Salvador, and in July 2020, Barr, standing next to Trump in the oval office, unveiled its first terrorist case against Armando Eliu Melgar Díaz, alias Blue, a mid-level leader who is still awaiting extradition. The second case was the one against the 14 leaders unveiled on January 14.
But the cases are not clear-cut winners. The gang has not been designated a terrorist organization by the State Department, a logical precursor to any terrorist case. Even the USAID’s own research goes to great lengths to differentiate gangs from “violent extremist organizations.”
“Street gangs function to provide solidarity among peers and exert control over local turf,” the report says. “Violent extremist groups, on the other hand, exist foremost to pursue ideological or political goals.”
SEE ALSO: MS13 Profile
To deal with these issues, US prosecutors have skillfully crafted a political story in their indictment of the MS13 leadership released on January 14. For example, they argue that the gang leadership “blamed the end of ‘the truce’ on the United States.” The US was against the truce, but this was only part of the reason the truce ended, and gang leaders were well aware that local, as well as international resistance, to the truce was to blame for its demise.
The indictment adds that after the truce, the gang tried to “force the government of El Salvador into new negotiations” by increasing “violence and murders, especially of police officers and government officials.” This is also partly true: Violence against authorities did increase. However, this was the equivalent of political blackmail to return to the better conditions inside prison, not political grandstanding to change the Salvadoran government.
“It’s really just an all-tools approach,” a Justice Department official who works on these cases told InSight Crime, after the DOJ indicted Melgar Díaz in 2020. “You see the activities…You look at the statutes, and it fits.”
Without question, as InSight Crime noted in a previous article, the terrorism charge opens up another legal front in the fight against international street gangs. And those working on the cases admit they are lured by the prospect of longer sentences and having no statute of limitations that the terrorism charge affords them.
But some defense lawyers wonder why terrorism charges are needed at all given that the severity of the underlying crimes such as homicide and drug trafficking would get the same effect. And other defense lawyers worry it may engender more abuse of the legal system.
“My concern is that using the terrorist charge here for an organization the State Department has not designated as a terrorist organization is that this statute, much like the RICO statute, will become a prosecutorial tool in investigations for which it was not intended by Congress,” said Bonnie Klapper, a former federal prosecutor known for charging international drug trafficking organizations.
US officials working on these issues told InSight Crime they realize charging the gang leadership with terrorism is not a panacea for the MS13. And they insisted that terrorism charges would be used sparingly and only in cases where the local government had designated the group as terrorists.
But the long battle against the MS13 illustrates that there are few boundaries US crime fighters will not cross.
*Dudley is co-director of InSight Crime and the author of “MS13: The Making of America’s Most Notorious Gang” (HarperCollins 2020).