The US government’s terrorism case against the MS13 opens a new frontier in fighting international street gangs.
On January 14, the Eastern District of New York made public a December 2020 indictment of 14 leaders of the Mara Salvatrucha (MS13), 11 of whom are in El Salvador prisons. Specifically, the indictment charges them with four counts: 1) conspiracy to provide material support and resources to terrorists; 2) conspiracy to commit acts of terrorism; 3) conspiracy to finance terrorism; 4) narco-terrorism.
This is the second indictment with a terrorism charge against an MS13 gang member. The first against Armando Eliu Melgar Díaz, alias “Blue,” became public in July 2020. But this one is much more ambitious since it targets the hierarchy of the gang.
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The wide-ranging indictment says these acts began in 2002, when the leaders created the organizational chart of the MS13 while they were incarcerated in a Salvadoran prison. The gang had long been organized by cliques, by then spread mostly throughout El Salvador, Guatemala, Honduras, Mexico and the United States.
But in 2002, the leaders created what they called the “ranfla nacional” (national board of directors) and “programs,” which grouped together numerous cliques under a single umbrella and “corredor” (leader). Eventually, there were programs across that geographic expanse, including the East Coast Program, the New York Program and the Los Angeles Program.
The new system gave these leaders command and control over many parts of the gang, according to the indictment, thus allowing them to allegedly engage in the above-mentioned terrorist acts from mostly El Salvador but also in places like Mexico, where leaders had made connections with criminal organizations such as the Zetas and Gulf Cartel.
Specifically, the indictment says they used violence to “obtain concessions from the government of El Salvador, achieve political goals, and retaliate for government actions against MS13’s members and leaders.”
The indictment claims the group organized special training, collected money to purchase a wide array of weapons including “rocket launchers,” developed improvised explosive devices (IEDs), as well as “engaged in public relations efforts; controlled neighborhoods; and directed acts of violence and murder in El Salvador, the United States and elsewhere.”
Further, the indictment says, the MS13 leaders used their power to “retaliate against the United States for actions, or perceived actions, taken against MS13 and its leaders.”
In this regard, the indictment mentions “the truce,” a temporary and partial ceasefire between El Salvador’s main gangs brokered by the government in early 2012. The truce led to lower levels of violence but resulted in concessions for gang leaders, including those in the ranfla, such as being transferred out of a maximum-security prison, conjugal visits, wild parties and possibly cash payments.
The truce began to unravel in 2013 and came apart completely in the months that followed. The indictments say it ended in 2015, and says “the Ranfla Nacional blamed the end of ‘the truce’ on the United States,” which the leaders believed “had pressured the government of El Salvador to end ... as a condition of receiving funds from the United States.”
While the indictment is long on accusations, it is short on details with few aspects of the actual criminal acts described in the 30-page document. However, it does describe the efforts to create a special forces unit to attack authorities, as well as the gang’s interactions with the country’s main political parties to help them secure votes.
InSight Crime Analysis
For many reasons, terrorism charges open a new door for US prosecutors to pursue international street gangs.
First, there is no statute of limitations on terrorism charges, “if the commission of such offense resulted in, or created a foreseeable risk of, death or serious bodily injury to another person.” This is exactly what the United States is alleging (and in this case, it dates the commission of these crimes back to 2002).
Second, terrorism cases have stiffer penalties. Depending on the underlying crimes in question, the sentencing guidelines call for an “upward departure,” which could equate to many more years in jail. What’s more, there is a question of where the suspects or those sentenced might be held. Accused and convicted terrorists have been held in extraordinary conditions, including on airplanes, in ships and in a prison in Cuba. Extracting the ranfla from the Salvadoran prison system would be a message in and of itself; extracting the ranfla and placing them in extraordinary prisons might drive home an even stronger message.
Third, the charge might facilitate extradition in part because El Salvador’s own Supreme Court declared the MS13 a terrorist group in 2015. To be sure, the designation played a role in the US decision to try this new legal strategy, which was first hatched while then-US Attorney General William Barr visited El Salvador in May 2019, not long after he was named to his position. El Salvador is known to be more reluctant -- or at least less agile -- in extradition cases. To wit, a recent US Justice Department report said that between 2016 and 2020, El Salvador extradited 13 members of the MS13. By comparison, Guatemala extradited 35 MS13 suspects during that same time period.
Fourth, terrorism cases open the door for more direct US investigations. Specifically, authorities can use Foreign Intelligence Surveillance Act (FISA) warrants for electronic surveillance for foreign intelligence purposes, which means the United States can work directly on the cases instead of relying on others’ wiretaps and evidence.
Fifth, the United States had not had a lot of success charging MS13 with international drug trafficking. This is because the MS13 is not an international drug trafficking organization. Terrorism exposes the gang’s leaders to US indictments, whereas they have kept more than an arms distance from other prosecutions.
Sixth, US prosecutors appear to be positioning themselves for more prosecutions against transnational gangs using terrorism statutes. These statutes are broad, and while they are parallel to legal tools such as the racketeering statutes (known by their acronym RICO), those using them see them as even more pliable to their needs. “RICO-light” is the way one investigator described it to me. The targets for these investigations would include not just MS13 but also its main rival, the 18th Street, and prison gangs based in the United States and Mexico, like the Mexican Mafia.
*Dudley is co-director of InSight Crime and the author of “MS13: The Making of America’s Most Notorious Gang” (HarperCollins 2020).