Virginia street gang crimes can be a class 5 felony, says Fairfax criminal lawyer

Virginia street gang law makes it a class 5 felony (1) to participate in or be a member of a criminal street gang, and (2) to knowingly and willfully participate in any predicate criminal act (3) committed for the benefit of, at the direction of, or in association with any criminal street gang. Va. Code § 18.2-46.1. As a Fairfax criminal lawyer, I know that “criminal street gang” means “any ongoing organization, association, or group of three or more persons, whether formal or informal, (i) which has as one of its primary objectives or activities the commission of one or more criminal activities; (ii) which has an identifiable name or identifying sign or symbol; and (iii) whose members individually or collectively have engaged in the commission of, attempt to commit, conspiracy to commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of violence, provided such acts were not part of a common act or transaction.” Va. Code § 18.2-46.1. This summer, the Virginia Court of Appeals affirmed the Fairfax County Circuit Court jury conviction of Armando Dagoberto Reyes Reyes for abduction, in violation of Virginia Code § 18.2-47, first-degree murder, in violation of Va. Code § 18.2-32, concealing a dead body, in violation of Va. Code § 18.2-323.02, and criminal street gang participation, in violation of Va. Code § 18.2-46.2. Reyes got slammed with a prison sentence of life plus twenty years incarceration. Reyes v. Virginia, Record No. 0525-21-4 (Va. App., June 21, 2022) (unpublished).

Should I speak with police to deflect my exposure to criminal prosecution and conviction?

You have the right to remain silent with police for a reason. Suspects, arrestees and criminal defendants who waive their Constitutional Fifth Amendment right to remain silent with law enforcement and to have a lawyer present during any questioning are engaging in high risk behavior. Reyes created his own prison cell by first waiving his right to remain silent when he told police that he did not kill the victim but was ordered by threat to bury his body, in what was a shallow grave. Later, he completely changed his story to the police by telling them that he fought the victim because he was attempting to use black magic to force Reyes’s girlfriend to become the decedent’s girlfriend.  Reyes was so desperate that he waived his right to remain silent at trial, and admitting to the jury that he and an accomplice punched and kicked the victim multiple times. As to Virginia street gang law, Reyes testified that his social media photos showed him making MS-13 (Mara Salvatrucha) signs only out of pretending to belong to that gang known for being very violent to say the least. Reyes. 

Why would a judge in a Virginia street gang trial permit a so-called expert witnesses to testify about the defendant’s alleged gang membership?

Reyes’s girlfriend testified that Reyes was an MS-13 member, and one of his accomplices, Carillo, told the jury that he helped bury the victim’s body, saying Reyes was a “homeboy,” which authorized him to give orders as an MS-13 member. Carillo was “fearful that appellant could retaliate if Carillo did not comply.” Over Reyes’s attorney’s objection, a police witness qualified by the trial judge as a gang expert told the jury that the case evidence indicated that Reyes is an MS-13 homeboy. Such testimony goes to the ultimate issue to be decided by the jury and not to be testified to. “The Virginia Rules of Evidence forbid an expert witness from testifying about an ultimate issue of fact. See Va. R. Evid. 2:704(b).” Reyes. Nonetheless, on appeal Reyes already conceded that he was an MS-13 member, which satisfied the third prong the Virginia street gang prohibition, which is that the criminal act must be committed for the benefit of, at the direction of, or in association with the gang. Consequently, Reyes refuses appellate relief for the trial court’s allowing such expert testimony, stating that “the testimony elicited from other witnesses, along with appellant’s concession on brief, establish that if the detective’s testimony should have been excluded, any error that the court made in allowing it was harmless.”

What should I do if charged with a crime in the Fairfax court or other criminal court in Virginia?

Reyes and his girlfriend fled to Florida to avoid prosecution, where Reyes’s alleged crimes included murder and the Virginia street gang law. A jury is permitted to consider flight as evidence of consciousness of guilt. Reyes was extradited back to be prosecuted in the Fairfax court, which is across the street from my office. Once Reyes knew that he was an actual or potential suspect for such serious criminal accusations, he should have consulted with a qualified lawyer and should never have waived his Fifth Amendment right to remain silent with police. If you are ever accused of or prosecuted for an alleged crime, keep in mind Reyes’ fatal error in waiving his right to remain silent with law enforcement, and his risk of his flight being used against him at trial.

Fairfax and Virginia criminal prosecutions are serious matters that call for timely obtaining the right lawyer for you. Fairfax criminal lawyer Jonathan Katz has the proverbial courthouse battle scars from successfully defending those accused of Virginia DUI, felony and misdemeanor offenses. Criminal and DWI defense constitutes 99% of Jon Katz’s law practice. Call 703-383-1100 for your free in-person confidential initial consultation with Jon.