The MS-13 snitch who provided federal agents with information that led to the mega-indictment of the transnational gang -- and recorded alleged murder confessions that will be allowed as evidence
in an upcoming Superior Court trial -- wants a new trial of his own.
Roberto "Bad Boy" Acosta, whom we wrote about in our March cover story "A Rat's Life,"
was convicted in federal court over the summer of lying to the government about how many people he'd killed in his native Honduras.
But in a dramatic move during what was scheduled to be Acosta's sentencing hearing in October, Judge Charles Breyer instead fired Acosta's defense attorney
and assigned him a new one. Breyer excoriated both the old attorney and the U.S. prosecutors for not considering the likely fact that Acosta will be killed if deported to Honduras after he finishes his jail time.
This is getting interesting.
In a motion filed on Nov. 16, Acosta's new attorney, Dennis Riordan, argued that Acosta should either be acquitted or get a new trial because the government presented a confusing case that didn't prove Acosta's lying to them was relevant to the federal MS-13 prosecution.
In proving a false statement to the government, prosecutors must not only prove the statement was a lie, but that it "mattered to something," Riordan says. In this case, the prosecutors could have proven that the lie rendered Acosta an unusable informant or an unusable witness. But Riordan says they failed at both.
Prosecutors didn't present sufficient evidence that the government couldn't use Acosta as a witness because he lied: the evidence at Acosta's trial didn't establish whether Acosta was used in the trial or not, and the prosecution didn't call a prosecutor as a witness to talk about why Acosta's lie made him unusable, the filing argues.
Muddying the waters further, the court's instructions to the jury before deliberations were that jurors were deciding whether Acosta's lie made him unusable as an informant by his Immigration and Customs Enforcement handlers. But at the time Acosta told the lie in December 2008, Acosta was done as an ICE informant. The indictment of the gang that owed much to his recordings and cooperation had already happened, in October 2008.
As if this didn't make the case confusing enough, during closing statements, prosecutors told jurors about additional lies Acosta had told his handlers, while he was only actually charged with making one false statement, according to the filing. The government never made clear exactly which specific lie the jury was supposed to be focusing on.
Judge Breyer will be hearing the motion for a new trial on Dec. 14.
Meanwhile, Acosta's secret recordings of the gang's conversations continue to be important evidence in ongoing MS-13 trials. As reported in the Examiner
, a San Francisco Superior Court judge ruled in favor of admitting Acosta's tape of two suspects allegedly bragging about stabbing 14-year-old Ivan Miranda to death in 2008 into evidence in the up-coming trial.
The upshot: Prosecutors don't know whether to love Bad Boy or hate him.Follow us on Twitter at @SFWeekly and @TheSnitchSF