United States v. Rivera-Carrasquillo , 933 F.3d 33 ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 14-1582
14-1631
14-1715
17-1317
17-1729
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS D. RIVERA-CARRASQUILLO, a/k/a Danny KX, a/k/a Danny Vorki;
EDWIN BERNARD ASTACIO-ESPINO, a/k/a Bernard, a/k/a Bernal;
RAMÓN LANZA-VÁZQUEZ, a/k/a Ramoncito,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Peter Goldberger for the consolidated appellants and on
brief, with Pamela A. Wilk, for appellant Luis D. Rivera-
Carrasquillo.
Inga L. Parsons for the consolidated appellants and on brief
for appellant Ramón Lanza-Vázquez.
Mariem J. Paez on brief for appellant Edwin Bernard Astacio-
Espino.
Victor O. Acevedo-Hernández, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Francisco A. Besosa-
Martínez, Assistant United States Attorney, were on brief, for
appellee.
August 2, 2019
THOMPSON, Circuit Judge.
Overview
For many years, a vicious gang called "La ONU" committed
unspeakably brutal crimes in Puerto Rico, raking in millions of
dollars from drug sales and killing anyone (and we mean anyone) in
its way — police officers, defectors, rivals in the "La Rompe ONU"
gang, you name it.1 Law enforcement eventually took La ONU down,
however. And a federal grand jury criminally indicted scores of
its members, including appellants Astacio-Espino, Lanza-Vázquez,
and Rivera-Carasquillo (their full names and aliases appear in our
case caption).2 A bone-chilling read, the superseding indictment
(the operative indictment in this case) accused each of these three
gangbangers of doing some or all of the following:
 conspiring to violate the Racketeer Influenced and Corrupt
Organizations Act, see 18 U.S.C. 1961(d) — familiarly called
the RICO conspiracy statute;
 aiding and abetting violent crimes in aid of racketeering,
namely murder or attempted murder under Puerto Rico law, see
18 U.S.C. 1959(a) — commonly called the VICAR statute;
1For the backstory on how La ONU and La Rompe ONU came to
be, check out United States v. Ramírez-Rivera, 800 F.3d 1, 12-13
(1st Cir. 2015). And as we did there, from now on we will refer
to La Rompe ONU as "La Rompe."
2We will sometimes refer to them collectively as "our
appellants" or just "appellants."
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 aiding and abetting the use and carrying of firearms during
VICAR murders, see 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1) and
(2);
 knowingly transferring a firearm for use during VICAR
murders, see 18 U.S.C. § 924(h);
 conspiring to engage in drug trafficking, see 18 U.S.C.
§§ 846, 860; and
 conspiring to possess firearms during drug-trafficking
crimes, see 18 U.S.C. § 924(o).
After Astacio-Espino moved unsuccessfully to suppress
material seized by the government, the case went to trial. And
the evidence there painted a damning picture of what the trio did
with La ONU, as a sampling makes clear.
A drug-point owner and enforcer (an enforcer hunts down
and kills "the enemy," by the way), Astacio-Espino helped murder
a police officer and a La Rompe member known as "Pekeke" (whose
real name was Christian Toledo-Sánchez).3 Lanza-Vázquez also was
a drug-point owner and enforcer. Along with other La ONU members,
he helped kill someone thought to be a "squeal[er]." Rivera-
Carasquillo was not just a drug-point owner and enforcer. He was
a leader too. He also participated in Pekeke's slaying. And he
3The nickname is variously spelled in the record. We adopt
the spelling employed in the parties' briefs.
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helped murder someone accused of shooting at a La ONU leader as
the leader drove through a La Rompe-allied area. Rivera-
Carasquillo choked him while others from La ONU stomped on his
chest until he died. To send a message, apparently, Rivera-
Carasquillo (according to a cooperating witness) "went at" the
person "with [an] AK [rifle] and just removed his face" — i.e.,
Rivera-Carasquillo "[e]rased his face."
Taking everything in — testimony from cooperating
coconspirators, law-enforcement officials, and forensic-science
experts; autopsy and crime-scene photos; physical evidence in the
form of seized guns, ammo, and drugs, etc. — the jury found
Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo guilty as
charged. And the district judge imposed a number of sentences on
them, including life sentences (because they do not contest their
sentences, we need say no more about that subject).
Hoping to score a new trial, Astacio-Espino, Lanza-
Vázquez, and Rivera-Carasquillo later filed two post-trial motions
— one claiming that a partial closure of the courtroom during jury
selection constituted "plain, reversible error," and the other
alleging that a cooperating witness in a related case had given a
different account of Pekeke's murder. But they had no success.4
4So far as relevant here, two district judges had roles in
today's case: Judge José Antonio Fusté, now retired, handled
everything except the new-trial activity, which then-Chief Judge
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Now before us, Astacio-Espino, Lanza-Vázquez, and
Rivera-Carasquillo press a variety of claims. We tackle the claims
one by one below, highlighting only those facts needed to put
things in perspective. But for those who want our conclusion up
front: after slogging through the issues, we affirm the contested
convictions.5
Suppression Claim
Background
Astacio-Espino moved pretrial to suppress a cache of
guns and drugs seized during the warrantless search of a house
(and the SUV garaged there) belonging to Ismael E. Cruz-Ramos — a
person indicted with our appellants but whose trial was before a
different district judge: Judge William E. Smith (of the District
of Rhode Island, sitting by designation), rather than Judge Fusté.
Aida M. Delgado-Colón took care of after Judge Fusté left the
bench.
5 Appellants try to adopt each other's arguments — something
they can do if they "connect the arguments adopted with the
specific facts pertaining" to them. See United States v. Bennett,
75 F.3d 40, 49 (1st Cir. 1996) (discussing Fed. R. App. P. 28(i));
see also United States v. David, 940 F.2d 722, 737 (1st Cir. 1991)
(noting that arguments adopted by reference "must be readily
transferrable from the proponent's case to the adopter's case").
The government thinks none of them has sufficiently shown that he
is in the same factual or legal boat as the proponent of each
issue. But because the arguments raised are not winning ones, we
will assume without deciding that each appellant effectively
joined in the issues that relate to his situation. See Ramírez-
Rivera, 800 F.3d at 11 n.1 (taking a similar tack).
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Cruz-Ramos had moved earlier to suppress the same evidence taken
during the same search. And Judge Smith gave him a split decision,
suppressing (for reasons not relevant here) some items (rifles)
but not others (handguns and drugs). Convinced that he had
"standing" to challenge the search as an "overnight guest" of Cruz-
Ramos, Astacio-Espino asked Judge Fusté to suppress everything.6
To back up his overnight-guest claim, Astacio-Espino relied
heavily on an untranslated Spanish-language declaration by Cruz-
Ramos. The next day, Judge Fusté entered an electronic order
stating that he was "respecting Judge Smith's ruling on these
issues" — though a day later he clarified that he would "not
extend[]" his colleague's edict "to parties without standing" and
that he would "decide the same in the context of trial." When
trial came, Judge Fusté ended up "respect[ing]" Judge Smith's
order. So Judge Fusté suppressed the rifles, but not the handguns
or the drugs — though without explaining why he thought Astacio-
Espino had standing, even though the government seemingly sought
one.
6
Lawyers and judges occasionally use the word "standing" in
search cases, not in the Article III sense but as a shorthand
reference in discussing whether a defendant claiming a Fourth
Amendment right has a personal interest that the search infringed
(more on the personal-interest stuff in a moment). See United
States v. Bain, 874 F.3d 1, 13 (1st Cir. 2017); United States v.
Kimball, 25 F.3d 1, 5 n.1 (1st Cir. 1994).
- 7 -
Arguments and Analysis
Seeking to undo what Judge Fusté did, Astacio-Espino
pins his hopes on a straightforward theory. Fairly recently, he
notes, a panel of this court partially reversed Judge Smith's
suppression ruling in Cruz-Ramos's case. See Ramírez-Rivera, 800
F.3d at 27-33 (holding that the police lacked probable cause for
the search and that neither the good-faith exception to
exclusionary rule nor the harmless-error doctrine applied).
Proclaiming himself "an overnight guest at [Cruz-Ramos's]
residence," he insists we should reverse Judge Fusté's suppression
decision too, since Judge Fusté simply adopted Judge Smith's now-
discredited ruling. Not to be outmaneuvered, the government
identifies three supposed bases for affirming Judge Fusté's
ruling: Astacio-Espino's failure to argue in his opening brief
that he had a legitimate expectation of privacy sufficient to show
standing to contest the search; Astacio-Espino's reliance on the
untranslated Spanish-language document to establish his status as
an overnight guest at Cruz-Ramos's house; and the harmlessness of
any error (if error there was) on Judge Fusté's part, given the
overwhelming evidence of Astacio-Espino's guilt.
Reviewing the issue afresh ("de novo," in law-speak),
see United States v. Orth, 873 F.3d 349, 353 (1st Cir. 2017) —
knowing too that we can affirm on any basis supported by the
- 8 -
record, see United States v. Arnott, 758 F.3d 40, 43 (1st Cir.
2014) — we think the government has the better of the argument.
Fourth Amendment rights are personal ones. See, e.g.,
Rakas v. Illinois, 439 U.S. 128, 133 (1978). So a criminal
defendant wishing to challenge a search must prove that he had "a
legitimate expectation of privacy" in the searched area, id. at
143 — i.e., he must show that he "exhibited an actual, subjective,
expectation of privacy" and that this "subjective expectation is
one that society is prepared to recognize as objectively
reasonable," United States v. Rheault, 561 F.3d 55, 59 (1st Cir.
2009); see also United States v. Werra, 638 F.3d 326, 331 (1st
Cir. 2011). An overnight guest generally has a reasonable
expectation of privacy in his host's home. See, e.g., United
States v. Almonte-Báez, 857 F.3d 27, 32 n.4 (1st Cir. 2017) (citing
Minnesota v. Olson, 495 U.S. 91, 96-97 (1990)). The problem for
Astacio-Espino is that he supported his overnight-guest claim with
a Spanish-only declaration — a problem, because judges cannot
consider untranslated documents. See, e.g., United States v.
Quiñones-Otero, 869 F.3d 49, 53 (1st Cir. 2017) (citing the Jones
Act, 48 U.S.C. § 864; González-de-Blasini v. Family Dep't, 377
F.3d 81, 88 (1st Cir. 2004); and Dávila v. Corporación de Puerto
- 9 -
Rico Para La Difusión Pública, 498 F.3d 9, 13 (1st Cir. 2007)).7
And this evidentiary gap devastates his suppression argument,
because "a failure to present evidence" on the "reasonable privacy"
front "prevents a defendant from making a claim for suppression
under the Fourth Amendment." See United States v. Samboy, 433
F.3d 154, 161-62 (1st Cir. 2005).8
Anonymous-Jury Claim
Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo
criticize the judge for empaneling an anonymous jury. But they
concede that Ramírez-Rivera — a decision disposing of appeals
brought by some of their coindictees — forecloses their argument,
and they raise the point only to preserve the issue "for future
consideration." Enough said about that, then.
Partial-Courtroom-Closure Claim
Background
While their appeals were pending, Astacio-Espino, Lanza-
Vázquez, and Rivera-Carasquillo jointly moved the district judge
7 Astacio-Espino says in his reply brief that materials he
has not given us — FBI interview memos (known as "302" reports)
and the statement of facts in Cruz-Ramos's plea agreement — confirm
he stayed over Cruz-Ramos's house several times. This does not
help him, however, because an appellant waives any argument not
made in his "opening brief but raised only in [his] reply brief."
Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 25 (1st Cir.
2018).
8 We thus need not address the government's other arguments
for affirming the judge's suppression ruling.
- 10 -
to supplement the record on appeal, arguing that a post-trial
investigation by counsel revealed that "official personnel" had
kept some of appellants' friends and family from attending jury
selection. See Fed. R. App. P. 10(e)(2); see also United States
v. Pagán-Ferrer, 736 F.3d 573, 581-84 (1st Cir. 2013) (discussing
Fed. R. App. 10(e)). And they asked the judge to hold a hearing
and make findings of fact on the matter.
After some procedural wrangling not relevant here, the
judge decided to hold an evidentiary hearing. Pertinently for our
purposes, appellants called six witnesses: Astacio-Espino's
mother (Francisca Espino); Lanza-Vázquez's former girlfriend
(Betzaida Caballero-Ortiz); Rivera-Carrasquillo's father (Héctor
Rivera-Rosa), mother (Maribel Carrasquillo), and trial counsel
(José Aguayo); and Lanza-Vázquez's and Rivera-Carrasquillo's
friend (Juan Carlos Ramos-Piñeiro). The government, for its part,
called two witnesses: a former court security officer (Héctor
Villavicencio) and a courtroom deputy clerk (Ana Romero), both of
whom had been assigned to the courtroom for jury selection in
appellants' case.
Reduced to bare essence, appellants' witnesses testified
that when the courtroom opened around 9:00 a.m., a man stationed
at the door — thought by some to be a United States marshal — said
that only one family member per defendant could go in (Lanza-
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Vázquez's ex-girlfriend testified that the man told her only
potential jurors could go in). No prospective jurors were in the
courtroom when this happened. And none of the witnesses could
give a good physical description of the man.
As for the government's witnesses, the court security
officer pertinently testified that he got to the courtroom at 9:00
a.m. on the day of jury selection, opened the doors, and did not
stop anyone from coming in. Asked whether he "at any time [told]
anyone that they could not come in," he replied "no." He added
that the judge handling jury selection (Judge Fusté) had always
instructed him to let the public in. He also noted that he only
left the door when he had to hand prospective jurors papers or a
microphone (potential jurors used the mic in responding to
questions asked during voir dire — a process that allows counsel
and the judge to see if there are grounds to challenge a possible
juror, for example). And the courtroom deputy relevantly testified
that once the judge excused a potential juror, the excused person
would leave through the courtroom's front door. She also said
that she saw members of the public sitting in benches reserved for
them. And asked whether "it ever appear[ed]" that the benches
were "so full that no one else could be there," she answered "no."
In a post-hearing rescript, the judge found that each of
the "family/friend witnesses had much to gain by alleging that
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they were prevented from entering the courtroom," given how their
loved ones faced spending the rest of their lives behind bars.
Noting that two years had passed before the witnesses alleged a
man had restricted access to the courtroom and that none of them
could give a physical description of the man, the judge found it
"difficult to consider their testimony credible." But the judge
had no difficulty crediting the court security officer's testimony
about opening the courtroom around 9 a.m. and not stopping anyone
from entering. And "[h]aving been present during jury voir dire,"
which put him "in the best position to determine the credibility"
of the testifying witnesses, the judge found "that the courtroom
was not closed, neither partially nor fully and neither expressly
nor impliedly, during the jury voir dire" in this case.
Arguments and Analysis
Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo
believe the record shows that a partial courtroom closure occurred,
which, they continue, violated two constitutional provisions:
Article III, by delegating the closure decision to a non-judicial
officer; and the Sixth Amendment, by depriving them of their right
to a public trial. The government's principal response is that
the judge committed no clear error in finding no courtroom closure
here. We side with the government.
- 13 -
Appellants and the government — who agree on little else
— agree that we must give clear-error review to the judge's no-
courtroom-closure finding and plain-error review to appellants'
unpreserved legal arguments. See United States v. Negrón-Sostre,
790 F.3d 295, 301 (1st Cir. 2015) (applying those standards in a
similar situation). We begin and end with the judge's no-
courtroom-closure finding, knowing that winning a clear-error
challenge is no easy thing because the challenger must show that
the contested finding stinks like "a 5 week old, unrefrigerated,
dead fish." See Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41,
46 (1st Cir. 2013) (quoting S Indus., Inc. v. Centra 2000, Inc.,
249 F.3d 625, 627 (7th Cir. 2001)). Put less colorfully, the
challenger must do more than show that the finding is "probably
wrong," for we can reverse on clear-error grounds only if — after
whole-record review — we have "a strong, unyielding belief" that
the judge stumbled. See id. (emphasis added) (quoting Islamic
Inv. Co. of the Gulf (Bah.) Ltd. v. Harper (In re Grand Jury
Investigation), 545 F.3d 21, 24 (1st Cir. 2008)).
Appellants' clear-error argument turns entirely on their
claim that the judge should have believed their witnesses over the
government's. As an example, they contend that the "demeanor" of
their witnesses "was thoughtful and unemotional." And they insist
that the testimony of the government's witnesses "did not refute
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the family members' consistent testimony" that a "courtroom
official" told them "that only one member of each defendant's
family could enter the courtroom for jury selection." By basically
focusing on the witnesses' credibility, they make their job
"particularly" challenging, because — unlike us — the judge heard
the witnesses from both sides and eyed their manner. See United
States v. Guzmán-Batista, 783 F.3d 930, 937 (1st Cir. 2015). If,
as here, a judge's finding is based on witness credibility, that
finding, "if not internally inconsistent, can virtually never be
clear error." See Anderson v. City of Bessemer, 470 U.S. 564, 575
(1985) (emphasis added). And we see nothing "[in]coherent and
facially [im]plausible" about the government witnesses' account.
See id.Still trying to turn defeat into victory, appellants
protest that the testimony of the government's witnesses "left
open the distinct possibility that it was a [deputy United States
marshal] inside the courtroom and near the courtroom door who told
the defense witnesses exactly what they said they were told when
they tried to enter." Here is the problem with that theory. The
defense's witnesses testified that an official-looking man told
them about the one-family-member-per-defendant policy when the
courtroom doors opened at 9:00 a.m., when no prospective jurors
were there. During that key period — between the opening of the
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doors and the seating of potential jurors — the only person manning
the door was the court security officer, who said he stopped no
one from going in. Or so the court security officer testified,
which the judge was entitled to credit. And under clear-error
review, "[a] finding that is 'plausible' in light of the full
record — even if another is equally or more so — must govern."
Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (emphasis added).
So we are in no position to disturb the judge's no-
courtroom-closure finding — a conclusion that defeats appellants'
challenge and makes it unnecessary to consider the parties'
remaining arguments on this front.
Berating-Counsel Claim
Echoing an unsuccessful mistrial motion filed below,
Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo complain
that the judge berated counsel in front of the jury, diminishing
the jury's respect for the defense's work. Lanza-Vázquez's and
Rivera-Carasquillo's immediate problem is that while Astacio-
Espino's counsel made the mistrial motion, their counsel
specifically chose not to join that motion — thus waiving appellate
consideration of their argument. See generally United States v.
Olano, 507 U.S. 725, 733 (1993) (noting that "waiver is the
intentional relinquishment or abandonment of a known right"
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))).
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And even if we were willing to overlook this waiver
(which we are not), they and Astacio-Espino spotlight no specific
instances where the judge dressed counsel down. As the government
notes, our appellants simply claim that the judge instructed the
jurors that "if you have noticed that I have become upset about
something with either side or somebody, do not [hold] it against
that person, lawyer or party." Context is everything, of course.
And because appellants do not say what the allegedly biased
comments were, we cannot assess whether he acted defensibly,
without judicial bias. See United States v. Rodríguez-Rivera, 473
F.3d 21, 28 (1st Cir. 2007) (discussing how we go about evaluating
a claim of judicial bias). Knowing that it is not our job to do
the parties' homework for them, we find the argument waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting
that "[i]t is not enough" for parties "merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel's work," and emphasizing "that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
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Intervening-with-Witnesses Claim
Background
Appellants also accuse the judge of improperly
questioning the witnesses. Here is what you need to know about
that claim.
Testifying about the erase-the-face episode (the one we
mentioned above), a cooperating witness said that the victim begged
his tormentors not to "remove" his face. "Erase his face," the
judge stated. "Erase his face," the witness said. The cooperating
witness also noted that before he and his cohorts stomped the
victim to death, one of them "removed the bullets" from a "magnum"
and "put the magnum to [the victim's] head." "Pulled the trigger,"
the judge said. "Pulled the trigger," the witness responded. "As
if he was going to kill him," the judge added. "I think I already
said that," the witness said, "[b]ut as if he was going to kill
him." Shifting to a different murder, the cooperating witness
explained how, after the victim got shot and fell to the ground,
one of the shooters "emptied his gun at [the victim]." "At his
face," said the judge. "At his face," said the witness.
A former homicide detective testified about seeing a
body at a crime scene that "no longer had a face." A couple of
questions later, the prosecutor asked, "And you mentioned that
this individual . . . did not have face?" — to which defense
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counsel objected on asked-and-answered grounds. "Well," the judge
said, "I understood he had no head. But it's no face, no head?
Tell us." "It had no face of any kind," the witness replied.
Later still, an agent with the Bureau of Alcohol,
Tobacco, Firearms and Explosives (commonly referred to just as
"ATF") testified "as an interstate nexus specialist" (FYI, some
statutes have an interstate-nexus requirement, which gives rise to
federal jurisdiction under the Constitution). As the agent talked
about different firearms — Glock pistols, Smith and Wesson pistols,
a Bushmaster rifle, etc. — the prosecutor asked each time if any
were manufactured in Puerto Rico. The agent always said no, adding
one time that "[i]f they were possessed in Puerto Rico, they
traveled in or [a]ffect[ed] interstate commerce." Asked about "an
AR-15 type rifle," the agent testified that the rifle had no
manufacturer's mark and so he could not determine the rifle's
"place of origin." Speaking up, the judge questioned him about
whether "we manufacture any kind of gun in Puerto Rico." "No,
sir," said the agent. "So what does that mean in terms of nexus?"
the judge wondered. Because "this firearm was not manufactured in
Puerto Rico," the agent replied, "if it was possessed in Puerto
Rico, it traveled in or [a]ffect[ed] interstate commerce."
Early in the afternoon, after the agent testified,
Astacio-Espino's lawyer asked for a mistrial because the judge
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"ha[d] intervened with a great number of witnesses." Lanza-
Vázquez's and Rivera-Carasquillo's counsel joined the request.
But the judge denied the motion, simply saying that "you will have
to take" this issue "to the Court of Appeals."
Arguments and Analysis
Pointing to these incidents, Astacio-Espino, Lanza-
Vázquez, and Rivera-Carasquillo claim that the judge denied them
a fair trial by asking questions or making comments that emphasized
the brutality of the charged crimes and that helped the government
establish a nexus between the guns and interstate commerce.9 The
government argues that because the judge's interjections simply
clarified the record or kept the lengthy proceedings on track (the
trial involved nine days of testimony), his actions crossed no
line — and even if they did, any error was harmless, given the
considerable evidence of appellants' guilt. Because we agree with
the government's first point, we need not address its second.
We review the judge's denial of a mistrial motion for
abuse of discretion, which occurs if no reasonable person could
9 Appellants call the discussed interjections only a "partial
sample" of the "most egregious" ones. But by only mentioning those
interjections in their opening briefs, they waived any argument
that other interjections prejudiced them. See, e.g., Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).
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agree with the ruling.10 See United States v. Munyenyezi, 781 F.3d
532, 541 (1st Cir. 2015). Deference is appropriate here because
the judge was best positioned to decide if what happened was
serious enough to justify declaring a mistrial — a "drastic
remed[y]" of last resort. See id. at 541-42.
Trial judges have considerable leeway over the
interrogation of witnesses and the order of proof — leeway they
must use to (among other things) elicit truth and avoid delay.
See, e.g., Morales Feliciano v. Rullán, 378 F.3d 42, 57 (1st Cir.
2004); Fed. R. Evid. 611(a). So, for example, judges can "question
witnesses"; "analyze, dissect, explain, summarize, and comment on
the evidence"; and otherwise extract facts to clarify
misunderstandings. Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.
1997); see also United States v. Ayala-Vazquez, 751 F.3d 1, 24
(1st Cir. 2014); United States v. Paz Uribe, 891 F.2d 396, 400
(1st Cir. 1989). And because protracted trials drain scarce
judicial resources (judge and jury time, to name just two), judges
must keep the proceedings moving — by, for instance, making sure
evidence presentation does not become rambling and repetitive (to
state the obvious, district courts have heavy caseloads and jurors
10The parties concur that appellants preserved the issue for
us. And we have no reason to doubt them.
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have family and work obligations). See, e.g., Logue, 103 F.3d at
1045.
Make no mistake, however. While "[t]he ultimate
responsibility for the effective working of the adversary system
rests with . . . judge[s]," see Fed. R. Evid. 611(a) advisory
committee's note to 1972 proposed amendment, their powers are not
boundless — for they "cannot become . . . advocate[s] or otherwise
use [their] judicial powers to advantage or disadvantage a party
unfairly," see Logue, 103 F.3d at 1045 (1st Cir. 1997) (emphasis
added); see also Morales Feliciano, 378 F.3d at 57. But to prevail
on an inappropriate-judicial-intervention claim, the protesting
party must show both "improper" conduct and "serious prejudice."
See United States v. DeCologero, 530 F.3d 36, 56 (1st Cir. 2008).
Silhouetted against these rules, appellants' claim
cannot succeed. Take the face-related episodes (e.g., the "erase
the face," "at his face," and "pulled the trigger" interactions).
What appellants characterize as out-of-bounds questioning we see
as the fulfillment of the judge's "duty" to "elicit[] facts he
deem[ed] necessary" to clarify the record for the jury. See Paz
Uribe, 891 F.2d at 400 (quoting Llach v. United States, 739 F.2d
1322, 1329 (8th Cir. 1984)). Now consider the location-of-gun-
manufacturers questions. As the government notes (without
contradiction from appellants), "that the firearms were
- 22 -
manufactured outside of Puerto Rico was not a hotly contested
issue." And we see the incident as a permissible bid by the judge
to speed up the multiday trial's pace. See United States v. Henry,
136 F.3d 12, 19 (1st Cir. 1998) (discussing the "judge's right and
responsibility to manage the progress of the trial"). On top of
everything, the judge told the jurors "not [to] assume that I hold
any opinion on any matter that pertains to any question that I may
have asked." He also told them that they could "disregard all
questions that I made during the course of this trial." "You don't
have to go by my comments," he added. "I am not here to lead you."
And these instructions sufficed to alleviate any risk of prejudice.
See Logue, 103 F.3d at 1046-47.11
11 Two more matters and we are done with this issue. About
five months before our appellants' trial, the judge, in sentencing
a separately tried codefendant, mentioned the "Pep Boys" murder —
a murder that involved the death of a La Rompe boss, killed on the
orders of two La ONU leaders. See Ramírez-Rivera, 800 F.3d at 44
(discussing the "Pep Boys" murder). And the judge said how deeply
that crime had affected him. Appellants theorize that the judge's
"feelings" fueled his "improper questioning and interjecting" at
their later trial. They also cry foul that the judge questioned
the cooperating witness even though (emphases theirs) "he himself
took the witness'[s] guilty plea so the witness could cooperate in
the first place." But they did not raise either argument below.
And they give us no reason to conclude that any of the "narrowly
configured and sparingly dispensed" exceptions to the raise-or-
waive rule apply. See Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684,
688 (1st Cir. 1994). Nothing more need be said about these
arguments.
- 23 -
The short of it is that we will reverse a mistrial denial
only in "extremely compelling circumstances." See, e.g.,
Munyenyezi, 781 F.3d at 542 (quoting United States v. Pierro, 32
F.3d 611, 617 (1st Cir. 1994)). But they have not shown that the
circumstances here meet that standard. So the judge's mistrial
denial stands.
Admission-of-Photos Claim
Repeating a losing argument made below, Astacio-Espino,
Lanza-Vázquez, and Rivera-Carasquillo fault the judge for
admitting 61 color autopsy and crime-scene photos (some showing
murder victims without a face or head, others showing blood or
brain matter splattered everywhere) and 43 color gun photos
(depicting firearms Rivera-Carasquillo had at the time of his
arrest), along with actual guns, gun parts, and ammo. As they see
it, the gruesomeness of the autopsy and crime-scene photos had to
have overwhelmed the jurors' emotions and led them to act
irrationally. So they believe the judge should have excluded those
photos under Evidence Rule 403, which says a judge may keep out
"relevant evidence" if its potential for unfair prejudice
"substantially outweigh[s]" its probative worth. See Fed. R. Evid.
403. Repeating another losing argument made below, they also
insist that law enforcement seized the at-issue guns after the
conspiracy had ended. And so they further believe the judge should
- 24 -
have excluded those photos — introduced, the theory goes, to
portray them as bad men, and hence guilty of the crimes charged —
under Evidence Rule 403 and Evidence Rule 404(b), which prohibits
evidence of a "crime, wrong, or other act" from being used "to
prove a person's character in order to show that on a particular
occasion the person acted in accordance with the character." See
Fed. R. Evid. 404(b).
The government, contrastingly, contends no error
occurred. Noting that we will reverse a judge's Rule 403 probative
value/unfair prejudice balancing only in extraordinarily
compelling situations, the government argues that the autopsy and
crime-scene photos did not unfairly prejudice appellants because,
for example, the photos "corroborated actions taken by La ONU
members, including [appellants]."12 And according to the
government, rather than being inadmissible as unduly prejudicial
under Rule 403 or as improper character evidence under Rule 404(b),
the gun evidence showed Rivera-Carasquillo's role as a gun-
supplier to La ONU and how he continued to store guns even after
the indictment came down. The government claims too that "La ONU's
activities were ongoing even after" the indictment's "issuance,"
12The government asserts, without contradiction, that its
"case-in-chief" covered "eight crime scenes involv[ing] twelve
murders."
- 25 -
at which time Rivera-Carasquillo was a fugitive without having
withdrawn from the conspiracy. As a fallback, the government
argues that whatever conceivable error might have occurred was
harmless.
Recognizing that "[t]he simplest way to decide [an
issue] is often the best," Stor/Gard, Inc. v. Strathmore Ins. Co.,
717 F.3d 242, 248 (1st Cir. 2013) (quoting Chambers v. Bowersox,
157 F.3d 560, 564 n.4 (8th Cir. 1998)), we assume without deciding
that errors occurred. But we deem them harmless nevertheless.
Nonconstitutional errors are harmless — and so do not
require a new trial (saving the public the costs and delays caused
by a retrial when the outcome would not change) — if we "can say
'with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole,'" that the errors
did not "'substantially sway[]'" the jury's verdict. United States
v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013) (quoting United States
v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)). The government bears
the burden of proving harmlessness. See, e.g., United States v.
Vázquez, 724 F.3d 15, 25 (1st Cir. 2013). Now recall how
cooperating witnesses pegged Astacio-Espino, Lanza-Vázquez, and
Rivera-Carasquillo as La ONU drug-point owners and enforcers —
each of whom, according to these witnesses, participated in the
gun murders of others, all in La ONU's name. True, the cooperators
- 26 -
had reasons to tailor their testimony to please the prosecution.
But defense counsel brought this out during cross-examination and
closing arguments. The judge also told the jury that it should
consider the cooperators' testimony "with particular caution" and
with an eye toward whether they "had a reason to make up stories
or to exaggerate what others did because they wanted to help
themselves." Anyway, the jury could believe what the cooperators
said. See, e.g., United States v. Rodríguez-Soler, 773 F.3d 289,
297 (1st Cir. 2014). And if the jury did, it could enter guilty
verdicts — as Astacio-Espino's counsel candidly acknowledged
during summation.13 So, bluntly stated, even if the judge gaffed
by admitting the crime-scene and gun evidence — and we whisper no
hint of suggestion about whether he did — appellants cannot prevail
because, given the contours of this case, we can fairly say that
13
A quick side note. When an error is of constitutional
magnitude, we cannot consider it harmless if the rest of the
government's case against the defendant (or defendants) rests
solely on cooperator testimony. See, e.g., United States v. Ofray-
Campos, 534 F.3d 1, 27 (1st Cir. 2008). Appellants do not claim
that the error they identify here is of the constitutional variety.
And they make no argument that the Ofray-Campos rule (for lack of
a better label) applies in a nonconstitutional-error situation
like theirs. Perhaps that is because Rodríguez-Soler is on the
books, a case where we held a nonconstitutional error harmless
based on "the cooperating witnesses' testimony," see 773 F.3d at
297 — though, to be fair, there's no indication in Rodríguez-Soler
that the defendant argued for the application of the Ofray-Campos
rule. Ultimately, by not pushing for application of the Ofray-
Campos rule here, appellants waived any argument on that front
that they might have had. See, e.g., Rodríguez, 659 F.3d at 175.
- 27 -
any error (if error there be) did not "substantially sway" the
jury's verdict.
Jury-Instruction Claim
Background
A necessary element for a RICO-conspiracy conviction is
that "the defendant agree[d] to commit or actually commit[ted] two
or more acts of racketeering activity." United States v. Shifman,
124 F.3d 31, 38 (1st Cir. 1997); see also id. at 35 (discussing
the other elements). "Racketeering activity" includes "any act or
threat involving" particular federal or state crimes like, for
example, drug trafficking, murder, extortion, robbery, and
kidnapping. See 18 U.S.C. § 1961(1)(A). "[T]he commission of
firearms offenses" appears nowhere on that list, however. See
United States v. Latorre-Cacho, 874 F.3d 299, 301 (1st Cir. 2017).
Instructing the jury on the racketeering-activity issue,
the judge in our case said "that as a matter of law, drug
trafficking and murder both qualify as racketeering activities."
So far, so good. A little later, though, the judge added (emphasis
ours) that "the types of racketeering activity alleged include
possession with intent to distribute narcotics, firearms[,] and
murder." Later still, the judge instructed (emphasis added) that
to convict the defendant of the RICO conspiracy offense,
your verdict must be unanimous as to which types of
predicate racketeering activities the defendant agreed
would be committed. For example, at least two acts of
- 28 -
drug trafficking, murder, or any combination of both. I
would add two acts of drug trafficking, firearms,
murders[,] or a combination thereof.
The judge then noted that "[t]he [i]ndictment accuses the
defendants of two different types of racketeering activity,"
namely, "drug trafficking and murder." The judge returned to that
theme, saying "racketeering activity . . . includ[es] drug
trafficking, murder[,] or any combination thereof" and that "[t]he
indictment alleges that the enterprise, through its members and
associates, engaged in racketeering activities consisting of drug
trafficking and murder."
Arguments and Analysis
Astacio-Espino and Rivera-Carasquillo — the only
appellants charged with RICO conspiracy (Lanza-Vázquez was not so
charged) — assert that the judge plainly erred by twice telling
the jury that a firearms crime is a racketeering activity for RICO-
conspiracy purposes (plain error is the standard for all arguments,
like this one, debuted on appeal).14 Simplifying matters, the
14Most readers of our prior opinions know the plain-error
standard by heart, but a little refresher never hurts. A super
hard standard to establish, plain error has four prongs. See,
e.g., Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Shoup, 476 F.3d 38, 42-43 (1st Cir. 2007); United States
v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006). First,
complaining parties must identify an "error" that they have not
"intentionally relinquished or abandoned." Puckett, 556 U.S. at
135. Second, they must show that the error was "clear or obvious,
rather than subject to reasonable dispute." Id. Third, they must
prove that the error "affected" their "substantial rights" — i.e.,
- 29 -
government admits that, given Latorre-Cacho, the judge did err,
and clearly so — satisfying Astacio-Espino's and Rivera-
Carasquillo's burden under the first and second prongs of the
plain-error test. The real battle then is over whether Astacio-
Espino and Rivera-Carasquillo can meet the third and fourth prongs.
They say they can, making the dual argument that the misinstruction
prejudiced them, because it likely affected the case's outcome —
fulfilling their burden under prong three; and that the
misinstruction worked a miscarriage of justice, because the
government did not present overwhelming and essentially
uncontroverted evidence on the racketeering-activity element —
fulfilling their burden under prong four. The government's
response is dual too: the instructions as a whole were unlikely
to mislead the jury, seeing how the judge emphasized drug
trafficking and murder as cognizable predicates; and even if the
that "it likely affected" the case's outcome. United States v.
Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014). Fourth and
finally, if they satisfy these prongs they must show that the error
"seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings," which is also known as the miscarriage-
of-justice prong — then (and only then) will we exercise our
"discretion to remedy the error." See Puckett, 556 U.S. at 135(internal quotation marks omitted); United States v. Saxena, 229
F.3d 1, 5 (1st Cir. 2000). And "[g]iven the rigors of this
standard, [our] power to set aside trial court decisions due to
plain error 'should be employed sparingly.'" United States v.
Bramley, 847 F.3d 1, 5 (1st Cir. 2017) (quoting United States v.
Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc)).
- 30 -
instructions likely misled the jury, there is no reasonable
probability that the flawed instructions led to flawed convictions
— so they cannot show either prejudice or a miscarriage of justice.
As for our views on the matter, we know "the plain error
hurdle, high in all events, nowhere looms larger than in the
context of alleged instructional errors." See United States v.
Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001). And ever
mindful of this demanding standard, we cannot help but reject
Astacio-Espino and Rivera-Carasquillo's claim.
The jury had no special verdict form on the RICO-
conspiracy count. But the jury found Astacio-Espino guilty of six
predicate RICO acts: drug trafficking, VICAR attempted murder,
and four VICAR murders. The jury also found Rivera-Carasquillo
guilty of four predicate RICO acts: drug trafficking and three
VICAR murders. And significantly for this case, Astacio-Espino
and Rivera-Carasquillo fail to adequately challenge the evidence
behind these convictions (through citation to trial testimony and
supporting legal authority, for example). So they have not met
their heavy burden of showing that the trial's outcome would likely
have changed had the judge not erred. After all, "[w]here" — as
here — "the effect of an alleged error is so uncertain, a [party]
cannot meet his burden of showing that the error actually affected
his substantial rights." See Jones v. United States, 527 U.S.
- 31 -
373, 394-95 (1999). And because Astacio-Espino and Rivera-
Carasquillo have not shown a likelihood that they were "worse off"
because of the judge's mistake, they "perforce" cannot show that
a miscarriage of justice will result if we do not correct the
mistake. See United States v. Turbides-Leonardo, 468 F.3d 34, 40
(1st Cir. 2006).
Latorre-Cacho does not help Astacio-Espino and Rivera-
Carasquillo's prejudice and miscarriage-of-justice positions,
despite what they say. A grand jury there indicted Jose Latorre-
Cacho for conspiracy to violate RICO, conspiracy to engage in drug
trafficking, and conspiracy to possess a firearm in furtherance of
a drug-trafficking crime. 874 F.3d at 301. At trial, the district
judge (the same judge who presided over our appellants' trial)
"twice incorrectly" told the jury that "'firearms' constitutes
'racketeering activity.'" Id. After the jury convicted him only
on the RICO-conspiracy charge, Latorre-Cacho appealed to us,
complaining (as relevant here) about the judge's faulty
instructions, id. — the theory being that the incorrect charge let
the jury find him guilty of RICO conspiracy "on a legally invalid
theory of what constitutes 'racketeering activity' by defining
'racketeering activity' to include 'firearms,'" id. at 302-03.
The government seemingly conceded that the judge erred and plainly
so, leaving us to decide whether Latorre-Cacho met the remaining
- 32 -
prongs of the plain-error standard. See id. at 303. In finding
that Latorre-Cacho satisfied prong three, we could not say that
the evidence of the proper predicates — drug trafficking, robbery,
and carjacking — was overwhelming and essentially uncontroverted.
Id. at 306, 311. Indeed, the jury actually acquitted him on the
drug-trafficking-conspiracy charge. Id. at 301, 311. And having
found that prong satisfied, we "[could] not see how" plain error's
"fourth prong" prevented him from "demonstrating plain error" —
especially since the government did not make any developed argument
that he failed to satisfy that prong. Id. at 311. All of this is
worlds apart from our case, however — most notably because the
jury convicted Astacio-Espino and Rivera-Carasquillo on related
drug-conspiracy and VICAR counts and because the government did
not waive its right to contest a plain-error finding.15
On to the next claim, then.
15 Noting that the VICAR statute also has a racketeering-
activity component, Astacio-Espino and Rivera-Carasquillo make a
one-sentence argument that we should vacate their VICAR
convictions because the judge's "instructions on this element of
VICAR, which followed his instructions on RICO conspiracy, were at
best confusing and allowed the jury to find that 'firearms'
offenses were the crimes that constituted the racketeering
activity." But they do not tie this unpreserved VICAR-centric
argument to the demanding plain-error standard and thus have waived
it. See United States v. Ponzo, 853 F.3d 558, 574 (1st Cir. 2017).
- 33 -
New-Trial Claim
Background
During appellants' trial, the jury heard from three
cooperating coconspirators — ex-La ONU members Wesley Figueroa-
Cancel, José Gutiérrez-Santana, and Christian Figueroa-Viera —
about the roles appellants played in the killing of Pekeke, a La
Rompe leader gunned down (according to the cooperators) by La ONU
in its brutal war with La Rompe. And Figueroa-Cancel, Gutiérrez-
Santana, and Figueroa-Viera knew of which they spoke, since they
had a hand in Pekeke's death.
While here on appeal, appellants filed in the district
court what they styled a motion for new trial based on newly-
discovered evidence and government nondisclosure of evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). See Fed. R.
Crim. P. 33(b)(1). They did not have the "newly discovered
evidence," however. Rather, their lawyers claimed that they
learned that codefendants convicted in a jury trial before Judge
Smith had moved for a new trial and that restricted-court filings
in that case supposedly showed that "a cooperating witness [gave]
a contradictory version of" Pekeke's murder "in grand jury
testimony, an FBI 302[,] and trial transcripts" — contradictory,
because the cooperator there had supposedly said that La Rompe
- 34 -
members (and them alone) had killed Pekeke.16 If the government
had "disclosed" that evidence before or during "their trial, there
is a reasonable probability" that the trial's outcome "would have
been different" — at least that is what our appellants' motion
contended, citing United States v. Flores-Rivera, 787 F.3d 1, 15-
16 (1st Cir. 2015) (noting that a successful Brady claim
"require[s] only that the defendant show a 'reasonable
probability' that had the government disclosed the evidence
[before] trial, the result of the proceeding would have been
different" (quoting United States v. González-González, 258 F.3d
16, 20 (1st Cir. 2001))). And based on all this, appellants
requested three things: (1) access to the restricted filings;
(2) an order directing the government to disclose any info
"indicat[ing] that any murder or other incident described by"
testifying witnesses "did not occur" as they had testified, "or
otherwise casting doubt on the credibility or reliability of any
of the witnesses and/or other evidence used against them"; and,
16Appellants' codefendants in the Judge Smith presided-over
trial were José Laureano-Salgado and Pedro Ramírez-Rivera.
Figueroa-Cancel, Gutiérrez-Santana, and Figueroa-Viera testified
for the prosecution in that case too. Readers can find more
details of what happened before Judge Smith in another opinion
issued today, United States v. Laureano-Salgado, ___ F.3d ___ (1st
Cir. 2019) [Nos. 17-1052, 1053] — where we affirmed the denial of
that motion. And going forward we will assume the readers'
familiarity with that opinion.
- 35 -
finally, (3) a new trial. They also contemporaneously moved the
judge for an "indicative ruling" that their new-trial motion "based
on newly discovered evidence of a potential Brady violation 'raises
a substantial issue.'" See Fed. R. Crim. P. 37.17
Opposing the motions, the government first argued that
it did not have the sought-after materials before or during
appellants' trial. The government next asserted that it gave
appellants the materials after they filed their motion, thus
mooting their request. And the government then contended that the
materials involved statements made by cooperating witnesses from
La Rompe, none of whom were present when Pekeke got killed.
Accusing the government of making an "incomplete"
disclosure, appellants blasted prosecutors in their reply memo for
17 As a leading treatise in the field explains:
If a party moves for relief in the district court that
the court has no power to grant because an appeal is
pending, Rule 37(a) provides the district court with
three options: it may (1) defer considering the motion;
(2) deny the motion; or (3) state either that it would
grant the motion if the court of appeals remands for
that purpose or that the motion raises a substantial
issue. If the district court takes approach (3) and
states that it would grant the motion or that the motion
raises a substantial issue, Rule 37(b) requires the
movant to notify the circuit clerk promptly. Then the
movant can ask the court of appeals to remand to allow
the district court to consider the motion.
3 Charles Alan Wright et al., Federal Practice and Procedure:
Criminal § 644.1 (4th ed. 2019) (footnotes, citations, and internal
quotation marks omitted).
- 36 -
violating "Brady" — an accusation the government denied in its
surreply memo. They later stated in an "informative motion" that
the government had disclosed additional documents containing
"sometimes inconsistent accounts by witness Luis Yanyoré-Pizarro"
concerning Pekeke's murder. Focusing on an FBI interview memo,
they wrote that Yanyoré-Pizarro's version "describe[d] — directly
contrary to the government's account at [their] trial — why" a La
Rompe leader had ordered Pekeke's murder, and how "this killing
was not part of the [La] ONU-[La] Rompe 'war.'"
The judge rejected appellants' Brady-based theory,
noting that nothing supports the notion that the government had
the material before or during their trial and so Brady does not
apply. And then the judge dashed their new-trial hopes. Quoting
Flores-Rivera, 787 F.3d at 15 — which quoted González-González,
258 F.3d at 20, which in turn quoted United States v. Wright, 625
F.2d 1017, 1019 (1st Cir. 1980) — the judge set out the standard
for granting a new-trial motion based on newly-discovered
evidence, which requires that
(1) the evidence was unknown or unavailable to the
defendant at the time of trial; (2) failure to learn of
the evidence was not due to lack of diligence by the
defendant; (3) the evidence is material, and not merely
cumulative or impeaching; and (4) it will probably
result in an acquittal upon retrial of the defendant.
This is known variously as the "Wright test" or the "Wright
standard." See United States v. Martínez-Mercado, 919 F.3d 91,
- 37 -
105 (1st Cir. 2019); United States v. Maldonado-Rivera, 489 F.3d
60, 66 (1st Cir. 2007). Anyhow, the judge noted that Judge Smith
had found Yanyoré-Pizarro's statements too unclear and seemingly
inconsistent to satisfy the Wright test. And she agreed with that
take. Yanyoré-Pizarro's "account of Pekeke's murder," she wrote,
"appears to have been as variable as the wind," blaming, "at
different points," different persons for Pekeke's murder. She
also thought that Yanyoré-Pizarro lacked personal knowledge of
many of the material facts surrounding Pekeke's death and was
merely "repeating the gossip he had heard about the different
people" supposedly "behind the death." So the judge ruled that
our appellants had not shown that Yanyoré-Pizarro's "testimony
. . . would probably result in their acquittal" in any "retrial."
Undaunted, appellants later asked the judge to
reconsider. As support, they argued that on the very day the judge
denied their motions, Yanyoré-Pizarro testified at a hearing for
separately-tried codefendant Cruz-Ramos and again gave an account
of Pekeke's murder that differed from the testimony presented by
the government at their trial — an account (as described by them)
indicating that a La Rompe leader ordered Pekeke killed to settle
"an internal dispute" among [La] Rompe members. "[I]f a jury were
to believe that version," they wrote, "it is more than reasonably
likely that none of [them] would have been convicted of the murder
- 38 -
of 'Pekeke.'" They thought this way because the government
prosecuted Pekeke's murder "on the basis of the VICAR statute" —
a statute that (to again quote from their motion) forbids "murder
. . . committed for the purpose of acquiring, maintaining or
increasing a position in . . . La ONU."18 And in their view, this
"newly discovered evidence" would sabotage the VICAR statute's
purpose element. They did not discuss — or even cite — Wright or
its offspring, however.
The government countered that Yanyoré-Pizarro had "no
personal knowledge" about Pekeke's murder and that his testimony
shed no light on what "motivat[ed]" our appellants "to participate"
in the murder. Arguing further, the government claimed that
Yanyoré-Pizarro's statements actually corroborated "facts proven
at trial," like his confirming that a guy named Joshua had shot
Pekeke.
Still convinced that our appellants had not fulfilled
their burden for obtaining a new trial, the judge denied their
reconsideration motion in a docket order.
18 See United States v. Brandao, 539 F.3d 44, 56 (1st Cir.
2008) (noting both that "the motive requirement in VICAR [is] a
general one, satisfied by proof either that the crime was committed
in furtherance of defendant's membership in the enterprise or
because it was expected of him by reason of his membership," and
that the government is not required to "prove this was sole
purpose").
- 39 -
Arguments and Analysis19
Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo
do not contest the judge's ruling that they had no right to post-
conviction discovery. They challenge only the judge's ruling that
they had no right to a new trial. And on that score, they argue
that they should get a new trial under the Wright test. To their
way of thinking, "[t]he after-discovered [Yanyoré-Pizarro]
evidence tends to support the conclusion that Pekeke's murder was
the result of cooperation between" La Rompe and La ONU, "not the
result of La ONU acting" on its own because the gangs "were at war
with each other." The evidence thus destroys "the required
'purpose' element of the VICAR statute," their argument runs — and
so if the jury had heard and believed Yanyoré-Pizarro's version,
"it is probable that none of them would have been convicted of the
murder of Pekeke." Disagreeing, the government asserts that
appellants waived their Wright-based argument by not making it
below. Waiver aside, the government believes that their claim
flops because the so-called "newly discovered evidence" is based
on inadmissible hearsay, meaning the evidence lacks materiality
19Earlier, the government questioned whether our appellants
filed timely notices of appeal. But the government now agrees
with them that they did. And we will assume without deciding that
they are right. See, e.g., United States v. Uribe-Londono, 177 F.
App'x 89, 89 n.2 (1st Cir. 2006) (taking the assuming-without-
deciding approach).
- 40 -
and would not probably produce a new result at a retrial. For our
part, we think the government is right about waiver — so we start
and stop there.
To succeed in a typical new-trial motion alleging newly-
discovered evidence, a defendant must satisfy all four elements of
the Wright test — i.e., and to repeat, he must show that the
evidence (1) was either unknown or unavailable at time of trial;
(2) could not have been discovered sooner with due diligence;
(3) is material, not merely cumulative or impeaching; and
(4) would probably lead to acquittal at a retrial — a heavy burden
for any defendant. See, e.g., United States v. Peake, 874 F.3d
65, 69 (1st Cir. 2017); Flores-Rivera, 787 F.3d at 15; Maldonado-
Rivera, 489 F.3d at 65-66.
If, on the other hand, the defendant bases his new-trial
motion on the delayed disclosure of Brady evidence — which consists
of exculpatory or impeaching evidence — a more defendant-friendly
standard applies: he must still meet elements one and two
(unavailability and due diligence), though caselaw swaps out
elements three and four (materiality and prejudice) for a
unitary requirement that the defendant . . . demonstrate
only a reasonable probability that, had the evidence
been disclosed to the defense in a timely manner, the
result of the proceeding would have been different.
Peake, 874 F.3d at 69 (emphasis added and internal quotation marks
omitted). What makes this standard more defendant-friendly (at
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least for present purposes) is that rather than having to show
"'actual probability that the result would have differed,'" a
defendant need only show "something sufficient to 'undermine[]
confidence'" in the jury's verdict. See United States v. Mathur,
624 F.3d 498, 504 (1st Cir. 2010) (emphasis and alteration in
original) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995));
accord Flores-Rivera, 787 F.3d at 15-16; see also United States v.
Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993) (explaining that the
"somewhat delphic 'undermine confidence' formula suggests that
reversal might be warranted in some cases even if there is less
than an even chance that the evidence would produce an acquittal").
Ultimately, we review a judge's decision under either
standard only for abuse of discretion. See, e.g., United States
v. Connolly, 504 F.3d 206, 211-12 (1st Cir. 2007).
Back to our case. Appellants made Brady-based arguments
in their new-trial motion, using the "reasonable probability"
standard that governs new-trial requests tied to alleged Brady
violations. Indeed, in pressing their motion, they cited to
Flores-Rivera — a Brady-based case involving the modified
standard, not the Wright standard. See 787 F.3d at 8. They did
not mention, let alone apply, the Wright test. Which defeats their
attempt to do so here, because "legal theories not asserted in the
lower court cannot be broached for the first time on appeal." See
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Goodwin v. C.N.J., Inc., 436 F.3d 44, 51 (1st Cir. 2006); see also
McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 n.7 (1st Cir. 1991)
(adding that "[c]ourts are entitled to expect represented parties
to incorporate all relevant arguments in the papers that directly
address a pending motion"). The raise-or-waive rule is "founded
upon important considerations of fairness, judicial economy, and
practical wisdom." Nat'l Ass'n of Soc. Workers v. Harwood, 69
F.3d 622, 627 (1st Cir. 1995). And appellants offer no reason not
to apply that rule in the circumstances of this case. So their
new-trial claim is a no-go.20 See Eldridge v. Gordon Bros. Grp.,
L.L.C., 863 F.3d 66, 85 (1st Cir. 2017).
We should add (as a quintessential belt-and-suspenders
maneuver) that even if we were willing to overlook appellants'
20 A subheading in Astacio-Espino's lead brief suggests that
the judge erred by denying the new-trial motion "Without a Hearing"
— a suggestion adopted by his coappellants. But their appellate
papers never explain how the no-hearing here amounts to reversible
error. Which means the argument is waived. See, e.g., Tutor
Perini Corp. v. Banc of Am. Sec. LLC, 842 F.3d 71, 96 (1st Cir.
2016).
Astacio-Espino writes in his reply brief that "[t]he matter
had not even reached the point [below] where the defendants might
in good faith have requested an evidentiary hearing, much less the
point where they might have filed a memorandum showing satisfaction
of the four Wright factors" — contentions shared by his
coappellants. But because they did not raise these arguments until
the reply brief, we consider them waived, see United States v.
Marino, 833 F.3d 1, 6 n.3 (1st Cir. 2016) — particularly since
they highlight no "extraordinary circumstances" justifying any
easing of this customary rule, see Lawless, 894 F.3d at 25.
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waiver of a Wright-centric argument — and we most certainly are
not — they would still lose. The judge, to repeat, agreed with
Judge Smith that Yanyoré-Pizarro indicated that various people had
various motives for offing Pekeke.21 The judge also agreed with
Judge Smith that given Yanyoré-Pizarro's changing narrative,
appellants cannot satisfy their hefty burden of showing that the
relied-on statements make it actually probable that a jury would
acquit them on retrial. Affirming Judge Smith's ruling, Laureano-
Salgado stressed that "[a]t any new trial the jury would weigh"
(a) "Yanyoré-Pizarro's shifting" account and his lack of personal
knowledge of certain details behind Pekeke's murder against
(b) the testimony of Figueroa-Cancel, Gutiérrez-Santana, and
21
Laureano-Salgado, ___ F.3d at ___ [Nos. 17-1052, 1053, slip
op. at 22] provides a detailed discussion of Yanyoré-Pizarro's
ever-shifting finger-pointing. We excerpt a key passage here,
however (we add the bracketed information for clarity):
[Yanyoré-Pizarro's] statements . . . show that [he]
basically suggested that different persons had different
motives for killing Pekeke: (a) La Rompe[] [leaders
known as] Trenza and Papito Mojica, apparently to take
over Pekeke's drug points; (b) La Rompe bosses at the
Alturas de Cupey housing project, supposedly because
Pekeke had refused their help request [regarding their
drug business]; (c) [a] La Rompe[] [member known as]
Frank, apparently because Frank and Pekeke could not
agree on who was "the boss" — in his last version of
this narrative, Yanyoré-Pizarro had Frank working with
La ONU to gun down Pekeke; and (d) gangbangers from the
Luis Llorén Torres housing project, supposedly because
Pekeke had orchestrated their leader's murder.
Id.
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Figueroa-Viera "implicating" the defendants there "in [the]
slaying" and showing that these witnesses helped take Pekeke down.
Laureano-Salgado, ___ F.3d at ___ [Nos. 17-1052, 1053, slip op. at
22-23]. So too here. Laureano-Salgado also concluded that the
"evidentiary comparison" showed that Yanyoré-Pizarro's varying
accounts "are not 'sufficiently compelling' as to generate a
realistic probability of an acquittal on the VICAR" charges. Id.
[slip op. at 23] (quoting United States v. Alicea, 205 F.3d 480,
487 (1st Cir. 2000)). And again, so too here. Which is why
appellants are out of luck here, waiver or not.
One last claim, and we are done.
Crime-of-Violence Claim
As we mentioned many pages ago, the jury found Astacio-
Espino, Lanza-Vázquez, and Rivera-Carasquillo guilty on various
counts of using and carrying a firearm during a "crime of violence"
— i.e., VICAR murder predicated on Puerto Rico's murder statute —
in violation of 18 U.S.C. § 924(c)(1)(A).22 A "crime of violence,"
you should know, is any felony offense that
22The pertinent Puerto Rico statute, P.R. Laws Ann. tit. 33,
§ 4734, provides that first-degree murder is
(a) Any murder committed by means of poison, stalking or
torture, or with premeditation.
(b) Any murder committed as a natural consequence of the
attempt or consummation of aggravated arson, sexual
assault, robbery, aggravated burglary, kidnapping, child
abduction, serious damage or destruction, poisoning of
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(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.
Courts sometimes call subparagraph (A) the "force clause" and
subparagraph (B) the "residual clause." See, e.g., United States
v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017).
Our appellants believe first-degree murder under Puerto
Rico law is not a crime of violence under either the force clause
or the residual clause. Because they (admittedly) did not raise
the crime-of-violence issue below, they must now run the gauntlet
of plain-error review — a very-difficult-to-meet standard,
remember (see footnote 14), that requires them to "show (1) error,
(2) plainness, (3) prejudice [to them], and (4) an outcome that is
a miscarriage of justice or akin to it." See United States v.
Edelkind, 467 F.3d 791, 797 (1st Cir. 2006); see also United States
v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016) (stressing that "[t]he
party asserting plain error bears the burden of persuasion"); see
bodies of water for public use, mayhem, escape, and
intentional abuse or abandonment of a minor.
(c) The murder of a law enforcement officer, school
police, municipal guard or police officer, marshal,
prosecutor, solicitor for minors' affairs, special
family solicitors for child abuse, judge or custody
officer in the performance of his duty, committed while
carrying out, attempting or concealing a felony.
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generally Puckett, 556 U.S. at 135 (emphasizing that meeting all
four plain-error factors "is difficult, as it should be").
Helpfully for appellants, after the completion of
briefing here, the Supreme Court struck down the residual clause
as unconstitutionally vague. See United States v. Davis, 139 S.
Ct. 2319, 2336 (2019). And with the residual clause now out of
way, they must convince us that a violation of Puerto Rico's murder
statute cannot be a crime of violence under the force clause. They
say they can because, in their words, Puerto Rico's murder statute
"has no element requiring the intentional use, attempted use, or
threatened use of violent physical force" — "killing," they write,
"could encompass non-physical force." The government says they
cannot because, to quote its brief, "common sense" suggests that
there is probably no "more 'violent' crime than premeditated
murder."
Right off the bat, though, appellants have a problem.
Under a brief subheading titled "Defendants Meet the Plain Error
Standard," appellants explain why they should get plain-error
relief since a violation of Puerto Rico's murder statute cannot be
a crime of violence under the residual clause — a point well taken,
especially given the Supreme Court's hot-off-the-presses Davis
decision. But (and it's a very big but) they do not explain why
reliance on the force clause here is plain error — for example,
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they never say how any error (if error there was) is "plain," i.e.,
"an 'indisputable' error . . ., 'given controlling precedent.'"
See United States v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016)
(quoting United States v. Correa-Osorio, 784 F.3d 11, 22 (1st Cir.
2015)). Properly applying force-clause precedent is no picnic (an
understatement if ever there was one), seeing how the "'crime of
violence'" definition "is complex and unclear." See U.S.S.G.,
Supplement to Appendix C, Amend. 798 at 119 (2018). So the parties
must give us the help we need — again, it is for them, not us, to
"develop[] sustained argument out of . . . legal precedents." See
Town of Norwood v. Fed. Energy Reg. Comm'n, 202 F.3d 393, 404-05
(1st Cir. 2000). But what our appellants have done — making no
effort to satisfy every part of the plain-error test on the force-
clause question (despite having the burden of proving plain error)
— "is hardly a serious treatment of a complex issue." See Tayag
v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011).
Which dooms their crime-of-violence claim — for as legal
sophisticates know, a party's "failure to attempt to meet the four-
part burden under plain error review constitutes waiver." See
United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir. 2018)
(relying on Pabon, 819 F.3d at 33-34).
And that is that.
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Wrap Up
Because appellants' challenges come to naught, we
affirm.
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