United States v. Vigio-Aponte ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 16-1507
16-1527
16-1596
16-1984
17-1660
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR M. RODRÍGUEZ-TORRES, a/k/a Cuca;
TARSIS GUILLERMO SÁNCHEZ-MORA, a/k/a Guillo;
REINALDO RODRÍGUEZ-MARTÍNEZ, a/k/a Pitbull;
PEDRO VIGIO-APONTE, a/k/a Pedrito and He Man;
CARLOS M. GUERRERO-CASTRO, a/k/a Carlitos el Negro,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Lydia Lizarríbar-Masini for appellant Víctor M. Rodríguez-
Torres.
Theodore M. Lothstein, with whom Lothstein Guerriero, PLLC,
was on brief, for appellant Tarsis Guillermo Sánchez-Mora.
Vivian Shevitz for appellant Reinaldo Rodríguez-Martínez.
Jamesa J. Drake, with whom Drake Law, LLC was on brief, for
appellant Pedro Vigio-Aponte.
Raúl S. Mariani-Franco on brief for appellant Carlos M.
Guerrero-Castro.
Stratton C. Strand, Attorney, Criminal Division, Appellate
Section, U.S. Department of Justice, with whom Brian A.
Benczkowski, Assistant Attorney General, and Matthew S. Miner,
Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez,
United States Attorney, Alberto R. López-Rocafort, Assistant
United States Attorney, and Victor O. Acevedo-Hernández, Assistant
United States Attorney, were on brief, for appellee.
September 18, 2019
THOMPSON, Circuit Judge.
PREFACE
La Rompe ONU (just "La Rompe" from now on) was one of
the largest and most violent of Puerto Rico's street gangs.
Another was La ONU. Deadly rivals, each wreaked much havoc on
Puerto Rico through serial drug sales, violent robberies and
carjackings, and ghastly killing sprees.
After law enforcement took La Rompe down, La Rompe
members Rodríguez-Torres, Sánchez-Mora, Rodríguez-Martínez,
Vigio-Aponte, and Guerrero-Castro (their full names and aliases
appear above) found themselves indicted, then convicted, and then
serving serious prison time for committing some or all of the
following crimes: conspiracy to violate RICO (short for "Racketeer
Influenced and Corrupt Organizations Act"), see 18 U.S.C.
§ 1962(d); conspiracy to possess and distribute narcotics, see 21
U.S.C. §§ 846, 860(a); use and carry of a firearm in relation to
a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A); and drive-
by shooting, see 18 U.S.C. §§ 36(b)(2)(A), 2 (aiding and abetting)
— to list only a few. The testimony of several cooperating
witnesses — Luis Yanyoré-Pizarro, Oscar Calviño-Ramos, Luis
Delgado-Pabón, and Oscar Calviño-Acevedo (persons indicted with
our defendants, but who later pled guilty) — helped seal their
fate.
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Collectively, our defendants' appeals (now consolidated)
raise a battery of issues concerning the sufficiency of the
evidence for the RICO-conspiracy, drug-conspiracy, and firearms
convictions; the admission of out-of-court statements about a
murder-by-choking incident; the correctness of the RICO-conspiracy
jury instructions; and the reasonableness of two of the sentences.1
We address these subjects in that order, filling in the details
(like which defendant makes which claims) as we move along.2 But
for anyone wishing to know our ending up front, when all is said
and done we affirm.
1 Rodríguez-Martínez also argues that his trial attorney
rendered ineffective assistance by failing to object to certain
jury instructions and to any aspect of the sentencing. He debuts
the argument here, however. And the record is not suitably
developed for deciding that issue now. So we dismiss this claim,
without prejudice to his raising it (if he wishes) in a timely
postconviction-relief petition under 28 U.S.C. § 2255. See, e.g.,
United States v. Tkhilaishvili, 926 F.3d 1, 20 (1st Cir. 2019).
2 We do have a small speed bump to clear first, however.
Rodríguez-Torres, Sánchez-Mora, and Vigio-Aponte try to join some
of their coappellants' arguments. There is a mechanism for doing
this, see Fed. R. App. P. 28(i), though appellants must "connect
the arguments" they wish to "adopt[] with the specific facts
pertaining to [them]," see United States v. Bennett, 75 F.3d 40,
49 (1st Cir. 1996) — i.e., they must show "that the arguments"
really are "transferable" from their coappellants' case to theirs,
see United States v. Ramírez-Rivera, 800 F.3d 1, 11 n.1 (1st Cir.
2015) (quotation marks omitted). We question whether Rodríguez-
Torres and Sánchez-Mora did enough to satisfy this standard. But
because the arguments are not difference-makers, "we will assume"
(without holding) "that each appellant effectively joined in the
issues that relate to his situation." United States v. Rivera-
Carrasquillo, 933 F.3d 33, 39 n.5 (1st Cir. 2019).
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SUFFICIENCY CLAIMS
Overview
Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro,
and Sánchez-Mora (but not Vigio-Aponte) claim that the prosecution
submitted insufficient evidence to sustain some of their
convictions:
 Rodríguez-Torres challenges his RICO- and drug-conspiracy
convictions, plus his firearm conviction;
 Rodríguez-Martínez contests his RICO- and drug-conspiracy
convictions;
 Guerrero-Castro questions his RICO-conspiracy and firearm
convictions; and
 Sánchez-Mora (by adopting his codefendants' arguments that
apply to his situation) disputes his RICO- and drug-
conspiracy convictions.
And so they fault the judge for denying their motions for judgments
of acquittal. We will turn to the specifics of their arguments
and the government's counterarguments in a minute. But like the
government, we find none of their claims persuasive.
Analysis
Standard of Review
We assess preserved sufficiency claims de novo (with
fresh eyes, in plain English), reviewing the evidence, and making
all inferences and credibility choices, in the government's favor
— reversing only if the defendant shows that no rational factfinder
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could have found him guilty. See, e.g., Ramírez-Rivera, 800 F.3d
at 16; United States v. Casas, 356 F.3d 104, 126 (1st Cir. 2004).
For convenience, we'll call this the regular sufficiency standard.
An unpreserved challenge, contrastingly, requires reversal only if
the defendant shows — after viewing the evidence the exact same
government-friendly way — that allowing his conviction to stand
will work a "clear and gross injustice." See, e.g., United States
v. Freitas, 904 F.3d 11, 23 (1st Cir. 2018); United States v.
Foley, 783 F.3d 7, 12-13 (1st Cir. 2015) (calling the clear-and-
gross injustice metric a "stringent standard" that is "a
particularly exacting variant of plain error review"). For easy
reference, we'll call this the souped-up sufficiency standard.
Adopting a scorched-earth approach, the parties fight
over which standard to apply. Convinced that they preserved their
sufficiency arguments, Rodríguez-Torres, Rodríguez-Martínez,
Guerrero-Castro, and Sánchez-Mora argue that we should use the
regular sufficiency standard. Unimpressed by their assertions,
the government believes that the quartet "waived" aspects of their
arguments and that we must therefore apply the souped-up
sufficiency standard to those claims. But rather than spend time
grappling with the intricacies of this issue, we will assume
arguendo in their favor that they preserved each sufficiency
argument.
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RICO-Conspiracy Crime
RICO makes it a crime "for any person employed by or
associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of [an]
enterprise's affairs through a pattern of racketeering activity"
— or to conspire to do so. See 18 U.S.C. § 1962(c), (d). Broadly
speaking (we will have more to say on this below), a RICO-
conspiracy conviction requires proof that the defendant knowingly
joined the conspiracy, agreeing with one or more coconspirators
"to further [the] endeavor which, if completed, would satisfy all
the elements of a substantive [RICO] offense." Salinas v. United
States, 522 U.S. 52, 65 (1997); see also Aetna Cas. Sur. Co. v. P
& B Autobody, 43 F.3d 1546, 1562 (1st Cir. 1994).
Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro,
and Sánchez-Mora offer a litany of reasons why the evidence does
not support their RICO-conspiracy convictions. Disagreeing with
everything they say, the government thinks that the evidence is
just fine. We side with the government.3
3
A quick heads-up: in a part of our opinion addressing the
defendants' jury-charge complaints, the parties argue over whether
the judge properly instructed on the enterprise, interstate-or-
foreign-commerce, association, participation, and mental-state
elements. Those arguments are not relevant here, however, given
how the defendants frame their sufficiency challenges.
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(i)
enterprise
Enterprises under RICO include "any union or group of
individuals associated in fact although not a legal entity." See
United States v. Turkette, 452 U.S. 576, 578 n.2 (1981); see also
Ramírez-Rivera, 800 F.3d at 19. Such so-called association-in-
fact enterprises may be "proved by evidence of an ongoing
organization, formal or informal, and by evidence that the various
associates function as a continuing unit." See Turkette, 452 U.S.
at 583. The group need not have some decisionmaking framework or
mechanism for controlling the members. See Boyle v. United States,
556 U.S. 938, 948 (2009) (holding that a RICO enterprise "need not
have a hierarchical structure or a 'chain of command'; decisions
may be made on an ad hoc basis and by any number of methods — by
majority vote, consensus, a show of strength, etc."). Instead the
group must have "[1] a purpose, [2] relationships among those
associated with the enterprise, and [3] longevity sufficient to
permit these associates to pursue the enterprise's purpose."4 Id.
at 946.
As to [1] — "purpose" — the group must share the "common
purpose of engaging in a course of conduct." Id. As to [2] —
"relationship" — there must also be evidence of "interpersonal
4 We added the bracketed numbers for ease of discussion.
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relationships" calculated to effect that purpose, i.e., evidence
that the group members came together to advance "a certain object"
or "engag[e] in a course of conduct." Id. (quotation marks
omitted). And as to [3] — "longevity" — the group must associate
based on its shared purpose for a "sufficient duration to permit
an association to 'participate' in [the enterprise's affairs]
through 'a pattern of racketeering activity,'" id., though
"nothing in RICO exempts an enterprise whose associates engage in
spurts of activity punctuated by periods of quiescence," id. at
948. Also and importantly, because RICO's plain terms "encompass
'any . . . group of individuals associated in fact,' . . . the
definition has a wide reach," meaning "the very concept of an
association in fact is expansive." Id. at 944 (emphasis added by
the Boyle Court).
Measured against these legal standards, the record —
visualized most favorably to the government — adequately shows
that La Rompe operated as an association-in-fact enterprise.
For starters, the evidence reveals La Rompe's purpose:
to get filthy rich by selling drugs at La Rompe-controlled housing
projects, using violence (and deadly violence at that) whenever
necessary to protect and expand its turf. As cooperator Delgado-
Pabón put it, La Rompe's "purpose" was "to make the organization
bigger" and "stronger" — "to control all of the housing projects
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in the metro area" so that it would be rolling in money. On top
of that, the evidence shows the necessary relationships between La
Rompe members: associates named their group "La Rompe ONU,"
reflecting that they saw themselves as a united, organized group
of drug traffickers — the "ONU" stands for "Organización de
Narcotraficantes Unidos" (in English, "Organization of United Drug
Traffickers"); self-identified as La Rompe "members," flashing a
hand signal to show their loyalty; got together daily to peddle
massive amounts of drugs at La Rompe's many drug points; had
meetings to discuss decisions that "[a]ffect[ed] the
organization," like whether to kill a traitor or take over a La
ONU-controlled housing project (La Rompe and La ONU were archfoes,
don't forget), or how to keep the peace among the members; worked
together — pooling resources, for example (manpower, guns, and
cars, etc.) — to boost profits and gain more territory, principally
through jointly-undertaken activities like robberies, carjackings,
and murders; and followed La Rompe "rules" like their lives were
on the line — because they were. And finally, the evidence shows
La Rompe continued as a cohesive unit for at least eight years.
See Ramírez-Rivera, 800 F.3d at 19 (finding similar evidence "more
than" adequate to prove "a RICO enterprise").
Though not necessary thanks to Boyle (which remember
held that a RICO enterprise "need not have a hierarchical structure
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or a "chain of command'; decisions may be made on an ad hoc basis
and by any number of methods — by majority vote, consensus, a show
of strength, etc."), the evidence also shows that La Rompe had
business-like traits as well. In addition to its name, meetings,
and rules, La Rompe had a loose hierarchical structure. Josué
Vázquez-Carrasquillo was La Rompe's "supreme leader," and Vigo-
Aponte was its "second" leader. Each La Rompe-controlled housing
project had a La Rompe-appointed "leader" and drug-point owners,
the latter of whom had responsibility over "employees" like
enforcers, sellers, runners, and lookouts. Also much like a
business, La Rompe rewarded good performance and loyalty. In the
words of cooperator Calviño-Acevedo, "practically all of us, we
worked for the organization like normal employees," growing
"within the organization" to the point "we'd be given a drug
point." One way to advance within La Rompe was by being close to
the "boss," Vázquez-Carrasquillo. Another way was by "killing
people." And with these extra structural features, the evidence
here far surpasses what Boyle requires for a RICO enterprise.
Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora
resist this conclusion on several grounds. The government sees no
merit in any of them. Neither do we.
Despite conceding in their appellate briefs that La
Rompe was indeed a "drug trafficking organization" (emphasis
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ours), the trio argues that La Rompe was not an enterprise because
(in their telling) the housing-project crews were "independen[t]"
entities that did not "coordinat[e]" with each other. The evidence
cuts against them, however. According to the record, while there
were "different crews," La Rompe "controlled" the housing-project
drug points — with "one same boss" (Vázquez-Carrasquillo) at the
top. And everyone in the organization — from the supreme leader
and his second-in-command, to the housing-project leaders, to the
drug-point owners, to the low-level employees — were La Rompe
members who (among other things) had to follow the organization's
rules or else (with the "or else" ranging all the way from a
beating, to death). Unsurprisingly then, La Rompe members often
worked together, regardless of crew affiliation. One example is
that La Rompe frequently "call[ed] in several enforcers from
different groups" when taking over La ONU-controlled housing
projects. Another example is that La Rompe sometimes used members
from across the organization when carrying out killings. See
generally Ramírez-Rivera, 800 F.3d at 19 (holding that, although
La ONU came about as a "merging of smaller gangs that still
operated their existing drug points," it qualified as a RICO
enterprise because (among other things) the groups combined their
efforts "to sell drugs, and later, to also stomp out the
competition (specifically, La Rompe)").
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Not so fast, say Rodríguez-Torres, Guerrero-Castro, and
Sánchez-Mora. They contend that crews from different housing
projects did not "share . . . resources for purchase of narcotics
or firearms," which, they believe, kiboshes any notion that La
Rompe was a RICO enterprise. But they ignore Yanyoré-Pizarro's
testimony that "La Rompe" committed robberies and carjackings to
(among other things) "get the money to maintain drug points that
we were acquiring little by little" and to "buy materials, buy
weapons, buy ammo, bullets." And they ignore Calviño-Acevedo's
testimony to the same effect.5
In a somewhat related vein, Rodríguez-Torres, Guerrero-
Castro, and Sánchez-Mora insist that La Rompe did not own or have
"a cache of firearms." But the testimony shows that La Rompe had
"pistols, rifles, AR-15s, AK-47s," which, when "not in the hands
of enforcers," the organization stored in various apartments.
5 The trio also blasts the government for not producing
evidence of how La Rompe members communicated with or even knew
each other. The gaping hole in this argument is that the
government can prove a RICO conspiracy without showing that each
conspirator "knew all the details or the full extent of the
conspiracy, including the identity and role of every other
conspirator." Aetna Cas. Sur. Co., 43 F.3d at 1562. Still, the
evidence shows that La Rompe members knew each other by nickname
or identified each other by hand signal. And a rational jury could
reasonably infer that members developed a level of familiarity
with each other by, for example, attending organizational meetings
or committing countless crimes together. "[A]s [you] grew in the
organization," Calviño-Acevedo told the jury, "you learn[ed] . . .
who's who and who's not who."
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Enforcers could own their own guns. But leaders could take them
away if the enforcers did "something wrong." And enforcers also
had to lend their guns to other La Rompe members when needed.
Still trying to spin the gun evidence in their favor,
the trio claims that La Rompe members would "fight over, steal and
even kill each other to get firearms." But the episode they
discuss involved a non-La Rompe member (known as "Colo") who sold
guns to one La Rompe crew who was having an "internal war" with
another crew (cooperator Calviño-Acevedo and his colleagues killed
Colo, but they also killed a four-year-old boy with a stray
bullet). Despite the conflict between the crews, Calviño-Acevedo
testified that both crews were still part of La Rompe.
Curiously, Rodríguez-Torres, Guerrero-Castro, and
Sánchez-Mora claim that "La Rompe had no economic activity" or
"financial organization" and derived no "economic or
organizational benefit" from its members' drug dealing. This is
curious because making money through drug selling was La Rompe's
raison d'être. Whether drug sales directly benefited La Rompe is
irrelevant, because the sales contributed to La Rompe's goal of
enriching its members. And the drug dealing did benefit La Rompe
organizationally, because one of La Rompe's main goals was "to
control all of the housing projects of the metro area," which
required tons of cash. Insofar as the trio means that La Rompe
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did not have a bank account or balance sheet, these formalities
are not required for an association-in-fact enterprise. See Boyle,
556 U.S. at 948. Regardless, some La Rompe members did perform
accounting functions — Rodríguez-Torres, for example, "took care
of [Vázquez-Carrasquillo's] finances" and helped with Vigo-
Aponte's "finances" too.
Taking another tack, the trio claims that La Rompe did
not pay Yanyoré-Pizarro and Calviño-Acevedo for their work as
enforcers — which, they contend, shows no enterprise existed. But
Yanyoré-Pizarro testified that some owners gave him "[c]ars,
firearms," and sometimes "cash" for contract killings. And
Calviño-Acevedo testified that "the organization" compensated him
for killings by giving him "[c]ountless drug points."
As a last gasp, Rodríguez-Torres, Guerrero-Castro, and
Sánchez-Mora say that we should see the enterprise issue their
way, because no evidence shows that La Rompe had "colors,
initiation rites, and a formal hierarchy" or even "trained" its
members "in the use of weapons and criminal conduct." This
argument is beside the point. When they exist, such features
certainly are relevant to the enterprise inquiry. But none is
necessary. And the absence of any is not determinative. See
Boyle, 556 U.S. at 948; see also United States v. Nascimento, 491
F.3d 25, 33 (1st Cir. 2007). As explained above, however, the
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record does show that La Rompe had these or similar features — La
Rompe members identified themselves with a hand signal, had a rite
of passage (killing to get a drug point), and a loose hierarchical
structure. To this we add that when cooperator Calviño-Acevedo
joined La Rompe, a La Rompe leader "explained to [him] how
everything was," which disposes of their no-training suggestion.
The bottom line is that the government presented
sufficient evidence that La Rompe was an association-in-fact
enterprise, despite what the trio thinks.
(ii)
effect on interstate or foreign commerce
Prosecutors had to show La Rompe's interstate- or
foreign-commerce effects. Insisting that "La Rompe did not operate
outside of Puerto Rico" and that the "violent actions imputed to
La Rompe occurred in Puerto Rico," Rodríguez-Torres, Guerrero-
Castro, and Sánchez-Mora contend that "no evidence" shows that La
Rompe impacted "interstate commerce" in a RICO sense. The
government disagrees. And so do we.
La Rompe need only have had a "de minimis" effect on
interstate or foreign commerce, see Ramírez-Rivera, 800 F.3d at 19
— which is a fancy way of saying that "RICO requires no more than
a slight effect upon interstate commerce," see United States v.
Doherty, 867 F.2d 47, 68 (1st Cir. 1989). And viewed in the proper
light — afresh and in a way most pleasing to the prosecution — the
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record shows that La Rompe's many drug points ran daily (some on
a 24-hour, 7-day-a-week basis), selling endless amounts of
cocaine, heroin, and marijuana, to name just some of the narcotics
dealt there. A government expert testified that cocaine and heroin
are not produced in Puerto Rico, and so must be imported from South
American countries like Colombia. He also testified that marijuana
is not produced in Puerto Rico (except for the hydroponic form,
which is "very limited"), and so must be imported from states like
Arizona, California, and Texas. Cooperator Yanyoré-Pizarro
testified that a La Rompe leader called "Pekeko" imported
"marijuana pounds" from Texas. And cooperator Calviño-Acevedo
testified that he supplied La Rompe with "pounds of marijuana"
that he got "through the mail."
All of this evidence shows that La Rompe's activities
affected not only foreign commerce, but also interstate commerce.
See Ramírez-Rivera, 800 F.3d at 19-20.
(iii)
participation
Prosecutors also had to prove that the defendants had
"some part in directing" La Rompe's affairs — i.e., that they
participated in the "operation or management" of the enterprise
itself. See id. at 20 (relying in part on Reves v. Ernst & Young,
507 U.S. 170, 179, 183 (1993), in assessing the evidentiary
sufficiency of the government's RICO-conspiracy case); see also
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Reves, 507 U.S. at 184-85 (explaining that persons who participate
in the operation or management of the enterprise's affairs will,
of course, necessarily meet the RICO statute's requirement that he
be "associated with" the enterprise). "An enterprise is 'operated'
not just by upper management but also by lower rung participants
in the enterprise who are under the direction of upper management."
Reves, 507 U.S. at 184.
Calling the government's participation evidence too
skimpy, Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro,
and Sánchez-Mora variously argue that "there was no testimony"
that they were "leader[s]" or that they "participated in decision
making events" — in their view of things, they were "merely
present" when key events went down. As the government notes, we
must take all evidence and draw all reasonable inferences in the
prosecution's favor — not theirs. And having done so, we see
plenty of evidence pegging them as drug-point owners: Rodríguez-
Torres owned a marijuana drug point in the La Rompe-controlled
housing project of Covadonga; Rodríguez-Martínez owned a heroin
drug point in the La Rompe-controlled housing project of Monte
Hatillo; Guerrero-Castro owned a marijuana drug point in the La
Rompe-controlled housing project of Los Laureles; and Sánchez-Mora
owned a heroin drug point in the La Rompe-controlled housing
project of Covadonga. Which is important because drug-point owners
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played a critical role in achieving La Rompe's goal of
"control[ling] all of the housing projects of the metro area" to
generate "more money" so La Rompe could "grow and have more power."
As in Ramírez-Rivera, these facts easily satisfy the
participation element. See 800 F.3d at 20 (holding that drug-
point ownership met the operation-or-management test).6
(iv)
pattern of racketeering
A pattern of racketeering activity requires at least two
predicate acts of racketeering within ten years of each other.
See 18 U.S.C. § 1961(5); United States v. Tavares, 844 F.3d 46, 54
(1st Cir. 2016). Predicate acts include murder and drug dealing,
as well as aiding and abetting such acts. See Ramírez-Rivera, 800
6 Citing out-of-circuit law — United States v. Wilson, 605
F.3d 985 (D.C. Cir. 2010), and Smith v. Berg, 247 F.3d 532 (3d
Cir. 2001) — the government suggests (first quoting Wilson, then
quoting Smith, adding its own emphasis) that "[l]iability for a
RICO-conspiracy offense . . . requires only that the defendant has
'knowingly agree[d] to facilitate a scheme which includes the
operation or management of a RICO enterprise'" and that under the
RICO-conspiracy statute, "the defendant need not 'himself
participate in the operation or management of an enterprise.'"
The evidence in our Ramírez-Rivera case showed that the challenging
defendants actually played a part in directing the enterprise's
affairs, given their drug-point-owner status — which necessarily
showed that they agreed to a scheme that included such
participation. So too here. Which is why we need not decide
whether to adopt the Wilson/Smith approach in this case, thus
leaving that issue for another day. See generally PDK Labs., Inc.
v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring
in part and concurring in the judgment) (noting that "if it is
not necessary to decide more, it is necessary not to decide more").
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F.3d at 20 (citing 18 U.S.C. § 1961(1)). The acts must be "related"
and "amount to or pose a threat of continued criminal activity."
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). A RICO-
conspiracy defendant, however, need not have personally committed
— or even agreed to personally commit — the predicates. See
Salinas, 522 U.S. at 63; United States v. Cianci, 378 F.3d 71, 90
(1st Cir. 2004). All the government need show is that the
defendant agreed to facilitate a scheme in which a conspirator
would commit at least two predicate acts, if the substantive crime
occurred. See, e.g., Salinas, 522 U.S. at 64-65; Cianci, 378 F.3d
at 90.
Without citing to the record, Rodríguez-Torres,
Guerrero-Castro, and Sánchez-Mora claim that cooperators offered
"discredit[able]" testimony because they (the cooperators) "could
not" provide dates and times for some events — and thus, the thesis
runs, the government did not prove the pattern-of-racketeering
element. But again, and as the government stresses, we must
inspect the record in the light most flattering to the government's
theory of the case, resolving all credibility issues and drawing
all justifiable inferences in favor of the jury's guilty verdicts
— which undercuts any credibility-based argument.
Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora
also suggest that "while the first predicate act may be the drug
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trafficking imputed to [them], there is simply no additional
evidence to establish another predicate act as required by the
RICO statute." To the extent they suggest that the two predicate
acts must be of different types, they are wrong. See generally
Boyle, 556 U.S. at 948 (noting that "a group that does nothing but
engage in extortion through old-fashioned, unsophisticated, and
brutal means may fall squarely within [RICO's] reach"); Fleet
Credit Corp. v. Sion, 893 F.2d 441, 444-48 (1st Cir. 1990) (holding
that multiple acts of "mail fraud" can satisfy the pattern-of-
racketeering requirement, provided they amount to — or constitute
a threat of — continuing criminal activity). Nevertheless, and as
the government is quick to point out, the evidence shows that La
Rompe members — including drug-point owners (which all three were)
— committed or aided and abetted scads of drug deals (the
government estimated that La Rompe sold thousands of kilograms
each of marijuana, cocaine, crack cocaine, and heroin), plus scores
of murders (drug-point owners, for instance, used "enforcers" to
"kill[] people").7 These acts were related to each other (they
7Sticking with murder for just a bit, we note that cooperator
Yanyoré-Pizarro fingered Rodríguez-Torres as a participant in the
drive-by killing of a La Rompe leader who had "turned" on the
organization (a killing we discuss in the sentencing section of
this opinion). And cooperator Calviño-Acevedo said that Guerrero-
Castro "kill[ed] people" for La Rompe too.
- 21 -
were La Rompe's business, after all), occurred over a lengthy
period (at least eight years) and, at a minimum, threatened to
keep on going (the trio makes no convincing argument to the
contrary).
All in all, the government offered enough evidence of a
racketeering pattern.
(v)
knowingly joined
Each RICO-conspiracy defendant must have knowingly
joined the conspiracy. See, e.g., Aetna Cas. Sur. Co., 43 F.3d at
1562. And "[a]ll that is necessary to prove" this RICO-conspiracy
element is to show "that the defendant agreed with one or more co-
conspirators to participate in the conspiracy." See Ramírez-
Rivera, 800 F.3d at 18 n.11 (quotation marks omitted). Rodríguez-
Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora
think that the government's evidence falls short of satisfying
that element, because, the argument goes, they were at most merely
present (which is all they'll cop to) at the scene of
conspiratorial deeds. But we agree with the government that a
rational jury could infer their knowing agreement to conspire from
their actual participation as drug-point owners. See id. Making
money through drug dealing was a key object of the conspiracy.
And a reasonable jury could conclude that their drug-point
ownership was intended to — and actually did — accomplish that
- 22 -
object. See id. (finding the knowledge element met by similar
evidence).
So the government presented ample evidence on this
element as well.
Drug-Conspiracy Crime
Moving on from the RICO-conspiracy crime, Rodríguez-
Torres, Rodríguez-Martínez, and Sánchez-Mora protest that the
government provided insufficient evidence that they knowingly
joined the drug conspiracy. Not so, says the government. As for
us, we agree with the government that their challenges necessarily
fizzle because (as just indicated) adequate evidence showed that
they knowingly joined the RICO conspiracy, of which the drug
conspiracy was an integral part.
Firearms Crime
Federal law punishes persons for using or carrying a gun
"during and in relation to any . . . drug trafficking crime" or
possessing a gun "in furtherance of any such crime." 18 U.S.C.
§ 924(c)(1)(A); see also United States v. Gonsalves, 859 F.3d 95,
111 (1st Cir. 2017) (explaining that to secure a conviction under
the statute, the government must show that the defendant
"(1) possessed a firearm (2) in furtherance of (3) a drug-
trafficking crime"). To satisfy the in-furtherance requirement,
the government must establish "a sufficient nexus between the
- 23 -
firearm and the drug crime such that the firearm advances or
promotes the drug crime." United States v. Gurka, 605 F.3d 40, 44
(1st Cir. 2010) (quotation marks omitted).
Rodríguez-Torres and Guerrero-Castro insist that the
prosecution put forward no evidence showing that they used or
carried a firearm in furtherance of drug trafficking. Ergo, their
argument continues, the judge should have entered verdicts of
acquittal on the firearm charge. The government, for its part,
believes the opposite is true. And we, for our part, again side
with the government.
Cooperator Delgado-Pabón testified that Rodríguez-
Torres owned drug points in housing projects that La Rompe
controlled. He testified too that Rodríguez-Torres served as an
armed enforcer, carrying a .10 caliber Glock — among other duties,
an enforcer "intimidat[ed]" and "kill[ed]" people for the
organization. Anyway, cooperator Calviño-Acevedo added that
Rodríguez-Torres supplied guns to La Rompe and kept a .40 caliber
Glock at his (Rodríguez-Torres's) house, where he "decked"
marijuana ("decked" is slang for prepared for distribution).
Shifting from Rodríguez-Torres, Delgado-Pabón testified that he
saw an always-armed Guerrero-Castro at a La Rompe-controlled drug
point, pretty much daily at one point. Add to this the large
amount of evidence showing that La Rompe's aim was to defend its
- 24 -
drug turf, with violence if necessary, and we conclude that a
rational jury could easily find that the guns Rodríguez-Torres and
Calviño-Acevedo carried, and the guns Rodríguez-Torres gave to La
Rompe, "advance[d] or promote[d]" their own and their
coconspirators' drug-dealing business. See Gurka, 605 F.3d at 44;
see also Ramírez-Rivera, 800 F.3d at 23 (reaching a similar
conclusion in a similar case involving similar evidence).
Rodríguez-Torres's and Guerrero-Castro's counterarguments do
not do the trick either. Rodríguez-Torres, for example, seemingly
questions Delgado-Pabón's and Calviño-Acevedo's credibility,
calling their testimony occasionally contradictory and
uncorroborated. What he overlooks is that we must draw all
inferences — including inferences about credibility — in favor of
the jury's verdict. So to the extent that his counterargument
turns on showing Delgado-Pabón and Calviño-Acevedo were not
credible — an issue the jury resolved against them — it fails.
Also damaging to him is that our sufficiency cases say that
"[t]estimony from just one witness can support a conviction."
United States v. Negrón-Sostre, 790 F.3d 295, 307 (1st Cir. 2015)
(quotation marks omitted). As for Guerrero-Castro, he contends
that Delgado-Pabón did not describe "the type" of gun he (Guerrero-
Castro) carried at the drug points. But no such evidence was
needed. See Ramírez-Rivera, 800 F.3d at 23. Still searching for
- 25 -
a game-changing theory, he speculates that maybe he had a
"[r]eplica" gun. A problem for him is that he approaches the
record the wrong way — for after drawing all plausible inferences
in favor of the verdict (something he does not do), we think a
reasonable jury could infer from the evidence (e.g., that he was
an "always armed" drug-point owner who "would kill") that he
possessed a firearm as defined in the criminal code. See 18 U.S.C.
921(a)(3) (explaining that "firearm" in § 924(c) means a weapon
"which will or is designed to or may readily be converted to expel
a projectile by the action of an explosive").8
Wrap Up
Sufficiency challenges are notoriously difficult to win,
given the standard of review. See, e.g., United States v. Tum,
707 F.3d 68, 69 (1st Cir. 2013). And having spied no winning
argument here, we press on.
OUT-OF-COURT-STATEMENTS CLAIMS
Overview
Guerrero-Castro argues that the judge slipped by
admitting two out-of-court statements allegedly made by him — one
8The indictment also charged the duo with aiding and abetting
the possession of a firearm in relation to a drug-trafficking
conspiracy. And Rodríguez-Torres claims the evidence inadequately
supported that theory. But because the evidence sufficed to
convict him as a principal, we need not address that facet of his
sufficiency claim.
- 26 -
to cooperator Calviño-Ramos, the other to cooperator Calviño-
Acevedo. Both statements indicated that Guerrero-Castro had
choked a La ONU member to death. As he sees it, the government
violated federal Criminal Rule 12 by not notifying him of its plan
to use these statements at trial.9 Disagreeing, the government
asserts that Guerrero-Castro "waived" any problem he had with the
admission of Calviño-Ramos's testimony by not raising it below.
Waiver aside, the government sees no error because Guerrero-Castro
made that statement before Calviño-Ramos became a government
cooperator and so was not discoverable under Rule 12. As for the
statement to Calviño-Acevedo, the government relevantly contends
that Guerrero-Castro cannot show prejudice, because the jury had
already heard Calviño-Ramos's testimony. In the pages that follow,
9 Rule 12(b)(4)(B) provides that
[a]t the arraignment or as soon afterward as
practicable, the defendant may, in order to have an
opportunity to move to suppress evidence under Rule
12(b)(3)(C), request notice of the government's intent
to use (in its evidence-in-chief at trial) any evidence
that the defendant may be entitled to discover under
Rule 16.
And federal Criminal Rule 16(a)(1)(A) says that
[u]pon a defendant's request, the government must
disclose to the defendant the substance of any relevant
oral statement made by the defendant, before or after
arrest, in response to interrogation by a person the
defendant knew was a government agent if the government
intends to use the statement at trial.
- 27 -
we explain why the government has the better of the argument — but
first, some context.
A couple of weeks before trial, Guerrero-Castro asked
the judge to have prosecutors disclose pretrial all statements he
was entitled to under federal Criminal Rule 16(a)(1)(A) — a
provision (we note again) that makes discoverable "the substance
of any relevant oral statement made by the defendant, before or
after arrest, in response to interrogation by a person the
defendant knew was a government agent if the government intends to
use the statement at trial." Guerrero-Castro wanted to know if
prosecutors planned to "rely on any such statements" so he could
decide if he should move to suppress them. The judge issued a
minute order granting Guerrero-Castro's "Rule 16" motion. A few
days later, complying with a previous order requiring early
disclosure of witness statements covered by the Jencks Act, 18
U.S.C. § 3500, the government handed the defense "4,000 pages" of
materials relating to cooperators Yanyoré-Pizarro, Delgado-Pabón,
Calviño-Ramos, and Calviño-Acevedo.10
At trial, Calviño-Ramos testified that Guerrero-Castro
got a drug point at "Los Laureles" by "kill[ing]" for La Rompe.
10
The Jencks Act is named after Jencks v. United States, 353
U.S. 657 (1957). See United States v. Acosta-Colón, 741 F.3d 179,
189 n.1 (1st Cir. 2013).
- 28 -
Asked how he knew this, Calviño-Ramos testified (over leading-
question and asked-and-answered objections by the defense) that
Guerrero-Castro, "Bin La[den]," "Bryan Naris," and "Kiki Naranja"
told him in "Los Laureles" that Guerrero-Castro had choked a La
ONU member to death. At a bench conference after Calviño-Ramos's
testimony, Guerrero-Castro's counsel raised a "Jencks" concern,
saying he needed any Jencks statements about the choking incident
for cross-examination purposes. No such statements existed, the
prosecutor told the judge. The prosecutor added that the
government had disclosed in pretrial plea negotiations that it
would put on evidence that Guerrero-Castro had committed a choking
murder. And after the judge said "[l]et's proceed with cross,"
Guerrero-Castro's lawyer said that he had "no issue then."
Several days later, Calviño-Acevedo testified that
Guerrero-Castro "is known as a person who grabs people by the neck
and chokes them." Asked how he knew this, Calviño-Acevedo said
that Guerrero-Castro "confessed . . . one time" when "we were at
MDC" Guaynabo, a federal prison in Guaynabo, Puerto Rico.
Guerrero-Castro's counsel objected. And another bench conference
took place. Guerrero-Castro's lawyer noted that "[t]he government
informed me of the statement that you heard." But he said that
the government had not given "written notice" that it intended to
introduce the statement as "a confession." Responding to questions
- 29 -
from the judge, the prosecutor said that Guerrero-Castro's counsel
knew from "several proffer sessions that evidence would come out
that his client would choke people, that our cooperating witnesses
would say in open court under oath that his client would choke
people, so he knew this was coming." Asked by the judge if the
government had told the defense that "this evidence was coming out
today?" the prosecutor responded (without contradiction from
defense counsel) that he had. The prosecutor also said that
Calviño-Acevedo's comment involved the same choking incident that
Calviño-Ramos had testified to. Finding that the government had
given the defense "plenty of notice" and that Calviño-Acevedo would
simply be "confirming what [Calviño-Ramos] said," the judge
overruled the objection.
Now on to our take.
Analysis
Standard of Review
Abuse-of-discretion review applies to preserved claims
that the judge should not have admitted evidence because the
government infracted Rule 12. See, e.g., United States v. Marrero-
Ortiz, 160 F.3d 768, 774 (1st Cir. 1998). The parties, however,
disagree on whether Guerrero-Castro properly preserved all his
arguments here. Guerrero-Castro says he did. The government says
he is only half right, insisting that he waived or forfeited his
- 30 -
arguments about Calviño-Ramos's testimony but agreeing that he
preserved his arguments about Calviño-Acevedo's testimony. We
bypass any concerns about waiver or forfeiture, because his
challenge fails regardless.
Statement to Calviño-Ramos
Rule 12(b)(4)(B) applies to evidence that is
"discoverable under Rule 16." United States v. de la Cruz-Paulino,
61 F.3d 986, 993 (1st Cir. 1995). To be discoverable under Rule
16, the statement had to have been made to a government agent.
Fed. R. Crim. P. 16(a)(1)(A). But Guerrero-Castro offers no Rule
16-based argument — i.e., that he made the statement "in response
to interrogation by a person [he] knew was a government agent."
And that is probably because — as the government notes, without
being contradicted (Guerrero-Castro filed no reply brief) —
Guerrero-Castro made the statement to Calviño-Ramos before
Calviño-Ramos became a government cooperator. See generally
United States v. Taylor, 417 F.3d 1176, 1181 (11th Cir. 2005)
(spying no abused discretion "in admitting" the challenged
testimony because the defendant "made . . . voluntary statements
to an individual who was not a government agent" — thus "the
statements are . . . not discoverable under" Rule 16(a)(1)(A)).
- 31 -
Statement to Calviño-Acevedo
We can also make quick work of Guerrero-Castro's
challenge to Calviño-Acevedo's testimony. That is because even if
Guerrero-Castro could show a Rule 12 violation (and we intimate no
hint of a suggestion that he could), he cannot show prejudice,
because the jury had already heard Calviño-Ramos's testimony to
the same effect. See generally de la Cruz-Paulino, 61 F.3d at 993(noting that to get a reversal for a Rule 12 violation, "[a]
defendant must prove that the alleged violation prejudiced his
case" (quotation marks omitted and brackets in original)). And
despite hearing both Calviño-Ramos and Calviño-Acevedo testify
about the choking admission, the jury found Guerrero-Castro not
guilty of two murder counts — this fact is significant, because a
"discriminating verdict . . . tends to" undercut an "assertion of
prejudice." United States v. Tashjian, 660 F.2d 829, 836 (1st
Cir. 1981); accord United States v. Boylan, 898 F.2d 230, 246 (1st
Cir. 1990).
Wrap Up
Guerrero-Castro's Rule 12 complaint is not the stuff of
reversible error.
- 32 -
JURY-INSTRUCTION CLAIMS
Overview
Each defendant challenges various parts of the judge's
general RICO-conspiracy instructions.11 Here is what you need to
know.
After the government concluded its case-in-chief, the
judge excused the jury and handed counsel a "draft" of the proposed
jury instructions so that they could "take [the draft] with" them
that night. The judge warned them to "be prepared to do closings"
the following day.
The next morning, the judge discussed with counsel a few
tweaks he made to the draft instructions (adding, for example,
conspiracy-withdrawal and multiple-conspiracy instructions). The
defendants completed their cases that morning (Rodríguez-
Martínez's mother took the stand, for instance) and then rested.
Before breaking for lunch at 12:45 p.m., the judge distributed the
revised instructions.
11
To save the reader from having to flip back a few pages,
we repeat that RICO forbids "person[s] employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of [that] enterprise's
affairs through a pattern of racketeering activity" — or to
conspire to do so. See 18 U.S.C. § 1962(c), (d).
- 33 -
At around 2:00 p.m., the court came back into session.
The government, Guerrero-Castro, and Vigio-Aponte gave their
closing arguments. And Rodríguez-Martínez started his. After
excusing the jury for the evening, the judge asked counsel if they
had "[a]ny questions about the instructions." Speaking first,
Guerrero-Castro's lawyer said that he had "reviewed" the draft
instructions, "checked some cases," and made written "notes" about
"questions or suggestions." He then asked for a couple of changes.
But concerning the RICO instructions, he only objected to what the
parties (and we) call the "essence of a RICO conspiracy" charge
(representing the judge's summary of RICO law), arguing that "it's
repetitive, because the elements have been discussed in detail in
the prior instructions" and that it unduly "simplifie[s] . . . the
elements that have to be proven beyond a reasonable doubt."
Sánchez-Mora's counsel joined in that objection. Counsel for
Rodríguez-Torres, Rodríguez-Martínez, and Vigio-Aponte raised no
objections to the RICO-conspiracy instructions. The judge
declined to eliminate the essence-of-a-RICO-conspiracy charge.
The following day, after the remaining defendants'
closing arguments and the government's rebuttal, the judge charged
the jury. On the RICO-conspiracy count, the judge said that to
establish guilt, "the government must prove that each defendant
knowingly agreed that a conspirator, which may include the
- 34 -
defendant himself, would commit a violation of . . . 18 U.S.[C. §]
1962(c), which is commonly referred to as the substantive RICO
[s]tatute." After quoting § 1962(c), the judge stated (emphasis
ours) that the government must prove five elements beyond a
reasonable doubt:
First, that an enterprise existed or that [an]
enterprise would exist. Second, that the enterprise was
or would be engaged in or its activities [a]ffected or
would [a]ffect interstate or foreign commerce. . . .
Third, that a conspirator was or would be employed or
associated with the enterprise. Fourth, that a
conspirator did or would conduct or participate in —
either directly or indirectly — the conduct of the
affairs of the enterprise. And, fifth, that a
conspirator did or would knowingly participate in the
conduct of the affairs of the enterprise through a
pattern of racketeering activity as described in the
Indictment. That is, a conspirator did or would commit
at least two acts of racketeering activity.
The judge then said a little bit about each element. For example,
and as relevant here, the judge said (emphasis ours) that
"racketeering activity" includes "drug trafficking, robbery,
murder, carjacking, and illegal use of firearms, among many
others." And then the judge gave the essence-of-a-RICO-conspiracy
charge (again, emphasis ours):
[B]ecause the essence of a RICO conspiracy offense is
the agreement to commit a substantive RICO offense, the
government need only prove beyond a reasonable doubt
that if the conspiracy offense was completed as
contemplated, the enterprise would exist, that this
enterprise would engage in or its activities would
[a]ffect interstate or foreign commerce[,] [a]nd that a
conspirator, who could be but need not be the defendant
himself, would have been employed by or associated with
- 35 -
the enterprise through a pattern of racketeering
activity.
The government is not required to prove that the
alleged enterprise was actually established; that the
defendant was actually employed by or associated with
the enterprise; or that the enterprise was actually
engaged in or its activities actually [a]ffected
interstate or foreign commerce.
Wrapping up, the judge explained what the government had to
establish to show that a defendant "entered into the required
conspiratorial agreement" — namely, "that the conspiracy existed
and that the defendant knowingly participated in the conspiracy
with the intent to accomplish [its] objectives or assist other
conspirators in accomplishing [its] objectives," with knowingly
"mean[ing] that something was done voluntarily and intentionally,
and not because of a mistake, accident or other innocent reason."
After completing the charge, the judge gave the lawyers
a chance to object at sidebar. Only Guerrero-Castro's attorney
objected to the RICO-conspiracy instructions, repeating his claim
that the essence-of-a-RICO-conspiracy charge "oversimplifies the
elements of the offense."
With this background in place, we flesh out the parties'
claims.
Our defendants argue — in various combinations — that
the judge gave improper and confusing RICO-conspiracy instructions
- 36 -
(in delivering both the long version and the essence-of-a-RICO-
conspiracy charge) by
(1) not requiring findings that (a) the enterprise actually
existed; (b)the enterprise actually affected interstate
or foreign commerce; (c) the defendant actually was
employed or associated with the enterprise; and (d) the
defendant actually participated in the conduct of the
enterprise's affairs;
(2) not saying that a defendant must have "knowingly joined"
the RICO conspiracy; and
(3) stating that a firearms crime constitutes racketeering
activity.
For ease of reference, we will call these — perhaps somewhat
unimaginatively — argument (1), argument (2), and argument (3).
Anyhow, their argument (1) theory is that the judge's
repeated use of "would" — that "the enterprise would exist," that
the enterprise's "activities would [a]ffect interstate or foreign
commerce," etc. (emphasis ours) — clashes with Ramírez-Rivera,
where we said that a RICO-conspiracy conviction requires that the
government establish
the existence of an enterprise affecting interstate [or
foreign] commerce[;] . . . that the defendant knowingly
joined the conspiracy to participate in the conduct of
the affairs of the enterprise[;] . . . that the defendant
participated in the conduct of the affairs of the
enterprise[;] and . . . that the defendant did so through
a pattern of racketeering activity by agreeing to
commit, or in fact committing, two or more predicate
offenses.
800 F.3d at 18 (alteration in original) (quoting United States v.
Shifman, 124 F.3d 31, 35 (1st Cir. 1997)). Their argument
- 37 -
(2) claim is that given cases like Ramírez-Rivera, the judge had
to — but did not — tell jurors that to convict on a RICO-conspiracy
charge, they must find that each defendant knowingly joined the
conspiracy. And their argument (3) contention relies on United
States v. Latorre-Cacho, where we held that a judge erred by
instructing the jury that "'firearms' constitute 'racketeering
activity'" — the rationale being that "the commission of firearms
offenses, or even the involvement with firearms," is not included
in the statutory definition of "racketeering activity." 874 F.3d
299, 301, 302 (1st Cir. 2017).
Responding to argument (1), the government claims that
the judge correctly and clearly instructed the jury on the
enterprise, interstate-commerce, association, and participation
elements of the RICO-conspiracy crime. "[T]his [c]ourt," writes
the government, "has not decided whether" RICO conspiracy
"requires proof of an existing enterprise; and the Supreme Court,
though describing the nature of a RICO conspiracy in terms that
foreclose such a requirement, has not explicitly decided the
question" either — "[t]he same is true" of the other contested
elements, the government adds. So in the government's view (based
mainly on its reading of the tea leaves in the United States
Report), the prosecution can satisfy "its burden by proving that
the conspirators agreed to form an enterprise" — which, the
- 38 -
government argues, undercuts the defendants' "interstate-commerce,
association, and participation" arguments as well. As for Ramírez-
Rivera, the government calls the passage excerpted above —
requiring "the existence of an enterprise," for instance — "dicta,"
because prosecutors there, "like th[e] one[s]" here, "relied on
evidence of an actual racketeering enterprise to prove the
agreement that one would be established, and no argument was raised
[there] that the existence of an enterprise was not a necessary
element" of a RICO-conspiracy offense.
As for argument (2), the government insists that the
judge's instructions — e.g., "that the conspiracy existed and that
the defendant knowingly participated in the conspiracy with the
intent to accomplish [its] objectives or assist other conspirators
in accomplishing [its] objectives" — made clear that the defendants
had to have knowingly joined the conspiracy. Which means that the
government believes the judge gave error-free instructions on
these matters — though the government does argue that even if the
judge did err, the defendants still lose, because they cannot show
"prejudice" or "a miscarriage of justice."
Moving to argument (3), the government admits that,
given Latorre-Cacho, the judge did err in telling the jury that a
firearms crime is a racketeering activity for RICO-conspiracy
purposes. But, the government assures us, we need not reverse on
- 39 -
this issue, because no challenging defendant can show "prejudice
[]or a miscarriage of justice," given the "strength of the . . .
evidence of more than two qualifying predicate acts."
Time for us to explain why no reversal is called for
here.
Analysis
Standard of Review
Conceding that they did not preserve their jury-
instruction arguments, Rodríguez-Torres, Sánchez-Mora, Rodríguez-
Martínez, and Vigio-Aponte admit that they now must satisfy the
demanding plain-error standard, showing not just error but error
that is obvious, that is prejudicial (meaning it affected the
proceeding's outcome), and that if not fixed by us (exercising our
discretion) would cause a miscarriage of justice or undermine
confidence in the judicial system. See, e.g., Rivera-
Carrasquillo, 933 F.3d at 48 n.14.
Desperate to escape plain-error review, Guerrero-Castro
says that he did object to the judge's essence-of-a-RICO-
conspiracy charge. True, but that does not help him. His
arguments below (that the essence charge was repetitive of the
previous instructions that stated "the elements" and was also too
simplified to boot) are different from his arguments here (that
the instructions did not accurately define the RICO elements, for
- 40 -
the reasons described in arguments (1) and (2), above — a/k/a, the
"would"-related-instruction and the knowledge-instruction
claims). And our caselaw says that a timely objection on one
ground does not preserve an objection on a different ground. See
United States v. Glenn, 828 F.2d 855, 862 (1st Cir. 1987).
Undaunted, Guerrero-Castro claims that he should get a
pass because the judge conferenced with counsel on the instructions
after the first day of closing arguments, which (supposedly) gave
his attorney "no time to properly prepare and provide the [judge]
more detailed objections." Call us unconvinced. Not only does he
cite us no authority to support his free-pass proposition, but the
record refutes his no-time assertion. The judge gave counsel the
proposed instructions two days before he charged the jury; over
those two days, the judge had several discussions with counsel
about the instructions, including one in which Guerrero-Castro's
lawyer acknowledged that he had reviewed and researched the
instructions and asked for some changes; and the judge held a
sidebar with counsel after delivering the charge, during which
Guerrero-Castro's counsel objected to the essence-of-a-RICO-
conspiracy charge, but, again, not on the grounds raised here.
See United States v. Henry, 848 F.3d 1, 13-14 (1st Cir. 2017)
(finding an instructional claim not preserved because counsel did
not raise it at the post-charge sidebar).
- 41 -
The net result is that we apply plain-error review to
these challenges, knowing too that unpreserved claims of error
like these "rare[ly]" survive plain-error analysis. See Henderson
v. Kibbe, 431 U.S. 145, 154 (1977) (emphasis added); accord United
States v. Gómez, 255 F.3d 31, 37 (1st Cir. 2001) (stressing that
"the plain-error exception is cold comfort to most defendants
pursuing claims of instructional error"); United States v.
Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001) (noting that
"the plain error hurdle, high in all events, nowhere looms larger
than in the context of alleged instructional errors").
Argument (1)
Even assuming (without deciding) that the judge's
"would"-related instructions — that "the enterprise would exist,"
that the enterprise's "activities would [a]ffect interstate or
foreign commerce," etc. (emphasis added) — amount to an error that
is also obvious (and to be perfectly clear, we intimate no judgment
on those questions), we conclude that the defendants fail to
establish prejudice or a miscarriage of justice.12
If an instruction leaves out an offense element, that
"alone is insufficient to demonstrate prejudice." United States
12This is as good a place as any to say a few words about the
parties' views on Ramírez-Rivera. As noted, the defendants read
Ramírez-Rivera as holding that prosecutors in a RICO-conspiracy
case must prove that the enterprise actually existed, that the
defendant was actually employed by or associated with the
- 42 -
v. Hebshie, 549 F.3d 30, 44 (1st Cir. 2008) (emphasis added).13
Rather, a defendant "must satisfy the difficult standard of showing
a likely effect on the outcome or verdict." Id. (quotation marks
omitted). And this our defendants have not done.
The government charged an actual enterprise. And
prosecutors presented that theory to the jury in its opening
statement, closing summation, and rebuttal argument. "Power,
money, control," the prosecution's opening statement began. "The
means[:] drug trafficking, robberies, carjackings, shootings,
violence, murder" — "[t]hat was the business of La Rompe . . .,
and that is what this case is about." In its closing, the
enterprise, that the enterprise's activities actually affected
interstate or foreign commerce, and that the defendant actually
participated in the enterprise's affairs. But as the government
correctly states, Ramírez-Rivera did not have to confront that
issue, because prosecutors there relied on evidence of the
enterprise's actual existence, the defendant's actual employment
or association with the enterprise, etc., to prove the RICO-
conspiracy charge. See 800 F.3d at 18-21. As the government also
correctly states, no binding precedent exists on this issue. And
we need not stake out a position on these points today, because
(as we explain in the text) the defendants lose on plain-error
review even if their view is correct (and we, of course, whisper
no hint that it is). See generally United States v. Caraballo-
Rodríguez, 480 F.3d 62, 70 (1st Cir. 2007) (explaining that a
holding that a party "has not met his burden of showing there was
an error which was plain" is not a "ruling on the merits").
13 As the government explains, the assumed errors here are
perhaps better described as "misdescription[s] of . . . element[s]"
rather than omissions. See Johnson v. United States, 520 U.S.
461, 469 (1997). But the defendants offer no reason (and we see
none) for why this distinction should matter for our analysis.
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prosecution stressed that "La Rompe was a violent gang that
controlled the drug trafficking activities in more than 18 areas,
including housing projects and wards within the Municipalit[ies]
of San Juan, Carolina, and Trujillo Alto," with its "enem[y]" being
"La ONU." The prosecution also called La Rompe "[a]n organization
that killed" in its rebuttal — "[a]n organization that [killed] to
become more powerful[,] [f]or control, power, money."
And the government presented overwhelming evidence
(which we spotlighted pages ago) to back up its theory. For
example, the evidence showed that La Rompe actually existed as an
enterprise, given how associates: self-identified as La Rompe
members; had meetings to discuss matters that affected La Rompe;
shared resources, including manpower, guns, and cars; got together
every day to peddle monstrous amounts of drugs at La Rompe's many
drug points; committed robberies, carjackings, and murder in La
Rompe's name; and had to follow strict rules of conduct, on pain
of death. The evidence also showed that La Rompe's actions had at
least a de minimis effect on interstate or foreign commerce, seeing
how (among other things) La Rompe imported cocaine and heroin from
South America. As for participation, the evidence showed that the
defendants owned drug points in La Rompe-controlled housing
projects. And on the pattern-of-racketeering question, the
evidence showed that La Rompe members — leaders, drug-point owners,
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runners, and sellers, etc. — actually committed (or aided and
abetted the commission of) countless drug sales and scores of
murders, all to advance the enterprise's ghastly business.
In their presentations to the jury, even defense counsel
did not dispute that La Rompe existed, affected interstate or
foreign commerce, and conducted its affairs through drug-
trafficking and murder. For example, Vigio-Aponte's counsel
predicted in her opening statement that the evidence would show
that some of Yanyoré-Pizarro's murders were (emphasis ours)
"related to the La Rompe . . . organization." In his closing
argument, Guerrero-Castro's attorney called La Rompe "a clan of
killers" that operated through "a whole bunch of leaders . . .[,]
runners, and sellers, and drug point owners." Vigo-Aponte's lawyer
admitted in her closing that La Rompe had "area[s]." Rodríguez-
Martínez's attorney conceded in his closing that his client's
cousin was a La Rompe member (implicitly acknowledging that La
Rompe does exist). And summarizing — without contesting — the
cooperators' testimony about how La Rompe's drug operation worked,
Sánchez-Mora's counsel noted in his closing that
[t]here are leaders in different housing projects, and
. . . these leaders appoint people to become drug point
owner[s]. . . . [T]he person that becomes a drug point
owner has basically proven [his] worth to the
organization, and that's by killing someone. The person
that kills on behalf of the organization, proves . . .
[his] loyalty.
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No surprise, then, that defendants cannot show that the
"would"-related instructions — that "the enterprise would exist,"
that the enterprise's "activities would [a]ffect interstate or
foreign commerce," etc. (emphasis added, and apologies for the
repetition) — prejudiced them or caused a miscarriage of justice.
See Hebshie, 549 F.3d at 44-45 & n.14 (holding that (a) the
defendant did not show prejudice from an instruction that
"eliminated an element of the crime," because the government
provided "strong" evidence of the omitted element and defense
counsel failed to contest that evidence; and that (b) even if the
defendant had shown prejudice, the omission did not cause a
miscarriage of justice, "[b]ecause the evidence was not closely
contested and [was] sufficient to support [his] conviction").
Rodríguez-Torres, Sánchez-Mora, and Vigio-Aponte claim that
"insofar as" their "conviction[s]" are "based on erroneous
elements," that in itself is enough to show prejudice and a
miscarriage of justice. But this argument conflicts with settled
law. See id. at 44 (explaining that "[t]he mere fact that an
erroneous instruction resulted in the omission of an element of
the offense is not alone sufficient to demonstrate a prejudicial
[e]ffect on the outcome of the trial"); see also Johnson, 520 U.S.
at 470 (noting that (a) if an instruction omitting an offense
element did not affect the judgment, it "would be the reversal of
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[such] a conviction" that would seriously affect the fairness,
integrity, and public reputation of judicial proceedings, thereby
causing a miscarriage of justice; and that (b) "[r]eversal of
error, regardless of its effect on the judgment, encourages
litigants to abuse the judicial process and bestirs the public to
ridicule it" (emphasis added and internal quotation marks
omitted)). Rodríguez-Martínez makes no effort to show prejudice.14
And he wrongly argues that a misinstruction automatically causes
a miscarriage of justice. As for Guerrero-Castro, he makes no
attempt to show either prejudice or a miscarriage of justice. All
of which devastate their plain-error bids. See Rivera-
Carrasquillo, 933 F.3d at 49; see also United States v. Gordon,
875 F.3d 26, 30 (1st Cir. 2017) (stressing that "[t]he party
asserting that an error was plain must carry the burden of
establishing that the claimed error satisfies each element of this
standard"); United States v. Ponzo, 853 F.3d 558, 586 (1st Cir.
2017) (deeming an argument waived because defendant made no effort
to meet each part of the plain-error test).15
14 To the extent Rodríguez-Martínez tries to fix this by
mentioning prejudice and miscarriage of justice in his reply brief,
his effort comes too late. See, e.g., United States v. Marino,
833 F.3d 1, 6 n.3 (1st Cir. 2016) (stressing that an argument
introduced in a reply brief is waived).
15Rodríguez-Torres, Sánchez-Mora, and Vigio-Aponte label the
instructions generally confusing. But they offer no miscarriage-
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Argument (2)
We shift then to argument (2), involving the knowledge-
instruction claim. Recall that the judge (among other things)
told the jury that the government had to prove that "the defendant
knowingly participated in the conspiracy with the intent to
accomplish [its] objectives or assist other conspirators in
accomplishing [its] objectives," with knowingly "mean[ing] that
something was done voluntarily and intentionally, and not because
of a mistake, accident or other innocent reason." We need not —
and thus do not — decide whether the judge committed an error that
is plain here, because even if defendants could show error and
plainness (and we do not suggest that they can), they have not
shown prejudice or a miscarriage of justice. Each defendant owned
a drug point. And because "drug-point ownership was a vital
component" of the "conspiracy, given that the whole point of the
enterprise was to maintain control of as many drug points as
possible to earn more money," we easily conclude that "the jury
had abundant evidence to find that the [d]efendants were integral
parts of the enterprise's activities," see Ramírez-Rivera, 800
F.3d at 20 — evidence that satisfies the "knowledge" element too,
see id. at 18 n.11. So the supposed instructional error could not
of-justice argument — which dashes their hopes for a reversal on
that basis. See, e.g., Ponzo, 853 F.3d at 586.
- 48 -
have changed the outcome. See United States v. O'Brien, 435 F.3d
36, 40 (1st Cir. 2006) (explaining that "it is enough to sustain
the conviction that the result would quite likely have been the
same" despite the off-target instruction).
Apparently forgetting about Johnson and Hebshie,
Rodríguez-Torres, Sánchez-Mora, and Vigio-Aponte try to head off
this conclusion by again wrongly asserting that misinstruction
necessarily prejudices a defendant. Rodríguez-Torres, Sánchez-
Mora, and Guerrero-Castro also call the evidence of their knowingly
joining the conspiracy "weak" — an assertion we have already
disposed of.
But even if they could show prejudice (which, again,
they cannot), they have not shown that their convictions caused a
miscarriage of justice. That is so because they rely on the
already-rejected argument that a verdict based on an instructional
error automatically constitutes a miscarriage of justice.
Argument (3)
Given Latorre-Cacho, Rodríguez-Torres, Sánchez-Mora,
Vigio-Aponte, and Guerrero-Castro have shown that the instruction
about a firearms crime being a RICO predicate is both error and
obviously so.16 But even if we assume (without granting) that they
16Latorre-Cacho came down years after our defendants' trial.
But plain error's "error and plainness" requirements "are judged
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can also show prejudice, they still must prove a miscarriage of
justice. And unfortunately for them, they have not.
Noting that only two predicates are needed to support a
RICO-conspiracy conviction, the government sees no miscarriage of
justice. According to the government, "because it was undisputed
that the La Rompe conspiracy comprised" many instances of "drug-
trafficking and murder, the jury necessarily would have found those
predicates." For their part, and as the government also notes,
the challenging defendants base their miscarriage-of-justice
argument entirely on the false premise that a jury's being
"misinstructed as to an element of the offense" necessarily
"cast[s] doubt [on] the integrity and fairness of a judicial
process." We say "false" because, as we have been at pains to
explain, Johnson and Hebshie reject that premise.17 And by failing
as of the time of appeal." United States v. Torres-Rosario, 658
F.3d 110, 116 (1st Cir. 2011).
17Latorre-Cacho does not help their miscarriage-of-justice
theory either. Because the evidence of the proper predicates there
— drug trafficking, robbery, and carjacking — was not
"overwhelming" (for example, the Latorre-Cacho defendant
testified, contesting any ties to the alleged predicate acts), we
could "not see how [the miscarriage-of-justice] prong of the plain
error standard precludes [him] from demonstrating plain error,"
especially since prosecutors waived any argument that might have
refuted his miscarriage-of-justice theory. See 874 F.3d at 311.
Two things distinguish Latorre-Cacho from our case. Here, unlike
there, the evidence of the proper predicates — drug selling and
murder (discussed in addressing argument (1), which recaps info
discussed in addressing the sufficiency claims) — was overwhelming
(or at least our defendants make no effort to show a lack of
- 50 -
on the miscarriage-of-justice front, defendants' argument (3)
contentions come to naught. See, e.g., Ponzo, 853 F.3d at 586.
Wrap Up
Having reviewed defendants' instructional-error claims
with care, we find that none strike home, because they failed to
satisfy all facets of the plain-error inquiry.
SENTENCING CLAIMS
Overview
Rodríguez-Torres and Rodríguez-Martínez attack their
concurrent, within-guidelines sentences as procedurally and
substantively unreasonable. The pertinent background is as
follows (fyi, given the issues in play, there's no need to get
into all the sentencing math behind their terms).
The judge assigned Rodríguez-Torres an offense level of
43 and a criminal-history category of II, which yielded a
guidelines-sentencing range of life in prison. But the judge
varied downward, sentencing him to concurrent 405-month terms on
the RICO-conspiracy count, the drug-conspiracy count, and a drive-
by-shooting count. The judge later assigned Rodríguez-Martínez an
offense level of 31 and a criminal-history category of III, which
overwhelming evidence in pushing their miscarriage-of-justice
plea). And here, unlike there, prosecutors waived no miscarriage-
of-justice argument.
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resulted in a sentencing range of 135-168 months. And the judge
sentenced him to concurrent 168-month terms on the RICO-conspiracy
count and the drug-conspiracy count.
On the procedural front, Rodríguez-Torres — repeating
arguments that he made and lost below — insists that the judge
doubly erred. He first argues that the judge stumbled by applying
a first-degree murder cross-reference specified in USSG
§ 2D1.1(d)(1) — a provision that jacks up a defendant's penalty
range if a person is killed during an offense under circumstances
that would constitute murder under federal law. As he tells it,
the cross-reference should not apply because he lacked the mens
rea ("guilty mind," in nonlegalese) for first-degree murder, since
his only involvement in a drive-by shooting (the relevant count of
conviction here) was to drive the car whose passengers shot and
killed several persons. He then argues that the judge also
blundered by applying a manager/supervisor penalty enhancement
under USSG § 3B1.1, because — in his view — no evidence showed
that he actually "supervised any other defendant []or that he had
sellers, runners, lookouts or any other type of supervision over
anyone serving a role in the alleged conspiracy." As for
Rodríguez-Martínez, he contends for the first time that the judge
procedurally erred by attributing too much marijuana to him, by
wrongly concluding that his drug activities qualified him for a
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manager/supervisor penalty enhancement, and by miscalculating his
criminal history points.18
Responding to the procedural-reasonableness arguments,
the government insists that the evidence showed that Rodríguez-
Torres aided and abetted the premediated killings. The government
then says that role-in-the-offense enhancement had no effect on
his offense level, because his offense level was already at 43 —
which is the highest offense level allowable under the sentencing
guidelines. And the government thinks that Rodríguez-Martínez
waived his procedural-reasonableness claim by not objecting to the
calculations in the presentencing report.
Rodríguez-Torres and Rodríguez-Martínez then argue in
unison that these procedural flubs caused them to get excessive
sentences. To which the government replies that because they are
merely recycling their failed procedural-reasonableness theories,
their substantive-reasonableness claims go nowhere too.
Our reaction is basically the same as the government's.
18 He also says in a single sentence in his brief that the
judge "ignored the individualized sentencing required by 18 U.S.C.
§ 3553(a)." But we deem that suggestion waived for lack of
development. See, e.g., United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
- 53 -
Analysis
Standard of Review
The standard of review is not without nuance. See, e.g.,
United States v. Severino-Pacheco, 911 F.3d 14, 21 (1st Cir. 2018);
United States v. Pérez, 819 F.3d 541, 545 (1st Cir. 2016). But
for today we need only say that preserved claims of sentencing
error trigger abuse-of-discretion review. See, e.g., Pérez, 819
F.3d at 545.
Procedural Reasonableness
Up first is Rodríguez-Torres's mens rea attack on the
judge's application of the first-degree-murder cross-reference.
Federal law defines first-degree murder as "the unlawful killing
of a human being with malice aforethought," including
"premeditated murder." 18 U.S.C. § 1111(a). Even a brief moment
of premeditation suffices. See United States v. Catalán–Román,
585 F.3d 453, 474 (1st Cir. 2009). Federal law also says that a
person who aids or abets the commission of a federal crime "is
punishable as a principal." 18 U.S.C. § 2. And for current
purposes it is enough to say that a person is liable for aiding
and abetting if he "'consciously shared the principal's knowledge
of the underlying criminal act, and intended to help the principal'
accomplish it." United States v. Iwuala, 789 F.3d 1, 12 (1st Cir.
- 54 -
2015) (quoting United States v. Taylor, 54 F.3d 967, 975 (1st Cir.
1995)).
The evidence here easily proves that Rodríguez-Torres
aided and abetted the premediated killing of Santos Díaz-Camacho
(a La Rompe leader who had "turned" on the organization) and his
escorts. Rodríguez-Torres drove one of the cars used to carry out
the drive-by killings. And it is reasonable to infer that he knew
about the plan to commit the killings and intended by his actions
to help make the plan succeed. We say this because the evidence
revealed that Rodríguez-Torres arrived at a prearranged meeting
with Vázquez-Carrasquillo (La Rompe's top leader, who had ordered
Díaz-Camacho's killing) and a group of armed La Rompe enforcers.
He then went off with them to "hunt down" Díaz-Camacho. And he
helped them at each step, taking some of the posse to Díaz-
Camacho's housing complex; waiting with them for hours; tailing
Díaz-Camacho and his escorts to a different location; pulling up
his car so others could shoot and kill them; and then ditching his
(Rodríguez-Torres's) car. Cinching our conclusion is the fact
that Rodríguez-Torres drove a person who communicated with a La
Rompe leader to coordinate the group's actions and pass along
Vázquez-Carrasquillo's orders — so Rodríguez-Torres could have no
doubt about the group's murderous intentions.
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Very little need be said about the manager/supervisor
enhancement, for the simple reason that this enhancement had no
effect on Rodríguez-Torres's offense level.
As for Rodríguez-Martínez's procedural-reasonableness
arguments, we also spend no time on them. And that is because he
abandoned them at sentencing, given how his counsel told the judge
that he agreed with the relevant calculations as the judge reviewed
them. See United States v. Ramírez-Negrón, 751 F.3d 42, 52 (1st
Cir. 2014) (finding waiver in a similar situation).
Substantive Reasonableness
A sentence flunks the substantive-reasonableness test
only if it falls beyond the expansive "universe of reasonable
sentencing outcomes." See United States v. Bermúdez-Meléndez, 827
F.3d 160, 167 (1st Cir. 2016); see also United States v. Tanco-
Pizarro, 892 F.3d 472, 483 (1st Cir. 2018) (noting that "a sentence
is substantively reasonable if the court's reasoning is plausible
and the result is defensible"). Rodríguez-Torres and Rodríguez-
Martínez believe that the judge's procedural errors led him to
impose overly-harsh sentences, amounting to substantive
unreasonability. But having shown that their procedural-
reasonableness theories lack oomph, we cannot say that the judge
acted outside the realm of his broad discretion in handing out the
within-guidelines sentences. So their substantive-reasonableness
- 56 -
claims are no-gos. See, e.g., United States v. Madera-Ortiz, 637
F.3d 26, 30 (1st Cir. 2011).
Wrap Up
Concluding, as we do, that Rodríguez-Torres's and
Rodríguez-Martínez's sentencing challenges lack force, we leave
their prison terms undisturbed.
ENDING
All that is left to say is: Affirmed.
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