United States v. Lopez-Soto ( 2020 )

United States Court of Appeals
For the First Circuit
Nos. 17-1663, 17-1668, 17-1679, 17-1680
UNITED STATES,
Appellee,
v.
CARLOS ENRIQUE LÓPEZ-SOTO, A/K/A CHEMITO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
Before
Barron, Lipez, and Dyk,
Circuit Judges.
German A. Rieckehoff, with whom Carlos Enrique López-
Soto, pro se, was on brief, for appellant.
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and Thomas F. Klumper,
Assistant United States Attorney, Senior Appellate Counsel, were
on brief, for appellee.

Of the Federal Circuit, sitting by designation.
May 21, 2020
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DYK, Circuit Judge. Carlos Enrique López-Soto appeals
convictions and sentences imposed by the United States District
Court for the District of Puerto Rico for three Hobbs Act robberies
under 18 U.S.C. § 1951, two counts of brandishing a firearm during
and in relation to a crime of violence under 18 U.S.C.
§ 924(c)(1)(A)(ii), two counts of possession of a firearm by a
convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), one
count of possession of ammunition by a convicted felon under 18
U.S.C. §§ 922(g)(1) and 924(a)(2), and conspiring to commit a
Racketeer Influenced and Corrupt Organizations Act ("RICO")
violation under 18 U.S.C. §§ 1962(d) and 1963(a). We affirm the
convictions and sentences except that we remand for the limited
purpose of reducing López-Soto’s sentence for the Hobbs Act and
RICO counts to the 240-month statutory maximum.
I.
López-Soto was alleged to be part of a group --
consisting of himself, Luis Ruiz-Santiago ("Ruiz"), Roberto
García-Santiago ("García"), and Jesús Ramírez-Cotto -- that
conducted a string of robberies in 2014. Two robberies were
conducted with García (on May 23, 2014 and June 3, 2014), and one
was with García and Ruiz (on May 17, 2014).
On October 22, 2014, a Grand Jury returned a superseding
indictment in Case No. 14-cr-415 charging López-Soto with: (1)
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Hobbs Act robbery under 18 U.S.C. §§ 1951 and 2 (Count One); (2)
brandishing a firearm during and in relation to a crime of violence
under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Two); (3)
possession of a firearm by a convicted felon under 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 2 (Count Three); and (4) possession
of ammunition by a convicted felon under 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) (Count Four). The same day, a Grand Jury returned
an indictment charging López-Soto with: (1) conspiring to commit
a Racketeer Influenced and Corrupt Organizations Act ("RICO")
violation under 18 U.S.C. § 1962(d) (Count One); (2) Hobbs Act
robberies under 18 U.S.C. §§ 1951 and 2 (Counts Fourteen and
Fifteen); (3) brandishing a firearm in relation to a crime of
violence under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count
Sixteen); and (4) possession of a firearm by a convicted felon
under 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2 (Count Seventeen).
All were aiding and abetting charges except for the RICO charge
and the charge for possession of ammunition. The two cases were
consolidated and both were tried together starting on December 1,
2016.
López-Soto was represented by counsel until the time of
trial, but he represented himself at trial. García and Ruiz
cooperated with the government and testified as to López-Soto's
participation in the robberies and other offenses for which he was
charged. The government also presented evidence (1) of video
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recordings of the robberies, one of which appeared to show López-
Soto at the scene; (2) that López-Soto was arrested wearing a
striped shirt similar to the shirt worn by one of the perpetrators
of a May 23, 2014, robbery, and that ammunition seized from López-
Soto was of the same caliber as that of the revolver used in the
robberies; (3) that López-Soto owned and was arrested in a
burgundy-colored Dodge Durango, which matched the vehicle used in
the robberies, and that, in López-Soto's presence, his colleagues
had attempted to spray paint the Durango black a day after the
June 3, 2014 robbery; and (4) that boxes of cell phones and
accessories were seized by the government from López-Soto's
girlfriend's apartment, including a box with the label of a cell
phone store that had been robbed.
The jury convicted López-Soto on all counts. The court
sentenced López-Soto to 360 months as to Count One in Case No. 14-
cr-415, and as to Counts One, Fourteen, and Fifteen in Case No.
14-cr-637, to be served concurrently with each other but
consecutively to an imprisonment term of 84 months as to Counts
Two, Three, and Four in Case No. 14-cr-415, and Count Seventeen in
Case No. 14-cr-637, and consecutively to 300 months of imprisonment
as to Count Sixteen in Case No. 14-cr-637.1 The sentence results
in a total imprisonment term of 744 months (62 years).
1The Judgement in Case No. 14-cr-637 lists the conviction as
to Count Seventeen as corresponding to "18 U.S.C. § 924(g)(1) &
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López-Soto appeals. He filed two sets of briefs: an
opening and a reply brief prepared by his counsel, and a pro se
brief. We have jurisdiction under 28 U.S.C. § 1291 to review the
final decisions of the district court, and under 18 U.S.C. § 3742
to review the district court's sentence.
II.
A.
We first address López-Soto's contention that the
district court improperly instructed the jury as to the medical
care to which cooperating co-defendant Ruiz was entitled. López-
Soto also contends that, in providing this instruction, the judge
indicated bias. The instruction was given during Ruiz's
testimony. Some background is useful.
Ruiz was arrested on October 29, 2014, and, like López-
Soto, charged with Hobbs Act robbery, RICO, and firearm-related
offenses. On November 10, 2014, at his arraignment, Ruiz pled not
guilty.
However, on April 6, 2015, Ruiz signed a plea agreement
with the government. Ruiz agreed to plead guilty to a RICO
violation and the carrying of a firearm during and in relation to
a crime of violence, and the government agreed to dismiss all other
924(a)(2)." This appears to be a typographical error. As noted
above, Count Seventeen corresponds to 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 2.
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charges. As part of the plea agreement, Ruiz stipulated that he
led a criminal organization that committed robberies, and listed
fourteen robberies conducted by the organization between November
12, 2013, and June 3, 2014. Ruiz further stated in the plea
agreement that López-Soto took part in five of these robberies,
which occurred on or about May 4, May 17, May 23, and June 3, all
in 2014. On June 11, 2015, the district court accepted Ruiz's
guilty plea.
On June 30, 2015, about 18 months before López-Soto's
trial, Ruiz, acting pro se, filed a motion to withdraw his guilty
plea. In a three-page handwritten document, Ruiz asserted that
he pled guilty based on his counsel's representation that he would
not receive medical treatment unless he accepted the government's
plea agreement. Ruiz claimed that because his medical condition
at the time was "critical" -- he continued to suffer from being
shot in another incident fourteen years earlier -- his guilty plea
was involuntary. Specifically, Ruiz asserted that he only
accepted the plea offer because his attorney told him that he would
not get the medical treatment he needed otherwise. He requested
that he be allowed to withdraw his plea and that he be assigned
new counsel for trial. The district court denied Ruiz's motion,
explaining that "[Ruiz's] plea has been accepted by the court.
More so, the present motion [to withdraw his guilty plea] prepared
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by a jailhouse lawyer, and not [Ruiz's] counsel . . ., is
perfunctory and generic."
Thereafter, Ruiz appeared as a government witness at
López-Soto's trial, testifying as to López-Soto's involvement in
the planning and execution of the robberies for which he was
charged.
López-Soto sought to attack Ruiz's trial testimony by
showing that Ruiz believed he would not receive medical care for
his gunshot injuries unless Ruiz agreed to the government's plea
deal. López-Soto asked Ruiz:
And it would be accurate to say that you also
express in that document to this Court [i.e.,
Ruiz's motion to withdraw his guilty plea],
sir, that you were going to accept this offer
[i.e., the plea agreement] due to the pain and
suffering that you have to deal with in the
facility at MDC Guaynabo due to the fact that
you were shot several times and went through
so many surgeries and have a critical health?
Yes or no.
Before Ruiz answered, the court called for a sidebar. At sidebar,
the court stated:
Now I'm forced to give an instruction. And
the instruction is that he's entitled to that
[i.e., medical treatment], plea or not plea.
Because that is a right that the defendant has
by law, plea or not plea; the right to receive
medical treatment.
Then, in open court, the court instructed the jury ("the medical
care instruction") over López-Soto's objections, stating:
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THE COURT: So the jury is not confused, all
defendants, plea or not plea, are entitled by
law to the following: To provide the defendant
with the needed educational or vocational
training, medical care, or other correctional
treatment in the most effective manner. All
defendants. All. All of them are entitled
to that, plea or not plea. So if you want to
continue under this chain of thought, he is
entitled medical care. Period. After he
leaves MDC Guaynabo, he's entitled to that. In
fact, he may have received already some of
that treatment if he's living outside MDC
Guaynabo.
MR. LÓPEZ-SOTO: But, Your Honor.
THE COURT: Don't argue with me. That's the
law. So that they're not confused, they are
getting the law now.
MR. LÓPEZ-SOTO: Okay, Your Honor. But I have
an objection to that, Your Honor.
THE COURT: You may have many objections, but
you asked those questions, and you're leaving
this jury in doubt whether or not the matter
was going to be accepted or not based strictly
on a quid pro quo of the medical treatment.
When he, by law, is entitled that. By law. It
doesn't go with the plea agreement. You won't
find that in the plea agreement either. It's
not there. Because he's entitled by law to
receive that. You decided to ask these
questions. And now the jury was confused
thinking that that would be a quid pro quo.
That cannot be a quid pro quo.
Keep on asking [your questions].
After this instruction, in response to further questioning by
López-Soto, Ruiz testified that he signed the agreement "without
any promise."
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On appeal, López-Soto argues that the district court's
medical care instruction was improper and that the instruction is
evidence of bias by the trial judge. We reject the claim of bias
but agree that the district court's medical care instruction was
improper. We nevertheless conclude that this error was harmless
in light of the overwhelming evidence of López-Soto's guilt.
This court has recognized that trial judges have a
"common law power to question witnesses and to analyze, dissect,
explain, summarize, and comment on the evidence." Logue v. Dore,
103 F.3d 1040, 1045 (1st Cir. 1997). "What a trial judge may not
do, however, is take on the role of an advocate or 'otherwise use
his judicial powers to advantage or disadvantage a party
unfairly.'" United States v. Ayala-Vazquez, 751 F.3d 1, 24 (1st
Cir. 2014) (quoting Logue, 103 F.3d at 1045). "In that vein,
there is no question that it is 'improper for a judge to assume
the role of a witness' by testifying to facts or authenticating
evidence." Id. (quoting Glasser v. United States, 315 U.S. 60,
82 (1942)). When addressing allegations of judicial bias, this
court considers (1) "whether the [judge’s] comments were
improper"; and, if so, (2) "whether the complaining party can show
serious prejudice." United States v. DeCologero, 530 F.3d 36, 56
(1st Cir. 2008).
Although we do not conclude that López-Soto has
established that the trial judge was biased, the impropriety of
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the district court's medical care instruction is evident. The
district court's instruction purported to be a statement of law,
but it was in reality a factual representation that Ruiz had an
unconditional right to medical care, and strongly implied that
Ruiz could not have been concerned about receiving adequate medical
care. It also suggested that López-Soto's line of questioning was
unsupported and improper. The district court's instruction thus
added to the record evidence. In doing so, the district judge
failed to heed this court's guidance that "trial judges must guard
against adding to the evidence . . . under the guise of . . .
commenting on the evidence." Ayala-Vazquez, 751 F.3d at 28; see
also Quercia v. United States, 289 U.S. 466, 471–72 (1933)
(ordering the reversal of a judgment where "the trial judge did
not analyze the evidence; he added to it, and he based his
instruction [to the jury] upon his own addition").
The instruction cannot be justified as correcting a
factual error as to Ruiz's legal right to medical care. The issue
was not whether Ruiz would have been legally entitled to medical
care if he had not signed the plea agreement, but instead whether
Ruiz believed he had to agree to the plea deal in order to receive
care. The district judge's instruction had the effect of
eliminating from the jury's consideration this salient factual
issue. Not only did the trial judge prevent López-Soto from
pursuing this impeachment theory, the judge contradicted it by
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suggesting that Ruiz could not have been motivated by his need to
secure medical care. The impropriety of the instruction is
especially apparent where, as here, the prosecution had neither
objected to López-Soto's line of questioning nor sought a
corrective instruction from the court.
Notwithstanding this error, we do not order a new trial
because López-Soto has not met his burden to show "serious
prejudice." See DeCologero, 530 F.3d at 56. It is, first,
unclear whether, absent the instruction, Ruiz's testimony would
have been helpful to López-Soto. As the district judge noted, the
terms of Ruiz's plea agreement stated that "[t]he United States
has made no promises or representations except as set forth in
writing in this Plea Agreement and deny [sic] the existence of any
other term and conditions not stated herein." On cross, Ruiz
testified that he signed the agreement "without any promise." And
on re-direct, Ruiz distanced himself from his motion to withdraw,
testifying that he did not actually write the motion and only
"signed it under fear" that he would suffer adverse consequences
if he did not sign it. And Ruiz never suggested -- whether in his
motion to withdraw or elsewhere -- that his statements regarding
López-Soto's involvement in the offenses were false. This
evidence suggests that López-Soto's questioning (absent the
improper medical care instruction) was unlikely to be helpful to
López-Soto.
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Even if Ruiz's testimony had been successfully
impeached, the other evidence of López-Soto's guilt (described
above) -- including testimony by cooperating co-defendant García-
Santiago, video recordings, items seized from López-Soto and his
girlfriend, and other physical evidence connecting López-Soto to
the robberies -- was overwhelming. In light of this evidence,
"[w]e are satisfied that 'there is no chance that the remarks made
[by the district judge] prejudiced the outcome' of the trial."
See Ayala-Vazquez, 751 F.3d at 27 (quoting United States v.
Gentles, 619 F.3d 75, 83 (1st Cir. 2010)).
B.
We next address López-Soto's contention that the
district court erred in preventing him from cross-examining Ruiz
about Ruiz's testimony that López-Soto participated in robberies
occurring in 2013, in violation of the Sixth Amendment's
Confrontation Clause. The district court had prevented cross-
examination on the basis that López-Soto was not charged with 2013
robberies.
Before Ruiz testified, the government had called the
other cooperating co-defendant, García. On direct examination,
García testified that López-Soto committed robberies in 2013:
Q. And going to those robberies in 2013, with
whom did you commit these robberies that
you're talking to us about?
A. With the gentleman that's here.
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Q. And who are you referring to, sir?
. . . .
A. Chemito [i.e., López-Soto].
On cross-examination, García reiterated López-Soto's participation
in 2013 robberies:
Q. . . . In what month of 2013 I sold you the
revolver, .38 caliber, and we get together and
plan all this?
A. It was around, like, May or June. We would
meet in that business establishment Flor de
Mayo. Luis, Chemito would meet there with me.
I would bring Coco, Juvencio, Juve, and
myself. Yeah.
. . . .
BY MR. LÓPEZ-SOTO:
Q. Can you specify a month in 2013 that I
participate in any robbery with you?
A. I don't recall exactly like that in 2013,
a month.
Q. But you remember it was in 2013?
A. That's right. That's correct.
(emphasis added). The district court imposed no limit on the
cross-examination.
Later when Ruiz took the stand he testified as to López-
Soto's participation in robberies. On questioning from the
government, Ruiz stated:
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Q. Did it come a time that you engaged in
robberies, sir?
A. Yes.
. . . .
Q. And when was this, sir?
A. Well, in 2013. Well, or 2013, 2014. On or
about that time.
. . . .
Q. And, sir, you mentioned to us that around
2013, 2014 you did robberies.
A. Correct.
Q. With whom did you do these robberies?
. . . .
A. With . . . Chemito [i.e., López-Soto].
(emphasis added).
On cross-examination, López-Soto sought to discredit
Ruiz by getting him to admit that López-Soto had not participated
in any robberies in 2013. To that end, López-Soto asked Ruiz the
date in 2013 on which they first met. Before Ruiz answered, the
prosecutor objected. The prosecutor reasoned that López-Soto did
not have a "good-faith basis" for asking the question because he
"knows that he participated [only] in 2014, that's why he cannot
coax the witness [into testifying that they that met or committed
robberies] in 2013." The district court sustained the
government's objection, explaining to López-Soto that "[y]ou
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cannot . . . coax the witness to give a wrongful answer and then
say that he's a liar," and that "[y]ou're not charged with anything
in 2013. Nothing." As a result, López-Soto was not allowed to
cross-examine Ruiz as to López-Soto's involvement (or lack
thereof) in robberies in 2013.
López-Soto asserts that the district court's
restrictions violated his rights under the Sixth Amendment's
Confrontation Clause. "The Sixth Amendment to the Constitution
guarantees the right of an accused in a criminal prosecution 'to
be confronted with the witnesses against him.'" Davis v. Alaska,
415 U.S. 308, 315 (1974). The right to confrontation includes the
right to challenge the credibility of those witnesses. See id.
at 318. A district court's limitation on cross-examination
violates the Confrontation Clause if, "absent the limitation,
. . . the jury [would] have received a 'significantly different
impression' of the witness's credibility." DiBenedetto v. Hall,
272 F.3d 1, 10 (1st Cir. 2001) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 680 (1986)).
We conclude that López-Soto's Confrontation Clause
rights were not violated. Ruiz's testimony at issue was cursory
and hardly clear, in contrast to the earlier García testimony.
The most reasonable interpretation of Ruiz's testimony was simply
that he himself was unclear about the date of the charged
robberies, rather than that López-Soto had engaged in additional,
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uncharged robberies in 2013. Allowing the testimony to stand
(without cross-examination) did not reasonably create an
impression that López-Soto committed other, uncharged robberies.
In other words, Ruiz's testimony as to López-Soto's involvement in
"2013, 2014" -- even absent cross-examination -- was not
prejudicial to López-Soto.
In any event, even interpreting Ruiz's testimony to be
that López-Soto participated in robberies in 2013, that testimony
was inconsequential relative to Ruiz's testimony as a whole. A
defendant’s Confrontation Clause right "is not without limits,"
and "the district court wields considerable discretion to impose
'reasonable limits' on cross-examination." United States v.
Casey, 825 F.3d 1, 24 (1st Cir. 2016) (quoting United States v.
Raymond, 698 F.3d 32, 40 (1st Cir. 2012)). "The court need not
permit unending excursions into each and every matter touching
upon veracity if a reasonably complete picture [of a witness] has
already been developed." United States v. Fortes, 619 F.2d 108,
118 (1st Cir. 1980). Ruiz's testimony, which spanned over two
days and dozens of pages in the trial transcript, easily provided
the jury with a reasonably complete picture of his "veracity, bias,
and motivation." See United States v. Capozzi, 486 F.3d 711, 723
(1st Cir. 2007) (quoting United States v. Byrne 435 F.3d 16, 21
(1st Cir. 2006)).
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Ruiz testified that he had entered into a cooperation
agreement with law enforcement, and that he had done so "to help
[him] out with [his] sentencing and to start out anew, from zero.
Be a good citizen." Ruiz testified that he "would face an
additional charge" if he did not "comply with the conditions of
[his] cooperation [agreement]." And López-Soto elicited testimony
from Ruiz that tended to undercut Ruiz's credibility, for example,
that Ruiz initially claimed to not recognize López-Soto. We
cannot conclude that, absent the cross-examination that López-Soto
sought, the jury lacked a "reasonably complete picture" of Ruiz's
credibility, see Capozzi, 486 F.3d at 723, or that if the district
court had not limited López-Soto's cross-examination the jury
would have had a "significantly different impression" of Ruiz's
credibility, see Van Arsdall, 475 U.S. at 680. López-Soto's right
to confront the witnesses against him was not violated.
López-Soto does not argue that, aside from a
Confrontation Clause violation, the district court abused its
discretion. We find no error as to the district court's limitation
of López-Soto's cross-examination.
C.
We next turn to López-Soto's contention that the
government violated Brady v. Maryland, 373 U.S. 83 (1963), by
failing to timely disclose materials pertaining to an interview of
co-defendant Ruiz by law enforcement on the day of his arrest. In
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that interview, Ruiz had been shown several photographs and been
asked to identify the person in each photograph. Ruiz identified,
among others, co-defendants García and Juvencio Correa-Morales.
However, when shown a photograph of López-Soto, Ruiz "said that
[he] didn't know him." We review the district court's decision
on López-Soto's Brady claim for abuse of discretion. See United
States v. Villarman-Oviedo, 325 F.3d 1, 13 (1st Cir. 2003).
Although López-Soto received a report of this interview
("ROI")2 before trial, the government did not provide López-Soto
with the photographs associated with the ROI until the fourth day
of López-Soto's trial. Without these photographs, López-Soto
could not have known that Ruiz's statement in the ROI that he did
not recognize the subject of the photograph was referring to López-
Soto. The district court recognized the tardiness of the
government's disclosure, and first offered a trial continuance
when López-Soto complained about the late disclosure. The court
asked: "how much more time [in addition to the day being provided]
do you want?" López-Soto did not respond to the question. The
district court found that the delay could be sufficiently remedied
2 It appears that the ROI is not in the record.
The government had attempted to video record the interview,
but it seems that due to a technical problem no recording was
actually made. López-Soto attempted to present evidence of the
loss of this recording to the jury, but the district court excluded
the evidence as merely collateral. López-Soto does not challenge
the district court's decision on this point.
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by allowing López-Soto to use the ROI in trial the following day.
The court stated: "It [the disclosure of the photographs] may have
been late, but it [the delay] is easily cured by giving him time.
Because he now knows, if he didn't know, that is the photograph"
of López-Soto presented to Ruiz. The following day López-Soto
elicited testimony from Ruiz that when he was shown the photograph
of López-Soto, Ruiz had stated that he "did not know him." On
appeal, López-Soto asserts that the government's delay in
disclosing these photographs warrants vacatur of his convictions
and remand for a new trial.
"In a criminal case, [under Brady,] the government bears
an 'affirmative duty to disclose evidence favorable to a
defendant.'" United States v. Montoya, 844 F.3d 63, 71 (1st Cir.
2016) (quoting Kyles v. Whitley, 514 U.S. 419, 432 (1995)). "If
the government fails disclose this so-called Brady material in a
timeous manner, the defendant may be entitled to relief." Id. To
show that a delayed disclosure of information violated the
government's Brady obligation, the defendant has a "threshold
burden" to "show that 'learning the information altered the
subsequent defense strategy, and [that], given timeous disclosure,
a more effective strategy would likely have resulted.'" United
States v. Lemmerer, 277 F.3d 579, 588 (1st Cir. 2002) (alteration
in original) (quoting United States v. Devin, 918 F.2d 280, 290
(1st Cir. 1990)).
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López-Soto has not satisfied his threshold burden to
show prejudice caused by the delayed disclosure. After having
been provided the photographs with a day to prepare, López-Soto
was able to demonstrate that Ruiz had previously claimed not to
know López-Soto. López-Soto fails to explain how he would have
done things differently had the photographs been disclosed
earlier. In his briefing, López-Soto argues that "[i]t is hard
to think of anything more favorable or potentially exculpatory"
than evidence suggesting that Ruiz did not know López-Soto. But
this argument goes to materiality, not López-Soto's burden to show
that "a more effective [trial] strategy" would have resulted from
an earlier disclosure. See Lemmerer, 277 F.3d at 588. At oral
argument, López-Soto could only provide "the obvious but
admittedly generic answer that the appellant would have been better
prepared for trial" with an earlier disclosure. But López-Soto
"'must bear the burden of producing, at the very least, a prima
facie showing of a plausible strategic option which the delay
foreclosed' . . . or [how the delay] prevented defense counsel
from using [the evidence] effectively." Id. (quoting Devin, 918
F.2d at 290). López-Soto has not met his burden.
D.
López-Soto argues that his motion to suppress should not
have been denied and that the evidence at trial was insufficient
to convict him.
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1
Although the district court granted López-Soto's motion
to suppress his confession made while in custody, it denied the
motion as to evidence of (1) statements that he made at the time
of his arrest, and (2) two items (.38 caliber bullets and a plastic
pistol) that were seized from his vehicle when he was arrested.
López-Soto had moved to suppress on the theory that the government
lacked probable cause to arrest him and search his vehicle. López-
Soto argues that the district court erred in denying his motion to
suppress and his request for a suppression hearing. We disagree.
López-Soto has not established error in the district
court's suppression rulings. "When reviewing a district court's
disposition of a motion to suppress, we accept the court's findings
of fact unless they are clearly erroneous and subject its
conclusions of law . . . to de novo review." United States v.
Brown, 500 F.3d 48, 53 (1st Cir. 2007). López-Soto contends that
the district court erred in denying his motion to suppress "just
and only because" he did not file an affidavit under penalty of
perjury in support of his motion. This misunderstands the
district court's ruling. The district court properly concluded
that probable cause was established by the combination of (1) an
informant's tip as to López-Soto's location; and (2) video footage
of a robbery that was used to identify López-Soto as a perpetrator.
Though the district court indicated that its denial was without
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prejudice to a renewed motion to suppress based on an affidavit by
López-Soto (or another), the district court did not deny
suppression due to the lack of such an affidavit.
Nor did the district court err in denying López-Soto's
request for a suppression hearing. López-Soto's motion to
suppress was premised entirely on undisputed facts, and his one-
line request for a hearing did not explain the purpose that a
hearing would serve. It was not an abuse of discretion for the
district court to conclude that, without a showing in the form of
a sworn statement that would create a material factual dispute, a
hearing on the motion to suppress was unnecessary.
2
López-Soto argues that the district court erred in
denying his motion for acquittal for two of the firearm counts of
which he was convicted: brandishing a firearm during a Hobbs Act
robbery under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Case No. 14-
cr-415, Count Two), and possession of a firearm by a convicted
felon under 18 U.S.C. §§ 922(g)(1) and 2 (Case No. 14-cr-415, Count
Three). López-Soto was convicted under the theory that he aided
and abetted García in the commission of these offenses. To be
convicted as an accomplice to a section 924(c)(1)(A)(ii) offense,
the government had the burden to show beyond a reasonable doubt
that López-Soto knew "to a practical certainty" that García would
brandish a gun. See United States v. Spinney, 65 F.3d 231, 234
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(1st Cir. 1995) (quoting United States v. Torres-Maldonado, 14
F.3d 95, 103 (1st Cir. 1994)). To be convicted as an accomplice
to the section 924(g) offense, the government had the burden to
show that López-Soto knew that García possessed a firearm. See
United States v. Ford, 821 F.3d 63, 74 (1st Cir. 2016). López-
Soto asserts the government failed to meet this burden.
"We review [a district court's decision to deny a motion
for acquittal] de novo, but our review . . . is 'quite limited; we
must affirm unless the evidence, viewed in the light most favorable
to the government, could not have persuaded any trier of fact of
the defendant’s guilt beyond a reasonable doubt.'" United States
v. Hernandez, 218 F.3d 58, 64 (1st Cir. 2000) (quoting United
States v. Paradis, 802 F.2d 553, 559 (1st Cir. 1986)).
There was ample evidence to support the verdict.
Cooperating co-defendant García testified that, on June 3, 2014,
he and López-Soto robbed an AT&T store in Lares, Puerto Rico, and
that in the robbery García had brandished a .38 caliber revolver.
The evidence supported a finding that López-Soto knew García
possessed and would brandish the revolver. García testified that:
(1) López-Soto had sold the revolver to him, (2) García had visibly
handled and inspected the weapon in the car -- while López-Soto
was in the other front seat -- before the robbery, (3) "we always
carried it [i.e., the gun] with us" during robberies, and (4)
López-Soto "was aware that [García's] modus operandi was to always
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show the firearm during the robberies." Based on this testimony,
"a rational jury could have found that the government proved the
[knowledge] elements of the crime[s] beyond a reasonable doubt."
See United States v. Appolon, 715 F.3d 362, 367 (1st Cir. 2013)
(quoting United States v. Mardirosian, 602 F.3d 1, 7 (1st Cir.
2010)).
3
López-Soto argues that the district court erred in
denying his motion for acquittal as to all counts because none of
the victims identified López-Soto at trial. López-Soto's argument
lacks merit. This court has never required that a victim identify
the defendant, but has instead "repeatedly . . . held that 'the
uncorroborated testimony of a cooperating accomplice may sustain
a conviction so long as that testimony is not facially
incredible.'" United States v. Cortés-Caban, 691 F.3d 1, 14 (1st
Cir. 2012) (quoting United States v. Torres–Galindo, 206 F.3d 136,
140 (1st Cir. 2000)). Here, not one but two cooperating co-
defendants -- García and Ruiz -- testified as to López-Soto's
participation in the robbery scheme of which he was accused.
Documentary evidence, physical evidence, and the testimony of many
victims and government agents corroborated García and Ruiz's
testimony. The evidence is more than sufficient to sustain the
verdict.
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E.
López-Soto challenges various other rulings of the
district court.
1
López-Soto argues that the district court erred in
consolidating the two cases for which he was being prosecuted.
The court reviews joinder decisions de novo. United States v.
Ponzo, 853 F.3d 558, 568 (1st Cir. 2017) López-Soto does not
appear to contest the propriety of joinder under Federal Rule of
Criminal Procedure 13. Nor has López-Soto demonstrated prejudice
sufficient to foreclose joinder. See Fed. R. Crim. P. 14. López-
Soto has not shown error in the consolidation of these cases.
2
López-Soto contends that the district court's denial of
his request for a continuance of the start of the trial was an
abuse of discretion and violated his Sixth Amendment rights. The
court "review[s] a denial of a motion for a continuance for abuse
of discretion." United States v. Arias, 848 F.3d 504, 514 (1st
Cir. 2017). "If the denial of a continuance effectively deprives
a pro se defendant of the ability to represent himself, it may
constitute both an abuse of discretion and a Sixth Amendment
violation." Barham v. Powell, 895 F.2d 19, 22 (1st Cir. 1990).
Because López-Soto raises this argument for the first time on
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appeal, we review the district court for plain error. See United
States v. González-Barbosa, 920 F.3d 125, 128 (1st Cir. 2019).
At a hearing three days before trial, the district court
gave final approval to López-Soto's request to represent himself
at trial. López-Soto then moved to continue his trial, contending
primarily that he did not have enough time to "confer with
witnesses" that he intended to call. The district court denied
the continuance. As the district court noted, López-Soto had been
requesting to represent himself for over a year and had been filing
pro se motions for two years. The district court concluded López-
Soto would have adequate time to prepare his witnesses.
On appeal, López-Soto asserts that he did not have
sufficient time to review video recordings of the robberies of
which he was accused. But, at the pre-trial hearing, the district
court ordered the government to provide López-Soto with the
recordings; López-Soto suggested at trial that he had seen them;
and López-Soto did not thereafter raise the issue at the district
court. In failing to articulate with particularity how additional
time would have improved his effectiveness at trial, López-Soto
has not met his "heavy burden" to "show that the judge's decision
caused specific, 'substantial prejudice.'" United States v.
Robinson, 753 F.3d 31, 41 (1st Cir. 2014) (quoting United States
v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013)). López-Soto has
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not shown that the district court abused its broad discretion in
declining to continue the trial.
3
López-Soto challenges the district court's denial of
many of his pro se pretrial motions. So long as López-Soto was
represented by counsel, he had no right to file his own motions.
López-Soto "has no right to hybrid representation" by himself and
counsel simultaneously. See United States v. Nivica, 887 F.2d
1110, 1121 (1st Cir. 1989). "That is not to say that hybrid
representation is foreclosed; rather, it is to be employed
sparingly and, as a rule, is available only in the district court's
discretion." Id. We review the district court's decision to not
allow hybrid representation for abuse of discretion. Id. Here,
the court noted that López-Soto's counsel were "excellent" and had
"vast experience here in court precisely in this type of case,"
whereas López-Soto had "no experience in any legal analysis." The
district court did not abuse its discretion in declining to
consider his pro se motions while he was represented by counsel.
In any event, López-Soto presents no developed argument
as to what motions were erroneously denied, merely citing docket
numbers of the motions and the district court’s corresponding
orders. These motions generally requested the court to compel the
government to produce directly to López-Soto evidence it intended
to use at trial. The court denied many of these pro se motions
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because López-Soto was, at the time, being represented by two
attorneys. The court ordered López-Soto "to provide his counsel
with a copy of any motion he wishes to file for counsel to perfect
the motion and duly file it."
López-Soto has not shown any error in the court's denial
of his pro se motions. López-Soto has not specifically
articulated why he needed the evidence directly from the
government. He states that the motions were "important for the
preparation of the defendant's defense" and notes that the
government did not respond to many of these motions. But López-
Soto does not explain, for example, why he could not obtain
government evidence from his counsel, and why instead he needed a
court order that the government produce it to him directly. There
was no abuse of discretion by the district court in rejecting
López-Soto’s motions.
4
López-Soto also contends that the district court erred
in "allowing the US government to file a second response to [López-
Soto's] motion" for acquittal. The government's original response
to López-Soto's motion for acquittal did not include citations to
the record. The district court, sua sponte, ordered the
government to refile its response -- with citations to the record
-- within four business days. The district court's ruling was not
an abuse of discretion.
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F.
Finally, López-Soto argues that his sentence of 744
months of imprisonment is substantively unreasonable. He
acknowledges that "the statutory and guidelines calculations
appear to be correctly applied and accurate," but primarily argues
that "in the face of his codefendants' more extensive charged
criminal acts," the substantially higher sentence that he received
is unreasonable. López-Soto did not raise the issue of disparity
between his sentence and that of his co-defendants before the
district court. We therefore review the district court's sentence
only for plain error. See Gonzalez-Bárbosa, 920 F.3d at 128.
All three of López-Soto's co-defendants pled guilty to:
(1) a RICO violation under 18 U.S.C. §§ 1962(d) and 1963(a); and
(2) carrying a firearm during and in relation to a crime of
violence under 18 U.S.C. §§ 924(c)(1)(A). Co-defendant Jesús
Ramírez-Cotto was sentenced to 171 months of imprisonment. Co-
defendant Ruiz's sentence was sealed, but his plea appears to have
recommended a sentence between 205 and 235 months. Co-defendant
García's sentence was also sealed, but his plea agreement
recommended a sentence between 262 and 327 months.
Title 18, section 3553(a) provides factors that a court,
"in determining the particular sentence to be imposed, shall
consider." Section 3553(a)(6) notes "the need [in sentencing] to
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avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct."
Here, focusing on the disparities of the defendants, and
even assuming that the sentences of Ruiz and García were within
the range proposed, López-Soto's disparity argument fails. "Since
the District Judge correctly calculated and carefully reviewed the
Guidelines range, he necessarily gave significant weight and
consideration to the need to avoid unwarranted disparities." Gall
v. United States, 552 U.S. 38, 54 (2007) (emphasis added).
"Although this section is primarily aimed at national disparities,
rather than those between co-defendants, a district court may
consider differences and similarities between co-defendants at
sentencing." United States v. Marceau, 554 F.3d 24, 33 (1st Cir.
2009) (citation omitted).
There is no showing of an unwarranted disparity. López-
Soto's co-defendants were not "found guilty of similar conduct."
See 18 U.S.C. § 3553(a)(6). Though some of López-Soto's co-
defendants were charged with more crimes than López-Soto, all three
co-defendants were convicted of fewer crimes. Notably, for
example, López-Soto was convicted of three Hobbs Act robberies,
whereas none of his co-defendants was convicted of any.
So too, all co-defendants to whom López-Soto compares
himself pled guilty (López-Soto did not), and two of the three
cooperated with law enforcement (López-Soto did not). This court
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has recognized "the permissible distinction" for sentencing
purposes "between co-defendants who go to trial and those who plead
guilty" and "between those who cooperate and those who do not."
United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015).
In light of these differences between his co-defendants
and himself, López-Soto cannot show "clear[ly] or obvious[ly]"
that the district court abused its discretion in imposing its
sentence. See González-Barbosa, 920 F.3d at 128 (“Courts
frequently reject disparity claims . . . when appealing defendants
ignore material differences between their own circumstances and
those of their co-defendants.”).
III.
We conclude that the district court erred in providing
its medical care instruction to the jury, but find this error to
be harmless in light of the overwhelming evidence of López-Soto's
guilt. For López-Soto's remaining challenges, we find that he has
not shown that the district court plainly erred or abused its
discretion.
As the government notes in its Informative Motion, the
district court -- in sentencing López-Soto to 360 months for Count
One of Case No. 14-cr-415 and Counts One, Fourteen, and Fifteen of
Case No. 14-cr-637 -- exceeded the statutory maximum of 240 months
for these offenses. See 18 U.S.C. §§ 1951(a) and 1963(a). We
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vacate the district court’s sentence in this respect and remand
for the district court to enter a sentence of 240 months for these
counts to be served concurrently with each other. See United
States v. Almonte-Nuñez, 771 F.3d 84, 92 (1st Cir. 2014)
Affirmed-in-part, vacated-in-part, and remanded.
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