United States v. Perez-Vasquez ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 18-1687
19-1750
UNITED STATES OF AMERICA,
Appellee,
v.
NOE SALVADOR PÉREZ-VÁSQUEZ, a/k/a Crazy,
Defendant, Appellant.
Nos. 19-1027
19-1745
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS SOLÍS-VÁSQUEZ, a/k/a Brujo,
Defendant, Appellant.
Nos. 18-1975
19-1734
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR ENAMORADO, a/k/a Vida Loca,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
H. Manuel Hernández for appellant Noe Salvador Pérez-
Vásquez, a/k/a Crazy.
Ian Gold for appellant Luis Solís-Vásquez, a/k/a Brujo.
Rosemary Curran Scapicchio for appellant Hector
Enamorado, a/k/a Vida Loca.
Sonja Ralston, Appellate Section Attorney for the
Department of Justice, with whom Andrew E. Lelling, United States
Attorney, Donald C. Lockhart, Assistant United States Attorney,
Brian C. Rabbitt, Acting Assistant Attorney General, and Robert A.
Zink, Acting Deputy Assistant Attorney General, were on brief, for
appellee.
July 26, 2021
LYNCH, Circuit Judge. In 2016, the government indicted
sixty-one alleged members of the MS-13 gang for participation in
a Racketeer Influenced and Corrupt Organization Act ("RICO")
conspiracy and other crimes. The district court divided the sixty-
one defendants into four trial groups. This appeal concerns some
of the defendants in group two. The defendants in group three are
the subject of our opinion in United States v. Sandoval, Nos. 18-
1993, 18-2165, 18-2177, 19-1026, 2021 WL 2821070, at *2 (1st Cir.
July 7, 2021).
Three defendants from group two proceeded to trial.
After a nineteen-day trial, a jury convicted each of the defendants
of RICO conspiracy with a special finding that defendant Noe
Salvador Pérez-Vásquez participated in the murder of Jose Aguilar
Villanueva and special findings as to each that they had
participated in the murder of Javier Ortiz. The defendants allege
a number of errors in both their trial and sentencings. We carve
out to be discussed in a later opinion defendant Luis Solís-
Vásquez's challenge to the district court's restitution order.
Having determined that the remaining challenges do not have merit,
we affirm.
I. Facts
Because the defendants have challenged the sufficiency
of the evidence, we recite the facts "in the light most favorable
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to the jury's verdict." United States v. Leoner-Aguirre, 939 F.3d
310, 313 (1st Cir. 2019).
A. MS-13
La Mara Salvatrucha, commonly known as MS-13, is a
transnational gang headquartered in El Salvador and with extensive
operations in the United States, including in Eastern
Massachusetts. The gang is organized into "programs" and
"cliques." Cliques are local groups that each belong to a regional
program. Within each clique, the primary leader is called the
"first word" and the second in command is called the "second word."
Full members are known as "homeboys." Individuals generally
progress from "paro" to "chequeo" before becoming homeboys.1
Chequeos often must perform a violent crime to earn a promotion to
homeboy, though the requirement has varied over time and between
cliques. They are then beaten or "jumped" in as full members.
MS-13 has defined its primary mission as killing rivals,
especially members of the 18th Street gang. If possible, a homeboy
is supposed to kill a rival gang member, known as a "chavala," on
sight. MS-13 members are also required to help out fellow gang
members whenever they are asked.
1 There has been some variation over time and between
cliques as to the ranks below homeboy, but that variation is not
important to this case.
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MS-13 members are forbidden from cooperating with law
enforcement. A member who cooperates with law enforcement will
have a "green light" put on him, which means he will be killed by
other MS-13 members. MS-13 associates are not permitted to kill
other MS-13 associates unless leadership, usually in El Salvador,
puts a "green light" on the individual.
B. Defendants' Roles in MS-13
In 2014 and 2015, at the time of the events at issue in
this case, each of the defendants was a full MS-13 member in a
clique near Boston. Noe Salvador Pérez-Vásquez, a/k/a "Crazy,"
claimed to be the second in command of the Everett Locos
Salvatrucha clique. Luis Solís-Vásquez, a/k/a "Brujo," was a
homeboy in the Eastside Locos Salvatrucha clique. Hector
Enamorado, a/k/a "Vida Loca" was a homeboy in the Chelsea Locos
Salvatrucha clique.
C. Cooperating Witnesses
Law enforcement investigations of crimes by MS-13
members often use confidential sources, some of whom become
witnesses in later prosecutions. In 2012 the FBI began working
with a source to infiltrate the MS-13 cliques in the Boston area.
This informant is known as cooperating witness 1 ("CW-1") or by
his street name, "Pelon." The government gave CW-1 a car with
recording equipment inside, which he used to work as an unlicensed
taxicab driver. CW-1 posed as a drug dealer and began spending
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time with various MS-13 members. He was eventually beaten in as
a homeboy in the Eastside Locos Salvatrucha Clique. To advance
the investigation he would regularly give rides to MS-13 members
and record their conversations with him and each other. Additional
details of CW-1's involvement were discussed in this court's
opinion in United States v. Sandoval. 2021 WL 2821070, at *1-2.
CW-1 did not testify at the defendants' trial. CW-1 was
the source of two types of evidence introduced by the government.
First, the government introduced recordings and transcripts from
CW-1's recording device of both conversations between MS-13
members and CW-1's conversations with MS-13 members. Second, some
of the government's law enforcement witnesses testified about
statements that CW-1 made to them in the course of their
investigation.
D. The Murder of Jose Aguilar Villanueva
German Hernandez-Escobar, a/k/a "Terible," the leader of
the Everett Locos Salvatrucha clique, was arrested in March 2015.
Members of the clique, including second-in-command Pérez-Vásquez,
believed that someone in the gang had "snitched" on Terible, and
began an investigation. They concluded that Jose Aguilar
Villanueva, a sixteen-year-old associate of MS-13 known as
"Fantasma," had cooperated with the police and was responsible for
Terible's arrest. MS-13 leaders in El Salvador issued a green
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light to kill Villanueva and Pérez-Vásquez began planning that
murder with others in MS-13.
Pérez-Vásquez told Josue Alexis De Paz, a/k/a "Gato," a
chequeo seeking promotion to homeboy and Villanueva's roommate,
that he would have to "participate" in Villanueva's death. Another
MS-13 member nicknamed "Inocente" called De Paz and told him to
bring Villanueva to a restaurant in Somerville. The plan was to
take Villanueva from the Somerville restaurant to an MS-13 meeting
place in Malden called "the Mountain" and murder him there.
Inocente was arrested before he could execute this plan.
After the arrest of Inocente, another homeboy told De
Paz that the Everett clique wanted Villanueva murdered soon, and
that De Paz would have to murder Villanueva with the help of a
chequeo, Manuel Diaz Granados, a/k/a "Perverso." On the day of
the murder, Pérez-Vásquez spoke to De Paz and told him to plan the
murder carefully.
On July 5, 2015, De Paz and Granados met at the home De
Paz shared with Villanueva and waited for Villanueva to return
from a day trip to the beach. When he returned, De Paz told
Villanueva that the three of them needed to go out to look for a
man who had broken into their house several days earlier. The
three went to a park, De Paz "grabbed [Villanueva] from behind,"
and Granados began stabbing Villanueva with a large green-handled
knife. Moments later, De Paz dropped Villanueva, took out a
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folding knife, and stabbed Villanueva as well. Villanueva died
from his injuries.
Afterward Pérez-Vásquez told De Paz that he would be
promoted to homeboy for his participation in Villanueva's murder.
E. The Cocaine-Trafficking Operation
In early December 2014, CW-1 asked Pérez-Vásquez and
other MS-13 members if they were interested in performing a
"protection detail" for drugs being moved from Boston to New
Hampshire. Pérez-Vásquez and four other MS-13 members
volunteered. On December 8, 2014, a government agent gave the MS-
13 members five kilograms of cocaine and they delivered it to
another undercover agent in New Hampshire. Each was paid $500 for
this work.
F. The Murder of Javier Ortiz
The defendants were also each involved in the planning
and execution of the murder of Javier Ortiz, a reputed member of
the 18th Street gang. Early in the morning on December 14, 2014,
Enamorado went to an apartment in Chelsea where a woman sold
tamales after the bars closed. There he saw Ortiz and some
friends, who Enamorado believed to be 18th Street gang members and
who had beaten him and burned his face with a cigarette the night
before. Enamorado left the apartment and called Pérez-Vásquez
repeatedly. When Pérez-Vásquez answered, Enamorado asked him to
bring a clique-owned gun to him in Chelsea. Enamorado told Pérez-
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Vásquez that he had encountered several 18th Street gang members,
that they had beaten him the night before, and that he wanted the
gun because he was going to kill them. Pérez-Vásquez, who was at
a garage in Everett where MS-13 members would gather, relayed this
information to Solís-Vásquez and two other gang members at the
garage. Pérez-Vásquez decided that he would bring the clique gun
to Enamorado, and Solís-Vásquez decided that he would go as well
because he had another clique gun stored in the garage.
Pérez-Vásquez and Solís-Vásquez met Enamorado in
Chelsea, where he was sitting on the steps outside the apartment.
Pérez-Vásquez asked Enamorado where the "chavalas" were.
Enamorado said he would go inside alone with the gun Pérez-Vásquez
had brought, and told Solís-Vásquez to stay at the door of the
apartment with the other gun so that no one could leave. Solís-
Vásquez waited at the door for a brief time, but then went to the
porch to smoke a cigarette with another MS-13 member. At the same
time, Enamorado entered the apartment and walked over to the
bathroom where Ortiz was. He shot Ortiz three times in the back,
emerged from the bathroom and then shot Saul Rivera, another
visitor to the apartment. Ortiz died from his injuries.
The apartment's owner and Saul Rivera both identified
Enamorado in photographic lineups as the perpetrator within hours
of the shootings.
G. The Arrest and Interrogation of Enamorado
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After the murder of Ortiz, Pérez-Vásquez offered CW-1
$400 to drive Enamorado out of the state. CW-1 agreed and told
the police about the plan. On December 16, 2014, CW-1 picked up
Enamorado, Pérez-Vásquez, and Pérez-Vásquez's girlfriend to drive
out of Massachusetts. The police pulled them over and arrested
Enamorado.
Chelsea Police Officer David Delaney booked Enamorado in
English. Enamorado's first language is Spanish. Delaney testified
that Enamorado appeared to understand him. Delaney marked on an
intake form that Enamorado did not appear to be under the influence
of drugs or alcohol. In response to Delaney's questioning,
Enamorado told Delaney that he had not consumed drugs or alcohol
that day.
After booking, Chelsea Police Detective Steven Garcia
and State Trooper Timothy O'Connor interviewed Enamorado in
Spanish. Detective Garcia testified that he did not observe any
signs that Enamorado was intoxicated. Garcia gave Enamorado a
written form in Spanish that described his Miranda rights. Garcia
read the form aloud and Enamorado signed a waiver of his Miranda
rights under the name Jesus Gonzales.
During the interrogation, Enamorado admitted to being a
member of MS-13, that his name was Hector Enamorado, and that his
nickname was Vida Loca. He said that on the day before the murder
of Javier Ortiz, he had gotten into an altercation with several
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18th Street gang members. He claimed to have forgotten everything
that happened on the night of the murder, but said that if he went
back to the apartment, it would have been for revenge.
At the start of the interview, Trooper O'Connor pressed
a button on the recording system to begin recording. A green light
on the recording system lit up to indicate that the interview was
being recorded. However, in February 2017, the officers learned
that the audio recording had failed about 20 seconds into the
interview. The entirety of the video recording was preserved.
II. Procedural History
A. Pre-Trial
In 2016, the defendants were each charged with
conspiracy to conduct affairs through a pattern of racketeering
activity (RICO conspiracy) in violation of 18 U.S.C. § 1962(d).
Pérez-Vásquez was also charged with conspiracy to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. § 846,
possession of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1), and conspiracy to distribute
marijuana in violation of 21 U.S.C. § 846. Each was convicted of
all charges, except that Pérez-Vásquez was acquitted on the
firearms charge.
The defendants filed various motions in limine asking to
limit or exclude expert testimony before trial. During the final
pretrial conference, the district court said it would "permit
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expert testimony as to things such as symbols or colors or slang
or the organization or structure of MS-13." The district court
would not permit "an overview of the evidence or a broad
description of the investigation." It also instructed that the
defendants "may have to object to preserve a[ny] particular point."
Enamorado also moved to suppress the statements he made
in custody on December 16, 2014, arguing that he did not knowingly,
intelligently, and voluntarily waive his Miranda rights because he
was under the influence of drugs and alcohol at the time and
because he was not "intellectually, emotionally, or physically
able to understand his rights." He added that the failure to make
a full audio recording rendered the statements inadmissible. The
district court denied the motion, stating that there was
insufficient evidence Enamorado was intoxicated or failed to
understand the officers, and that the failure of the audio
equipment did not justify suppression.
B. Trial
The trial was conducted over nineteen days from March 27
to April 23, 2018. Through the reading of exhibits and the
testimony of both law enforcement and MS-13 members, the government
offered evidence both as to the murders and trafficking described
above and as to a host of other crimes. The defendants presented
no witnesses and did not testify.
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The government's first witness was George Norris, a gang
investigator analyst for the state attorney's office in Maryland.
Based on his professional experience, Investigator Norris
testified as to MS-13's history, structure, rules, symbols, and
practices. Investigator Norris did not participate in the
investigation of this case.
Investigator Norris explained that his knowledge of MS-
13 was gained through "interviews and interrogations, both in
custody and out of custody of gang members or associates,
interviewing witnesses of crimes that involve MS-13, interviewing
family members of MS-13 members or associates, interviewing other
law enforcement officers, . . . interviewing victims of gang
crimes, reading books, watching documentaries . . . [and] social
media monitoring and harvesting intelligence off of social media."
He also was trained at several conferences about gangs in general
and MS-13 in particular.
Agent Jeffrey Wood, an FBI supervisor for the gang squad
and the lead investigator during part of the investigation of the
MS-13 cliques in Boston, testified next. He first spoke about the
transnational structure of the gang and then about its structure
in Massachusetts. He next testified about his investigations into
the broader East Coast Program and his work with CW-1.
Agent Wood also testified as to various pieces of
evidence his team recovered during a large scale "sweep" of arrests
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of MS-13 members in January 2016. He described an MS-13 "rule
book" found at a gang member's house and a set of WhatsApp messages
between Pérez-Vásquez and other gang members that listed
additional guidelines for proper conduct in MS-13.
Agent Wood next testified as to his work with another
cooperating witness, CW-5. He arranged for CW-5 to pose as an
MS-13 member and record a conversation with Inocente while he was
being held at the Essex House of Corrections. Inocente described
what he knew about the murder of Villanueva and the roles played
by Enamorado and Pérez-Vásquez in the Ortiz murder. The transcript
of this recording was admitted into evidence. Agent Wood also
described his role in organizing the drug "protection detail" that
Solís-Vásquez participated in and his role in the investigation of
the Villanueva murder.
Massachusetts State Trooper Brian Estevez read into
evidence a number of transcripts of recorded phone calls between
MS-13 members, introduced evidence extracted from Villanueva's and
others' cellphones, and explained how the FBI wiretapped CW-1's
phone. He also introduced various recordings made by CW-1, and
explained his involvement in Enamorado's arrest.
Several MS-13 members who had pled guilty testified for
the prosecution. They each described their roles in MS-13, the
"rules" of the organization, and crimes they had personally
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committed as part of MS-13.2 They also testified as to
conversations between them and other MS-13 members about the
ongoing activities of the gang and the various crimes other MS-13
members had committed.
At the close of evidence all of the defendants moved for
a directed verdict based on the sufficiency of the evidence. The
district court denied the motions.
In Pérez-Vásquez's closing statement, his lawyer
conceded that Pérez-Vásquez was part of MS-13, that MS-13 was a
criminal enterprise, and that he had brought a gun to "Vida Loca."
Pérez-Vásquez's lawyer then argued that he could not be found
guilty of the Ortiz murder because he "didn't share the intent
that Mr. Enamorado had at the time he discharged that weapon into
Mr. Javier Ortiz."
After Pérez-Vásquez's closing argument, Enamorado's
counsel moved for a mistrial, arguing that "[t]he co-defendant has
just become a witness against my defendant without notice in
violation of Bruton, and there's no way this jury now is going to
be able to give Mr. Enamorado a fair verdict after what just
happened." The district court summarily denied the motion.
Enamorado's counsel did not request a limiting instruction.
2 De Paz testified as to his involvement in the murder of
Villanueva, and that Pérez-Vásquez had ordered the murder. Jose
Hernandez-Miguel, a/k/a "Muerto," testified about the murder of
Javier Ortiz.
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On April 17, 2018, the district court conducted a jury
charge conference. The district court told the defendants that as
to the murders of Villanueva and Ortiz, it would only give a
second-degree murder instruction, not a first-degree murder
instruction. The defendants said they did not object. The
defendants also did not object to the proposed instructions as to
the RICO conspiracy. After the finalized instructions were read
to the jury on April 18, the district court asked the defendants
if they had "[a]nything further on the jury instruction[s]." Each
defendant said no.
The jury convicted all three defendants of RICO
conspiracy, with special findings that each was guilty of murdering
Javier Ortiz as a part of the conspiracy. The jury also found
that Pérez-Vásquez had participated in the murder of Villanueva.
Pérez-Vásquez was convicted of conspiracy to possess with intent
to distribute more than five kilograms of cocaine, and conspiracy
to possess with intent to distribute marijuana. He was found not
guilty of the firearms charge.
C. Sentencing
The United States Probation Office calculated Pérez-
Vásquez's advisory guidelines sentence as life imprisonment based
on an offense level of 50 (revised downward to the maximum offense
level of 43) and a criminal history category of IV. Pérez-Vásquez
did not object. The district court sentenced Pérez-Vásquez to
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concurrent terms of life imprisonment on the RICO conspiracy and
cocaine conspiracy charges.3
The district court calculated Enamorado's guideline
offense level as 44 (revised downward to a maximum offense level
of 43) based on an underlying offense of first-degree murder and
determined that his criminal history was category II. The
guidelines recommendation was life imprisonment. Enamorado
challenged the calculation of the guidelines range, arguing that
because the jury had not specifically found that Enamorado was
guilty of first- rather than second-degree murder, his guidelines
base offense level should have been 38. He also argued that the
evidence did not support that he had committed first, rather than
second-degree murder, and that a criminal history category of II
was inappropriate given that his previous offenses were "fairly
minor." The district court rejected the first argument, stating
that the degree of murder was "a matter of guideline interpretation
for the Court, not something that the jury would find." It then
found that, given the evidence presented, it was appropriate to
apply the first-degree murder guideline. It did not address the
criminal history category. The district court sentenced Enamorado
to life imprisonment.
3 He was also sentenced to a concurrent term of five years
for the marijuana charge and a five-year term of supervised
release.
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The district court calculated that Solís-Vásquez's
guidelines offense level was 43 for the murder of Javier Ortiz.
It then increased the offense level to 45 based on Solís-Vásquez's
involvement in the Rivera shooting, two other assaults, and one
other murder. The offense level was then revised downward to the
maximum of 43.
Solís-Vásquez objected that there was insufficient
evidence to show that he had committed first-degree rather than
second-degree murder.4 The district court rejected this challenge,
explaining that "it's a fair inference from the evidence by a
preponderance standard that there was a joint venture here to
commit premeditated murder, that [Solís-Vásquez] knew exactly what
the purpose of this was, [and that it was] intended to further
that enterprise. The purpose was that 'Vida Loca' was going to
kill a [rival gang member]."
The district court sentenced Solís-Vásquez to 420
months' imprisonment and five years of supervised release. The
sentence was a below-guidelines sentence imposed after
consideration of the relevant factors under 18 U.S.C. § 3553(a).
4 Solís-Vásquez also challenged the portions of the
guidelines calculation concerning the incidents other than the
Ortiz murder.
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The district court also ordered Pérez-Vásquez and
Enamorado to pay $32,984.03 in restitution to Saul Rivera, and
Solís-Vásquez to pay $16,492.01.
III. Analysis
The defendants asserted a variety of claims as to their
trial and sentencing. We address each in turn.
A. Sufficiency of the Evidence
Enamorado and Solís-Vásquez each argue that the evidence
was insufficient to support their convictions. "[W]e review
preserved challenges to the sufficiency of the evidence by asking
'whether, taking the evidence in the light most favorable to the
jury's verdict, a rational jury could have found the defendant
guilty beyond a reasonable doubt.'" Leoner-Aguirre, 939 F.3d at
318 (quoting United States v. Hicks, 575 F.3d 130, 139 (1st Cir.
2009)).
1. Enamorado's Sufficiency Claim
To secure a conviction for committing the "pattern of
racketeering" RICO conspiracy charge at issue, the government was
required to prove beyond a reasonable doubt that Enamorado
knowingly joined the MS-13 conspiracy and "agreed that at least
two acts of racketeering would be committed in furtherance of the
conspiracy." Sandoval, 2021 WL 2821070, at *2 (quoting Leoner-
Aguirre, 939 F.3d at 317). Racketeering acts include "any act or
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threat involving murder . . . [or] dealing in a controlled
substance." 18 U.S.C. § 1961(1).
Enamorado argues that the evidence was insufficient to
support his RICO conspiracy conviction because (1) there was no
evidence he participated in, knew about, or agreed that others
would commit any predicate acts of racketeering other than the
murder of Javier Ortiz; (2) there was no evidence that the Chelsea
clique, to which Enamorado belonged, was part of the larger MS-13
conspiracy or that members of the Chelsea clique had agreed to
commit racketeering acts; and (3) there was insufficient evidence
that the shooting of Ortiz was done in furtherance of the MS-13
conspiracy.
Each of these arguments fails. As to Enamorado's first
two contentions, in addition to Trooper Estevez's testimony that
Enamorado had admitted during his post-arrest interview to being
a member of MS-13, the jury heard testimony from multiple witnesses
who testified that they had met Enamorado at MS-13 gatherings
before the Ortiz murder, that they understood him to be "from the
Chelsea Locos clique" or that he had identified himself as such,
and that he had also introduced himself as a homeboy. The jury
could thus conclude that Enamorado had agreed to join the
"Chelseas." So, too, could the jury conclude that the "Chelseas"
were part of MS-13, in light of the witnesses' testimony describing
that group as a "clique." The jury heard evidence that MS-13's
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mission is to kill rivals, and a jury could also conclude that an
individual who joined a gang with this mission therefore agreed
that a member of the group would commit racketeering acts. To the
extent Enamorado argues that joining the Chelsea clique would not
have established this agreement in light of the lack of evidence
as to activities of that clique and whether it was involved in a
broader MS-13 conspiracy, the jury was not required to believe him
on that score, particularly in light of evidence that Enamorado
was involved with members of other MS-13 cliques who clearly
understood Enamorado to have been part of an MS-13 clique.
As to Enamorado's third argument, there was sufficient
evidence that the Ortiz murder was done in furtherance of the MS-
13 conspiracy. Multiple MS-13 members identified Ortiz as an 18th
Street gang member, the murder was committed with MS-13 weapons
and help from two MS-13 members, and the murder fit in with the
conspiracy's purpose of killing rivals.
2. Solís-Vásquez's Sufficiency Claim
Solís-Vásquez does not challenge the sufficiency of the
evidence for his RICO conspiracy conviction, but he does argue
that the evidence was insufficient to support the jury's special
finding that he participated in the murder of Ortiz because there
was no evidence he had the requisite intent for second-degree
murder under Massachusetts law. To convict a defendant of second-
degree murder under Massachusetts law, the government must show
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that the defendant acted with "intent to kill; the intent to cause
grievous bodily harm; or the intent to commit an act that, in the
circumstances known to the defendant, created a plain and strong
likelihood of death." Commonwealth v. Tavares, 30 N.E.3d 91, 99
(Mass. 2015).
There was sufficient evidence for the jury to conclude
that Solís-Vásquez acted with the requisite intent for second-
degree murder. Solís-Vásquez brought a gun to Enamorado after
Enamorado said "he was going to kill" the 18th Street gang members
at the after-hours bar. Mauricio Sánchez, a/k/a "Tigre," also
testified that Solís-Vásquez said Enamorado "had gone inside to
murder the guy he had come for" and that Solís-Vásquez "was ready
for what he was going to do."
B. Suppression of Enamorado's December 16th, 2014 Statements to
Police
Enamorado renews his argument on appeal that his
December 16, 2014 statements to the police were inadmissible
because Enamorado did not validly waive his Miranda rights. See
Miranda v. Arizona, 384 U.S. 436, 498-99 (1966). He argues he was
intoxicated during his interview and that the officers sometimes
spoke to him in English, which is not his first language.5 "In
5 Enamorado also argues that the audio equipment's
malfunction "supports suppression." But he does not explain why
and "there is no federal constitutional right to have one's
custodial interrogation recorded." United States v. Meadows, 571
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reviewing the denial of a motion to suppress, we review the
district court's findings of fact for clear error and conclusions
of law de novo." United States v. Mumme, 985 F.3d 25, 35 (1st
Cir. 2021).
A Miranda waiver must be both voluntary and "made with
a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it." Moran v.
Burbine, 475 U.S. 412, 421 (1986). The district court did not err
in concluding that Enamorado voluntarily and knowingly waived his
rights. Enamorado read and signed a waiver form in Spanish, and
the record supports the district court's conclusion that he was
not intoxicated at the time of arrest. See United States v. Mejia,
600 F.3d 12, 18 (1st Cir. 2010) (holding that waiver of Miranda
rights was knowing and voluntary where Spanish-speaking defendant
was given waiver form in Spanish).
C. The Admission of Coconspirator Statements
Pérez-Vásquez and Solís-Vásquez challenge the admission
of various coconspirator statements.6 Because they failed to renew
F.3d 131, 147 (1st Cir. 2009).
6 The defendants' arguments are waived with respect to any
statements not identified in their briefs on appeal as wrongly
admitted. United States v. Perez-Cubertier, 958 F.3d 81, 88 n.6
(1st Cir. 2020) (explaining that in challenging the admission of
evidence, the "failure to identify relevant portions of the trial
transcript" "hamstrings" appellate review and may result in waiver
(quoting González-Ríos v. Hewlett Packard PR Co., 749 F.3d 15, 20
(1st Cir. 2014))).
- 23 -
their objections at the close of evidence, the challenge is
reviewed for plain error. See United States v. Ford, 839 F.3d 94,
106 & n.9 (1st Cir. 2016).
Statements made by a "coconspirator during and in
furtherance of the conspiracy" are nonhearsay. Fed. R. Evid.
801(d)(2)(E). "[A] coconspirator's statement is considered to be
in furtherance of the conspiracy as long as it tends to promote
one or more of the objects of the conspiracy." United States v.
Ciresi, 697 F.3d 19, 28 (1st Cir. 2012) (quoting United States v.
Piper, 298 F.3d 47, 54 (1st Cir. 2002)). Statements made to
"foster[] a relationship of trust" or keep coconspirators "abreast
of current developments and problems facing the group" may further
the conspiracy. United States v. Flemmi, 402 F.3d 79, 95 (1st
Cir. 2005) (quoting United States v. Jefferson, 215 F.3d 820, 824
(8th Cir. 2000)); see also United States v. Sepulveda, 15 F.3d
1161, 1180 (1st Cir. 1993) ("[T]he reporting of significant events
by one coconspirator to another advances the conspiracy."). It is
The defendants also argue that the admission of
statements made in furtherance of the conspiracy by non-testifying
coconspirators violated the Confrontation Clause. This argument
fails because "'[s]tatements made during and in furtherance of a
conspiracy are not testimonial' and are, therefore, not subject to
Sixth Amendment concerns." United States v. Rivera-Donate, 682
F.3d 120, 132 n.11 (1st Cir. 2012) (quoting United States v.
Malpica-García, 489 F.3d 393, 397 (1st Cir. 2007)).
- 24 -
"immaterial" whether the statement was made to a government
informant posing as a coconspirator. See Ciresi, 697 F.3d at 28.
Pérez-Vásquez and Solís-Vásquez argue that many of the
admitted statements were "idle chatter" or "gossip" not in
furtherance of the conspiracy. We address the coconspirator
statements mentioned in the defendants' briefs in turn.
Three of the challenged statements were not admitted as
coconspirator statements or for the truth of the matter asserted
but for other reasons.7 These challenges fail.
7 Trooper DeMeo's statements about what De Paz told him
about the murder of Villanueva were admitted not for the truth of
the matter asserted but as context to explain how Villanueva's
statements affected his investigation. We have cautioned that the
idea that "any statement by an informant to police which sets
context for the police investigation" is admissible is "impossibly
overbroad." United States v. Maher, 454 F.3d 13, 22 (1st Cir.
2006). In this case, however, the district court allowed the
testimony because De Paz was the next witness and would testify as
to the facts restated by Trooper DeMeo. Thus there was no
significant risk of prejudice as required under the plain error
standard.
Similarly, Trooper Estevez testified that he had
received a call from CW-1 advising that MS-13 members were
attempting to move Enamorado out of state. But the government
immediately after that testimony introduced a transcript of a call
between Pérez-Vásquez and CW-1 in which Pérez-Vásquez offered to
pay CW-1 to take an MS-13 member out of state, and the officers
did in fact arrest Enamorado in CW-1's car. Enamorado was not
prejudiced by Estevez's testimony.
The statements of "La Diablita" in the jailhouse
recording were also admitted not for their truth but for context
as to what Terible told La Diablita. See United States v. Walter,
434 F.3d 30, 33-34 (1st Cir. 2016) (explaining that portions of
discussion "were properly admitted as reciprocal and integrated
utterance(s)" to make admissible statements "intelligible to the
jury" (quoting United States v. McDowell, 918 F.2d 1004, 1007 (1st
- 25 -
The challenge to Sánchez's statement that Pérez-Vásquez
told two other members of MS-13 to give him a ride to Lynn to buy
drugs also fails, as it was clearly in furtherance of the
conspiracy to purchase drugs for the gang's marijuana business.
And as to Pérez-Vásquez, his own statement is admissible against
him under Federal Rule of Evidence 801(d)(2)(A).
As to the admission of testimony from Sánchez, Jose
Hernandez-Miguel, a/k/a "Muerto," and another codefendant, Julio
Esau Avalos-Alvarado, describing conversations they had with other
gang members about the Ortiz and Villanueva killings, we see no
plain error in the district court's determination that these
statements were coconspirator statements because "gang members
informing each other after the fact about gang business further[s]
the interests of the gang, among other things, [by] keeping them
informed and advising them about enforcement of the rules and
general state of affairs." Nor was there plain error in the
district court's admitting the statements of "Inocente" to CW-5
because they served "to promote and encourage violence, to enforce
gang discipline, and to inform gang members of ongoing events."
Cir. 1990))).
The admission of statements not admitted to prove the
truth of the matter asserted also does not violate the
Confrontation Clause. United States v. Occhiuto, 784 F.3d 862,
866 n.2 (1st Cir. 2015).
- 26 -
Enamorado separately challenges the admission of all
coconspirator statements not discussing him or the Ortiz killing,
arguing that because he was not a member of the wider MS-13
conspiracy, such statements could not be admitted against him under
Federal Rule of Evidence 801(d)(2)(E). For the reasons explained
in the discussion of the sufficiency of the evidence, this argument
fails. He also argues that any statements made by coconspirators
after his arrest were inadmissible against him because he was no
longer a part of the conspiracy. As he made no showing that he
had actually withdrawn from the conspiracy, this argument is
foreclosed by Leoner-Aguirre, 939 F.3d at 318 ("Imprisonment alone
does not satisfy a defendant's burden of proving withdrawal.").
D. The Admission of CW-1's Statements
Enamorado challenges the admission of all of CW-1's
statements made to law enforcement or in the recordings submitted
by the government.8 He argues that CW-1 was not a coconspirator
and thus that his statements are not nonhearsay under Federal Rule
8 Pérez-Vásquez adopted this argument.
Pérez-Vásquez also adopted very similar arguments made
by Erick Argueta Larios, a/k/a "Lobo." United States v. Larios,
No. 18-2177. But Pérez-Vásquez does not explain how the specific
statements by CW-1 challenged by Larios, many of which have little
to do with Pérez-Vásquez's involvement with the conspiracy,
prejudiced Pérez-Vásquez. The argument is waived. See United
States v. Torres-Rosa, 209 F.3d 4, 7 (1st Cir. 2000) ("The party
seeking to adopt an argument has a burden, at the very least, to
ensure that it is squarely before the court and to explain how and
why it applies in his case.").
- 27 -
of Evidence 801(d)(2)(E), and that their admission violated the
Confrontation Clause. Because this argument was preserved, we
review the admission of alleged hearsay evidence for abuse of
discretion, United States v. Correa-Osorio, 784 F.3d 11, 24 (1st
Cir. 2015), and the Confrontation Clause claim de novo, United
States v. Veloz, 948 F.3d 418, 430 (1st Cir. 2020).9
Enamorado's brief focuses on Exhibit 214, the transcript
of a conversation a few hours after the Ortiz murder between CW-1,
Pérez-Vásquez, a woman named "Blanca," and another MS-13 member
known as "Smiley." CW-1's statements in this transcript were
mostly questions, exclamations, or statements not relevant to the
Ortiz murder.
Enamorado's argument misses the point. CW-1's
statements were admitted only to provide context for statements
made by other MS-13 co-conspirators in the conversation and make
them intelligible to the jury, not for their truth. And the
district court did not err in admitting CW-1's statements in
Exhibit 214 to provide context. See United States v. Walter, 434
F.3d 30, 33-34 (1st Cir. 2016) (holding that tape-recorded
statements by non-testifying informants may be admissible to
9 Enamorado challenges "all" of CW-1's statements, but his
argument is waived as to any statements not identified in his
brief. Perez-Cubertier, 958 F.3d at 88 n.6 (explaining that the
"failure to identify relevant portions of the trial transcript"
may result in waiver).
- 28 -
provide context for statements made by defendants); see also
Sandoval, 2021 WL 2821070, at *19 (holding that there was no plain
error in admitting cooperating witness's "reciprocal and
integrated utterance(s)" in conversations with conspiracy members
(quoting Walter, 434 F.3d at 34)). The admission of such
statements also does not violate the Confrontation Clause. Walter,
434 F.3d at 34 ("[S]tatements . . . offered not for the truth of
the matters asserted . . . do not implicate the Confrontation
Clause.").
Enamorado also specifically challenges CW-1's
"identification" of the speakers in Exhibit 214. It is unclear
what identification Enamorado is challenging. If Enamorado is
challenging the fact that CW-1 referred to various MS-13 members
by their names in the recordings, this challenge is rejected
because using someone's name in a conversation is not an assertion.
See United States v. Weeks, 919 F.2d 248, 251 (5th Cir. 1990). If
he is challenging the fact that CW-1 provided the identities of
the speakers for the transcripts, it was Hernandez-Miguel, a
coconspirator who testified at trial, not CW-1, who provided the
voice identification for the recordings and their transcripts.
Enamorado also challenges the admission of CW-1's
statements in Exhibit 240, a transcript of a recorded conversation
between CW-1 and Pérez-Vásquez on October 13, 2015, in which they
discussed the Ortiz murder. After reviewing the transcript we see
- 29 -
no reversible error in admitting CW-1's statements to provide
context for Pérez-Vásquez's statements. Most of CW-1's statements
are mere interjections or "reciprocal and integrated
utterance(s)." Walter, 434 F.3d at 34. And we are satisfied that
to the extent any statements could not be so understood, their
admission was harmless. See United States v. Benitez-Avila, 570
F.3d 364, 372 (1st Cir. 2009) (rejecting hearsay argument on appeal
because any error was harmless). For example, as to CW-1 saying
"Look at [Enamorado]. You see how fast they had him on the news?,"
there was no dispute as to whether Enamorado was quickly identified
as the shooter.
E. The Admission of Law Enforcement Testimony
1. Expert Testimony Founded on Hearsay
Pérez-Vásquez and Enamorado argue that elements of
Investigator Norris's, Agent Wood's, and Trooper Estevez's expert
testimony were improperly admitted and violated the Confrontation
Clause because they were merely relaying improper hearsay evidence
rather than providing expert analysis. This unpreserved challenge
to the admission of testimony is reviewed for plain error. United
States v. Laureano-Pérez, 797 F.3d 45, 63 (1st Cir. 2015).
As explained in United States v. Sandoval, "properly
qualified experts whose work is based on reliable principles and
methods may rely on inadmissible hearsay evidence in forming an
expert opinion" as long as they "relay[] that opinion, once formed,
- 30 -
through their own testimony." 2021 WL 2821070, at *12; see also
United States v. Rios, 830 F.3d 403, 418 (6th Cir. 2016) ("[I]t is
the process of amalgamating the potentially testimonial statements
. . . that separates an admissible [expert] opinion [on a criminal
organization] from an inadmissible transmission of testimonial
statements.").
As to Investigator Norris's testimony, he did not repeat
improper hearsay evidence and the defendants do not explain how
any of his statements were improper. Rather, based on his
experience and synthesis of various materials, he provided
evidence, helpful to the jury, about the structure and rules of
MS-13.
As to Agent Wood, in most of the portions challenged by
the defendants on this ground, Agent Wood is testifying as to what
he personally observed during the investigation, not as an expert.
And his testimony about the basic structure of MS-13 was based on
a synthesis of his many years of experience investigating MS-13.
See Sandoval, 2021 WL 2821070, at *12-13.
As to Trooper Estevez, most of the challenged testimony
is a description of Trooper Estevez's personal involvement in the
investigation or Trooper Estevez reading aloud already admitted
transcripts of conversations between MS-13 members. As to the
transcripts, we have already rejected the defendants' challenges
to the statements in those transcripts. As to the statement
- 31 -
specifically challenged by Enamorado, that it was "common in some
cliques" for members to try to hide the fact they were making money
from illegal activities from their clique, Estevez made that
statement on cross-examination by Pérez-Vásquez's lawyer to
explain an admitted recording in which an MS-13 member was
explaining that "[a]nother thing about [the drug protection
details] is not to tell everyone . . . [b]ecause they get jealous,
homie, and all that." The admission of Estevez's statement was
not an abuse of discretion, much less plain error, because it was
a permissible statement based on his experience investigating MS-
13. See United States v. Belanger, 890 F.3d 13, 29 (1st Cir. 2018)
(holding that agent's testimony commenting on meaning of recorded
calls was property admitted where agent was "intimately involved
in the investigation" and "well suited to contextualize individual
affairs like [the] phone call").10
10 Enamorado also argues that the court should not
have admitted Estevez's statement that the Suffolk County District
Attorney's Office had identified a suspect for the Ortiz killing
because he did not have an opportunity to cross-examine someone
from the District Attorney's Office. In fact, Trooper O'Connor,
who was in the Suffolk County Detective Unit, had already testified
that they had identified Enamorado as a suspect, and Enamorado had
the opportunity to cross-examine him. Enamorado was not prejudiced
by the admission of Estevez's statement and there was no plain
error.
- 32 -
2. Overview Testimony
Pérez-Vásquez argues that much of the testimony by law
enforcement officers was improper "summary overview" evidence.11
Overview testimony refers to the use of a witness to "map out [the
government's] case and to describe the role played by individual
defendants." United States v. Flores-De-Jesús, 569 F.3d 8, 16
(1st Cir. 2009) (quoting United States v. Casas, 356 F.3d 104, 117
(1st Cir. 2004)). Such testimony is improper because it may
describe evidence that never materializes and, if the witness is
a government agent, may lend the imprimatur of government to a
later-testifying witness. Id. at 16-17. "Where an officer
testifies exclusively about his or her role in an investigation
and speaks only to information about which he or she has first-
hand knowledge, the testimony is generally . . . permissible."
United States v. Meléndez-González, 892 F.3d 9, 18 (1st Cir. 2018)
(alteration in original) (quoting United States v. Rose, 802 F.3d
114, 121 (1st Cir. 2015)). In describing his investigation, an
officer may not make "conclusory statements about the defendant's
11 Solís-Vásquez joined this argument.
Pérez-Vásquez also hints at an argument that it was
impermissible for law enforcement witnesses to testify both as
expert witness and fact witnesses. The argument is waived for
lack of developed argumentation, and in any event "there is no per
se prohibition against a witness testifying in both capacities."
Sandoval, 2021 WL 2821070, at *12.
- 33 -
culpability." United States v. Rodríguez-Adorno, 695 F.3d 32, 38
(1st Cir. 2012).
Because no objection was made in the district court, we
review this claim for plain error. United States v. Iwuala, 789
F.3d 1, 5-6 (1st Cir. 2015). We see no prejudicial overview
evidence in the record. Some of the testimony the defendants
identify as "overview" evidence is better described as expert
testimony.12 The remainder consists of Agent Wood's and Trooper
Estevez's description of their own roles in the investigation or
the reading of already admitted transcripts.13
3. Expert Methodology
Enamorado argues in one sentence that all of the experts'
methodologies were inadequate. Because he failed to develop the
argument, it is waived. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
12 For example, the defendants characterize as overview
evidence the expert testimony about "the [MS-13] organization,
rules, and practices of MS-13, [and] the nomenclature and
leadership structure of MS-13."
13 The government concedes that Agent Wood's statement that
he recognized the gang name "Crazy" as an MS-13 member from the
Everett Loco Salvatrucha clique could be viewed as an improper
conclusory statement about Pérez-Vásquez's guilt. But Pérez-
Vásquez admitted his membership in MS-13, so any error in admitting
this statement was harmless. See Flores-De-Jesús, 569 F.3d at 28,
30 (rejecting argument about overview evidence on appeal because
any error was harmless).
- 34 -
Pérez-Vásquez also adopts, without elaboration, the
argument of Herzzon Sandoval, a codefendant who was part of a
different trial group, that Agent Wood's testimony was improperly
admitted because the government failed to show that the evidence
was based on a reliable methodology.14 But the testimony challenged
by Sandoval at his trial is entirely distinct from the testimony
given by Agent Wood at Pérez-Vásquez's trial, and to the extent
the circumstances are the same as in Sandoval, the Court rejected
the argument. See Sandoval, 2021 WL 2821070, at *10. To the
extent they are different, Pérez-Vásquez has not explained how and
so has waived this argument. See United States v. Torres-Rosa,
209 F.3d 4, 7 (1st Cir. 2000).
F. Jencks Act
Enamorado argues that the government violated the Jencks
Act, 18 U.S.C. § 3500, by failing to disclose all of Investigator
Norris's prior testimonies as an expert witness. The Jencks Act
requires, on motion of the defendant, the government to turn over
any "statement" of a government witness "relating to the subject
matter of that witness's testimony" after the witness has been
called by the United States and has testified on direct
14 Pérez-Vásquez also adopts Sandoval's argument that
cross-examination of Wood was improperly limited and that a "Threat
Assessment" should have been turned over under the Jencks Act. It
is unclear how these arguments are relevant or can be applied in
this case.
- 35 -
examination. United States v. Landrón-Class, 696 F.3d 62, 72-73
(1st Cir. 2012); see 18 U.S.C. § 3500(b). Enamorado's argument
fails because transcripts of a witness's prior testimony, which
are available in the public record, are not Jencks Act material.
See United States v. Hensel, 699 F.2d 18, 39-40 (1st Cir. 1983);
United States v. Chanthadara, 230 F.3d 1237, 1254-55 (10th Cir.
2000) (collecting cases).
G. Pérez-Vásquez's Closing Argument
Enamorado argues that Pérez-Vásquez's closing argument
unconstitutionally prejudiced Enamorado and thus that he was
entitled to a mistrial. Enamorado first argues that the closing
argument was effectively a confession made by Pérez-Vásquez's
attorney on behalf of Pérez-Vásquez and thus that it was allowed
in violation of Bruton v. United States, 391 U.S. 123 (1968). He
then argues that Pérez-Vásquez's closing argument made clear that
Enamorado's defense was irreconcilable with Pérez-Vásquez's
defense, and thus that he was entitled to a mistrial and severance.
The denial of a mistrial is reviewed only for "manifest abuse of
discretion." United States v. Chisholm, 940 F.3d 119, 126 (1st
Cir. 2019). Bruton challenges are reviewed de novo. United States
v. Padilla-Galarza, 990 F.3d 60, 75-76 (1st Cir. 2021).
As to Enamorado's first contention, "[a] defendant is
deprived of his rights under the Confrontation Clause when his
nontestifying codefendant's confession naming him as a participant
- 36 -
in the crime is introduced at their joint trial." Richardson v.
Marsh, 481 U.S. 200, 201 (1987); see also Bruton, 391 U.S. 123.
That is not what happened here. The challenged statements were
made to convince the jury that Pérez-Vásquez was not guilty for
lack of intent. We do not think a reasonable jury would have
concluded that this argument was actually a confession by Pérez-
Vásquez stating that a different defendant, Enamorado, was guilty
of RICO conspiracy. Enamorado did not ask for any curative
instruction, further evidencing that the jury did not need to be
cautioned. And the jury was instructed that "[l]awyers are not
witnesses. What they say in their . . . closing arguments . . .
is not evidence." See United States v. Quintero, 38 F.3d 1317,
1342 (3d Cir. 1994) (stating that Bruton "does not apply when an
attorney for a co-defendant implicates the defendant during
closing argument"); United States v. Sandini, 888 F.2d 300, 311
(3d Cir. 1989) ("Bruton is directed toward preserving a defendant's
right to cross-examination, and thus has nothing to do with
arguments of counsel," which "are simply not evidence.").
We also reject Enamorado's argument that the closing
statement rendered Enamorado and Pérez-Vásquez's defenses so
irreconcilable as to require a severance. "[T]o gain a severance
based on antagonistic defenses, the antagonism . . . must be such
that if the jury believes one defendant, it is compelled to convict
the other defendant." United States v. Floyd, 740 F.3d 22, 36
- 37 -
(1st Cir. 2014) (second alteration in original) (quoting United
States v. Peña-Lora, 225 F.3d 17, 33 (1st Cir. 2000)). "Courts
measure the level of antagonism by the evidence actually introduced
at trial. And argument by counsel is not -- repeat, not --
evidence." Chisholm, 940 F.3d at 128 (cleaned up) (rejecting claim
that drug-trafficking defendant was entitled to severance where
codefendant's closing and opening statements repeatedly stated he
was a "large-scale, sophisticated heroin trafficker"). Because
closing arguments are not evidence, the district court did not
manifestly abuse its discretion in denying the motion for a
mistrial based on Pérez-Vásquez's closing argument.
H. The Government's Closing Argument
Enamorado argues that the government's statements during
its closing argument were improper and prejudicial.
We review Enamorado's unpreserved challenges to the
government's closing argument for plain error. United States v.
Belanger, 890 F.3d 13, 34 (1st Cir. 2018). We must determine
"whether the challenged comment [was] obviously improper," and, if
so, "whether the comment 'so poisoned the well that the trial's
outcome was likely affected.'" United States v. Walker-
Couvertier, 860 F.3d 1, 10 (1st Cir. 2017) (quoting United States
v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)). In making
this determination, we consider "(1) the severity of the
prosecutor's misconduct, including whether it was deliberate or
- 38 -
accidental; (2) the context in which the misconduct occurred;
(3) whether the judge gave curative instructions and the likely
effect of such instructions; and (4) the strength of the evidence
against the defendants." Belanger, 890 F.3d at 34 (quoting United
States v. Wihbey, 75 F.3d 761, 772 (1st Cir. 1996)).
Enamorado first argues that the government falsely
stated that Enamorado called Pérez-Vásquez "to be backup" because
"[Enamorado] didn't have anyone from his clique available to do
it." Even if that statement were not well-supported by the record,
it was an "isolated and minor comment[] in the context of a much
larger web of evidence pointing to [the defendant's] guilt" and
does not cast doubt on the conviction. United States v. French,
904 F.3d 111, 125 (1st Cir. 2018).
Enamorado next argues that the government's statement
that Ortiz was an 18th Street gang member was improper because it
was inconsistent with testimony from FBI Special Agent Wood in a
codefendant's prior trial that he did not know whether Ortiz was
an 18th Street gang member. The importance of Ortiz's gang
affiliation is that it supports the contention that the Ortiz
murder was done in furtherance of MS-13's purposes. Because the
government provided substantial evidence that Enamorado believed
Ortiz was an 18th Street gang member, Ortiz's actual affiliation
was unimportant to the outcome and there was no plain error.
- 39 -
Enamorado also argues that the government misstated the
law by telling the jury that it could convict Enamorado based
solely on his participation in the Ortiz murder. This argument
fails. The government did twice state during closing arguments
that the murder was enough to convict Enamorado. Those statements
were incorrect, but in the remainder of the prosecutor's closing
argument he properly stated that in order to be convicted for RICO
conspiracy, the Ortiz murder had to be done in connection with the
MS-13 enterprise. Further, the court properly instructed the jury
as to the applicable law. See United States v. Gonzalez-Gonzalez,
136 F.3d 6, 9 (1st Cir. 1998) ("No juror would mistake a prosecutor
for a judge.")
I. Enamorado's Challenge Under Federal Rule of Evidence 403
Enamorado argues for the first time on appeal that the
admission of evidence regarding the wider MS-13 organization and
crimes committed by members of other cliques of which Enamorado
had no personal knowledge was unduly prejudicial. Federal Rule of
Evidence 403 allows a court to "exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice . . . or needlessly presenting cumulative
evidence." Unpreserved 403 challenges are reviewed for plain
error. United States v. Casanova, 886 F.3d 55, 63 (1st Cir. 2018).
In United States v. DeCologero, we stated that where a
defendant is engaged in a RICO conspiracy, evidence of crimes
- 40 -
committed within the scope of that conspiracy are relevant "to
prove the existence and nature of the RICO enterprise and
conspiracy," even if the defendant had no personal involvement in
the crime. 530 F.3d 36, 54 (1st Cir. 2008). Further, it was "far
from clear that the potentially prejudicial impact of [such]
evidence would have rendered it inadmissible under Federal Rule of
Evidence 403." Id. There was no plain error in admitting evidence
against Enamorado of the crimes committed in furtherance of the
broader MS-13 conspiracy.
J. Jury Instructions
Enamorado challenges two aspects of the jury
instructions.15 Because Enamorado failed to object in the district
court, we review the instructions for plain error. United States
v. González-Vélez, 466 F.3d 27, 34-35 (1st Cir. 2006).
The district court instructed the jury that to prove a
RICO conspiracy the government must show that "the defendant or
another member of the conspiracy agreed to commit at least two
racketeering acts." (Emphasis added). It next stated that "[f]or
each defendant, the government . . . must prove that the defendant
agreed to participate in the conspiracy and that the conspiracy
involved, or would involve, the commission of at least two
racketeering acts." Enamorado argues that the first portion of
15 Pérez-Vásquez adopted this argument.
- 41 -
these instructions improperly instructed the jury that it could
convict Enamorado whether or not Enamorado knew the conspiracy
would involve the commission of at least two racketeering acts.
The first portion of the instruction accurately conveyed
that if Enamorado agreed to join a conspiracy in which
coconspirators had agreed to do two or more acts, then Enamorado
himself need not have done those acts. Enamorado did not at any
time propose a more artful phrasing. Any risk of the jury
misunderstanding was eliminated by the very next sentence.
Instructions are not viewed piecemeal. United States v. Paz-
Alvarez, 799 F.3d 12, 23 (1st Cir. 2015). There was no plain
error.
Enamorado next argues that the district court's murder
instructions were error under Alleyne v. United States, 570 U.S.
99 (2013).16 The district court told the jury "[i]n this case, the
distinction between first-degree and second-degree murder is not
relevant" and that it would "simply describe the elements of
murder" to the jury. But at the charge conference the district
court made clear that it would instruct the jury on second-degree
murder "without calling it second-degree murder" to streamline the
charge. And the instructions given to the jury clearly described
second-degree murder.
16 Pérez-Vásquez adopts this argument.
- 42 -
It is not clear what argument Enamorado is making. If
he is arguing that the district court was required to instruct on
first-degree murder in addition to second-degree murder, that
argument fails because there was no prejudice to Enamorado.
Enamorado argues there was prejudice because if both instructions
had been given and the jury had only found him guilty of second-
degree murder, the district court would have calculated a lower
guidelines range. As explained in United States v. Gonzalez, 981
F.3d 11 (1st Cir. 2020), a district court may use the first-degree
murder guideline if it finds by a preponderance of the evidence
that the defendant committed first-degree murder, even if the jury
only finds the defendant guilty of second-degree murder, id. at
16-17. And the district court said it thought the evidence was
"overwhelming . . . that the murder of Ortiz was premeditated."
K. Responses to Jury Questions
Enamorado challenges the district court's responses to
two jury questions asked during deliberations. The first question
was: "Is it required to prove that the defendant is a gang member
in order to be associated with MS-13? . . . [W]hat is the definition
of an associate of MS-13?" The district court replied: "The answer
to that question is no. The real issue is not whether a particular
defendant is a full member of a gang, rather, the focus should be
on the conspiracy and the agreement that is at the heart of the
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conspiracy to conduct the affairs of an enterprise through a
pattern of racketeering activity."
The second question was: "Does evidence of the
defendant's association with MS-13 have to predate the specific
racketeering acts charged in the indictment?" The district court
replied: "[N]o. Again, the focus should be on the conspiracy and
the agreement at the heart of the conspiracy. No specific
racketeering acts need be committed at all."
Both answers were crafted in response to and in the
presence of defense counsel. The district court read the final
version of the instructions and asked the defendants "Does that
work?" to which they replied "for the defendants, yes." This
approval waived any later objection. United States v. Corbett,
870 F.3d 21, 30-31 (1st Cir. 2017) (explaining that a defendant
waives any objection when says he has "no problem" with the
proposed answer to a jury question).17
L. Sentencing Entrapment
Pérez-Vásquez argues his sentence was inappropriately
enhanced due to sentencing factor manipulation. Because Pérez-
Vásquez failed to raise this issue in the district court, we review
17 Having rejected all of the defendants' claims of trial
error, we reject their claim of cumulative error. Williams v.
Drake, 146 F.3d 44, 49 (1st Cir. 1998) ("Absent any particularized
error, there can be no cumulative error.").
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for plain error. United States v. Sánchez-Berríos, 424 F.3d 65,
78 (1st Cir. 2005).
"Sentencing factor manipulation occurs 'where government
agents have improperly enlarged the scope or scale of [a] crime'"
during a sting operation. United States v. Rivera-Ruperto, 852
F.3d 1, 14 (1st Cir. 2017) (alteration in original) (quoting United
States v. Lucena-Rivera, 750 F.3d 43, 55 (1st Cir. 2014)). In
such cases, the sentencing court may impose a sentence below the
mandatory minimum as an equitable remedy. Id. Because any sting
operation involves manipulation, relief is available only in "the
extreme and unusual case" such as in the case of "outrageous or
intolerable pressure [by the government] or illegitimate motive on
the part of the agents." Id. at 15 (alteration in original) (first
quoting Lucena-Rivera, 750 F.3d at 55; and then quoting United
States v. Navedo-Ramirez, 781 F.3d 563, 580 (1st Cir. 2015)). The
burden is on the defendant to establish such manipulation by a
preponderance of the evidence. Id.Pérez-Vásquez argues that the drug protection detail in
which he was asked to move five kilograms of cocaine to New
Hampshire was improper because "the only purpose" for using five
kilograms of cocaine rather than a lesser amount was to enhance
the defendants' sentencing exposure. This argument fails, as the
mere fact that agents could have but did not use smaller quantities
of drugs in a sting operation "without more, does not establish
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that the agents engaged in the kind of 'extraordinary misconduct'
that is required of a successful sentencing manipulation claim."
Id. (citation omitted) (quoting Sánchez-Berríos, 424 F.3d at 78).
M. Procedural Reasonableness of the Defendants' Sentences
The defendants make various challenges to the procedural
reasonableness of their sentences.18 We review the procedural
reasonableness of a sentence under a "multifaceted" abuse of
discretion standard. United States v. Flores-Quiñones, 985 F.3d
128, 133 (1st Cir. 2021). We review factual findings for clear
error, the interpretation of the guidelines de novo, and judgment
calls for abuse of discretion. Id.All three defendants argue that the district court erred
by calculating the guidelines range based on a judicial finding by
the preponderance of the evidence that they were guilty of first-
degree murder. They argue that a jury was required to decide
whether the murder was first- or second-degree under Alleyne, 570
U.S. 99. This argument is foreclosed by our decision in Gonzalez,
981 F.3d at 16-17.
Enamorado argues that his criminal history category was
miscalculated.19 We reject this challenge. Because his base
18 A heading in Enamorado's brief suggests he is
challenging the substantive reasonableness of his sentence as
well, but the argument was not developed and thus is waived.
Zannino, 895 F.2d at 17.
19 Enamorado also argues that there was insufficient
evidence that his murder of Ortiz was premeditated or committed as
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offense level was 43, the criminal history category had no impact
on his guidelines range. See U.S.S.G. ch. 5, pt. A (sentencing
table); United States v. Magee, 834 F.3d 30, 38 (1st Cir. 2016)
(rejecting challenge to criminal history category determination
because any error was harmless). We also reject Enamorado's
argument that he was entitled to a downward adjustment to his
offense level for playing only a "minor" role in the conspiracy.
Not only did Enamorado kill Ortiz, but he was also identified by
several witnesses as a homeboy. MS-13 associates only become
homeboys after ongoing participation in the gang and its
activities. The district court's determination that Enamorado's
role was not minor was not clear error. See United States v.
Montes-Fosse, 824 F.3d 168, 172 (1st Cir. 2016).
Solís-Vásquez challenges the calculation of his
guidelines range on the grounds that there was insufficient
evidence to support the district court's conclusion by the
preponderance of the evidence that he was responsible for first-
degree rather than second-degree murder of Ortiz. For much the
reasons described in the discussion of the sufficiency of the
evidence, we see no clear error in the district court's conclusion
a part of the MS-13 conspiracy. We reject this argument for the
same reasons we reject his sufficiency argument.
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that Solís-Vásquez understood that the group was going to kill
Ortiz and thus that the murder was premeditated.20
N. Effective Assistance of Counsel
Pérez-Vásquez argues that he was denied effective
assistance of counsel because his counsel conceded some elements
of the charged RICO conspiracy.
Ineffective assistance of counsel claims generally
"cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by,
the trial court." United States v. Tkhilaishvili, 926 F.3d 1, 20
(1st Cir. 2019) (quoting United States v. Mala, 7 F.3d 1058, 1063
(1st Cir. 1993)). Further, Pérez-Vásquez has not shown that the
record here was "sufficiently developed to allow reasoned
consideration" of the issue. Id. (quoting United States v.
Natanel, 938 F.2d 302, 309 (1st Cir. 1991)). We dismiss this claim
of error without prejudice. Pérez-Vásquez may file a motion for
post-conviction relief in the district court. See 28 U.S.C.
§ 2255.
20 Solís-Vásquez also challenges whether there was
sufficient evidence to support increasing his base offense level
based on various other assaults and murders. Because there was no
clear error in determining that Solís-Vásquez's base offense level
was 43, the maximum, his base offense level was not affected by
the other conduct and any error was harmless. See United States
v. Acevedo-Hernández, 898 F.3d 150, 172 (1st Cir. 2018).
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We have reviewed all additional claims made by the
defendants and determined that each of them is without merit.
IV. Conclusion
Affirmed.
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