United States v. Candelario-Santana

United States Court of Appeals
For the First Circuit
Nos. 13-2139,
13-2427
UNITED STATES OF AMERICA,
Appellee,
v.
ALEXIS CANDELARIO-SANTANA, and
DAVID OQUENDO-RIVAS,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
Alan J. Black, for appellant Candelario-Santana.
Linda Backiel, for appellant Oquendo-Rivas.
Jenny C. Ellickson, U.S. Department of Justice, Criminal
Division, Appellate Section, with whom Leslie R. Caldwell,
Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant
Attorney General, were on brief, for appellee.
August 17, 2016
TORRUELLA, Circuit Judge. These consolidated appeals
stem from a drug-related mass shooting carried out in furtherance
of a Racketeer Influenced and Corrupt Organizations Act ("RICO")
enterprise. Following the shooting, a federal grand jury in the
United States District Court for the District of Puerto Rico
returned a fifty-two count superseding indictment charging Alexis
Candelario-Santana ("Candelario") and David Oquendo-Rivas
("Oquendo") (collectively, "Defendants-Appellants") with violent
crimes in aid of racketeering activity ("VICAR"). Candelario was
further charged with a number of drug trafficking offenses and
thirteen RICO conspiracy-related murders. The Government sought
the death penalty for Candelario. Defendants-Appellants were
tried jointly before, and found guilty on all counts by, a death-
qualified jury. As the jury failed to reach a unanimous decision
on whether Candelario should receive a death sentence, both
defendants received life sentences. Defendants-Appellants timely
filed notices of appeal, deploying a veritable flotilla of
challenges. We affirm Oquendo's convictions but vacate and remand
as to Candelario.
-3-
I. Background
We include the foundational facts in this section and
delve into facts essential to each issue raised on appeal in our
analysis.
In 1993, Candelario became the head of a drug-
trafficking organization, known as the Palo de Goma drug point,
operating in the Sabana Seca ward of Toa Baja, Puerto Rico.
Throughout the 1990s, Candelario retained exclusive control over
drug sales in the surrounding areas, often through violent means.
Aided by Braulio Rodríguez ("Menor"), Candelario murdered or
arranged the murder of at least a dozen individuals. In the late
1990s, Candelario fled to Michigan in an attempt to avoid arrest,
leaving his cousin, Wilfredo Semprit-Santana ("Rufo"), and Carmelo
Rondón-Feliciano ("Omi") to oversee day-to-day operations at Palo
de Goma.1 In return, Rufo and Omi agreed to "pay rent" to, that
is, share the drug proceeds with, Candelario. In 2003, Candelario
pleaded guilty to a dozen murder charges in Puerto Rico court.
Rufo and Omi continued making payments to Candelario for use of
the drug point. At some point, Candelario's relationship with
Rufo and Omi began to deteriorate; the duo stopped making payments
to Candelario, who threatened them. In 2006, following Omi's
1 In his testimony, Rufo claimed that only Omi was left in charge
of the drug point.
-4-
arrest by federal authorities, Rufo's brother, Pedro Semprit-
Santana ("Semprit"), joined Palo de Goma, also declining to make
payments to Candelario.
In February 2009, Candelario was released from prison.
That same year, Rufo rented and renovated La Tómbola, a mini-
market and bar located in Sabana Seca. During La Tómbola's opening
night party on October 17, 2009, several shooters attacked
attendees, killing nine and injuring more than a dozen people.
Following the events at La Tómbola, three eyewitnesses identified
Oquendo as a gunman. Two others identified Candelario. Another
witness identified the voice of a shooter as that of Candelario.
II. Procedural History
A federal grand jury returned a fifty-two count
superseding indictment against Candelario and Oquendo. Counts two
to forty-nine charged Defendants-Appellants with VICAR activity
and with carrying firearms during and in relation to crimes of
violence in violation of 18 U.S.C. §§ 1959 and 2 and 18 U.S.C.
§§ 924 and 2, respectively. The indictment also charged
Candelario with conspiracy to engage in a racketeering enterprise,
in violation of 18 U.S.C. § 1962(d); conspiracy to possess with
intent to distribute crack cocaine, cocaine, heroin, and
marijuana, in violation of 21 U.S.C. § 846; and possession of a
-5-
firearm by a prohibited person, in violation of 18 U.S.C.
§ 922(g)(1).
We take each relevant issue on appeal in turn, beginning
with Oquendo's challenge to the district court's refusal to
suppress statements he made on the day of his arrest, proceeding
to Oquendo and Candelario's claim of unconstitutional closure,
Oquendo's potpourri allegations of trial error, and Oquendo's
challenge to the jury instructions, and finally concluding by
dispensing of Oquendo's insufficiency of the evidence claim.
III. Oquendo's Statements on the Day of His Arrest
Several days after the shooting, Puerto Rico Police
Department ("PRPD") Officer Carlos Rodríguez-Negrón ("Rodríguez")
received information that the individuals who perpetrated the La
Tómbola shooting were hiding in a small neighborhood in Sabana
Seca. As we recounted in an earlier, related case:
rumors led officers from the [PRPD] to a . . . home,
where several men involved in the murders were thought
to be hiding. Arriving at the residence, officers
observed three men standing in its fenced-in yard.
Startled by the officers, one man -— later identified
as Oquendo -- lifted his shirt to reveal a firearm in
his waistband. All three men then fled. One,
exiting the yard, successfully evaded the ensuing
pursuit; he has never been identified. The other two,
Oquendo and . . . Christian Ortiz–Rivera ("Ortiz"),
ran up an exterior staircase and into the home's
second-story interior. The officers gave chase.
Entering the home's upper level, [Rodríguez] observed
Oquendo toss a handgun out of the window. Soon after,
Officer Rodríguez and Officer Roberto Cruz grabbed
-6-
Oquendo and restrained him on the floor. While
demobilizing Oquendo, they heard a fellow officer call
out from below, indicating that he had possession of
the thrown weapon. Officer Rodríguez then entered an
adjoining bedroom, where he witnessed Ortiz
attempting to hide two more firearms in a laundry
basket. One of these guns had an obliterated serial
number. Subsequent to detaining both men, but before
their formal arrest, Officer Rodríguez asked if they
were licensed to possess firearms. Oquendo and Ortiz
both answered, "no."
After being placed under formal arrest and verbally
read his Miranda rights, Oquendo was taken to the
police station in Bayamón, Puerto Rico for
questioning. There, Officer Rodríguez provided him
with a Spanish-language Miranda waiver form. This
form set forth, in a bullet-point list, the nature of
Oquendo's Miranda rights. Under that bulleted
description, the form provided space for Oquendo to
waive his rights by consenting to make a statement
outside the presence of a lawyer, if he so desired.
After reviewing the form, Oquendo indicated that he
did not wish to make a statement. No questions were
asked and, after signing and dating the form, Officer
Rodríguez left the room.
Approximately twenty minutes later, Agent Julio
Torres ("Agent Torres") from the federal Alcohol,
Tobacco, Firearms and Explosives Bureau ("ATF")
entered Oquendo's interrogation room. Agent Torres
handed Oquendo another blank copy of the Spanish-
language Miranda waiver form. After reviewing this
duplicate form, Oquendo wrote next to the portion of
the form related to waiver, "I do not understand this,
my lawyer speaks." Agent Torres then verbally read
Oquendo his Miranda rights and, upon seeing the note,
asked Oquendo what he did not understand. In
response, Oquendo indicated that he was willing to
speak without a lawyer present, but that he did not
want to answer any questions about the deaths at La
Tómbola. Agreeing to limit the scope of his
questions, Agent Torres had Oquendo circle the portion
of the waiver form consenting to speak without a
lawyer. Both Oquendo and Agent Torres then signed
the form, and questioning began. During the course
-7-
of his interrogation, Oquendo made statements
indicating that he knew Ortiz possessed a gun with an
obliterated serial number.
United States v. Oquendo-Rivas, 750 F.3d 12, 14-15 (1st Cir. 2014).
In this case, Oquendo filed a motion to suppress
statements made to law enforcement. At the suppression hearing,
Rodríguez described "put[ting] [Oquendo] down on the floor" "real
fast" and said he "put [him] under arrest for [his] safety."
Rodríguez stated that he twice Mirandized both men. According to
Rodríguez, both men replied "[t]hat they're clear. That both
weapons are theirs, but that they are not involved whatsoever with
the events that occurred at La Tómbola." Rodríguez later amended
his statement, adding that, as noted above, prior to Mirandizing
Oquendo and Ortiz, he asked them whether they had a firearms
license, and both men responded in the negative. At that point,
Rodríguez claims he administered Miranda warnings.
Oquendo's motion was denied following the hearing. The
district court reasoned that, because Rodríguez asked Oquendo
whether he had a valid gun license during a Terry-type
intervention, Oquendo was not in formal custody, making Miranda
warnings unnecessary. Even if the gun-licensing question were
impermissible, the district court continued, Rodríguez had
probable cause for arresting Oquendo, as he brandished a firearm.
The district court additionally found that Oquendo spontaneously
-8-
made his initial statements ("we're clear . . . both weapons are
[ours], but . . . they are not involved whatsoever with the events
that occurred at La Tómbola") pursuant to a valid Miranda waiver.
With regard to the statements made to Agent Torres, the district
court concluded that Oquendo did not assert that he wished to
consult with counsel, and that Oquendo voluntarily waived his right
to remain silent.
A.
This court reviews factual determinations and
credibility assessments underlying a motion to suppress for clear
error and reviews legal conclusions de novo. Id. at 16. We view
the facts in the light most favorable to the district court's
ruling on the motion. United States v. Camacho, 661 F.3d 718, 723
(1st Cir. 2011). "So long as 'any reasonable view of the evidence
supports it,' [this court] will uphold the denial of the motion to
suppress." United States v. Molina-Gómez, 781 F.3d 13, 18 (1st
Cir. 2015) (quoting United States v. Brown, 510 F.3d 57, 64 (1st
Cir. 2007) (internal quotation marks and citation omitted)).
During a stop pursuant to Terry v. Ohio, 392 U.S. 1(1968), "officers [may] 'diligently pursue[] a means of
investigation . . . likely to confirm or dispel their suspicions
quickly.'" United States v. Trueber, 238 F.3d 79, 91-92 (1st Cir.
2001) (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).
-9-
However, no bright-line rule exists demarcating Terry-type
interventions from arrests. United States v. Rabbia, 699 F.3d 85,
89-90 (1st Cir. 2012). Nevertheless, a detention transforms into
a de facto arrest when a reasonable person, in the suspect's
position, would feel the degree of restraint normally associated
with formal arrest. United States v. Zapata, 18 F.3d 971, 975
(1st Cir. 1994). The question is, then, whether "in light of the
totality of the circumstances . . . a reasonable person in the
suspect's position would have understood [his] position 'to be
tantamount to being under arrest.'" United States v. Chaney, 647
F.3d 401, 409 (1st Cir. 2011) (quoting Zapata, 18 F.3d at 975).
Upon review, factors to consider include: "the location
and duration of the stop, the number of police officers present at
the scene, the degree of physical restraint placed upon the
suspect, and the information conveyed to the suspect." Rabbia,
699 F.3d at 91. This court also inquires into "whether the suspect
was questioned in familiar or at least neutral surroundings . . .
and the duration and character of the interrogation." United
States v. Nishnianidze, 342 F.3d 6, 13 (1st Cir. 2003) (quoting
United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987)).
Officers' temporary use of coercive measures, such as handcuffs,
and even drawing a weapon are not dispositive. See United States
v. Fornia-Castillo, 408 F.3d 52, 64-65 (1st Cir. 2005). Whether
-10-
a Terry stop escalated to a de facto arrest "'qualif[ies] for
independent review' as it . . . presents a 'mixed question of law
and fact.'" Trueber, 238 F.3d at 93 (alterations in original)
(quoting Thompson v. Keohane, 516 U.S. 99, 113 (1995)).
Once an individual is in custody, police must advise the
arrestee of his or her constitutional rights before interrogation.
Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). Failure to warn
a person of their Miranda rights renders inadmissible any statement
elicited in the course of the custodial interrogation. United
States v. Jackson, 544 F.3d 351, 356 (1st Cir. 2008).
B.
Here, at first glance, the suppression issue as to
Oquendo's pre-Miranda statement appears to hinge on this court's
independent determination of whether the Terry stop escalated into
an arrest before officers asked Oquendo if he had a gun license.
Several factors cause concern. The location was secluded. Cf.
Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (explaining that
"exposure to public view both reduces the ability of an
unscrupulous policeman to use illegitimate means to elicit self-
incriminating statements and diminishes the motorist's fear that,
if he does not cooperate, he will be subjected to abuse"). Oquendo
was placed in handcuffs, which the record does not suggest were
removed at any point, and officers did not take measures to ensure
-11-
that Oquendo knew that he was not under arrest. Cf. Fornia-
Castillo, 408 F.3d at 65 (officers removed handcuffs within fifteen
minutes and did not admit into evidence statements made by
defendant while he remained in handcuffs); see also Rabbia, 699
F.3d at 88-90 (finding that the officer's questioning after
removing handcuffs did not convert the initial Terry stop into a
custodial arrest). Nor does the record suggest that Rodríguez
informed Oquendo that the handcuffs were a temporary safety
measure. Rabbia, 699 F.3d at 88 (officer informed defendant that
he was being handcuffed as a safety measure and would remove the
restraints once other officers arrived). It is also not clear how
much time elapsed between apprehension and questioning, and we
note that officers moved Oquendo; that Rodríguez pointed his weapon
at Oquendo, kept it on him during the chase, and had it in his
hand while apprehending him; and that the officers used some force
in apprehending Oquendo, "throw[ing]" him on the floor and
handcuffing him.2 Ultimately, however, no one of these factors is
dispositive under our precedent. We are also keenly aware that
they reflect circumstances created by suspects' flight -- the
location and nature of setting, for example -- and officers'
contextually reasonable responses to the circumstances created by
2 As we said in Oquendo-Rivas, "[the officers] grabbed Oquendo
and restrained him on the floor." 750 F.3d at 14-15.
-12-
suspects' flight. See Chaney, 647 F.3d at 409. There were two
officers, but also two suspects. See Rabbia, 699 F.3d at 89-91
(suggesting consideration of the number of officers involved).
Although the officers did not communicate that the stop and
handcuffing were temporary, and Rodríguez referred to it as an
arrest when testifying, the record does not suggest that the
officers conveyed to the suspects that they were under arrest prior
to the Miranda warnings. United States v. Streifel, 781 F.2d 953,
959 (1st Cir. 1986) ("[Officers'] intentions were relevant only to
the extent that they were communicated to the defendants."); see
also Trueber, 238 F.3d at 92. In particular, the brevity of the
pre-arrest interrogation -- a single pre-Miranda question -- and
its clear relationship to the reason for Oquendo's detention, see
Trueber, 238 F.3d at 91-92, as well as his subsequent arrest, might
persuade us that this was a Terry-type intervention and did not
escalate into a de facto arrest. Yet we can also imagine how a
reasonable person in Oquendo's position might believe he was under
arrest. See Chaney, 647 F.3d at 409.
We find that we need not determine if it was a Terry-
style intervention or a de facto arrest, as the admission of the
statement was harmless error. Arizona v. Fulminante, 499 U.S.
279, 284-85 (1991) (affirming harmless-error analysis applies to
admission of pre-Miranda statements); Bryant v. Vose, 785 F.2d
-13-
364, 367 (1st Cir. 1986). Rodríguez earlier observed Oquendo
"fle[eing] while brandishing a firearm, which he later attempted
to dispose," separate grounds for arrest, and one of the firearms
recovered had a serial number that had been obliterated. See
Oquendo-Rivas, 750 F.3d at 15. Three eyewitnesses identified
Oquendo as one of the La Tómbola gunmen. As such, "the admission
of [Oquendo's pre-Miranda statement to Rodríguez] did not
contribute to [Oquendo's] conviction." Fulminante, 499 U.S. at296 (citing Chapman v. California, 386 U.S. 18, 26 (1967)).
C.
We reject Oquendo's credibility-based challenge to his
post-Miranda statement to the PRPD officers. He claims that it
is implausible that the arrestees spontaneously stated that the
weapons were theirs but had nothing to do with the shooting. But
the district court deemed Rodríguez's account credible and
asserted that the statements "could easily be seen as revealing a
guilty conscience." And, as we have elsewhere observed, "'the
ball game is virtually over' once a district court determines that
a key witness is credible." United States v. Guzmán-Batista, 783
F.3d 930, 937 (1st Cir. 2015) (quoting Rivera-Gómez v. de Castro,
900 F.2d 1, 4 (1st Cir. 1990)). Oquendo did not marshal any
"objective evidence that contradicts [Rodríguez's] story" or show
that Rodríguez's account was "so internally inconsistent or
-14-
implausible that no reasonable factfinder would credit it." Id.
at 937. Rather, Rodríguez's account was uncontroverted. Oquendo
has not produced that which would "definitely and firmly convince[]
[us] that a mistake has been made," Oquendo-Rivas, 750 F.3d at 16,
and so we leave undisturbed the lower court's credibility
assessment.
D.
Stare decisis bars this court from reconsidering the
admissibility of Oquendo's post-Miranda statements to Torres. In
Oquendo-Rivas, we decided that neither Oquendo's right to remain
silent nor his right to counsel had been violated and thus that
his motion to suppress was correctly denied. 750 F.3d at 18-19;
see EEOC v. Trabucco, 791 F.2d 1, 4 (1st Cir. 1986). None of the
criteria for overturning precedent have been met: Oquendo did not
show that the issue was not argued or that the previous panel
"ignored" the issue -- or that the decision was outdated,
inconsistent with current law, or unworkable. Trabucco, 791 F.2d
at 4. Rather, his arguments presume this issue has not already
been decided. We thus once again uphold the district court's
denial of the motion to suppress.
IV. The Closure
The district court ordered a witness who did not appear
on the day he was slated to testify against Candelario at trial,
-15-
who had previously testified before the grand jury and been
interviewed by agents, arrested and brought to court. On
February 27, 2013, at 5:20 p.m., the district court held an in-
chambers conference to address the witness's concerns. At the
start of the conference, the witness expressed: "I'm afraid, and
I fear for my family." Presumably because it sought a more
concrete reply, the district court pressed the witness to clarify
whom, if anyone, he feared. He replied: "Well, these delinquents,
they have family, and. . . I know all of those people . . . I grew
up in that neighborhood, and I know how things are done there."
The court then informed him: "Are you aware that many other people
from your community have come to testify about things they know,
and have even identified, rightly or wrongly, some of these people?
And nothing has happened to them."
Replying to another question from the district court,
the witness indicated that he had received no threats.
Immediately thereafter, he clarified, without offering more, that
he was known to a person related to Candelario. The reluctant
witness confided: "All of our lives we know about the things that
have gone on in Sabana Seca, and this is like a chain. And things
are still continuing to happen. They continue."
The court then stated:
Look at the alternatives. I'm not telling you this
to scare you. Believe me. I'm not trying to do that.
-16-
But you have to understand that I have an obligation
to make certain that matters that pertain to legal
process are complied with. And while I cannot force
you, I would hate and I would be very sorry if I have
to imprison you because of this. And you will have
to go to the same Federal jail where all these guys
are. Imprisonment for contempt of this nature is you
go in and you don't come out until you comply with
the Order of the Court.
The court later added, "if you don't leave me an alternative --
can you imagine yourself sleeping tonight in Federal jail with all
these guys there?"
In further trying to persuade the witness to testify,
the district court assured him that, though the court and counsel
knew his identity, the witness's name would not be released to the
press. Alternatively, the court offered to assign the witness an
alias under which he could testify, but noted that Candelario
likely already knew the witness's name:
THE COURT: I can give you a different name, because
I am not hiding your name, because the lawyers have
it. The lawyers have it. They know who you are.
They have your Grand Jury testimony.
THE WITNESS: Yeah, but the attorneys already gave it
to [Candelario], didn't they?
THE COURT: I don't know whether they did that, but
you don't think [Candelario] knows?
At this point, Government counsel interjected and offered to re-
locate the witness. Later, the district court offered the witness
"protection." The witness turned down both offers.
-17-
As negotiations continued, the district court devised a
plan where the court security officers would announce to the public
that the court was adjourning for the day. The court, however,
would then resume with the witness's testimony once the courtroom
was vacated. Additionally, the lower court would allow the
witness to face away from Candelario, and to identify him using a
photograph. The plan went through, over the objections of counsel
for Candelario.
A.
As Justice Black once observed, "[b]ad men, like good
men, are entitled to be tried and sentenced in accordance with
law . . . ." Green v. United States, 365 U.S. 301, 309 (1961)
(Black, J., dissenting); see also Sorich v. United States, 129 S.
Ct. 1308, 1311 (2009) (Scalia, J., dissenting) (mem.).
We begin with the troubling question of whether the
district court's closing feint to facilitate the reluctant
witness's testimony constituted a constitutionally impermissible
closure, effecting structural error. We find that, in Candelario's
case, it did.3 As such, we need not proceed to the further question
3 Counsel for Oquendo expressly waived any public trial claim by
affirmatively stating, in reply to the district judge's inquiry as
to his consent to the closing, "I don't mind." See United States
v. Christi, 682 F.3d 138, 142 (1st Cir. 2012) (finding that where
defense counsel failed to speak while judge discussed closure "her
silence passed beyond inadvertence or passivity to the point of
-18-
whether the district court's statements to the witness regarding
the consequences of refusing to testify were coercive.
This court reviews de novo whether a district court
violated a defendant's Sixth Amendment right to a public trial.
United States v. Laureano-Pérez, 797 F.3d 45, 76 (1st Cir. 2015).
The Sixth Amendment affords defendants the right to a public trial.
U.S. Const. amend. VI. This constitutional guarantee "embodies a
view . . . that judges, lawyers, witnesses, and jurors will perform
their respective functions more responsibly in an open court than
in secret proceedings." Waller v. Georgia, 467 U.S. 39, 46 n.4
(1984) (quoting Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan,
J., concurring)). Denial of a public trial constitutes structural
error, United States v. Negrón-Sostre, 790 F.3d 295, 301 (1st Cir.
2015), rendering the entire trial process "fundamentally unfair,"
Neder v. United States, 527 U.S. 1, 8 (1999) (quoting Rose v.
Clark, 478 U.S. 570, 577 (1986)). Given the magnitude of this
error, a defendant need not demonstrate prejudice. Owens v.
United States, 483 F.3d 48, 63 (1st Cir. 2007). "The mere
demonstration that [a defendant's] right to a public trial was
violated entitles a petitioner to relief." Id. (citation and
internal quotation marks omitted).
waiver").
-19-
The right to a public trial is not absolute, however.
Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S.
596, 606 (1982). It "may give way in certain cases to other rights
or interests, such as the defendant's right to a fair trial or the
government's interest in inhibiting disclosure of sensitive
information." Waller, 467 U.S. at 45. "Such circumstances will
be rare, however, and the balance of interests must be struck with
special care." Id. In Waller, the Supreme Court established a
four-pronged test for evaluating the constitutionality of
courtroom closures:
the party seeking to close the hearing must advance
an overriding interest that is likely to be
prejudiced, the closure must be no broader than
necessary to protect that interest, the trial court
must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to
support the closure.
Id. at 48. Complete closures are justified to the extent that all
four requirements are satisfied. Id."The presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that
interest." Press-Enter. Co. v. Superior Court of Cal., Riverside
Cnty., 464 U.S. 501, 510 (1984). In such cases, "[t]he interest
is to be articulated along with findings specific enough that a
reviewing court can determine whether the closure order was
-20-
properly entered." Id.; see also Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 581 (1980) ("Absent an overriding interest
articulated in findings, the trial of a criminal case must be open
to the public." (emphasis added)).
The Clemente Ruiz Nazario U.S. Courthouse closes its
doors to the public at 5 pm. See Court Locations, U.S. District
Court for the District of Puerto Rico,
http://www.prd.uscourts.gov/?q=court-locations; see generally 41
C.F.R. § 102-74.375(a) ("Except as otherwise permitted, [federal
agencies must] close property to the public during other than
normal working hours."). Although the doors to the actual
courtroom remained unlocked, the announcement that the court was
adjourning, the attorneys' feint at packing up, and the after-
hours time at which the court reconvened effected a closure. See,
e.g., Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004) (finding
complete closure where two proceedings "encompassing the entirety
of the prosecution's" case-in-chief took place during late evening
hours (quoting United States ex. rel. Walton v. Gilmore, 2001 WL
709463, *1 (N.D. Ill. June 25, 2001)). Because nothing in the
record suggests that any part of the proceeding remained open or
any members of the public remained, it was a complete closure.
Cf. Wilder v. United States, 806 F.3d 653, 660-61 (1st Cir. 2015),
cert. denied, 136 S. Ct. 2031 (2016) (finding that procedures that
-21-
are the functional equivalent of sidebar conferences do not
constitute complete closure); Bucci v. United States, 662 F.3d 18,
23 (1st Cir. 2011). Far from inadvertent, the closure here was
deliberate. See Negrón-Sostre, 790 F.3d at 305. Moreover, it
encompassed the entirety of one witness's testimony, the
presentation of evidence. Cf. United States v. Bucci, 525 F.3d
116, 130 (1st Cir. 2008) (noting that the fact that "no evidence
was presented against either defendant" weighed in favor of
excusing closure during civil contempt proceedings related to
criminal trial).
The closure fails the Waller test at the first prong:
The Government did not request a closure nor did the Government or
the court identify an overriding interest, much less establish
that it was "likely to be prejudiced." See, e.g., Laureano-Pérez,
797 F.3d at 77 (finding "substantial interest" for exclusion where
a member of the public made faces and mouthed words at a witness
in an intimidation attempt); see also Martin v. Bissonette, 118
F.3d 871, 876 (1st Cir. 1997) (no error in excluding defendant's
family members who "played prominent roles in menacing a witness");
United States v. Addison, 708 F.3d 1181, 1187-88 (10th Cir. 2013)
(no error in excluding a person who "intimidated" a government
witness); United States v. Hernández, 608 F.2d 741, 748 (9th Cir.
1979) (affirming closure where witness received menacing phone
-22-
calls and informing law enforcement that a contract "had been put
out on his life"). The district court articulated no findings to
that effect. To the contrary, at different points in its exchange
with the witness, the district court made clear its belief that
closure would not protect the witness or his identity.4 While we
can imagine a scenario with somewhat similar facts in which the
district court instead acknowledged and inquired into the
witness's concerns, formally found an "overriding interest" likely
to be prejudiced, explored alternatives to closure in full, and
narrowly tailored some form of closure to protect that overriding
interest, resulting in a constitutionally permissible closure,
that is not what occurred here. Waller, 467 U.S. at 48; Press-
Enter. Co., 464 U.S. at 510; Richmond Newspapers, Inc., 448 U.S.
at 581. On this record, given the district court's statements
undermining the witness's concerns and the absence of any finding
of an overriding interest, we cannot find that the closure in this
4 The court stated, "Well, [Candelario] already knows that you
testified," and asked, "but you don't think he knows [your name]?"
When asked if he was afraid of "[a]ny particular person," the
witness responded, "[n]o," and expressed a generalized fear of
people associated with Candelario. The district court asked, "Are
you aware that many other people from your community have come to
testify about things they know, and have even identified, rightly
or wrongly, some of these people?" He added, "And nothing has
happened to them," apparently discrediting the notion that the
witness would be put at risk if he testified before the public.
-23-
case was constitutionally permissible and must vacate and remand
as to Candelario.
V. Oquendo's Assorted Allegations of Error
Oquendo alleges that the district court erred by failing
to sua sponte sever his trial from Candelario's and that the
Government committed prosecutorial misconduct in its closing
statements. Because Oquendo neither articulated the severance
issue below nor objected to the alleged prosecutorial misconduct,
this court reviews his claims for plain error. United States v.
Richardson, 515 F.3d 74, 83 (1st Cir. 2008); United States v.
Robinson, 473 F.3d 387, 396 (1st Cir. 2007). "Plain error review
puts a heavy burden on the defendant; he must show '(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings.'" United States v. Laracuent, 778 F.3d
347, 349 (1st Cir. 2015) (quoting United States v. Negrón–Narváez,
403 F.3d 33, 37 (1st Cir. 2005)).
A.
We first address Oquendo's belated objection to joinder.
The risk of spillover prejudice does provide a basis for requesting
severance under criminal rule 14(a). Fed. R. Crim. P. 14(a) (a
court "may order separate trials" or "sever the defendants' trials"
-24-
if "the joinder of. . . defendants in an indictment. . . or a
consolidation for trial appears to prejudice a defendant or the
government"). But "severance [is] warranted 'only if there is a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.'" United States v.
Tiem Trinh, 665 F.3d 1, 17-18 (1st Cir. 2011) (quoting United
States v. Celestin, 612 F.3d 14, 19 (1st Cir. 2010)). "To
establish prejudice, [defendant] must show more than just a better
chance of acquittal at a separate trial." Id. at 19 (citation and
internal quotation marks omitted). "Garden variety prejudice,
which always exists when more than one defendant or offense are
tried together, does not warrant a new trial." Id. (quoting United
States v. Tejeda, 481 F.3d 44, 55 (1st Cir. 2007)). Moreover, a
trial court can safeguard a defendant from potentially prejudicial
spillover by delivering jury instructions as to the admissibility
of the evidence. United States v. Floyd, 740 F.3d 22, 37 (1st
Cir. 2014). "[A] death-qualified jury constitutionally may hear
and determine non-capital charges" insofar as "significant
interests" justify trying capital and non-capital defendants
jointly. United States v. Green, 407 F.3d 434, 444 (1st Cir.
2005) (citing Buchanan v. Kentucky, 483 U.S. 402, 420 (1987)).
-25-
We find that the district court did not err in declining
to sua sponte sever Defendants-Appellants' trials before a death-
qualified jury.5 At trial, the Government established one of the
VICAR elements -- e.g., the existence of an ongoing enterprise --
primarily through former associate Menor's often vivid testimony
regarding Candelario's antecedent offenses. Even assuming,
arguendo, that the Government presented irrelevant and potentially
prejudicial testimony, the district court repeatedly delivered
limiting instructions to the jury. Moreover, the court instructed
the jury to render a guilty verdict as to each defendant only if
the Government proved each element beyond a reasonable doubt as to
the defendant. These curative instructions insulated Oquendo from
any potential harm. Floyd, 740 F.3d at 37. Oquendo's garden
variety allegations of unfair prejudice are further negated by the
overwhelming direct and circumstantial evidence against him,
including the three eyewitnesses who identified him as one of the
La Tómbola shooters.
5 Oquendo cites no case law nor articulates any legal basis in
support of his severance claim. Furthermore, Oquendo does not
dispute that the instant case qualified for joinder. Nor does he
challenge on constitutional grounds the empanelling of a death-
qualified jury to try his non-capital charges. Because he cannot
establish plain error, we affirm the lower court's decision to try
defendants jointly before a death-qualified jury.
-26-
B.
Oquendo objects for the first time on appeal to the
Government's statements in closing to the effect that Oquendo and
Candelario knew one another; referring to Oquendo as "blindly
loyal" and "somebody . . . who is easily led"; describing the
victims of the shooting as having been "killed like dogs"; and
urging the jury to "put an end to Alexis'[s] war."
To obtain reversal on the basis of prosecutorial
misconduct, a defendant must show that the actions of the
Government "so poisoned the well that the trial's outcome was
likely affected." United States v. Vázquez-Larrauri, 778 F.3d
276, 283 (1st Cir. 2015) (quoting United States v. Kasenge, 660
F.3d 537, 542 (1st Cir. 2011)). Put another way, a defendant must
establish that the errors "likely swayed the outcome of the trial."
United States v. Báez-Martínez, 786 F.3d 121, 125 (1st Cir. 2015),
rev'd on other grounds, 136 S. Ct. 545 (2015). Factors to be
weighed in this analysis include: "(1) the severity of the
prosecutor's misconduct, including whether it was deliberate or
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." United States v. Nelson–Rodríguez, 319
-27-
F.3d 12, 38 (1st Cir. 2003) (quoting United States v. Wihbey, 75
F.3d 761, 771–72 (1st Cir. 1996)) (quotation marks omitted).
Regarding claims of misstatement of evidence, "[t]o
determine whether the prosecutor's misstatement amounted to plain
error, it must be viewed within the context of the entire trial."
United States v. Santana-Camacho, 833 F.2d 371, 373 (1st Cir.
1987). "[T]he court must consider the probable effect the
prosecutor's [remarks] would have on the jury's ability to judge
the evidence fairly." Id. (alterations in original) (citation
omitted). This court has previously found plain error from
misstatement of the evidence when, for example, "the prosecutor
made a remark that 'was not made in response to any improper
statement made by the defense counsel[,] . . . lacked any basis in
the evidence[,] and . . . contradicted the evidence.'" United
States v. Nickens, 955 F.2d 112, 123 (1st Cir. 1992) (quoting
Santana-Camacho, 833 F.2d at 375). We take no issue, however,
with the efforts of a prosecutor to "attempt to persuade the jury
to draw inferences from the evidence" in closing arguments.
United States v. O'Shea, 426 F.3d 475, 485 (1st Cir. 2005) (quoting
United States v. Hamie, 165 F.3d 80, 84 (1st Cir. 1999)).
In assessing whether reversal is warranted under the
cumulative-error doctrine, this court evaluates whether
"[i]ndividual errors, insufficient in themselves to necessitate a
-28-
new trial, may in the aggregate have a more debilitating effect."
Laureano-Pérez, 797 F.3d at 79 (alteration in original) (quoting
United States v. Sepúlveda, 15 F.3d 1161, 1195–96 (1st Cir. 1993)).
Of course, "[a]bsent any particularized error, there can be no
cumulative error." Williams v. Drake, 146 F.3d 44, 49 (1st Cir.
1998).
In the instant case, no plain error resulted from the
prosecutor's purported misstatement of the evidence. A reasonable
jury could infer that Oquendo and Candelario knew one another,
based on Rufo's testimony. O'Shea, 426 F.3d at 485. Similarly,
the purported "calls to speculation" do not rise to the level of
plain error. For example, by exhorting the jury to conclude that
Oquendo was "blindly loyal" to Candelario, the prosecutor merely,
albeit colorfully, urged an inference supported by evidence of
Oquendo's participation in the La Tómbola shooting. Id.Even if either statement constituted an error, neither
changed the trial's outcome. Báez-Martínez, 786 F.3d at 125;
Vázquez-Larrauri, 778 F.3d at 283. Given the weight of the
evidence, there is no substantial chance that absent the purported
misstatement the jury would have acquitted. Arrieta-Agressot v.
United States, 3 F.3d 525, 528 (1st Cir. 1993). We note once more
at this juncture that three eyewitnesses identified Oquendo as one
of the perpetrators of the La Tómbola shooting.
-29-
During the prosecution's rebuttal, the Government also
urged the jury to "put an end to Alexis'[s] war." By itself, this
statement is not tantamount to an appeal to convict as a civic
duty. Moreover, these comments fall well short of the ignoble
benchmark set by other remarks we have nonetheless declined to
find constituted plain error. See, e.g., Sepúlveda, 15 F.3d at1188 n.21 ("We put this organization out of business. And it's
up to you to decide that it stays that way. Because ask
yourselves, the business practices of this organization, this
organized group of drug dealers, what practices will be allowed to
continue in the streets of Manchester and the surrounding towns of
New Hampshire if these people are allowed or permitted to revive
the drug ring . . . ."). Likewise, we find that the Government
did not improperly appeal to the jury's passion. The
prosecution's characterization of Candelario's actions as "war"
finds footing in the record. Indeed, Rufo's testimony referred
to the conflicts between members of Palo de Goma as a "war."
Lastly, we do not find plain error resulted from the prosecution's
vivid description of the La Tómbola shooting: The phrase "killed
like dogs," may be distasteful, but it is hardly plain error.
In conclusion, we find Oquendo has not carried the burden
of establishing that the prosecution's summation "likely swayed
the outcome of the trial," Báez-Martínez, 786 F.3d at 125, nor
-30-
demonstrated some series of errors creating cumulative error
requiring reversal. Laureano-Pérez, 797 F.3d at 79; Drake, 146
F.3d at 49.
VI. The Jury Instructions
Oquendo argues that the district court plainly erred
when it failed to convey that the jury should render a verdict of
guilty only if Oquendo "acted with a purpose to further or benefit
from an ongoing conspiracy," as charged in the indictment.
According to Oquendo, "[t]he Court's instructions, taken as a
whole, authorized [Oquendo's] conviction for the offense of aiding
and abetting in a murder or attempted murder under the laws of
Puerto Rico or 18 U.S.C. § 1841 (Count 10) rather than in the VICAR
offense charged in the indictment." Oquendo also complains that
the instructions violated his due process rights by allowing a
conviction on the basis of speculation. In this regard, Oquendo
maintains that the instructions required the Government to prove
that Oquendo acted to benefit from or in furtherance of an
enterprise that, inter alia, "existed or would exist" and that the
conduct "posed or would pose a threat of continued criminal
activity." Per United States v. Patrick, 248 F.3d 11 (1st Cir.
2001), he argues, the enterprise need be ongoing at the time of
the charged conduct. With regard to the VICAR instructions, he
claims, the district court "fail[ed] to make clear the critical
-31-
element of knowledge of enterprise-related motive." Lastly,
Oquendo protests that while the indictment charged Oquendo in the
conjunctive (acting "for either receipt of payment by the
enterprise and to gain, maintain or increase position in it"), the
district court conveyed instructions in the disjunctive.
A.
As Oquendo failed to object to any of the jury
instructions he now challenges, this court reviews his claims for
plain error. United States v. López-Díaz, 794 F.3d 106, 117 (1st
Cir. 2015). That is, his claims of instructional error are forfeit
unless he can establish plain error. United States v. Gómez, 255
F.3d 31, 37 (1st Cir. 2001). "When applying the plain error
standard in the context of jury instructions, [this court] look[s]
at the instructions as a whole to ascertain the extent to which
they adequately explain the law without confusing or misleading
the jury." United States v. Fermin, 771 F.3d 71, 80 (1st Cir.
2014) (quoting United States v. Brown, 669 F.3d 10, 29 (1st Cir.
2012)) (internal quotation marks omitted).
B.
We find that, taken "as a whole," Fermin, 771 F.3d at
80, the jury instructions adequately apprised the jury of the
necessary elements to convict Oquendo of aiding and abetting
Candelario's VICAR offense.
-32-
The district court explained that to establish "aiding
and abetting" the Government had to prove that "[Oquendo]
consensually shared [Candelario's] knowledge of the underlying
criminal act." Immediately following these instructions, the
court clarified that the Government was tasked with proving that
the "[aforementioned] underlying criminal conduct was committed"
pursuant to an enterprise-related purpose. Although the district
court's articulation of the "ongoing enterprise" requirement was
admittedly problematic, the jury instructions, viewed in their
entirety, adequately explained the law, as the court also clarified
the structural features of an enterprise. Cf. Brown, 669 F.3d at
29-30 (finding no plain error where jury instructions included
"questionable articulations" but later clarified the law). For
the same reason, we find that the district court did not err when
it advised the jury that the prosecution could establish the VICAR-
related purpose (i.e. carrying out the act "in receipt of payment"
or "to gain entrance to" the enterprise) in the disjunctive, though
the indictment charged Defendants-Appellants in the conjunctive.6
Finally, the district court did not err when it advised the jury
6 We note that this issue is in any case likely waived, as Oquendo
does not develop this argument fully. United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
-33-
that the VICAR motive "need not be the sole or principal motive":
The instruction in question is consistent with our holding in
United States v. Tse. 135 F.3d 200, 206 (1st Cir. 1998).
VII. Sufficiency of the Evidence
Finally, Oquendo argues that the evidence is
insufficient to support his convictions, and that his Fed. R. Crim.
P. 29 motion for acquittal should have been granted. This
argument, too, fails to persuade us.
This court reviews de novo a district court's denial of
a motion for judgment of acquittal under Fed. R. Crim. P. 29.
United States v. Alberico, 559 F.3d 24, 27 (1st Cir. 2009). Such
a motion will only be "granted if 'the evidence and all reasonable
inferences to be drawn from the evidence, both taken in the light
most favorable to the [G]overnment, are insufficient for a rational
fact finder to conclude that the prosecution has proven, beyond a
reasonable doubt, each of the elements of the offense.'" Id.(quoting United States v. Pimental, 380 F.3d 575, 583 (1st Cir.
2004)).
"An appellate court plays a very circumscribed role in
gauging the sufficiency of the evidentiary foundation upon which
a criminal conviction rests. [We] neither weigh[] the credibility
of the witnesses nor attempt[] to assess whether the prosecution
succeeded in eliminating every possible theory consistent with the
-34-
defendant's innocence." United States v. Medina-Martínez, 396
F.3d 1, 5 (1st Cir. 2005) (quoting United States v. Noah, 130 F.3d
490, 494 (1st Cir. 1997)). Instead, this court analyzes whether,
through the lens of a rational trier of fact, "the evidence
presented at trial, together with all reasonable inferences,
viewed in the light most favorable to the government, established
guilt." United States v. Strong, 724 F.3d 51, 60 (1st Cir. 2013)
(citation and quotation marks omitted). "The court's only inquiry
is whether the guilty verdict is supported by a plausible rendition
of the record." United States v. Rodríguez-Reyes, 714 F.3d 1, 7
(1st Cir. 2013) (citation and quotation marks omitted). We note
that, in particular, the findings of a jury should be left
undisturbed where the evidence, along with all inferences
reasonably derived therefrom, suffice to establish guilt beyond a
reasonable doubt. Medina-Martínez, 396 F.3d at 5; United States
v. Bruno, 383 F.3d 65, 82 (2d Cir. 2004).
Viewing the evidence presented at trial in the light
most favorable to the Government, and drawing all rational
inferences accordingly, Alberico, 559 F.3d at 27, we have little
trouble concluding that a rational trier of fact could find beyond
a reasonable doubt that the Government proved the VICAR elements
at issue.
-35-
A.
VICAR prohibits murder and other violent crimes "for the
purpose of gaining entrance to or maintaining or increasing
position in an enterprise engaged in racketeering activity." 18
U.S.C. § 1959(a). As we and other circuits have elsewhere
recognized, Congress intended the motive requirement to be
construed liberally. United States v. Concepción, 983 F.2d 369,
381 (2d Cir. 1992); see Tse, 135 F.3d at 206 (citing Concepción
favorably). The Government need not prove that a defendant
committed the violent act solely or principally for the purpose of
gaining entrance to the enterprise. See Tse, 135 F.3d at 206. An
"enterprise" refers to "any union or group of individuals
associated in fact . . . which is engaged in, or the activities of
which affect, interstate or foreign commerce." 18 U.S.C. § 1959(b)(2). The enterprise must be "ongoing" and have "existed in
some coherent and cohesive form." United States v. Nascimento,
491 F.3d 25, 32 (1st Cir. 2007) (internal quotation marks and
citations omitted). Although members can enter and exit the
enterprise, it "must continue in an essentially unchanged form
during substantially the entire period alleged in the indictment."
Patrick, 248 F.3d at 17.
-36-
B.
Here, the enterprise continued, albeit with multiple
changes in leadership, from 1993 through 2009. Over that period,
Palo de Goma exhibited a well-organized structure; sold the same
drugs; and killed members of rival enterprises. Although Palo de
Goma did not exhibit all distinguishing traits traditionally
associated with gangs -- such as gang colors and initiation rites,
see, e.g., Patrick, 248 F.3d at 17 -- the facts nonetheless support
finding the cohesive structure and sufficient degree of
sophistication to establish the elements of an enterprise. See
Nascimento, 491 F.3d at 33 (enterprise "lacked some of the
accouterments of more structured street gangs" yet was
"sufficiently well-defined" to constitute an enterprise). And
while, admittedly, the upper ranks of the organization shifted
over time due to internal disputes, the succeeding members
functioned as a continuous unit, working together toward a common
purpose. See Patrick, 248 F.3d at 17 (affirming jury instruction
that "although individuals may come and go, the enterprise must
continue in an essentially unchanged form").
With regard to motive, the Government presented evidence
that Candelario murdered past rivals, some within the enterprise;
Defendants-Appellants carried out the attack; and Candelario
shared the purpose of his prior murders with those who carried out
-37-
attacks for and with him. These circumstances, in conjunction
with Candelario's death threats to Rufo over his refusal to
continue sharing Palo de Goma drug revenue, supported the finding
that Candelario's motive was to reassert his role in the enterprise
and that Oquendo shared his motive.7 As such, we are satisfied
that, viewed in its entirety and in the light most favorable to
the Government, the record contains sufficient evidence for the
jury to have plausibly found beyond a reasonable doubt that
Candelario carried out the La Tómbola shooting "for the purpose of
gaining entrance to" the enterprise, 18 U.S.C. § 1959(a), and
Oquendo knew of and shared that purpose. Rodríguez-Reyes, 714
F.3d at 7. The jury's findings stand. Medina-Martínez, 396 F.3d
at 5.
7 At trial, the Government employed overlapping evidence, mostly
through Menor's testimony of predicate murders, to prove the
"enterprise" and "pattern of racketeering activity" elements.
While the pattern of racketeering activity does not necessarily
establish the existence of an enterprise "separate and apart" from
the activities themselves, United States v. Turkette, 452 U.S.
576, 583 (1981), the evidence may intersect in some cases. Boyle
v. United States, 556 U.S. 938, 947 (2009). Because the evidence
showed that Palo de Goma members performed at least some
racketeering activity to advance a goal beyond the underlying
criminal activity itself (e.g., eliminating members of rival drug
points), see Nascimento, 491 F.3d at 32, the evidence of both
elements demonstrated that members worked together to maintain or
advance Palo de Goma's position as a drug point.
-38-
VIII. Conclusion
For the reasons set forth above, we affirm Oquendo's
convictions but vacate those of Candelario and remand for
proceedings consistent with this opinion.
Affirmed, Vacated and Remanded.
-39-