United States v. Velazquez-Fontanez ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 18-1188, 19-1010
UNITED STATES,
Appellee,
v.
CARLOS VELAZQUEZ-FONTANEZ,
Defendant, Appellant.
No. 18-1215
UNITED STATES,
Appellee,
v.
RUBEN COTTO-ANDINO, a/k/a Ruben El Negro,
Defendant, Appellant.
No. 18-2265
UNITED STATES,
Appellee,
v.
JOSE D. RESTO-FIGUEROA, a/k/a Tego,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Maria Soledad Ramirez-Becerra, with whom Maria Soledad
Ramirez Becerra Law Office was on brief, for appellant Carlos
Velazquez-Fontanez.
José Luis Novas Debién for appellant Ruben Cotto-Andino.
Michael R. Hasse for appellant Jose D. Resto-Figueroa.
Michael A. Rotker, Attorney, Criminal Division, Appellate
Section, with whom W. Stephen Muldrow, United States Attorney,
Victor O. Acevedo-Hernandez, Assistant United States Attorney,
Alberto R. Lopez-Rocafort, Assistant United States Attorney, and
Brian C. Rabbitt, Acting Assistant Attorney General, Criminal
Division, were on brief, for appellee.
July 27, 2021
KAYATTA, Circuit Judge. A federal grand jury in the
District of Puerto Rico returned an indictment charging
105 individuals with various criminal offenses connected to La
Rompe ONU, a drug trafficking organization that operated from 2007
until at least July 17, 2015, in San Juan, Puerto Rico. Following
a trial, three of the indicted defendants -- Carlos
Velazquez-Fontanez, Jose D. Resto-Figueroa, and Ruben Cotto-Andino
-- were convicted on every count charged against them. On appeal,
they challenge their convictions on several grounds. For the
reasons that follow, we affirm Velazquez-Fontanez's and
Resto-Figueroa's convictions; we vacate Cotto-Andino's
convictions; and we remand for further proceedings consistent with
this opinion.
I. BACKGROUND
We begin with the essential background facts. In 2004,
drug traffickers in San Juan, Puerto Rico, formed "La Organización
de Narcotraficantes Unidos" ("La ONU"), a cartel designed to reduce
conflicts between traffickers and to avoid police scrutiny. By
2008, La ONU had splintered into two rival gangs, La ONU and La
Rompe ONU ("La Rompe"). The two groups have since waged war over
control of San Juan's most profitable drug distribution territory.
At drug distribution "points" under its control, La Rompe sold
marijuana, cocaine, crack cocaine, heroin, and prescription drugs.
- 3 -
To secure and finance La Rompe's drug-trafficking activities, its
members committed robberies, carjackings, and contract killings.
La Rompe's leaders decided who could sell drugs in its
territory, ordered lower-ranking members to commit robberies or
killings, and authorized La Rompe members to kill fellow members
when intra-gang disputes arose. Members rose up La Rompe's ranks
by hunting down and killing members of La ONU.
The indictment claimed that Cotto-Andino,
Velazquez-Fontanez, and Resto-Figueroa were members of La Rompe.
It charged them with racketeering conspiracy in violation of 18
U.S.C. § 1962(d) based on numerous acts of drug trafficking and
several murders, and with conspiracy to possess with intent to
distribute cocaine, crack cocaine, heroin, and marijuana within
1,000 feet of a public-housing facility in violation of 21 U.S.C.
§§ 841(a)(1), 846, and 860. The indictment also charged
Velazquez-Fontanez with drive-by-shooting murder in furtherance of
a major drug offense in violation of 18 U.S.C. § 36(b)(2)(A) and
with using a firearm during and in relation to a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A), (j)(1)–(2). In
connection with a separate incident, the indictment charged
Resto-Figueroa with drive-by-shooting murder in furtherance of a
major drug offense in violation of 18 U.S.C. § 36(b)(2)(A) and
with using a firearm during and in relation to a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A), (j)(1)–(2).
- 4 -
Velazquez-Fontanez, Resto-Figueroa, and Cotto-Andino
were tried together. The jury returned guilty verdicts on every
count against each defendant.1 These timely appeals followed.
II. DISCUSSION
We address defendants' appellate challenges to their
convictions in the following order: (A) the defendants'
sufficiency of the evidence arguments; (B) Cotto-Andino's
evidentiary objections; (C) Resto-Figueroa's mistrial motion;
(D) Resto-Figueroa's instructional error claims; and
(E) Velazquez-Fontanez's and Resto-Figueroa's challenges to the
district court's responses to questions asked by the jury during
its deliberations.
A. Sufficiency of the Evidence
Each defendant timely moved pursuant to Fed. R. Crim.
P. 29 to challenge the sufficiency of the evidence against him.
Reviewing de novo the denial of these motions, see United States
v. Millán-Machuca, 991 F.3d 7, 17 (1st Cir. 2021), we view the
trial record in the light most favorable to the verdict and draw
all reasonable inferences in the verdict's favor, see United States
v. Meléndez-González, 892 F.3d 9, 17 (1st Cir. 2018). Our task is
to determine "whether 'any rational trier of fact could have found
1 Both Velazquez-Fontanez and Resto-Figueroa were also
charged with and convicted of an additional section 924(c) count,
but those convictions were subsequently dismissed.
- 5 -
the essential elements of the crime beyond a reasonable doubt.'"
United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) (quoting
United States v. Henderson, 320 F.3d 92, 102 (1st Cir. 2003)).
Unlike his two co-defendants, Cotto-Andino challenges
several of the district court's evidentiary rulings. When we
review those rulings in a later section, we adopt a "balanced"
approach, "objectively view[ing] the evidence of record." United
States v. Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015)
(quoting United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir.
2015)). For now, though, we present the facts relevant to
Cotto-Andino's sufficiency challenge in the light most favorable
to the verdict.
1. 18 U.S.C. § 1962(d)
The Racketeer Influenced and Corrupt Organizations Act
makes it "unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity." 18 U.S.C. § 1962(c).
The elements of a substantive RICO offense consist of "(1) the
conduct (2) of an enterprise (3) through a pattern of racketeering
activity." Salinas v. United States, 522 U.S. 52, 62 (1997). RICO
also makes it "unlawful for any person to conspire to" commit a
substantive RICO offense. 18 U.S.C. § 1962(d). To prove a RICO
- 6 -
conspiracy offense, the government must show that "the defendant
knowingly joined the conspiracy, agreeing with one or more
coconspirators 'to further [the] endeavor, which, if completed,
would satisfy all the elements of a substantive [RICO] offense.'"
United States v. Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019)
(alterations in original) (quoting Salinas, 522 U.S. at 65).
Unsurprisingly, none of the defendants contends that the
government failed to prove the existence of a far-ranging RICO
enterprise and conspiracy. Eyewitness testimony described in
detail the rise of La Rompe as a coordinated and hierarchal
organization, with members bound together by shared hand signals,
meetings, drug distribution, and the use of violence to maintain
power and control over drug points in the face of competition from
La ONU. Each defendant challenges instead the sufficiency of the
proof that he was a member of that RICO conspiracy.
The Supreme Court has made clear that holding a
particular person responsible for the acts of a RICO conspiracy
does not require the government to prove that that person committed
or even agreed to commit two or more racketeering acts. See
Salinas, 522 U.S. at 65. Rather, "the government's burden . . .
is to prove that the defendant agreed that at least two acts of
racketeering would be committed in furtherance of the conspiracy."
Millán-Machuca, 991 F.3d at 18 (quoting United States v.
- 7 -
Leoner-Aguirre, 939 F.3d 310, 317 (1st Cir. 2019), cert. denied,
140 S. Ct. 820 (2020)).2
So, for each defendant, we ask whether the government
presented evidence from which a reasonable jury could have
concluded that each defendant knowingly agreed that at least two
racketeering acts would be committed in furtherance of La Rompe's
ends.
a. Cotto-Andino
Three cooperating witnesses testified that Cotto-Andino
controlled La Rompe's drug point at the Jardines de Cupey public-
housing facility, and two of those three also testified that
Cotto-Andino ran La Rompe's drug point at the Brisas de Cupey
public-housing facility. To avoid attracting the attention of the
police, Cotto-Andino delegated day-to-day responsibility for
2 This court has on occasion stated that a RICO conspiracy
conviction requires proof that a defendant agreed to commit, or in
fact committed, two or more predicate offenses. See United States
v. Ramírez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015); United States
v. Shifman, 124 F.3d 31, 35 (1st Cir. 1997); United States v.
Hurley, 63 F.3d 1, 8–9 (1st Cir. 1995); Libertad v. Welch, 53 F.3d
428, 441 (1st Cir. 1995); Aetna Cas. Sur. Co. v. P & B Autobody,
43 F.3d 1546, 1561 (1st Cir. 1994); Miranda v. Ponce Fed. Bank,
948 F.2d 41, 47–48 (1st Cir. 1991); Feinstein v. Resol. Tr. Corp.,
942 F.2d 34, 41 (1st Cir. 1991); United States v. Boylan, 898 F.2d
230, 241 (1st Cir. 1990); United States v. Torres Lopez, 851 F.2d
520, 528 (1st Cir. 1988); United States v. Angiulo, 847 F.2d 956,
964 (1st Cir. 1988); United States v. Winter, 663 F.2d 1120, 1136
(1st Cir. 1981). We more recently made clear that those statements
are inconsistent with the Supreme Court's 1997 holding in Salinas.
See Leoner-Aguirre, 939 F.3d at 317; Millán-Machuca, 991 F.3d at
18 n.3; United States v. Sandoval, No. 18-1993, 2021 WL 2821070,
at *3 n.1 (1st Cir. July 7, 2021). We follow, as we must, Salinas.
- 8 -
running the Jardines de Cupey drug point to the Morales Castro
brothers, known as Nestor and Bimbo. In return, Nestor and Bimbo
paid Cotto-Andino a portion of the drug point's proceeds --
referred to as "rent" or a "ticket." Cotto-Andino made a similar
arrangement with Nestor and Bimbo for the Brisas de Cupey drug
point. In addition to interacting with Cotto-Andino, Nestor and
Bimbo also attended meetings with La Rompe's supreme leader,
"Mayito."
Given La Rompe's raison d'être, i.e., to provide revenue
from drug sales for its leaders, Cotto-Andino's control of two La
Rompe drug points provided ample evidence that he had agreed that
drugs would be repeatedly sold in furtherance of La Rompe's
conspiracy. Indeed, this evidence placed him at or at least near
the heart of the conspiracy.
Cotto-Andino points to evidence establishing an
alternative explanation for his admitted involvement at or near
the drug points, i.e., he worked lawfully as a construction
contractor on jobs in Jardines de Cupey and Brisas de Cupey. For
purposes of our sufficiency analysis, however, we can presume that
the jury rejected that view of his conduct in favor of witness
testimony identifying Cotto-Andino, Nestor, and Bimbo as leaders
of La Rompe and its drug trafficking operation in Jardines de Cupey
and Brisas de Cupey. See, e.g., United States v. Nueva, 979 F.2d
880, 884 (1st Cir. 1992) (explaining that an appellate court will
- 9 -
not disturb a jury verdict "simply because the defense posited a
story at odds with that of the government"). Cotto-Andino
alternatively argues that the evidence did not establish that he
knowingly participated in an overarching conspiracy involving La
Rompe, as opposed to a smaller, independent conspiracy with Nestor
and Bimbo. But, when viewed favorably to the verdict, the evidence
was sufficient to bely any notion that there existed an independent
drug point in La Rompe's territory.
b. Velazquez-Fontanez
Velazquez-Fontanez served as a municipal police officer
in San Juan. He supplied guns and ammunition to La Rompe members,
including his brother, Bebo, a La Rompe enforcer who ran several
drug points. When Bebo was incarcerated in 2011,
Velazquez-Fontanez helped manage Bebo's drug points.
Velazquez-Fontanez delivered packages of marijuana and cocaine to
Quija, a "runner" who moved drugs to and from one of Bebo's drug
points. Velazquez-Fontanez transported drug point proceeds as
well.
The testimony of two cooperating witnesses -- Luis Ivan
Yanyore-Pizarro and Oscar Calviño-Acevedo -- also implicated
Velazquez-Fontanez in a drive-by shooting. On June 25, 2011, while
he was in jail, Bebo used a contraband cell phone to call Quija.
Bebo told Quija to go to a business in Caimito (one of San Juan's
subdivisions) and kill five men present there, one of whom was
- 10 -
known as Prieto-Pincho. Bebo wanted Prieto-Pincho dead because he
took control of several of Bebo's drug points. Later that evening,
Velazquez-Fontanez called Quija and told him that Prieto-Pincho
and his men were outside of the business washing their cars. After
one of La Rompe's leaders gave the green light to kill
Prieto-Pincho and his men, several members of La Rompe, including
Yanyore-Pizarro and Calviño-Acevedo, drove toward the business.
As they approached their destination, Yanyore-Pizarro called
Velazquez-Fontanez, who confirmed that the men were there and that
Prieto-Pincho was "the big guy, who's the one who is speaking over
the phone." Yanyore-Pizarro responded that he "already s[aw]
them," told Velazquez-Fontanez to "listen to the show," and kept
the phone line open as the men exited the car and opened fire,
killing Prieto-Pincho and three others. The next day,
Velazquez-Fontanez saw Yanyore-Pizarro in person and told
Yanyore-Pizarro that "that sounded awesome" and that "the part
[that Velazquez-Fontanez] liked the most was when the rifle
continued shooting at the end."
Velazquez-Fontanez argues that the shooting on June 25,
2011, cannot support his RICO conspiracy conviction because it was
solely motivated by Bebo's personal desire for revenge against
Prieto-Pincho. The jury was entitled to reject this account and
instead credit the government's evidence that the shooting was
carried out to further La Rompe's ends. So, too, was the jury
- 11 -
free to reject Velazquez-Fontanez's argument that he was not guilty
because he had a legitimate job as a police officer and was legally
permitted to own weapons and ammunition.
Velazquez-Fontanez next points out that some witnesses
who cooperated with the government did not identify him as a member
of La Rompe. But even the uncorroborated testimony of a single
cooperating witness may be sufficient to support a conviction, so
long as the testimony is not facially incredible. See United
States v. Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (collecting
cases). Here, multiple witnesses described Velazquez-Fontanez's
participation in La Rompe's criminal activities; it matters not
for purposes of our sufficiency review that others did not do so.
Velazquez-Fontanez also asserts that the cooperating
witnesses' testimony implicating him in La Rompe's activities
should not have been admitted because it was inadmissible hearsay
not subject to the co-conspirator exception. See generally United
States v. García-Torres, 280 F.3d 1 (1st Cir. 2002). He notes a
few instances where witnesses testified about out-of-court
statements by Bebo and Quija. But he makes no attempt to explain
how these statements were not in furtherance of the conspiracy or
why the evidence that he transported guns, money, and drugs for
Bebo and Quija does not show that all three belonged to the same
conspiracy. See, e.g., United States v. Piper, 298 F.3d 47, 52
(1st Cir. 2002) (conditioning the admission of statements in
- 12 -
furtherance of a conspiracy under Fed. R. Evid. 801(d)(2)(E) on
the introduction of "extrinsic evidence . . . sufficient to
delineate the conspiracy and corroborate the declarant's and the
defendant's roles in it"). This lack of development dooms his
argument. See 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.").
Finally, Velazquez-Fontanez argues that a conspiracy to
commit a controlled substance offense in violation of section 846
cannot serve as a predicate offense for the RICO charge. We see
no reason to accept this argument. The fact that section 846
limits its own object offenses simply does not suggest that a
section 846 offense itself cannot be the object or predicate for
another offense. And Velazquez-Fontanez offers no other reason
why a section 846 conspiracy cannot serve as the predicate or
object for a RICO offense.3 See id.In sum, there was ample and competent testimony which,
if believed, directly tied Velazquez-Fontanez to La Rompe and
established that he knew his fellow gang members would engage in
at least two RICO predicate offenses.
3 Velazquez-Fontanez makes this same argument regarding his
convictions under 18 U.S.C. § 36(b)(2) and 18 U.S.C.
§ 924(c)(1)(A), (j)(1)–(2). We reject it in both instances for
the same reason.
- 13 -
c. Resto-Figueroa
The trial record supports Resto-Figueroa's RICO
conspiracy conviction as well. Cooperating witnesses testified
that Resto-Figueroa was a La Rompe enforcer who carried firearms,
sold marijuana and crack cocaine for the gang, and stored its
weapons at his home.
Cooperator testimony also implicated Resto-Figueroa in
a drive-by shooting that ended an intra-gang feud. The feud began
when Pollo, a La Rompe member, killed another member over a dispute
about payment for marijuana. The slain member's brother, Oreo,
obtained permission from La Rompe's leaders to kill Pollo. Oreo
then enlisted Resto-Figueroa and several other La Rompe members to
assist with the killing. On August 28, 2012, members dressed up
as police officers and drove SUVs equipped with tinted windows,
police lights, and sirens away from Resto-Figueroa's house to
Pollo's neighborhood, the Jardines de Cupey housing project. After
their mock police raid of Pollo's apartment turned up nothing,
Resto-Figueroa and the others drove through the housing project
until they spotted Pollo on the street. Some men in the SUVs
opened fire on Pollo, and others, including Resto-Figueroa, exited
the SUVs and began running toward Pollo. By the time that
Resto-Figueroa reached Pollo, Pollo was dead. After the shooting,
the men returned to the SUVs and drove to Resto-Figueroa's house.
- 14 -
Resto-Figueroa asserts that this evidence did not
establish his knowing participation in La Rompe's enterprise. At
most, he contends, the evidence establishes a smaller conspiracy
in which he was brought in as an "outside contractor" to kill
Pollo. Resto-Figueroa's account downplays evidence of the extent
of his connection to La Rompe, specifically his drug selling and
storage of La Rompe weaponry. That evidence of Resto-Figueroa's
sustained and knowing connection to La Rompe's activities provides
ample support for a rational jury's conclusion that Resto-Figueroa
agreed to join the charged RICO conspiracy with knowledge that at
least two racketeering acts would be committed.
In challenging the evidence's sufficiency,
Resto-Figueroa also argues that one prominent La Rompe member-
turned-cooperator -- Yanyore-Pizarro -- did not mention
Resto-Figueroa and another -- Calviño-Acevedo -- is unworthy of
credence. These contentions miss the mark on appeal because they
go to the evidence's weight and credibility, not its sufficiency.
See, e.g., United States v. Noah, 130 F.3d 490, 494 (1st Cir.
1997).
* * *
In sum, the evidence against all three defendants was
sufficient to support their RICO conspiracy convictions.
- 15 -
2. 21 U.S.C. § 846All three defendants were also convicted of conspiring
to possess with intent to distribute controlled substances within
1,000 feet of a public-housing facility. See 21 U.S.C. §§ 841(a),
846, 860. To prove this offense, the government had to establish
the existence of a conspiracy to possess cocaine, crack cocaine,
heroin, and/or marijuana with intent to distribute it within 1,000
feet of a protected area, such as real property comprising a
housing facility owned by a public housing authority, and that the
defendant knowingly and willfully joined in that conspiracy. Id.§§ 841(a), 846, 860. Each defendant offers a slightly different
argument for why the proof of such a conspiracy was insufficient
as to him. We review each set of arguments in turn.
a. Cotto-Andino
In challenging his section 846 conspiracy conviction,
Cotto-Andino repurposes his contention that the government proved
only a small conspiracy (among him, Nestor, and Bimbo). We have
already explained why this argument fails. See supra
Part II.A.1.a.
b. Velazquez-Fontanez
Velazquez-Fontanez argues that his conviction cannot
stand because he did not sell drugs for the conspiracy. But, taken
in the light most favorable to the verdict, the evidence
established that Velazquez-Fontanez furthered the drug
- 16 -
conspiracy's activities by couriering proceeds and drugs between
members. And, despite its lack of corroboration through photo,
video, or phone record evidence, the testimony of the cooperating
witnesses, reviewed above in Part II.A.1.b, provided adequate
proof of his involvement in a conspiracy to possess drugs for
distribution. See Cortés-Cabán, 691 F.3d at 14.
c. Resto-Figueroa
Resto-Figueroa argues that the evidence did not
establish that he knowingly participated in La Rompe's drug-
trafficking conspiracy. But, as we have already noted, see supra
Part II.A.1.c, a rational jury viewing the evidence could have
concluded that Resto-Figueroa's sales of drugs and joint activity
with La Rompe members show that he was a knowing participant in La
Rompe's drug conspiracy, not just a "hired gun."
3. 18 U.S.C. § 36(b)(2)
Both Velazquez-Fontanez and Resto-Figueroa were
convicted of violating 18 U.S.C. § 36(b)(2)(A). That statute
imposes penalties on any person who, "in furtherance . . . of a
major drug offense and with the intent to intimidate, harass,
injure, or maim, fires a weapon into a group of two or more persons
and who, in the course of such conduct, kills any person," where
the killing "is a first degree murder." 18 U.S.C. § 36(b)(2)(A).
One who aids or abets another in the commission of a crime may be
punished as a principal. 18 U.S.C. § 2.
- 17 -
a. Velazquez-Fontanez
A reasonable jury could have concluded that
Velazquez-Fontanez aided and abetted the drive-by shooting of
Prieto-Pincho and others. The government presented evidence that
Velazquez-Fontanez directed La Rompe members to the location where
Prieto-Pincho and four other people could be found and described
Prieto-Pincho's appearance. See supra Part II.A.1.b. A
reasonable jury could have inferred that Velazquez-Fontanez did so
to facilitate Prieto-Pincho's murder, which La Rompe's leaders
ordered at the request of Velazquez-Fontanez's brother. And that
inference becomes stronger when the foregoing evidence is
considered alongside testimony that Velazquez-Fontanez listened to
and later expressed approval of the shooting.
According to Velazquez-Fontanez, other members of La
Rompe made the plans to kill Prieto-Pincho and his associates, and
the evidence did not establish a connection between those plans
and Velazquez-Fontanez's words and actions. The evidence that he
spoke to the shooters, he argues, does not establish that he did
anything more than "answer[] a call made by Yanyore-Pizarro."
Velazquez-Fontanez essentially asks us to disregard our obligation
to draw all reasonable inferences in the verdict's favor. See
Meléndez-González, 892 F.3d at 17. That deferential standard of
review, as applied here, leads to the conclusion that the evidence
adequately supported the verdict. And Velazquez-Fontanez errs in
- 18 -
claiming that the government's reliance on cooperating witness
testimony necessarily undermines the sufficiency of the evidence.
See Cortés-Cabán, 691 F.3d at 14.
Velazquez-Fontanez also argues that the government
failed to prove that a weapon was fired. This contention is
meritless. By returning a general verdict that Velazquez-Fontanez
was guilty beyond a reasonable doubt of aiding and abetting a
drive-by shooting in violation of section 36(b)(2)(A), the jury
necessarily found that a person "fire[d] a weapon into a group of
two or more persons." The evidence establishing this element was
overwhelming.
b. Resto-Figueroa
A reasonable jury could have likewise concluded that
Resto-Figueroa aided and abetted the drive-by shooting of Pollo
and others on August 28, 2012. As described above, see supra
Part II.A.1.c, ample witness testimony established that
Resto-Figueroa, along with others, traveled to Jardines de Cupey
to find and kill Pollo.
Resto-Figueroa's initial challenge to his drive-by
shooting conviction proceeds from a mistaken premise. He asserts
that he did not act with the requisite enterprise motive to be
convicted of a violent crime in aid of racketeering. See 18 U.S.C.
§ 1959(a) (punishing certain crimes committed "for the purpose of
gaining entrance to or maintaining or increasing position in an
- 19 -
enterprise engaged in racketeering activity"). But Resto-Figueroa
was not charged with an offense under section 1959. To the extent
that Resto-Figueroa's brief may be read to challenge the
sufficiency of the evidence that the drive-by shooting was "in
furtherance . . . of a major drug offense," 18 U.S.C. § 36(b)(2),
this argument also fails. As described above, La Rompe's leaders
authorized Pollo's killing to settle an intra-gang feud. A
reasonable jury could have found that Resto-Figueroa intended to
further La Rompe's drug-trafficking activity by helping Oreo kill
Pollo. Finally, Resto-Figueroa's argument that the government's
witnesses lacked credibility falls flat on sufficiency review.
See Noah, 130 F.3d at 494.
For these reasons, sufficient evidence supported the
drive-by shooting convictions of Velazquez-Fontanez and
Resto-Figueroa.
4. 18 U.S.C. § 924(c)
Based on the predicate offense of a drive-by shooting
murder in violation of section 36(b)(2)(A), Velazquez-Fontanez was
convicted of aiding and abetting the use of a firearm during and
in relation to a crime of violence.4 See 18 U.S.C. § 924(c)(1)(A).
4Resto-Figueroa was also convicted of a section 924(c)
offense predicated on a violation of section 36(b)(2)(A). Apart
from his challenge to his conviction for the predicate offense,
see supra Part II.A.3.b, Resto-Figueroa does not challenge his
section 924(c) conviction on appeal.
- 20 -
A "crime of violence" is defined as a felony offense that either
"(A) has as an element the use, attempted use, or threatened use
of physical force against the person or property of another," (the
"elements clause") or "(B) that by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense"
(the "residual clause"). 18 U.S.C. § 924(c)(3)(A)–(B). Because
United States v. Davis held that the residual clause was
unconstitutionally vague, a felony offense must qualify under the
elements clause to serve as a predicate offense for a conviction
for use of a firearm during and in relation to a crime of violence.
139 S. Ct. 2319, 2336 (2019). Velazquez-Fontanez claims that Davis
undermines his section 924(c) conviction because his
section 36(b)(2)(A) predicate offense does not satisfy the
elements clause.
Davis does not help Velazquez-Fontanez. To assess
whether a violation of section 36(b)(2)(A) satisfies the elements
clause, we apply the categorical approach, "consider[ing] the
elements of the crime of conviction, not the facts of how it was
committed, and assess[ing] whether violent force is an element of
the crime." United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st
Cir. 2018) (quoting United States v. Taylor, 848 F.3d 476, 491
- 21 -
(1st Cir. 2017)). The language of section 36(b)(2)(A)5 easily
satisfies section 924(c)(3)'s elements clause. The act of
"fir[ing] a weapon" involves the use of violent force. See Johnson
v. United States, 559 U.S. 133, 140 (2010) (defining "physical
force" as "force capable of causing physical pain or injury to
another person"); United States v. Edwards, 857 F.3d 420, 426 (1st
Cir. 2017) (remarking that it would be "absurd[]" to conclude that
"'pulling the trigger on a gun' involves no '"use of force" because
it is the bullet, not the trigger, that actually strikes the
victim'" (quoting United States v. Castleman, 572 U.S. 157, 171
(2014))). And a violator of section 36(b)(2) must undertake that
violent force "with the intent to intimidate, harass, injure, or
maim," satisfying the elements clause's mens rea requirement. See
United States v. García-Ortiz, 904 F.3d 102, 108–09 (1st Cir. 2018)
(explaining that a general intent crime satisfies
section 924(c)(3)(A)'s mens rea requirement); see also Borden v.
United States, 141 S. Ct. 1817, 1826 (2021) (plurality opinion)
(observing that ACCA's elements clause "obvious[ly]" applies to
"[p]urposeful" forceful conduct). For these reasons,
5 Section 36(b)(2)(A) imposes penalties on any person who,
"in furtherance . . . of a major drug offense and with the intent
to intimidate, harass, injure, or maim, fires a weapon into a group
of two or more persons and who, in the course of such conduct,
kills any person . . . if the killing . . . is a first degree
murder."
- 22 -
Velazquez-Fontanez's section 36(b)(2)(A) offense meets the
requirements of section 924(c)(3)'s elements clause.
B. Cotto-Andino's Evidentiary Objections
We consider next several related challenges by
Cotto-Andino to the district court's evidentiary rulings. When a
defendant preserves an objection, we generally review a district
court's evidentiary ruling for abuse of discretion. See United
States v. Appolon, 715 F.3d 362, 371 (1st Cir. 2013). A harmless
evidentiary error does not require reversal. See Kotteakos v.
United States, 328 U.S. 750, 765 (1946).
This court reviews challenges related to the enforcement
of subpoenas under the Sixth Amendment's Compulsory Process Clause
for abuse of discretion. See United States v. DeCologero, 530
F.3d 36, 74–75 (1st Cir. 2008).6 A defendant's conviction will
stand if a non-structural constitutional error "was harmless
beyond a reasonable doubt." Chapman v. California, 386 U.S. 18,
24 (1967).
1. Uncharged Murder Evidence
As part of its case-in-chief, the government presented
the testimony of Oscar Calviño-Ramos, a cooperating witness. He
6 But see United States v. Galecki, 932 F.3d 176, 184–85 (4th
Cir. 2019) ("With regard to compulsory process claims, our sister
circuits apply both de novo and abuse of discretion standards of
review, even at times applying different standards within the same
circuit without explanation.").
- 23 -
asserted that Cotto-Andino killed Cano Ingram -- a rival drug
dealer -- and Carlos Tomate -- someone who had previously forced
Cotto-Andino out of a housing project. In support of the assertion
that Cotto-Andino murdered Cano Ingram, Calviño-Ramos claimed that
Cotto-Andino said in 1995 that he would kill Cano Ingram if he had
any problems with him, and that the killing took place in 1995 or
1996. According to the government, the two killings allowed
Cotto-Andino to consolidate power over drug points in the Jardines
de Cupey and Brisas de Cupey housing projects.
Cotto-Andino timely objected to this evidence as
improper character evidence offered only to suggest that
Cotto-Andino was a very bad guy. See Fed. R. Evid. 404(b)(1).
The government, though, pointed out that the evidence provided
important and properly relevant proof of how Cotto-Andino came to
be in a position to demand and receive a percentage of the sales
proceeds from two La Rompe drug points. See Fed. R.
Evid. 404(b)(2). This theory of relevance did not rely on any
claim of propensity, either explicitly or implicitly, see United
States v. Henry, 848 F.3d 1, 15 (1st Cir. 2017) (Kayatta, J.,
concurring). Rather, it was the government's attempt to provide
an origin story to show how Cotto-Andino came to be in a position
to exact "rent" from Nestor and Bimbo for sales from those two
drug points, the allegation central to the government's RICO and
drug distribution conspiracy charges against Cotto-Andino. In
- 24 -
this sense, the evidence was like the scenes of De Niro's young
Vito Corleone in The Godfather Part II, explaining how Brando's
Don Vito was in the position of power in which the viewer found
him at the beginning of The Godfather.
This properly relevant evidence by its nature reflected
poorly on Cotto-Andino's character, obligating the district court
to balance its probative value against the potential for unfair
prejudice. Fed. R. Evid. 403; United States v. Rodríguez-Berríos,
573 F.3d 55, 64 (1st Cir. 2009). But we see no abuse of discretion
in the district court's balancing analysis. The evidence provided
an important rebuttal to Cotto-Andino's defense that he associated
innocently with La Rompe members or was merely present at its drug
points. As to the murder of Cano Ingram in particular,
Calviño-Ramos's testimony relied in part on a threat allegedly
made by Cotto-Andino himself, a party admission carrying
significant probative force. Cf. United States v. Ford, 839 F.3d
94, 110 (1st Cir. 2016) (questioning whether evidence with
"negligible probative value" should have been excluded pursuant to
Rule 403). And the district court took the precaution of telling
the jurors that they "may not use this evidence to infer that,
because of his character, he carried out the acts charged in this
case." See United States v. Pelletier, 666 F.3d 1, 6 (1st Cir.
2011) (observing that limiting instructions can cabin unfair
prejudice).
- 25 -
Of course, the admission of evidence that Cotto-Andino
had killed two people to acquire control of two drug points opened
the door to any reasonable rebuttal. Cotto-Andino relied on cross-
examination alone to challenge the testimony about Carlos Tomate's
death, but he sought to rebut the allegation that he killed Cano
Ingram by proffering a witness and some records indicating that
Cano Ingram was alive until 2001. Specifically, Cotto-Andino
sought to call Jose Franco-Rivera, an attorney, as a witness to
testify that from 1997 to 1998, he represented a person indicted
for robbery under the name of "Antonio Vazquez-Pagan, also known
as Cano Ingram." In the alternative, Cotto-Andino asked the court
to take judicial notice of a published opinion that referred to
the lawyer's client as "Cano Ingram." He also sought to introduce
a death certificate indicating that Vazquez-Pagan died on
March 29, 2001.
After holding a Rule 104 hearing, the district court
concluded that the relevance of the proffered evidence hinged on
an insufficiently proven assumption that there were not two Cano
Ingrams -- one who was killed in the mid-90s by Cotto-Andino and
one who died in 2001. See Fed. R. Evid. 104(b) ("When the
relevance of evidence depends on whether a fact exists, proof must
be introduced sufficient to support a finding that the fact does
exist."). The district court observed that there was no evidence
that Vazquez-Pagan a/k/a Cano Ingram was engaged in drug sales or
- 26 -
was active in Jardines de Cupey. The district court added that
admitting the evidence might "confuse the jurors." See Fed. R.
Evid. 403.
Seeking more support for his assertion that Antonio
Vazquez-Pagan and the person identified as Cano Ingram by
Calviño-Ramos were one and the same, Cotto-Andino served a subpoena
on the Criminal Investigation Corps of the Commonwealth of Puerto
Rico. The subpoena sought "[a]ll booking and criminal profiling
documentation regarding Antonio Vazquez-Pagan," which Cotto-Andino
expected to yield a criminal dossier containing Vazquez-Pagan's
aliases, addresses, and information about criminal conduct. When
the custodian of records did not appear pursuant to the subpoena,
the district court declined to enforce it, expressing doubt that
the documents produced would be admissible under any hearsay
exception or relevant absent proof that there were not two Cano
Ingrams. The net result was that the district court precluded
Cotto-Andino's effort to cast doubt on the government's claim that
he killed Cano Ingram.
The government would have us view the excluded evidence
as bearing on only a side-show debate about the timing of Cano
Ingram's death that could not properly be explored through
extrinsic evidence. Not so. Proof that the person identified by
Calviño-Ramos as Cano Ingram was alive for five to six years after
Cotto-Andino supposedly killed him would have called into question
- 27 -
the very claim that Cotto-Andino killed Cano Ingram. And, in so
doing, it would have cast doubt on a central pillar holding up the
government's origin story and Calviño-Ramos's testimony as a
whole.7
So we turn our attention to the reasons given by the
district court for excluding the proffered evidence. District
courts "have wide discretion in deciding whether an adequate
foundation has been laid for the admission of evidence." Veranda
Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1371 (1st
Cir. 1991) (quoting Real v. Hogan, 828 F.2d 58, 64 (1st Cir.
1987)). Deference to that discretion is particularly apt here
given the district court's greater understanding of the context
for a dispute about the prevalence in Puerto Rico of a nickname
such as Cano Ingram.8 And, in finding that Cotto-Andino had failed
to show that the two witnesses were testifying about the same
person, the district court reasonably emphasized Vazquez-Pagan's
lack of demonstrated connections to Jardines de Cupey and the
discrepancy in suspected criminal activity. So we may assume
(without deciding) that the district court did not abuse its
discretion in finding that Cotto-Andino's proffered evidence did
7 Nor would Fed. R. Evid. 608(b) bar the evidence's
introduction because it was not offered to prove a specific
instance of Calviño-Ramos's conduct.
8 The parties tell us that "Cano Ingram" combines a term for
a blond man and the common name for a type of firearm.
- 28 -
not reliably establish that Antonio Vazquez-Pagan was the same
person described in Calviño-Ramos's testimony, at least based on
the existing record before the district court when it ruled.
More problematic is the district court's refusal to aid
Cotto-Andino's effort to add to that record by obtaining
information about Vazquez-Pagan's aliases, addresses, and criminal
activity. Under the Sixth Amendment's Compulsory Process Clause,
a defendant has "the right to the government's assistance in
compelling the attendance of favorable witnesses at trial and the
right to put before a jury evidence that might influence the
determination of guilt." Pennsylvania v. Ritchie, 480 U.S. 39, 56
(1987). By refusing to enforce the subpoena, the district court
denied Cotto-Andino the opportunity to provide the links that the
district court found to be missing in its Rule 104(b) ruling.
To be sure, Cotto-Andino does "not have an unfettered
right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence." Taylor
v. Illinois, 484 U.S. 400, 410 (1988). But given the significance
of Cano Ingram's death to the government's case against
Cotto-Andino, the district court too readily assumed that none of
the subpoenaed records would provide admissible evidence
corroborating Franco-Rivera's proposed testimony and supporting
- 29 -
Cotto-Andino's effort to contradict Calviño-Ramos's testimony.9
Indeed, Cotto-Andino's subpoena sought booking information, a type
of evidence that the government may offer in criminal cases when
it consists of "ministerial, non-adversarial information." See
United States v. Dowdell, 595 F.3d 50, 72 (1st Cir. 2010); Fed. R.
Evid. 803(8)(A)(ii). If the subpoena yielded information
suggesting that Vazquez-Pagan was the Cano Ingram to whom
Calviño-Ramos had referred, that would have eliminated any concern
about the defense evidence under Rule 104(b). Nor can we agree
that the evidence would have confused the jury unless we were to
say -- incorrectly -- that casting reasonable doubt on the central
thrust of testimony by a government witness equates to creating
impermissible confusion. See United States v. Collorafi, 876 F.2d
303, 306 (2d Cir. 1989) (explaining that "[a] mere statement that
evidence would be confusing is not enough" to justify exclusion on
Rule 403 grounds because "factual controversy breeds confusion");
United States v. Evans, 728 F.3d 953, 966 (9th Cir. 2013)
(observing that an "increased . . . chance[] that the jury would
acquit" cannot be attributed to jury confusion without
"prejudg[ing] the 'correct' outcome of the trial before it
occurs").
9 The government's brief on appeal does not identify any
reason why the proffered evidence or the subpoenaed records would
be inadmissible as hearsay not subject to any exception.
- 30 -
Importantly, aside from pointing out the already-
mentioned gaps in Franco-Rivera's testimony, the government
provided no information tending to negate the assertion that
Vazquez-Pagan and Cano Ingram were one and the same. And it seems
most likely that the government and its witness could have proved
that there were two Cano Ingrams much more easily than Cotto-Andino
could have proven the opposite, especially without enforcement of
the subpoena.
For the foregoing reasons, we conclude that, because the
district court exercised its discretion to preclude the proffered
evidence of Cano Ingram's 2001 death as dependent on an unproven
fact, the district court erred in then refusing to enforce a
subpoena reasonably calculated to prove that fact. The remaining
question is whether the government has shown that the error was
harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24.
We think not. The case against Cotto-Andino was strong,
but not overwhelming given its heavy dependence on cooperating
witnesses. See United States v. Wright, 937 F.3d 8, 31 (1st Cir.
2019) (observing, in the constitutional-error context, that
cooperating-witness evidence "is rarely deemed to be overwhelming
on its own"). Calviño-Ramos's allegation that Cotto-Andino was a
murderer was, if believed, a big deal that operated on two levels:
It made it more plausible that Cotto-Andino had the control and
reputation necessary to play the role alleged in the conspiracy,
- 31 -
and it painted him as a bad guy. The government convinced the
district court -- and this court -- that the obvious and
substantial prejudice inherent in evidence that Cotto-Andino
murdered someone did not substantially outweigh its proper
relevance. But that very success places the government in a weak
position in claiming now that the evidence that Cotto-Andino was
precluded from rebutting was of no substantial moment.
We faced an analogous situation in United States v.
Rosario-Pérez, 957 F.3d 277 (1st Cir. 2020). There, the government
successfully secured the admission of an allegation that the
defendant had committed an uncharged murder. Id. at 289. When
the defendant then sought to counter that allegation, the trial
court erroneously excluded the exculpatory evidence. Id. at 290–
94. We found such an exclusion to be cause for vacating the
verdict, reasoning that "to allow evidence that [the defendant]
murdered [a drug seller indebted to him] and disallow plausible
evidence that he did not based on erroneous rulings is an
unacceptable result." Id. at 294.
For similar reasons, we cannot deem harmless the
district court's decision to deny Cotto-Andino the opportunity to
gather and present evidence to rebut Calviño-Ramos's allegation.
By cutting off Cotto-Andino's efforts to gather evidence relevant
to establishing when Cano Ingram died, the district court undercut
the defendant's attempt to kill three birds with one stone:
- 32 -
Cotto-Andino did not kill Cano Ingram, Calviño-Ramos is a liar,
and the government has not explained how Cotto-Andino could have
possessed the role in La Rompe alleged by the government.
In sum, the district court's constraint of
Cotto-Andino's attempt to rebut the government's uncharged murder
evidence exceeded the bounds of the court's discretion, was not
harmless, and requires vacatur of Cotto-Andino's convictions.
2. Flight Evidence
Cotto-Andino also argues that evidence that he fled to
avoid arrest should have been excluded. Over Cotto-Andino's
objection, Elvin Cruz-Castro testified that Cotto-Andino came to
Cruz-Castro's home in Hallandale Beach, Florida, in April 2016 and
told Cruz-Castro that "he needed a place to stay for a few days
because he was being wanted by the authorities." Two days after
Cotto-Andino arrived at Cruz-Castro's home, federal agents
arrested Cotto-Andino.
Citing United States v. Benedetti, 433 F.3d 111 (1st
Cir. 2005), Cotto-Andino argues the government did not "present
sufficient extrinsic evidence of guilt to support an inference
that [his] flight was not merely an episode of normal travel but,
rather, the product of a guilty conscience related to the crime
alleged." Id. at 116. He claims that his request to stay with
Cruz-Castro is not indicative of a guilty conscience because Cotto-
Andino moved to Florida in 2013, well before his indictment in
- 33 -
July 2015. He also argues that the evidence should have been
excluded under Rule 403.
Because this same evidentiary issue is likely to arise
at any retrial, we consider this argument now. In so doing, we
review for abuse of discretion the district court's determinations
that there existed a sufficient factual predicate to support an
inference that the flight reflected consciousness of guilt of the
alleged offense, see United States v. West, 877 F.3d 434, 438 (1st
Cir. 2017), and that Rule 403 did not bar the flight evidence's
admission, see id. at 439.
There was no abuse of discretion here. The government
presented evidence to support the inference that Cotto-Andino's
consciousness of guilt of the alleged offenses prompted his travel
to Cruz-Castro's home. Multiple cooperating witnesses testified
that Cotto-Andino controlled two La Rompe drug points. That
alleged criminal activity formed the basis of the July 2015
indictment against Cotto-Andino, and he was subject to arrest on
that indictment when he contacted Cruz-Castro in April 2016.
Cotto-Andino's own words establish that the authorities' pursuit
motivated his request to stay with Cruz-Castro. Cf. United States
v. Candelaria-Silva, 162 F.3d 698, 705–06 (1st Cir. 1998)
(emphasizing, among other evidence establishing requisite factual
predicate for flight evidence's introduction, defendant's
admission following arrest in Massachusetts that "he knew he was
- 34 -
wanted in Puerto Rico"). The district court reasonably found that
this evidence could support the inference that Cotto-Andino's
travel to Hallandale Beach reflected consciousness of guilt of the
crimes alleged in the indictment. See Benedetti, 433 F.3d at 117(finding sufficient factual predicate based on evidence of
defendant's unlawful firearm possession and broken promise to
surrender voluntarily after indictment). Cotto-Andino's presence
in Florida prior to his indictment in July 2015 perhaps offered a
basis for claiming that he sought to stay with Cruz-Castro several
months later for purposes other than flight. But it certainly did
not compel such a finding given Cruz-Castro's testimony.
Cotto-Andino has not shown that the district court's
Rule 403 balancing analysis inadequately accounted for his
presence in Florida before April 2016. Moreover, the district
court prudently cautioned the jury that "there could be
reasons . . . for defendant's actions that are fully consistent
with innocence," reducing any risk of unfair prejudice. See United
States v. Fernández-Hernández, 652 F.3d 56, 70 n.11 (1st Cir. 2011)
(noting that district court provided limiting instruction and
finding no abuse of discretion).
3. Gun Possession at Time of Arrest
Cotto-Andino next challenges the admission of evidence
that he possessed a gun at the time of his arrest, arguing that it
had no special relevance and, alternatively, that any probative
- 35 -
value it possessed was substantially outweighed by unfair
prejudice. See Fed. Rs. Evid. 404(b), 403. It is not certain
that this issue will arise again at any retrial. Moreover, its
resolution depends in part upon an exercise of discretion in
assessing both the proffered relevance and the potential prejudice
in the context of the case as a whole. We therefore see little
benefit to addressing the issue further beyond referring to our
guidance tendered in Henry, 848 F.3d at 9.
4. Possession of Cell Phones at Time of Arrest
Finally, Cotto-Andino argues that the district court
improperly permitted Jason Ruiz, an agent of the Bureau of Alcohol,
Tobacco, and Firearms, to provide lay opinion testimony about the
circumstances of Cotto-Andino's arrest. On direct examination,
Ruiz testified that law enforcement found Cotto-Andino with three
cell phones, two of which were flip phones. On cross-examination,
Cotto-Andino asked Ruiz whether there was anything illegal,
uncommon, or meaningful about having multiple cell phones. Over
Cotto-Andino's objection, Ruiz testified on redirect that, based
on his experience investigating narcotics cases, defendants often
carry multiple cell phones and use flip phones as temporary
"burner" phones to evade law enforcement efforts to track and
intercept drug-related communications. Later in the trial, Eddie
Vidal-Gil was qualified as an expert on drug trafficking based on
his experience as a police officer. Vidal-Gil's testimony about
- 36 -
the possession of multiple cell phones and use of flip phones was
essentially identical to Ruiz's testimony.
On appeal, the parties' briefing on this issue focused
on whether Ruiz's lay opinion testimony was properly admitted
pursuant to Fed. R. Evid. 701. That question is largely academic
where, as here, a qualified expert witness gave substantially
identical testimony. We have no reason to think that an expert
would not provide similar testimony at any retrial. Nor do we
have any reason to think that cross-examination of Ruiz at any
retrial would invite such lay opinion testimony, as it arguably
did here. Cf. United States v. Valdivia, 680 F.3d 33, 51 (1st
Cir. 2012) (explaining that defendant challenging improper expert
testimony "cannot earnestly question the government's attempt to
re-forge inferential links that [the defendant] sought to sever"
during preceding cross-examination). We therefore see no reason
to say more now on this issue.
C. Resto-Figueroa's Mistrial Motion
We turn now to Resto-Figueroa's argument that he was
denied a fair trial because he relied to his detriment on an
inaccurate grand jury transcript provided by the government. We
review the district court's denial of a motion for a mistrial for
"manifest abuse of discretion." United States v. Chisholm, 940
F.3d 119, 126 (1st Cir. 2019) (quoting DeCologero, 530 F.3d at
52).
- 37 -
The transcript in question consists of grand jury
testimony given by Oscar Calviño-Acevedo. As a tape recording of
that testimony confirms, Calviño-Acevedo testified that
Resto-Figueroa (known as "Tego") was one of the participants in
the August 28 shooting of Pollo and others. This testimony was
more or less identical to statements Calviño-Acevedo made
previously, including in a trial based on the same indictment.
The transcript of the grand jury testimony, however, erroneously
used the nickname of another person, "Bebo," rather than "Tego."
When Calviño-Acevedo testified at trial that Tego was
involved in the shooting, defense counsel began a line of cross-
examination by asking whether Calviño-Acevedo told the grand jury
that Tego was involved. Counsel went to sidebar where a long
conversation ensued, during which defense counsel pointed to the
transcript of Calviño-Acevedo's grand jury testimony. At that
point, government counsel (who had conducted the grand jury
questioning and who knew that Bebo had been incarcerated at the
time of the shooting) realized that the grand jury transcript
erroneously named Bebo rather than Tego. It also became apparent
that counsel could get from the court reporter an audio tape of
the pertinent grand jury testimony.
Counsel for Resto-Figueroa moved for a mistrial,
contending that a misleading transcript had led him to adopt a
trial strategy that now would backfire, making counsel rather than
- 38 -
the witness appear deceptive. The district court denied the motion
but allowed counsel to use the transcript to continue the cross-
examination if he so wished.
When the sidebar conference concluded, Resto-Figueroa
proceeded with cross-examination. He asked Calviño-Acevedo about
the list of people who went to Jardines de Cupey, reading the names
from the grand jury transcript that did not include Tego.
Calviño-Acevedo said those were the names he provided, but he
insisted that he mentioned Tego, too. After reviewing the grand
jury transcript, Calviño-Acevedo agreed that the transcript did
not include Tego's name.
The next day, while Calviño-Acevedo was still on the
witness stand, the government produced a recording of his grand
jury testimony. Both Resto-Figueroa and the government agreed
that the recording showed that Calviño-Acevedo had indeed
mentioned Tego in his grand jury testimony. Because Resto-Figueroa
had probed the point on cross, the government sought to introduce
the recording on redirect as a prior consistent statement
admissible under Fed. R. Evid. 801(d)(1)(B). Resto-Figueroa then
renewed his mistrial motion, arguing that he would suffer prejudice
because he relied in good faith on the disclosed grand jury
transcript's accuracy. The district court denied the motion.
Before the government conducted its redirect
examination, the district court consulted the parties about a
- 39 -
special instruction to the jury. The instruction explained that
the grand jury transcript contained an error that had, until then,
gone undetected, emphasized that Resto-Figueroa's counsel asked
his initial questions "on a good-faith basis," and told the jury
"not [to] make any adverse inferences against him or his
client . . . because of that cross-examination that was held."
Resto-Figueroa continued to press his request for a mistrial but
assented to the instruction's wording. The government then played
the recording as part of its redirect examination.
Resto-Figueroa argues on appeal that he suffered acute
prejudice from the transcript error because the government's case
against him turned on the jury's evaluation of the credibility of
cooperating witnesses with lengthy criminal records. Rather than
helping him exploit that potential vulnerability in the
government's proof, Resto-Figueroa's reliance on the transcript
ultimately underscored Calviño-Acevedo's inculpatory testimony
when the government introduced the recording.
The district court did not abuse its discretion in
denying Resto-Figueroa's motion for a mistrial. Defense counsel
learned that the transcript was likely in error before he used it
to impeach the witness. He can hardly cry foul about the district
court then allowing the government to use the recording to
rehabilitate the witness. The district court informed the jury of
the circumstances and carefully instructed against drawing any
- 40 -
adverse inferences against counsel based on his earlier cross-
examination. Importantly, there is no evidence of any wrongdoing
by the government. Neither counsel noticed the error in the
transcript until sidebar, at which point government counsel
brought it to the attention of the court and opposing counsel.
This was, in short, one of the nettlesome surprises that can easily
arise in a trial. To the extent the events played out to enhance
Calviño-Acevedo's credibility as compared to that of defense
counsel, they did so because defense counsel, aware of the likely
error, pressed a strong attack that presumed there was no error.
In sum, the transcript error does not present "extremely compelling
circumstances" that would warrant reversal of the district court's
denial of a mistrial in Resto-Figueroa's favor. United States v.
Georgiadis, 819 F.3d 4, 16 (1st Cir. 2016) (quoting United States
v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000)).
D. Instructional Error
Resto-Figueroa also argues that the jury instructions
were erroneous in several ways. We address his arguments in turn.
Resto-Figueroa first claims the instructions did not
require the jury to find that the alleged RICO enterprise actually
existed or that the enterprise's activities actually affected
interstate commerce. Instead, the instructions told the jury that
the government need only prove that these elements "would" be
satisfied. Resto-Figueroa did not object when these instructions
- 41 -
were given, so our review is for plain error. Henry, 848 F.3d at
13. The evidence that La Rompe existed and affected interstate
commerce is so overwhelming that Resto-Figueroa cannot prove that
the challenged "would" instructions caused any prejudice. For
that reason, we see no basis to upset the verdict based on this
instruction, whether or not it was correct. See Rodríguez-Torres,
939 F.3d at 35-36 (finding proof of La Rompe's existence so
overwhelming as to render unprejudicial any potential error in
similar instruction).
Next, Resto-Figueroa contends that the instructions did
not require the jury to find actual association between the
defendant and anyone involved with the enterprise. This
unpreserved argument also fails. Read as a whole, the district
court's charge required the jury to find that Resto-Figueroa
associated with the enterprise with knowledge of its nature and
its extension beyond his own role.10 See United States v. Gomez,
10 The district court explained that "a person is 'associated
with' an enterprise when, for example, he joins with other members
of the enterprise and he knowingly aids or furthers the activities
of the enterprise, or he conducts business with or through the
enterprise." The district court later instructed the jury that
"it is sufficient that the government prove beyond a reasonable
doubt that at some time during the existence of the enterprise as
alleged in the indictment, the conspirator was or would be
'employed by' or 'associated with' the enterprise within the
meaning of those terms as I have just explained and that he knew
or would know of the general nature of the enterprise, and knew or
would know that the enterprise extended beyond his own role in the
enterprise."
- 42 -
255 F.3d 31, 38 (1st Cir. 2001) (emphasizing that individual
instructions "may not be evaluated in isolation"). The instruction
given on association was not clearly erroneous.
Finally, Resto-Figueroa asserts for the first time on
appeal that the instructions did not require the jury to find that
a defendant knowingly joined a conspiracy to commit a substantive
RICO violation. Resto-Figueroa cannot clear the plain error hurdle
here. The district court told the jury that "the agreement to
commit a RICO offense is the essential aspect of a RICO conspiracy
offense" and gave an instruction on this issue that tracked
Salinas.11 See supra Part II.A.1. This instruction was not clearly
erroneous.
E. Responses to Jury Questions
During its deliberations, the jury used notes to
communicate questions to the district court on three occasions.
Upon receipt of each question, the district court informed counsel
of the jury's message and gave them an opportunity to articulate
their views regarding a proper response. See United States v.
Sabetta, 373 F.3d 75, 78 (1st Cir. 2004) (describing best practices
for responding to a jury's message).
11 The district court explained that agreement could be shown
by proof "beyond a reasonable doubt that the defendant agreed to
participate in the enterprise with the knowledge and intent that
at least one member of the RICO conspiracy (who could be, but need
not be, the defendant himself) would commit at least two
racketeering acts in conducting affairs of the enterprise."
- 43 -
First, the jury sent a note stating, "We, the jurors,
request the witnesses' testimonies transcripts." Resto-Figueroa
argued that the jurors have a right to request a read-back of the
testimony and asked the district court to "inquire if they are
asking for a read-back of the totality of the trial or just have
a particular witness." Velazquez-Fontanez joined Resto-Figueroa's
request. Cotto-Andino sought "a read-back of the testimony, sans
sidebars and objections." The district court rejected these
proposals, responding that: "You are to rely on your collective
memory of the witnesses' testimonies. Transcripts are not
evidence." Velazquez-Fontanez and Resto-Figueroa argue that the
district court erred in doing so.
Our review is for abuse of discretion. United States v.
Vázquez-Soto, 939 F.3d 365, 375 (1st Cir. 2019). We discern no
abuse of discretion here. See United States v. Akitoye, 923 F.2d
221, 226 (1st Cir. 1991) (advising district courts facing similar
requests to consider the scope of the jury's request; what
obstacles, if any, would impair the request's fulfillment; and the
amount of time the desired action would take). As the district
court discussed with counsel on the record, the transcripts had
not yet been completed. Moreover, any transcript would need to be
redacted to exclude sidebar conversations between the district
court and counsel. The jury specifically asked for transcripts of
"the witnesses' testimonies." Another trial judge might well have
- 44 -
endeavored to see if their request might be greatly narrowed. On
the other hand, such an attempt at a give-and-take with a twelve-
member jury might itself have involved the court too much in the
jury's deliberations, or perhaps itself taken much time. See
United States v. Aubin, 961 F.2d 980, 983–84 (1st Cir. 1992)
(finding no abuse of discretion in the district court's refusal to
inform a jury that it could request a read-back based in part on
concerns about "out-of-context testimony" and potential
"difficulty agreeing to the scope of what should be read back").
In any event, a district court does not abuse its discretion by
requiring the jury to proceed as most juries usually proceed. See
Vázquez-Soto, 939 F.3d at 377 (observing that a jury "does not
have the right to a rereading" of testimony (quoting Aubin, 961
F.2d at 983)).
Second, the jurors wrote: "[W]e, the jurors, request
further clarification on what conspiracy means in Count Two. Also,
does aiding and abetting apply to Count Two, Four and Five?" The
district court responded to the jury by saying, "Please refer to
Instruction Number 32 for clarification on what conspiracy means
in Count Two. Aiding and abetting does not apply to Count Two.
It applies to Counts Four and Five." In doing so, the district
court declined Resto-Figueroa's request to "inquire further" of
the jurors.
- 45 -
Velazquez-Fontanez argues that the district court's
response regarding the meaning of conspiracy did not provide the
clarification the jury requested. Resto-Figueroa adopts
Velazquez-Fontanez's argument by reference, and he adds that the
district court's RICO conspiracy instruction was "generally
incomprehensible." We review for abuse of discretion a district
court's decision on whether to give a supplementary jury
instruction. See United States v. Monteiro, 871 F.3d 99, 114 (1st
Cir. 2017).
The defendants did not object to or seek to modify the
district court's initial conspiracy instruction. Nor did they
suggest an alternative instruction that the district court should
have provided in response to the note. Even where a defendant
does offer an alternative, we typically do not fault a district
court for declining to expand upon its "initial, entirely correct
instructions" and instead "refer[ring] the jury to the original
formulation." United States v. Roberson, 459 F.3d 39, 46 (1st
Cir. 2006) (quoting Elliott v. S.D. Warren Co., 134 F.3d 1, 7 (1st
Cir. 1998)). Defendants have not shown that the district court
abused its discretion by sticking to the instruction given here
without objection.
Third, the jurors wrote, "[W]e, the jurors, request
further clarification on Instruction Number 44 regarding the
meaning of being present." The government asserted that, although
- 46 -
it had agreed to the instruction, the instruction "is highly
confusing" because its theory posited "that he was handling
everything through phone." The government requested a
supplementary instruction stating: "Presence does not require
actual physical presence. Please refer to instruction on aiding
and abetting in regards to that." Velazquez-Fontanez requested
that the district court "refer them to [the] instructions as they
are." The district court proposed a response that said: "Please
refer to Instruction Number 44 in conjunction with Instruction
Number 34, 'Aid and Abet,' in light of all the evidence presented
in the case." Velazquez-Fontanez responded that he had "[n]o
objection" to the district court's proposal.
Velazquez-Fontanez argues on appeal that this
supplementary jury instruction was improper. But this challenge
goes nowhere. Velazquez-Fontanez waived his objection when he
affirmatively stated that he had "[n]o objection" to the district
court's proposed response, which aligned with Velazquez-Fontanez's
request that the district court refer the jury to the existing
instructions. See United States v. Corbett, 870 F.3d 21, 30–31
(1st Cir. 2017) (holding that challenge to response to juror note
was waived where defendant said that proposed response "restates
the instruction already given, so I have no problem"); United
States v. Acevedo, 882 F.3d 251, 264 (1st Cir. 2018) (holding that
challenge to revised jury instruction was waived where defendant
- 47 -
stated he had no objection and changes were made in light of
defendant's concerns).
III. CONCLUSION
For the foregoing reasons, we affirm the convictions of
Carlos Velazquez-Fontanez and Jose Resto-Figueroa. We vacate the
convictions of Ruben Cotto-Andino and remand his case for further
proceedings consistent with this opinion.
- 48 -