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United States v. Ramírez-Rivera

United States Court of Appeals, First Circuit

August 26, 2015

UNITED STATES OF AMERICA, Appellee,
v.
PEDRO LUIS RAMÍREZ-RIVERA, a/k/a Peter Pai; JOSÉ LAUREANO-SALGADO, a/k/a Geo; and ISMAEL E. CRUZ-RAMOS, a/k/a Chapu, Defendants, Appellants

As corrected September 1, 2015.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge, Hon. William E. Smith, U.S. District Judge.

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Henry E. Marines, with whom Law Offices of Henry E. Marines, Claudia Ima, and Law Offices of Claudia Ima were on brief, for Pedro Luis Ramírez-Rivera and José Laureano-Salgado.

Ruth M. Liebesman, with whom Law Office of Ruth M. Liebesman was on brief, for Ismael E. Cruz-Ramos.

Victor O. Acevedo-Hernandez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martí nez, Assistant United States Attorney, were on brief for the United States.

Before Thompson, Lipez, and Barron, Circuit Judges.

OPINION

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THOMPSON, Circuit Judge.

After a jury convicted Defendants-Appellants José Laureano-Salgado, Pedro Ramírez-Rivera, and Ismael Cruz-Ramos (collectively, " the Defendants" )[1] of

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numerous drug and gun crimes, a district court judge sentenced them all to life in prison. The Defendants now ask us to overturn their convictions and sentences, or, at the least, send their case back for a new trial.

For the reasons discussed below, we reverse Cruz-Ramos's conviction and sentence and remand his case for a new trial. We affirm Laureano-Salgado's and Ramírez-Rivera's convictions and sentences.

BACKGROUND

To give a lay of the land, we start with only a brief overview of this case. We fill out relevant portions of the story -- in, as we invariably explain, whatever light our law demands, and relying on whatever record support is appropriate -- as they are needed throughout our analysis of the various issues the Defendants have raised.

How It Began[2]

Until 2004, the majority of street-level drug sales in the San Juan-metropolitan area of Puerto Rico were controlled by gangs operating out of public housing projects. Sales in each housing project were generally controlled by each project's own drug gang.

The name of the game back then was control of the drug points, and the gangs fought for decades to maintain and grow their territories. The violence that accompanied their disputes naturally drew the attention of both local and federal authorities. As a result, drug sales took a hit, and large conspiracy indictments were handed down.

Around 2004, nearly all the drug gang leaders from the area reached an agreement that to reduce the inter-project conflicts and keep the cops away, they would form an alliance. They named it " La Organización de Narcotraficantes Unidos" (Spanish for " The Organization of United Drug Traffickers" ), or " La ONU" for short. The leaders agreed that if a conflict arose among La ONU members, they would meet to discuss it (as opposed to immediately resorting to shootouts). Under the new regime, La ONU members would be permitted to visit other La ONU-affiliated housing projects (and to also sell drugs there), so long as they got permission from that project's leader. The La ONU leaders also met regularly to discuss drug-related issues and to resolve conflicts.

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While the alliance operated " for a time," for reasons unknown it " weakened" as certain gangs grew " disgruntled" with La ONU and " sought to break off." Sometime around 2008, La ONU ended up breaking into two groups -- La ONU and " La Rompe ONU" (known as " La Rompe" for short, which translates to " the break" ). Each project-gang went all-in with either La ONU or La Rompe. La ONU-controlled projects included Las Dalias, Las Gladiolas, El Prado, and Los Jardines de Selles, while La Rompe-controlled projects included Trujillo, Cupey, and Alturas de Cupey. The two factions soon became equally sized and eventually, they became bitter rivals.

With the rising of La Rompe, La ONU's direction changed. Its mission became to " maintain control over the drug points in their housing projects by force and to kill La Rompe members and leaders in order to expand." The organization's " unwritten" rules required that La ONU members remain loyal to each other, while relentless to the enemy. La ONU members could not kill other La ONU members without go-ahead from the leadership; nor could they overtake La ONU-owned drug points. Not only were La ONU members forbidden from associating with La Rompe members, they were also required to kill them on-sight. La ONU members were not permitted to cooperate with law enforcement. And breaking any of these rules meant death to the traitor (and/or his family members). La ONU leaders continued to meet with each other to resolve internal conflicts and discuss strategy for overtaking drug points at other (La Rompe-controlled) housing projects. They regularly pooled resources to buy weapons and cars. When attacks on La Rompe members would go down, each La ONU project contributed an enforcer (i.e., hit man).

La ONU also continued to traffic drugs (crack, cocaine, heroin, and marijuana) and committed various violent acts (including murders) to enforce its rules and grow its territory. For instance, La ONU put hits out on La Rompe leaders. La ONU launched machine-gun shootouts in La Rompe projects. During one such shootout near Trujillo Alto Bridge, two women -- a police officer and librarian -- were killed. La ONU was also connected to the May 2010 shooting take-down of a police helicopter, allegedly committed by Edwin Bernard Astacio Espino (" Bernard" ), a La ONU member.

Betraying La ONU called for an equally devastating fate. For instance, when a La ONU member stole a gun and gave it to a La Rompe member, he too, was killed. So was a La ONU leader who got caught stealing drugs from the organization, and a member who cooperated with police.

After the helicopter shooting, an arrest warrant was issued for Bernard (whom the police apparently could not find). The police caught a lucky break in August 2010, when an informant tipped them off that Bernard was hiding out at Cruz-Ramos's house, stashing weapons and drugs. Afraid they would miss the chance to arrest Bernard if they waited any longer, the police searched Cruz-Ramos's house (without a warrant), found Bernard, arrested him (and the several other people in the house, including Cruz-Ramos), and seized the drugs and guns they found at the home. Police also arrested other La ONU members for various crimes around 2010 to 2011.

The Crackdown

With that, in March 2012, a grand jury indicted 33 people for their alleged involvement in La ONU from 2004 through

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March 2012.[3] The charges included drug trafficking, firearms crimes, murder, and attempted murder. The indictment accused all the Defendants of being members of La ONU.

Amongst the indictment's 33 counts, the Defendants here were charged with five:

o Count 1: racketeering conspiracy from 2004 through March 2012, in violation of the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § 1962(d);
o Count 2: conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § § 846 and 860;
o Count 3: conspiracy to possess firearms during and in relation to narcotics trafficking offenses, in violation of 18 U.S.C. § 924(o);
o Count 29: violent crime in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(1) (specifically, for the August 2010 murder of Christian Toledo-Sánchez, known as " Pequeque" ); and
o Count 30: use and carry of a firearm in relation to a crime of violence (i.e., Pequeque's murder), in violation of 18 U.S.C. § § 924(c)(1)(A) and 924(j)(1).[4]

Pre-Trial Motions

Puerto Rico District Court Judge José A. Fusté was assigned to preside over the 33-person case, but at some point the indicted defendants were split up into two groups for purposes of trial (one group being the defendants who were facing the death penalty, and the other group being the defendants who were not). Judge Fusté presided over the trial of the death-eligible defendants, and Judge William E. Smith, a Rhode Island district judge, sat in designation to preside over the trial of the non-capital defendants (including Cruz-Ramos, Laureano-Salgado, and Ramírez-Rivera).[5] Judge Smith also addressed many of the numerous pre- and post-trial issues that arose for the non-capital group.

As motion practice took way, and as jury selection in the Defendants' case lingered imminent, the government asked the district court to empanel an anonymous jury because the Defendants were " part of an organized crime ring that is both willing and able to intimidate and harm jurors." [6] Over the Defendants' constitutional objections, Judge Fusté (who was in charge of jury selection, even though he did not preside over the non-capital Defendants' trial) allowed the motion in-part, and resolved to place the seated jurors' names, addresses, and places of employment under seal because the Defendants in fact had " shown that they are part of an organized crime ring that is both willing and able to intimidate and harm jurors." The judge also ordered the jurors not to divulge information during voir dire that would disclose their identities.

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Shortly after that motion was resolved, the government notified the Defendants and the court that it intended to offer as evidence at trial the firearms and drugs that police seized from Cruz-Ramos's home in August 2010. Cruz-Ramos moved to suppress all that evidence, arguing that the warrantless search of his home was illegal. After a two-day evidentiary hearing, Judge Smith denied in-part the motion to suppress.[7]

Jury Empanelment

Judge Fusté empaneled the jury for the non-capital trial on January 23, 2013, several days before the trial was scheduled to start.[8] The instant Defendants and their attorneys were present for jury selection.

During voir dire (i.e., the process during which the court questions the potential jurors to determine whether they are fit to sit on the jury), Judge Fusté informed the potential jurors that their names, addresses, and places of employment would be kept anonymous, and that they would each be assigned an identifying number to " ward off curiosity and seekers of information that might otherwise infringe on [their] privacy."

The judge asked the jurors numerous questions during voir dire, and instructed them to raise their hands if the answer was " yes" to any of the questions, after which point the court would individually address their concerns. Among numerous other topics, the judge asked a question about the jurors' familiarity with the 2010 police helicopter shooting. He informed the jurors that while La ONU was " associated" with the incident, the shooting would not come up during the trial because the Defendants were not charged with that shooting. Some of the jurors raised their hands in response to the question, and the judge followed up with them individually.

After voir dire concluded, the jury (including alternates) was selected. But a few days before the start of trial, Juror No. 30 wrote a letter to the court asking to be excused because she was experiencing anxiety from having to sit on the jury. In response, the Defendants asked the court to conduct further voir dire of all the empaneled jurors, contending that Juror 30 could have " infected" the other jurors " by creating bias against" them.

Judge Fusté decided to interview Juror 30 (outside of the Defendants' presence, though their lawyers were allowed to be there) and concluded that she was unfit to serve on the jury for mental health reasons (essentially, she was intimidated by the Defendants). After the interview, Judge Fusté dismissed the juror and replaced her with an alternate. He also denied the Defendants' request to individually poll the other empaneled jurors.

The Trial and Sentencing

Judge Smith got started with the Defendants' trial on February 7, 2013. Among the evidence the government presented was testimony from law enforcement and cooperating La ONU members, as well as physical evidence police seized, like guns and drugs.

After seven days, the jury convicted the Defendants on all counts. The Defendants then moved for either an acquittal or a new trial based on lack of sufficient evidence, pursuant to Federal Rules of Criminal Procedure 29(a) and 33. Judge Smith denied the motions, finding that the government's

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presentation of witness testimony and physical evidence " strongly supported" the convictions. In October 2013, Judge Smith sentenced all the Defendants to life in prison.[9]

Now on appeal the Defendants argue that numerous errors occurred prior to and during the trial, such that their convictions should be vacated -- or at the least that they should get a new trial. Assuming those arguments do not convince us, the Defendants further argue that their sentences were improper for various reasons.

We address each of the Defendants' many arguments in turn.

DISCUSSION

I. Sufficiency of the Evidence

We begin our task by addressing whether the evidence put before the jury was sufficient to convict the Defendants. We tackle this issue first because if the Defendants are right, the remedy is about as drastic as they come -- we would have to throw out their convictions, and because of the Double Jeopardy Clause of the Fifth Amendment, the government would not get another shot at re-trying them on these charges. See United States v. Negrón-Sostre, 790 F.3d 295, 306-07 (1st Cir. 2015). Of course, a successful sufficiency challenge would then render all the Defendants' other claims (of reversible trial and sentencing error) moot.

We review sufficiency challenges de novo. Id. at 307. We consider all the direct and circumstantial evidence in the light most flattering to the government, " drawing all reasonable inferences consistent with the verdict, and avoiding credibility judgments, to determine whether a rational jury could have found the defendants guilty beyond a reasonable doubt." Id. (internal quotation marks and alteration omitted). Essentially, " we will reverse only if the verdict is irrational." United States v. Brandao, 539 F.3d 44, 50 (1st Cir. 2008) (internal quotation marks omitted).

In reviewing sufficiency challenges, we consider whether all the evidence offered by the government and admitted by the court was sufficient for a guilty verdict, even if the court erroneously admitted some of that evidence.[10] Lockhart v. Nelson, 488 U.S. 33, 34, 40-41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

Turning now to the evidence, there's no question that the government's case against the Defendants (particularly when it came to Laureano-Salgado and Ramírez-Rivera) heavily relied on testimonial evidence from three cooperating witnesses who were arrested around 2011 for their

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involvement with La ONU -- Christian Figueroa-Viera, a hit man and " leader" for La ONU; José Gutierrez-Santana, known as " El Domi," who sold drugs for the organization; and Wesley Figueroa-Cancel, also known as " Hueso," who was also a La ONU leader.

The allegations in the indictment largely ended up panning out at trial. According to the witnesses' testimony, from around 2007 to 2011, La ONU operated as a " union" or " gang" of drug dealers from several housing projects (including Las Dalias, Las Gladiolas, El Prado, and Los Jardines de Selles), which had the goal of " control[ling] the other housing projects and thus have more power." La ONU's main rival was La Rompe, which controlled projects like Trujillo, Cupey, and Alturas de Cupey.

The two gangs were at " war" over the " control of the drug points." Dominating the drug points was important to La ONU for a simple reason: by eliminating the competition in the La Rompe-controlled projects, La ONU could earn more drug money.

To effectuate its goals, La ONU had rules. If you see an enemy, kill him. Don't cooperate with police. And don't associate with the enemy. The punishment for breaking a rule was death.

The evidence showed that La ONU walked the walk, and not only were La Rompe members attacked and killed, disloyal La ONU were in fact punished by death. For instance, around 2008 or 2009, a La ONU member stole a rifle and gave it to a La Rompe member. After he confessed to giving the rifle to the enemy, La ONU members killed him. In 2009, a La ONU leader was killed for stealing drugs from the organization. And yet another La ONU member was killed for cooperating with police. The witnesses testified that it was important to participate in these types of violent acts to maintain their status with La ONU, even though that might mean killing police officers. It was necessary for members to maintain their positions in La ONU because " once you join the organization, you can't get out."

The testimony also demonstrated that Defendant Ramírez-Rivera was the heroin point owner in both Las Gladiolas and Las Dalias, as well as a La ONU leader. Ramírez-Rivera was so high up in the organization that without his permission, " nothing could be done," according to Gutierrez-Santana. And Ramírez-Rivera ordered other La ONU members to kill La Rompe associates. In addition to supplying heroin, weapons, and ammunition to the organization, Ramírez-Rivera also provided the cash to buy weapons and cars. And he sometimes lent his own gun to La ONU members when they went to other projects for a shooting.

From around 2008 to 2011, Defendant Laureano-Salgado served as Ramírez-Rivera's drug runner (meaning he brought product to drug points and picked up the money the drug points earned), and was a cocaine point owner at Las Gladiolas.

Defendant Cruz-Ramos was a heroin point owner at Las Gladiolas and provided firearms to the La ONU members who were from Las Gladiolas. He also lent weapons, including an AK-47, to other La ONU members.

To prepare for shootouts, La ONU generally held meetings, which were always conducted by the same people (including Cruz-Ramos, Ramírez-Rivera, and Laureano-Salgado).

The government also elicited testimony about several La ONU-sanctioned murders, but at trial the Defendants were only directly implicated in one -- the murder of La Rompe boss Christian Toledo-Sánchez,

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a.k.a. Pequeque. The testimony reflected that in August 2010, La ONU put a hit out on Pequeque. A meeting (which the Defendants participated in) was held to hash out the details of the murder with the for-hire hitman, whose grandmother was Pequeque's neighbor. During the attack on Pequeque (who was, in fact, killed), the hitman was injured, and the Defendants were part of the extraction team that went in to rescue him.

A. RICO Conspiracy (Count One)

Given that evidentiary backdrop, we first address the sufficiency of the evidence as to the Defendants' RICO conspiracy conviction under 18 U.S.C. § 1962(d).

The Racketeer Influenced and Corrupt Organizations Act, or " RICO," 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 or collection of unlawful debt." 18 U.S.C. § 1962(c). Section 1962(d) also prohibits any person from conspiring to violate § 1962(c). " The major difference between a violation of § 1962(c) itself and a violation of § 1962(d) based on § 1962(c) is the additional required element that the defendant knowingly joined a conspiracy to violate § 1962(c)." United States v. Shifman, 124 F.3d 31, 35 (1st Cir. 1997) (citation and alterations omitted).

Thus, " [f]or a defendant to be found guilty of conspiring to violate RICO, the government must prove (1) the existence of an enterprise affecting interstate [or foreign] commerce, (2) that the defendant knowingly joined the conspiracy to participate in the conduct of the affairs of the enterprise, (3) that the defendant participated in the conduct of the affairs of the enterprise, and (4) that the defendant did so through a pattern of racketeering activity by agreeing to commit, or in fact committing, two or more predicate offenses." Id. (internal quotation marks and alteration omitted).

Here, the Defendants argue that the evidence was not sufficient for elements one, three, and four.[11] For the reasons discussed ...


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