FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
J. Black, for appellant Candelario-Santana.
Backiel, for appellant Oquendo-Rivas.
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.
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
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
include the foundational facts in this section and delve into
facts essential to each issue raised on appeal in our
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. 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 arrest by federal authorities, Rufo's
brother, Pedro Semprit-Santana ("Semprit"), joined
Palo de Goma, also declining to make payments to Candelario.
February 2009, Candelario was released from prison. That same
year, Rufo rented and renovated La Tómbola, a
minimarket 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.
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
firearm by a prohibited person, in violation of 18 U.S.C.
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.
Oquendo's Statements on the Day of His Arrest
days after the shooting, Puerto Rico Police Department
("PRPD") Officer Carlos
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,
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 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 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).
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.
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 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
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)).
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)). 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).
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 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)).
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).
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. Berkemerv.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 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
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 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 Statesv.Streifel, 781 F.2d 953, 959 (1st ...