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United States v. Alexis Candelario-Santana

United States Court of Appeals, First Circuit

August 17, 2016

UNITED STATES OF AMERICA, Appellee,
v.
ALEXIS CANDELARIO-SANTANA, and DAVID OQUENDO-RIVAS, Defendants, Appellees.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]

          Alan J. Black, for appellant Candelario-Santana.

          Linda Backiel, for appellant Oquendo-Rivas.

          Jenny C. Ellickson, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney General, were on brief, for appellee.

          Before Howard, Chief Judge, Torruella and Selya, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE.

         These consolidated appeals stem from a drug-related mass shooting carried out in furtherance of a Racketeer Influenced and Corrupt Organizations Act ("RICO") enterprise. Following the shooting, a federal grand jury in the United States District Court for the District of Puerto Rico returned a fifty-two count superseding indictment charging Alexis Candelario-Santana ("Candelario") and David Oquendo-Rivas ("Oquendo") (collectively, "Defendants-Appellants") with violent crimes in aid of racketeering activity ("VICAR"). Candelario was further charged with a number of drug trafficking offenses and thirteen RICO conspiracy-related murders. The Government sought the death penalty for Candelario. Defendants-Appellants were tried jointly before, and found guilty on all counts by, a death-qualified jury. As the jury failed to reach a unanimous decision on whether Candelario should receive a death sentence, both defendants received life sentences. Defendants-Appellants timely filed notices of appeal, deploying a veritable flotilla of challenges. We affirm Oquendo's convictions but vacate and remand as to Candelario.

         I. Background

         We include the foundational facts in this section and delve into facts essential to each issue raised on appeal in our analysis.

         In 1993, Candelario became the head of a drug-trafficking organization, known as the Palo de Goma drug point, operating in the Sabana Seca ward of Toa Baja, Puerto Rico. Throughout the 1990s, Candelario retained exclusive control over drug sales in the surrounding areas, often through violent means. Aided by Braulio Rodríguez ("Menor"), Candelario murdered or arranged the murder of at least a dozen individuals. In the late 1990s, Candelario fled to Michigan in an attempt to avoid arrest, leaving his cousin, Wilfredo Semprit-Santana ("Rufo"), and Carmelo Rondón-Feliciano ("Omi") to oversee day-to-day operations at Palo de Goma.[1] In return, Rufo and Omi agreed to "pay rent" to, that is, share the drug proceeds with, Candelario. In 2003, Candelario pleaded guilty to a dozen murder charges in Puerto Rico court. Rufo and Omi continued making payments to Candelario for use of the drug point. At some point, Candelario's relationship with Rufo and Omi began to deteriorate; the duo stopped making payments to Candelario, who threatened them. In 2006, following Omi's arrest by federal authorities, Rufo's brother, Pedro Semprit-Santana ("Semprit"), joined Palo de Goma, also declining to make payments to Candelario.

         In February 2009, Candelario was released from prison. That same year, Rufo rented and renovated La Tómbola, a 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.

         II. Procedural History

         A federal grand jury returned a fifty-two count superseding indictment against Candelario and Oquendo. Counts two to forty-nine charged Defendants-Appellants with VICAR activity and with carrying firearms during and in relation to crimes of violence in violation of 18 U.S.C. §§ 1959 and 2 and 18 U.S.C. §§ 924 and 2, respectively. The indictment also charged Candelario with conspiracy to engage in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d); conspiracy to possess with intent to distribute crack cocaine, cocaine, heroin, and marijuana, in violation of 21 U.S.C. § 846; and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1).

         We take each relevant issue on appeal in turn, beginning with Oquendo's challenge to the district court's refusal to suppress statements he made on the day of his arrest, proceeding to Oquendo and Candelario's claim of unconstitutional closure, Oquendo's potpourri allegations of trial error, and Oquendo's challenge to the jury instructions, and finally concluding by dispensing of Oquendo's insufficiency of the evidence claim.

         III. Oquendo's Statements on the Day of His Arrest

         Several days after the shooting, Puerto Rico Police Department ("PRPD") Officer Carlos Rodríguez-Negrón ("Rodríguez") received information that the individuals who perpetrated the La Tómbola shooting were hiding in a small neighborhood in Sabana Seca. As we recounted in an earlier, related case:

rumors led officers from the [PRPD] to a . . . home, where several men involved in the murders were thought to be hiding. Arriving at the residence, officers observed three men standing in its fenced-in yard. Startled by the officers, one man -- later identified as Oquendo -- lifted his shirt to reveal a firearm in his waistband. All three men then fled. One, exiting the yard, successfully evaded the ensuing pursuit; he has never been identified. The other two, Oquendo and . . . Christian Ortiz-Rivera ("Ortiz"), ran up an exterior staircase and into the home's second-story interior. The officers gave chase.
Entering the home's upper level, [Rodríguez] observed Oquendo toss a handgun out of the window. Soon after, Officer Rodríguez and Officer Roberto Cruz grabbed 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).

         In this case, Oquendo filed a motion to suppress statements made to law enforcement. At the suppression hearing, Rodríguez described "put[ting] [Oquendo] down on the floor" "real fast" and said he "put [him] under arrest for [his] safety." Rodríguez stated that he twice Mirandized both men. According to Rodríguez, both men replied "[t]hat they're clear. That both weapons are theirs, but that they are not involved whatsoever with the events that occurred at La Tómbola." Rodríguez later amended his statement, adding that, as noted above, prior to Mirandizing Oquendo and Ortiz, he asked them whether they had a firearms license, and both men responded in the negative. At that point, Rodríguez claims he administered Miranda warnings.

         Oquendo's motion was denied following the hearing. The district court reasoned that, because Rodríguez asked Oquendo whether he had a valid gun license during a Terry-type intervention, Oquendo was not in formal custody, making Miranda warnings unnecessary. Even if the gun-licensing question were impermissible, the district court continued, Rodríguez had probable cause for arresting Oquendo, as he brandished a firearm. The district court additionally found that Oquendo spontaneously made his initial statements ("we're clear . . . both weapons are [ours], but . . . they are not involved whatsoever with the events that occurred at La Tómbola") pursuant to a valid Miranda waiver. With regard to the statements made to Agent Torres, the district court concluded that Oquendo did not assert that he wished to consult with counsel, and that Oquendo voluntarily waived his right to remain silent.

         A.

         This court reviews factual determinations and credibility assessments underlying a motion to suppress for clear error and reviews legal conclusions de novo. Id. at 16. We view the facts in the light most favorable to the district court's ruling on the motion. United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011). "So long as 'any reasonable view of the evidence supports it, ' [this court] will uphold the denial of the motion to suppress." United States v. Molina-Gómez, 781 F.3d 13, 18 (1st Cir. 2015) (quoting United States v. Brown, 510 F.3d 57, 64 (1st Cir. 2007) (internal quotation marks and citation omitted)).

         During a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), "officers [may] 'diligently pursue[] a means of investigation . . . likely to confirm or dispel their suspicions quickly.'" United States v. Trueber, 238 F.3d 79, 91-92 (1st Cir. 2001) (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). However, no bright-line rule exists demarcating Terry-type interventions from arrests. United States v. Rabbia, 699 F.3d 85, 89-90 (1st Cir. 2012). Nevertheless, a detention transforms into a de facto arrest when a reasonable person, in the suspect's position, would feel the degree of restraint normally associated with formal arrest. United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). The question is, then, whether "in light of the totality of the circumstances . . . a reasonable person in the suspect's position would have understood [his] position 'to be tantamount to being under arrest.'" United States v. Chaney, 647 F.3d 401, 409 (1st Cir. 2011) (quoting Zapata, 18 F.3d at 975).

         Upon review, factors to consider include: "the location and duration of the stop, the number of police officers present at the scene, the degree of physical restraint placed upon the suspect, and the information conveyed to the suspect." Rabbia, 699 F.3d at 91. This court also inquires into "whether the suspect was questioned in familiar or at least neutral surroundings . . . and the duration and character of the interrogation." United States v. Nishnianidze, 342 F.3d 6, 13 (1st Cir. 2003) (quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987)). Officers' temporary use of coercive measures, such as handcuffs, and even drawing a weapon are not dispositive. See United States v. Fornia-Castillo, 408 F.3d 52, 64-65 (1st Cir. 2005). Whether a Terry stop escalated to a de facto arrest "'qualif[ies] for independent review' as it . . . presents a 'mixed question of law and fact.'" Trueber, 238 F.3d at 93 (alterations in original) (quoting Thompson v. Keohane, 516 U.S. 99, 113 (1995)).

         Once an individual is in custody, police must advise the arrestee of his or her constitutional rights before interrogation. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). Failure to warn a person of their Miranda rights renders inadmissible any statement elicited in the course of the custodial interrogation. United States v. Jackson, 544 F.3d 351, 356 (1st Cir. 2008).

         B.

         Here, at first glance, the suppression issue as to Oquendo's pre-Miranda statement appears to hinge on this court's independent determination of whether the Terry stop escalated into an arrest before officers asked Oquendo if he had a gun license. Several factors cause concern. The location was secluded. Cf. 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 him.[2] Ultimately, however, no one of these factors is dispositive under our precedent. We are also keenly aware that they reflect circumstances created by suspects' flight -- the location and nature of setting, for example -- and officers' contextually reasonable responses to the circumstances created by 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 ...


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