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United States v. RodriGuez-Torres

United States Court of Appeals, First Circuit

September 18, 2019

VICTOR M. RODRÍGUEZ-TORRES, a/k/a Cuca; TARSIS GUILLERMO SÁNCHEZ-MORA, a/k/a Guillo; REINALDO RODRÍGUEZ-MARTÍNEZ, a/k/a Pitbull; PEDRO VIGIO-APONTE, a/k/a Pedrito and He Man; CARLOS M. GUERRERO-CASTRO, a/k/a Carlitos el Negro, Defendants, Appellants.


          Lydia Lizarríbar-Masini for appellant Víctor M. Rodríguez-Torres.

          Theodore M. Lothstein, with whom Lothstein Guerriero, PLLC, was on brief, for appellant Tarsis Guillermo Sánchez-Mora.

          Vivian Shevitz for appellant Reinaldo Rodríguez-Martínez. Jamesa J. Drake, with whom Drake Law, LLC was on brief, for appellant Pedro Vigio-Aponte. Raúl S. Mariani-Franco on brief for appellant Carlos M. Guerrero-Castro.

          Stratton C. Strand, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Brian A. Benczkowski, Assistant Attorney General, and Matthew S. Miner, Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, Alberto R. López-Rocafort, Assistant United States Attorney, and Victor O. Acevedo-Hernández, Assistant United States Attorney, were on brief, for appellee.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          THOMPSON, Circuit Judge.


         La Rompe ONU (just "La Rompe" from now on) was one of the largest and most violent of Puerto Rico's street gangs. Another was La ONU. Deadly rivals, each wreaked much havoc on Puerto Rico through serial drug sales, violent robberies and carjackings, and ghastly killing sprees.

         After law enforcement took La Rompe down, La Rompe members Rodríguez-Torres, Sánchez-Mora, Rodríguez-Martínez, Vigio-Aponte, and Guerrero-Castro (their full names and aliases appear above) found themselves indicted, then convicted, and then serving serious prison time for committing some or all of the following crimes: conspiracy to violate RICO (short for "Racketeer Influenced and Corrupt Organizations Act"), see 18 U.S.C. § 1962(d); conspiracy to possess and distribute narcotics, see 21 U.S.C. §§ 846, 860(a); use and carry of a firearm in relation to a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A); and drive-by shooting, see 18 U.S.C. §§ 36(b)(2)(A), 2 (aiding and abetting) - to list only a few. The testimony of several cooperating witnesses - Luis Yanyoré-Pizarro, Oscar Calviño-Ramos, Luis Delgado-Pabón, and Oscar Calviño-Acevedo (persons indicted with our defendants, but who later pled guilty) - helped seal their fate.

         Collectively, our defendants' appeals (now consolidated) raise a battery of issues concerning the sufficiency of the evidence for the RICO-conspiracy, drug-conspiracy, and firearms convictions; the admission of out-of-court statements about a murder-by-choking incident; the correctness of the RICO-conspiracy jury instructions; and the reasonableness of two of the sentences.[1]We address these subjects in that order, filling in the details (like which defendant makes which claims) as we move along.[2] But for anyone wishing to know our ending up front, when all is said and done we affirm.



         Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora (but not Vigio-Aponte) claim that the prosecution submitted insufficient evidence to sustain some of their convictions:

• Rodríguez-Torres challenges his RICO- and drug-conspiracy convictions, plus his firearm conviction;

• Rodríguez-Martínez contests his RICO- and drug-conspiracy convictions;

• Guerrero-Castro questions his RICO-conspiracy and firearm convictions; and
• Sánchez-Mora (by adopting his codefendants' arguments that apply to his situation) disputes his RICO- and drug-conspiracy convictions.

         And so they fault the judge for denying their motions for judgments of acquittal. We will turn to the specifics of their arguments and the government's counterarguments in a minute. But like the government, we find none of their claims persuasive.


         Standard of Review

         We assess preserved sufficiency claims de novo (with fresh eyes, in plain English), reviewing the evidence, and making all inferences and credibility choices, in the government's favor - reversing only if the defendant shows that no rational factfinder could have found him guilty. See, e.g., Ramírez-Rivera, 800 F.3d at 16; United States v. Casas, 356 F.3d 104, 126 (1st Cir. 2004). For convenience, we'll call this the regular sufficiency standard. An unpreserved challenge, contrastingly, requires reversal only if the defendant shows - after viewing the evidence the exact same government-friendly way - that allowing his conviction to stand will work a "clear and gross injustice." See, e.g., United States v. Freitas, 904 F.3d 11, 23 (1st Cir. 2018); United States v. Foley, 783 F.3d 7, 12-13 (1st Cir. 2015) (calling the clear-and-gross injustice metric a "stringent standard" that is "a particularly exacting variant of plain error review"). For easy reference, we'll call this the souped-up sufficiency standard.

         Adopting a scorched-earth approach, the parties fight over which standard to apply. Convinced that they preserved their sufficiency arguments, Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora argue that we should use the regular sufficiency standard. Unimpressed by their assertions, the government believes that the quartet "waived" aspects of their arguments and that we must therefore apply the souped-up sufficiency standard to those claims. But rather than spend time grappling with the intricacies of this issue, we will assume arguendo in their favor that they preserved each sufficiency argument.

         RICO-Conspiracy Crime

         RICO makes it a crime "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 [an] enterprise's affairs through a pattern of racketeering activity" - or to conspire to do so. See 18 U.S.C. § 1962(c), (d). Broadly speaking (we will have more to say on this below), a RICO-conspiracy conviction requires proof 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." Salinas v. United States, 522 U.S. 52, 65 (1997); see also Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1562 (1st Cir. 1994).

         Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora offer a litany of reasons why the evidence does not support their RICO-conspiracy convictions. Disagreeing with everything they say, the government thinks that the evidence is just fine. We side with the government.[3]

         (i) enterprise

         Enterprises under RICO include "any union or group of individuals associated in fact although not a legal entity." See United States v. Turkette, 452 U.S. 576, 578 n.2 (1981); see also Ramírez-Rivera, 800 F.3d at 19. Such so-called association-in-fact enterprises may be "proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." See Turkette, 452 U.S. at 583. The group need not have some decisionmaking framework or mechanism for controlling the members. See Boyle v. United States, 556 U.S. 938, 948 (2009) (holding that a RICO enterprise "need not have a hierarchical structure or a 'chain of command'; decisions may be made on an ad hoc basis and by any number of methods - by majority vote, consensus, a show of strength, etc."). Instead the group must have "[1] a purpose, [2] relationships among those associated with the enterprise, and [3] longevity sufficient to permit these associates to pursue the enterprise's purpose."[4] Id. at 946.

         As to [1] - "purpose" - the group must share the "common purpose of engaging in a course of conduct." Id. As to [2] - "relationship" - there must also be evidence of "interpersonal relationships" calculated to effect that purpose, i.e., evidence that the group members came together to advance "a certain object" or "engag[e] in a course of conduct." Id. (quotation marks omitted). And as to [3] - "longevity" - the group must associate based on its shared purpose for a "sufficient duration to permit an association to 'participate' in [the enterprise's affairs] through 'a pattern of racketeering activity,'" id., though "nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence," id. at 948. Also and importantly, because RICO's plain terms "encompass 'any . . . group of individuals associated in fact,' . . . the definition has a wide reach," meaning "the very concept of an association in fact is expansive." Id. at 944 (emphasis added by the Boyle Court).

         Measured against these legal standards, the record - visualized most favorably to the government - adequately shows that La Rompe operated as an association-in-fact enterprise.

         For starters, the evidence reveals La Rompe's purpose: to get filthy rich by selling drugs at La Rompe-controlled housing projects, using violence (and deadly violence at that) whenever necessary to protect and expand its turf. As cooperator Delgado-Pabón put it, La Rompe's "purpose" was "to make the organization bigger" and "stronger" - "to control all of the housing projects in the metro area" so that it would be rolling in money. On top of that, the evidence shows the necessary relationships between La Rompe members: associates named their group "La Rompe ONU," reflecting that they saw themselves as a united, organized group of drug traffickers - the "ONU" stands for "Organización de Narcotraficantes Unidos" (in English, "Organization of United Drug Traffickers"); self-identified as La Rompe "members," flashing a hand signal to show their loyalty; got together daily to peddle massive amounts of drugs at La Rompe's many drug points; had meetings to discuss decisions that "[a]ffect[ed] the organization," like whether to kill a traitor or take over a La ONU-controlled housing project (La Rompe and La ONU were archfoes, don't forget), or how to keep the peace among the members; worked together - pooling resources, for example (manpower, guns, and cars, etc.) - to boost profits and gain more territory, principally through jointly-undertaken activities like robberies, carjackings, and murders; and followed La Rompe "rules" like their lives were on the line - because they were. And finally, the evidence shows La Rompe continued as a cohesive unit for at least eight years. See Ramírez-Rivera, 800 F.3d at 19 (finding similar evidence "more than" adequate to prove "a RICO enterprise").

         Though not necessary thanks to Boyle (which remember held that a RICO enterprise "need not have a hierarchical structure or a "chain of command'; decisions may be made on an ad hoc basis and by any number of methods - by majority vote, consensus, a show of strength, etc."), the evidence also shows that La Rompe had business-like traits as well. In addition to its name, meetings, and rules, La Rompe had a loose hierarchical structure. Josué Vázquez-Carrasquillo was La Rompe's "supreme leader," and Vigo-Aponte was its "second" leader. Each La Rompe-controlled housing project had a La Rompe-appointed "leader" and drug-point owners, the latter of whom had responsibility over "employees" like enforcers, sellers, runners, and lookouts. Also much like a business, La Rompe rewarded good performance and loyalty. In the words of cooperator Calviño-Acevedo, "practically all of us, we worked for the organization like normal employees," growing "within the organization" to the point "we'd be given a drug point." One way to advance within La Rompe was by being close to the "boss," Vázquez-Carrasquillo. Another way was by "killing people." And with these extra structural features, the evidence here far surpasses what Boyle requires for a RICO enterprise.

         Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora resist this conclusion on several grounds. The government sees no merit in any of them. Neither do we.

         Despite conceding in their appellate briefs that La Rompe was indeed a "drug trafficking organization" (emphasis ours), the trio argues that La Rompe was not an enterprise because (in their telling) the housing-project crews were "independen[t]" entities that did not "coordinat[e]" with each other. The evidence cuts against them, however. According to the record, while there were "different crews," La Rompe "controlled" the housing-project drug points - with "one same boss" (Vázquez-Carrasquillo) at the top. And everyone in the organization - from the supreme leader and his second-in-command, to the housing-project leaders, to the drug-point owners, to the low-level employees - were La Rompe members who (among other things) had to follow the organization's rules or else (with the "or else" ranging all the way from a beating, to death). Unsurprisingly then, La Rompe members often worked together, regardless of crew affiliation. One example is that La Rompe frequently "call[ed] in several enforcers from different groups" when taking over La ONU-controlled housing projects. Another example is that La Rompe sometimes used members from across the organization when carrying out killings. See generally Ramírez-Rivera, 800 F.3d at 19 (holding that, although La ONU came about as a "merging of smaller gangs that still operated their existing drug points," it qualified as a RICO enterprise because (among other things) the groups combined their efforts "to sell drugs, and later, to also stomp out the competition (specifically, La Rompe)").

          Not so fast, say Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora. They contend that crews from different housing projects did not "share . . . resources for purchase of narcotics or firearms," which, they believe, kiboshes any notion that La Rompe was a RICO enterprise. But they ignore Yanyoré-Pizarro's testimony that "La Rompe" committed robberies and carjackings to (among other things) "get the money to maintain drug points that we were acquiring little by little" and to "buy materials, buy weapons, buy ammo, bullets." And they ignore Calviño-Acevedo's testimony to the same effect.[5]

         In a somewhat related vein, Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora insist that La Rompe did not own or have "a cache of firearms." But the testimony shows that La Rompe had "pistols, rifles, AR-15s, AK-47s," which, when "not in the hands of enforcers," the organization stored in various apartments. Enforcers could own their own guns. But leaders could take them away if the enforcers did "something wrong." And enforcers also had to lend their guns to other La Rompe members when needed.

         Still trying to spin the gun evidence in their favor, the trio claims that La Rompe members would "fight over, steal and even kill each other to get firearms." But the episode they discuss involved a non-La Rompe member (known as "Colo") who sold guns to one La Rompe crew who was having an "internal war" with another crew (cooperator Calviño-Acevedo and his colleagues killed Colo, but they also killed a four-year-old boy with a stray bullet). Despite the conflict between the crews, Calviño-Acevedo testified that both crews were still part of La Rompe.

         Curiously, Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora claim that "La Rompe had no economic activity" or "financial organization" and derived no "economic or organizational benefit" from its members' drug dealing. This is curious because making money through drug selling was La Rompe's raison d'être. Whether drug sales directly benefited La Rompe is irrelevant, because the sales contributed to La Rompe's goal of enriching its members. And the drug dealing did benefit La Rompe organizationally, because one of La Rompe's main goals was "to control all of the housing projects of the metro area," which required tons of cash. Insofar as the trio means that La Rompe did not have a bank account or balance sheet, these formalities are not required for an association-in-fact enterprise. See Boyle, 556 U.S. at 948. Regardless, some La Rompe members did perform accounting functions - Rodríguez-Torres, for example, "took care of [Vázquez-Carrasquillo's] finances" and helped with Vigo-Aponte's "finances" too.

         Taking another tack, the trio claims that La Rompe did not pay Yanyoré-Pizarro and Calviño-Acevedo for their work as enforcers - which, they contend, shows no enterprise existed. But Yanyoré-Pizarro testified that some owners gave him "[c]ars, firearms," and sometimes "cash" for contract killings. And Calviño-Acevedo testified that "the organization" compensated him for killings by giving him "[c]ountless drug points."

         As a last gasp, Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora say that we should see the enterprise issue their way, because no evidence shows that La Rompe had "colors, initiation rites, and a formal hierarchy" or even "trained" its members "in the use of weapons and criminal conduct." This argument is beside the point. When they exist, such features certainly are relevant to the enterprise inquiry. But none is necessary. And the absence of any is not determinative. See Boyle, 556 U.S. at 948; see also United States v. Nascimento, 491 F.3d 25, 33 (1st Cir. 2007). As explained above, however, the record does show that La Rompe had these or similar features - La Rompe members identified themselves with a hand signal, had a rite of passage (killing to get a drug point), and a loose hierarchical structure. To this we add that when cooperator Calviño-Acevedo joined La Rompe, a La Rompe leader "explained to [him] how everything was," which disposes of their no-training suggestion.

         The bottom line is that the government presented sufficient evidence that La Rompe was an association-in-fact enterprise, despite what the trio thinks.

         (ii) effect on interstate or foreign commerce

         Prosecutors had to show La Rompe's interstate- or foreign-commerce effects. Insisting that "La Rompe did not operate outside of Puerto Rico" and that the "violent actions imputed to La Rompe occurred in Puerto Rico," Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora contend that "no evidence" shows that La Rompe impacted "interstate commerce" in a RICO sense. The government disagrees. And so do we.

         La Rompe need only have had a "de minimis" effect on interstate or foreign commerce, see Ramírez-Rivera, 800 F.3d at 19 - which is a fancy way of saying that "RICO requires no more than a slight effect upon interstate commerce," see United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989). And viewed in the proper light - afresh and in a way most pleasing to the prosecution - the record shows that La Rompe's many drug points ran daily (some on a 24-hour, 7-day-a-week basis), selling endless amounts of cocaine, heroin, and marijuana, to name just some of the narcotics dealt there. A government expert testified that cocaine and heroin are not produced in Puerto Rico, and so must be imported from South American countries like Colombia. He also testified that marijuana is not produced in Puerto Rico (except for the hydroponic form, which is "very limited"), and so must be imported from states like Arizona, California, and Texas. Cooperator Yanyoré-Pizarro testified that a La Rompe leader called "Pekeko" imported "marijuana pounds" from Texas. And cooperator Calviño-Acevedo testified that he supplied La Rompe with "pounds of marijuana" that he got "through the mail."

         All of this evidence shows that La Rompe's activities affected not only foreign commerce, but also interstate commerce. See Ramírez-Rivera, 800 F.3d at 19-20.

         (iii) participation

         Prosecutors also had to prove that the defendants had "some part in directing" La Rompe's affairs - i.e., that they participated in the "operation or management" of the enterprise itself. See id. at 20 (relying in part on Reves v. Ernst & Young, 507 U.S. 170, 179, 183 (1993), in assessing the evidentiary sufficiency of the government's RICO-conspiracy case); see also Reves, 507 U.S. at 184-85 (explaining that persons who participate in the operation or management of the enterprise's affairs will, of course, necessarily meet the RICO statute's requirement that he be "associated with" the enterprise). "An enterprise is 'operated' not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management." Reves, 507 U.S. at 184.

         Calling the government's participation evidence too skimpy, Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora variously argue that "there was no testimony" that they were "leader[s]" or that they "participated in decision making events" - in their view of things, they were "merely present" when key events went down. As the government notes, we must take all evidence and draw all reasonable inferences in the prosecution's favor - not theirs. And having done so, we see plenty of evidence pegging them as drug-point owners: Rodríguez-Torres owned a marijuana drug point in the La Rompe-controlled housing project of Covadonga; Rodríguez-Martínez owned a heroin drug point in the La Rompe-controlled housing project of Monte Hatillo; Guerrero-Castro owned a marijuana drug point in the La Rompe-controlled housing project of Los Laureles; and Sánchez-Mora owned a heroin drug point in the La Rompe-controlled housing project of Covadonga. Which is important because drug-point owners played a critical role in achieving La Rompe's goal of "control[ling] all of the housing projects of the metro area" to generate "more money" so La Rompe could "grow and have more power."

         As in Ramírez-Rivera, these facts easily satisfy the participation element. See 800 F.3d at 20 (holding that drug-point ownership met the operation-or-management test).[6]

         (iv) pattern of racketeering

         A pattern of racketeering activity requires at least two predicate acts of racketeering within ten years of each other. See 18 U.S.C. § 1961(5); United States v. Tavares, 844 F.3d 46, 54 (1st Cir. 2016). Predicate acts include murder and drug dealing, as well as aiding and abetting such acts. See Ramírez-Rivera, 800 F.3d at 20 (citing 18 U.S.C. § 1961(1)). The acts must be "related" and "amount to or pose a threat of continued criminal activity." H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). A RICO-conspiracy defendant, however, need not have personally committed - or even agreed to personally commit - the predicates. See Salinas, 522 U.S. at 63; United States v. Cianci, 378 F.3d 71, 90 (1st Cir. 2004). All the government need show is that the defendant agreed to facilitate a scheme in which a conspirator would commit at least two predicate acts, if the substantive crime occurred. See, e.g., Salinas, 522 U.S. at 64-65; Cianci, 378 F.3d at 90.

         Without citing to the record, Rodríguez-Torres, Guerrero-Castro, and Sánchez-Mora claim that cooperators offered "discredit[able]" testimony because they (the cooperators) "could not" provide dates and times for some events - and thus, the thesis runs, the government did not prove the pattern-of-racketeering element. But again, and as the government stresses, we must inspect the record in the light most flattering to the government's theory of the case, resolving all credibility issues and ...

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