APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon. José Antonio
Fusté, U.S. District Judge]
Lizarríbar-Masini for appellant Víctor M.
Theodore M. Lothstein, with whom Lothstein Guerriero, PLLC,
was on brief, for appellant Tarsis Guillermo
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.
Torruella, Thompson, and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
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.
law enforcement took La Rompe down, La Rompe members
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.
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.We address these subjects in that order,
filling in the details (like which defendant makes which
claims) as we move along. But for anyone wishing to know our
ending up front, when all is said and done we
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
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
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
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.
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-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
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 " a
purpose,  relationships among those associated with the
enterprise, and  longevity sufficient to permit these
associates to pursue the enterprise's
purpose." Id. at 946.
 - "purpose" - the group must share the
"common purpose of engaging in a course of
conduct." Id. As to  -
"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  -
"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).
against these legal standards, the record - visualized most
favorably to the government - adequately shows that La Rompe
operated as an association-in-fact enterprise.
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
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.
Guerrero-Castro, and Sánchez-Mora resist this
conclusion on several grounds. The government sees no merit
in any of them. Neither do we.
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)").
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
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.
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.
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.
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."
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.
bottom line is that the government presented sufficient
evidence that La Rompe was an association-in-fact enterprise,
despite what the trio thinks.
effect on interstate or foreign commerce
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.
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."
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.
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.
the government's participation evidence too skimpy,
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
Ramírez-Rivera, these facts easily satisfy
the participation element. See 800 F.3d at 20
(holding that drug-point ownership met the
pattern of racketeering
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.
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 ...