FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District
Pamela Heit for appellant.
Pasricha, Assistant United States Attorney, with whom Andrew
E. Lelling, United States Attorney, was on brief, for
Lynch, Selya, and Barron, Circuit Judges.
two-week trial, a jury in 2017 convicted Rafael
Leoner-Aguirre ("Aguirre"), a leader of the MS-13
gang in Massachusetts, of RICO conspiracy, 18 U.S.C. §
1962(d). The predicate acts charged involved murder, robbery,
and drug dealing. The district court sentenced Aguirre to 228
months' imprisonment and three years of supervised
appeals from his conviction. Aguirre first argues that the
district court erred when it instructed the jury on the
requirements to convict him for RICO conspiracy. He argues
that the district court erred by not following a statement of
the law contained in United States v.
Ramírez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015).
We hold that the district court was correct to reject this
instruction under Salinas v. United States, 522 U.S.
52 (1997), and United States v. Cianci, 378 F.3d 71
(1st Cir. 2004). Aguirre more generally challenges the jury
instructions for failing to require the jury to make an
affirmative finding, in the verdict, as to which predicate
acts he and his co-conspirators in fact committed. We reject
this argument as well for being inconsistent with
he argues that the evidence did not negate his affirmative
defense that he withdrew from the conspiracy when he was
imprisoned. Though he did not so object at trial, he now
argues that the district court erred when it instructed the
jury on the requirements of a withdrawal defense. Again, case
law from the Supreme Court, Smith v. United States,
568 U.S. 106 (2013), and this circuit forecloses his
argument. Finally, he makes several meritless challenges to
the admission of certain testimony. We affirm his conviction.
state the facts in the light most favorable to the jury's
verdict. United States v. Ciresi, 697 F.3d 19, 23
(1st Cir. 2012). The indictment arose from the
defendant's activities as a high-ranking member of the
Mara Salvatrucha gang, MS-13. MS-13, based in El Salvador and
also operating in the United States, is composed of subgroups
called "cliques." The "Enfermos" clique
operates in El Salvador and Massachusetts.
2012, the Enfermos paid for Aguirre to come to the United
States. Aguirre arrived in Michigan, and while he lived
there, he created promotional videos for MS-13 to attract new
members that touted the gang's mission of killing rivals.
In 2014, Aguirre went to Massachusetts with the goal of
enlarging the clique, and became its highest-ranking member.
He was the "palabrero, " the local leader of the
Enfermos, and began overseeing the activities of Enfermos
members, including by taking control of promotions within the
clique, recruiting new members, and disciplining members who
broke clique rules. Aguirre also ordered clique members to
commit a number of crimes, including robberies, beatings, and
also directly participated in three attempted murders, either
personally or by ordering the murder be committed by other
MS-13 members. The first was on April 6, 2014, and began when
Aguirre recognized two rival gang members walking toward him
and his girlfriend. Aguirre approached the men and attacked
one of them with a machete. The victim defended himself with
a box-opening knife. Aguirre struck the victim in the arm and
the head with the machete and said, "La Mara
Salvatrucha." The victim was hospitalized and lived. He
testified at trial about the attack and identified Aguirre as
second murder attempt took place on April 16, 2014, after
Aguirre learned that rivals had attacked two Enfermos
members. Seeking revenge, Aguirre and three other Enfermos
members set out to find the rivals, and spotted Javier
Servellon and his friend. A fight ensued; Servellon tried to
defend his friend; Aguirre aimed a gun at Servellon and shot
him as he tried to run away. Again, the victim was
hospitalized and survived. Aguirre was arrested on state
charges and a jury, in 2015, convicted him of assault with
intent to kill.
third attempt was while Aguirre was in state prison on his
assault conviction. He remained the leader of the Enfermos
while in prison. He ordered the Enfermos to kill Christian
Henriquez, a fellow Enfermos member, suspected of betraying
the clique. Daniel Menjivar, an Enfermos member, was recorded
as saying that Aguirre gave the order to kill Henriquez.
Henriquez also testified at trial that Menjivar had told him
that Aguirre gave "the green light" for Henriquez
to be killed. Other recordings captured Enfermos members
discussing how to kill Henriquez. By April 2015, law
enforcement had uncovered the plan and warned Henriquez, who
also personally committed multiple armed robberies using a
machete and a gun from March 2014 until his arrest in April
2014. Further, an Enfermos member also gave Aguirre money
from drug sales. Aguirre used the money to buy weapons and
send money back to El Salvador.
2017, a grand jury indicted Aguirre for RICO conspiracy in
violation of 18 U.S.C. § 1962(d). Specifically, the
indictment charged that Aguirre was "employed by and
associated with MS-13, an enterprise which was engaged in,
and the activities of which affected, interstate and foreign
commerce." It charged that he "did knowingly
conspire with [his co-defendants and other persons] to
violate [18 U.S.C. § 1962(c)], that is, to conduct and
participate, directly and indirectly, in the conduct of the
affairs of the MS-13 enterprise through a pattern of
racketeering activity." The indictment further charged
"that each defendant agreed that a conspirator would
commit at least two acts of racketeering activity in the
conduct of the affairs of the MS-13 enterprise." The
indictment alleged that the pattern of racketeering activity
included "multiple offenses involving trafficking in
narcotics, including . . . marijuana, " "multiple
acts involving murder, " and "multiple acts
involving robbery." The indictment named Aguirre as a
participant in three attempted murders and alleged that other
MS-13 members committed six murders. He was charged with RICO
conspiracy; not substantive RICO offenses. As said, he was
convicted of the one RICO conspiracy count charged.
first address Aguirre's challenges to the jury
instructions on the elements of RICO conspiracy given at
trial. Then we review his arguments about his defense of
withdrawal from the conspiracy and the standards for showing
withdrawal. Finally, we address the evidentiary issues he
Jury Instructions for RICO Conspiracy
addressing Aguirre's challenges, we first recount the
procedural history of his requests to the district court that
the jury be instructed to make certain findings in order to
convict him of RICO conspiracy. The nature of his request has
evolved over time, and his briefing is unclear as to which
request is at issue.
begin with his first motion, made before his trial began, in
which Aguirre requested "that the issue of whether he
conspired to commit or further the crime of attempted murder
not be considered at sentencing unless submitted to the jury
as a RICO predicate offense, and absent a jury's
affirmative finding using a reasonable doubt standard."
The government opposed this motion as inconsistent with RICO
conspiracy law, and the district court denied the request.
October 27, 2017, at the final pretrial conference,
Aguirre raised the question of what a jury must find to
convict for RICO conspiracy. His counsel asked, "how
exactly [will] we know what the jury found with respect
to" the defense's arguments that the crimes Aguirre
committed were not predicate acts "if all they're
asked to do is come back and say, yeah, there's two
predicate offenses, and we don't know which ones they
are, we don't have to specify whether they're the
attempted murders or the armed robberies or anything
else." The government again opposed Aguirre's
arguments, and the district court stated that it would not
make a final ruling on jury instructions yet.
November 17, 2017, the district court held the charge
conference. The next day, Aguirre filed a supplemental
proposed jury instruction that requested "an instruction
that explicitly follows the elements of a RICO conspiracy
charge as stated in United States v.
Ramírez-Rivera stated that for a defendant to
be convicted of RICO conspiracy, the government must prove,
among other elements, that he "participated in the
conduct of the affairs of the enterprise . . . through a
pattern of racketeering activity by agreeing to commit, or in
fact committing, two or more predicate offenses."
Ramírez-Rivera, 800 F.3d at 18. In so
stating, Ramírez-Rivera relied on United
States v. Shifman, 124 F.3d 31, 35 (1st Cir. 1997).
Ramírez-Rivera, 800 F.3d at 18. But
Shifman had been abrogated in this regard by
Salinas. See Salinas, 522 U.S. at 65. In
its brief to the Ramírez-Rivera panel, the
government never argued that Shifman had been
abrogated by Salinas. It also failed to respond to
the defendants' contention that the First Circuit
requires "that [defendants] personally agree to
commit two or more racketeering acts, " which cited
pre-Salinas case law for support.
first day of trial, the district court addressed
Aguirre's request in the supplement. The district court
noted that Ramírez-Rivera "appears to
conflict with [Salinas]" on the elements ...