United States v. Latorre-Cacho
874 F.3d 299
1st Cir.2017Background
- In 2014 a jury convicted Jose Latorre‑Cacho of conspiracy under 18 U.S.C. § 1962(d) (RICO conspiracy); he was acquitted on related drug and firearms conspiracy counts. He was sentenced to 120 months plus five years supervised release.
- § 1962(c) makes it unlawful to conduct an enterprise’s affairs through a pattern of "racketeering activity," and § 1961 enumerates predicate offenses (drugs, robbery, etc.) but does not list firearms as a racketeering act.
- During oral jury instructions the district court twice (and somewhat emphatically) told jurors that "firearms" constituted "racketeering activity." The written instructions did not contain that error.
- The government presented substantial evidence and argument about the enterprise’s and Latorre’s involvement with firearms; Latorre denied sufficient connection at trial and had requested special interrogatories identifying predicates.
- Latorre did not object to the oral misstatements at trial; he raised the error on appeal, so the panel reviewed for plain error and evaluated whether the erroneous oral statements likely affected substantial rights and the fairness/integrity of proceedings.
Issues
| Issue | Latorre's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the district court plainly erred by instructing that "firearms" are "racketeering activity" | Erroneous oral instruction allowed conviction on an invalid theory and likely affected the verdict | Error was isolated/fleeting, cured by other correct oral passages and the written instructions | Plain error found: the oral misstatements were clear, repeated, and likely misled the jury; conviction vacated |
| Whether other oral instructions and written charge cured the error | The other instructions did not reliably contradict the emphatic erroneous statements and could be read to cohere with them | The correct written instructions and other correct oral statements meant jurors would follow the written law | Court rejected cure argument: context made it reasonably probable jury followed the erroneous instruction |
| Whether the evidence was strong enough that any instructional error was harmless | Latorre stressed that firearms evidence and his testimony made the firearms instruction material; he requested predicate interrogatories | Government contended evidence and verdict pattern showed the error did not affect substantial rights | Court: evidence and prosecutor’s emphasis on firearms made the error material; no basis to call the error harmless |
| Whether plain‑error fourth prong (fairness/integrity) bars reversal | Latorre: error undermined fairness and integrity given nature, repetition, and centrality of firearms evidence | Government gave only cursory claim that fourth prong fails; did not develop record‑based rebuttal | Court: fourth prong satisfied—error seriously implicated fairness and integrity; vacated conviction |
Key Cases Cited
- Middleton v. McNeil, 541 U.S. 433 (2004) (due‑process requires proof beyond reasonable doubt; an instruction violates due process only if there is reasonable likelihood jury applied it unconstitutionally)
- Skilling v. United States, 561 U.S. 358 (2010) (general verdicts that may rest on an invalid theory can produce constitutional error)
- Yates v. United States, 354 U.S. 298 (1957) (discussing risk from alternative theories supporting a general verdict)
- Olano v. United States, 507 U.S. 725 (1993) (plain‑error framework and presumption jurors follow instructions)
- Francis v. Franklin, 471 U.S. 307 (1985) (reasonable juror seeks to make sense of potentially conflicting instructions)
- Pennue v. United States, 770 F.3d 985 (1st Cir. 2014) (oral slip of the tongue may be cured by immediate correct instruction and correct written charge)
- Delgado‑Marrero v. United States, 744 F.3d 167 (1st Cir. 2014) (context can render an instructional omission or error plain and prejudicial)