958 F.3d 81
1st Cir.2020Background
- Perez was indicted in June 2010 for participating in a large drug-distribution conspiracy (2006–2010) and four counts of possession with intent to distribute in a protected area; he was arrested in December 2014 and tried in district court.
- Government evidence tied Perez to La ONU as a drug-point owner (ledgers, meetings on video, witness testimony) and showed members used violence and firearms to enforce the conspiracy.
- Perez moved in limine to exclude video of two co-conspirators' murders; the court barred the video but allowed testimony about the murders.
- Perez testified denying membership/ownership in La ONU but admitted prior drug involvement and friendships with La ONU leaders; jury convicted on all counts.
- On appeal Perez argued (1) post-2008 conspiracy evidence should have been excluded as he had withdrawn by end of 2008, (2) murder and violent-act evidence violated Rules 404(b)/403, and (3) a 4.5-year delay between indictment and arrest violated his Sixth Amendment speedy-trial rights.
Issues
| Issue | Perez's Argument | Government's Argument | Held |
|---|---|---|---|
| Admission of post-2008 conspiracy evidence / withdrawal | Perez withdrew by end of 2008 (moved to NY), so later conduct was irrelevant/prejudicial and should have been excluded or limited | No evidence of an affirmative, communicated withdrawal; post-2008 evidence was relevant to an ongoing conspiracy | Court: No plain error. Cessation of activity ≠ withdrawal; record didn’t show an affirmative abandonment so admission was permissible |
| Admission of murder-related testimony (Rule 404(b)) | Testimony about Shaggy and Papito’s murders was impermissible other-act evidence | Testimony was direct proof of the conspiracy’s means (internal discipline/violence), not 404(b) other-act evidence | Court: No plain error. A reasonable dispute existed that the murders were direct evidence of the charged conspiracy |
| Admission of murder-related testimony (Rule 403) | Testimony was unfairly prejudicial and likely to inflame the jury | Testimony was non-graphic, limited in detail, and probative of the conspiracy’s violent methods | Court: No plain error. Testimony lacked graphic detail and probative value outweighed prejudice |
| Speedy-trial (6th Amendment) — 4.5-year delay | Delay between indictment and arrest violated Barker factors and required dismissal | Delay was not shown to be deliberate; Perez failed to assert the right and alleged prejudice was speculative/insufficient | Court: No plain error. Although delay was lengthy, Perez’s failure to assert the right and lack of specific prejudice weighed against relief |
Key Cases Cited
- United States v. Ciresi, 697 F.3d 19 (1st Cir. 2012) (mere cessation of activity does not establish withdrawal from conspiracy)
- United States v. Juodakis, 834 F.2d 1099 (1st Cir. 1987) (withdrawal requires affirmative communication to co-conspirators or government)
- United States v. George, 761 F.3d 42 (1st Cir. 2014) (distinguishing inaction from withdrawal; admission to government or notice to co-conspirators ordinarily required)
- United States v. Ofray-Campos, 534 F.3d 1 (1st Cir. 2008) (uncharged violent acts by co-conspirator may be admissible as direct proof of the conspiracy’s means)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (four-factor speedy-trial balancing test)
- Doggett v. United States, 505 U.S. 647 (U.S. 1992) (length of delay can be presumptively prejudicial and government negligence weighs differently than deliberate delay)