United States v. Velazquez-Fontanez
6f4th205
| 1st Cir. | 2021Background
- Federal indictment charged 105 individuals in Puerto Rico for participation in La Rompe ONU, a violent drug-trafficking organization; three defendants (Velazquez-Fontanez, Resto-Figueroa, Cotto-Andino) were tried together and convicted on all counts.
- Counts included RICO conspiracy (18 U.S.C. § 1962(d)), drug conspiracy to distribute within 1,000 feet of public housing (21 U.S.C. §§ 841, 846, 860), drive-by murder in furtherance of a major drug offense (18 U.S.C. § 36(b)(2)(A)), and related § 924(c) firearms counts.
- Government relied heavily on cooperating-witness testimony tying each defendant to La Rompe’s drug points, weapons storage, killings, and logistics (including a police officer supplying guns).
- Velazquez and Resto were implicated in specific drive-by shootings; Velazquez also was a municipal police officer alleged to have provided firearms and confirmation to shooters.
- Cotto’s trial featured contested evidence that he committed two uncharged murders decades earlier; the district court admitted the prosecution’s uncharged-murder testimony but excluded certain defense efforts to rebut that allegation and declined to enforce a subpoena to obtain booking/alias records.
- On appeal the First Circuit affirmed Velazquez’s and Resto’s convictions, vacated Cotto’s convictions, and remanded because the court found the district court abused its discretion by denying enforcement of a subpoena that could have produced admissible, exculpatory evidence material to rebut an admitted uncharged-murder allegation.
Issues
| Issue | Government's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for RICO conspiracy (§1962(d)) | Cooperating witnesses, leadership/control of drug points, weapons, and killings showed each defendant knowingly joined La Rompe and agreed that multiple racketeering acts would occur. | Defendants argued evidence was insufficient, or showed only limited/local involvement or lawful activity (e.g., construction work, police duties). | Affirmed for all three: reasonable juries could find each knowingly agreed that at least two racketeering acts would be committed. |
| Sufficiency for drug conspiracy near public housing (21 U.S.C. §§841,846,860) | Same witness evidence tied defendants to drug distribution at public-housing drug points. | Defendants claimed they did not knowingly join a drug-distribution conspiracy or merely acted as hired help. | Affirmed: evidence supported knowing participation in drug conspiracy. |
| Drive-by murder liability under §36(b)(2)(A) and related aiding-and-abetting | Testimony placed Velazquez and Resto in roles that directed, participated in, or aided shootings committed to further La Rompe’s aims. | Defendants argued lack of requisite enterprise motive, lack of connection to planning, or that acts were personal (revenge). | Affirmed: juries could infer aiding/abetting and that shootings furthered drug enterprise. |
| §924(c) conviction relying on §36(b)(2)(A) as predicate after Davis | §36(b)(2)(A) involves intentional firing of a weapon and satisfies the §924(c)(3)(A) elements clause (use of violent force and requisite intent). | Velazquez argued Davis invalidates residual-predicate theory and §36(b)(2)(A) does not meet the elements clause. | Affirmed: §36(b)(2)(A) categorically satisfies the elements clause; §924(c) conviction stands. |
| Exclusion of defense rebuttal evidence and refusal to enforce subpoena (Cotto) | Trial court admitted prosecutor’s uncharged-murder evidence as relevant background and limited prejudice via instructions; excluded defense proof because defendant failed to show foundation that two identically nicknamed persons were the same. | Cotto argued subpoenaed booking/alias records were reasonably calculated to establish the alleged victim was alive later and thus rebut the uncharged-murder allegation; refusal to enforce subpoena violated compulsory-process rights and unfairly prevented meaningful rebuttal. | Vacated Cotto’s convictions and remanded: district court abused discretion by denying enforcement of a subpoena that could have produced admissible ministerial records material to rebut an admitted, highly prejudicial uncharged-murder allegation; error was not harmless. |
| Flight, cell-phone/gun evidence, read-back requests, transcript/mistrial & jury instructions | Government argued flight, multiple phones, and gun possession were circumstantial evidence of consciousness of guilt and typical narcotics indicia; transcript error was inadvertent and remedied; jury instructions and responses were adequate. | Defendants objected to flight inference, admission of phone/gun testimony, denial of read-backs, transcript error causing need for mistrial, and certain instruction formulations. | Court upheld district rulings: flight and phone/gun testimony admissible; denial of read-back not an abuse; transcript error did not warrant mistrial given curative instruction and lack of prosecutorial misconduct; instructional challenges were unpreserved or harmless given overwhelming proof. |
Key Cases Cited
- Salinas v. United States, 522 U.S. 52 (1997) (defendant need only agree that at least two racketeering acts will be committed for RICO conspiracy liability)
- Millán-Machuca v. United States, 991 F.3d 7 (1st Cir. 2021) (discussing RICO-conspiracy proof standard and Salinas)
- Leoner-Aguirre v. United States, 939 F.3d 310 (1st Cir. 2019) (RICO-conspiracy elements discussion)
- Davis v. United States, 139 S. Ct. 2319 (2019) (residual clause of §924(c) is unconstitutionally vague)
- Johnson v. United States, 559 U.S. 133 (2010) (definition of "physical force" for categorical analysis)
- Borden v. United States, 141 S. Ct. 1817 (2021) (mens rea and purposeful force considerations under elements clauses)
- Chapman v. California, 386 U.S. 18 (1967) (harmless beyond a reasonable doubt standard for constitutional errors)
- Kotteakos v. United States, 328 U.S. 750 (1946) (harmless-error principles for non-structural errors)
- Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (Compulsory Process Clause and defendant's right to present evidence)
- United States v. Rosario-Pérez, 957 F.3d 277 (1st Cir. 2020) (vacatur where court admitted an uncharged-murder allegation but excluded plausible exculpatory evidence)