UNITED STATES OF AMERICA, Aрpellee, v. RAFAEL LEONER-AGUIRRE, a/k/a Tremendo, Defendant, Appellant.
No. 18-1333
United States Court of Appeals For the First Circuit
September 20, 2019
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before Lynch, Selya, and Barron, Circuit Judges.
Julia Pamela Heit for appellant.
Kunal Pasricha, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
LYNCH, Circuit Judge.
He 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 Salinas.
Further, 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
I.
We 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.
Around 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 promotiоns 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 murders.
Aguirre 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 his attacker.
The 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, cоnvicted him of assault with intent to kill.1
The 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 wаrned Henriquez, who avoided harm.
Aguirre 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.
In May 2017, a grand jury indicted Aguirre for RICO conspiracy in violation of
II.
We 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 raises.
A. Jury Instructions for RICO Conspiracy
Before addressing Aguirre‘s сhallenges, 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.
We 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 govеrnment opposed this motion as inconsistent with RICO conspiracy law, and the district court denied the request.
On 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.
On 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.” Ramírez-Rivera stated that for a defendant to be convicted of RICO conspiracy, the government must prove, among other elements,
On the 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 of RICO conspiracy. The district court thеn stated:
I think I have to conclude through inadvertence or mistake that the First Circuit in 2015 misstated what the relevant elements were and that, again, because it has been overruled by Salinas, the government need not prove that the defendant agreed to commit or, in fact, committed two predicate offenses, and my jury instructions and the course of trial will reflect that.
At the close of trial, the district court instructed the jury that “[t]he government is not required to prove either that the defendant personally agreed to commit two racketeering acts or that he actually cоmmitted two such acts.”
The district court then properly instructed that the indictment alleged these predicate acts: “murder, assault with intent to commit murder, armed assault with intent to murder[,] conspiracy to commit murder, armed robbery, armed assault with intent to rob, and criminal offenses involving trafficking in narcotics,”3 and explained the elements of some of these offenses. The district court also instructed that the jury “must unanimously agree on which type or types of racketeering activity that the defendant agreed the enterprise would conduct -- for example, at least two acts of murder, at least two acts of robbery, or at least two acts of narcotics trafficking, or all of them, or any combination of them.” (Emphasis added). At the close of the instructions, Aguirre preserved his objection to the denial of the Ramírez-Rivera instruction.
Aguirre argues on appeal that the district court erred when it refused to require the jury to “set forth the predicate
Aguirre makes a separate argument that the government‘s decision to prove his agreement to a RICO conspiracy by introducing evidence that he and his co-conspirators in fact committed multiple acts of racketeering triggered a “сoncomitant obligation to charge the jury to make a finding concerning which predicate acts it found that Aguirre or others committed beyond a reasonable doubt.” Aguirre argues that this instruction was “necessary” to his defense strategy, which focused on arguing that the crimes he and his co-conspirators committed were what he calls “lesser included” offenses, and not predicate acts that constitute racketeering activity under the statute. Without an express jury finding on which predicate acts were committed, Aguirre argues there is no way to know if the jury found that the crimes he and his co-conspirators committed were predicate acts or “lesser included” offenses. Aguirre did not submit any proposed jury instruction along these lines at trial, so our review of this argument is for plain error. We find no error in the district court‘s instructions.
Aguirre‘s challenges are based on a misunderstanding of RICO conspiracy law. The RICO statute‘s conspiracy provision makes it “unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.”
The government‘s burden in proving a violation of the conspiracy offense,
We turn to Aguirre‘s argument that the district court was “obliged to follow” Ramírez-Rivera. The district court correctly noted that Ramírez-Rivera quotes the Shifman, pre-Salinas requirement for RICO conspiracy that the government prove that the defendant committed or agreed to commit the predicate acts. Ramírez-Rivera, 800 F.3d at 18. Shifman was decided four months before Salinas. We agree with the district court that Salinas controls, and not the language from Ramírez-Rivera.5 Our recent decision in United States v. Rivera-Carrasquillo, 933 F.3d 33 (1st Cir. 2019), originally quoted the same pre-Salinas requirement as Ramírez-Rivera. But that error was eliminated when the court, within a few days, issued an errata sheet removing this language. Id. at 47. So, Aguirre‘s requested instruction was contrary to Salinas, and the district court quite properly rejected it.
As to Aguirre‘s separate argument that, given the government‘s method of proof, the district court should have required the jury to make an affirmative finding as to the predicate acts he or his co-conspirators in fact committed, we see no error in what the district court did because this request is not required by Salinas. The government‘s decision to prove the fact of Aguirre‘s conspiracy agreement in part with evidence that he and his co-conspirators in fact intended to and did commit at least two of the types of racketeering activity does not change the fact that conviction of RICO conspiracy does not require proof that the defendant himself, or his co-conspirators, in fact committed the racketeering activity. Aguirre‘s argument about “lesser included” offenses is similarly misguided because it does not matter whether he committed an act of racketeering or a “lesser included” offense,6 so long as what he conspired to were predicate acts, such as “any act or threat involving murder.”
For these reasons, there was no error.7 We add that there was, in any event, more
B. Alleged Withdrawal from the Conspiracy
Aguirre next argues that he withdrew from the conspiracy upon his arrest, and so no post-arrest predicate act could be attributed to him. To preserve a challenge to the sufficiency of the evidence, the defendant must “mov[e] for an acquittal at the close of the defense‘s evidence at trial.” United States v. Van Horn, 277 F.3d 48, 54 (1st Cir. 2002). Aguirre renewed his motion for judgment of acquittal at the close of evidence, so this challenge is preserved.
He further argues, for the first time on appeal, that placing the burden on a defendant to prove withdrawal from a conspiracy, as the district court instructed, is “constitutionally deficient.”8 Review of that issue is for plain error.9
As to Aguirre‘s first challenge, we review preserved challenges to the sufficiency of the evidence by asking “whether, taking the evidence in the light most favorable to the jury‘s verdict, a rational jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Hicks, 575 F.3d 130, 139 (1st Cir. 2009). For purposes of this withdrawal argument, Aguirre does not dispute that he joined the conspiracy. The law is clear that “a defendant‘s membership in the ongoing unlawful scheme continues until he withdraws.” Smith, 568 U.S. at 107. The burdеn is on a defendant to prove the affirmative defense of withdrawal. Id. at 112. To withdraw, “a conspirator must act affirmatively either to defeat or disavow the purposes of the conspiracy.” United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per curiam).
We flatly reject as a matter of law the argument that Aguirre‘s arrest and imprisonment necessarily constituted his withdrawal from the conspiracy. Imprisonment alone does not satisfy a defendant‘s burden of proving withdrawal. See, e.g., United States v. Pizarro-Berríos, 448 F.3d 1, 10 (1st Cir. 2006) (noting that “the fact that [defendant] was in jail does not in and of itself mean that he withdrew from the scheme“).
There was ample evidence for a jury to find, as it did, that Aguirre not only remained in the conspiracy, but also actively participated in it following his arrest and imprisonment. There was testimony that Aguirre stated that the gang was his family and he would never leave it, and there was other evidence that he remained the leader of the Enfermos while in prison.
At best, Aguirre‘s evidence tended to show a diminution in his leading and communicating with the clique, and that there were rumors that he “wanted out.” Even “[m]ere cessation of activity in furtherance of the conspiracy does not constitute withdrawal,” Ciresi, 697 F.3d at 27 (quoting Juodakis, 834 F.2d at 1102), and the evidence here does not show even cessation.
Aguirre‘s second challenge, which he raises for the first time on appeal, is that placing the burden on a defendant to show withdrawal is “constitutionally deficient” and, further, that the government should be required to advise him of the needed steps to prove withdrawal.
At oral argument, Aguirre argued for the first time that the district court erred when it instructed the jury that the defendant had the burden to show he withdrew from the charged conspiracy. Aguirre did not cite a single сase in support of his argument. Putting waiver aside, we see no error, plain or otherwise.
As to his jury instruction challenge, Aguirre doubly waived this argument because it was not made at trial and also because “arguments not raised in a party‘s initial brief and instead raised for the first time at oral argument are considered waived.” Pizarro-Berríos, 448 F.3d at 5. Aguirre‘s jury instruction challenge is, in any event, meritless, as is his more general constitutional challenge to the law on withdrawal from a conspiracy. Our review of both arguments is for plain error because Aguirre did not raise either argument at trial.
When instructing the jury on what сonstitutes withdrawal from a conspiracy, the district court stated that “[i]t is the defendant‘s burden to show that he has withdrawn from the conspiracy.” The district court then instructed that to show withdrawal:
[A] conspirator must act affirmatively to either defeat or disavow the purposes of the conspiracy. Typically, that requires either a full confession to authorities or a communication by the accused to his co-conspirators that he has abandoned the enterprise and its goals. A defendant cannot withdraw simply by ceasing activity in furtherance of the conspiracy or by being prevented from continuing to participate in the conspiracy.10
In Smith, the Supreme Court held that “[a]llocating to a defendant the burden of proving withdrawal does not violate the Due Process Clause” unless it negates an element of the crime. Smith, 568 U.S. at 110. Further, this circuit has repeatedly stated that a full confession or communication of abandonment to one‘s co-conspirators are typical ways for a defendant to show withdrawal, as the district court correctly instructed. See, e.g., Juodakis, 834 F.2d at 1102. For these reasons, we reject Aguirre‘s challenges.11
1. Allegedly False Testimony
Aguirre next argues that the government “relied on inherently misleading testimony” to convict him. Aguirre did not raise this argument in the trial court, so our review is for plain error. Aguirre‘s challenge is meritless, and we find no error, much less plain error.
Prosecutors must correct testimony that they know to be false. Napue v. Illinois, 360 U.S. 264, 269 (1959). Here, defense counsel asked an FBI agent on cross-examination about who originated the plot to kill Henriquez. The agent replied, “I wasn‘t sure if it was Big Crazy12 or if the information we had was coming out of the prison concerning [Aguirre] making that order. I thought we had developed information that [Aguirre] had issued the order from prison.” At the defense‘s request, the district cоurt struck this answer from the record and instructed the jury to disregard it. The agent‘s later testimony on redirect and on recross-examination made clear that it was his belief that Aguirre gave the order to kill Henriquez and this belief came from a recording in which Menjivar stated that Aguirre gave the order to kill Henriquez.
There was no Napue error, plain or otherwise, because the agent‘s first answer, itself not false, was stricken, and his admitted testimony was not false but accurately recounted the evidence.
2. Alleged Petrozziello Error
Aguirre next argues that the admission of a recording, in which Menjivar stated that Aguirre gave the order to kill Henriquez, was error because the recording was “impermissible hearsay.” The district court provisionally admitted this recording as a co-conspirator statement under
The district court did not err. Statements made by the defendant‘s co-conspirators during and in furtherance of the conspiracy are not hearsay.
3. Alleged Rule 403 Error
Aguirre next argues that the district court violated Rule 403 when it admitted evidence documenting two MS-13 meetings and testimony about six murders committed by MS-13 members, all of which happened after his arrest. Aguirre objected at trial on several different
A district court may exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice.
Aguirre also argues that the testimony of Irwin Martinez violated Rule 403. But at trial, the district court struck Martinez‘s testimony frоm the record and directed the jury to disregard it. “When a limiting instruction adequately addresses any prejudice that might arise from improperly admitted evidence and the record lacks evidence that the jury disregarded the instruction, the evidentiary error is harmless.” United States v. Mangual-Santiago, 562 F.3d 411, 426 (1st Cir. 2009). Aguirre points to no evidence that the jury disregarded this instruction, so we find no error.
D. Double Jeopardy
Aguirre‘s final challenge is that the prosecution violated his right against double jeopardy because a state court tried him for what he argues was the same crime. Gamble v. United States, 139 S. Ct. 1960, 1964 (2019), forecloses this argument.14
Aguirre was convicted fair and square. Affirmed.