UNITED STATES v. CARLOS VELAZQUEZ-FONTANEZ, RUBEN COTTO-ANDINO, JOSE D. RESTO-FIGUEROA
Nos. 18-1188, 19-1010, 18-1215, 18-2265
United States Court of Appeals, First Circuit
July 27, 2021
Before: Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
For the First Circuit
Nos. 18-1188, 19-1010
UNITED STATES,
Appellee,
v.
CARLOS VELAZQUEZ-FONTANEZ,
Defendant, Appellant.
No. 18-1215
UNITED STATES,
Appellee,
v.
RUBEN COTTO-ANDINO, a/k/a Ruben El Negro,
Defendant, Appellant.
No. 18-2265
UNITED STATES,
Appellee,
v.
JOSE D. RESTO-FIGUEROA, a/k/a Tego,
Defendant, Appellant.
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Maria Soledad Ramirez-Becerra, with whom Maria Soledad
Ramirez Becerra Law Office was on brief, for appellant Carlos
Velazquez-Fontanez.
José Luis Novas Debién for appellant Ruben Cotto-Andino.
Michael R. Hasse for appellant Jose D. Resto-Figueroa.
Michael A. Rotker, Attorney, Criminal Division, Appellate
Section, with whom W. Stephen Muldrow, United States Attorney,
Victor O. Acevedo-Hernandez, Assistant United States Attorney,
Alberto R. Lopez-Rocafort, Assistant United States Attorney, and
Brian C. Rabbitt, Acting Assistant Attorney General, Criminal
Division, were on brief, for appellee.
July 27, 2021
District of Puerto Rico returned an indictment charging
105 individuals with various criminal offenses connected to La
Rompe ONU, a drug trafficking organization that operated from 2007
until at least July 17, 2015, in San Juan, Puerto Rico. Following
a trial, three of the indicted defendants -- Carlos
Velazquez-Fontanez, Jose D. Resto-Figueroa, and Ruben Cotto-Andino
-- were convicted on every count charged against them. On appeal,
they challenge their convictions on several grounds. For the
reasons that follow, we affirm Velazquez-Fontanez‘s and
Resto-Figueroa‘s convictions; we vacate Cotto-Andino‘s
convictions; and we remand for further proceedings consistent with
this opinion.
I. BACKGROUND
We begin with the essential background facts. In 2004,
drug traffickers in San Juan, Puerto Rico, formed “La Organización
de Narcotraficantes Unidos” (“La ONU“), a cartel designed to reduce
conflicts between traffickers and to avoid police scrutiny. By
2008, La ONU had splintered into two rival gangs, La ONU and La
Rompe ONU (“La Rompe“). The two groups have since waged war over
control of San Juan‘s most profitable drug distribution territory.
At drug distribution “points” under its control, La Rompe sold
marijuana, cocaine, crack cocaine, heroin, and prescription drugs.
members committed robberies, carjackings, and contract killings.
La Rompe‘s leaders decided who could sell drugs in its
territory, ordered lower-ranking members to commit robberies or
killings, and authorized La Rompe members to kill fellow members
when intra-gang disputes arose. Members rose up La Rompe‘s ranks
by hunting down and killing members of La ONU.
The indictment claimed that Cotto-Andino,
Velazquez-Fontanez, and Resto-Figueroa were members of La Rompe.
It charged them with racketeering conspiracy in violation of
several murders, and with conspiracy to possess with intent to
distribute cocaine, crack cocaine, heroin, and marijuana within
1,000 feet of a public-housing facility in violation of
Velazquez-Fontanez with drive-by-shooting murder in furtherance of
a major drug offense in violation of
with using a firearm during and in relation to a crime of violence
in violation of
connection with a separate incident, the indictment charged
Resto-Figueroa with drive-by-shooting murder in furtherance of a
major drug offense in violation of
with using a firearm during and in relation to a crime of violence
in violation of
were tried together. The jury returned guilty verdicts on every
count against each defendant.1 These timely appeals followed.
II. DISCUSSION
We address defendants’ appellate challenges to their
convictions in the following order: (A) the defendants’
sufficiency of the evidence arguments; (B) Cotto-Andino‘s
evidentiary objections; (C) Resto-Figueroa‘s mistrial motion;
(D) Resto-Figueroa‘s instructional error claims; and
(E) Velazquez-Fontanez‘s and Resto-Figueroa‘s challenges to the
district court‘s responses to questions asked by the jury during
its deliberations.
A. Sufficiency of the Evidence
Each defendant timely moved pursuant to
Reviewing de novo the denial of these motions, see United States
v. Millán-Machuca, 991 F.3d 7, 17 (1st Cir. 2021), we view the
trial record in the light most favorable to the verdict and draw
all reasonable inferences in the verdict‘s favor, see United States
v. Meléndez-González, 892 F.3d 9, 17 (1st Cir. 2018). Our task is
to determine “whether ‘any rational trier of fact could have found
charged with and convicted of an additional section 924(c) count,
but those convictions were subsequently dismissed.
United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) (quoting
United States v. Henderson, 320 F.3d 92, 102 (1st Cir. 2003)).
Unlike his two co-defendants, Cotto-Andino challenges
several of the district court‘s evidentiary rulings. When we
review those rulings in a later section, we adopt a “balanced”
approach, “objectively view[ing] the evidence of record.” United
States v. Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015)
(quoting United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir.
2015)). For now, though, we present the facts relevant to
Cotto-Andino‘s sufficiency challenge in the light most favorable
to the verdict.
1. 18 U.S.C. § 1962(d)
The Racketeer Influenced and Corrupt Organizations Act
makes it “unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise‘s affairs
through a pattern of racketeering activity.”
The elements of a substantive RICO offense consist of “(1) the
conduct (2) of an enterprise (3) through a pattern of racketeering
activity.” Salinas v. United States, 522 U.S. 52, 62 (1997). RICO
also makes it “unlawful for any person to conspire to” commit a
substantive RICO offense.
knowingly joined the conspiracy, agreeing with one or more
coconspirators ‘to further [the] endeavor, which, if completed,
would satisfy all the elements of a substantive [RICO] offense.‘”
United States v. Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019)
(alterations in original) (quoting Salinas, 522 U.S. at 65).
Unsurprisingly, none of the defendants contends that the
government failed to prove the existence of a far-ranging RICO
enterprise and conspiracy. Eyewitness testimony described in
detail the rise of La Rompe as a coordinated and hierarchal
organization, with members bound together by shared hand signals,
meetings, drug distribution, and the use of violence to maintain
power and control over drug points in the face of competition from
La ONU. Each defendant challenges instead the sufficiency of the
proof that he was a member of that RICO conspiracy.
The Supreme Court has made clear that holding a
particular person responsible for the acts of a RICO conspiracy
does not require the government to prove that that person committed
or even agreed to commit two or more racketeering acts. See
Salinas, 522 U.S. at 65. Rather, “the government‘s burden . . .
is to prove that the defendant agreed that at least two acts of
racketeering would be committed in furtherance of the conspiracy.”
Millán-Machuca, 991 F.3d at 18 (quoting United States v.
140 S. Ct. 820 (2020)).2
So, for each defendant, we ask whether the government
presented evidence from which a reasonable jury could have
concluded that each defendant knowingly agreed that at least two
racketeering acts would be committed in furtherance of La Rompe‘s
ends.
a. Cotto-Andino
Three cooperating witnesses testified that Cotto-Andino
controlled La Rompe‘s drug point at the Jardines de Cupey public-
housing facility, and two of those three also testified that
Cotto-Andino ran La Rompe‘s drug point at the Brisas de Cupey
public-housing facility. To avoid attracting the attention of the
police, Cotto-Andino delegated day-to-day responsibility for
conviction requires proof that a defendant agreed to commit, or in
fact committed, two or more predicate offenses. See United States
v. Ramírez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015); United States v.
Shifman, 124 F.3d 31, 35 (1st Cir. 1997); United States v. Hurley, 63 F.3d
1, 8–9 (1st Cir. 1995); Libertad v. Welch, 53 F.3d 428, 441 (1st Cir.
1995); Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1561
(1st Cir. 1994); Miranda v. Ponce Fed. Bank, 948 F.2d 41, 47–48 (1st Cir.
1991); Feinstein v. Resol. Tr. Corp., 942 F.2d 34, 41 (1st Cir. 1991);
United States v. Boylan, 898 F.2d 230, 241 (1st Cir. 1990); United States
v. Torres Lopez, 851 F.2d 520, 528 (1st Cir. 1988); United States v. Angiulo,
847 F.2d 956, 964 (1st Cir. 1988); United States v. Winter, 663 F.2d 1120,
1136 (1st Cir. 1981). We more recently made clear that those
statements are inconsistent with the Supreme Court‘s 1997 holding
in Salinas. See Leoner-Aguirre, 939 F.3d at 317; Millán-Machuca, 991 F.3d
at 18 n.3; United States v. Sandoval, No. 18-1993, 2021 WL 2821070,
at *3 n.1 (1st Cir. July 7, 2021). We follow, as we must, Salinas.
brothers, known as Nestor and Bimbo. In return, Nestor and Bimbo
paid Cotto-Andino a portion of the drug point‘s proceeds --
referred to as “rent” or a “ticket.” Cotto-Andino made a similar
arrangement with Nestor and Bimbo for the Brisas de Cupey drug
point. In addition to interacting with Cotto-Andino, Nestor and
Bimbo also attended meetings with La Rompe‘s supreme leader,
“Mayito.”
Given La Rompe‘s raison d‘être, i.e., to provide revenue
from drug sales for its leaders, Cotto-Andino‘s control of two La
Rompe drug points provided ample evidence that he had agreed that
drugs would be repeatedly sold in furtherance of La Rompe‘s
conspiracy. Indeed, this evidence placed him at or at least near
the heart of the conspiracy.
Cotto-Andino points to evidence establishing an
alternative explanation for his admitted involvement at or near
the drug points, i.e., he worked lawfully as a construction
contractor on jobs in Jardines de Cupey and Brisas de Cupey. For
purposes of our sufficiency analysis, however, we can presume that
the jury rejected that view of his conduct in favor of witness
testimony identifying Cotto-Andino, Nestor, and Bimbo as leaders
of La Rompe and its drug trafficking operation in Jardines de Cupey
and Brisas de Cupey. See, e.g., United States v. Nueva, 979 F.2d
880, 884 (1st Cir. 1992) (explaining that an appellate court will
story at odds with that of the government“). Cotto-Andino
alternatively argues that the evidence did not establish that he
knowingly participated in an overarching conspiracy involving La
Rompe, as opposed to a smaller, independent conspiracy with Nestor
and Bimbo. But, when viewed favorably to the verdict, the evidence
was sufficient to bely any notion that there existed an independent
drug point in La Rompe‘s territory.
b. Velazquez-Fontanez
Velazquez-Fontanez served as a municipal police officer
in San Juan. He supplied guns and ammunition to La Rompe members,
including his brother, Bebo, a La Rompe enforcer who ran several
drug points. When Bebo was incarcerated in 2011,
Velazquez-Fontanez helped manage Bebo‘s drug points.
Velazquez-Fontanez delivered packages of marijuana and cocaine to
Quija, a “runner” who moved drugs to and from one of Bebo‘s drug
points. Velazquez-Fontanez transported drug point proceeds as
well.
The testimony of two cooperating witnesses -- Luis Ivan
Yanyore-Pizarro and Oscar Calviño-Acevedo -- also implicated
Velazquez-Fontanez in a drive-by shooting. On June 25, 2011, while
he was in jail, Bebo used a contraband cell phone to call Quija.
Bebo told Quija to go to a business in Caimito (one of San Juan‘s
subdivisions) and kill five men present there, one of whom was
took control of several of Bebo‘s drug points. Later that evening,
Velazquez-Fontanez called Quija and told him that Prieto-Pincho
and his men were outside of the business washing their cars. After
one of La Rompe‘s leaders gave the green light to kill
Prieto-Pincho and his men, several members of La Rompe, including
Yanyore-Pizarro and Calviño-Acevedo, drove toward the business.
As they approached their destination, Yanyore-Pizarro called
Velazquez-Fontanez, who confirmed that the men were there and that
Prieto-Pincho was “the big guy, who‘s the one who is speaking over
the phone.” Yanyore-Pizarro responded that he “already s[aw]
them,” told Velazquez-Fontanez to “listen to the show,” and kept
the phone line open as the men exited the car and opened fire,
killing Prieto-Pincho and three others. The next day,
Velazquez-Fontanez saw Yanyore-Pizarro in person and told
Yanyore-Pizarro that “that sounded awesome” and that “the part
[that Velazquez-Fontanez] liked the most was when the rifle
continued shooting at the end.”
Velazquez-Fontanez argues that the shooting on June 25,
2011, cannot support his RICO conspiracy conviction because it was
solely motivated by Bebo‘s personal desire for revenge against
Prieto-Pincho. The jury was entitled to reject this account and
instead credit the government‘s evidence that the shooting was
carried out to further La Rompe‘s ends. So, too, was the jury
because he had a legitimate job as a police officer and was legally
permitted to own weapons and ammunition.
Velazquez-Fontanez next points out that some witnesses
who cooperated with the government did not identify him as a member
of La Rompe. But even the uncorroborated testimony of a single
cooperating witness may be sufficient to support a conviction, so
long as the testimony is not facially incredible. See United
States v. Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (collecting
cases). Here, multiple witnesses described Velazquez-Fontanez‘s
participation in La Rompe‘s criminal activities; it matters not
for purposes of our sufficiency review that others did not do so.
Velazquez-Fontanez also asserts that the cooperating
witnesses’ testimony implicating him in La Rompe‘s activities
should not have been admitted because it was inadmissible hearsay
not subject to the co-conspirator exception. See generally United
States v. García-Torres, 280 F.3d 1 (1st Cir. 2002). He notes a
few instances where witnesses testified about out-of-court
statements by Bebo and Quija. But he makes no attempt to explain
how these statements were not in furtherance of the conspiracy or
why the evidence that he transported guns, money, and drugs for
Bebo and Quija does not show that all three belonged to the same
conspiracy. See, e.g., United States v. Piper, 298 F.3d 47, 52
(1st Cir. 2002) (conditioning the admission of statements in
the introduction of “extrinsic evidence . . . sufficient to
delineate the conspiracy and corroborate the declarant‘s and the
defendant‘s roles in it“). This lack of development dooms his
argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.“).
Finally, Velazquez-Fontanez argues that a conspiracy to
commit a controlled substance offense in violation of section 846
cannot serve as a predicate offense for the RICO charge. We see
no reason to accept this argument. The fact that section 846
limits its own object offenses simply does not suggest that a
section 846 offense itself cannot be the object or predicate for
another offense. And Velazquez-Fontanez offers no other reason
why a section 846 conspiracy cannot serve as the predicate or
object for a RICO offense.3 See id.
In sum, there was ample and competent testimony which,
if believed, directly tied Velazquez-Fontanez to La Rompe and
established that he knew his fellow gang members would engage in
at least two RICO predicate offenses.
convictions under
the same reason.
The trial record supports Resto-Figueroa‘s RICO
conspiracy conviction as well. Cooperating witnesses testified
that Resto-Figueroa was a La Rompe enforcer who carried firearms,
sold marijuana and crack cocaine for the gang, and stored its
weapons at his home.
Cooperator testimony also implicated Resto-Figueroa in
a drive-by shooting that ended an intra-gang feud. The feud began
when Pollo, a La Rompe member, killed another member over a dispute
about payment for marijuana. The slain member‘s brother, Oreo,
obtained permission from La Rompe‘s leaders to kill Pollo. Oreo
then enlisted Resto-Figueroa and several other La Rompe members to
assist with the killing. On August 28, 2012, members dressed up
as police officers and drove SUVs equipped with tinted windows,
police lights, and sirens away from Resto-Figueroa‘s house to
Pollo‘s neighborhood, the Jardines de Cupey housing project. After
their mock police raid of Pollo‘s apartment turned up nothing,
Resto-Figueroa and the others drove through the housing project
until they spotted Pollo on the street. Some men in the SUVs
opened fire on Pollo, and others, including Resto-Figueroa, exited
the SUVs and began running toward Pollo. By the time that
Resto-Figueroa reached Pollo, Pollo was dead. After the shooting,
the men returned to the SUVs and drove to Resto-Figueroa‘s house.
establish his knowing participation in La Rompe‘s enterprise. At
most, he contends, the evidence establishes a smaller conspiracy
in which he was brought in as an “outside contractor” to kill
Pollo. Resto-Figueroa‘s account downplays evidence of the extent
of his connection to La Rompe, specifically his drug selling and
storage of La Rompe weaponry. That evidence of Resto-Figueroa‘s
sustained and knowing connection to La Rompe‘s activities provides
ample support for a rational jury‘s conclusion that Resto-Figueroa
agreed to join the charged RICO conspiracy with knowledge that at
least two racketeering acts would be committed.
In challenging the evidence‘s sufficiency,
Resto-Figueroa also argues that one prominent La Rompe member-
turned-cooperator -- Yanyore-Pizarro -- did not mention
Resto-Figueroa and another -- Calviño-Acevedo -- is unworthy of
credence. These contentions miss the mark on appeal because they
go to the evidence‘s weight and credibility, not its sufficiency.
See, e.g., United States v. Noah, 130 F.3d 490, 494 (1st Cir.
* * *
In sum, the evidence against all three defendants was
sufficient to support their RICO conspiracy convictions.
21 U.S.C. § 846
All three defendants were also convicted of conspiring
to possess with intent to distribute controlled substances within
1,000 feet of a public-housing facility. See
the existence of a conspiracy to possess cocaine, crack cocaine,
heroin, and/or marijuana with intent to distribute it within 1,000
feet of a protected area, such as real property comprising a
housing facility owned by a public housing authority, and that the
defendant knowingly and willfully joined in that conspiracy. Id.
argument for why the proof of such a conspiracy was insufficient
as to him. We review each set of arguments in turn.
a. Cotto-Andino
In challenging his section 846 conspiracy conviction,
Cotto-Andino repurposes his contention that the government proved
only a small conspiracy (among him, Nestor, and Bimbo). We have
already explained why this argument fails. See supra
Part II.A.1.a.
b. Velazquez-Fontanez
Velazquez-Fontanez argues that his conviction cannot
stand because he did not sell drugs for the conspiracy. But, taken
in the light most favorable to the verdict, the evidence
established that Velazquez-Fontanez furthered the drug
members. And, despite its lack of corroboration through photo,
video, or phone record evidence, the testimony of the cooperating
witnesses, reviewed above in Part II.A.1.b, provided adequate
proof of his involvement in a conspiracy to possess drugs for
distribution. See Cortés-Cabán, 691 F.3d at 14.
c. Resto-Figueroa
Resto-Figueroa argues that the evidence did not
establish that he knowingly participated in La Rompe‘s drug-
trafficking conspiracy. But, as we have already noted, see supra
Part II.A.1.c, a rational jury viewing the evidence could have
concluded that Resto-Figueroa‘s sales of drugs and joint activity
with La Rompe members show that he was a knowing participant in La
Rompe‘s drug conspiracy, not just a “hired gun.”
3. 18 U.S.C. § 36(b)(2)
Both Velazquez-Fontanez and Resto-Figueroa were
convicted of violating
imposes penalties on any person who, “in furtherance . . . of a
major drug offense and with the intent to intimidate, harass,
injure, or maim, fires a weapon into a group of two or more persons
and who, in the course of such conduct, kills any person,” where
the killing “is a first degree murder.”
One who aids or abets another in the commission of a crime may be
punished as a principal.
A reasonable jury could have concluded that
Velazquez-Fontanez aided and abetted the drive-by shooting of
Prieto-Pincho and others. The government presented evidence that
Velazquez-Fontanez directed La Rompe members to the location where
Prieto-Pincho and four other people could be found and described
Prieto-Pincho‘s appearance. See supra Part II.A.1.b. A
reasonable jury could have inferred that Velazquez-Fontanez did so
to facilitate Prieto-Pincho‘s murder, which La Rompe‘s leaders
ordered at the request of Velazquez-Fontanez‘s brother. And that
inference becomes stronger when the foregoing evidence is
considered alongside testimony that Velazquez-Fontanez listened to
and later expressed approval of the shooting.
According to Velazquez-Fontanez, other members of La
Rompe made the plans to kill Prieto-Pincho and his associates, and
the evidence did not establish a connection between those plans
and Velazquez-Fontanez‘s words and actions. The evidence that he
spoke to the shooters, he argues, does not establish that he did
anything more than “answer[] a call made by Yanyore-Pizarro.”
Velazquez-Fontanez essentially asks us to disregard our obligation
to draw all reasonable inferences in the verdict‘s favor. See
Meléndez-González, 892 F.3d at 17. That deferential standard of
review, as applied here, leads to the conclusion that the evidence
adequately supported the verdict. And Velazquez-Fontanez errs in
testimony necessarily undermines the sufficiency of the evidence.
See Cortés-Cabán, 691 F.3d at 14.
Velazquez-Fontanez also argues that the government
failed to prove that a weapon was fired. This contention is
meritless. By returning a general verdict that Velazquez-Fontanez
was guilty beyond a reasonable doubt of aiding and abetting a
drive-by shooting in violation of
necessarily found that a person “fire[d] a weapon into a group of
two or more persons.” The evidence establishing this element was
overwhelming.
b. Resto-Figueroa
A reasonable jury could have likewise concluded that
Resto-Figueroa aided and abetted the drive-by shooting of Pollo
and others on August 28, 2012. As described above, see supra
Part II.A.1.c, ample witness testimony established that
Resto-Figueroa, along with others, traveled to Jardines de Cupey
to find and kill Pollo.
Resto-Figueroa‘s initial challenge to his drive-by
shooting conviction proceeds from a mistaken premise. He asserts
that he did not act with the requisite enterprise motive to be
convicted of a violent crime in aid of racketeering. See
gaining entrance to or maintaining or increasing position in an
was not charged with an offense under
that Resto-Figueroa‘s brief may be read to challenge the
sufficiency of the evidence that the drive-by shooting was “in
furtherance . . . of a major drug offense,”
this argument also fails. As described above, La Rompe‘s leaders
authorized Pollo‘s killing to settle an intra-gang feud. A
reasonable jury could have found that Resto-Figueroa intended to
further La Rompe‘s drug-trafficking activity by helping Oreo kill
Pollo. Finally, Resto-Figueroa‘s argument that the government‘s
witnesses lacked credibility falls flat on sufficiency review.
For these reasons, sufficient evidence supported the
drive-by shooting convictions of Velazquez-Fontanez and
Resto-Figueroa.
4. 18 U.S.C. § 924(c)
Based on the predicate offense of a drive-by shooting
murder in violation of
convicted of aiding and abetting the use of a firearm during and
in relation to a crime of violence.4 See
offense predicated on a violation of
from his challenge to his conviction for the predicate offense,
see supra Part II.A.3.b, Resto-Figueroa does not challenge his
section 924(c) conviction on appeal.
Davis does not help Velazquez-Fontanez. To assess whether a violation of section 36(b)(2)(A) satisfies the elements clause, we apply the categorical approach, “consider[ing] the elements of the crime of conviction, not the facts of how it was committed, and assess[ing] whether violent force is an element of the crime.” United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018) (quoting United States v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017)).
Velazquez-Fontanez‘s section 36(b)(2)(A) offense meets the requirements of section 924(c)(3)‘s elements clause.
B. Cotto-Andino‘s Evidentiary Objections
We consider next several related challenges by Cotto-Andino to the district court‘s evidentiary rulings. When a defendant preserves an objection, we generally review a district court‘s evidentiary ruling for abuse of discretion. See United States v. Appolon, 715 F.3d 362, 371 (1st Cir. 2013). A harmless evidentiary error does not require reversal. See Kotteakos v. United States, 328 U.S. 750, 765 (1946).
This court reviews challenges related to the enforcement of subpoenas under the Sixth Amendment‘s Compulsory Process Clause for abuse of discretion. See United States v. DeCologero, 530 F.3d 36, 74–75 (1st Cir. 2008).6 A defendant‘s conviction will stand if a non-structural constitutional error “was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).
1. Uncharged Murder Evidence
As part of its case-in-chief, the government presented the testimony of Oscar Calviño-Ramos, a cooperating witness. He
Cotto-Andino timely objected to this evidence as improper character evidence offered only to suggest that Cotto-Andino was a very bad guy. See
This properly relevant evidence by its nature reflected poorly on Cotto-Andino‘s character, obligating the district court to balance its probative value against the potential for unfair prejudice.
After holding a Rule 104 hearing, the district court concluded that the relevance of the proffered evidence hinged on an insufficiently proven assumption that there were not two Cano Ingrams -- one who was killed in the mid-90s by Cotto-Andino and one who died in 2001. See
Seeking more support for his assertion that Antonio Vazquez-Pagan and the person identified as Cano Ingram by Calviño-Ramos were one and the same, Cotto-Andino served a subpoena on the Criminal Investigation Corps of the Commonwealth of Puerto Rico. The subpoena sought “[a]ll booking and criminal profiling documentation regarding Antonio Vazquez-Pagan,” which Cotto-Andino expected to yield a criminal dossier containing Vazquez-Pagan‘s aliases, addresses, and information about criminal conduct. When the custodian of records did not appear pursuant to the subpoena, the district court declined to enforce it, expressing doubt that the documents produced would be admissible under any hearsay exception or relevant absent proof that there were not two Cano Ingrams. The net result was that the district court precluded Cotto-Andino‘s effort to cast doubt on the government‘s claim that he killed Cano Ingram.
The government would have us view the excluded evidence as bearing on only a side-show debate about the timing of Cano Ingram‘s death that could not properly be explored through extrinsic evidence. Not so. Proof that the person identified by Calviño-Ramos as Cano Ingram was alive for five to six years after Cotto-Andino supposedly killed him would have called into question
So we turn our attention to the reasons given by the district court for excluding the proffered evidence. District courts “have wide discretion in deciding whether an adequate foundation has been laid for the admission of evidence.” Veranda Beach Club Ltd. P‘ship v. W. Sur. Co., 936 F.2d 1364, 1371 (1st Cir. 1991) (quoting Real v. Hogan, 828 F.2d 58, 64 (1st Cir. 1987)). Deference to that discretion is particularly apt here given the district court‘s greater understanding of the context for a dispute about the prevalence in Puerto Rico of a nickname such as Cano Ingram.8 And, in finding that Cotto-Andino had failed to show that the two witnesses were testifying about the same person, the district court reasonably emphasized Vazquez-Pagan‘s lack of demonstrated connections to Jardines de Cupey and the discrepancy in suspected criminal activity. So we may assume (without deciding) that the district court did not abuse its discretion in finding that Cotto-Andino‘s proffered evidence did
More problematic is the district court‘s refusal to aid Cotto-Andino‘s effort to add to that record by obtaining information about Vazquez-Pagan‘s aliases, addresses, and criminal activity. Under the Sixth Amendment‘s Compulsory Process Clause, a defendant has “the right to the government‘s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). By refusing to enforce the subpoena, the district court denied Cotto-Andino the opportunity to provide the links that the district court found to be missing in its Rule 104(b) ruling.
To be sure, Cotto-Andino does “not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). But given the significance of Cano Ingram‘s death to the government‘s case against Cotto-Andino, the district court too readily assumed that none of the subpoenaed records would provide admissible evidence corroborating Franco-Rivera‘s proposed testimony and supporting
For the foregoing reasons, we conclude that, because the district court exercised its discretion to preclude the proffered evidence of Cano Ingram‘s 2001 death as dependent on an unproven fact, the district court erred in then refusing to enforce a subpoena reasonably calculated to prove that fact. The remaining question is whether the government has shown that the error was harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24.
We think not. The case against Cotto-Andino was strong, but not overwhelming given its heavy dependence on cooperating witnesses. See United States v. Wright, 937 F.3d 8, 31 (1st Cir. 2019) (observing, in the constitutional-error context, that cooperating-witness evidence “is rarely deemed to be overwhelming on its own“). Calviño-Ramos‘s allegation that Cotto-Andino was a murderer was, if believed, a big deal that operated on two levels: It made it more plausible that Cotto-Andino had the control and reputation necessary to play the role alleged in the conspiracy,
We faced an analogous situation in United States v. Rosario-Pérez, 957 F.3d 277 (1st Cir. 2020). There, the government successfully secured the admission of an allegation that the defendant had committed an uncharged murder. Id. at 289. When the defendant then sought to counter that allegation, the trial court erroneously excluded the exculpatory evidence. Id. at 290–94. We found such an exclusion to be cause for vacating the verdict, reasoning that “to allow evidence that [the defendant] murdered [a drug seller indebted to him] and disallow plausible evidence that he did not based on erroneous rulings is an unacceptable result.” Id. at 294.
For similar reasons, we cannot deem harmless the district court‘s decision to deny Cotto-Andino the opportunity to gather and present evidence to rebut Calviño-Ramos‘s allegation. By cutting off Cotto-Andino‘s efforts to gather evidence relevant to establishing when Cano Ingram died, the district court undercut the defendant‘s attempt to kill three birds with one stone:
In sum, the district court‘s constraint of Cotto-Andino‘s attempt to rebut the government‘s uncharged murder evidence exceeded the bounds of the court‘s discretion, was not harmless, and requires vacatur of Cotto-Andino‘s convictions.
2. Flight Evidence
Cotto-Andino also argues that evidence that he fled to avoid arrest should have been excluded. Over Cotto-Andino‘s objection, Elvin Cruz-Castro testified that Cotto-Andino came to Cruz-Castro‘s home in Hallandale Beach, Florida, in April 2016 and told Cruz-Castro that “he needed a place to stay for a few days because he was being wanted by the authorities.” Two days after Cotto-Andino arrived at Cruz-Castro‘s home, federal agents arrested Cotto-Andino.
Citing United States v. Benedetti, 433 F.3d 111 (1st Cir. 2005), Cotto-Andino argues the government did not “present sufficient extrinsic evidence of guilt to support an inference that [his] flight was not merely an episode of normal travel but, rather, the product of a guilty conscience related to the crime alleged.” Id. at 116. He claims that his request to stay with Cruz-Castro is not indicative of a guilty conscience because Cotto-Andino moved to Florida in 2013, well before his indictment in
Because this same evidentiary issue is likely to arise at any retrial, we consider this argument now. In so doing, we review for abuse of discretion the district court‘s determinations that there existed a sufficient factual predicate to support an inference that the flight reflected consciousness of guilt of the alleged offense, see United States v. West, 877 F.3d 434, 438 (1st Cir. 2017), and that Rule 403 did not bar the flight evidence‘s admission, see id. at 439.
There was no abuse of discretion here. The government presented evidence to support the inference that Cotto-Andino‘s consciousness of guilt of the alleged offenses prompted his travel to Cruz-Castro‘s home. Multiple cooperating witnesses testified that Cotto-Andino controlled two La Rompe drug points. That alleged criminal activity formed the basis of the July 2015 indictment against Cotto-Andino, and he was subject to arrest on that indictment when he contacted Cruz-Castro in April 2016. Cotto-Andino‘s own words establish that the authorities’ pursuit motivated his request to stay with Cruz-Castro. Cf. United States v. Candelaria-Silva, 162 F.3d 698, 705–06 (1st Cir. 1998) (emphasizing, among other evidence establishing requisite factual predicate for flight evidence‘s introduction, defendant‘s admission following arrest in Massachusetts that “he knew he was
Cotto-Andino has not shown that the district court‘s Rule 403 balancing analysis inadequately accounted for his presence in Florida before April 2016. Moreover, the district court prudently cautioned the jury that “there could be reasons . . . for defendant‘s actions that are fully consistent with innocence,” reducing any risk of unfair prejudice. See United States v. Fernández-Hernández, 652 F.3d 56, 70 n.11 (1st Cir. 2011) (noting that district court provided limiting instruction and finding no abuse of discretion).
3. Gun Possession at Time of Arrest
Cotto-Andino next challenges the admission of evidence that he possessed a gun at the time of his arrest, arguing that it had no special relevance and, alternatively, that any probative
4. Possession of Cell Phones at Time of Arrest
Finally, Cotto-Andino argues that the district court improperly permitted Jason Ruiz, an agent of the Bureau of Alcohol, Tobacco, and Firearms, to provide lay opinion testimony about the circumstances of Cotto-Andino‘s arrest. On direct examination, Ruiz testified that law enforcement found Cotto-Andino with three cell phones, two of which were flip phones. On cross-examination, Cotto-Andino asked Ruiz whether there was anything illegal, uncommon, or meaningful about having multiple cell phones. Over Cotto-Andino‘s objection, Ruiz testified on redirect that, based on his experience investigating narcotics cases, defendants often carry multiple cell phones and use flip phones as temporary “burner” phones to evade law enforcement efforts to track and intercept drug-related communications. Later in the trial, Eddie Vidal-Gil was qualified as an expert on drug trafficking based on his experience as a police officer. Vidal-Gil‘s testimony about
On appeal, the parties’ briefing on this issue focused on whether Ruiz‘s lay opinion testimony was properly admitted pursuant to
C. Resto-Figueroa‘s Mistrial Motion
We turn now to Resto-Figueroa‘s argument that he was denied a fair trial because he relied to his detriment on an inaccurate grand jury transcript provided by the government. We review the district court‘s denial of a motion for a mistrial for “manifest abuse of discretion.” United States v. Chisholm, 940 F.3d 119, 126 (1st Cir. 2019) (quoting DeCologero, 530 F.3d at 52).
When Calviño-Acevedo testified at trial that Tego was involved in the shooting, defense counsel began a line of cross-examination by asking whether Calviño-Acevedo told the grand jury that Tego was involved. Counsel went to sidebar where a long conversation ensued, during which defense counsel pointed to the transcript of Calviño-Acevedo‘s grand jury testimony. At that point, government counsel (who had conducted the grand jury questioning and who knew that Bebo had been incarcerated at the time of the shooting) realized that the grand jury transcript erroneously named Bebo rather than Tego. It also became apparent that counsel could get from the court reporter an audio tape of the pertinent grand jury testimony.
Counsel for Resto-Figueroa moved for a mistrial, contending that a misleading transcript had led him to adopt a trial strategy that now would backfire, making counsel rather than
When the sidebar conference concluded, Resto-Figueroa proceeded with cross-examination. He asked Calviño-Acevedo about the list of people who went to Jardines de Cupey, reading the names from the grand jury transcript that did not include Tego. Calviño-Acevedo said those were the names he provided, but he insisted that he mentioned Tego, too. After reviewing the grand jury transcript, Calviño-Acevedo agreed that the transcript did not include Tego‘s name.
The next day, while Calviño-Acevedo was still on the witness stand, the government produced a recording of his grand jury testimony. Both Resto-Figueroa and the government agreed that the recording showed that Calviño-Acevedo had indeed mentioned Tego in his grand jury testimony. Because Resto-Figueroa had probed the point on cross, the government sought to introduce the recording on redirect as a prior consistent statement admissible under
Before the government conducted its redirect examination, the district court consulted the parties about a
Resto-Figueroa argues on appeal that he suffered acute prejudice from the transcript error because the government‘s case against him turned on the jury‘s evaluation of the credibility of cooperating witnesses with lengthy criminal records. Rather than helping him exploit that potential vulnerability in the government‘s proof, Resto-Figueroa‘s reliance on the transcript ultimately underscored Calviño-Acevedo‘s inculpatory testimony when the government introduced the recording.
The district court did not abuse its discretion in denying Resto-Figueroa‘s motion for a mistrial. Defense counsel learned that the transcript was likely in error before he used it to impeach the witness. He can hardly cry foul about the district court then allowing the government to use the recording to rehabilitate the witness. The district court informed the jury of the circumstances and carefully instructed against drawing any
D. Instructional Error
Resto-Figueroa also argues that the jury instructions were erroneous in several ways. We address his arguments in turn.
Resto-Figueroa first claims the instructions did not require the jury to find that the alleged RICO enterprise actually existed or that the enterprise‘s activities actually affected interstate commerce. Instead, the instructions told the jury that the government need only prove that these elements “would” be satisfied. Resto-Figueroa did not object when these instructions
Next, Resto-Figueroa contends that the instructions did not require the jury to find actual association between the defendant and anyone involved with the enterprise. This unpreserved argument also fails. Read as a whole, the district court‘s charge required the jury to find that Resto-Figueroa associated with the enterprise with knowledge of its nature and its extension beyond his own role.10 See United States v. Gomez, 255 F.3d 31, 38 (1st Cir. 2001)
Finally, Resto-Figueroa asserts for the first time on appeal that the instructions did not require the jury to find that a defendant knowingly joined a conspiracy to commit a substantive RICO violation. Resto-Figueroa cannot clear the plain error hurdle here. The district court told the jury that “the agreement to commit a RICO offense is the essential aspect of a RICO conspiracy offense” and gave an instruction on this issue that tracked Salinas.11 See supra Part II.A.1. This instruction was not clearly erroneous.
E. Responses to Jury Questions
During its deliberations, the jury used notes to communicate questions to the district court on three occasions. Upon receipt of each question, the district court informed counsel of the jury‘s message and gave them an opportunity to articulate their views regarding a proper response. See United States v. Sabetta, 373 F.3d 75, 78 (1st Cir. 2004) (describing best practices for responding to a jury‘s message).
Our review is for abuse of discretion. United States v. Vázquez-Soto, 939 F.3d 365, 375 (1st Cir. 2019). We discern no abuse of discretion here. See United States v. Akitoye, 923 F.2d 221, 226 (1st Cir. 1991) (advising district courts facing similar requests to consider the scope of the jury‘s request; what obstacles, if any, would impair the request‘s fulfillment; and the amount of time the desired action would take). As the district court discussed with counsel on the record, the transcripts had not yet been completed. Moreover, any transcript would need to be redacted to exclude sidebar conversations between the district court and counsel. The jury specifically asked for transcripts of “the witnesses’ testimonies.” Another trial judge might well have
Second, the jurors wrote: “[W]e, the jurors, request further clarification on what conspiracy means in Count Two. Also, does aiding and abetting apply to Count Two, Four and Five?” The district court responded to the jury by saying, “Please refer to Instruction Number 32 for clarification on what conspiracy means in Count Two. Aiding and abetting does not apply to Count Two. It applies to Counts Four and Five.” In doing so, the district court declined Resto-Figueroa‘s request to “inquire further” of the jurors.
The defendants did not object to or seek to modify the district court‘s initial conspiracy instruction. Nor did they suggest an alternative instruction that the district court should have provided in response to the note. Even where a defendant does offer an alternative, we typically do not fault a district court for declining to expand upon its “initial, entirely correct instructions” and instead “refer[ring] the jury to the original formulation.” United States v. Roberson, 459 F.3d 39, 46 (1st Cir. 2006) (quoting Elliott v. S.D. Warren Co., 134 F.3d 1, 7 (1st Cir. 1998)). Defendants have not shown that the district court abused its discretion by sticking to the instruction given here without objection.
Third, the jurors wrote, “[W]e, the jurors, request further clarification on Instruction Number 44 regarding the meaning of being present.” The government asserted that, although
Velazquez-Fontanez argues on appeal that this supplementary jury instruction was improper. But this challenge goes nowhere. Velazquez-Fontanez waived his objection when he affirmatively stated that he had “[n]o objection” to the district court‘s proposed response, which aligned with Velazquez-Fontanez‘s request that the district court refer the jury to the existing instructions. See United States v. Corbett, 870 F.3d 21, 30–31 (1st Cir. 2017) (holding that challenge to response to juror note was waived where defendant said that proposed response “restates the instruction already given, so I have no problem“); United States v. Acevedo, 882 F.3d 251, 264 (1st Cir. 2018) (holding that challenge to revised jury instruction was waived where defendant
III. CONCLUSION
For the foregoing reasons, we affirm the convictions of Carlos Velazquez-Fontanez and Jose Resto-Figueroa. We vacate the convictions of Ruben Cotto-Andino and remand his case for further proceedings consistent with this opinion.