United States v. Pérez-Vásquez

• Decision Date: 26 July 2021
• Docket Number: 19-1745,19-1734,19-1750,Nos. 19-1027,Nos. 18-1687,Nos. 18-1975,s. 18-1687,s. 19-1027,s. 18-1975
• Citation: 6 F.4th 180
• Parties: UNITED STATES of America, Appellee, v. Noe Salvador PÉREZ-VÁSQUEZ, a/k/a Crazy, Defendant, Appellant. United States of America, Appellee, v. Luis Solís-Vásquez, a/k/a Brujo, Defendant, Appellant. United States of America, Appellee, v. Hector Enamorado, a/k/a Vida Loca, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

6 F.4th 180

UNITED STATES of America, Appellee,

v.Noe Salvador PÉREZ-VÁSQUEZ, a/k/a Crazy, Defendant, Appellant.

United States of America, Appellee,

v.Luis Solís-Vásquez, a/k/a Brujo, Defendant, Appellant.

United States of America, Appellee,

v.Hector Enamorado, a/k/a Vida Loca, Defendant, Appellant.

Nos. 18-1687

19-1750

Nos. 19-1027

19-1745

Nos. 18-1975

19-1734

United States Court of Appeals, First Circuit.

July 26, 2021

H. Manuel Hernández for appellant Noe Salvador Pérez-Vásquez, a/k/a Crazy.

Ian Gold for appellant Luis Solís-Vásquez, a/k/a Brujo.

Rosemary Curran Scapicchio for appellant Hector Enamorado, a/k/a Vida Loca.

Sonja Ralston, Appellate Section Attorney for the Department of Justice, with whom Andrew E. Lelling, United States Attorney, Donald C. Lockhart, Assistant United States Attorney, Brian C. Rabbitt, Acting Assistant Attorney General, and Robert A. Zink, Acting Deputy Assistant Attorney General, were on brief, for appellee.

Before Lynch, Lipez, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

In 2016, the government indicted sixty-one alleged members of the MS-13 gang for participation in a Racketeer Influenced and Corrupt Organization Act ("RICO") conspiracy and other crimes. The district court divided the sixty-one defendants into four trial groups. This appeal concerns some of the defendants in group two. The defendants in group three are the subject of our opinion in United States v. Sandoval, Nos. 18-2165, 18-2177, 6 F.4th 63, 74–75 (1st Cir. July 7, 2021).

Three defendants from group two proceeded to trial. After a nineteen-day trial, a jury convicted each of the defendants of RICO conspiracy with a special finding that defendant Noe Salvador Pérez-Vásquez participated in the murder of Jose Aguilar Villanueva and special findings as to each that they had participated in the murder of Javier Ortiz. The defendants allege a number of errors in both their trial and sentencings. We carve out to be discussed in a later opinion defendant Luis Solís-Vásquez's challenge to the district court's restitution order. Having determined that the remaining challenges do not have merit, we affirm.

I. Facts

Because the defendants have challenged the sufficiency of the evidence, we recite the facts "in the light most favorable to the jury's verdict." United States v. Leoner-Aguirre, 939 F.3d 310, 313 (1st Cir. 2019).

A. MS-13

La Mara Salvatrucha, commonly known as MS-13, is a transnational gang headquartered in El Salvador and with extensive operations in the United States, including in Eastern Massachusetts. The gang is organized into "programs" and "cliques." Cliques are local groups that each belong to a regional program. Within each clique, the primary leader is called the "first word" and the second in command is called the "second word." Full members are known as "homeboys." Individuals generally progress from "paro" to "chequeo" before becoming homeboys.¹ Chequeos often must perform a violent crime to earn a promotion to homeboy, though the requirement has varied over time and between cliques. They are then beaten or "jumped" in as full members.

MS-13 has defined its primary mission as killing rivals, especially members of the 18th Street gang. If possible, a homeboy is supposed to kill a rival gang member, known as a "chavala," on sight. MS-13 members are also required to help out fellow gang members whenever they are asked.

MS-13 members are forbidden from cooperating with law enforcement. A member who cooperates with law enforcement will have a "green light" put on him, which means he will be killed by other MS-13 members. MS-13 associates are not permitted to kill other MS-13 associates unless leadership, usually in El Salvador, puts a "green light" on the individual.

B. Defendants' Roles in MS-13

In 2014 and 2015, at the time of the events at issue in this case, each of the defendants was a full MS-13 member in a clique near Boston. Noe Salvador Pérez-Vásquez, a/k/a "Crazy," claimed to be the second in command of the Everett Locos Salvatrucha clique. Luis Solís-Vásquez, a/k/a "Brujo," was a homeboy in the Eastside Locos Salvatrucha clique. Hector Enamorado, a/k/a "Vida Loca" was a homeboy in the Chelsea Locos Salvatrucha clique.

C. Cooperating Witnesses

Law enforcement investigations of crimes by MS-13 members often use confidential sources, some of whom become witnesses in later prosecutions. In 2012 the FBI began working with a source to infiltrate the MS-13 cliques in the Boston area. This informant is known as cooperating witness 1 ("CW-1") or by his street name, "Pelon." The government gave CW-1 a car with recording equipment inside, which he used to work as an unlicensed taxicab driver. CW-1 posed as a drug dealer and began spending time with various MS-13 members. He was eventually beaten in as a homeboy in the Eastside Locos Salvatrucha Clique. To advance the investigation he would regularly give rides to MS-13 members and record their conversations with him and each other. Additional details of CW-1's involvement were discussed in this court's opinion in United States v. Sandoval. 6 F.4th at 73–75.

CW-1 did not testify at the defendants' trial. CW-1 was the source of two types of evidence introduced by the government. First, the government introduced recordings and transcripts from CW-1's recording device of both conversations between MS-13 members and CW-1's conversations with MS-13 members. Second, some of the government's law enforcement witnesses testified about statements that CW-1 made to them in the course of their investigation.

D. The Murder of Jose Aguilar Villanueva

German Hernandez-Escobar, a/k/a "Terible," the leader of the Everett Locos Salvatrucha clique, was arrested in March 2015. Members of the clique, including second-in-command Pérez-Vásquez, believed that someone in the gang had "snitched" on Terible, and began an investigation. They concluded that Jose Aguilar Villanueva, a sixteen-year-old associate of MS-13 known as "Fantasma," had cooperated with the police and was responsible for Terible's arrest. MS-13 leaders in El Salvador issued a green light to kill Villanueva and Pérez-Vásquez began planning that murder with others in MS-13.

Pérez-Vásquez told Josue Alexis De Paz, a/k/a "Gato," a chequeo seeking promotion to homeboy and Villanueva's roommate, that he would have to "participate" in Villanueva's death. Another MS-13 member nicknamed "Inocente" called De Paz and told him to bring Villanueva to a restaurant in Somerville. The plan was to take Villanueva from the Somerville restaurant to an MS-13 meeting place in Malden called "the Mountain" and murder him there. Inocente was arrested before he could execute this plan.

After the arrest of Inocente, another homeboy told De Paz that the Everett clique wanted Villanueva murdered soon, and that De Paz would have to murder Villanueva with the help of a chequeo, Manuel Diaz Granados, a/k/a "Perverso." On the day of the murder, Pérez-Vásquez spoke to De Paz and told him to plan the murder carefully.

On July 5, 2015, De Paz and Granados met at the home De Paz shared with Villanueva and waited for Villanueva to return from a day trip to the beach. When he returned, De Paz told Villanueva that the three of them needed to go out to look for a man who had broken into their house several days earlier. The three went to a park, De Paz "grabbed [Villanueva] from behind," and Granados began stabbing Villanueva with a large green-handled knife. Moments later, De Paz dropped Villanueva, took out a folding knife, and stabbed Villanueva as well. Villanueva died from his injuries.

Afterward Pérez-Vásquez told De Paz that he would be promoted to homeboy for his participation in Villanueva's murder.

E. The Cocaine-Trafficking Operation

In early December 2014, CW-1 asked Pérez-Vásquez and other MS-13 members if they were interested in performing a "protection detail" for drugs being moved from Boston to New Hampshire. Pérez-Vásquez and four other MS-13 members volunteered. On December 8, 2014, a government agent gave the MS-13 members five kilograms of cocaine and they delivered it to another undercover agent in New Hampshire. Each was paid $500 for this work.

F. The Murder of Javier Ortiz

The defendants were also each involved in the planning and execution of the murder of Javier Ortiz, a reputed member of the 18th Street gang. Early in the morning on December 14, 2014, Enamorado went to an apartment in Chelsea where a woman sold tamales after the bars closed. There he saw Ortiz and some friends, who Enamorado believed to be 18th Street gang members and who had beaten him and burned his face with a cigarette the night before. Enamorado left the apartment and called Pérez-Vásquez repeatedly. When Pérez-Vásquez answered, Enamorado asked him to bring a clique-owned gun to him in Chelsea. Enamorado told Pérez-Vásquez that he had encountered several 18th Street gang members, that they had beaten him the night before, and that he wanted the gun because he was going to kill them. Pérez-Vásquez, who was at a garage in Everett where MS-13 members would gather, relayed this information to Solís-Vásquez and two other gang members at the garage. Pérez-Vásquez decided that he would bring the clique gun to Enamorado, and Solís-Vásquez decided that he would go as well because he had another clique gun stored in the garage.

Pérez-Vásquez and Solís-Vásquez met Enamorado in Chelsea, where he was sitting on the steps outside the apartment. Pérez-Vásquez asked Enamorado where the "chavalas" were. Enamorado said he would go inside alone with the gun Pérez-Vásquez had brought, and told Solís-Vásquez to stay at the door of the apartment with the other gun so that no one could leave. Solís-Vásquez waited at the door for a brief time, but then went to the porch to smoke a cigarette with another MS-13 member. At the same time, Enamorado entered the apartment and walked over to the bathroom where Ortiz was. He shot Ortiz three times in the back, emerged from the bathroom and then...