United States v. Rodríguez-Torres

• Decision Date: 18 September 2019
• Docket Number: Nos. 16-1507,17-1660,16-1596,16-1527,16-1984,s. 16-1507
• Citation: 939 F.3d 16
• Parties: UNITED STATES of America, Appellee, v. Victor M. RODRÍGUEZ-TORRES, a/k/a Cuca; Tarsis Guillermo Sánchez-Mora, a/k/a Guillo; Reinaldo Rodríguez-Martínez, a/k/a Pitbull; Pedro Vigio-Aponte, a/k/a Pedrito and He Man; Carlos M. Guerrero-Castro, a/k/a Carlitos el Negro, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

939 F.3d 16

UNITED STATES of America, Appellee,

v.Victor M. RODRÍGUEZ-TORRES, a/k/a Cuca; Tarsis Guillermo Sánchez-Mora, a/k/a Guillo; Reinaldo Rodríguez-Martínez, a/k/a Pitbull; Pedro Vigio-Aponte, a/k/a Pedrito and He Man; Carlos M. Guerrero-Castro, a/k/a Carlitos el Negro, Defendants, Appellants.

Nos. 16-1507

16-1527

16-1596

16-1984

17-1660

United States Court of Appeals, First Circuit.

September 18, 2019

Lydia Lizarríbar-Masini, San Juan, PR, for appellantVíctor M. Rodríguez-Torres.

Theodore M. Lothstein, Concord, NH, with whom Lothstein Guerriero, PLLC, was on brief, for appellant Tarsis Guillermo Sánchez-Mora.

Vivian Shevitz, White Plains, NY, for appellantReinaldo Rodríguez-Martínez.

Jamesa J. Drake, with whom Drake Law, LLC was on brief, for appellantPedro Vigio-Aponte.

Raúl S. Mariani-Franco, San Juan, PR, on brief for appellantCarlos M. Guerrero-Castro.

Stratton C. Strand, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Brian A. Benczkowski, Assistant Attorney General, and Matthew S. Miner, Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, Alberto R. López-Rocafort, Assistant United States Attorney, and Victor O. Acevedo-Hernández, Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

PREFACE

La Rompe ONU (just "La Rompe" from now on) was one of the largest and most violent of Puerto Rico's street gangs.Another was La ONU.Deadly rivals, each wreaked much havoc on Puerto Rico through serial drug sales, violent robberies and carjackings, and ghastly killing sprees.

After law enforcement took La Rompe down, La Rompe members Rodríguez-Torres, Sánchez-Mora, Rodríguez-Martínez, Vigio-Aponte, and Guerrero-Castro (their full names and aliases appear above) found themselves indicted, then convicted, and then serving serious prison time for committing some or all of the following crimes: conspiracy to violate RICO(short for "Racketeer Influenced and Corrupt Organizations Act"), see18 U.S.C. § 1962(d); conspiracy to possess and distribute narcotics, see21 U.S.C. §§ 846,860(a); use and carry of a firearm in relation to a drug-trafficking crime, see18 U.S.C. § 924(c)(1)(A); and drive-by shooting, see18 U.S.C. §§ 36(b)(2)(A),2(aiding and abetting) — to list only a few.The testimony of several cooperating witnesses — Luis Yanyoré-Pizarro, Oscar Calviño-Ramos, Luis Delgado-Pabón, and Oscar Calviño-Acevedo(persons indicted with our defendants, but who later pled guilty) — helped seal their fate.

Collectively, our defendants' appeals (now consolidated) raise a battery of issues concerning the sufficiency of the evidence for the RICO-conspiracy, drug-conspiracy, and firearms convictions; the admission of out-of-court statements about a murder-by-choking incident; the correctness of the RICO-conspiracy jury instructions; and the reasonableness of two of the sentences.¹We address these subjects in that order, filling in the details (like which defendant makes which claims) as we move along.²But for anyone wishing to know our ending up front, when all is said and done weaffirm .

SUFFICIENCY CLAIMS

Overview

Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora (but not Vigio-Aponte) claim that the prosecution submitted insufficient evidence to sustain some of their convictions:

• Rodríguez-Torres challenges his RICO- and drug-conspiracy convictions, plus his firearm conviction;

• Rodríguez-Martínez contests his RICO- and drug-conspiracy convictions;

• Guerrero-Castro questions his RICO-conspiracy and firearm convictions; and

• Sánchez-Mora (by adopting his codefendants' arguments that apply to his situation) disputes his RICO- and drug-conspiracy convictions.

And so they fault the judge for denying their motions for judgments of acquittal.We will turn to the specifics of their arguments and the government's counterarguments in a minute.But like the government, we find none of their claims persuasive.

Analysis

Standard of Review

We assess preserved sufficiency claims de novo(with fresh eyes, in plain English), reviewing the evidence, and making all inferences and credibility choices, in the government's favor — reversing only if the defendant shows that no rational factfinder could have found him guilty.See, e.g., Ramírez-Rivera, 800 F.3d at 16;United States v. Casas, 356 F.3d 104, 126(1st Cir.2004).For convenience, we'll call this the regular sufficiency standard.An unpreserved challenge, contrastingly, requires reversal only if the defendant shows — after viewing the evidence the exact same government-friendly way — that allowing his conviction to stand will work a "clear and gross injustice."See, e.g., United States v. Freitas, 904 F.3d 11, 23(1st Cir.2018);United States v. Foley, 783 F.3d 7, 12-13(1st Cir.2015)(calling the clear-and-gross injustice metric a "stringent standard" that is "a particularly exacting variant of plain error review").For easy reference, we'll call this the souped-up sufficiency standard.

Adopting a scorched-earth approach, the parties fight over which standard to apply.Convinced that they preserved their sufficiency arguments, Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora argue that we should use the regular sufficiency standard.Unimpressed by their assertions, the government believes that the quartet "waived" aspects of their arguments and that we must therefore apply the souped-up sufficiency standard to those claims.But rather than spend time grappling with the intricacies of this issue, we will assume arguendo in their favor that they preserved each sufficiency argument.

RICO-Conspiracy Crime

RICO makes it a crime "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 [an] enterprise's affairs through a pattern of racketeering activity" — or to conspire to do so.See18 U.S.C. § 1962(c), (d).Broadly speaking (we will have more to say on this below), a RICO-conspiracy conviction requires proof that the defendant 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."

Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352(1997);see alsoAetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1562(1st Cir.1994).

Rodríguez-Torres, Rodríguez-Martínez, Guerrero-Castro, and Sánchez-Mora offer a litany of reasons why the evidence does not support their RICO-conspiracy convictions.Disagreeing with everything they say, the government thinks that the evidence is just fine.We side with the government.³

(i)

enterprise

Enterprises under RICO include "any union or group of individuals associated in fact although not a legal entity."SeeUnited States v. Turkette, 452 U.S. 576, 578 n.2, 101 S.Ct. 2524, 69 L.Ed.2d 246(1981);see alsoRamírez-Rivera, 800 F.3d at 19.Such so-called association-in-fact enterprises may be "proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit."SeeTurkette, 452 U.S. at 583, 101 S.Ct. 2524.The group need not have some decisionmaking framework or mechanism for controlling the members.SeeBoyle v. United States, 556 U.S. 938, 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265(2009)(holding that a RICO enterprise "need not have a hierarchical structure or a ‘chain of command’; decisions may be made on an ad hoc basis and by any number of methods — by majority vote, consensus, a show of strength, etc. ").Instead the group must have "[1] a purpose, [2] relationships among those associated with the enterprise, and [3] longevity sufficient to permit these associates to pursue the enterprise's purpose."⁴Id. at 946, 129 S.Ct. 2237.

As to [1] — "purpose" — the group must share the "common purpose of engaging in a course of conduct."Id.As to [2] — "relationship" — there must also be evidence of "interpersonal relationships" calculated to effect that purpose, i.e. , evidence that the group members came together to advance "a certain object" or "engag[e] in a course of conduct."Id.(quotation marks omitted).And as to [3] — "longevity" — the group must associate based on its shared purpose for a "sufficient duration to permit an association to ‘participate’ in [the enterprise's affairs] through ‘a pattern of racketeering activity,’ "id., though "nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence,"id. at 948, 129 S.Ct. 2237.Also and importantly, because RICO's plain terms "encompass ‘any ... group of individuals associated in fact,’ ... the definition has a wide reach," meaning "the very concept of an association in fact is expansive."Id. at 944, 129 S.Ct. 2237(emphasis added by the Boyle Court).

Measured against these legal standards, the record — visualized most favorably to the government — adequately shows that La Rompe operated as an association-in-fact enterprise.

For starters, the evidence reveals La Rompe's purpose: to get filthy rich by selling drugs at La Rompe-controlled housing projects, using violence (and deadly violence at that) whenever necessary to protect and expand its turf.As cooperator Delgado-Pabón put it, La Rompe's "purpose" was "to make the organization bigger" and "stronger" — "to control all of the housing projects in the metro area" so that it would be rolling in money.On top of that, the evidence shows the necessary relationships between La Rompe members: associates named their group "La Rompe ONU," reflecting that they saw themselves as a united, organized group of drug traffickers — the "ONU" stands for "Organización de Narcotraficantes Unidos"(in English, "Organization...