United States v. Millán-Machuca

• Decision Date: 10 March 2021
• Docket Number: 18-2189,18-2179,18-2195,Nos. 18-2175,s. 18-2175
• Parties: UNITED STATES of America, Appellee, v. Rolando MILLÁN-MACHUCA, a/k/a Rolo; Roberto Casado-Berríos, a/k/a Bobe, a/k/a Bobel ; Miguel Rivera-Calcaño, a/k/a Guelo, a/k/a Kikirimiau; Giordano Santana-Meléndez, a/k/a Viejo Ten, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

991 F.3d 7

UNITED STATES of America, Appellee,

v.Rolando MILLÁN-MACHUCA, a/k/a Rolo; Roberto Casado-Berríos, a/k/a Bobe, a/k/a Bobel ; Miguel Rivera-Calcaño, a/k/a Guelo, a/k/a Kikirimiau; Giordano Santana-Meléndez, a/k/a Viejo Ten, Defendants, Appellants.

Nos. 18-2175

18-2179

18-2189

18-2195

United States Court of Appeals, First Circuit.

March 10, 2021

Lydia Lizarribar-Masini, San Juan, PR, for appellant Rolando Millán-Machuca.

Jason González-Delgado, Caguas, PR, for appellant Roberto Casado-Berríos.

Maria Soledad Ramirez-Becerra, with whom Maria Soledad Ramirez-Becerra Law Office, San Juan, PR, was on brief, for appellant Miguel Rivera-Calcaño.

Anita Hill Adames, with whom Anita Hill Law Office, Hato Rey, PR, was on brief, for appellant Giordano Santana-Meléndez.

William A Glaser, Attorney, Appellate Section, Criminal Division, with whom W. Stephen Muldrow, United States Attorney, Victor O. Acevedo-Hernández, Assistant United States Attorney, District of Puerto Rico, Brian A. Benczkowski, Assistant Attorney General, and John P. Cronan, Principal Deputy Assistant Attorney General, were on brief, for appellee.

Before Lynch, Selya, and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

Appellants Rolando Millán-Machuca, Roberto Casado-Berríos, Miguel Rivera-Calcaño, and Giordano Santana-Meléndez were leaders of La Asociación ÑETA, a Puerto Rico prison organization that distributed large quantities of controlled substances and other contraband throughout several Puerto Rico correctional facilities. The organization also carried out killings, including the murder of inmate Alexis Rodríguez-Rodríguez. The four appellants were charged with racketeering and drug trafficking conspiracies; Millán-Machuca was also charged with murder in aid of racketeering. After an eight-day jury trial, appellants were convicted on all counts.

On appeal, the four appellants challenge the sufficiency of the evidence for their convictions. Millán-Machuca and Rivera-Calcaño seek a new trial, claiming errors in the admission of certain evidence. Millán-Machuca, Casado-Berríos, and Rivera-Calcaño challenge the reasonableness of their sentences. We find these claims meritless and affirm. Additionally, Rivera-Calcaño claims ineffective assistance of counsel at his sentencing hearing, a claim we do not address on the merits. Instead, we dismiss this claim without prejudice.

I.

Our overview of the facts is primarily drawn from the testimony of the government's witnesses at trial. Because appellants appeal, in part, on insufficiency of the evidence grounds, we recount the facts in the light most favorable to the prosecution. See United States v. Vázquez-Soto, 939 F.3d 365, 368-69 (1st Cir. 2019).

A. La Asociación ÑETA

In the 1980s, a group of inmates incarcerated in Puerto Rico prisons formed La Asociación ÑETA ("ÑETA"), an organization with the stated purpose of advocating against abuse and injustice within the prison system. The organization's name stands for "new birth and new beginning." During its decades-long history, this prisoners' rights group evolved into a prison gang running a sophisticated and highly profitable drug and contraband smuggling scheme.

ÑETA functioned through a strict hierarchical structure. Longtime members who were present at the organization's founding were known as "pillars." These individuals occupied a unique position of respect. They did not manage ÑETA's day-to-day operations, but they were consulted for advice and had authority to replace leaders with whom they disagreed. The primary leaders of the organization were known as the "maximum leadership." The "maximum leadership" included two leaders ("Leader 1" and "Leader 2"), two advisors ("Advisor 1" and "Advisor 2"), a secretary, a coordinator, and a treasurer. The next rung in the organizational ladder was the leadership of each correctional facility or "chapter." ÑETA had chapters in several Puerto Rico prisons, including the facilities at Ponce, Bayamón, Guayama, and Zarzal. Each chapter had two chapter leaders, two advisors, a secretary, a coordinator, and a treasurer. Below the chapter leaders were the "floor leaders," who directly supervised the drug trafficking operation, and "missionaries," who carried out orders from the leadership.

ÑETA members were required to follow a set of rules. A new prisoner could not become a member if he had committed certain crimes, such as child abuse or rape. There could be "no stealing" and "[n]o causing trouble." They were told "[do n]ot look at your fellow inmate's visitors," and "[d]o not abuse the weak." Members were expected to obey leaders or face punishment, including exclusion from the organization or a "beatdown." Failure to obey an order from the maximum leadership was punishable by death.

New members of the organization learned ÑETA rules at "seminars," where longtime members explained the ÑETA organization's history and ideals. One ÑETA rule required "[r]espect [for] the shout of the 30th," a reference to a meeting on the 30th day of each month to give a "battle cry" in honor of ÑETA's founder, who had been killed by a rival prison gang. ÑETA had its own hand signal (placing the middle finger on top of the index finger) and used the colors blue and white as a sign of membership.

ÑETA trafficked cocaine, heroin, and marijuana into the Puerto Rico prisons through two primary means. First, some drugs were smuggled in by prison visitors, correctional officers, or civilian employees. These drugs were typically concealed in body cavities. Other drugs arrived by "pitch-ins" -- packages that accomplices on the outside literally "pitched" over the prison walls. ÑETA members would then retrieve the drugs from the prison yards and sell the smuggled substances to other inmates. The monetary transactions were handled by individuals outside of the prison, who sent funds by Western Union or MoneyGram transfers to bank accounts controlled by the leaders of ÑETA. For large transactions in excess of $10,000, outside contacts met in person and exchanged cash.

In addition to the drugs controlled directly by the leadership, some members brought in "personal drugs" from their own sources, which they could use and sell outside of the ÑETA organization's operations if they paid a fee to the organization. This payment, known as an "incentive," was $1,200 for 62 grams of heroin, $500 for 62 grams of cocaine, and $400 for a pound of marijuana. ÑETA also smuggled cell phones and charged a monthly incentive of $20 to $25 to each inmate in possession of a cell phone.

Through civilian smuggling and "pitch-ins," ÑETA trafficked large quantities of controlled substances and other contraband at enormous profit. At the prison in Ponce, ÑETA members introduced about 1.5 kilograms of heroin, one kilogram of cocaine, and 15 to 20 pounds of marijuana each month. In Bayamón, they smuggled in about two kilograms of heroin, 1.5 kilograms of cocaine, and 30 to 35 pounds of marijuana each month. In Guayama, they moved an additional 2.5 kilograms of heroin, 1.5 kilograms of cocaine, and 10 to 15 pounds of marijuana each month. Remarkably, the organization generated six to twelve million dollars in revenue a year, derived both from the organization's own drug distribution and incentives payments.

B. The Appellants

Each of the appellants was an inmate in a Puerto Rico correctional facility, and each held a high-ranking position in ÑETA's leadership structure. Rolando Millán-Machuca (also known as "Rolo") was the organization's third-in-command as Advisor 1 of the maximum leadership. In this position, he "ha[d] to have knowledge of everything," and "everything ha[d] to go through his hands." He managed the distribution of drugs and was authorized to "give orders to kill." In November 2014, he gave such an order, calling for the death of inmate Alexis Rodríguez-Rodríguez (also known as "El Loco"). Following this order, a group of ÑETA members murdered Rodríguez-Rodríguez by strangulation and a heroin overdose. At the time of the relevant events, Millán-Machuca's brother, Avelino Millán-Machuca (also known as "Papito"),¹ was Leader 1 of the maximum leadership, the top leader of the entire organization.

Casado-Berríos (also known as "Bobe" or "Bobel") was a chapter leader at the Ponce minimum security prison; later, after he was transferred to the Zarzal prison, he became Papito's "right-hand man," distributing drugs at both Ponce and Zarzal. The heroin and cocaine he distributed with Papito in Zarzal were "personal" drugs that he was permitted to distribute without paying an incentive because of his high rank in the organization.

Rivera-Calcaño (also known as "Guelo" or "Kikirimiau") held various positions in the ÑETA leadership: leader of the "dialog[ue] committee" assigned to talk to the prison administration about inmates' complaints; a chapter leader in a facility at Bayamón; a chapter leader at a Ponce facility; the leader responsible for "collecting the incentives for the drugs for the maximum leadership" at another facility in the Bayamón complex; and "coordinator and secretary" at Zarzal.

Santana-Meléndez (also known as "Viejo Ten") was recognized as a "pillar." In this position, he had the respect of the maximum leadership and the power to replace any of them. Maximum leadership ordered that he receive special privileges, including a twice-daily "dosage" of heroin, and access to the organization's cell phones, canned goods, or cigarettes without paying.

C. Federal Criminal Proceedings

On May 9, 2016, fifty individuals, including the four appellants, were charged in a multi-count indictment with conspiracy to commit a pattern of racketeering, in violation of 18 U.S.C. § 1962(d), and conspiracy to traffic drugs, in violation of 21 U.S.C. § 846. Millán-Machuca was charged with murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1). During an eight-day jury trial in July 2018,² correctional officers, police officers, Federal Bureau of Investigation agents, and several...