United States v. Rivera-Carrasquillo, s. 14-1582

• Decision Date: 02 August 2019
• Docket Number: Nos. 14-1582,14-1631,17-1317,14-1715,17-1729,s. 14-1582
• Citation: 933 F.3d 33
• Parties: UNITED STATES of America, Appellee, v. Luis D. RIVERA-CARRASQUILLO, a/k/a Danny KX, a/k/a Danny Vorki; Edwin Bernard Astacio-Espino, a/k/a Bernard, a/k/a Bernal; Ramón Lanza-Vázquez, a/k/a Ramoncito, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

933 F.3d 33

UNITED STATES of America, Appellee,

v.Luis D. RIVERA-CARRASQUILLO, a/k/a Danny KX, a/k/a Danny Vorki; Edwin Bernard Astacio-Espino, a/k/a Bernard, a/k/a Bernal; Ramón Lanza-Vázquez, a/k/a Ramoncito, Defendants, Appellants.

Nos. 14-1582

14-1631

14-1715

17-1317

17-1729

United States Court of Appeals, First Circuit.

August 2, 2019

Peter Goldberger, Ardmore, PA, for the consolidated appellants and on brief, with Pamela A. Wilk, for appellant Luis D. Rivera-Carrasquillo.

Inga L. Parsons for the consolidated appellants and on brief for appellant Ramón Lanza-Vázquez.

Mariem J. Paez, Miami, FL, on brief for appellant Edwin Bernard Astacio-Espino.

Victor O. Acevedo-Hernández, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

THOMPSON, Circuit Judge.

Overview

For many years, a vicious gang called "La ONU" committed unspeakably brutal crimes in Puerto Rico, raking in millions of dollars from drug sales and killing anyone (and we mean anyone ) in its way — police officers, defectors, rivals in the "La Rompe ONU" gang, you name it.¹ Law enforcement eventually took La ONU down, however. And a federal grand jury criminally indicted scores of its members, including appellants Astacio-Espino, Lanza-Vázquez, and Rivera-Carrasquillo (their full names and aliases appear in our case caption).² A bone-chilling read, the superseding indictment (the operative indictment in this case) accused each of these three gangbangers of doing some or all of the following:

• conspiring to violate the Racketeer Influenced and Corrupt Organizations Act, see 18 U.S.C. 1961(d) — familiarly called the RICO conspiracy statute;

• aiding and abetting violent crimes in aid of racketeering, namely murder or attempted murder under Puerto Rico law, see 18 U.S.C. 1959(a) — commonly called the VICAR statute;

• aiding and abetting the use and carrying of firearms during VICAR murders, see 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1) and (2) ;

• knowingly transferring a firearm for use during VICAR murders, see 18 U.S.C. § 924(h) ;

• conspiring to engage in drug trafficking, see 18 U.S.C. §§ 846, 860; and

• conspiring to possess firearms during drug-trafficking crimes, see 18 U.S.C. § 924(o).

After Astacio-Espino moved unsuccessfully to suppress material seized by the government, the case went to trial. And the evidence there painted a damning picture of what the trio did with La ONU, as a sampling makes clear.

A drug-point owner and enforcer (an enforcer hunts down and kills "the enemy," by the way), Astacio-Espino helped murder a police officer and a La Rompe member known as "Pekeke" (whose real name was Christian Toledo-Sánchez).³ Lanza-Vázquez also was a drug-point owner and enforcer. Along with other La ONU members, he helped kill someone thought to be a "squeal[er]." Rivera-Carrasquillo was not just a drug-point owner and enforcer. He was a leader too. He also participated in Pekeke's slaying. And he helped murder someone accused of shooting at a La ONU leader as the leader drove through a La Rompe-allied area. Rivera-Carrasquillo choked him while others from La ONU stomped on his chest until he died. To send a message, apparently, Rivera-Carrasquillo (according to a cooperating witness) "went at" the person "with [an] AK [rifle] and just removed his face" — i.e. , Rivera-Carrasquillo "[e]rased his face."

Taking everything in — testimony from cooperating coconspirators, law-enforcement officials, and forensic-science experts; autopsy and crime-scene photos; physical evidence in the form of seized guns, ammo, and drugs, etc. — the jury found Astacio-Espino, Lanza-Vázquez, and Rivera-Carrasquillo guilty as charged. And the district judge imposed a number of sentences on them, including life sentences (because they do not contest their sentences, we need say no more about that subject).

Hoping to score a new trial, Astacio-Espino, Lanza-Vázquez, and Rivera-Carrasquillo later filed two post-trial motions — one claiming that a partial closure of the courtroom during jury selection constituted "plain, reversible error," and the other alleging that a cooperating witness in a related case had given a different account of Pekeke's murder. But they had no success.⁴

Now before us, Astacio-Espino, Lanza-Vázquez, and Rivera-Carrasquillo press a variety of claims. We tackle the claims one by one below, highlighting only those facts needed to put things in perspective. But for those who want our conclusion up front: after slogging through the issues, we affirm the contested convictions.⁵

Suppression Claim

Background

Astacio-Espino moved pretrial to suppress a cache of guns and drugs seized during the warrantless search of a house (and the SUV garaged there) belonging to Ismael E. Cruz-Ramos — a person indicted with our appellants but whose trial was before a different district judge: Judge William E. Smith (of the District of Rhode Island, sitting by designation), rather than Judge Fusté. Cruz-Ramos had moved earlier to suppress the same evidence taken during the same search. And Judge Smith gave him a split decision, suppressing (for reasons not relevant here) some items (rifles) but not others (handguns and drugs). Convinced that he had "standing" to challenge the search as an "overnight guest" of Cruz-Ramos, Astacio-Espino asked Judge Fusté to suppress everything.⁶ To back up his overnight-guest claim, Astacio-Espino relied heavily on an untranslated Spanish-language declaration by Cruz-Ramos. The next day, Judge Fusté entered an electronic order stating that he was "respecting Judge Smith's ruling on these issues" — though a day later he clarified that he would "not extend[ ]" his colleague's edict "to parties without standing" and that he would "decide the same in the context of trial." When trial came, Judge Fusté ended up "respect[ing]" Judge Smith's order. So Judge Fusté suppressed the rifles, but not the handguns or the drugs — though without explaining why he thought Astacio-Espino had standing, even though the government seemingly sought one.

Arguments and Analysis

Seeking to undo what Judge Fusté did, Astacio-Espino pins his hopes on a straightforward theory. Fairly recently, he notes, a panel of this court partially reversed Judge Smith's suppression ruling in Cruz-Ramos's case. See Ramírez-Rivera, 800 F.3d at 27-33 (holding that the police lacked probable cause for the search and that neither the good-faith exception to exclusionary rule nor the harmless-error doctrine applied). Proclaiming himself "an overnight guest at [Cruz-Ramos's] residence," he insists we should reverse Judge Fusté's suppression decision too, since Judge Fusté simply adopted Judge Smith's now-discredited ruling. Not to be outmaneuvered, the government identifies three supposed bases for affirming Judge Fusté's ruling: Astacio-Espino's failure to argue in his opening brief that he had a legitimate expectation of privacy sufficient to show standing to contest the search; Astacio-Espino's reliance on the untranslated Spanish-language document to establish his status as an overnight guest at Cruz-Ramos's house; and the harmlessness of any error (if error there was) on Judge Fusté's part, given the overwhelming evidence of Astacio-Espino's guilt.

Reviewing the issue afresh ("de novo ," in law-speak), see United States v. Orth, 873 F.3d 349, 353 (1st Cir. 2017) — knowing too that we can affirm on any basis supported by the record, see United States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014) — we think the government has the better of the argument.

Fourth Amendment rights are personal ones. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). So a criminal defendant wishing to challenge a search must prove that he had "a legitimate expectation of privacy" in the searched area, id. at 143, 99 S.Ct. 421 — i.e. , he must show that he "exhibited an actual, subjective, expectation of privacy" and that this "subjective expectation is one that society is prepared to recognize as objectively reasonable," United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009) ; see also United States v. Werra, 638 F.3d 326, 331 (1st Cir. 2011). An overnight guest generally has a reasonable expectation of privacy in his host's home. See, e.g., United States v. Almonte-Báez, 857 F.3d 27, 32 n.4 (1st Cir. 2017) (citing Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ). The problem for Astacio-Espino is that he supported his overnight-guest claim with a Spanish-only declaration — a problem, because judges cannot consider untranslated documents. See, e.g., United States v. Quiñones-Otero, 869 F.3d 49, 53 (1st Cir. 2017) (citing the Jones Act, 48 U.S.C. § 864 ; González-de-Blasini v. Family Dep't, 377 F.3d 81, 88 (1st Cir. 2004) ; and Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 13 (1st Cir. 2007) ).⁷ And this evidentiary gap devastates his suppression argument, because "a failure to present evidence" on the "reasonable privacy" front "prevents a defendant from making a claim for suppression under the Fourth Amendment." See United States v. Samboy, 433 F.3d 154, 161-62 (1st Cir. 2005).⁸

Anonymous-Jury Claim

Astacio-Espino, Lanza-Vázquez, and Rivera-Carrasquillo criticize the judge for empaneling an anonymous jury. But they concede that Ramírez-Rivera — a decision disposing of appeals brought by some of their coindictees — forecloses their argument, and they raise the point only to preserve the issue "for future consideration." Enough said about that, then.

Partial-Courtroom-Closure Claim

Background

While their appeals were pending, Astacio-Espino, Lanza-Vázquez, and Rivera-Carrasquillo jointly moved the district judge to supplement the record on appeal,...