U.S. v. Torres, Nos. 97-2416

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtBefore SELYA, Circuit Judge, ALDRICH and CAMPBELL; SELYA
Citation162 F.3d 6
PartiesUNITED STATES of America, Appellee, v. Erick TORRES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mark RODRIGUEZ, Defendant, Appellant. . Heard
Decision Date06 November 1998
Docket Number972417,Nos. 97-2416

Page 6

162 F.3d 6
UNITED STATES of America, Appellee,
v.
Erick TORRES, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Mark RODRIGUEZ, Defendant, Appellant.
Nos. 97-2416, 972417.
United States Court of Appeals,
First Circuit.
Heard Nov. 6, 1998.
Decided Dec. 3, 1998.

Page 8

Martin I. Flax, by appointment of the court, for appellant Torres.

David P. Shapiro, by appointment of the court, for appellant Rodriguez.

Louis M. Fischer, Attorney, Appellate Section, Criminal Division, Department of Justice, with whom Donald K. Stern, United States Attorney, and Andrew Levchuk and Ariane D. Vuono, Assistant United States Attorneys, were on brief, for the United States.

Before SELYA, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

Page 9

SELYA, Circuit Judge.

A jury convicted defendants-appellants Erick Torres and Mark Rodriguez of a potpourri of offenses, including conspiracy to commit violent crimes to maintain or increase their positions in a racketeering enterprise; attempted murder, maiming, and assault with a dangerous weapon for that purpose; carrying firearms during and in relation to a violent crime; and possession of an unregistered firearm. See 18 U.S.C. §§ 1959(a), 924(c); 26 U.S.C. § 5861(d). In addition, the jury convicted Torres of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Following the imposition of lengthy prison sentences, both defendants appealed.

We recount the facts in the light most congenial to the verdict, consistent with record support. See United States v. Houlihan, 92 F.3d 1271, 1277 (1st Cir.1996). Given the strength of the government's case, a sketch suffices.

A drive-by shooting occurred in Springfield, Massachusetts, on February 21, 1995. The shooters wounded two juveniles (Stephenson Bellevue and Jesus Gambora). The victims' companion, William Scott, witnessed the incident but escaped unscathed. The police were alerted in a timely fashion and spotted the shooters' car in nearby Holyoke. They trailed the occupants to an apartment building. Once there, attention focused on a particular apartment and the authorities sought access. The tenant, Rafael Rodriguez (father of Mark Rodriguez), allowed the officers to enter the premises and conduct a consensual search.

The principal searcher, state trooper John Spellacy, found Mark Rodriguez in his bed, feigning sleep. Spellacy then discovered Torres and a third suspect, Francisco Hernandez, hiding behind a dresser in the same bedroom. The authorities took the three youths into custody. At that point, Rafael Rodriguez withdrew his consent. The officers honored his wish, secured the premises and proceeded to obtain a warrant. The ensuing search unearthed sundry firearms, a receipt for the purchase of firearms, Mark Rodriguez's firearms identification card, gang literature, and other incriminating material.

Investigation revealed that the appellants held positions as "warlords" in a gang known as "La Familia." The drive-by shootings occurred after a key La Familia member was attacked and the gang vowed to exact revenge. The prosecution's theory, apparently credited by the jury, was that the appellants shot two innocent teenagers in the mistaken belief that they were members of a rival gang.

These appeals present no close questions. The appellants try; they raise a multitude of arguments, but all of them are bootless. We discuss briefly six prominently featured points. The appellants' other plaints require no comment, and we reject them out of hand.

1. Sufficiency of the Evidence. Torres contests the sufficiency of the evidence on both the weapons offenses and the RICO-related charges. Faced with such a challenge, we assay the evidence in the light most amiable to the government, draw all reasonable inferences in its favor, and determine whether, so viewed, a rational factfinder could conclude, beyond a reasonable doubt, that the government proved the essential elements of each offense. See United States v. Hernandez, 146 F.3d 30, 32 (1st Cir.1998); United States v. Olbres, 61 F.3d 967, 970 (1st Cir.1995). Measured against this benchmark, Torres' insufficiency challenge is patently frivolous insofar as it is addressed to the weapons offenses. See, e.g., Muscarello v. United States, 524 U.S. 125, ----, 118 S.Ct. 1911, 1918, 141 L.Ed.2d 111 (1998); Bailey v. United States, 516 U.S. 137, 148, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); United States v. Valle, 72 F.3d 210, 217 (1st Cir.1995).

As to the RICO-related charges, the challenge is only marginally more robust. To convict on the substantive RICO offenses under the instructions presented to the jury, the government had to prove that La Familia qualified as an enterprise engaged in racketeering activity; that Torres held a position in it; and that he committed (or aided and abetted the commission of) the violent crimes described in the indictment in order to maintain

Page 10

or increase his position in the enterprise. See United States v. Fiel, 35 F.3d 997, 1003 (4th Cir.1994); United States v. Vasquez-Velasco, 15 F.3d 833, 842 (9th Cir.1994); see also 18 U.S.C. § 1959(a). Torres' insufficiency challenge targets the last two elements, namely, whether he committed the crimes of violence and whether he did so to further his standing in the gang.

Torres' protests are unavailing. As to whether he participated in the shootings, the testimony of Wanda Rodriguez, a government witness, is little less than damning. Apparently recognizing this problem, Torres argues that her testimony was incredible. As a general rule, however, credibility determinations are for the jury, not for an appellate court. See United States v. O'Brien, 14 F.3d 703, 707 (1st Cir.1994). That rule indubitably applies to claims of evidentiary insufficiency. See United States v. Woodward, 149 F.3d 46, 56 (1st Cir.1998) (holding that, on such a challenge, an appellate court will not weigh the credibility of witnesses). Its application here frustrates Torres' effort to undermine the jury verdict. Nor does Wanda Rodriguez's testimony stand alone. It was corroborated by, inter alia, Mark Rodriguez's admission (in Torres' presence) to a fellow gang member, compelling ballistics evidence, and abundant circumstantial proof.

As to the final element of the offense, Torres' argument founders on our recent decision in United States v. Tse, 135 F.3d 200 (1st Cir.1998), in which we held that the government can satisfy this element...

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64 practice notes
  • U.S. v. Lopez-Lopez, No. 00-2016.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 19, 2002
    ...to trial and so his argument is waived under Rule 12(f). United States v. Bashorun, 225 F.3d 9, 13 (1st Cir.2000); United States v. Torres, 162 F.3d 6, 10-11 (1st Cir.1998). Lopez-Lopez has not even attempted to offer an explanation for his failure to move to suppress. He has not shown caus......
  • United States v. Burhoe, Nos. 15-1542 15-1612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 8, 2017
    ...else.33 Arguably the defendants waived the question of consent by failing to raise it in their opening briefs. United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (noting that "issues raised for the first time in an appellant's reply brief are generally deemed waived"). At ora......
  • U.S.A. v. Collazo-Aponte, COLLAZO-APONTE
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 4, 1999
    ...the district court level, that theory is generally regarded as forfeited and cannot be advanced on appeal." United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998); see also United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when a party has not pr......
  • U.S. v. Lee, No. 02-1644.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 17, 2003
    ...erroneously denied his motion for a mistrial. We review the denial of a mistrial motion for abuse of discretion. United States v. Torres, 162 F.3d 6, 12 (1st Cir.1998); United States v. Pierro, 32 F.3d 611, 617 (1st The pertinent facts are not disputed. The district court had sustained the ......
  • Request a trial to view additional results
64 cases
  • U.S. v. Lopez-Lopez, No. 00-2016.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 19, 2002
    ...to trial and so his argument is waived under Rule 12(f). United States v. Bashorun, 225 F.3d 9, 13 (1st Cir.2000); United States v. Torres, 162 F.3d 6, 10-11 (1st Cir.1998). Lopez-Lopez has not even attempted to offer an explanation for his failure to move to suppress. He has not shown caus......
  • United States v. Burhoe, Nos. 15-1542 15-1612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 8, 2017
    ...else.33 Arguably the defendants waived the question of consent by failing to raise it in their opening briefs. United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (noting that "issues raised for the first time in an appellant's reply brief are generally deemed waived"). At ora......
  • U.S.A. v. Collazo-Aponte, COLLAZO-APONTE
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 4, 1999
    ...the district court level, that theory is generally regarded as forfeited and cannot be advanced on appeal." United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998); see also United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when a party has not pr......
  • U.S. v. Lee, No. 02-1644.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 17, 2003
    ...erroneously denied his motion for a mistrial. We review the denial of a mistrial motion for abuse of discretion. United States v. Torres, 162 F.3d 6, 12 (1st Cir.1998); United States v. Pierro, 32 F.3d 611, 617 (1st The pertinent facts are not disputed. The district court had sustained the ......
  • Request a trial to view additional results

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