United States v. Leoner-Aguirre

• Decision Date: 20 September 2019
• Docket Number: No. 18-1333,18-1333
• Citation: 939 F.3d 310
• Parties: UNITED STATES of America, Appellee, v. Rafael LEONER-AGUIRRE, a/k/a Tremendo, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

939 F.3d 310

UNITED STATES of America, Appellee,

v.Rafael LEONER-AGUIRRE, a/k/a Tremendo, Defendant, Appellant.

No. 18-1333

United States Court of Appeals, First Circuit.

September 20, 2019

Julia Pamela Heit, New York, NY, for appellant.

Kunal Pasricha, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Lynch, Selya, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

After a two-week trial, a jury in 2017 convicted Rafael Leoner-Aguirre ("Aguirre"), a leader of the MS-13 gang in Massachusetts, of RICO conspiracy, 18 U.S.C. § 1962(d). The predicate acts charged involved murder, robbery, and drug dealing. The district court sentenced Aguirre to 228 months' imprisonment and three years of supervised release.

He appeals from his conviction. Aguirre first argues that the district court erred when it instructed the jury on the requirements to convict him for RICO conspiracy. He argues that the district court erred by not following a statement of the law contained in United States v. Ramírez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015). We hold that the district court was correct to reject this instruction under Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), and United States v. Cianci, 378 F.3d 71 (1st Cir. 2004). Aguirre more generally challenges the jury instructions for failing to require the jury to make an affirmative finding, in the verdict, as to which predicate acts he and his co-conspirators in fact committed. We reject this argument as well for being inconsistent with Salinas.

Further, he argues that the evidence did not negate his affirmative defense that he withdrew from the conspiracy when he was imprisoned. Though he did not so object at trial, he now argues that the district court erred when it instructed the jury on the requirements of a withdrawal defense. Again, case law from the Supreme Court, Smith v. United States, 568 U.S. 106, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013), and this circuit forecloses his argument. Finally, he makes several meritless challenges to the admission of certain testimony. We affirm his conviction.

I.

We state the facts in the light most favorable to the jury's verdict. United States v. Ciresi, 697 F.3d 19, 23 (1st Cir. 2012). The indictment arose from the defendant's activities as a high-ranking member of the Mara Salvatrucha gang, MS-13. MS-13, based in El Salvador and also operating in the United States, is composed of subgroups called "cliques." The "Enfermos" clique operates in El Salvador and Massachusetts.

Around 2012, the Enfermos paid for Aguirre to come to the United States. Aguirre arrived in Michigan, and while he lived there, he created promotional videos for MS-13 to attract new members that touted the gang's mission of killing rivals. In 2014, Aguirre went to Massachusetts with the goal of enlarging the clique, and became its highest-ranking member. He was the "palabrero," the local leader of the Enfermos, and began overseeing the activities of Enfermos members, including by taking control of promotions within the clique, recruiting new members, and disciplining members who broke clique rules. Aguirre also ordered clique members to commit a number of crimes, including robberies, beatings, and murders.

Aguirre also directly participated in three attempted murders, either personally or by ordering the murder be committed by other MS-13 members. The first was on April 6, 2014, and began when Aguirre recognized two rival gang members walking toward him and his girlfriend. Aguirre approached the men and attacked one of them with a machete. The victim defended himself with a box-opening knife. Aguirre struck the victim in the arm and the head with the machete and said, "La Mara Salvatrucha." The victim was hospitalized and lived. He testified at trial about the attack and identified Aguirre as his attacker.

The second murder attempt took place on April 16, 2014, after Aguirre learned that rivals had attacked two Enfermos members. Seeking revenge, Aguirre and three other Enfermos members set out to find the rivals, and spotted Javier Servellon and his friend. A fight ensued; Servellon tried to defend his friend; Aguirre aimed a gun at Servellon and shot him as he tried to run away. Again, the victim was hospitalized and survived. Aguirre was arrested on state charges and a jury, in 2015, convicted him of assault with intent to kill.¹

The third attempt was while Aguirre was in state prison on his assault conviction. He remained the leader of the Enfermos while in prison. He ordered the Enfermos to kill Christian Henriquez, a fellow Enfermos member, suspected of betraying the clique. Daniel Menjivar, an Enfermos member, was recorded as saying that Aguirre gave the order to kill Henriquez. Henriquez also testified at trial that Menjivar had told him that Aguirre gave "the green light" for Henriquez to be killed. Other recordings captured Enfermos members discussing how to kill Henriquez. By April 2015, law enforcement had uncovered the plan and warned Henriquez, who avoided harm.

Aguirre also personally committed multiple armed robberies using a machete and a gun from March 2014 until his arrest in April 2014. Further, an Enfermos member also gave Aguirre money from drug sales.

Aguirre used the money to buy weapons and send money back to El Salvador.

In May 2017, a grand jury indicted Aguirre for RICO conspiracy in violation of 18 U.S.C. § 1962(d). Specifically, the indictment charged that Aguirre was "employed by and associated with MS-13, an enterprise which was engaged in, and the activities of which affected, interstate and foreign commerce." It charged that he "did knowingly conspire with [his co-defendants and other persons] to violate [ 18 U.S.C. § 1962(c) ], that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of the MS-13 enterprise through a pattern of racketeering activity." The indictment further charged "that each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the MS-13 enterprise." The indictment alleged that the pattern of racketeering activity included "multiple offenses involving trafficking in narcotics, including ... marijuana," "multiple acts involving murder," and "multiple acts involving robbery." The indictment named Aguirre as a participant in three attempted murders and alleged that other MS-13 members committed six murders. He was charged with RICO conspiracy; not substantive RICO offenses. As said, he was convicted of the one RICO conspiracy count charged.

II.

We first address Aguirre's challenges to the jury instructions on the elements of RICO conspiracy given at trial. Then we review his arguments about his defense of withdrawal from the conspiracy and the standards for showing withdrawal. Finally, we address the evidentiary issues he raises.

A. Jury Instructions for RICO Conspiracy

Before addressing Aguirre's challenges, we first recount the procedural history of his requests to the district court that the jury be instructed to make certain findings in order to convict him of RICO conspiracy. The nature of his request has evolved over time, and his briefing is unclear as to which request is at issue.

We begin with his first motion, made before his trial began, in which Aguirre requested "that the issue of whether he conspired to commit or further the crime of attempted murder not be considered at sentencing unless submitted to the jury as a RICO predicate offense, and absent a jury's affirmative finding using a reasonable doubt standard." The government opposed this motion as inconsistent with RICO conspiracy law, and the district court denied the request.

On October 27, 2017, at the final pretrial conference, Aguirre raised the question of what a jury must find to convict for RICO conspiracy. His counsel asked, "how exactly [will] we know what the jury found with respect to" the defense's arguments that the crimes Aguirre committed were not predicate acts "if all they're asked to do is come back and say, yeah, there's two predicate offenses, and we don't know which ones they are, we don't have to specify whether they're the attempted murders or the armed robberies or anything else." The government again opposed Aguirre's arguments, and the district court stated that it would not make a final ruling on jury instructions yet.

On November 17, 2017, the district court held the charge conference. The next day, Aguirre filed a supplemental proposed jury instruction that requested "an instruction that explicitly follows the elements of a RICO conspiracy charge as stated in United States v. Ramírez-Rivera." Ramírez-Rivera stated that for a defendant to be convicted of RICO conspiracy, the government must prove, among other elements, that he "participated in the conduct of the affairs of the enterprise ... through a pattern of racketeering activity by agreeing to commit, or in fact committing, two or more predicate offenses." Ramírez- Rivera, 800 F.3d at 18. In so stating, Ramírez-Rivera relied on United States v. Shifman, 124 F.3d 31, 35 (1st Cir. 1997). Ramírez- Rivera, 800 F.3d at 18. But Shifman had been abrogated in this regard by Salinas. See Salinas, 522 U.S. at 65, 118 S.Ct. 469. In its brief to the Ramírez-Rivera panel, the government never argued that Shifman had been abrogated by Salinas. It also failed to respond to the defendants' contention that the First Circuit requires "that [defendants] personally agree to commit two or more racketeering acts," which cited pre-Salinas case law for support.²

On the first day of trial, the district court addressed Aguirre's request in the supplement. The district court noted that Ramírez-Rivera "appears to conflict with [Salinas ]" on the elements of RICO conspiracy. The district court then stated:

I think I have to conclude through inadvertence or mistake that the First Circuit in 2015 misstated what the

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