United States v. Velazquez-Fontanez

Decision Date27 July 2021
Docket NumberNos. 18-1188,No. 18-1215, No. 18-2265,19-1010,s. 18-1188,18-1215
Citation6 F.4th 205
Parties UNITED STATES, Appellee, v. Carlos VELAZQUEZ-FONTANEZ, Defendant, Appellant. United States, Appellee, v. Ruben Cotto-Andino, a/k/a Ruben El Negro, Defendant, Appellant. United States, Appellee, v. Jose D. Resto-Figueroa, a/k/a Tego, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Maria Soledad Ramirez-Becerra, with whom Maria Soledad Ramirez Becerra Law Office was on brief, for appellant Carlos Velazquez-Fontanez.

José Luis Novas Debién for appellant Ruben Cotto-Andino.

Michael R. Hasse for appellant Jose D. Resto-Figueroa.

Michael A. Rotker, Attorney, Criminal Division, Appellate Section, with whom W. Stephen Muldrow, United States Attorney, Victor O. Acevedo-Hernandez, Assistant United States Attorney, Alberto R. Lopez-Rocafort, Assistant United States Attorney, and Brian C. Rabbitt, Acting Assistant Attorney General, Criminal Division, were on brief, for appellee.

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

KAYATTA, Circuit Judge.

A federal grand jury in the District of Puerto Rico returned an indictment charging 105 individuals with various criminal offenses connected to La Rompe ONU, a drug trafficking organization that operated from 2007 until at least July 17, 2015, in San Juan, Puerto Rico. Following a trial, three of the indicted defendants -- Carlos Velazquez-Fontanez, Jose D. Resto-Figueroa, and Ruben Cotto-Andino -- were convicted on every count charged against them. On appeal, they challenge their convictions on several grounds. For the reasons that follow, we affirm Velazquez-Fontanez's and Resto-Figueroa's convictions; we vacate Cotto-Andino's convictions; and we remand for further proceedings consistent with this opinion.

I. BACKGROUND

We begin with the essential background facts. In 2004, drug traffickers in San Juan, Puerto Rico, formed "La Organización de Narcotraficantes Unidos" ("La ONU"), a cartel designed to reduce conflicts between traffickers and to avoid police scrutiny. By 2008, La ONU had splintered into two rival gangs, La ONU and La Rompe ONU ("La Rompe"). The two groups have since waged war over control of San Juan's most profitable drug distribution territory. At drug distribution "points" under its control, La Rompe sold marijuana, cocaine, crack cocaine, heroin, and prescription drugs. To secure and finance La Rompe's drug-trafficking activities, its members committed robberies, carjackings, and contract killings.

La Rompe's leaders decided who could sell drugs in its territory, ordered lower-ranking members to commit robberies or killings, and authorized La Rompe members to kill fellow members when intra-gang disputes arose. Members rose up La Rompe's ranks by hunting down and killing members of La ONU.

The indictment claimed that Cotto-Andino, Velazquez-Fontanez, and Resto-Figueroa were members of La Rompe. It charged them with racketeering conspiracy in violation of 18 U.S.C. § 1962(d) based on numerous acts of drug trafficking and several murders, and with conspiracy to possess with intent to distribute cocaine, crack cocaine, heroin, and marijuana within 1,000 feet of a public-housing facility in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860. The indictment also charged Velazquez-Fontanez with drive-by-shooting murder in furtherance of a major drug offense in violation of 18 U.S.C. § 36(b)(2)(A) and with using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), (j)(1)(2). In connection with a separate incident, the indictment charged Resto-Figueroa with drive-by-shooting murder in furtherance of a major drug offense in violation of 18 U.S.C. § 36(b)(2)(A) and with using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), (j)(1)(2).

Velazquez-Fontanez, Resto-Figueroa, and Cotto-Andino were tried together. The jury returned guilty verdicts on every count against each defendant.1 These timely appeals followed.

II. DISCUSSION

We address defendants' appellate challenges to their convictions in the following order: (A) the defendants' sufficiency of the evidence arguments; (B) Cotto-Andino's evidentiary objections; (C) Resto-Figueroa's mistrial motion; (D) Resto-Figueroa's instructional error claims; and (E) Velazquez-Fontanez's and Resto-Figueroa's challenges to the district court's responses to questions asked by the jury during its deliberations.

A. Sufficiency of the Evidence

Each defendant timely moved pursuant to Fed. R. Crim. P. 29 to challenge the sufficiency of the evidence against him. Reviewing de novo the denial of these motions, see United States v. Millán-Machuca, 991 F.3d 7, 17 (1st Cir. 2021), we view the trial record in the light most favorable to the verdict and draw all reasonable inferences in the verdict's favor, see United States v. Meléndez-González, 892 F.3d 9, 17 (1st Cir. 2018). Our task is to determine "whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) (quoting United States v. Henderson, 320 F.3d 92, 102 (1st Cir. 2003) ).

Unlike his two co-defendants, Cotto-Andino challenges several of the district court's evidentiary rulings. When we review those rulings in a later section, we adopt a "balanced" approach, "objectively view[ing] the evidence of record." United States v. Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015) (quoting United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015) ). For now, though, we present the facts relevant to Cotto-Andino's sufficiency challenge in the light most favorable to the verdict.

1. 18 U.S.C. § 1962(d)

The Racketeer Influenced and Corrupt Organizations Act makes it "unlawful 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 such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c). The elements of a substantive RICO offense consist of "(1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity." Salinas v. United States, 522 U.S. 52, 62, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). RICO also makes it "unlawful for any person to conspire to" commit a substantive RICO offense. 18 U.S.C. § 1962(d). To prove a RICO conspiracy offense, the government must show 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.’ " United States v. Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019) (alterations in original) (quoting Salinas, 522 U.S. at 65, 118 S.Ct. 469 ).

Unsurprisingly, none of the defendants contends that the government failed to prove the existence of a far-ranging RICO enterprise and conspiracy. Eyewitness testimony described in detail the rise of La Rompe as a coordinated and hierarchal organization, with members bound together by shared hand signals, meetings, drug distribution, and the use of violence to maintain power and control over drug points in the face of competition from La ONU. Each defendant challenges instead the sufficiency of the proof that he was a member of that RICO conspiracy.

The Supreme Court has made clear that holding a particular person responsible for the acts of a RICO conspiracy does not require the government to prove that that person committed or even agreed to commit two or more racketeering acts. See Salinas, 522 U.S. at 65, 118 S.Ct. 469. Rather, "the government's burden ... is to prove that the defendant agreed that at least two acts of racketeering would be committed in furtherance of the conspiracy." Millán-Machuca, 991 F.3d at 18 (quoting United States v. Leoner-Aguirre, 939 F.3d 310, 317 (1st Cir. 2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 820, 205 L.Ed.2d 499 (2020) ).2

So, for each defendant, we ask whether the government presented evidence from which a reasonable jury could have concluded that each defendant knowingly agreed that at least two racketeering acts would be committed in furtherance of La Rompe's ends.

a. Cotto-Andino

Three cooperating witnesses testified that Cotto-Andino controlled La Rompe's drug point at the Jardines de Cupey public-housing facility, and two of those three also testified that Cotto-Andino ran La Rompe's drug point at the Brisas de Cupey public-housing facility. To avoid attracting the attention of the police, Cotto-Andino delegated day-to-day responsibility for running the Jardines de Cupey drug point to the Morales Castro brothers, known as Nestor and Bimbo. In return, Nestor and Bimbo paid Cotto-Andino a portion of the drug point's proceeds -- referred to as "rent" or a "ticket." Cotto-Andino made a similar arrangement with Nestor and Bimbo for the Brisas de Cupey drug point. In addition to interacting with Cotto-Andino, Nestor and Bimbo also attended meetings with La Rompe's supreme leader, "Mayito."

Given La Rompe's raison d'être, i.e., to provide revenue from drug sales for its leaders, Cotto-Andino's control of two La Rompe drug points provided ample evidence that he had agreed that drugs would be repeatedly sold in furtherance of La Rompe's conspiracy. Indeed, this evidence placed him at or at least near the heart of the conspiracy.

Cotto-Andino points to evidence establishing an alternative explanation for his admitted involvement at or near the drug points, i.e., he worked lawfully as a construction contractor on jobs in Jardines de Cupey and Brisas de Cupey. For purposes of our sufficiency analysis, however, we can presume that the jury rejected that view of his conduct in favor of witness testimony identifying Cotto-Andino, Nestor, and Bimbo as leaders of La Rompe and its drug trafficking operation in Jardines de Cupey and Brisas de Cupey. See, e.g., ...

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