THOMPSON, Circuit Judge.
After a jury convicted Defendants-Appellants José Laureano-Salgado, Pedro Ramírez-Rivera, and Ismael Cruz-Ramos (collectively, "the Defendants")
For the reasons discussed below, we reverse Cruz-Ramos's conviction and sentence and remand his case for a new trial. We affirm Laureano-Salgado's and Ramírez-Rivera's convictions and sentences.
To give a lay of the land, we start with only a brief overview of this case. We fill out relevant portions of the story — in, as we invariably explain, whatever light our law demands, and relying on whatever record support is appropriate — as they are needed throughout our analysis of the various issues the Defendants have raised.
Until 2004, the majority of street-level drug sales in the San Juan-metropolitan area of Puerto Rico were controlled by gangs operating out of public housing projects. Sales in each housing project were generally controlled by each project's own drug gang.
The name of the game back then was control of the drug points, and the gangs fought for decades to maintain and grow their territories. The violence that accompanied their disputes naturally drew the attention of both local and federal authorities. As a result, drug sales took a hit, and large conspiracy indictments were handed down.
Around 2004, nearly all the drug gang leaders from the area reached an agreement that to reduce the inter-project conflicts and keep the cops away, they would form an alliance. They named it "La Organización de Narcotraficantes Unidos" (Spanish for "The Organization of United Drug Traffickers"), or "La ONU" for short. The leaders agreed that if a conflict arose among La ONU members, they would meet to discuss it (as opposed to immediately resorting to shootouts). Under the new regime, La ONU members would be permitted to visit other La ONU-affiliated housing projects (and to also sell drugs there), so long as they got permission from that project's leader. The La ONU leaders also met regularly to discuss drug-related issues and to resolve conflicts.
While the alliance operated "for a time," for reasons unknown it "weakened" as certain
With the rising of La Rompe, La ONU's direction changed. Its mission became to "maintain control over the drug points in their housing projects by force and to kill La Rompe members and leaders in order to expand." The organization's "unwritten" rules required that La ONU members remain loyal to each other, while relentless to the enemy. La ONU members could not kill other La ONU members without go-ahead from the leadership; nor could they overtake La ONU-owned drug points. Not only were La ONU members forbidden from associating with La Rompe members, they were also required to kill them on-sight. La ONU members were not permitted to cooperate with law enforcement. And breaking any of these rules meant death to the traitor (and/or his family members).
La ONU leaders continued to meet with each other to resolve internal conflicts and discuss strategy for overtaking drug points at other (La Rompe-controlled) housing projects. They regularly pooled resources to buy weapons and cars. When attacks on La Rompe members would go down, each La ONU project contributed an enforcer (i.e., hit man).
La ONU also continued to traffic drugs (crack, cocaine, heroin, and marijuana) and committed various violent acts (including murders) to enforce its rules and grow its territory. For instance, La ONU put hits out on La Rompe leaders. La ONU launched machine-gun shootouts in La Rompe projects. During one such shootout near Trujillo Alto Bridge, two women — a police officer and librarian — were killed. La ONU was also connected to the May 2010 shooting take-down of a police helicopter, allegedly committed by Edwin Bernard Astacio Espino ("Bernard"), a La ONU member.
Betraying La ONU called for an equally devastating fate. For instance, when a La ONU member stole a gun and gave it to a La Rompe member, he too, was killed. So was a La ONU leader who got caught stealing drugs from the organization, and a member who cooperated with police.
After the helicopter shooting, an arrest warrant was issued for Bernard (whom the police apparently could not find). The police caught a lucky break in August 2010, when an informant tipped them off that Bernard was hiding out at Cruz-Ramos's house, stashing weapons and drugs. Afraid they would miss the chance to arrest Bernard if they waited any longer, the police searched Cruz-Ramos's house (without a warrant), found Bernard, arrested him (and the several other people in the house, including Cruz-Ramos), and seized the drugs and guns they found at the home. Police also arrested other La ONU members for various crimes around 2010 to 2011.
With that, in March 2012, a grand jury indicted 33 people for their alleged involvement in La ONU from 2004 through
Amongst the indictment's 33 counts, the Defendants here were charged with five:
Puerto Rico District Court Judge José A. Fusté was assigned to preside over the 33-person case, but at some point the indicted defendants were split up into two groups for purposes of trial (one group being the defendants who were facing the death penalty, and the other group being the defendants who were not). Judge Fusté presided over the trial of the death-eligible defendants, and Judge William E. Smith, a Rhode Island district judge, sat in designation to preside over the trial of the non-capital defendants (including Cruz-Ramos, Laureano-Salgado, and Ramírez-Rivera).
As motion practice took way, and as jury selection in the Defendants' case lingered imminent, the government asked the district court to empanel an anonymous jury because the Defendants were "part of an organized crime ring that is both willing and able to intimidate and harm jurors."
Judge Fusté empaneled the jury for the non-capital trial on January 23, 2013, several days before the trial was scheduled to start.
During voir dire (i.e., the process during which the court questions the potential jurors to determine whether they are fit to sit on the jury), Judge Fusté informed the potential jurors that their names, addresses, and places of employment would be kept anonymous, and that they would each be assigned an identifying number to "ward off curiosity and seekers of information that might otherwise infringe on [their] privacy."
The judge asked the jurors numerous questions during voir dire, and instructed them to raise their hands if the answer was "yes" to any of the questions, after which point the court would individually address their concerns. Among numerous other topics, the judge asked a question about the jurors' familiarity with the 2010 police helicopter shooting. He informed the jurors that while La ONU was "associated" with the incident, the shooting would not come up during the trial because the Defendants were not charged with that shooting. Some of the jurors raised their hands in response to the question, and the judge followed up with them individually.
After voir dire concluded, the jury (including alternates) was selected. But a few days before the start of trial, Juror No. 30 wrote a letter to the court asking to be excused because she was experiencing anxiety from having to sit on the jury. In response, the Defendants asked the court to conduct further voir dire of all the empaneled jurors, contending that Juror 30 could have "infected" the other jurors "by creating bias against" them.
Judge Fusté decided to interview Juror 30 (outside of the Defendants' presence, though their lawyers were allowed to be there) and concluded that she was unfit to serve on the jury for mental health reasons (essentially, she was intimidated by the Defendants). After the interview, Judge Fusté dismissed the juror and replaced her with an alternate. He also denied the Defendants' request to individually poll the other empaneled jurors.
Judge Smith got started with the Defendants' trial on February 7, 2013. Among the evidence the government presented was testimony from law enforcement and cooperating La ONU members, as well as physical evidence police seized, like guns and drugs.
After seven days, the jury convicted the Defendants on all counts. The Defendants then moved for either an acquittal or a new trial based on lack of sufficient evidence, pursuant to Federal Rules of Criminal Procedure 29(a) and 33. Judge Smith denied the motions, finding that the government's
Now on appeal the Defendants argue that numerous errors occurred prior to and during the trial, such that their convictions should be vacated — or at the least that they should get a new trial. Assuming those arguments do not convince us, the Defendants further argue that their sentences were improper for various reasons.
We address each of the Defendants' many arguments in turn.
We begin our task by addressing whether the evidence put before the jury was sufficient to convict the Defendants. We tackle this issue first because if the Defendants are right, the remedy is about as drastic as they come — we would have to throw out their convictions, and because of the Double Jeopardy Clause of the Fifth Amendment, the government would not get another shot at re-trying them on these charges. See United States v. Negrón-Sostre, 790 F.3d 295, 306-07 (1st Cir. 2015). Of course, a successful sufficiency challenge would then render all the Defendants' other claims (of reversible trial and sentencing error) moot.
We review sufficiency challenges de novo. Id. at 307. We consider all the direct and circumstantial evidence in the light most flattering to the government, "drawing all reasonable inferences consistent with the verdict, and avoiding credibility judgments, to determine whether a rational jury could have found the defendants guilty beyond a reasonable doubt." Id. (internal quotation marks and alteration omitted). Essentially, "we will reverse only if the verdict is irrational." United States v. Brandao, 539 F.3d 44, 50 (1st Cir.2008) (internal quotation marks omitted).
In reviewing sufficiency challenges, we consider whether all the evidence offered by the government and admitted by the court was sufficient for a guilty verdict, even if the court erroneously admitted some of that evidence.
Turning now to the evidence, there's no question that the government's case against the Defendants (particularly when it came to Laureano-Salgado and Ramírez-Rivera) heavily relied on testimonial evidence from three cooperating witnesses who were arrested around 2011 for their
The allegations in the indictment largely ended up panning out at trial. According to the witnesses' testimony, from around 2007 to 2011, La ONU operated as a "union" or "gang" of drug dealers from several housing projects (including Las Dalias, Las Gladiolas, El Prado, and Los Jardines de Selles), which had the goal of "control[ling] the other housing projects and thus have more power." La ONU's main rival was La Rompe, which controlled projects like Trujillo, Cupey, and Alturas de Cupey.
The two gangs were at "war" over the "control of the drug points." Dominating the drug points was important to La ONU for a simple reason: by eliminating the competition in the La Rompe-controlled projects, La ONU could earn more drug money.
To effectuate its goals, La ONU had rules. If you see an enemy, kill him. Don't cooperate with police. And don't associate with the enemy. The punishment for breaking a rule was death.
The evidence showed that La ONU walked the walk, and not only were La Rompe members attacked and killed, disloyal La ONU were in fact punished by death. For instance, around 2008 or 2009, a La ONU member stole a rifle and gave it to a La Rompe member. After he confessed to giving the rifle to the enemy, La ONU members killed him. In 2009, a La ONU leader was killed for stealing drugs from the organization. And yet another La ONU member was killed for cooperating with police. The witnesses testified that it was important to participate in these types of violent acts to maintain their status with La ONU, even though that might mean killing police officers. It was necessary for members to maintain their positions in La ONU because "once you join the organization, you can't get out."
The testimony also demonstrated that Defendant Ramírez-Rivera was the heroin point owner in both Las Gladiolas and Las Dalias, as well as a La ONU leader. Ramírez-Rivera was so high up in the organization that without his permission, "nothing could be done," according to Gutierrez-Santana. And Ramírez-Rivera ordered other La ONU members to kill La Rompe associates. In addition to supplying heroin, weapons, and ammunition to the organization, Ramírez-Rivera also provided the cash to buy weapons and cars. And he sometimes lent his own gun to La ONU members when they went to other projects for a shooting.
From around 2008 to 2011, Defendant Laureano-Salgado served as Ramírez-Rivera's drug runner (meaning he brought product to drug points and picked up the money the drug points earned), and was a cocaine point owner at Las Gladiolas.
Defendant Cruz-Ramos was a heroin point owner at Las Gladiolas and provided firearms to the La ONU members who were from Las Gladiolas. He also lent weapons, including an AK-47, to other La ONU members.
To prepare for shootouts, La ONU generally held meetings, which were always conducted by the same people (including Cruz-Ramos, Ramírez-Rivera, and Laureano-Salgado).
The government also elicited testimony about several La ONU-sanctioned murders, but at trial the Defendants were only directly implicated in one — the murder of La Rompe boss Christian Toledo-Sánchez,
Given that evidentiary backdrop, we first address the sufficiency of the evidence as to the Defendants' RICO conspiracy conviction under 18 U.S.C. § 1962(d).
The Racketeer Influenced and Corrupt Organizations Act, or "RICO," 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 or collection of unlawful debt." 18 U.S.C. § 1962(c). Section 1962(d) also prohibits any person from conspiring to violate § 1962(c). "The major difference between a violation of § 1962(c) itself and a violation of § 1962(d) based on § 1962(c) is the additional required element that the defendant knowingly joined a conspiracy to violate § 1962(c)." United States v. Shifman, 124 F.3d 31, 35 (1st Cir.1997) (citation and alterations omitted).
Thus, "[f]or a defendant to be found guilty of conspiring to violate RICO, the government must prove (1) the existence of an enterprise affecting interstate [or foreign] commerce, (2) that the defendant knowingly joined the conspiracy to participate in the conduct of the affairs of the enterprise, (3) that the defendant participated in the conduct of the affairs of the enterprise, and (4) that the defendant did so through a pattern of racketeering activity by agreeing to commit, or in fact committing, two or more predicate offenses." Id. (internal quotation marks and alteration omitted).
Here, the Defendants argue that the evidence was not sufficient for elements one, three, and four.
To start off, the Defendants' argument that the government presented insufficient evidence that La ONU was a RICO enterprise affecting interstate or foreign commerce carries no water. RICO defines an enterprise as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). Thus, an enterprise "need only be a group of persons associated together for a common purpose of engaging in a criminal course of conduct," and "need not be a legitimate business or a form of organization sanctioned by state law." United States v.
Still, even though such an "association in fact" suffices to satisfy the "enterprise" requirement, see 18 U.S.C. § 1961(4), the law is clear that "the government nonetheless must prove that the enterprise existed in some coherent and cohesive form." Nascimento, 491 F.3d at 32. "It follows that the enterprise must have been an `ongoing organization' operating as a `continuous unit.'" Id. (citation omitted). Put simply, a RICO enterprise "possesses some goal or purpose more pervasive and more enduring than the instant gratification that can accrue from the successful completion of each particular criminal act." Id.
Here, the government presented more than sufficient evidence that La ONU operated as an enterprise. Even if the Defendants are correct that La ONU started off as a truce between the different housing-project gangs, those groups concertedly combined their efforts for a specific, ongoing purpose — in the beginning, to sell drugs, and later, to also stomp out the competition (specifically, La Rompe). This super-gang, if you will, although a merging of smaller gangs that still operated their existing drug points, became "ongoing and identifiable" by its name; the organization even had a special hand gesture (i.e., gang sign). See United States v. Patrick, 248 F.3d 11, 19 (1st Cir.2001) (finding that an enterprise existed where the "gang was ongoing and identifiable" by name and gang sign). La ONU also had rules and structure. Truant members and enemies were killed, but not before leaders first signed off on the killings. Before committing acts of violence on behalf of the organization, members had to get permission from La ONU leaders, who hosted meetings to discuss shootouts before they were carried out. See id. (taking into account that the enterprise "had `sessions' where important decisions were made, including decisions about taking action against rival drug dealers").
Therefore, while the Defendants urge that the La ONU organization did not have all the traditional indicia of a typical street gang (e.g., use of colors, initiation rites, and a formal hierarchy), as the Supreme Court has pointed out, RICO's "enumeration of included enterprises is obviously broad, encompassing `any ... group of individuals associated in fact.'" Boyle v. United States, 556 U.S. 938, 944, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009) (quoting 18 U.S.C. § 1961(4)). "The term `any' ensures that the definition has a wide reach, and the very concept of an association in fact is expansive." Id. (citation omitted). As we fleshed out above, La ONU "exhibited group cohesion over time; its membership pooled and shared resources; the individuals involved had a sense of belonging and self-identified as [La ONU] members; and the group had a well-honed set of goals." Nascimento, 491 F.3d at 33. We deem that more than enough for a RICO enterprise. See id.
Further, we also easily find that La ONU engaged in or conducted activities that affected foreign commerce.
RICO also requires the government to prove that the Defendants participated in the conduct of the enterprise's affairs. According to the Supreme Court, that means "participation in the operation or management of the criminal enterprise." Shifman, 124 F.3d at 35-36 (quoting Reves v. Ernst & Young, 507 U.S. 170, 184-85, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993)). It suffices for this element that a defendant be "plainly integral to carrying out the enterprise's activities." Id. at 36 (internal quotation marks omitted).
Despite the Defendants' attempts to dilute the rather damning evidence of their active leadership roles in La ONU, we find that this element was also clearly satisfied. As we discussed above, the testimony reflected that all three Defendants owned drug points in La ONU-controlled projects. Of course, drug-point ownership was a vital component to the La ONU conspiracy, given that the whole point of the enterprise was to maintain control of as many drug points as possible to earn more money. On these facts alone, we conclude the jury had abundant reason to find that the Defendants were integral parts of the enterprise's activities.
Finally, the Defendants contend that there was insufficient evidence that they participated in the conspiracy by agreeing to commit (or actually committing) a pattern of racketeering activity. Not so.
To satisfy the "pattern" element for a RICO conspiracy, the statute requires that "a defendant agreed with one or more others that two predicate offenses be committed." Shifman, 124 F.3d at 35 (internal citation and alteration omitted). RICO specifically enumerates what counts as a "predicate offense," and includes (among many other crimes) murder and drug dealing. See 18 U.S.C. § 1961(1). "Aiding and abetting one of the activities listed in § 1961(1) as racketeering activities makes one punishable as a principal and amounts to engaging in that racketeering activity." Shifman, 124 F.3d at 36 (citing 18 U.S.C. § 2).
RICO also requires that the defendant commit the two racketeering acts within 10 years of one another. 18 U.S.C. § 1961(5). Additionally, the Supreme Court has said that the "acts must be related and `amount to or pose a threat of continued criminal activity.'" Shifman, 124 F.3d at 36 (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)).
We conclude that the evidence was sufficient for the jury to find that each of the Defendants participated in La ONU by agreeing to engage in a pattern of racketeering. First, despite the Defendants' representation to the contrary, there was witness testimony that all the Defendants were part of the 2010 planning meeting for Pequeque's murder.
Second, as we noted above, the record reflected evidence that each Defendant, as drug point owners, engaged in drug trafficking for La ONU-controlled drug points between 2007 and 2011. See 18 U.S.C. § 1961(1) (listing "dealing in a controlled substance" as a RICO predicate). The Defendants do not seriously dispute this point either, arguing only that their drug-selling at the individual drug points "did not contribute to La ONU's objectives" because the drugs were sold only for the benefit of the individual gangs at each housing project.
We have already rejected the Defendants' notion that selling at the individual housing projects did not contribute to La ONU's mission to take over the drug market, but even if the Defendants' sales did not directly financially benefit La ONU, their claim would still fail. It suffices that "the defendant was able to commit the predicate acts by means of, by consequence of, by reason of, by the agency of, or by the instrumentality of his association with the enterprise." Marino, 277 F.3d at 27. "[T]he defendant need not have channeled the proceeds of the racketeering activity into the enterprise," and "[i]t is unnecessary for the pattern of racketeering to have benefitted the enterprise in any way." Id. at 28. Particularly given the ensuing "war" with La Rompe over the drug points, the jury could have reasonably inferred that the Defendants' drug-trafficking success (i.e., their ability to survive) was attributable to their alliance with, allegiance to, and high-ranking status in La ONU.
All in all, the RICO conviction stands.
In a similar vein, the Defendants unconvincingly argue that the jury heard insufficient evidence to sustain their conviction for Violent Crime in Aid of Racketeering Activity ("VICAR") under 18 U.S.C. § 1959(a).
VICAR prohibits murder (or conspiracy to commit murder) "for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.
As to the second VICAR element, the Defendants have provided no developed reasoning as to why the trial evidence would not suffice to show at least part of their motive for the murder was to "advance or maintain their position within" La ONU. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (noting that undeveloped arguments are waived).
We need not tarry on this point. The VICAR conviction stands.
For the Defendants' last sufficiency challenge, they urge that they were improperly convicted of conspiring to possess firearms because none of the guns that were introduced or mentioned at trial actually belonged to La ONU.
18 U.S.C. § 924(o) provides that "[a] person who conspires to commit an offense under [18 U.S.C. § 924(c) ] shall be imprisoned for not more than 20 years, fined under this title, or both; and if the firearm is a machinegun or destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any term of years or life." And 18 U.S.C. § 924(c)(1)(A) provides a minimum imprisonment term for
The Defendants argue that there was no evidence presented that they used or carried firearms "in furtherance" of a
In sum, we find that the evidence was abundantly sufficient to convict the Defendants of the contested crimes.
Because we find that the evidence presented to the jury was sufficient to support the Defendants' convictions, we now turn to the Defendants' allegations regarding supposed errors that might warrant a new trial. Specifically, Cruz-Ramos argues that the district court erred in denying the motion to suppress the August 2010 search of his home that led to his arrest, the seizure of numerous guns and large amounts of drugs, and the arrest of Bernard and several other people in the house. The Defendants also collectively argue that the district court erred during jury selection and in making certain evidentiary rulings at trial.
To start us off, Cruz-Ramos claims that the district court erroneously denied his motion to suppress the fruits of the 2010 police search of his home (and the car garaged there), as the police had no probable cause to enter his home without a warrant, let alone to search. He also argues that the statements he made to police after the search (and his subsequent arrest) should also be suppressed as fruits of the poisonous search.
Because we agree with Cruz-Ramos that probable cause was lacking and therefore the search of the home and car violated the Fourth Amendment, we find that the evidence seized during the search should have been suppressed. We also conclude that including the erroneously admitted evidence at trial was not harmless, given the lack of other compelling evidence linking Cruz-Ramos to drug crimes, and thus, a new trial for Cruz-Ramos is warranted.
Based on the testimony from three law enforcement agents (the only witnesses to testify at the suppression hearing), the district court made the following factual findings. See United States v. Beras, 183 F.3d 22, 24 (1st Cir.1999) ("In reviewing the court's denial of defendant's motion to suppress, we recite the facts as found by
On August 28, 2010, Puerto Rico Police Department Officer Carlos A. Jimenez-Rolon showed up at Las Dalias housing project around 2:30 a.m. to conduct a "preventative round" (Las Dalias had one of the highest crime rates of the island's housing projects). During the round, Officer Jimenez-Rolon saw a man walking. The Officer got out of his (marked) car and told the man to stop.
Instead of complying, the man took off running. Officer Jimenez-Rolon gave chase. The man reached into his pocket and threw an unidentified object toward the second story of the nearby building.
Office Jimenez-Rolon realized he wouldn't be able to catch the fleer, so instead went to investigate what the man had purged from his pocket. Officer Jimenez-Rolon went up to the second floor of the nearby building and discovered a different man lying down (presumably in the hallway), with a firearm at his side. Officer Jimenez-Rolon arrested this man and took him to the police station.
At the police station, Officer Jimenez-Rolon began to interview the arrested man. The arrestee told Officer Jimenez-Rolon that if the police could provide security to his family, he would tell them where to find Bernard, one of Puerto Rico's most-wanted fugitives for allegedly shooting down the municipal helicopter. Officer Jimenez-Rolon brought his supervisor, Lieutenant Luis David Flores-Ortiz, into the loop, and Lieutenant Flores-Ortiz agreed to the deal and continued with the interview. Lieutenant Flores-Ortiz had not met or spoken to the man prior to this encounter, and as far as the Lieutenant knew, the man had never previously served as an informant to the Puerto Rico police.
The arrestee (who we'll call from now on "the Informant") told Lieutenant Flores-Ortiz that Bernard was hiding at a house in the Berwind Estates housing subdivision in Rio Piedras with at least four other people — Cruz-Ramos, two females, and perhaps other unidentified males. Bernard would have on him "many weapons, firearms, and controlled substances," the Informant warned. Four rifles would also be hidden in a flower box on the terrace, and sidearms (like Berettas and Glocks) and drugs would be in a hidden compartment in a red Ford Expedition. The Informant did not provide any further details concerning what police would find at the home, nor a description of the house.
The Informant said Bernard wouldn't stick around for long and would depart at sun-up through the back of the house. The Informant further warned that Bernard would open fire at the police as soon as he saw them. Upon leaving the Berwind Estates home, Bernard would head for the Las Dalias housing project, the Informant claimed, "at which point the PRPD would lose their opportunity to arrest him" that night.
The brief interview ended sometime between 3:30 and 4:00 a.m. Despite the fact that neither the Puerto Rico police nor
With that, shortly after the interview ended, Officer Jimenez-Rolon drove the Informant to the house where Bernard was supposedly located. After they reached Berwind Estates and passed a manned security hut, the Informant pointed out a "good-sized residence" with "lots of vegetation" behind and to the side of it. The vegetation was relatively thick, but someone hiding in the bushes could still be seen from certain angles. A terrace with a flower box was also visible.
Apparently satisfied with what he had observed, Officer Jimenez-Rolon took the Informant back to the police station, and around 5:00 a.m., the police returned to the house to arrest Bernard. They did not attempt to obtain either a federal or local search warrant to enter or search the home.
After the police secured the home's perimeter (and extended the perimeter out to the guardhouse), an "entry team" comprising six officers "entered through the property through the vegetation on the side of the house, crossed over the terra-cotta floored portion of the carport driveway, and proceeded to the door located on the side terrace." To enter the carport, the officers "had to jump a cement wall," and to enter the terrace, they opened a closed gate.
From the terrace, the officers saw through a window an unidentified female sitting in the kitchen. They told her they were police, instructed her to stay silent, and asked her to open the door. She complied. They asked the woman where Bernard was, and she said he was in the bedroom.
While the police made their way to the bedroom, other men (including Cruz-Ramos) appeared out of adjacent rooms. The officers detained them. The police continued into the bedroom, where they found Bernard in a bed "either asleep or just half-awake." Close by Bernard was a pistol. They arrested him. All of the detained people were also arrested for harboring a fugitive.
With everyone under arrest and the house secure, Officer Jimenez-Rolon searched the flower box on the terrace, where he found hidden under the dirt four rifles. Then he went in the house, walked through the foyer and through a glass door that opened into the carport, where a red Ford Expedition was parked. In the car, Officer Jimenez-Rolon found a hidden compartment with weapons, ammo, and drugs. Officer Jimenez-Rolon seized all of the drugs and guns he found.
Cruz-Ramos, along with the other arrestees, was taken to the police department following his arrest. Sometime between 10:30 a.m. and noon, Cruz-Ramos was placed in a "small room" with three federal agents for an interview, which was not recorded. Cruz-Ramos was verbally apprised of his constitutional rights (particularly, his right to remain silent and his right to an attorney), and while he acknowledged that he understood them, he refused to sign any paperwork waiving his rights.
The police proceeded to interview Cruz-Ramos anyway, and he told the agents that he lived in the house where he and Bernard were arrested, but that he was originally from the Las Gladiolas housing project. He admitted to being "affiliated with a group of housing projects that were partners and supported each other."
Based on all these facts, the district court concluded that the police had probable cause to search Cruz-Ramos's home without a warrant. Specifically, the court found that "[a]lthough the Informant had never provided information before, and only offered the information upon his arrest and interrogation, all of the other facts and circumstances support the [police's] conclusion that the Informant was indeed truthful and reliable." Those facts were: the Informant was arrested in Las Dalias, "a housing project that Bernard was associated with"; the Informant provided very detailed information; the Informant agreed to travel with Officer Jimenez-Rolon to "point[] out the precise residence, which matched the description he had already provided"; and the Informant put himself in danger by providing the tip. The court also found that exigent circumstances were present, namely, Bernard's risk of escape and the threat he posed to public safety.
Additionally, the court concluded that the warrantless search of the Ford Expedition was legal, as the Informant had provided a basis for probable cause that guns and drugs were hidden in it. While the court found no exigency, it nonetheless denied suppression of the car-search based on the "auto exception" to the warrant requirement. See United States v. Polanco, 634 F.3d 39, 42 (1st Cir.2011) (noting that under the "auto exception," if "there is probable cause to believe a vehicle contains evidence of criminal activity, agents can search without a warrant any area of the vehicle in which the evidence may be found" (internal quotation marks omitted)). Even if the automobile exception didn't apply though, the police made a "good faith error" because based on their "legal presence on [the] property, the probable cause known to them at the time, and the automobile exception, it was entirely reasonable for them to believe that the warrantless search of the Expedition was justified," the district court concluded. See Illinois v. Krull, 480 U.S. 340, 348-49, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (recognizing that evidence resulting from a Fourth Amendment violation should only be suppressed "if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment" (internal quotation marks omitted)). The court did, however, exclude the search of the flower box, on the grounds that even though the police had probable cause, there were no exigent circumstances to justify searching there because Bernard had been arrested and the house was secure, rendering safety a non-issue. The court likewise excluded the fruits of the flower-box search (four rifles found under the dirt) because they dropped from a poisonous tree (the illegal search of the flower box), and no "good faith" exception applied.
As for Cruz-Ramos's statement to the police, the court found that it could not be
As we hinted at above, the focus of our analysis here is on whether the police had probable cause to search Cruz-Ramos's home. Cruz-Ramos argues that since the sole basis of probable cause was the uncorroborated tip from an unknown informant, the police needed more than just his word to search without a warrant.
"[W]e review de novo the district court's conclusions of law, including its application of the law to the facts, its probable cause ... determination[], and the district court's ultimate legal decision to grant or deny the motion to suppress." United States v. Camacho, 661 F.3d 718, 724 (1st Cir.2011). In assessing whether there was probable cause for a search, "our task, like that of the ... district court, is simply to make a practical, common-sense decision whether, given all the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. McLellan, 792 F.3d 200, 208 (1st Cir.2015) (internal quotation marks and alterations omitted).
We first provide a little background on the relevant law before diving into our analysis. The Fourth Amendment instructs that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Based on this constitutional tenet, the law clearly establishes that even when police have a warrant to arrest someone, a search warrant is still "ordinarily required to enter the home of a third person to arrest an individual who is believed to be inside the home." Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir.1999).
"Nevertheless, a warrantless entry into a person's dwelling may be permitted" to effect an arrest, United States v. Samboy, 433 F.3d 154, 158 (1st Cir. 2005), so long as two conditions are met: one, the police had probable cause to enter the home, and two, "exigent circumstances" existed, like a fugitive's threat to public safety. Hegarty v. Somerset Cty., 53 F.3d 1367, 1373-74 (1st Cir.1995). And probable cause only "exists when the totality of the circumstances suggests that there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Gifford, 727 F.3d 92, 98 (1st Cir.2013) (internal quotation marks omitted).
As was the case here, police often rely on tips from confidential informants to underlie probable cause. But the principle is long-standing that "[e]ven where a search warrant is obtained, the police must show a basis for the search beyond the mere fact of an assertion by an informer." Recznik v. City of Lorain, 393 U.S. 166, 169, 89 S.Ct. 342, 21 L.Ed.2d 317 (1968). It follows then that "[a]t least as much is required to support a search without a warrant." Id. at 169-70, 89 S.Ct. 342. Therefore, when, as here, "the primary basis for a probable cause determination is information provided by a confidential informant," law enforcement must "provide some information from which a [court] can credit the informant's credibility." Gifford, 727 F.3d at 99. In other words, a "probable cause finding may be based on an informant's tip so long as the probability of a lying or inaccurate informer
To help assess an informant's reliability, we look to a "nonexhaustive" list of factors:
United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir.2011) (citations, internal quotations marks, and alterations omitted).
Applying these factors to the instant case, we find that there is simply no indication on this record that the police explored the Informant's basis of knowledge for the information he relayed, or that the police bothered to corroborate any of the information that actually suggested that criminal activity was afoot at Cruz-Ramos's home. Even if we were to agree with the district court that the information the Informant provided was detailed, we find that because the police did not sufficiently test the reliability of the detailed information, the denial of the motion to suppress cannot stand.
Specifically, nothing in the district court's factual findings "indicates the informant's basis of knowledge," such as whether the informant had firsthand knowledge of Bernard's whereabouts (i.e., he had seen Bernard at the house), or just "heard about it as hearsay" or "through rumor." See Gifford, 727 F.3d at 100; cf. Illinois v. Gates, 462 U.S. 213, 234, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("[An informant's] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case."). Notably, the only basis Lieutenant Flores-Ortiz articulated for trusting the Informant was that because he "came from" the same housing project as Bernard, "[h]e could form a part of [Bernard's] close-knit group." That inference could implicate every resident in the complex, yet Lieutenant Flores-Ortiz apparently never bothered to ask the Informant whether he actually was part of Bernard's crew. The Informant could have been relaying a rumor he overheard on the street, or even fabricating the information. It is also undisputed that the police here had no "past history with the informant to establish that informant's credibility." See Gifford, 727 F.3d at 100; cf. United States v. Dixon, 787 F.3d 55, 59 (1st Cir.2015) (that informant had given police "fruitful tips in the past" and police had met with the informant before "in person on several occasions" supported the informant's reliability).
Furthermore, while the district court credited the police for corroborating the Informant's tips, our review shows that the only information the police actually corroborated before they entered the premises was the Informant's (very general) outside description of the house. Indeed, all the police did here before entering the premises was drive by the home and confirm the readily apparent details the Informant described — that the home was in the gated community the Informant identified and had a flower box.
But this kind of information, indeed, the kind that is immediately visible to anyone who passes the house, is not — without more — useful information when it comes to making a probable cause determination.
Our outcome should be no surprise, given our precedent. In addition to the test we laid out in Tiem Trinh, we have emphasized on multiple occasions that an informant's reliability must be vetted. For instance, in United States v. Jordan, we carefully weighed the police's efforts to corroborate a hearsay tip, and specifically noted some of the "various means" by which an informant could be corroborated, such as "direct surveillance or circumstantial evidence," "vouchsaf[ing]" by a "highly experienced law enforcement officer," "independent corroboration" (i.e., conducting controlled drug buys), and most particularly, the informant's history of providing "reliable information and investigative assistance to the police in the past." 999 F.2d 11, 13-14 (1st Cir.1993). We found that on balance, all of these efforts on the part of the police sufficed to corroborate the informant's
In contrast, anyone driving by Cruz-Ramos's home could parlay the generic description the Informant gave, and confirming only those innocuous details is not, on its own, sufficient to corroborate a tip from an unknown confidential informant. The Informant did not even say that the house was the only one in the area with a flower box, meaning that the flower box's existence did not make for a distinguishing characteristic. Given the lack of other indicia of the Informant's reliability, the police had an obligation to corroborate something of the tip before entering Cruz-Ramos's home without a warrant. See Recznik, 393 U.S. at 169, 89 S.Ct. 342 (finding that police did not have probable cause to enter a home when no "effort was made to show that either the petitioner or the apartment was at that time connected with" criminal activity, and the police did not "even attempt to establish that the informers were reliable"). In sum, there was no probable cause to search Cruz-Ramos's home.
Cruz-Ramos further asserts that the search of his car was also illegal for lack of probable cause. As we discussed above, the Informant's tip was not sufficiently reliable on its own, and we agree with Cruz-Ramos that the same reasoning extends to the search of the Expedition. See United States v. Dickerson, 514 F.3d 60, 66 (1st Cir.2008) (noting that police may only conduct "a warrantless search of a car if there is probable cause to believe" the car has "contraband or evidence of a crime" (emphasis added)). Contrary to the district court's decision, we conclude that the initial entry into the home was illegal, and so the police could not form probable cause from what illicit activity they observed once they entered the home. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) ("The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all."). Thus, there was no basis for probable cause to search the Expedition.
For the same reason, the so-called "automobile exception" to the Fourth Amendment does nothing to save the search of Cruz-Ramos's car (assuming the exception even applies to a car parked within the curtilage of a defendant's home, as was the case here). See Coolidge v. New Hampshire, 403 U.S. 443, 460-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Sure, "the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home," such that "warrantless examinations of automobiles have been upheld in circumstances in which a search of a home ... would not."
One final point on probable cause — that the police actually did end up finding guns, drugs, and, of course, Bernard in Cruz-Ramos's home cannot enter our calculus, as "[a] search unlawful at its inception may [not] be validated by what it turns up." United States v. Mercedes-De La Cruz, 787 F.3d 61, 69 (1st Cir.2015) (quoting Wong Sun, 371 U.S. at 484, 83 S.Ct. 407 (internal quotation marks omitted)).
Based on these facts,
We must next consider whether the evidence seized as a result of the illegal search should also have been suppressed at trial. It is well established under the "exclusionary rule" that generally, "evidence seized during an unlawful search [can]not constitute proof against the victim of the search." Wong Sun, 371 U.S. at 484, 83 S.Ct. 407. That is, the government "may make no use of evidence illegally seized." Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). It's clear, then, that per the plain language of the exclusionary rule, the physical evidence seized during the illegal search of Cruz-Ramos's home (including the car and flower box), should have been suppressed. The district court said as much when it determined that if the initial entry into Cruz-Ramos's home was illegal, "then everything subsequently discovered by the [police] would be subject to suppression as fruit of the poisonous tree."
Like most rules, however, the exclusionary rule has exceptions. We examine their applicability next.
"Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid by the justice system." Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2428, 180 L.Ed.2d 285
We conclude that the good-faith exception does nothing for the government here. For one, the government did not ask us to invoke the exception. Cf. United States v. Wurie, 728 F.3d 1, 13 (1st Cir. 2013) (finding that a good-faith argument can be waived, at least when the government fails to raise it below); United States v. Archibald, 589 F.3d 289, 301 n. 12 (6th Cir.2009) (declining to address the good-faith exception where it had not been "raised, preserved, or argued by the government"). In fact, the government makes no argument concerning the good-faith exception at all, even though it "bears the heavy burden of proving that the good-faith exception applies." Wurie, 728 F.3d at 13 (internal quotation marks omitted).
Regardless, the good-faith exception would not help the government in this case. Lieutenant Flores-Ortiz admitted at the evidentiary hearing that the reason the police did not try to get a warrant was because "to get a warrant, PRPD must `conduct several surveillances over a period of days, a lot of photographs, videos; and the process gets complicated. It's a process that takes a great deal of time.'" Cruz-Ramos urges us to interpret this testimony as an admission that the police specifically knew that corroboration was generally necessary for probable cause, did not want to put in the work required to get it, and decided to barge into Cruz-Ramos's home anyway. And the government makes no argument that we should interpret the testimony differently. Based on Cruz-Ramos's interpretation of the testimony (which is not contradicted by the district court's findings, and, again, importantly, was not disputed by the government), the officers' disregard of the lack of probable cause was certainly deliberate, such that excluding the evidence would have "[r]eal deterrent value," Davis, 131 S.Ct. at 2427-28, in discouraging future intentional and unlawful police practices. See Krull, 480 U.S. at 348-49, 107 S.Ct. 1160; Herring v. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (noting that the primary purpose of the exclusionary rule is "deterring Fourth Amendment violations in the future").
But the law instructs us that "[w]hen the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs." Id. (internal quotation marks omitted). So is the case here, as we cannot overlook the egregious Fourth Amendment violation that occurred. At the end of the day, law enforcement simply cannot cut corners at the cost of a person's constitutional privileges.
We conclude that the exclusionary rule bars the admission of evidence obtained from the illegal search of Cruz-Ramos's house and car.
Even if the evidence was illegally obtained (and even if the police had no good-faith reason to seize it), we will only remand for a new trial if letting in the evidence was not harmless. United States v. Burgos-Montes, 786 F.3d 92, 114 (1st Cir.2015). While the government does not address this issue in its brief,
Since the error here "rises to the level of constitutional," we must assess whether "we can consider the error harmless beyond a reasonable doubt." United States v. Trenkler, 61 F.3d 45, 60 n. 22 (1st Cir.1995). We must find, then, that beyond a reasonable doubt, it is "highly probable that the result would have been the same" if the error had not occurred. United States v. Leon-Delfis, 203 F.3d 103, 112 (1st Cir.2000) (internal quotation marks omitted). "We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of." United States v. Argentine, 814 F.2d 783, 789 (1st Cir.1987). Instead, "[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id.
Cruz-Ramos points out (and the government does not dispute) that the evidence seized from Cruz-Ramos's car — seven guns, and more drugs than we care to recount — was the only physical evidence at trial that directly connected Cruz-Ramos to La ONU activities (or to any drug trafficking). As far as we can tell, without this physical evidence the only other evidence connecting Cruz-Ramos to anything illegal was the testimony of the cooperators, which they provided in exchange for leniency in their own cases. Further, as Cruz-Ramos points out, even if we take
All in all, neither the good-faith exception to the exclusionary rule nor the harmless-error doctrine apply here. Therefore, Cruz-Ramos is entitled to a new trial, and the evidence that was illegally seized from his home cannot be introduced.
We are left with one unresolved issue concerning the motion to suppress. While, as we discussed above, it's clear that the physical evidence seized during the illegal search of Cruz-Ramos's home should have been suppressed, whether Cruz-Ramos's statements to the police should have been too is a tad trickier since the statement was provided after the search of the house.
In examining this more complicated question, we generally look at "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 488, 83 S.Ct. 407 (internal quotation marks omitted). The district court did not undertake this inquiry, given its finding that the search was legal. Further, the government does not address this issue (along with numerous others) at all in its brief (meaning it is likely waived). However, because this question "depends primarily upon weighing the facts in the particular case, ... and is thus a matter especially suitable for resolution by the district court in the first instance," United States v. Acosta-Colon, 157 F.3d 9, 21 (1st Cir.1998) (internal quotation marks omitted), we think it appropriate that the district court address this issue on remand. See id.; United States v. Cordero-Rosario, 786 F.3d 64, 78 (1st Cir.2015).
For the reasons discussed, we must reverse in-part the district court's denial of the motion to suppress, vacate Cruz-Ramos's conviction, and remand his case for further proceedings consistent with this opinion. Because we find that Cruz-Ramos is entitled to a new trial based on suppression error, we need not address his
We move on to the grievances pressed by his cohorts.
Having resolved Cruz-Ramos's appeal, we turn now to the issues raised by Laureano-Salgado and Ramírez-Rivera. We start with their qualms with jury selection.
First up, the Defendants claim that the district court erred in empaneling an anonymous jury, arguing that it violated their Sixth Amendment right to a public trial before an impartial jury.
We review this claim for abuse of discretion. United States v. DeLuca, 137 F.3d 24, 31 (1st Cir.1998). "Our review takes into account not only the evidence available at the time the anonymous empanelment occurred, but all relevant evidence introduced at trial." Id.
Let's review the legal backdrop for the Defendants' claim. "It is constitutional bedrock that `[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.'" Sampson v. United States, 724 F.3d 150, 163 (1st Cir.2013) (quoting U.S. Const. amend VI). To protect this important right, certain safeguards are generally put in place during jury selection. For instance, jurors' names and some other identifying personal information are made available to the parties (and sometimes to the public). See 28 U.S.C. § 1863(b)(7).
However, "a district court may empanel an anonymous jury in any case in which `the interests of justice so require.'" United States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir.1998) (quoting 28 U.S.C. § 1863(b)(7)). Because "empanelment of an anonymous jury should be recognized as an extraordinary protective device, especially if it tends to suggest that the jurors may have something to fear from the accused, thereby conceivably encroaching upon the presumption of innocence," DeLuca, 137 F.3d at 31, we have held that empaneling an anonymous jury "is a permissible precaution" only when two requirements are satisfied: "(1) there are strong grounds for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused." Id.
Considering both of these factors, we find that the district court acted well within its discretion to empanel an anonymous jury in this case. On the "strong grounds" prong, we have considered a variety of factors in looking at whether this standard has been satisfied. For instance, we have chewed over the defendants' link to organized crime, "a factor which strongly indicate[s] that clandestine outside assistance might be brought to bear in any effort to intimidate or punish jurors"; the defendants' involvement in violent crime; their attempts to witness tamper; and the potential for "mandatory lifetime sentences upon conviction, which surely provide[s] a strong inducement to resort to extreme measures in any effort to influence the outcome of their trial." Id. at 32 (alterations omitted). Ultimately, though, we assess whether the "record as a whole affords sufficient foundation for empaneling an anonymous jury both as a prudent safety precaution and a means of ensuring unfettered performance of the factfinding function." Id.
Here, the indictment alleged — and the evidence proved — that the Defendants were part of an organized drug-trafficking
The district court also adopted reasonable safeguards to minimize infringement on the Defendants' constitutional rights. Rather than bring up any concern for the jurors' safety, the judge told the jurors that they would remain anonymous to avoid media interference. He instructed the jurors that the Defendants were to be presumed innocent no fewer than four times during the course of jury selection. He also informed the jurors that while he would read portions of the indictment to give them a flavor of the case, the indictment was not "evidence of guilt or of anything else." See id. (finding that Judge Fusté, the same judge who empaneled the jury in this case, "took satisfactory precautions to protect the defendants' rights" when he "did not mention any threat to juror safety, but, rather, informed the jurors that they would remain anonymous during the trial because of publicity concerns. He then instructed the jury on the presumption of innocence, and periodically repeated that instruction as the trial progressed.").
Finding no error in the district court's decision to empanel an anonymous jury, we move on to the next issue.
The Defendants' next claim is that the district court mishandled voir dire, insofar as the court did not appropriately probe into the jurors' possible biases. Specifically, the Defendants refer to three supposed problems: (1) Juror No. 56, who, according to the Defendants, raised her hand when the court asked about the jury's familiarity with the helicopter shooting, was not asked any follow-up questions; (2) after the jury was seated, the court disclosed that one juror lived in Trujillo Alto municipality, which was nearby the 2010 La ONU-La Rompe shootout that led to the death of a police officer and civilian bystander; and (3) the court did not sufficiently vet whether all the jurors could speak and understand the English language. Essentially, then, the Defendants
We review the first issue — the district court's handling of voir dire — for abuse of discretion.
Upon assessing the record, we find that no abuse of discretion occurred here simply because the court declined to ask the jurors more voir dire questions to appease the Defendants. While "[a] probing voir dire examination is [t]he best way to ensure that jurors do not harbor biases for or against the parties," Sampson, 724 F.3d at 163-64 (internal quotation marks omitted), "a district court need not ... pose every voir dire question requested by a litigant." Orlando-Figueroa, 229 F.3d at 44 (internal quotation marks omitted). "It is more than enough if the court covers the substance of the appropriate areas of concern by framing its own questions in its own words." Id.
Here, the district court asked the potential jurors whether any of them had knowledge of the helicopter shooting. The court followed up with each person who raised his or her hand in response. While the judge indicated that he was taking notes as to which jurors raised their hands, when defense counsel stated that he thought the court had missed the fact that "Juror 54" had raised her hand,
As to the juror who lived in Trujillo Alto, the Defendants contend that the court should have asked prior to seating the jury where each juror resided, because people who lived near the area of the Trujillo Alto shooting "would have been greatly affected and scared by the ...
Concerning the jurors' language abilities, the court did not abuse its discretion by declining to further inquire into the jurors' English-language skills. When defense counsel expressed concern that one particular juror had trouble understanding English, the court probed further with the juror, who answered all of his questions in English. In particular, when the judge asked what kind of jury service that juror had done in the past, the juror explained, "[o]ne criminal case." When the Defendants later raised the juror's language skills again with the court (a generous assumption, given that all the attorney actually said was, "I was having a hard time understanding her"), the judge indicated that he "understood her perfectly." Given the "special deference" we afford to the trial court's conclusions that are drawn from its face-to-face interactions with jurors during selection, we find that the court did not abuse its discretion in so determining. See United States v. Sherman, 551 F.3d 45, 51 (1st Cir.2008); see also United States v. Lemmerer, 277 F.3d 579, 592 (1st Cir.2002) ("Our cases make clear that the judgment of the trial judge, who can appraise the jurors face to face, deserves great weight." (internal quotation marks and alteration omitted)). The Defendants also have not directed us to any other jurors for which they had language-comprehension concerns. See Orlando-Figueroa, 229 F.3d at 45 (finding no abuse of discretion where "defendants do not point to any evidence that any juror's ability to understand English was deficient").
To the extent the Defendants argue (however sparsely) that Juror 56 and the juror from Trujillo Alto should have been dismissed because of their bias against the Defendants, we reject that claim as well.
Next, the Defendants argue that the district court committed per se reversible error in its handling of Juror 30, who asked to be excused prior to the start of trial because of her fear of the Defendants. They argue that the court should not have prohibited them from being present during the juror's in camera interview. They also say that the district court should have polled the other jurors to ensure Juror 30 did not taint them with her bias.
We review the right-to-be-present claim de novo. United States v. Brown, 669 F.3d 10, 32 (1st Cir.2012). Further, "the exclusion of a defendant from a trial proceeding should be considered in light of the whole record." United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). We review the denial of the jury polling for abuse of discretion. See United States v. Villar, 586 F.3d 76, 82 (1st Cir.2009) (citing United States v. Connolly, 341 F.3d 16, 33-34 (1st Cir.2003) ("[T]he district court's response to an allegation of juror misconduct is generally reviewed only for abuse of discretion.")).
We first address whether the district court erred by excluding the Defendants from the in camera interview. A defendant's constitutional right to be present during his trial proceedings largely derives from the Sixth Amendment, which, as we noted above, guarantees the defendant a "speedy and public trial, by an impartial jury," as well as the right "to be confronted with the witnesses against him." See Gagnon, 470 U.S. at 526, 105 S.Ct. 1482. However, the Supreme Court has "recognized that [the] right [to be present during trial proceedings] is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him," id., such as jury empanelment. This due process protection exists only when "a fair and just hearing would be thwarted by [the defendant's] absence, and to that extent only." Id.
Thus, the high Court has articulated that a defendant only "has a due process right to be present at a proceeding" when "his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Id. (internal quotation marks omitted). In other words, "[a] criminal defendant has a constitutional right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." United States v. Fernández-Hernández, 652 F.3d 56, 65 (1st Cir.2011) (internal quotation marks omitted).
We also reject the Defendants' claim that the court should have individually questioned each juror to determine whether Juror 30's bias against the Defendants contaminated the other jurors. "When a non-frivolous suggestion is made that a jury may be biased or tainted by
Even assuming (without deciding) that the Defendants' suggestion that Juror 30 biased the rest of the jury is non-frivolous (a point we seriously doubt, given the fact that the jurors had not yet sat together at trial), we find that the district court probed enough to assure itself that Juror 30 did not taint the other jurors. As we noted above, the Defendants have provided no suggestion even that Juror 30 communicated or interacted with the other jurors, let alone that she had communicated to them her anxiety about sitting on the jury. See United States v. Maceo, 873 F.2d 1, 6 (1st Cir.1989) (noting that the "the defendant has the burden of proving prejudice or jury bias"). Furthermore, the Defendants have not shown (or suggested) that even if Juror 30 communicated her anxiety to the other jurors, the other jurors actually became biased as a result, such that they would have to be excused from the jury. See Sampson, 724 F.3d at 165 ("Jurors normally are subject to excusal for cause if they are biased or if they fail to satisfy statutory qualifications.").
Seeing no merit in the Defendants' claims regarding jury selection, we turn to their next set of arguments.
Next on the list, the Defendants dispute a number of the district court's evidentiary rulings made during the trial, arguing that they amounted to reversible error.
We review a trial court's objected-to evidentiary rulings for abuse of discretion. United States v. Rodríguez-Berrios, 573 F.3d 55, 60 (1st Cir.2009). Likewise, a trial court's determination of whether evidence is more probative than prejudicial is also reviewed for abuse of discretion. See United States v. Walker, 665 F.3d 212, 229 (1st Cir.2011). We stay "mindful that the trial judge has savored the full taste of the fray, and his considerable discretion must be respected so long as he does not stray entirely beyond the pale." United States v. Rodríguez, 215 F.3d 110, 121 (1st Cir.2000) (internal quotation marks omitted).
Say Defendants, the district court should have allowed them to impeach the government's star witness (Figueroa-Viera) with evidence that he was untruthful during his plea negotiations. Specifically, the Defendants refer to Figueroa-Viera's testimony that after he was arrested for his drug-trafficking activities with La ONU, he pleaded guilty to the charges brought against him. He signed a plea and cooperation agreement with the government in exchange for a reduced-sentence recommendation. The cooperation agreement required that Figueroa-Viera disclose "all information known to [him] regarding any criminal activity." It also required that he "agree[] to provide truthful, complete and accurate testimony, information
On cross, defense counsel attempted to question Figueroa-Viera about his plea agreement. The attorney asked:
The government objected, which the court sustained, letting defense counsel know that he could try again if he could lay a foundation for the question.
The defense showed the witness a copy of his plea agreement and continued:
Before continuing with his questions, and to head-off another round of objections, the attorney asked for a sidebar to proffer the foundation for his next line of questions. The attorney explained that defense investigators had uncovered that Figueroa-Viera had killed someone during a 2011 bakery hold-up, which he did not disclose to the government in violation of his plea agreement. The government objected, arguing that this line of questioning was forbidden by Federal Rule of Evidence 608(b), as evidence that the witness committed a murder was a specific instance of conduct not probative of the witness's truthfulness (more on Rule 608(b) in a little bit).
The court, however, acknowledged that if the witness had not adhered to the plea agreement's requirement that he provide accurate information to the government, his failure to disclose his criminal activity could go to his credibility. Thus, the court ruled that the defense could "ask the witness whether he has complied with this agreement and answered all the questions truthfully and provided accurate answers to the government investigators." Per Rule 608, however, the defense could not ask questions about the bakery murder because it constituted a "specific instance of conduct" that the defense was attempting to use to impeach the witness. Also acknowledging that the witness's answer to the last-asked question was unclear (the court interpreted the witness's "yes" to mean that he was not completely truthful to the government, while the government interpreted the witness to mean the opposite), the court also allowed the defense attorney to go back and clarify that particular question.
Now Federal Rule of Evidence 608(b) says that "[e]xcept for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness."
But the Defendants do not tell us what more they wanted to ask Figueroa-Viera to probe his truthfulness. Whether Figueroa-Viera committed the bakery murder does not tell anything of his tendency to be truthful, unless he was required to tell the government about the murder and did not. Indeed, the district court allowed the defense to ask about whether Figueroa-Viera disclosed to the government all the murders he committed in Puerto Rico, and this question goes right to the heart of whether the witness was truthful in his dealings with the government.
Next, the Defendants claim that the district court should not have let in testimony about a murder that the Defendants were not charged with. The Defendants claim that this evidence was introduced only to rile up the jury.
Federal Rule of Evidence 401 provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." And we have previously held that when the scope of a RICO conspiracy includes murder as a tool to further the enterprise, a "murder [is] still relevant to the RICO counts as it tended to prove the existence and nature of the RICO enterprise and conspiracy," even when all the indicted defendants are not charged for the particular killing. United States v. DeCologero, 530 F.3d 36, 54 (1st Cir.2008). Here, cooperating witness Figueroa-Cancel testified that the reason he participated in the Pep Boys murder was because La ONU leaders instructed him to, and "if the leader ordered us to kill anybody, we had to do it." This testimony was relevant to framing the structure of the La ONU enterprise (i.e., that La ONU did, in fact, have leaders and that subordinate members were to obey their orders), and corroborated the other testimony regarding the rules and mission of the enterprise (i.e., that La Rompe members were to be killed on-sight). Thus, we do not agree with the Defendants that the Pep Boys evidence was not relevant to the RICO count.
Even relevant evidence may be excluded sometimes, though, "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. The Defendants launch a Rule 403 attack on the Pep Boys evidence based on unfair prejudice, but we reject that argument too. "Usually, courts use the term `unfair prejudice' for evidence that invites the jury to render a verdict on an improper emotional basis." United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir.2000). The Defendants have made no effort to explain to us why the Pep Boys evidence was unfairly prejudicial. See id. ("We stress `unfair' because by design, all evidence is meant to be prejudicial." (internal quotation marks and alteration omitted)). Given the nature of this violence-infested case, we see no reason why testimony about an additional murder would cause the jury an improper emotional reaction, and the Defendants have not provided any reason. We find that the district court did not abuse its discretion in letting in this evidence.
In sum, we find that the district court did not abuse its discretion in making the contested evidentiary rulings.
Turning now to the jury charge, the Defendants argue that the district court erred in declining to give a "multiple conspiracies" instruction. Similarly, they argue that the indictment varied from the government's case at trial, as the indictment charged only a single conspiracy.
"This court reviews a district court's refusal to give a requested jury instruction of this nature for abuse of discretion." United States v. De La Cruz, 514 F.3d 121, 139 (1st Cir.2008). "The trial court's failure to give a proffered instruction will not be reversed unless that instruction is (1) substantively correct; (2) was not substantially covered in the charge actually given; and (3) concerned an important point such that the failure to give it seriously undermined the defendant's ability to present a particular defense." Id. (internal quotation marks omitted). "Under this third requirement, reversal is not required unless a defendant suffers substantial prejudice." Id.
Here, the Defendants requested that the district court instruct the jury that it was possible to find that multiple conspiracies existed in this case, since, according to the Defendants, the evidence indicated that the Defendants were involved in different schemes within their individual housing projects.
"A trial court should grant a defendant's request for a multiple conspiracy instruction if, on the evidence adduced at trial, a reasonable jury could find more than one such illicit agreement, or could find an agreement different from the one charged." United States v. Brandon, 17 F.3d 409, 449 (1st Cir.1994) (internal quotation marks omitted). In contrast, "[a] single conspiracy exists where the totality of the evidence demonstrates that all of the alleged co-conspirators directed their efforts towards the accomplishment of a common goal or overall plan." Id. at 450 (internal quotation marks omitted). "Determining the number of conspiracies in a particular case depends on a variety of factors including the nature, design, implementation, and logistics of the illegal activity; the participants' modus operandi; the relevant geography; and the scope of coconspirator involvement." Id. (internal quotation marks omitted).
In a similar vein, we reject the Defendants' argument that the trial evidence impermissibly varied from the indicted charges. "A variance occurs when the crime charged remains unaltered, but the evidence adduced at trial proves different facts than those alleged in the indictment." United States v. Dellosantos, 649 F.3d 109, 116 (1st Cir.2011) (internal quotation marks omitted). "When a defendant asserts a claim of variance premised on the notion that multiple conspiracies existed and that his activities were not part of the charged conspiracy, the initial question is one of evidentiary sufficiency." Id. (internal quotation marks and alterations omitted). And we have already explained that the evidence was sufficient to find these Defendants guilty of the single La ONU conspiracy.
On to the last issue.
Finally, we reach the Defendants' inevitable claims of sentencing error. Surprisingly
Recall that the Defendants were convicted on Count 29 under 18 U.S.C. § 1959(a)(1), which provides, in relevant part, that:
Based on this provision, the district court concluded that life sentences on this count were compulsory, since the jury found the Defendants guilty of murdering Pequeque under Puerto Rico law. We review the "district court's application of law at sentencing de novo." United States v. García-Ortiz, 528 F.3d 74, 82 (1st Cir.2008).
However inarticulately, the Defendants essentially argue that because VICAR does not define "murder," given the statute's relationship to RICO, we should apply RICO's definition of mandatory-life-imprisonment-eligible murder to determine what counts as mandatory-life-imprisonment-eligible murder under VICAR. That is, since the only type of murder that is subject to mandatory life imprisonment under RICO is murder "for which the maximum penalty includes life imprisonment," 18 U.S.C. § 1963, the same should apply for VICAR. And since the jury here only found the Defendants guilty of "murder," and not necessarily murder for which the maximum penalty includes life imprisonment, the court could not have applied VICAR's mandatory life sentence.
However, the Defendants have not provided any argument as to why we should assume that when applying § 1959(a)(1), we are supposed to adopt the definition of "murder" provided in § 1963; while related to RICO, VICAR is still a separate statute. Thus, we deem this argument waived for lack of development.
For all of these reasons, we
While Federal Rule of Appellate Procedure 28(i) permits co-appellants to "adopt by reference a part of another's brief," as we have reminded litigants in the past, "[a]doption by reference cannot occur in a vacuum and the arguments must actually be transferable from the proponent's to the adopter's case." United States v. Brown, 669 F.3d 10, 16 n. 5 (1st Cir.2012). Therefore, where, as here, an appellant "offer[s] no explanation as to why [his co-appellant's] arguments pertained to him," such "textbook perfunctory" treatment waives the appellant's attempts to adopt-by-reference his co-appellant's arguments. Id. (emphasis omitted); see also United States v. Espinal-Almeida, 699 F.3d 588, 599 n. 9 (1st Cir.2012) (a criminal defendant's mere statement that he "joins in any and all other arguments raised by the other criminal co-defendants that are applicable to his case" is not sufficient (alterations omitted)).
Because we find that none of Laureano-Salgado and Ramírez-Rivera's arguments are meritorious, we need not address whether Cruz-Ramos (who did a little more than a bare-bones statement) effectively joined his co-Defendants' arguments.
Ramírez-Rivera got the same sentence, with the only difference being a 25-year term on Count 30.
Liable as a principal under Puerto Rico law is anyone who "participates directly in the commission of a crime," "forces, provokes, abets or induces another person to commit a crime," or "cooperates before, simultaneously or after the commission of a crime, and without whose participation the crime could not have been perpetrated." P.R. Laws Ann. tit. 33, §§ 4671(a), (b), (d).
The district court, relying on an out-of-circuit case, also emphasized that the Informant put himself in danger by providing the tip. See United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1287 (9th Cir.1983) (considering as a factor in the reliability analysis that "[t]he information was given to the government in circumstances subjecting the informants to possible personal or penal risk" (alterations omitted)). But even if we took into account the risk of retaliation the Informant faced, the record does not reflect that La ONU knew or would have been able to figure out that the (confidential) Informant was the one talking to police. If the Informant had heard the information through a rumor or eavesdropping, there would be no reason — at least not one we can discern from this record — to think the gang would suspect him. And we reiterate that the officers here did not probe the Informant's basis of knowledge (e.g., whether the Informant knew the information because he was in the gang and thus would be in danger because he cooperated).
The Defendants also fail to address what they "could have done ... had they been at the conference," or how they would "have gained anything by attending." United States v. Fernández-Hernández, 652 F.3d 56, 66 (1st Cir.2011) (internal quotation marks omitted). As we discuss below, the Defendants were not entitled to an individualized questioning of each juror. And given that the district court ended up dismissing Juror 30, the Defendants do not tell us what other relief they would have wanted.
We also note that while the Defendants describe witness testimony of other uncharged murders and violent crimes in their factual recitation, they only argue that the Pep Boys murder was impermissibly introduced, and so it is the only uncharged act we address.
See, e.g., United States v. Brandon, 17 F.3d 409, 449 n. 68 (1st Cir.1994) (alterations omitted).
