Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 08-17-2021
Case Style:
United States of America v. ISMAEL E. CRUZ-RAMOS
Case Number: 18-1569
Judge: Ojetta Rogeriee Thompson
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom W. Stephen Muldrow, United States Attorney,
and Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, were on brief.
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with RICO conspiracy, count 1; drug conspiracy, count 2; conspiracy to possess firearms in furtherance of the drug conspiracy, count 3; VICAR murder of a La Rompe boss nicknamed "Pekeke," count 29; and using and carrying a firearm in relation to Pekeke's murder, count 30 charges.
Cruz-Ramos mounts several arguments either for judgments
of acquittal or for a new trial.
Convinced that the judge erred in denying his acquittal
motion, Cruz-Ramos claims that four out of the five convictions
failed on evidentiary-insufficiency grounds: the RICO-conspiracy
conviction (count 1), because the evidence supposedly did not show
that La ONU ran as a continuous unit; the drug-conspiracy
conviction (count 2), because the evidence allegedly did not prove
that he belonged to a La ONU-owned drug point at a public-housing
3 Judge William E. Smith (of the District of Rhode Island,
sitting by designation) handled the trial. And Judge Aida M.
Delgado-Colón (of the District of Puerto Rico) handled the
sentencing.
4 A quick heads up: The standard of review varies with the
issues and whether Cruz-Ramos preserved them in the district court.
Helpfully, the parties agree on (or at least do not openly argue
over) which claims he did and did not preserve below. And we see
no reason to quarrel with them. See, e.g., United States v.
Sabean, 885 F.3d 27, 44 (1st Cir. 2018) (taking a similar approach
in a similar situation).
- 4 -
project; the firearms-conspiracy conviction (count 3), because the
evidence purportedly did not show that he possessed La ONU-owned
guns; and the VICAR-murder conviction (count 29), because the
evidence allegedly did not prove that he played a role in Pekeke's
killing.5
Shifting gears, Cruz-Ramos criticizes the judge for not
giving the jurors a multiple-conspiracy instruction, seeing how he
thinks the evidence did not connect the drug points to one another
and so did not establish the single drug conspiracy alleged in the
indictment. He also criticizes the judge for not telling the
jurors that the government had to prove his "advance knowledge"
that a partner would possess a real gun in furtherance of a drugtrafficking scheme, the advance-knowledge language coming from
Rosemond v. United States, 572 U.S. 65 (2014).
Cruz-Ramos last argues that he at least deserves a new
trial on all counts, because the judge wrongly admitted evidence
concerning his harboring a fugitive. As he sees it, that evidence
— involving both a plea agreement in which he pled guilty to
5 Cruz-Ramos does not attack the evidentiary sufficiency of
his conviction for using and carrying a firearm in relation to
Pekeke's murder (count 30). So he has waived any argument he might
have. See, e.g., Rodríguez v. Municipality of San Juan, 659 F.3d
168, 175 (1st Cir. 2011). And to the extent he thinks his brief
does make that attack, it is waived for lack of development. See
id. (noting that arguments mentioned but not developed are waived).
- 5 -
harboring a fugitive and the fugitive's offense conduct —
constituted "fruits" of searches held illegal in our earlier
opinion, lacked relevance, and posed a high risk of undue
prejudice. All of which means — in his mind anyway — that the
judge should have granted his new-trial motion.
Like the government, we find these arguments wanting.
Acquittal
We take a de novo look at Cruz-Ramos's preserved
sufficiency claims, studying the record in the light most pleasing
to the prosecution, giving the prosecution the benefit of all
sensible inferences and credibility choices as well — and rejecting
his challenges if any rational jury could have convicted him when
viewing all the evidence (direct and circumstantial) in this way.
See, e.g., Rodríguez-Torres, 939 F.3d at 23; United States v.
Manor, 633 F.3d 11, 13-14 (1st Cir. 2011). That he may have a
reasonable theory of innocence will not move the needle, because
the issue is not whether a rational jury could have acquitted but
whether it rationally could have found guilt beyond a reasonable
doubt. See, e.g., Manor, 633 F.3d at 14.
Rico Conspiracy
Getting a grip on RICO's intricacies is no easy matter.
But generally, the statute criminalizes engaging in a pattern of
racketeering activity as part of "an enterprise," or
- 6 -
"conspir[ing]" to do the same. See 18 U.S.C. § 1962(c), (d). An
enterprise includes not only a legal entity like a "corporation"
but also "any union or group of individuals associated in fact."
United States v. Turkette, 452 U.S. 576, 579 n.2 (1981) (quoting
18 U.S.C. § 1961(4)). And while "the very concept of an
association in fact is expansive," such an entity must have "at
least" these "structural features": a "purpose," "relationships
among those associated with the enterprise," and "longevity
sufficient to permit these associates to pursue the enterprise's
purpose." Boyle v. United States, 556 U.S. 938, 944, 946 (2009).
So an association-in-fact entity can be either "formal or
informal," as long as the enterprise's "various associates
function as a continuing unit." Turkette, 452 U.S. at 583. But
that enterprise need not have a "hierarchical structure or a 'chain
of command'" and no purpose beyond carrying out a pattern of
racketeering acts. See Boyle, 556 U.S. at 946-48.
Cruz-Ramos's sole complaint is that prosecutors produced
inadequate proof "of an organization that worked as an ongoing
unit" (so framed, his argument eliminates any need to discuss
RICO's other elements). But the claim is hopeless when one reads
the record the right way — afresh, and in the light most agreeable
to the government.
- 7 -
Cooperating witnesses fingered Cruz-Ramos as a La ONU
leader, a firearms supplier, and a heroin drug-point owner at Las
Gladiolas, a La ONU-dominated public-housing project. And they
did much more than that. They also chronicled La ONU's roughly
decade-long work as a union of various housing-project gangs, with
the unifying goals being running more drug points and taking down
common enemies like La Rompe — using deadly violence whenever
needed. Identifiable by its name — the "ONU" in La ONU "stands
for Organización de Narcotraficantes Unidos," which in English
means "Organization of United Drug Traffickers," see RodríguezTorres, 939 F.3d at 25 (emphasis added) — this mega-gang used
special hand signals to differentiate its members from other
members; made and enforced strict rules of conduct (e.g., no
fraternizing with La Rompe gangbangers or cooperating with the
police, on pain of death); and required associates at different La
ONU-controlled drug points to share resources (guns, drugs,
manpower, etc.) in its bid to be the biggest and baddest crime
syndicate around. And while not necessary (courtesy of Boyle,
which held that an association-in-fact enterprise need have no
formal hierarchy or decision-making mechanism), La ONU had —
throughout its many years of operation — a main leader (though
members close to him had a say in important gang matters,
apparently), drug-point owners, enforcers, sellers, and lookouts.
- 8 -
That is ample evidence of La ONU's functioning as a continuous
unit, despite what Cruz-Ramos says. See, e.g., Rodríguez-Torres,
939 F.3d at 24-25 (finding similar evidence sufficient).
Drug Conspiracy
A series of statutes criminalize conspiring to
distribute drugs within a 1,000 feet of a public-housing facility.
See 21 U.S.C. §§ 841(a), 846, 860. With that in mind, we need not
linger long over Cruz-Ramos's claim that no evidence showed that
he "belonged [in a] group operating" in a La ONU-dominated publichousing project. After all, cooperators testified that he owned
a heroin drug point at the La ONU-run Las Gladiolas public-housing
facility. Calling the cooperators' statements too speculative, he
implies that the jury should not have believed them. But his
argument goes to credibility, something we cannot consider in
reviewing this challenge.6 See, e.g., Manor, 633 F.3d at 14.
Firearms Conspiracy
Also unpersuasive is Cruz-Ramos's claim that the
firearms-conspiracy conviction cannot stand, because no evidence
proved that he "possessed weapons in furtherance of drug
6 Cruz-Ramos also hints at an argument that prosecutors
offered insufficient evidence about the existence or amount of
"heroin that was sold." But that argument cannot win the day
either, given the testimony about his having run a heroin drug
point.
- 9 -
trafficking." The "in furtherance of" element here requires "[a]
showing [of] a sufficient nexus between the firearm and the drug
crime [or crime of violence] such that the firearm advances or
promotes the drug crime [or crime of violence]." Ramírez-Rivera,
800 F.3d at 23 (quoting United States v. Gurka, 605 F.3d 40, 44
(1st Cir. 2010), and discussing 18 U.S.C. §§ 924(c)(1)(A), 924(o))
(alteration in original). And undercutting Cruz-Ramos's argument
is evidence showing both that he "[a]lways" carried automatic
weapons with him as he ran his drug point and that he gave his La
ONU associates guns — all to protect and expand the gang's drug
turf.
Perhaps anticipating that we might reach this
conclusion, Cruz-Ramos tries to downplay the evidence, labeling it
nothing more than "a generic assertion" that he "was an enforcer."
But a glance at the testimony of one cooperator is sufficient to
refute the claim, for he not only identified Cruz-Ramos as an
enforcer but specifically described how he and Cruz-Ramos — often
with others, and always armed to the teeth with assault rifles and
the like — went "to other housing projects" multiple times "to
shoot them up."
In something of a last stand here, Cruz-Ramos faults
prosecutors for not linking him to any of the guns presented at
trial. But even if he did not own those guns, the jury heard
- 10 -
testimony that he carried guns and gave them to his La ONU allies
— with the goal being to further the gang's drug interests. So
this argument is not a difference-maker. See id. (rejecting a
similar argument on similar grounds).
VICAR Murder
As relevant to Cruz-Ramos's case, VICAR outlaws
"attempting or conspiring to commit murder" for "the purpose of
. . . maintaining or increasing position in an enterprise engaged
in racketeering activity." See 18 U.S.C. § 1959(a)(5). CruzRamos contests his VICAR conviction for aiding and abetting
Pekeke's murder (remember that Pekeke was a La Rompe leader),
alleging that no evidence "connect[ed]" him to that crime. He is
wrong.
Viewing the record in the light most sympathetic to the
government's case (as required), we see evidence of the following
— all supporting the aiding-and-abetting theory behind this
conviction. Cruz-Ramos attended a meeting where La ONU leaders
kicked around ideas on how to off Pekeke. Ultimately, they agreed
to pay a person named "Joshua" to gun Pekeke down at a La Rompedominated public-housing project and then send a rescue crew in to
get Joshua out. Cruz-Ramos gave the crew a fake license plate and
registration sticker to put on a rescue car (to hide the fact that
the car was stolen). And after the shooting, rescuers went to
- 11 -
Joshua's aid — all armed, including Cruz-Ramos, who drove his own
SUV.
An undaunted Cruz-Ramos notes that cooperator José
Gutiérrez-Santana did not name him as a planning member attendee
or as a rescuer. But cooperator Wesley Figueroa-Cancel did both.
And the jurors could decide "which witness to credit," with us
required to assume, "in the posture of a sufficiency-of-theevidence challenge, . . . that they credited those witnesses whose
testimony lent support to the verdict." See United States v. Lara,
181 F.3d 183, 204 (1st Cir. 1999).
Cruz-Ramos also notes that cooperators never said that
he knew why rescuers needed "a vehicle and plate." But the jurors
could reasonably infer from his rescue-mission participation that
he knew what those items were for. See Rodríguez-Torres, 939 F.3d
at 23 (reminding us to make all natural inferences "in the
government's favor" when considering a sufficiency-of-the-evidence
claim).
Pulling out all the stops, Cruz-Ramos says that the
"government's scientists contradicted" the cooperators. For
example, he claims (with no record cites) that cooperators said
"Joshua . . . was shot as he ran from the project, but no blood
trail or trace was found"; that "[n]o police report or medical
record suggests Joshua was shot"; and that an "investigator
- 12 -
observed no evidence of the crime in front of the project or the
road leading to it, contradicting the theory of a shooting in front
of" the project. As touched on above, the usual rule is that
"[s]ifting through conflicting testimony and determining where the
truth lies is the sort of work that falls squarely within the
jury's province," not ours. See United States v. Nascimento, 491
F.3d 25, 46 (1st Cir. 2007). And Cruz-Ramos gives us no reason to
vary from that rule (like showing that each cooperator's testimony
was so implausible that we cannot trust it as a matter of law).
So this line of argument is a dead end too.
With the sufficiency issues out of the way, we examine
Cruz-Ramos's claims of instructional error.
Jury Instructions
Cruz-Ramos's preserved claim about the missing multipleconspiracies instruction gets abuse-of-discretion review, with us
reversing only if he can show "he suffered substantial prejudice."
See United States v. Camacho-Santiago, 851 F.3d 81, 85 (1st Cir.
2017); see also United States v. Brandon, 17 F.3d 409, 450 (1st
Cir. 1994) (elaborating that in the alleged multiple-conspiracies
setting, "[t]he prejudice we must guard against" is the prejudicial
spillover of evidence "resulting from trying defendants en masse
for distinct and separate offenses committed by others"). And his
unpreserved claim about the missing advance-knowledge instruction
- 13 -
gets plain-error review, see United States v. Paniagua-Ramos, 251
F.3d 242, 246 (1st Cir. 2001), with him having to make the
difficult showing that the judge erred and clearly so, and that
the error also affected his substantial rights — but even then we
can still affirm if he does not show as well that the error
seriously harmed the fairness, integrity, or public perception of
his trial, see United States v. Takesian, 945 F.3d 553, 563 (1st
Cir. 2019); see also United States v. Dominguez Benitez, 542 U.S.
74, 83 n.9 (2004) (noting that satisfying each facet of the plainerror test is a daunting task, "as it should be"); Paniagua-Ramos,
251 F.3d at 246 (stressing that "the plain error hurdle, high in
all events, nowhere looms larger than in the context of alleged
instructional errors").
Multiple Conspiracies
Sometimes the simplest approach is the best approach.
See, e.g., United States v. Tsarnaev, 968 F.3d 24, 78 (1st Cir.
2020) (explaining that "[o]ften '[t]he simplest way' to decide an
issue is 'the best'" (first alteration added) (quoting Stor/Gard,
Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st Cir. 2013)).
So it is here. Even assuming — without granting — that the evidence
justified a multiple-conspiracies instruction, its omission did
not substantially prejudice Cruz-Ramos. And that is because, while
Cruz-Ramos may not have gotten the exact instruction that he
- 14 -
wanted, the judge did tell the jurors that the government had to
prove that he (Cruz-Ramos) was part of the charged drug conspiracy.
"[Y]ou must be convinced," the judge said, "that the government
has proven beyond a reasonable doubt" that the conspiratorial
"agreement specified in the indictment, and not some other
agreement or agreements, existed between at least two people to
possess with the intent to distribute a controlled substance" and
that Cruz-Ramos "willingly joined that agreement." And "[i]f . . .
you [have] a reasonable doubt," the judge added, then "you must"
acquit. Quite a number of our cases have found instructions of
this sort sufficient to protect a defendant from prejudice in
circumstances like Cruz-Ramos's. See United States v. Belanger,
890 F.3d 13, 33 (1st Cir. 2018) (collecting authority); see also
Camacho-Santiago, 851 F.3d at 87. And Cruz-Ramos offers no
plausible reason why those cases should not control here.
Advance Knowledge
Citing Rosemond, Cruz-Ramos argues that the judge
slipped by not telling the jurors that, to find him guilty of
aiding and abetting possession of a gun in furtherance of a drug
crime (what a mouthful), they had to find he had "advance
knowledge" that a gun would be used. See 572 U.S. at 77-81. And,
the theory goes, because of that lack of instruction, the jurors
could have convicted him merely because he intended to help commit
- 15 -
the underlying drug-trafficking crime — without ever finding that
he had prior knowledge that a compatriot would possess a gun.
Rosemond addressed aiding-and-abetting liability for the
"compound" offense of using or carrying a firearm while committing
certain violent or drug-related crimes. See 572 U.S. at 67-68, 71
(analyzing 18 U.S.C. § 924(c)(1)(A)). "[I]ntent must go to the
specific and entire crime charged," Rosemond said, "the full scope
(predicate crime plus gun use) of § 924(c)." Id. at 76. So an
accused aider and abettor must have had "advance knowledge" that
a cohort would "use or carry a gun during [its] commission,"
because he must have decided "to align himself with the illegal
scheme in its entirety — including its use of a firearm." Id. at
67; see generally United States v. Fernández-Jorge, 894 F.3d 36,
52-55 (1st Cir. 2018) (finding Rosemond error in a nonplain-error
case, because the aiding-and-abetting instruction let the jury
convict even if the defendant intended only the general "endeavor"
to succeed, rather than the firearm-specific crime).
Cruz-Ramos concedes that he did not raise this Rosemond
issue at trial. Which means he must run the usually lethal
gauntlet of plain-error review — i.e., (and to repeat) he must
show not only error, but error that is obvious, affects his
substantial rights, and seriously undermined the fairness,
integrity, or public perception of the judicial process. See
- 16 -
generally United States v. Manso-Cepeda, 810 F.3d 846, 852 n.7
(1st Cir. 2016) (stating that "the First Circuit already had an
advance knowledge requirement for aiding and abetting convictions"
before Rosemond and "has consistently used the 'consciously
shared' formulation to describe our aiding and abetting law,"
making "an error in which the district court used a wellestablished formulation . . . unlikely to qualify as plain
error"). But Cruz-Ramos makes no attempt to show how his Rosemondbased claim satisfies the demanding plain-error standard — his
brief fails to even mention plain error, let alone argue for its
application here. See generally Fed. R. App. P. 28(a)(8)(A)
(announcing that "[t]he appellant's brief must contain" the
"appellant's contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant
relies"). And knowing that it is not on us to construct a party's
arguments for him, see United States v. Charriez-Rolón, 923 F.3d
45, 52 (1st Cir. 2019), that failure waives this claim, see United
States v. Velázquez-Aponte, 940 F.3d 785, 800 (1st Cir. 2019);
United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir. 2018);
United States v. Pabon, 819 F.3d 26, 33-34 (1st Cir. 2016).7
7 One other jury-instruction claim requires brief attention.
The government premised the VICAR-murder charge on an aiding-andabetting theory under Puerto Rico law. But Cruz-Ramos says that
the judge gaffed the aiding-and-abetting instructions, arguing
that Puerto Rico did not recognize aiding and abetting murder as
- 17 -
Enough said about these issues.
New Trial
We inspect Cruz-Ramos's problem with the judge's newtrial denial for abuse of discretion, knowing that an abuse of
discretion exists "only when no reasonable person could agree with
the judge's decision," see Laureano-Salgado, 933 F.3d at 29, that
a material error of law is by definition an abuse of discretion,
see United States v. Carpenter, 736 F.3d 619, 629 (1st Cir. 2013),
and that we ordinarily overturn a new-trial denial only to prevent
a crime "at the time of the offense." Looking to counter this
claim, the government cites a decades-old opinion by Puerto Rico's
highest court (issued well before his crimes went down) — an
opinion stating that Puerto Rico's penal code "not only considers
as principals or authors those who directly commit the punishable
offense, but those as well who aid in the commission thereof."
People v. Martés Olán, 3 P.R. Offic. Trans. 488, 492 (P.R. 1975)
(quoting People v. Vélez, 36 P.R.R. 521, 523-24 (P.R. 1927))
(emphasis added). Our Ramírez-Rivera opinion read Puerto Rico law
as punishing a person as a principal if he "'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.'"
800 F.3d at 22 n.16 (quoting P.R. Laws Ann. tit. 33, §§ 4671(a),
(b), (d)) (emphasis added). And with Ramírez-Rivera on the books,
Cruz-Ramos writes that he raises this issue simply to preserve his
right to petition for en banc or Supreme Court review based on his
belief that the quoted English translation misconstrues the word
"instigar" in the original Spanish to include "abet." But see
University of Cambridge, Spanish-English Dictionary,
http://dictionary.cambridge.org/dictionary/spanish-english,
"instigar". So we need say no more on that subject.
- 18 -
a miscarriage of justice, see United States v. Ackerly, 981 F.3d
70, 75 (1st Cir. 2020).
To understand Cruz-Ramos's claim, we must provide some
necessary context.
According to the evidence admitted at trial, a La ONU
member named "Bernard" shot down a police helicopter to help
himself and other La ONU-ers avoid arrest. One of the pilots died.
And Bernard fled to Cruz-Ramos's house. Acting on a tip, the
police went there and searched the place without a warrant, seizing
guns and drugs — a search we stamped unconstitutional in RamírezRivera. The police arrested Cruz-Ramos and Bernard. About three
months later, Cruz-Ramos pled guilty under a plea agreement to
harboring a fugitive. In a document attached to the agreement,
Cruz-Ramos admitted certain facts — including that the police
wanted Bernard for the helicopter shooting. And over Cruz-Ramos's
objections, the judge in our case allowed the plea agreement and
accompanying statement of facts into evidence.
With this backdrop in place, we now consider CruzRamos's arguments.
As for Cruz-Ramos's lead claim — that the judge should
have excluded as fruit of an illegal search all evidence about his
harboring-a-fugitive plea agreement, which included his
concessions concerning Bernard's crime — the factors that go into
- 19 -
this issue are: (a) the voluntariness of his concessions, (b) the
temporal proximity of the illegal conduct and the concessions,
(c) the existence of intervening events, and (d) the flagrancy of
the illegality. See, e.g., Brown v. Illinois, 422 U.S. 590, 603-
04 (1975); United States v. Stark, 499 F.3d 72, 76 (1st Cir. 2007)
(discussing the Brown factors). No single factor is determinative,
however. See Brown, 422 U.S. at 603.
Because no one doubts that Cruz-Ramos voluntarily signed
the plea agreement (factor (a)), and the government concedes for
present purposes that the police acted egregiously (factor (d)),8
the dispute here is really over factors (b) and (c). And so we
turn to them.
Cruz-Ramos signed the plea agreement three months after
the illegal search (factor (b)) — far more than the two days
between an illegal search and a confession in another case that we
said "counsel[ed] against suppression." See Stark, 499 F.3d at
76. And during those intervening months, he had time to reflect
on his situation and consult with a lawyer before signing the plea
agreement (factor (c)) — an agreement, by the way, that he has
never tried to invalidate as a product of the illegal search.
8 We ourselves called the search an "egregious Fourth
Amendment violation" and said "the officers' disregard of probable
cause was certainly deliberate." See Ramírez-Rivera, 800 F.3d at
32, 33.
- 20 -
Given these particulars — and mindful that evidence exclusion
should be a "last resort" rather than a "first impulse," see Hudson
v. Michigan, 547 U.S. 586, 591 (2006) — we think that the causal
link between the illegality and the plea agreement is so stretched
that the illegality did not infect the plea agreement, see Brown,
422 U.S. at 598 (emphasizing that a confession caused by unlawfully
seized evidence need not be suppressed if "an intervening
independent act of free will . . . purge[s] the primary taint" of
the illegal search (quoting Wong Sun v. United States, 371 U.S.
471, 486 (1963)); see generally United States v. Davis, 617 F.2d
677, 687-89 (D.C. Cir. 1979) (refusing to suppress a defendant's
grand-jury testimony (provided as part of his plea agreement) given
weeks after an illegal arrest when he had "time to consult with
counsel and to reflect on his decision to cooperate," because
"[t]he taint of the . . . illegality had dissipated by the time
[he] took the witness stand").9
9 Joining belt with suspenders, we add that as the party
invoking the exclusionary rule — a judicially crafted remedy, aimed
at curbing police misconduct by (broadly speaking) barring
prosecutors from introducing at the defendant's trial evidence
obtained through the misconduct — Cruz-Ramos must show not only
causation, but also that the rule's benefits (deterrence) outweigh
its costs (e.g., excluding relevant evidence and perhaps letting
a guilty person go free). See Herring v. United States, 555 U.S.
135, 140-41 (2009); Hudson, 547 U.S. at 591. Yet his brief
contains no such weighing analysis, creating a gaping hole that
also sinks this aspect of his new-trial claim.
- 21 -
We are likewise unmoved by Cruz-Ramos's next set of
claims — that the judge should have excluded evidence about the
helicopter downing and his fugitive harboring as irrelevant and
unfairly prejudicial. And it will not take us long to explain
why.
Relevancy is a very low threshold, requiring only that
the evidence have "any tendency to make a fact more or less
probable." See Fed. R. Evid. 401 (emphasis added); see also
Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010).
And "the evidence need not definitively resolve a key issue in the
case," but rather "need only move the inquiry forward to some
degree," see Bielunas, 621 F.3d at 76 — think, for example, of
evidence that is basically "background in nature," which "is
universally offered and admitted as an aid to understanding," see
Fed. R. Evid. 401 advisory committee's notes.
So it is no exaggeration to say that "[a] relevancybased argument is usually a tough sell." See Bielunas, 621 F.3d
at 76. And Cruz-Ramos fails to make the sale here.
The indictment charged the helicopter-shooting murder as
an overt act in furtherance of the RICO conspiracy. And "when the
scope of a RICO conspiracy includes murder as a tool to further
the enterprise, a 'murder [is] still relevant to the RICO count[]
as it tend[s] to prove the existence and nature of the RICO
- 22 -
enterprise and conspiracy,'" even if the defendant on trial is
"not charged for that particular killing." See Ramírez-Rivera,
800 F.3d at 44 (second and third alterations added) (quoting United
States v. DeCologero, 530 F.3d 36, 54 (1st Cir. 2008)). Attempting
to elude Ramírez-Rivera's grasp, Cruz-Ramos writes that the
Ramírez-Rivera panel "was addressing" a different murder — "the
Pep Boys murder."10 But nothing in Ramírez-Rivera limits this
principle only to the Pep Boys murder.
The indictment also listed several "means and methods by
which" La ONU members "conducted and participated" in the
enterprise's "affairs," including "provid[ing] shelter and
protection to known fugitive members of La ONU in order to aid
against their apprehension by law enforcement." And Cruz-Ramos's
harboring-a-fugitive plea agreement helped bolster that charge,
making the agreement relevant under our modest relevancy
requirements. See Polanco, 634 F.3d at 44 (noting how relevancy
is usually an easy hurdle to clear); see generally United States
v. Rodríguez-Soler, 773 F.3d 289, 293-94 (1st Cir. 2014) (stating
that because convictions frequently "result from the cumulation of
bits of proof which, taken singly, would not be enough in the mind
10 The Pep Boys murder "involved the death of a La Rompe boss,
killed on the orders of two La ONU leaders." Rivera-Carrasquillo,
933 F.3d at 45 n.11 (citing Ramírez-Rivera, 800 F.3d at 44).
- 23 -
of a fair minded person," a key factor in a relevancy determination
is whether "each bit [has] enough rational connection with the
issue to be considered a factor contributing to an answer" (quoting
United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945) (L.
Hand, J.))).
A judge of course "may" exclude relevant evidence if
(roughly speaking) it is "unfair[ly] prejudic[ial]" to the
defendant or risks confusing the jury, among other things. See
Fed. R. Evid. 403. Seizing on this language, Cruz-Ramos argues
that the challenged evidence packed too much of an emotional punch,
prejudicing the jurors against him and causing them to act
irrationally. The law bans not all prejudice, but unfair
prejudice. See, e.g., Rodríguez-Soler, 773 F.3d at 296. And it
does not save a defendant from damaging evidence generally. See,
e.g., id. Ultimately, "[g]iven the nature of this violenceinfested case, we see no reason why testimony about an additional
murder would cause the jury an improper emotional reaction." See
Ramírez-Rivera, 800 F.3d at 44.
Cruz-Ramos makes a single-sentence suggestion that
jurors "could have been confused by" his harboring "confession,"
without offering any authority or meaningful discussion of the
issue. So he waived it by inadequately briefing it. See, e.g.,
Muñiz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004) (holding waived a
- 24 -
perfunctory claim unaccompanied by "citation to any pertinent
authority"); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (declaring it "not enough to merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel's work").
Cruz-Ramos also implies that his plea agreement presents
a hearsay problem. But during the trial he agreed with the judge
that the rule against hearsay posed no obstacle to admission. That
aside, his brief "provides neither the necessary caselaw nor
reasoned analysis to show" that his hearsay intimation is correct.
See Rodríguez, 659 F.3d at 176. And again, such cursory treatment
is not enough to preserve an issue for review. See, e.g., id.
Making a last-ditch bid to save this claim, Cruz-Ramos
writes that because "[t]he helicopter murder was excluded by the
district court during the first trial," the judge should have done
the same in the second. But he makes this argument only in his
reply brief and so waived that one as well. See, e.g., Liberty
Mut. Ins. Co. v. Nippon Sanso K.K., 331 F.3d 153, 162 (1st Cir.
2003) (holding that an "argument . . . not made in the opening
brief but only in the reply . . . is waived").
On to sentencing.
- 25 -
ALLEGED SENTENCING ERRORS
Cruz-Ramos claims that the judge made three procedural
sentencing errors — first by imposing a 2-level enhancement for
his having played a leadership role in the crimes, next by
assessing 2 criminal history points against him for his prior
conviction for harboring a fugitive, and finally by having a 25-
year sentence on the count of using and carrying a firearm in
relation to Pekeke's murder run consecutively to the life sentences
on the other counts.11 We review preserved challenges for abuse
of discretion and unpreserved ones for plain error, see, e.g.,
United States v. Garay-Sierra, 832 F.3d 64, 67 (1st Cir. 2016) —
11 A quick crib sheet on how federal sentencing works: Using
advisory sentencing guidelines, the judge figures out the
defendant's
base offense level — i.e., a point score for a specified
offense or group of offenses. The [judge] then make[s]
adjustments for any aggravating or mitigating factors in
the defendant's case, thus arriving at a total offense
level. The [judge] also assign[s] points based on the
defendant's criminal history — points that get converted
into various criminal history categories, designated by
Roman numerals I through VI. Armed with this info, the
judge turns to the guidelines's sentencing table. And
by plotting the defendant's total offense level along
the table's vertical axis and his criminal history
category along the table's horizontal axis, the judge
ends up with an advisory prison range. From there, the
judge sees if any departures are called for, considers
various sentencing factors, and determines what sentence
(whether within, above, or below the suggested range)
seems appropriate.
United States v. Martínez-Benítez, 914 F.3d 1, 2 n.2 (1st
Cir. 2019) (citations omitted).
- 26 -
as a reminder, the hard-to-satisfy plain-error standard requires
a defendant to show error; plainness; an adverse effect on his
substantial rights; and a serious compromise of the fairness,
integrity, or reputation of the trial, see, e.g., Takesian, 945
F.3d at 563.
These arguments lack heft, as the government points out.
Enhancement
We can make relatively quick work of Cruz-Ramos's
unpreserved complaint about the leadership enhancement — an
enhancement justified only if the government proved each of the
following by a preponderance of the evidence: that "the criminal
enterprise involved at least two complicit participants (of whom
[Cruz-Ramos] may be counted as one)"; and that "in committing the
offense," Cruz-Ramos "exercised control over, managed, organized,
or . . . otherwise . . . superintend[ed] the activities of . . .
at least one of those other persons." See United States v. SotoPeguero, 978 F.3d 13, 23 (1st Cir. 2020) (quoting United States v.
Cruz, 120 F.3d 1, 3 (1st Cir. 1997)). As part of this analysis,
a judge looks to a variety of factors, including the nature and
degree of the defendant's participation, planning, and control —
and whether he exercised decisionmaking authority, drafted
collaborators, or claimed a bigger piece of the spoils. See USSG
- 27 -
§ 3B1.1 cmt. 4; see also United States v. Ilarraza, 963 F.3d 1, 14
(1st Cir. 2020).
We approach a judge's leadership assessment with
"considerable deference," given the fact-intensive character of
the inquiry. See Soto-Peguero, 978 F.3d at 23 (quoting Cruz, 120
F.3d at 3). Add to this that Cruz-Ramos must show that the judge
plainly erred, and his level of difficulty escalates
exponentially. See, e.g., Tsarnaev, 968 F.3d at 80 (stressing how
the plain-error rule places a formidable obstacle in an appellant's
way).
Cruz-Ramos rests his hopes solely on the notion that
"[n]o evidence" showed he controlled or managed a participant.
But to reject this claim, all we need do is observe that a
cooperator said that as a drug-point owner within the organization,
Cruz-Ramos "order[ed] . . . other guys" around — something only La
ONU "leaders" could do. See Soto-Peguero, 978 F.3d at 23 (noting
that "[e]ven a single instance of managing the actions of others
can substantiate the enhancement"). Cruz-Ramos implies that he
cannot be a leader because "every drug point owner was a leader"
and with so many "leader[s], no one is a leader" for sentencing
purposes. But unfortunately for him, the law is that "more than
one person" can "qualif[y] as a leader or organizer of a criminal
- 28 -
association or conspiracy." See USSG § 3B1.1 cmt. 4. So what he
offers is hardly the stuff of plain error.
Criminal History
That takes us to Cruz-Ramos's preserved claim that the
judge wrongly assigned criminal-history points for his harboringa-fugitive conviction. To hear him tell it, that conviction
involved conduct relevant to the RICO conspiracy and so could not
be factored into his criminal-history score. As support, he (at
least implicitly) relies on a guideline rule saying that when
tweaking a defendant's sentence for his prior criminal history, a
judge may use as a "prior sentence" only a "sentence previously
imposed . . . for conduct not part of the instant offense." See
USSG § 4A1.2(a)(1) (emphasis added); see also id. § 4A1.2 cmt. 1
(excluding from the criminal-history calculation sentences for
conduct qualifying as relevant conduct under USSG § 1B1.3).
But Cruz-Ramos overlooks a key guideline exception in
the RICO context. Even if some convictions count as part of the
underlying racketeering conduct, if the defendant got convicted of
them before "the last overt act of the [RICO] offense," the judge
can treat them as part of the defendant's criminal history. See
USSG § 2E1.1 cmt. 4. So while prosecutors used Cruz-Ramos's
harboring-a-fugitive conviction to support the RICO-conspiracy
charge, because that conviction came before the final overt act
- 29 -
(as no one here disputes), it contributes points toward his
criminal-history tally.
Consecutive Sentences
We need not say much about Cruz-Ramos's last preserved
claim either. He concedes that a firearm-in-furtherance sentence
under 18 U.S.C. § 924(c) must run consecutively to any prison
sentence on any other count (including the count covering the crime
in which the firearm was used). See 18 U.S.C. § 924(c)(1)(D)(ii).
But he insists that "[§] 924(j), not [§] 924(c), determined [his]
sentence" — roughly speaking, § 924(j) makes it a crime to kill
anyone when doing acts that infract § 924(c), but does not mention
a consecutive-sentencing requirement.12 And citing an Eleventh
12 § 924(c) pertinently provides that
[a]ny person who, during and in relation to any crime of
violence or during a drug trafficking crime . . . uses
or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime,
receive a sentence of at least 5 years. See 18 U.S.C.
§ 924(c)(1)(A)(i). § 924(c) ups that minimum if he brandishes or
discharges the firearm or uses a certain type of firearm (e.g., a
machine gun). See id. § 924(c)(1)(A)(ii)-(iii), (c)(1)(B)(i)-
(ii). And § 924(c) declares that the sentence cannot "run
concurrently" with any other. See id. § 924(c)(1)(D)(ii).
§ 924(j) then relevantly says that "a person who, in the
course of a violation of subsection (c), causes the death of a
person through the use of a firearm," shall "be punished by death
or by imprisonment for any term of years or for life" if the
killing constitutes "murder" under 18 U.S.C. § 1111 (essentially
- 30
Outcome: For the reasons recorded above, we affirm the district
court across the board
Plaintiff's Experts:
Defendant's Experts:
Comments: