BARRON, Circuit Judge.
In these consolidated appeals, Herzzon Sandoval, Edwin Guzman, Erick Argueta Larios, and Cesar Martinez challenge their federal convictions and sentences, which stem from a wide-ranging federal criminal investigation into La Mara Salvatrucha ("MS-13") in Massachusetts. We affirm.
MS-13 is a transnational criminal organization based in El Salvador. In the United States, MS-13 is organized into small local groups called "cliques." The Federal Bureau of Investigation ("FBI"), the Massachusetts State Police ("MSP"), and other law enforcement agencies (together, "the Task Force") began an investigation into MS-13 cliques in Massachusetts in 2012.
As part of this investigation, the FBI developed a cooperating witness, "CW-1," who was able to become a member of the "Eastside Loco Salvatrucha," or "ESLS," which is based in Everett, Massachusetts and held regular meetings at a garage there. Through CW-1's recordings and surveillance, the Task Force identified Sandoval, Guzman, Larios, and Martinez as ESLS members and ESLS as an MS-13 clique. It also identified Sandoval and Guzman as the "runners" of ESLS, with Sandoval as the group's undisputed leader and "first word" and Guzman as the group's "second word." The Task Force identified Larios and Martinez as ESLS "homeboys," or full members of the group.
The Task Force determined that a person became a member of ESLS by being "jumped in" or "beaten in" — a process that involves members forming a circle and beating the individual while someone counts to thirteen. The Task Force also learned, largely through CW-1's recordings and surveillance, of multiple stabbings and attacks, and at least one murder, against MS-13 rivals — or "chavalas" — in which ESLS members were allegedly involved.
In investigating the MS-13 cliques in Massachusetts, the Task Force used an undercover technique known as a "protection detail." Pursuant to this technique, CW-1 would recruit an individual to protect drug shipments that CW-1 transported from Massachusetts to New Hampshire, in exchange for five hundred dollars. CW-1 recruited both Larios and Martinez for drug protection details.
On May 15, 2017, a federal grand jury in the District of Massachusetts returned a fifth superseding indictment ("FSI") related
The indictment charged Sandoval, Guzman, Larios, and Martinez with violating 18 U.S.C. § 1962(d), which makes it a crime to conspire to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. The indictment identified the conspiracy with which each of these defendants was charged as one that sought to violate § 1962(c) of RICO. That provision 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."
"[R]acketeering activity" includes, among other things, "any act or threat involving murder ... which is chargeable under State law and punishable by imprisonment for more than one year." 18 U.S.C. § 1961(1). The indictment specified that the agreed-upon pattern of activity for each defendant consisted of the following acts "involving murder": murder, Mass. Gen. Laws ch. 265, § 1; assault with intent to murder,
On April 6, 2017, the District Court established four separate trial groups for the defendants charged in the FSI. Sandoval, Guzman, Larios, and Martinez were placed in trial group three, which meant that they would be tried jointly.
The joint trial of these four defendants began on January 30, 2018. The jury heard testimony from members of the Task Force and from two cooperating defendants — Jose Hernandez Miguel ("Hernandez Miguel") and Mauricio Sanchez ("Sanchez") — who had been ESLS homeboys. The government's case also included recordings — both audio and video — that CW-1 had made of ESLS meetings and conversations with MS-13 members.
After fifteen days of trial and four days of deliberation, the jury convicted Sandoval, Guzman, and Larios of violating 18 U.S.C. § 1962(d) but acquitted Martinez on the count that charged him with that crime. The jury's verdict finding Sandoval, Guzman, and Larios guilty of committing that offense did not specify which racketeering acts the jury had found each of these defendants had agreed would be committed.
The jury found Martinez guilty of conspiracy to possess with intent to distribute and to distribute cocaine, finding five-hundred grams or more attributable to and reasonably foreseeable to him. The jury did not, however, find Larios guilty on the count that charged him with committing that offense.
The District Court entered the judgments of conviction and sentenced the defendants in late 2018. Sandoval received a sentence of 240 months' imprisonment and 3 years of supervised release; Guzman, 192 months' imprisonment and 3 years of supervised release; Larios, 180 months' imprisonment and 3 years of supervised release; and Martinez, 72 months' imprisonment and 5 years of supervised release.
We begin with the sufficiency-of-the-evidence challenges that Sandoval, Guzman, and Larios bring to their respective convictions
To secure a conviction for committing the RICO conspiracy offense at issue for each defendant, the government was required to prove beyond a reasonable doubt that the defendant "knowingly joined the conspiracy, agreeing with one or more coconspirators `to further [an] endeavor which, if completed, would satisfy all the elements of the predicate RICO offense.
The "pattern of racketeering" element of that offense "requires at least two acts of racketeering activity" within ten years of each other. 18 U.S.C. § 1961(5). Thus, to prove the RICO conspiracy charge at issue for each defendant, the government was required to prove beyond a reasonable doubt that each "
The government contends that a rational jury could conclude from the evidence in the record that Sandoval, Guzman, and Larios each agreed that at least two acts of racketeering would be committed in furtherance of the conspiracy charged. In support of this contention, the government relies on the evidence in the record that pertains both to each defendant's ties to ESLS and to ESLS being an MS-13 clique whose mission was for its members to attack and kill rivals. In the government's view, the evidence of the ties between each defendant and ESLS, when combined with the evidence of ESLS's murderous mission and connection to MS-13 as well as the evidence that the government introduced about the nature of MS-13 itself, suffices to permit a reasonable juror to find beyond a reasonable doubt that each defendant had entered into the requisite agreement with respect to racketeering acts involving murder.
After the government presented its case-in-chief, Sandoval, Guzman, and Larios moved for judgment of acquittal on the counts charging them with conspiring to violate § 1962(c). Fed. R. Crim. P. 29(a). Then, at the close of all evidence, the District Court deemed these defendants to have renewed their motions for judgment of acquittal. The District Court ultimately denied the motions.
We review preserved challenges to the sufficiency of the evidence de novo.
We begin with Sandoval's sufficiency challenge. He does not dispute that the evidence suffices to show that he was the leader of ESLS, that ESLS was an MS-13 clique, and that, as the indictment alleged, MS-13 is an "enterprise" for purposes of RICO. He also does not dispute that if the evidence suffices to show that he, as an
The jury heard evidence that Sandoval, as the leader or "first word" of the ESLS clique, stated in a conversation with a prospective ESLS member, Hernandez Miguel, that "when one is jumped into MS-13, one is aware that one is jumped in to kill or to look for chavalas." Moreover, Hernandez Miguel testified that Sandoval made that statement to him in the course of a discussion that Sandoval had with him about what it would mean for him to "run with" ESLS, and Sandoval does not dispute that the evidence suffices to show that ESLS was the MS-13 clique that he led. The government also introduced evidence that supportably shows that while Sandoval was leading ESLS, its members committed, participated in, or assisted MS-13 members who were not themselves members of ESLS in (1) a 2008 attack near Maverick Square in East Boston on rivals of ESLS; (2) a December 14, 2014 shooting in Chelsea, Massachusetts, in which Javier Ortiz, an ESLS rival, was killed; (3) a May 12, 2015 stabbing in Boston's Highland Park of a rival gang member; (4) a December 27, 2015 attack on a rival gang member in Chelsea; and (5) a January 1, 2016 stabbing of a rival gang member in Chelsea.
What is more, the government introduced evidence that supportably shows that Sandoval spoke at CW-1's request with yet another individual, Joel Martinez, on December 6, 2015, about his possibly joining the ESLS clique and that thereafter this additional prospective ESLS member was involved in carrying out both the December 2015 and the January 2016 attacks referenced above. The evidence at trial supportably shows, moreover, that this conversation between Sandoval and Joel Martinez about the latter joining ESLS occurred at a time when Sandoval knew that — or at least was operating under the impression that — Joel Martinez had recently killed Irvin de Paz, who was described as a "chavala." Indeed, the evidence supportably shows that Sandoval explained to Joel Martinez in the conversation about his becoming a member of ESLS that, because everyone in ESLS would have to agree to him joining the clique, the other ESLS members wanted to meet him, let him "find out to how [ESLS] think[s] as a group," and make sure that his "way of thinking coordinates with [ESLS's]."
It is thus significant that credible evidence introduced at trial supportably shows that when ESLS members met the following month, on January 8, 2016, to
Considered as a whole, the evidence reviewed above suffices to permit a rational juror to find that the mission of ESLS, as an MS-13 clique, was to murder and attempt to murder its rivals, that Sandoval knew that this was ESLS's mission, and that he agreed to facilitate that mission through his leadership role in that clique. Given that the conspiracy offense set forth in 18 U.S.C. § 1962(d) does not require the government to prove that the charged acts of racketeering were actually committed by either the defendant charged with the conspiracy or by others,
Guzman's sufficiency challenge to his § 1962(d) conviction necessarily fails insofar as it rests on contentions like those that we have just rejected. But, Guzman does also make some additional arguments that we must separately address.
First, Guzman argues that the evidence at trial indicated that the mission of MS-13 was to "look for," "stab," or "attack" rivals, or to "commit generic `violence,'" but that none of this conduct itself constitutes an act of racketeering. He thus contends that the evidence of the requisite "agreement" that two or more acts of racketeering would be committed in furtherance of the conspiracy was insufficient in his case.
Guzman supports this contention with precedents in which the jury was presented with alternative theories of guilt, one of which was legally invalid.
Guzman does also contend that the evidence shows that he "joined ESLS as a young man at a time when far fewer violent acts were being committed" and that, by the time that the Task Force investigation was underway, he "had become a hardworking, married man with children, who sought to distance himself from the violent acts" of the more violent members who "resented him and targeted him." Guzman thus likens his situation to that of the defendant in the Fourth Circuit's unpublished decision in
But, as we have explained, the evidence suffices to show that the very mission of ESLS included the commission of the predicate racketeering acts involving murder. Moreover, the jury heard testimony from Hernandez Miguel about an episode some time before he was removed to El Salvador in 2009 in which he and Guzman "smashed [a chavala's] face with beer bottles" and about Guzman providing him with clean clothes after the May 12, 2015 stabbing in which Hernandez Miguel had participated. Thus, even if, as Guzman contends, neither of these incidents itself involved the commission of a charged racketeering act, the testimony from Hernandez Miguel about those incidents — especially given the recency of the second of them — still suffices to support a plausible inference that Guzman was aware that ESLS's mission came to include murder or attempted murder of rival gang members during the course of his membership in it. After all, jurors are permitted to make reasonable inferences, drawing on common sense, about such matters as whether a member of a gang that has been shown to have a mission of killing or attempting to kill rivals would have known of that mission if he was involved in it as a member both in helping to commit a violent attack on a rival and in helping a member clean up after stabbing a rival. Accordingly, we reject Guzman's sufficiency challenge to his conviction for violating § 1962(d).
The last of the sufficiency challenges that we must address is the one that Larios brings. He contends that the evidence about the mission of MS-13 and ESLS cannot support a finding of the requisite agreement as to him not only because of when he joined the clique but also because there was no evidence that he held a leadership position in it. In particular, Larios contends that any inferences that could permissibly be drawn from Hernandez Miguel's testimony about how Hernandez Miguel understood the goals of the ESLS clique in 2009 would not suffice to permit a similar inference to be drawn about how Larios understood that clique's mission during his membership in it, given that Larios joined that clique years later in 2013. Larios asserts in this regard that the only evidence that the government presented that described the goals and mission of ESLS or MS-13 as of the time that Larios joined the clique was Sanchez's testimony that the rules when he joined in 2013 were (1) "[a]ttend the meetings"; (2) "[n]ot let a homeboy down"; and (3) "[r]epresent [MS-13] through colors" and "be solid" with MS-13.
This argument fails to account, however, for all the evidence in the record.
Accordingly, we conclude that the evidence, when considered as a whole and in the light most favorable to the jury's verdict,
Sandoval, Guzman, and Larios next contend that even if their sufficiency challenges fail, their convictions must be vacated due to the District Court's error in denying a motion for a continuance due to pretrial publicity. These same three defendants then separately bring a related challenge, which Martinez also joins on appeal, to the District Court's denial of a motion for a mistrial due to certain questions jurors raised regarding their safety after the trial was underway. They contend that this error, too, requires that their convictions be vacated. We find no merit, however, to either of these claims of error, which we consider in turn.
We start with the challenge based on the denial of the continuance motion. We describe the relevant facts and procedural history before turning to our analysis of the merits.
On the evening of the first day of jury empanelment — January 30, 2018 — President Trump delivered his State of the Union address. The next morning, Sandoval moved to continue the trial until March 2018 to "permit the impact of the President's remarks to dissipate."
The motion contended that the President's address "sharply condemned MS-13," describing its members as "savage" and its crimes as "brutal." The motion also highlighted the fact that media coverage of the address included emotional footage of grieving families whose children were said to have been murdered by MS-13 members and whom the President had invited to the Capitol for the address.
The District Court denied the motion, in which Larios and Guzman had joined. The District Court indicated that it would ask the jurors an open-ended question about whether they had "heard or seen anything about MS-13," and it then proceeded to ask the jurors if any of them had "learned or seen or read anything about MS-13 prior to coming into court" that day. In response, seven prospective jurors — none
The three defendants who join in this challenge on appeal — Sandoval, Guzman, and Larios — argue that the steps that the District Court took to address the concern about pretrial publicity raised in the motion were inadequate and that, even though none of the empaneled jurors mentioned hearing or seeing the President's statements, the District Court should have presumed prejudice among the members of the jury pool as a result of the media coverage of President Trump's comments about MS-13. The three defendants thus contend that the District Court abused its discretion in denying the motion for a continuance.
We may assume that all three defendants preserved their challenge to the denial of this motion, such that our review of that denial is for manifest abuse of discretion,
These defendants rely chiefly on our pretrial publicity cases in arguing that the District Court erred in not presuming prejudice. But, while those cases provide that prejudice should be presumed "where `prejudicial, inflammatory publicity about [a] case so saturated the community from which [a defendant's] jury was drawn as to render it virtually impossible to obtain an impartial jury,'"
Moreover, although the government's case against these defendants on the RICO conspiracy charge that each faced did rely in significant respects on evidence concerning the nature of MS-13 as a transnational criminal organization, that case ultimately depended on what the evidence showed about each of their ties to ESLS and their knowledge of the mission of that particular MS-13 clique rather than merely on the nature of MS-13 itself. Thus, given the District Court's voir dire and its instructions repeatedly reminding the jury
We next consider the challenge that all four defendants — including Martinez — bring to the District Court's denial of a motion for a mistrial that was based on an alleged "climate of fear" among the jurors. Here, too, we conclude that the District Court did not manifestly abuse its discretion.
On the fourth day of trial, during which the government presented testimony that MS-13's "position concerning informants" was that its members would kill them, the District Court received two notes from jurors. One of the notes asked whether jurors' names would be made public or made available to the defendants. The other note asked, "Should I worry about my safety[?]"
As the trial progressed, the government asked Hernandez Miguel during his testimony on February 8, 2018, what he thought MS-13 would do to him as a result of his testimony. He responded that the rules of MS-13 provide that when someone testifies against another member of that organization, its members will "kill him and also kill his family." Hernandez Miguel then went on to say that "if something happens to my family, it will be their fault," and the District Court struck that statement.
The next day the District Court informed counsel that it had received two additional notes from jurors expressing concerns about their own safety. One of these notes asked whether the jurors' identities were being revealed to the defendants. The other note asked whether there were known cases of MS-13 affiliates harming jurors — or the families of jurors — who had to deliberate about crimes committed by other MS-13 members and stated that "[t]his is a concern of multiple jurors."
In response, the District Court addressed the jurors, without the defendants present (but with their attorneys in attendance). The District Court told the jurors that there was "no reason for concern" and no reason to believe that there was a threat of violence to any of them. The District Court further explained to the jurors at that time that actions had been taken to protect their anonymity, and the District Court reminded the jurors that they were obliged to render a verdict without any fear of consequences and that they were not to discuss the case among themselves prior to deliberations. The District Court then conducted an individual voir dire to ask the jurors whether they thought they could still render a fair verdict and to discuss any remaining concerns.
The District Court discharged one juror based on that individual's responses to the individual voir dire.
At the end of the process, Sandoval's counsel moved for a mistrial. He pointed to an alleged "climate of fear" reflected by the notes from the jurors, as well as both an "undercurrent of discussion about the testimony" despite the Court's instructions and what he alleged was a lack of candor in some jurors' voir dire responses. The other defendants joined this motion, which the District Court denied.
A trial judge has "wide discretion" in responding to concerns about juror impartiality and determining appropriate remedial measures to ensure it.
The defendants do assert that the District Court's remedial actions were demonstrably insufficient. They point out that one week after the individual voir dire responding to jurors' expressions of fear, the District Court received a note from a juror that indicated that one juror had attempted on multiple occasions to engage other jurors — who were following instructions — in conversation about the case, despite the District Court's emphasis during the individual voir dire on not discussing the case.
But, the District Court investigated this issue, including by following up with that very juror, who indicated to the District Court in response that there had been no discussion of the merits of the case and that he was not attempting to sway or deliberate with other jurors. The District Court then went on to remind that juror of the critical importance of not engaging in any discussion about the case of any kind prior to the jury's deliberations, and no defendant thereafter objected to the handling of the issue.
We turn our focus, then, to a set of challenges that Sandoval, Guzman, and
We first consider Sandoval, Guzman, and Larios's contention that the District Court abdicated its gatekeeping role in permitting Wood to testify as an expert regarding MS-13. We do not agree.
A trial court's gatekeeping obligation with respect to the admission of expert testimony applies to nonscientific evidence,
Before trial, the government informed the defense that it would offer expert testimony regarding the history, structure, and organization of MS-13. Sandoval, Larios, and Martinez all moved in limine to exclude the proposed expert testimony. At the final pretrial conference, the District Court carefully considered the defendants' motions in limine and Sandoval's request for a
The government maintained, however, that no hearing was necessary to determine Wood's qualifications to so testify. It noted in that regard the detailed expert disclosure that had been made regarding Wood's qualifications and the availability of his testimony in an earlier trial before the District Court stemming from the same investigation.
Notwithstanding the government's contention that there was no need for a hearing on Agent Wood's qualifications, the District Court permitted the defendants to seek additional information about Wood's background and the basis for his testimony. Furthermore, the District Court indicated that it would revisit whether to hold a voir dire of Wood on the basis of that information.
Then, on the first day of trial, the District Court ruled that the background information about the operation of MS-13 was an appropriate subject of expert testimony. It acknowledged that, as in other cases in which expert testimony aids the jury in understanding the operation of complex criminal schemes, the knowledge is "not acquired due to some kind of scientific methodology" but instead is based on
We have recognized that in the law enforcement field an "expert's experience and training bear a strong correlation to the reliability of the expert's testimony."
The three defendants who join this challenge nonetheless contend that there was insufficient information put forward in support of Wood testifying as an expert about, for example, how many individuals had spoken with him and the percentage of those conversations that supported his opinions and conclusions concerning MS-13. But, these defendants cite no authority providing that a district court must conduct a probing inquiry of that degree of intensity into an expert witness's expertise when it is founded on that witness's experience, as Wood's is. Moreover, the District Court permitted the defense at trial to elicit information about the underlying conversations that Agent Wood asserted informed his expert opinions regarding the operations of MS-13 so that the jury could factor that into its assessment of the weight to be accorded to Wood's testimony. Thus, we reject the claim that the District Court abused its discretion in permitting Wood to provide expert testimony by failing to fulfill its gatekeeping role.
These same three defendants next contend that the District Court erred by permitting Wood to provide testimony that went beyond the scope of proper expert testimony. Here, too, we review for abuse of discretion.
The defendants distinguish between what they call "conventional topics of gang testimony" — information about MS-13's structure, organization, history, colors, tattoos, and rivals — and other subjects "highly prejudicial" to the defendants. But, the testimony that the defendants contend falls into this latter category — specifically, information about the mission of MS-13, the requirements to join MS-13, MS-13's treatment of suspected informants, and the interactions between El Salvador and U.S. MS-13 cliques — was fairly within the
That some of Wood's expert testimony about the rules and operation of MS-13 was more prejudicial than other forms of general gang testimony also does not mean, as the defendants suggest, that it was necessarily improper as expert testimony. The District Court acted within its discretion in determining that the testimony's prejudicial effect did not substantially outweigh the testimony's probative value.
We also reject the contention that the District Court abused its discretion in admitting Wood's testimony insofar as that contention is premised on the fact that some of that testimony was not proper for an expert witness to provide because it did not constitute expert opinion at all and instead constituted testimony that only a fact witness could give. The problem with this contention is that Wood testified not only as an expert about MS-13's operations but also as a fact witness due to his role on the Task Force that conducted the investigation into ESLS.
To be sure, "`courts must be mindful when the same witness provides both lay and expert testimony' because of the heightened possibility of undue prejudice," which is a concern that "is especially acute where the dual roles of expert and fact witness are filled by a law enforcement official."
We move on, then, to Sandoval, Guzman, and Larios's federal constitutional challenge concerning Agent Wood's testimony, which these defendants base on the Confrontation Clause.
The defendants broadly assert that Wood's testimony was a regurgitation of conversations that he had with law enforcement officers in the United States and El Salvador. The defendants acknowledge that properly qualified experts whose work is based on reliable principles and methods may rely on inadmissible hearsay evidence in forming an expert opinion without running afoul of the Confrontation Clause in then relaying that opinion, once formed, through their own testimony.
The only portions of Wood's testimony that the defendants appear to challenge concern the information pertaining to MS-13
We have already rejected, however, the defendants' challenge to Wood's testimony based on the contention that the principles and methods that he relied on to form his expert opinion were inadequate to permit him to offer expert testimony. And, given that conclusion, the defendants' acknowledgement that Wood did "amalgamat[e]" the potential information he relied upon fatally undercuts their Confrontation Clause claim.
Sandoval, Guzman, and Larios relatedly contend that the District Court improperly limited the scope of the defense's cross-examination of Wood concerning CW-1 in a way that impaired their rights under the Confrontation Clause. We conclude that this challenge also is without merit.
In the early stages of the Task Force's Massachusetts MS-13 investigation, the FBI began developing CW-1 as a cooperating witness. CW-1 was brought to Boston from El Salvador — the country to which he had been removed after serving a federal prison sentence — around 2013, and initially posed as a drug dealer. Hernandez Miguel introduced CW-1 to ESLS and, around 2014, CW-1 was jumped in to the ESLS clique.
Wood was not the case agent when CW-1 was first brought on as an informant or when CW-1 infiltrated the ESLS clique, but he was involved in the investigation as of those times. And, after Wood became the case agent in 2015, he began the process to enter CW-1 into the witness protection program.
Shortly thereafter, according to Wood's testimony, he became aware of information indicating that CW-1 had committed serious violent crimes throughout the course of the investigation. Wood met with CW-1 about these concerns in December 2015,
The defendants sought to cross-examine Wood about CW-1's termination from witness protection and about the details of CW-1's "crime spree." The District Court repeatedly questioned the relevance of this information in the absence of CW-1 being called as a witness or the government introducing evidence about the value that CW-1 provided to the FBI or the good things that CW-1 did. The District Court also noted that CW-1, who did not testify, could not be impeached through Wood.
Sandoval's counsel argued in response that the information about CW-1 went to Wood's credibility, as Wood had "been presented as a person who conducted a detailed thorough investigation" and evidence that a critical witness he relied on was "out there committing crime" under his nose was "relevant to [Wood's] overall credibility." The District Court ultimately ruled that it would permit cross-examination of Wood to "elicit in bare bones fashion that CW-1 committed serious crimes, if this is what happened, during the time that he was a cooperating witness and leave it at that, nothing further."
Sandoval, Guzman, and Larios contend that their Confrontation Clause rights were infringed by the District Court's ruling limiting cross-examination of Wood about both CW-1's commission of serious crimes while serving as an informant for the FBI and CW-1's involvement with and termination from the witness protection program. When a challenge to a district court's decision to limit cross-examination has been properly preserved, we review de novo the district court's "conclusion that, even though cross-examination was limited, the defendant was afforded sufficient leeway to establish a reasonably complete picture of the witness' veracity, bias, and motivation."
We may assume that the challenge at issue has been properly preserved by each defendant, as the District Court's ruling limiting cross-examination of Wood still permitted the defense to "paint for the jury a complete picture" and thus "afforded a reasonable opportunity to impeach" Wood.
Nor did the District Court abuse its discretion in imposing the limits that it did on the ability of the defendants through cross examination to elicit the details of CW-1's criminal activity. The defendants contend that the type of questioning that the defense was left to pursue was "simply too vague and opaque" to be effective. But, the District Court had "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, ... or interrogation that is repetitive or only marginally relevant."
Finally, we consider the same three defendants' Jencks Act claim, 18 U.S.C. § 3500, which concerns a "Threat Assessment" that the FBI prepared as part of the process for admitting CW-1 into the witness protection program. The Jencks Act requires the government, "once a witness has testified, to proffer upon a defendant's timely request any statement of that witness in its possession, whether or not exculpatory, that relates to the subject matter of the witness's testimony."
Following the defendants' request, the government ultimately produced a redacted version of the Threat Assessment. Neither the District Court nor the defendants viewed the unredacted document, which the defendants contend may have been a "statement" of Agent Wood for Jencks purposes and thus subject to production under that Act. The defendants argue that the District Court abused its discretion by failing to conduct an independent inquiry into whether the Threat Assessment was Jencks material — which includes any written statement "made by" "any witness called by the United States" "and signed or otherwise adopted or approved by him," 18 U.S.C. § 3500(e) — and by failing to order the production of the unredacted document, which was first referenced during Wood's direct examination when he indicated that filling out a Threat Assessment was one step he took to protect CW-1's family in El Salvador. We review a claim of Jencks error — which we will assume is preserved as to Sandoval, Guzman, and Larios
Sandoval first sought production of the Threat Assessment before trial. He then moved for the immediate production of the Threat Assessment after Wood mentioned the document in his testimony on the fourth day of trial. Sandoval followed up with a written motion seeking production of "the original Threat Assessment, the amended version, and the special benefits parole package" as "`written statement[s] made by ... or otherwise adopted or approved by' Special Agent Wood." (alterations in original) (quoting 18 U.S.C. § 3500). The reference to an "amended version" of the Threat Assessment seemingly refers to Wood's representation on cross-examination that he had amended the application for CW-1 to enter the witness protection program after beginning that paperwork in late 2015.
The District Court reviewed a redacted version of the Threat Assessment and, on the fourteenth day of trial, ordered the government to produce a copy under seal. The unredacted document was not produced under seal, but the defense received a redacted version on the fifteenth day of trial.
The District Court did not determine whether the Threat Assessment was producible under the Jencks Act. The defendants contend that the failure to make that determination was an abuse of discretion. And, although the Jencks Act does not "provide grounds for relief unless the exclusion or failure to produce prejudiced [the] defense,"
The government responds that a claim of prejudice cannot lie because the defense declined the offer for a continuance that the District Court had given to them and thus that a remand for a hearing is not required.
It is true that
But, these facts demonstrate only that we do not know whether the material was actually subject to production (and that its absence was therefore potentially prejudicial). These facts do not demonstrate that a continuance would not have cured the prejudice. The defendants, moreover, do not themselves offer a reason to conclude that a continuance would not have cured the prejudice, aside from the fact that there was no review of, or Jencks determination as to, the redacted portions of — and, if such a document exists, an amended version of — the Threat Assessment.
Indeed, the record contains nothing that shows that a continuance would not have allowed the determination about whether the material was Jencks material to be made. And, had that determination been made in the affirmative, the District Court had made clear to the parties that it would "permit a recall of [Agent Wood]," should it be "appropriate and fair to do [so]," if the information turned out to be Jencks material useful to the defense.
Next up are two challenges that concern the admission of various statements by witnesses at trial. We conclude that neither one has merit.
Larios, Sandoval, and Guzman bring the first of these two challenges, in which they
Beginning in 2014, CW-1 began to record some of the ESLS clique meetings at the garage in Everett. In 2015, the FBI set CW-1 up as a "gypsy cab driver" — or an unlicensed cab driver — and outfitted his vehicle with a secret audio-video recorder. Through this means, CW-1 recorded conversations with various MS-13 members who called for rides. Additionally, the FBI was able to intercept CW-1's phone calls. The transcripts of some of the recorded conversations from these sources — translated into English — were introduced into evidence, and some portions were read aloud to the jury during the trial.
Before trial, Larios filed a motion in limine to exclude CW-1's statements contained on the audio recordings, when offered by the government, so long as CW-1 was unavailable for cross-examination.
We review preserved challenges to the District Court's evidentiary rulings for abuse of discretion, though in doing so "we consider
Larios's motion in limine was not on its own sufficient to preserve the objection.
The defendants first point to a "standing objection" that the District Court granted
The defendants separately point to an objection that was made concerning the speaker designations in the transcript and the need for authentication of the transcripts.
Nor do either of the two subsequent objections that the defendants also highlight have any apparent connection to this particular confrontation issue. One such objection concerned Wood's testimony and the basis of his knowledge. The other, after which the District Court "g[ave] a standing objection to defendants on the transcripts," was the "[s]ame objection" seemingly on the issue of the transcript authentication, speaker identification, and translation accuracy. At most, therefore, we review this claim for plain error, which means that we must find that the District Court committed "(1) an error (2) that is clear and obvious, (3) affecting the defendant's substantial rights, and (4) seriously impairing the integrity of judicial proceedings."
The defendants who join this challenge "fail to even attempt to explain how the plain error standard has been satisfied."
The parties agree that the statements at issue were testimonial. The key issue, therefore, is whether they were "admitted for purposes other than establishing the truth of the matter asserted."
Many of the statements by CW-1 that the defendants challenge were made during the January 8, 2016 clique meeting that, the evidence supportably shows, ended with Joel Martinez's jump-in. For example, the transcripts entered into evidence show that, during that meeting, in a conversation about the murder of Irvin de Paz and who would receive credit for it (and, at the same time, who would be
The defendants contend that these statements were offered to establish that these attacks happened, that they were connected to MS-13, and that the clique was finding housing for Joel Martinez because he committed the murder. Similarly, they point to CW-1's statements identifying the victims in the murder of Javier Ortiz as rival gang members. And, the defendants contend that CW-1's statements telling Joel Martinez that he should ask to be an ESLS homeboy provided substantive evidence showing that criminal activity was acceptable to MS-13 members. They also contend that CW-1's statements on the transcripts connected to a December 8, 2014 drug protection detail for which CW-1 solicited Larios's help were offered for their truth because it was CW-1 who "proposed the plan" and because CW-1's statements "related to the commission of that criminal activity."
The defendants are right that we have been careful to reject "overbroad" applications of the "context" exception to the prohibition against the admission of hearsay.
The defendants who join this challenge do rightly assert that some of CW-1's statements that they challenge as improperly admitted identified various attacks — which the government then characterized as racketeering activity — and linked them to MS-13. For example, it was CW-1 who, in a conversation at the January 8, 2016 clique meeting about the hits that Joel Martinez had participated in, added that "he did another one with [Sanchez]." The defendants thus contend that these statements were offered for the truth of the matter that these attacks occurred and were committed by other MS-13 associates in furtherance of the conspiracy.
But, as the government points out, such statements were admissible not only as "reciprocal and integrated utterances" but also to demonstrate the clique's motivations for jumping Joel Martinez into the clique and the clique members' reactions
Larios also challenges the admission of his own post-arrest statement. But, this challenge fails as well.
At trial, Hernandez Miguel testified about certain statements that Larios made to him while they were detained together after being arrested in January 2016. The conversation concerned Larios's prior arrest, in January 2015, on Massachusetts firearms charges. Larios reportedly told Hernandez Miguel that after his 2015 arrest he was "certain it was [CW-1] who had snitched on him," so he formed a plan with Martinez to kill CW-1 and asked Sandoval for a "green light" to kill him.
Larios does not and cannot argue that the statement was inadmissible when offered against him.
Our next focus is on a pair of challenges that concern purported misstatements of the evidence in the government's closing
The first of these challenges is Sandoval, Guzman, and Larios's claim that a mistrial was warranted based on the government's inaccurate closing-argument comment that Sandoval had ordered his clique to "go kill chavalas." This challenge concerns a statement that the government made during rebuttal in response to Sandoval's closing argument that there was no evidence that he had advance knowledge of the racketeering acts alleged or had agreed that anything should happen to victims like Javier Ortiz and Irvin de Paz. The statement was:
Sandoval moved for a mistrial on the ground that there was no evidence that he said, "go kill chavalas." The government responded that the statement was paraphrasing what Sandoval had said and constituted fair argument based on Sandoval's position in the clique and the statements that the evidence supportably shows that he had made. The District Court denied Sandoval's motion.
We review the denial of a request for a mistrial for abuse of discretion,
The prosecutor's statement in the closing argument, when considered in context, did not suggest that Sandoval had said the precise words "go kill chavalas." Moreover, the record did contain evidence supportably showing that Sandoval said to Hernandez Miguel, in explaining to him what it means to be a member of MS-13 in connection with his possibly becoming a member of its ESLS clique, that "when one is jumped into MS-13, one is aware that one is jumped in to kill or to look for chavalas." We thus conclude that the statement by the government in its rebuttal to Sandoval's closing argument offered a reasonable interpretation of existing evidence. We note, too, that the District Court instructed the jury in terms that apprised it of the need to distinguish between argument and evidence.
Guzman also takes aim at what he contends is a misstatement that the government made at the end of its closing argument. In summarizing the involvement of each defendant, the prosecutor stated:
The parties' transcripts both indicate that it was Guzman who counted to thirteen during Joel Martinez's jump-in. There was a dispute over who said words "Welcome to the Mara, buddy," immediately after the jump-in. But, no party attributed
In light of that concession, we must determine "whether the offending conduct so poisoned the well that the trial's outcome was likely affected."
There is no assertion that the misstatement was deliberate. In fact, the ongoing confusion about speaker identification suggests that it was not.
The misstatement was also brief and isolated. That fact is not in and of itself necessarily dispositive,
In an attempt to show otherwise, Guzman's counsel argues that other evidence in the record indicates that Guzman did not fully embrace jumping Joel Martinez into the clique. But, the jury also was presented with evidence that Guzman attended the jump-in, actively participated in the jump-in, including counting to thirteen, and advocated for helping Joel Martinez find a place to stay to hide out from the police.
In addition, the District Court gave clear and repeated instructions that the statements and arguments of counsel were not evidence and that "[i]f the facts as you remember them from the evidence differ from the way the lawyers have stated them, your memory of the facts should control."
We next turn to the purported instructional errors that Sandoval, Guzman, and Larios raise. First, they contend that the District Court improperly instructed the jury regarding the intent required for RICO conspiracy. They also claim that the District Court's refusal to give an entrapment instruction constituted reversible error. And, finally, they assign error to the District Court's denial of Larios's request for a missing witness instruction.
At trial, the District Court instructed the jury, in relevant part, as follows:
The defendants contend that this instruction left the jury with an overly broad understanding of the requisite intent for RICO conspiracy. Specifically, they contend that the District Court erred in refusing Guzman's proposed instruction, which requested that "general" be replaced with "specific," such that the instructions would have provided that the government "must prove beyond a reasonable doubt that those who were involved shared a specific understanding about the crime."
At the jury charge conference on February 16, 2018, Guzman noted in response to the District Court's draft of the instruction that it gave that in his proposed jury instructions he "had asked for the word `specific' to be included and to delete `general.'" The District Court responded that the charge it planned to give was "standard language" and that it may be confusing to replace "general" with "specific," but indicated that it was willing to reconsider the issue if Guzman had a case indicating that the requested language was accurate. Guzman thereafter filed a written request for a "specific intent" instruction, asking that "the word `general' on page 28 of the Court's proposed jury instruction[s]... be changed to the word `specific.'"
The District Court ultimately concluded that it would not give the instruction that Guzman proposed. It explained that the "general understanding" language that it planned to use in the instruction it intended to give was "standard language" and that it did not believe that Guzman's proposed instruction was correct. The District Court instructed the jury with the "general understanding" language quoted above. After the jury instructions were given, Guzman noted that he "continue[d] to object to the word `general' ..., and it should be `specific.'"
In rejecting the requested substitution of "specific" for "general," the District Court correctly explained that "[t]he agreement has to be the specific agreement, in this case, to commit racketeering in such-and-such a way, but you don't have to agree to every detail of the agreement or every detail of how the crimes are going to be committed."
At points, the defendants also appear to argue on appeal that the instructions that were given were themselves problematic, because they "failed to make clear the requirement that each defendant share the specific understanding or intent that a coconspirator would commit two or more of the predicate acts or type of acts charged." But, insofar as such an argument is properly before us, we reject it. Considered as a whole, the instructions "adequately illuminate[d] the law applicable" to the issue.
To that very point, the District Court instructed the jury that "the government must prove that the defendants agreed that one or more members of the enterprise
Guzman, Sandoval, and Larios also argue that the District Court's failure to give a requested jury instruction on entrapment was reversible error. Entrapment is an affirmative defense, and "an accused is entitled to an instruction on his theory of defense so long as the theory is a valid one and there is evidence in the record to support it."
During the trial, Guzman filed a written request for a jury instruction on entrapment. At the charge conference, Guzman argued that such an instruction was warranted given the evidence that the government's cooperating witness "basically brought racketeering acts to the Eastside clique," which could enable the jury to conclude that "if [Guzman] did, in fact, enter into this conspiracy, it was because he was entrapped by the government's agent." The District Court, after carefully considering the request and recognizing that the "failure to give an entrapment [instruction] if there is sufficient evidence for a jury to find entrapment is reversible error," ultimately declined to give the instruction.
Larios preserved this issue by objecting, on behalf of all defendants, to the failure to give the entrapment instruction. Therefore, we review the District Court's refusal to give the entrapment instruction de novo, "examin[ing] the evidence in the light most favorable to the accused so as to determine whether the record supports an entrapment theory."
For a defendant "to be entitled to an instruction on entrapment, the record must show `some hard evidence' of both government inducement" of the criminal conduct "and the defendant's lack of predisposition" to engage in the criminal conduct.
The defendants assert that the government used its cooperating witness, CW-1, to "specifically target" the defendants through "excessive pressure" and "improper tactics."
The defendants develop no argument explaining, however, how these actions constituted "excessive pressure," and our law on government inducement does not support categorizing them as such. The actions do demonstrate that the government, through its agent, "created the opportunity for [the defendants] to become criminally involved."
Looking at the evidence in the light most favorable to the defendants, no reasonable juror could conclude that the government improperly induced the crime. We therefore "need not dwell on the evidence of predisposition."
That leaves the claim that these same three defendants press on appeal concerning the District Court's failure to give a "missing witness" instruction concerning CW-1. We again find no error.
The requested instruction would have directed the jury as follows:
We review the District Court's refusal to give the instruction for abuse of discretion.
A threshold requirement for a missing witness instruction is that the uncalled witness not be "equally available to both parties."
Before trial, the defendants jointly moved to compel the disclosure of CW-1's location to defense counsel after learning that CW-1 had been terminated from the witness protection program. The defendants' motion sought CW-1's location "so that defense counsel [could] subpoena him to appear as a witness at trial." The government declined to provide CW-1's address given the "serious, ongoing, and obvious security threat to CW-1 and CW-1's family" but indicated that "CW-1 will be available" should the defendants wish to call him as a witness at trial. The government reaffirmed at the final pretrial conference that it would produce CW-1 for trial if the defense so requested.
At that pretrial conference, the defendants argued that production for trial alone would be insufficient and that it was important to be able to speak to the witness before trial. The District Court indicated that it would consider the defendants' request to receive independent access to interview CW-1 before the trial if the defense filed a motion outlining the Court's authority to do so; otherwise, it would "assume that the government would deal with [the] problem [of] the defendant[s'] inability to locate CW-1 or subpoena him by producing him upon reasonable request to testify at the trial or to be available for testimony at the trial," an approach it found "sufficient" given the safety concerns.
There is no indication that the defense filed such a motion or pursued the issue of interviewing CW-1 pretrial further. The defense did, however, continue to dispute throughout the trial that there was an "equal opportunity" to call CW-1 given that there would be no opportunity to talk to the witness before calling him to the stand.
Larios included a "missing witness" instruction in his proposed jury instructions. He later renewed his request for a "missing witness" instruction, explaining that the government's offer to produce CW-1 was "hollow" — as it required the defense to "call a witness that [it] cannot interview or contact prior to trial" — and arguing that a missing witness instruction was proper given that CW-1 was "favorably disposed" to testify on behalf of the government.
The District Court addressed the request for a missing witness instruction on the last day of trial. The government argued that "[it] has always indicated [its] willingness to make [CW-1] available," and
The defendants seem to acknowledge that CW-1 was not physically unavailable given that the government was willing to produce him for trial. But, this does not end our inquiry, because the defendants contend that CW-1 was legally unavailable by virtue of his relationship with the government and the fact that the defense was unable to speak to him before trial.
We find that the District Court did not abuse its discretion in denying the instruction in these circumstances. The defense never made a formal request in the District Court for permission to interview CW-1, even though at the pretrial conference the District Court had invited the defense to file a motion to that effect. Thus, we find that the defendants cannot claim that CW-1 was "unavailable" on the basis of the inability to speak to him before calling him to the stand, given that the defendants never requested that the government produce CW-1 for an interview after it refused to disclose his location.
The defendants also argue that a missing witness instruction was warranted on another basis. We have recognized that the government's failure to call a witness who is physically available to the defense and could be subpoenaed by them could be a basis for the defendants to receive a missing witness instruction in limited circumstances. We have explained that if such a witness is "clearly favorably disposed" to the government, the witness may be treated as not legally "available" to criminal defendants such that the defendants would be entitled to the missing witness instruction even though they would have had the means to call that witness.
There is no such showing here, however, that would convince us that the District Court abused its discretion in denying the instruction on this basis. The fact that CW-1 was a government informant for an ongoing period is not independently sufficient to establish favorable disposition for an equally available witness.
This is not to say that any greater showing would be required of a defendant who was denied access to the uncalled witness when such access could have enabled the defendant to demonstrate that the witness was favorably disposed toward the government.
We note, too, that the defense was permitted to argue that the jury should draw a negative inference from CW-1's absence at trial. That the defendants had that opportunity "significantly undercut[s]" their "claim that the denial of a `missing witness' instruction was detrimental to the defense."
Finally, all four defendants bring challenges to their sentences. We take these challenges in turn, starting with the ones that Sandoval brings.
Sandoval first takes aim at the procedural reasonableness of his sentence. Specifically, he contends that the District Court improperly attributed certain activity to him as "relevant conduct" under the applicable United States Sentencing Guidelines ("Guidelines").
Under the Guidelines, the base offense level for a RICO conspiracy conviction is either 19 or, if greater, "the offense level applicable to the underlying racketeering activity." U.S.S.G. § 2E1.1(a)(1)-(2).
"[R]elevant conduct in a RICO case" for purposes of § 1B1.3 of the Guidelines "includes all conduct reasonably foreseeable to the particular defendant in furtherance of the RICO enterprise to which he belongs."
We review the District Court's interpretation and application of this guideline de novo.
Sandoval's revised Presentence Investigation Report ("PSR") concluded that Sandoval was accountable for three separate offenses that constituted "underlying racketeering activity": the attempted murder of December 27, 2015; the attempted murder of January 1, 2016; and being an accessory
The PSR included a four-level adjustment for Sandoval's role as an "organizer or leader" of criminal activity.
The TOL of 43 and CHC of I yielded a Guidelines sentencing range ("GSR") of life imprisonment.
Sandoval did not object below to the interpretation of the Guidelines that led to this determination in the PSR. He did, however, contend that the government had not met its burden to show that the attempted-murder offenses treated as "relevant conduct" in the PSR were reasonably foreseeable to Sandoval and within the scope of his own agreement — and, moreover, that the government failed to offer sufficient reliable evidence to establish that Joel Martinez committed the acts or that the acts described constituted attempted murder at all. Sandoval also objected to the application of the accessory-after-the-fact cross-reference on multiple grounds — including the fact that accessory after the fact was not a charged RICO predicate or, he argued, even a chargeable RICO predicate at all — and contended that, should the District Court nevertheless apply a cross-reference for this activity, it should be limited to harboring, which carries a lower base offense level.
Sandoval's sentencing hearing was held on October 9, 2018. After hearing the parties' arguments, the District Court found that the PSR correctly calculated the Guidelines offense levels and properly accounted for both the two attempted murders and the accessory-after-the-fact cross-reference.
In so concluding, the District Court made an individualized finding regarding the relevant conduct determination. It found that the two attacks were attempted murders and that first-degree murder was the appropriate cross-reference for these attempts. It then also found that they were reasonably foreseeable to Sandoval. Moreover, as to the accessory-after-the-fact cross-reference, the District Court found both that it was a racketeering act and that, by a preponderance of the evidence, Sandoval's actions went beyond mere harboring.
On appeal, Sandoval reasserts his argument below that the government failed to prove, even by a preponderance of the evidence, that either attempted murder was reasonably foreseeable to him.
Whether the conduct was reasonably foreseeable to Sandoval is a fact-bound determination that we review for clear error.
The District Court supportably found that the evidence showed by a preponderance that based on Sandoval's conversations with Joel Martinez about joining ESLS, "[Joel Martinez] would view himself as being somewhat in a probationary lifestyle" requiring that he "prove that he was worthy by committing attacks," which "indeed... followed [in] short order." And, the District Court noted that the conclusion that it was foreseeable to Sandoval that such attacks would happen — and that they would rise to the level of attempted murder — was reinforced by Sandoval's statements at the January 8, 2016 clique meeting. The District Court interpreted these statements as effectively stating that the attempted murders bolstered the clique's reputation and that the clique needed a "new generation." Taken against the background of an organization supportably shown by a preponderance to have had a purpose to kill rivals, in which young people are promoted by attacking or killing them, the District Court supportably found it "reasonably foreseeable to [Sandoval] ... that younger members would kill or attempt to kill to impress the leadership, to gain respect for themselves and to become members."
Sandoval contends that the conversation with Joel Martinez before the attempted murders at issue here contained no implication that Joel Martinez needed to do anything else to prove himself — Sandoval argues that, to the contrary, he indicated that a discussion with the clique members was all that was needed. And, Sandoval argues, the government failed to offer any evidence that he ordered Joel Martinez to commit any acts of violence or instructed anyone else to report back on Joel Martinez's activities.
But, the District Court's "conclusions were properly rooted in the evidence and its inferences founded in logical reasoning."
Given our determination on this score, we need not address Sandoval's claims concerning the accessory-after-the-fact group. Sandoval argues that the group should have been limited to mere harboring, which receives fewer levels under the Guidelines. But, that difference would not have affected the TOL — or the GSR — that applied to Sandoval (not to mention the statutory maximum).
Sandoval also asserts that a statutory-maximum sentence is such a significant upward variance from what he contends was his proper GSR — 51 to 63 months — that his sentence is substantively unreasonable. As we have explained, however, the District Court's calculation of the GSR as 240 months of imprisonment was not in error, and challenges based on substantive unreasonableness are "unlikely" to succeed when, as in this case, "the sentence imposed fits within the compass of a properly calculated [GSR]."
Next, we take up the procedural and substantive reasonableness challenges that Guzman brings to his 192-month sentence of imprisonment. We first review the relevant procedural history.
Guzman's PSR calculated an offense level based on four groups of relevant conduct: accessory after the fact to the May 12, 2015 attempted murder; accessory after the fact to the September 20, 2015 murder; the attempted murder of December 27, 2015; and the attempted murder of January 1, 2016. When combined with a "manager or supervisor" adjustment pursuant to U.S.S.G. § 3B1.1(b), these cross-references yielded a TOL of 37 and, with Guzman's CHC of I, a GSR of 210 to 240 months of imprisonment.
Guzman's sentencing hearing was held on November 15, 2018. The District Court found that, by a preponderance of the evidence, Guzman was liable as an accessory after the fact to the May 12, 2015 attempted murder. But, the District Court did not include as relevant conduct under U.S.S.G. § 2E1.1 the acts involving Joel Martinez — the two attempted murders and being an accessory after the fact to the September 20, 2015 murder. Therefore, the District Court used a lower GSR than the PSR: 121 to 151 months' imprisonment. But, the District Court stated that it found this range "too low" based on the facts and compared to other gang members' sentences. Thus, it stated that this
In conducting that analysis, the District Court started from the premise that the case involved "what's in effect a huge murder conspiracy," in which it found Guzman to have held a "substantial leadership role." But, the District Court also recognized that there was no evidence that Guzman personally committed violent acts and that there was less evidence against Guzman than against many of the other defendants charged in the indictment. The District Court also considered that Guzman had a close relationship with his family and a stable work history, that he had a painfully difficult childhood, and that he had joined the gang at a young age and there was "some evidence that he was participating less as time went on." The District Court ultimately imposed a 192-month sentence of imprisonment — a sentence lower than Sandoval's (and lower than the government's recommendation as to Guzman, which was also the statutory-maximum 240 months) in light of Guzman's "somewhat diminished participation in the organization" and his "family ties."
First, Guzman contends that accessory after the fact to attempted murder does not qualify as a RICO predicate act of racketeering and thus that any conduct of that type could not be counted as relevant conduct in determining his offense level under the Guidelines. Our review is de novo.
As explained above, "underlying racketeering activity" under U.S.S.G. § 2E1.1 must be activity that qualifies as a RICO predicate act of racketeering under 18 U.S.C. § 1961(1).
Guzman does not dispute that accessory after the fact to attempted murder is chargeable under state law and punishable by imprisonment for more than one year.
Relying on these definitions, the government argues that accessory after the fact to attempted murder under Massachusetts law — because it requires that the offending conduct occur "after the commission of a felony" and with the knowledge that the principal "has committed a felony," Mass. Gen. Laws ch. 274, § 4 — is an "act ... involving murder," 18 U.S.C. § 1961(1)(A). On that basis, it urges that we affirm the District Court's treatment of this conduct as "underlying racketeering activity" used to set the base offense level under U.S.S.G. § 2E1.1.
Guzman first contends that the constructions of "involving" in
To the extent that he does develop such an argument, it is based solely on his contention that accessory after the fact to attempted murder has a different mens rea from the offense of murder itself and involves conduct "that is often, in itself, comparatively innocuous." And, in support of his position on this score, Guzman relies on one out-of-circuit precedent construing a provision that is quite distinct textually from the one at issue here. That precedent is the Ninth Circuit's decision in
But, the question in that case, given what the relevant provision of the Guidelines said, was not the same as ours or the one presented in McKenney. It concerned whether the defendant's prior conviction for murder for hire "involve[d] conduct that presents a serious potential risk of physical injury to another."
True, in that distinct context, the Ninth Circuit found it significant that, "unlike one who conspires to commit a crime of violence, an accessory after the fact does not agree to commit the crime of violence" and thus that the accessory-after-the-fact offense did not constitute a "crime of violence" under that Guidelines provision.
One can see the basis for the conclusion — contestable as it may be — that an offense of accessory after the fact to murder for hire may not "involve conduct that presents a serious risk of physical injury to another," U.S.S.G. § 4B1.2(1) (1991), given the temporal relationship between the "risk" that must be generated by the offense and when the offense of accessory after the fact to murder for hire actually occurs. But, here, we are not attempting to determine whether the offense of accessory after the fact to attempted murder involves conduct that poses a risk of physical injury. We are trying to determine only whether it may be said to be one "involving murder," 18 U.S.C. § 1961(1)(A).
Thus, Guzman has not shown that McKenney and
Having rejected Guzman's legal contention that the conduct involved in the offense of accessory after the fact to attempted murder cannot constitute "underlying racketeering activity" here because the offense is not an act of racketeering under RICO, we must consider Guzman's factual argument concerning the accessory-after-the-fact cross-reference. But, here, too, we are not persuaded.
Again, the District Court applied only one accessory-after-the-fact cross-reference as to Guzman. This was related to the May 12, 2015 stabbing. The evidence presented about that stabbing came primarily from Hernandez Miguel's testimony.
According to that testimony, Hernandez Miguel went with other MS-13 members to a park in Chelsea on a request from a fellow ESLS member who had encountered members of the rival 18th Street gang there. On the way to the park, Hernandez Miguel testified, they picked up a foot-long military-style knife. Hernandez Miguel testified that, once they arrived at the park, the "chavalas" started running after an MS-13 member flashed a knife. Hernandez Miguel saw two ESLS members beating a rival gang member on the ground — he then joined them and started stabbing the rival gang member with the military-style knife. The man he was stabbing kicked the knife while Hernandez Miguel was stabbing him with it, and Hernandez Miguel ended up cutting himself.
Hernandez Miguel left with CW-1 and another individual who was associated with a different MS-13 clique. He testified that they decided to go to Guzman's house given that Hernandez Miguel was bleeding a lot. Guzman led Hernandez Miguel into the basement, where Hernandez Miguel "told [Guzman] what had happened." According to Hernandez Miguel's testimony, Guzman helped Hernandez Miguel clean the wound by pouring tequila on it, provided Hernandez Miguel with clean clothing, and told Hernandez Miguel that he would dispose of the bloody clothing by "tak[ing] it to the garbage since he worked with the garbage" (which may have been a reference to Guzman's employment as a garbage collector).
The government's evidence also included testimony from an officer with the Chelsea Police Department who, the evidence supportably shows, responded to the scene of the stabbing. The officer testified that an individual with tattoos he associated with the 18th Street gang was lying on the ground bleeding from a single stab wound to the left side of the middle of his torso. The individual was transported "immediately to the hospital" in an ambulance.
Guzman first argues that the evidence was insufficient to show by a preponderance of the evidence that the underlying act — the May 12, 2015 stabbing — constituted attempted murder under Massachusetts law. The District Court supportably concluded that Hernandez Miguel did intend to commit murder, given that he stabbed someone in the torso and given the context in which that stabbing had occurred, based on what the evidence supportably showed about the mission of the ESLS clique and the reason they were attacking rival gang members in the park. This conclusion was not clear error.
Guzman next argues that, even if the stabbing did constitute attempted murder, the government still failed to show that Guzman had sufficient knowledge of the underlying felony to be considered an accessory after the fact under Massachusetts law. Even assuming, as Guzman contends, that this requires that Guzman was apprised of "the substantial facts of the [underlying] felonious crime,"
Next, Guzman asserts that the District Court imposed an upward departure without notice. This challenge is based on the fact that, in the statement of reasons, the District Court completed the section corresponding to departures (section V) rather than the section corresponding to variances (section VI), indicating an above-Guidelines departure under U.S.S.G. § 5K2.18 pursuant to a government motion for departure. Our review is for abuse of discretion.
As Guzman acknowledges, the government had not sought an upward departure. And, as he also acknowledges, the District Court did not check the box in section IV of the statement of reasons indicating that it departed from the Guidelines range (IV. C); instead, it checked the box indicating that it imposed a variance (IV.D).
The District Court explained, moreover, that it was imposing a sentence based on the 18 U.S.C. § 3553(a) factors. Thus, in
Guzman argues in the alternative that even if the District Court is deemed to have fashioned a variant sentence under § 3553(a), there was still procedural error. Our review is for abuse of discretion.
First, Guzman contends that Fed. R. Crim. P. 32(h)'s notice requirement "applies equally to both departures and variances," but we have squarely rejected this claim.
Guzman does not point to any indication other than the check mark in the statement of reasons that the District Court used this particular rationale, and the District Court did not refer to U.S.S.G. § 5K2.18 at the sentencing hearing. Instead, its § 3553(a) analysis shows that the District Court considered what it found to be Guzman's "significant role" in what was "in effect a huge murder conspiracy." And, aside from his sufficiency arguments, Guzman does not argue that this was problematic as a Guidelines matter.
Next, Guzman assigns error to the District Court's finding that Guzman was a "manager or supervisor" under U.S.S.G. § 3B1.1(b), which resulted in a three-level enhancement. Guzman asserts that his title as "second word" was not alone sufficient to conclude that he functioned as a manager or supervisor. And, he contends, the evidence of the role he actually played in the clique did not support the District Court's finding that he played a managerial or supervisory role. He contends that he did not "exercise significant decisionmaking authority."
At trial, Hernandez Miguel testified that Guzman was in charge of the clique money
In light of this evidence, we find that the District Court did not clearly err in finding, by a preponderance of the evidence, that Guzman exercised "some `degree of control or organizational authority over others.'"
Finally, Guzman contends that his above-Guidelines sentence was substantively unreasonable. As we have indicated, "[t]he hallmarks of a substantively reasonable sentence are `a plausible sentencing rationale and a defensible result.'"
Guzman's substantive reasonableness challenge is based in part on the District Court's reliance on what he contends were improper sentencing factors. First, Guzman contends that the District Court's statements that Guzman "did not accept responsibility" and "did not cooperate" improperly punished Guzman for exercising his Fifth and Sixth Amendment rights. The record does not indicate that the District Court increased Guzman's sentence for this reason. Instead, the record makes clear that, in determining what Guzman's sentence should be, the District Court was considering how Guzman's offense conduct and sentencing considerations compared to other defendants charged in the FSI, such that Guzman's sentence would fairly compare to those other sentences imposed. And, one consideration relevant to that inquiry was the fact that some of those defendants' sentences reflected the fact that they had received credit for their cooperation or acceptance of responsibility "within the meaning of the guidelines." Moreover, to the extent the District Court was considering the fact that Guzman did not personally cooperate or accept responsibility in setting his sentence, we have held that
Guzman also contends that the District Court's upward-variance decision was based largely on factors already accounted for in the Guidelines calculation — specifically, Guzman's leadership role and his role as an accessory after the fact to the May 12, 2015 attempted murder.
To the extent the District Court relied on these factors to impose a sentence above the Guidelines range, it "specifically articulate[d] [its] reasons for doing so," which was all it was required to do.
Guzman also argues that to the extent the above-Guidelines sentence was based on his gang membership, this, too, was improper. Because this argument relies on the U.S.S.G. § 5K2.18 argument we have already rejected, it fails here as well.
Guzman also asserts that an above-Guidelines sentence could not rest on Guzman's participation in the gang or his participation in Joel Martinez's jump-in given the evidence showing that his "participation waned considerably during the government's investigation of the case" and that he "was not supportive of expanding ESLS to include [Joel Martinez] and his associates." But, the District Court did account for Guzman's "somewhat diminished participation" in the organization and the evidence suggesting "that he was participating less and maybe caring more about his family than the gang." Its determination that the fact that "he held a leadership role in an organization that encouraged people to commit murder, that promoted murder and that protected murderers" nevertheless justified an upwardly variant sentence was plausible.
We conclude that the District Court's sentencing rationale, which carefully addressed the competing considerations — such as Guzman's family ties, hard work, and "somewhat diminished participation" in the organization along with his leadership role in "what's in effect a huge murder conspiracy" — both was plausible and arrived at a result that was within the "universe of reasonable sentences,"
We next consider the challenges that Larios brings to his 180-month sentence of imprisonment for RICO conspiracy. We begin by explaining the relevant procedural history.
The PSR calculated five groups to determine Larios's adjusted offense level, based on the following relevant conduct: the cocaine conspiracy related to the drug protection detail, calculated based on 5 kilograms of cocaine; the conspiracy to murder CW-1; accessory after the fact to the September
Larios objected to all of these cross-references. He also objected to the use of the preponderance standard for the relevant conduct determination, arguing that such enhancements should be proved beyond a reasonable doubt. And, he argued that he was entitled to a downward departure for sentencing factor manipulation.
At Larios's sentencing on November 19, 2018, the District Court reiterated its finding, as a general matter, that accessory after the fact does constitute racketeering activity for purposes of U.S.S.G. § 2E1.1(a)(2). But, the District Court declined to adopt the PSR's attribution of the three accessorial crimes to Larios. And, the District Court calculated the drug conspiracy group based on one kilogram of cocaine — an amount it found foreseeable to Larios — rather than the five kilograms used in the PSR. The District Court adopted the PSR's recommendation as to the cross-reference for conspiracy to murder CW-1, which it found appropriate to include as a Guidelines matter. Thus, the District Court determined that Larios had a TOL of 35. Combined with a CHC of I, this generated a GSR of 168 to 210 months of imprisonment.
The District Court imposed a 180-month prison sentence. In doing so, it stated that it felt the sentence imposed would be "appropriate whether or not the guidelines came out the way they did, whether higher or lower." In determining that the sentence was appropriate, the District Court considered, among other factors, that Larios was not a clique leader, that there was no evidence that he had personally committed actual violence, and the sentences given to his codefendants.
Larios challenges the standard of proof used to find relevant conduct based on the Due Process Clause of the U.S. Constitution. He contends that it requires that a heightened standard of proof apply to those determinations when the relevant conduct drives the Guidelines significantly higher. He relies for this proposition on our recognition that "[a]t the outer limits, Guidelines offense-level increases based on uncharged crimes might violate a defendant's Sixth Amendment and due process rights if the additional increases are responsible for such a disproportionate share of the sentence that they become the `tail which wags the dog of the substantive offense.'"
We have recognized that "[r]elevant conduct increases a defendant's sentence, sometimes very significantly, despite the fact that it was not charged in an indictment, and even despite the fact that a jury may have acquitted the defendant for that precise conduct."
Nor did the use of the preponderance standard to determine relevant conduct in this particular case lead to an outcome so unfair as to raise due process concerns.
Larios received a sentence
Larios separately contends that there is insufficient evidence in the record, even under a preponderance standard, to attribute the drug conspiracy and the conspiracy to murder CW-1 to him. We disagree.
We address the cross-reference for conspiracy to murder CW-1 first. This cross-reference reflects the testimony from Hernandez Miguel that Larios had told him that he had previously "made a plan" with Martinez to kill CW-1 and had asked Sandoval for a "green light."
Larios argues that Hernandez Miguel's testimony about Larios's statements was uncorroborated; that the statements, if made, were merely "idle chatter"; and that even if Larios did make the statements and was sincere, there was no agreement and "can be no conspiracy based on only one person's illusory desire." But, we will set the District Court's determination on this score aside only if clearly erroneous.
Having presided over the lengthy and complex trial, the District Court was "steeped in the facts of the case" and in a superior position to make credibility determinations.
Given this conclusion, we need not consider Larios's arguments that the inclusion of the drug conspiracy as "underlying racketeering activity" was unsupportable. The inclusion of that offense as a cross-reference had no independent effect on the TOL — or the GSR — that applied to Larios.
Larios's final challenge regarding his sentence takes aim at the District Court's decision rejecting his claim of sentencing factor manipulation, which is also known in this circuit as "sentencing entrapment."
We note at the outset that, to the extent Larios can be understood as arguing that the District Court failed to even consider his sentencing manipulation claim, we disagree. The District Court made clear that it overruled any argument Larios made based on sentencing entrapment or manipulation.
Nor can we conclude that the District Court clearly erred in making the determination that sentencing manipulation had not been shown. The primary focus of the sentencing manipulation inquiry in this circuit is on the impropriety of the government's conduct.
Larios relies on the government's role in the drug protection detail and the circumstances linking Larios to the December 27, 2015 and January 1, 2016 attempted murders and the Irvin de Paz murder. But, none of these events inflated the applicable GSR. Thus, we do not see how sentencing manipulation would apply
Moreover, while Larios does attempt to differentiate CW-1's involvement from an ordinary sting operation in terms of CW-1's personal involvement in serious, unauthorized criminal activity, there was a factual dispute as to the government's knowledge of these unauthorized acts, and the government's explanation, "apparently credited by the district court, is at least as plausible as the adverse inference that [Larios] would have us draw,"
A defendant "cannot make out a case of undue provocation simply by showing that the idea originated with the government or that the conduct was encouraged by it, or that the crime was prolonged beyond the first criminal act, or exceeded in degree or kind what the defendant had done before."
Finally, we consider Martinez's sentencing challenges. Martinez, who was acquitted of the RICO conspiracy count, was convicted only of conspiracy to distribute (500 grams or more of) cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846.
After receiving the PSR, Martinez objected to the inclusion of material related to conduct for which he was acquitted in the PSR's statement of offense conduct. He argued that the material, which was not conduct related to the drug offense for sentencing purposes, was "extremely prejudicial and harmful." Martinez requested a statutory-minimum sentence of 60 months. The government requested a sentence of double that length, arguing that Martinez was "more dangerous than his GSR suggests" given corroborated evidence of Martinez's involvement in MS-13 and his commission of violence on behalf of the enterprise.
Martinez was sentenced on December 18, 2018. The District Court adopted the PSR's GSR calculation of 60 to 63 months of imprisonment.
Martinez appeals his 72-month sentence as procedurally unreasonable on two grounds. First and foremost, he challenges the District Court's reliance on acquitted conduct in sentencing. Additionally, he argues — albeit only in a footnote — that the District Court improperly departed from the GSR without meeting the requirements of U.S.S.G. § 5K2.18 or Fed. R. Crim. P. 32(h).
We take the acquitted conduct point first. Martinez acknowledges that this argument is foreclosed by First Circuit precedent.
Martinez makes no argument as to how we may do so, however. With rare exceptions, "newly constituted panels in a multi-panel circuit are bound by prior panel decisions closely on point."
And, indeed, it is clear they do not. Martinez argues that
Martinez also contends, like Guzman, that the District Court applied an improper upward departure. Again, we review for abuse of discretion.
Here, too, the District Court checked the box for U.S.S.G. § 5K2.18 — "Violent
Moreover, the District Court's oral pronouncements make clear that it was varying rather than departing. The District Court did state that it was going to "depart upward but only to 72 months," but it is clear in context that the District Court was not referring to a formal departure under the Guidelines. And, in its oral statement of reasons, the District Court explained that the sentence was "a nonguideline sentence imposed under Section 3553(a) for the reasons indicated." We find that the record indicates that the District Court imposed a variant sentence rather than a departure.
In any event, any procedural error that occurred to the extent that the District Court's rationale is better understood as a departure would be harmless. The record makes abundantly clear that "the district court would have imposed the same sentence as a variance in any event,"
For the foregoing reasons, we