United States v. Miranda-Montanez

73 F.4th 24

• Court: Court of Appeals for the First Circuit
• Decided: July 11, 2023
• Docket: 19-2253
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2253

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ R. ANDINO-MORALES,

Defendant, Appellant.

No. 19-2262

JOSÉ D. FOLCH-COLÓN,

No. 20-1274

ANIBAL MIRANDA-MONTAÑEZ,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Timothy S. Hillman, U.S. District Judge] Before

Barron, Chief Judge, Thompson, Circuit Judge, and Burroughs, District Judge.*

David Ramos-Pagan, for appellant José R. Andino-Morales. Laura Maldonado-Rodríguez, for appellant José D. Folch-Colón. Victor A. Ramos-Rodríguez, for appellant Anibal Miranda- Montañez. 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, for appellee.

July 11, 2023

* Of the District of Massachusetts, sitting by designation. BARRON, Chief Judge. These consolidated appeals arise

out of the federal investigation into the criminal activities of

La Asociación ÑETA ("ÑETA"), an organization whose members

allegedly trafficked contraband and carried out murders-for-hire

throughout several prisons in Puerto Rico. The three appellants

in this case -- José R. Andino-Morales ("Andino"), José J. Folch-

Colón ("Folch"), and Anibal Miranda-Montañez ("Miranda") -- were

convicted in the United States District Court for the District of

Puerto Rico of conspiring to participate in ÑETA through a pattern

of racketeering activity ("RICO") in violation of 18 U.S.C.

§ 1962(d). Folch and Miranda were also convicted of conspiracy to

possess with intent to distribute controlled substances in

violation of 21 U.S.C. § 846, and of committing a violent crime in

aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and

(2), otherwise known as a "VICAR" offense. Folch and Miranda were

each sentenced to multiple, concurrent terms of life imprisonment,

while Andino was sentenced to a term of imprisonment of fifteen

years.

All three appellants argue that the evidence is

insufficient to support one or more of their convictions. Folch

and Miranda also bring challenges to the District Court's jury

instructions. Folch additionally contends that an improper

statement by the prosecution warranted a mistrial. Finally, Andino

- 3 - challenges his sentence as procedurally unreasonable. We affirm

across the board.

I.

Several decades ago, incarcerated persons in Puerto Rico

founded ÑETA, also known as "La Asociación Pro Derechos y

Rehabilitación del Confinado." The stated purpose of the

organization at the time was to advocate for the rights of inmates

in the Puerto Rico prison system. But, following a criminal

investigation into ÑETA's activities, federal authorities in 2016

returned an indictment in the District of Puerto Rico alleging

that ÑETA had evolved into "a criminal organization whose members

and associates engaged in drug distribution and acts of violence,

including murder."

The indictment charged fifty individuals, including the

three appellants, whom the indictment alleged were ÑETA members,

with various offenses. The government charged all three appellants

with RICO conspiracy in violation of 18 U.S.C. § 1962(d) (Count

One), and conspiracy to possess with the intent to distribute

controlled substances in violation of 21 U.S.C. § 846 (Count Two).

The government also charged Andino with committing a VICAR offense

in violation of 18 U.S.C. § 1959(a)(1)–(2) (Count Three), and Folch

and Miranda with committing a VICAR offense in violation of 18

U.S.C. § 1959(a)(1)–(2) (Count Four). The appellants were also

- 4 - charged in the alternative with aiding and abetting the VICAR

offense of which each was charged in Counts Three and Four.1

The government's case at trial as to the three appellants

was as follows:

ÑETA members both sold drugs supplied by the

organization (the proceeds of which would go back to the

organization) and sold drugs from their own personal supply by

paying a fee, or "incentive," to the organization. ÑETA smuggled

cell phones into prisons to help ÑETA members coordinate the drug

trafficking operation, and for which ÑETA members could pay an

"incentive" for personal use. And, ÑETA members carried out

murders-for-hire on behalf of the organization.

In conducting these activities, ÑETA employed a

sophisticated hierarchical structure, with the "Maximum

Leadership" sitting atop the organization's hierarchy and

overseeing its operations across Puerto Rico. The Maximum

Leadership appointed "chapter leaders" at each correctional

1 The government states in its briefing that Miranda was also charged under Count Three, but the indictment does not charge him under that Count, and the District Court did not instruct the jury to determine his guilt or innocence under that Count. A fourth defendant -- Freddie Sánchez-Martínez -- was tried jointly with the three appellants and was charged under Counts One, Two, and Three. He is not a party to this appeal. - 5 - institution, and chapter leaders in turn appointed leadership

teams within each facility.

Andino, Folch, and Miranda each participated as a ÑETA

member in ÑETA's drug trafficking operations. The government's

case in that regard was that: Andino paid the drug incentive to

sell his personal supply of marijuana, and paid the cell phone

incentive by selling drugs on behalf of ÑETA; Folch helped

coordinate ÑETA's drug and cell phone trafficking activities in

the "Green Monster" prison by serving as an "advisor" for the

chapter leadership at that facility; and Miranda served as a

chapter leader for ÑETA at the Ponce Main prison, selling drugs

and cell phones and collecting incentives.

Andino, Folch, and Miranda also were each involved in a

murder-for-hire carried out by ÑETA. More specifically, the

government tried to prove that: Folch paid for ÑETA to kill an

inmate named Alexis Rodríguez-Rodríguez ("Rodríguez") at the Ponce

Main prison; Miranda "seconded" the order to carry out that murder

in his capacity as chapter leader at that prison; and Andino

participated in carrying out, on behalf of ÑETA, the contract

killing of Mario Montañez-Gómez ("Montañez"), an inmate in the

Bayamon 1072 facility.

After a thirteen-day trial in the District of Puerto

Rico, the jury found Folch and Miranda guilty of Count One (RICO

- 6 - conspiracy), Count Two (drug conspiracy), and Count Four (the VICAR

offense, with the predicate "crime of violence" being the murder

of Rodríguez), and made special findings regarding the quantities

of drugs for which Folch and Miranda were each responsible. As

for Andino, the jury found him guilty of Count One (RICO

conspiracy), but not of either Count Two (drug conspiracy) or Count

Three (the VICAR offense, with the "crime of violence" being the

murder of Montañez). Moreover, the jury did not in any of its

special findings hold Andino responsible for any quantities of

drugs.

The District Court entered judgments of conviction

against both Folch and Miranda for each of the offenses for which

they had been found guilty and sentenced each of them to concurrent

terms of life imprisonment on each of their three convictions.

The District Court also entered a judgment of conviction against

Andino for RICO conspiracy and sentenced him to 180 months (fifteen

years) of imprisonment.

These consolidated appeals followed.

II.

We begin with the appellants' challenges to their

convictions on sufficiency grounds. "We review such challenges de

novo, when, as is the case here, the appellants preserved their

claims below through motions for acquittal" under Federal Rule of

- 7 - Criminal Procedure 29. United States v. Millán-Machuca, 991 F.3d

7, 17 (1st Cir. 2021) (citing United States v. Santos-Soto, 799

F.3d 49, 56 (1st Cir. 2015)). "We draw all reasonable inferences

from the evidence in the light most favorable to the prosecution,"

id. (citing Santos-Soto, 799 F.3d at 56–57), and focus our inquiry

on "whether 'any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,'" id.

(quoting United States v. Bailey, 405 F.3d 102, 111 (1st Cir.

2005)).

A.

Each of the appellants contends that his RICO conspiracy

conviction must be reversed due to a lack of sufficient evidence.

After laying out the elements of RICO conspiracy, we turn to the

arguments that each appellant makes about why the evidence does

not suffice to satisfy certain of the elements of that offense.

1.

Section 1962(c) of the RICO statute sets out the

substantive RICO offense, which makes it "unlawful for any person

employed by or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign commerce, to

conduct or participate, directly or indirectly, in the conduct of

such enterprise's affairs through a pattern of racketeering

activity." 18 U.S.C. § 1962(c). An "enterprise" is "any

- 8 - individual, partnership, corporation, association, or other legal

entity, and any union or group of individuals associated in fact

although not a legal entity." 18 U.S.C. § 1961(4).

"[A]t least two acts of racketeering activity," 18

U.S.C. § 1961(5), that are related, occurred within ten years of

each other, and pose a threat of continued criminal activity

constitute a "pattern of racketeering activity." Millán-Machuca,

991 F.3d at 18 (citing United States v. Chin, 965 F.3d 41, 47 (1st

Cir. 2020)). "Racketeering activity" is defined to include acts

"involving murder . . . or dealing in a controlled substance" that

are "chargeable under State law and punishable by imprisonment for

more than one year." 18 U.S.C. § 1961(1).

Section 1962(d) makes it unlawful to conspire to violate

§ 1962(c). To prove the RICO conspiracy offense, "the government

must prove that 'the defendant knew about and agreed to facilitate'

a substantive RICO offense." Millán-Machuca, 991 F.3d at 18

(quoting United States v. Leoner-Aguirre, 939 F.3d 310, 316 (1st

Cir. 2019)).

The appellants were charged in the indictment with

conspiring "to conduct . . . the affairs of [the]

enterprise" -- ÑETA -- "through a pattern of racketeering activity

consisting of multiple offenses involving: (1) [d]rug trafficking

. . . [and] (2) [m]urder." The District Court instructed the jury

- 9 - as to the RICO conspiracy charges that the government needed to

prove that each of the appellants "agreed to participate in the

conduct of an enterprise with the knowledge that some members would

engage in at least two acts of murder, or at least two acts of

drug trafficking, or both . . . or any combination of them."

2.

The appellants first contend that "the government could

not rely on the existence of [ÑETA] as an inmate group to prove

the existence of a RICO enterprise" because "there were some

members [of ÑETA] that did not sell nor used [sic] drugs." The

appellants thus assert that the "evidence [did not] establish that

[ÑETA] was an ongoing organization . . . with a common purpose

that would distinguish the group of inmates performing illegal

acts as a RICO enterprise."

Our decision in Millán-Machuca makes clear, however,

that "nothing in the statutory definition of enterprise requires

that the enterprise be defined solely by a criminal purpose." 991

F.3d at 20. Thus, RICO "extends to 'both legitimate and

illegitimate enterprises.'" Id. (quoting United States v.

Turkette, 452 U.S. 576, 580–81 (1981)).

Moreover, there is substantial evidence in the record of

ÑETA's formalized membership practices, traditions, and

hierarchical structure. That evidence more than suffices to

- 10 - support the conclusion that ÑETA was at least a "union or group of

individuals associated in fact although not a legal entity," 18

U.S.C. § 1961(4), and so constituted an "enterprise" for the

purposes of RICO.

3.

The appellants next argue that, even if the evidence

suffices to show that ÑETA qualified as an "enterprise," the

evidence does not suffice to show that its "activities . . .

affect[ed] interstate or foreign commerce," 18 U.S.C. § 1962(c).

The appellants focus on the evidence that the government put

forward regarding the enterprise's drug trafficking. They contend

that because it shows at most that the kinds of drugs that ÑETA

dealt (including heroin and cocaine) are not produced in Puerto

Rico, it does not suffice to show that the specific contraband

seized in this case originated outside of Puerto Rico. For that

reason, they contend, the interstate commerce element is not

supported by sufficient evidence.

This aspect of the appellants' sufficiency challenge

also runs up against our ruling in Millán-Machuca. There we held

that "testi[mony] that cocaine and heroin are not produced in

Puerto Rico . . . was enough to establish the slight effect on

interstate commerce that is required for a RICO conviction." 991

F.3d at 20 n.4. We see no reason to conclude differently here.

- 11 - 4.

The appellants next direct our attention to what the

record shows regarding the "pattern of racketeering activity"

element. But, we are not persuaded by the appellants' sufficiency

challenge on this score either.

The appellants first contend that their RICO conspiracy

convictions must be reversed on sufficiency grounds because the

government put forth evidence of ÑETA carrying out murders-for-

hire to support the "pattern of racketeering" element. The premise

of this argument is that murder-for-hire is not specifically barred

by the Puerto Rico Penal Code and so is not "chargeable under State

law" as the RICO statute requires a "racketeering activity" to be.

See 18 U.S.C. § 1961(1); see also Yates v. United States, 354 U.S.

298, 312 (1957) (holding that a conviction must be reversed if the

evidence in the record supports a legally impermissible ground as

well as a legally permissible one and "it is impossible to tell

which ground the jury selected").

But, in Millán-Machuca, which concerned different

defendants charged under the same indictment that is at issue here,

we reasoned that "[t]he lack of a specific murder-for-hire statute

does not mean that murder-for-hire is not prohibited by Puerto

Rico law," and that Puerto Rico's "general murder statute . . .

plainly applies to the murder" of Rodríguez. 991 F.3d at 21.

- 12 - Because that same reasoning equally applies here as to both the

murder-for-hire of Rodríguez and the murder-for-hire of Montañez,

this aspect of the appellants' sufficiency challenge concerning

the "pattern of racketeering" element fails.

The appellants next contend that the evidence does not

suffice to prove the "pattern of racketeering activity" element

because the record contains no evidence of bribery even though the

indictment identified bribery as being (along with drug

trafficking and murder) among the three types of alleged

racketeering acts that satisfied that element. Once again,

however, Millán-Machuca poses an obstacle for the appellants.

There, we explained that a similar challenge had no merit, so long

as -- evidence of bribery aside -- there was other evidence in the

record that sufficed to satisfy the "pattern of racketeering"

element. 991 F.3d at 22 n.5. The mere fact that no evidence of

bribery was put forward at the trial here thus provides no basis

in and of itself for concluding that the evidence does not suffice

to support the "pattern of racketeering" element in the appellants'

cases.

Each appellant does also argue that, evidence of bribery

aside, the evidence does not suffice to support his RICO conspiracy

conviction because the evidence would not permit a rational juror

to find beyond a reasonable doubt that the appellant "agreed to

- 13 - participate in the conduct of [the] enterprise with the knowledge

that some members would engage in at least two acts of murder, or

at least two acts of drug trafficking, or both." But, the record

contains sufficient evidence to show that each appellant was not

only aware of, but also personally participated in, at least two

acts of drug trafficking (which is a "racketeering activity") as

a ÑETA member.

As to Andino, the record shows that one witness testified

that, although Andino did not occupy a position of leadership

within ÑETA, he was a ÑETA member. Furthermore, the record

supportably shows that he paid an "incentive" to ÑETA for personal

cell phone usage by selling heroin on behalf of the organization,

and that he also paid an "incentive" to ÑETA to be able to sell

marijuana on his own. Moreover, the record contains evidence that

suffices to show that Andino engaged in the conduct just described

more than twice.

Andino emphasized at oral argument both that the jury

acquitted him of the drug conspiracy offense charged in Count Two

and that the jury did not hold him responsible for any specific

quantity of drugs in its special findings regarding his conviction

for RICO conspiracy on Count One. He then went on to argue that

the claimed inconsistency between the verdicts requires that we

reverse the conviction on the RICO conspiracy charge. Controlling

- 14 - precedent, however, is to the contrary. See United States v.

Powell, 469 U.S. 57, 58 (1984) (reaffirming rule from Dunn v.

United States, 284 U.S. 390 (1932), that "a criminal defendant

convicted by a jury on one count [can]not attack that conviction

because it was inconsistent with the jury's verdict of acquittal

on another count").

As for Folch, he argues that there was a "lack of

cohesiveness as to the evidence presented" regarding his

involvement in drug trafficking. He emphasizes that he was

described by witnesses as being a drug supplier not only to ÑETA

members but also to non-members. As a result, he contends, the

evidence suffices to establish at most that he "sent drugs to be

sold and tallied for his own profit . . . not to profit the

enterprise."

This argument is without merit because the government

presented evidence that suffices to link Folch's drug trafficking

activities to the conduct of the enterprise. The government did

so via witness testimony that Folch was an "advisor" or "counselor"

to the chapter leader at the "Green Monster" facility, that he was

involved in multiple drug transactions on behalf of the

organization in that capacity, and that he advised the chapter

leader on the group's finances stemming from its trafficking

operations.

- 15 - Miranda contends that the evidence does not suffice to

support his RICO conspiracy conviction because the evidence "did

not establish that [he] was plainly integral to carrying out the

enterprise's activities" due to evidence that "there was a movement

to remove [him] from his alleged position as a chapter leader" at

the Ponce Main prison. But, as we have explained, evidence can

suffice to show that an individual participated in the activities

of a RICO enterprise if it shows that the individual either

"participated in the enterprise's decisionmaking" or "[was]

plainly integral to carrying out" the directives of those with

decisionmaking authority. United States v. Oreto, 37 F.3d 739,

750 (1st Cir. 1994). And here, Miranda does not dispute that the

evidence suffices to show that he was the chapter leader at the

Ponce Main prison, and that he "participated in the enterprise's

decisionmaking" in that capacity.

For example, one witness testified that, as chapter

leader, Miranda "was responsible for everything that happened in

the prison," and so was "in charge of, well, all the drug [sic].

Anything that came in, he had to know of." Meanwhile, testimony

that some ÑETA members discussed replacing him as chapter leader

hardly shows that he did not hold an important position within

ÑETA's hierarchy.

- 16 - B.

Having dispensed with the appellants' sufficiency

challenges to their RICO conspiracy convictions, we now consider

Miranda's sufficiency challenge to his conviction for violating 21

U.S.C. § 846. That offense makes it unlawful to conspire to

violate 21 U.S.C. § 841(a)(1), which in turn makes it unlawful "to

. . . possess with intent to . . . distribute . . . a controlled

substance." To sustain the conviction, the government was required

"to prove (1) the existence of a conspiracy to possess heroin,

cocaine, and/or marijuana with the intent to distribute it, and

(2) that [Miranda] knowingly and willfully joined in that

conspiracy." Millán-Machuca, 991 F.3d at 19.

Miranda's sole argument in advancing this challenge is

that the government failed to prove that "there was an agreement

among [Miranda] and [ÑETA] members . . . to work together in the

buying and selling of illegal drugs and that its purpose was

allegedly to benefit the organization." We disagree. The same

drug-related evidence that supports Miranda's RICO conspiracy

conviction under Count One also supports his drug conspiracy

conviction under Count Two, given that this collection of evidence

supports the conclusion that Miranda personally participated in

and helped to orchestrate ÑETA's drug trafficking operations at

the Ponce Main prison in his capacity as chapter leader. See id.

- 17 - at 19–20 (testimony that defendant helped "in overseeing the

organization's drug trafficking operations" sufficed to support

drug conspiracy conviction).

C.

We come, then, to Folch's and Miranda's sufficiency

challenges to their respective convictions for violating 18 U.S.C.

§ 1959(a), the VICAR offense. That offense has four elements:

(1) the existence of an enterprise engaged in interstate commerce; (2) that enterprise engaged in "racketeering activity," (3) the defendant committed a crime of violence . . . and (4) that crime of violence was committed as "consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity."

Id. at 19 (quoting 18 U.S.C. § 1959(a)). The alleged "crime of

violence" as to both Folch and Miranda pertained to the murder of

Rodríguez.

Folch and Miranda contend that the evidence in the record

does not suffice to satisfy the elements set forth above. But, as

the government notes, Folch and Miranda were each charged not only

with committing the VICAR offense as a principal, but also with

aiding and abetting the commission of that offense by someone else.

The government argues that the record supports Folch's and

- 18 - Miranda's convictions on that alternative basis. Without by any

means suggesting that the convictions may be affirmed solely based

on the aiding and abetting theory, we agree.

To convict Folch and Miranda based on the aiding and

abetting theory, the government had to prove that "1) the

substantive offense was actually committed [by someone]; 2) the

defendant assisted in the commission of that crime or caused it to

be committed; and 3) the defendant intended to assist in the

commission of that crime or to cause it to be committed." United

States v. Gaw, 817 F.3d 1, 7 (1st Cir. 2016) (alteration in

original) (quoting United States v. Davis, 717 F.3d 28, 33 (1st

Cir. 2013)). The evidence that bears on the relevant elements

here is no different from the evidence in Millán-Machuca, which

affirmed the conviction of a member of ÑETA's Maximum

Leadership -- Rolando Millán-Machuca ("Millán") -- of a VICAR

offense predicated on the murder of Rodríguez at issue here.

There, as in this case, the evidence sufficed to show that Millán

gave a "directriz" for the murder of Rodríguez, a special kind of

order that could only be given by a member of the Maximum

Leadership and that ÑETA members were required to carry out and

risked being killed if they did not. And, in that case, we

explained that such evidence was sufficient to allow a rational

juror to conclude both that Millán committed a crime of violence

- 19 - and that he did so "to strengthen and maintain his position in the

leadership" and so in aid of racketeering. Millán-Machuca, 991

F.3d at 21–22. Thus, we see no reason not to conclude that the

evidence in this case also suffices to support the conclusion that

"someone" -- in particular, Millán -- did "actually commit[]" the

VICAR offense grounding the convictions at issue.

The key question as to both Folch and Miranda, then, is

whether the evidence also suffices to support the conclusion that

each of them "assisted in the commission of that crime or caused

it to be committed" and that each of them "intended" to do so.

Gaw, 817 F.3d at 7. We conclude that the evidence does so suffice.

Beginning with Folch, the evidence establishes that

Folch paid Millán for the murder of Rodríguez, and so it is evident

that the evidence thereby suffices to show that Folch "caused"

that crime to be committed. As to whether the evidence also

suffices to show that Folch "intended" to cause the commission of

the VICAR offense at issue, we conclude that it does.

"[F]or purposes of aiding and abetting law," the "intent

requirement [is] satisfied when a person actively participates in

a criminal venture with full knowledge of the circumstances

constituting the charged offense." Rosemond v. United States, 572

U.S. 65, 77 (2014). In this case, that "full knowledge" must

include knowledge that those who committed the murder of Rodríguez

- 20 - did so "for the purpose of gaining entrance to or maintaining or

increasing position in" ÑETA.2 18 U.S.C. § 1959(a).

Here, one witness testified that Folch "convinced the

Maximum Leadership, namely [Millán], to have members of [ÑETA]

murder Rodríguez," and that he paid Millán to do it. The evidence

also suffices to show that Folch and Millán together called one of

the ÑETA members who murdered Rodríguez -- Jose González-Gerena

("González") -- when there was a delay in carrying out the murder.

González himself testified that, on that call, Millán "scold[ed]

[him] for the delay" in "doing what [Millán] had told [him] to do"

and commanded González to "do that as soon as possible." As a

result, the evidence suffices to permit a rational juror to find

beyond a reasonable doubt that Folch understood that Millán ordered

González to carry out the murder in Millán's capacity as a member

of the Maximum Leadership, and that, on the phone call, Millán

leveraged that authority to demand that González carry out the

order. The evidence therefore suffices to support the conclusion

2 Folch argues that to satisfy the intent requirement, the government needed to show that Folch not only had "full knowledge" of the principal's intent, but that he himself shared in that intent, i.e. that his "intent was to promote his cohorts [sic] membership in the enterprise." But, the only case Folch cites in support of this proposition fails to support it, as it states only that "the defendant must have consciously shared some knowledge of the principal's criminal intent." United States v. Ortero-Mendez, 273 F.3d 46, 52 (1st Cir. 2001) (emphasis added) (citing United States v. Loder, 23 F.3d 586, 591 (1st Cir. 1994)). - 21 - that Folch not only "actively participate[d] in the criminal

venture" to murder Rodríguez, but also had "full knowledge" that

the murder of Rodríguez was committed in aid of racketeering. The

evidence therefore suffices to show that Folch intended to cause

the commission of the VICAR offense. Cf. Gaw, 817 F.3d at 7–8

(affirming defendant's conviction for aiding and abetting honest

services fraud because evidence was sufficient for rational juror

to find that defendant "understood both that [the perpetrator] was

using his position . . . to further the . . . transaction and that

[the perpetrator] was being paid to do so from the proceeds of the

transaction").

As for Miranda, the record shows that several witnesses

testified that Miranda, as chapter leader for ÑETA in the facility

in which the murder occurred, "seconded an order given to him by

[Millán]" to carry out the murder of Rodríguez. In addition, one

witness testified that by seconding the order, Miranda "let [the

order] come through" and thereby "allow[ed] the murder to be

committed." This testimony is consistent with the evidence in the

record that shows that a chapter leader "controlled what happened

within that chapter in that prison."3

3 Miranda argues that the evidence that he "seconded" the order is irrelevant because he "did not have the authority to stop or revoke [the] order given by [Millán]." Miranda cites no

- 22 - Moreover, one witness testified that on the night before

the murder, Miranda supplied the ÑETA members who killed Rodríguez

with the drugs that would be used to kill him. Meanwhile, another

witness testified that, as part of a prearranged "strategy" to

make the murder seem like an accidental overdose, Miranda gave

Rodríguez mouth-to-mouth resuscitation immediately after the

murder had been committed and then took Rodríguez to the medical

area to receive medical attention.

This evidence more than suffices to support the

"assisted in the commission" element insofar as the evidence also

suffices to show that the VICAR offense occurred. In addition,

this evidence supports the conclusion that Miranda understood that

Millán gave the order to kill Rodríguez in his capacity as a member

of the Maximum Leadership, given that Miranda then "seconded" that

order in his capacity as chapter leader. The evidence therefore

suffices to support the conclusion that Miranda had "full

knowledge" that the predicate "crime of violence" was committed in

aid of racketeering, and so that Miranda "intended" to aid in the

commission of the VICAR offense. Accordingly, Miranda's

support, however, for the notion that someone who assists in the commission of a murder because they are required to by the rules of an organization has for that reason not aided and abetted the murder. Thus, we cannot agree that this fact alone precludes the evidence of Miranda "second[ing]" the order from supporting the conclusion that he thereby aided and abetted the murder. - 23 - sufficiency challenge to his VICAR conviction, like Folch's

challenge to his, fails.

III.

We now shift our focus to the alleged trial errors that

Folch and Miranda each contends occurred. Here, too, we conclude

that the challenges are without merit.

Folch and Miranda both take aim at their convictions for

RICO conspiracy and the VICAR offense based on the District Court's

supposed error in instructing the jury regarding the elements of

murder under Puerto Rico law (an alleged "racketeering activity"

for both the RICO conspiracy and VICAR offense counts). More

specifically, Folch and Miranda argue that the District Court's

jury instructions wrongly "included definitions [of murder] not

found in the 2012 Puerto Rico Penal Code," which "resulted in a

constructive amendment of [C]ounts [O]ne and [F]our of the

indictment in violation of [the defendants'] right to be charged

by a grand jury and of [their] right to be aware of the charges

against [them]."

"A constructive amendment occurs when the charging terms

of the indictment are altered, either literally or in effect, by

[the] prosecution or court after the grand jury has last passed

upon them." United States v. de Leon-De la Rosa, 17 F.4th 175, - 24 - 195 (1st Cir. 2021) (alteration in original) (quoting United States

v. DeCicco, 439 F.3d 36, 43 (1st Cir. 2006)). When the challenge

is preserved, "[a] constructive amendment is considered

prejudicial per se and grounds for reversal of a conviction."

United States v. Portela, 167 F.3d 687, 701 (1st Cir. 1999)

(quoting United States v. Fisher, 3 F.3d 456, 463 (1st Cir. 1993)).

Folch and Miranda are right that "[a]n indictment may be

constructively amended by jury instructions which have the effect

of broadening the charges in the indictment." Id. at 701–02

(citing Stirone v. United States, 361 U.S. 212, 214–16 (1960)).

Folch and Miranda have failed to show, however, that any of the

portions of the jury instructions to which they point had such an

effect. See id. at 702 ("Neither jury instruction at issue

broadened the conspiracy charge; neither constructively amended

the indictment.").

For the most part, Folch and Miranda do little more than

identify instances in which the jury instructions departed from

the precise wording of the Puerto Rico Penal Code with respect to

the offense of murder. They even concede that some of those

differences "are subtle." That the District Court's instructions

did not parrot the statutory definition for murder fails on its

own to show that the instructions were legally inconsistent with

that definition. And that is significant because it is well

- 25 - established that although a "trial court is obliged to inform the

jury about the applicable law . . . within wide limits, the method

and manner in which the judge carries out this obligation is left

to his or her discretion." Elliot v. S.D. Warren Co., 134 F.3d 1,

6 (1st Cir. 1998).

Folch and Miranda do argue that the jury instructions

"define[d] intent in much broader terms than the 2012 Puerto Rico

Penal Code," and thereby "expanded [its] definition." But, the

claimed inconsistency is illusory, because the definition of

"intent" in the 2012 Puerto Rico Penal Code divides it into three

categories that substantively align with the three types of intent

that the District Court identified in the relevant portion of the

jury instructions.4

Folch and Miranda separately argue that the jury

instructions "expanded the premeditation instruction by adding

'motive,'" the proof of which they contend is required for some

crimes in the 2012 Puerto Rico Penal Code, but not for murder. In

4 Folch and Miranda also contend that the District Court, in providing its definition of "intent," erred by stating that "[i]n legal terms, we refer to the intention to kill as acting with 'malice,'" because the term "malice" is not found in the statute. However, Folch himself notes that immediately after introducing the term "malice," the District Court stated: "A person acted with 'malice' if he . . .", at which point the District Court then provided the three-part definition of "intent" that tracks the statutory definition. - 26 - the challenged instruction, however, the District Court stated

that "[a]lthough the Government need not establish the motive for

the murder of the victim, you may consider motive as evidence of

premeditation." This explicit instruction that motive need not be

established contradicts the contention that the challenged

instruction somehow added a motive requirement.

B.

Folch argues on his own that his RICO conspiracy and

VICAR offense convictions must be vacated for the separate reason

that the District Court erred when it used "ÑETA" and "the

enterprise" interchangeably in the jury instructions. Folch

argues that the District Court in doing so effectively instructed

the jury that "ÑETA" was an "enterprise" even though the question

of "whether [ÑETA] was an enterprise under RICO was for the jury

to decide."

Folch points to no specific portion of the jury

instructions in which the District Court's use of "ÑETA" amounted

to an instruction that ÑETA was a RICO enterprise. Moreover, a

review of the jury instructions shows that the District Court

specifically instructed the jury on the definition of "enterprise"

for the purposes of RICO, stating that "[a]n enterprise . . . must

have an ongoing organization," that it "must have personnel who

function as a continuing unit," and that it "includes legitimate

- 27 - and illegitimate enterprises," and then clarified that "the

Indictment in this case alleges that the enterprise was an

organization known as [ÑETA]."

Folch also argues that his VICAR offense conviction must

be vacated because the printed verdict form failed to include a

question as to whether he committed the murder of Rodríguez "as

consideration for" payment from ÑETA or in hopes of "gaining

entrance to or maintaining or increasing position in" ÑETA. 18

U.S.C. § 1959(a). This omission, he argues, would have allowed

the jury to convict him of the VICAR offense even if the jury had

concluded that he did not have the required motive.

Folch has failed to point to any authority, however, for

the notion that there is a requirement that the jury make a

specific finding in a special verdict form regarding that element.

Indeed, the chief case Folch relies upon for support -- United

States v. Ferguson, 246 F.3d 129 (2d Cir. 2001) -- itself declared

that "the use of a special verdict form" is "a matter for the trial

court's discretion." Id. at 137. Thus, Folch has failed to

establish that, even in a case such as this one where the District

Court explicitly instructed the jury as to all the elements of a

crime, the District Court must nonetheless employ a special verdict

form. Cf. United States v. Edelkind, 467 F.3d 791, 795 (1st Cir.

2006) (holding that omission from verdict form of requirement that

- 28 - defrauded institution be one that was federally insured was not

prejudicial error because jury was instructed as to that element

and all other elements of the charged crime).

The last claimed trial error again is raised only by

Folch, who argues that his RICO conspiracy conviction must be

vacated due to an allegedly improper statement by the prosecuting

attorney at trial. The facts bearing on this challenge are as

follows.

At closing argument, Folch's counsel argued to the jury

that, while the indictment alleged that Folch was among those

defendants who "acted as Chapter Leaders for [ÑETA]," and while

the District Court instructed the jury that Folch was "alleged to

have been [a] Chapter Leader[]," the evidence presented at trial

did not support that conclusion. On rebuttal, the prosecuting

attorney responded:

[Folch's counsel] argues, oh, the Indictment says that my client is a chapter leader. Well, he was an advisor for the chapter leader. That is part of the chapter leadership. . . . So he was part of the chapter leadership even though we don't have to prove that he was a chapter leader. We only have to prove that he agreed that he or other persons would engage in a pattern of racketeering activity. And that's pretty simple. All we have to show is that [Folch], just like we have to show for all the defendants, were members

- 29 - [sic] of [ÑETA] and that they agreed that either they or someone else in the organization was going to engage in drug trafficking or murder.

(Emphasis added).

Folch objected and moved for a mistrial on the ground

that the government committed prosecutorial misconduct by

contending through the prosecutor's statements that it did not

need to prove that Folch was a chapter leader as alleged in the

indictment. The District Court denied that motion. We "review

th[e] claim de novo to see whether the contested comment was

improper -- and if yes, whether it was harmful, knowing that the

harmfulness question turns on whether the comment 'so poisoned the

well that the trial's outcome was likely affected, thus warranting

a new trial.'" United States v. Freitas, 904 F.3d 11, 24 (1st

Cir. 2018) (quoting United States v. Rodríguez, 675 F.3d 48, 62

(1st Cir. 2012)).

Folch styles this challenge as one of prosecutorial

misconduct that deprived him of his right to a fair trial. He

relies on precedent involving prosecutorial arguments that are

"undignified and intemperate, containing improper insinuations and

assertions calculated to mislead the jury." United States v.

Figueroa, 900 F.2d 1211, 1215 (8th Cir. 1990) (quoting Berger v.

United States, 295 U.S. 78, 85 (1935)). Folch's argument appears

- 30 - to be that the prosecutor's comments were improper because the

government "obtained an unfair advantage by allowing the court's

instructions to contain references to Folch's alleged position in

the enterprise, that could not be proven, and then arguing to the

jury that they did not have to prove it."

The "position" that Andino allegedly held in the

enterprise to which the jury instructions referred was that of

chapter leader. But, even if we were to assume that the challenged

statements by the prosecutor amounted to a legal argument that the

jury did not need to find that Folch was a chapter leader to find

him guilty of the charged offenses, Andino fails to explain why

the statements by the prosecutor would provide a basis for deeming

the challenge to have merit.

Folch relies in support of this challenge on Figueroa.

But, that case is readily distinguishable. In vacating a

conviction based on a prosecutor's statements, we noted that the

district court there had issued a curative instruction that the

prosecutor's challenged argument at trial was legally baseless.

900 F.2d at 1215–16. By contrast, in this case, the District Court

reached no such conclusion regarding the prosecutor's statements.

Nor has Folch explained how the statements at issue here are

legally baseless or how, insofar as they are not, the convictions

- 31 - must be vacated in consequence of them. See United States v.

Zannino, 895 F.3d 1, 17 (1st Cir. 1990).

Folch develops no argument, for example, that the

evidence fails to suffice to permit the government to prove him

guilty of the charged offenses unless the government can prove

that he was a chapter leader. And, we do not see how Andino could

develop any such argument, given the evidence in the record that

we have recounted above and that suffices to show that he is guilty

of the RICO conspiracy and drug trafficking convictions based on

his conduct as merely a member of ÑETA.

Moreover, Folch fails to develop an argument that,

insofar as the evidence suffices to permit the jury to convict him

of the underlying offenses without finding that he was a chapter

leader, the convictions could not stand because they then would be

the result of a prejudicial variance from the indictment occasioned

by the prosecutor's statements. See United States v. Alicea-

Cardoza, 132 F.3d 1, 6 (1st Cir. 1997) (affirming conviction

because variance was non-prejudicial when indictment alleged

defendant was a "triggerman" but evidence proved that he was a

"runner"). And, he does not explain how, in the absence of the

statements giving rise to a prejudicial variance, there is any

basis for deeming the statements by the prosecutor to be of a sort

that would warrant vacating the convictions under our precedent.

- 32 - D.

There remains only Andino's challenge to his sentence,

which takes aim solely at its procedural reasonableness. See

United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008) (citing

Gall v. United States, 552 U.S. 38, 51 (2007)). The first aspect

of the challenge concerns the District Court's consideration of

conduct of which Andino had been acquitted and takes aim at the

District Court's supposed reliance on findings relating both to

the murder of Montañez and to his alleged involvement in drug

trafficking on behalf of ÑETA. The second aspect of the challenge

concerns the District Court's explanation -- or lack thereof --

for the chosen sentence. The challenge is without merit.

The government recommended below that Andino receive a

prison sentence of 20 years after determining that Andino's base

offense level was 43 under the United States Sentencing Guidelines

("USSG").5 The government does not dispute that to adopt that base

offense level and follow the recommendation, the District Court

needed to conclude that Andino "participated in the murder of

Montañez" and apply § 2A1.1 of the Guidelines, even though the

5 As the government explained in its sentencing memorandum, the recommended Guidelines range for a base offense level of 43 is a life sentence, but the statutory maximum for Andino's conviction was 20 years of imprisonment. - 33 - jury had acquitted Andino of the VICAR offense that was premised

on the murder of Montañez (Count III). Section 2A1.1 of the

Guidelines "applies in cases of premeditated killing," as well as

"when death results from the commission of certain felonies . . .

e.g., murder in aid of racketeering." USSG § 2A1.1(a).

Andino argues that, accordingly, the record shows that

the District Court premised the sentence on acquitted conduct in

applying that guideline to his case. He then contends -- as he

did below -- that it was error for the District Court to do so

because the record does not suffice to show by a preponderance of

the evidence that he engaged in that conduct. See United States

v. Watts, 519 U.S. 148, 157 (1997).

As the government explains, "the relevant federal

sentencing statute requires a reviewing court not only to 'accept'

a district court's 'findings of fact' (unless 'clearly

erroneous'), but also to 'give due deference to the district

court's application of the guidelines to the facts." Buford v.

United States, 532 U.S. 59, 63 (2001) (quoting 18 U.S.C.

§ 3742(e)). And, "the argument for deference peaks when," as here,

"the sentencing judge has presided over a lengthy trial and is

steeped in the facts of the case." United States v. Sepulveda, 15

F.3d 1161, 1200 (1st Cir. 1993).

- 34 - Andino argues that the record shows that text messages

and a call log from another inmate's cell phone that allegedly

link Andino to the murder refer to him only as "Indio," a purported

reference to his nickname "Indio Gladiola." Yet, he argues, the

evidence also shows that there was another ÑETA member whose

nickname was "Indio Muriel," and that no evidence was presented to

show that the "Indio" referred to in those communications was in

fact Andino. He then goes on to argue that the only other evidence

regarding his participation in the murder amounts to testimony of

"witnesses who heard from others that 'Indio' had participated in

the murder," such that "the only other evidence corroborating these

statements" would be the disputed communications. That being so,

he contends, the District Court erred in finding by a preponderance

that he participated in the murder and so erred in applying the

guideline in question.

Andino is wrong, however, that "the only other evidence"

linking him to the murder was the testimony of "witnesses who heard

from others that 'Indio' had participated in the murder." Indeed,

one witness testified that he had heard that "Indio Gladiola" had

participated in the murder. Another witness testified, after

confirming that the "Indio Gladiola that [he was] referring to"

was "Jose Andino Morales," that Andino was among the group of

inmates whom the witness personally confronted as the group was on

- 35 - its way to commit the murder, and that Andino later expressed

regret to him for Andino's role in the murder.

Andino makes no other argument for how the cell phone-

related evidence is necessary to support the District Court's

conclusion. Nor does he explain how the testimony that refers to

him as more than just "Indio" does not independently suffice to

support that conclusion. Thus, given the deference due to the

District Court in assessing the record, we cannot conclude that

the District Court erred in finding by a preponderance of the

evidence that Andino participated in the murder of Montañez.

Andino also argued below, and he argues again on appeal,

that the District Court erred by considering drug-related conduct

in its sentencing determination even though the jury acquitted

Andino of the drug conspiracy under Count Two and, in its special

findings for his RICO conspiracy conviction under Count One, did

not hold him responsible for any quantities of drugs. In so

contending, Andino argues that the evidence regarding his

involvement in drug trafficking does not suffice to meet the

preponderance standard necessary to permit the District Court to

consider this acquitted conduct.

It is not entirely clear how, according to Andino, the

District Court's sentencing determination may be understood to

have rested on a finding that he engaged in the drug-related

- 36 - conduct. But, even assuming that the District Court considered

Andino's drug-related conduct at sentencing, the challenge fails,

given the presence in the record of the same drug-related evidence

that we recounted in affirming Andino's RICO conspiracy

conviction.

Andino also argues that the District Court could not

consider his acquitted drug-related conduct at all in this

circumstance because the jury made "special findings" that Andino

was not responsible for any quantities of drugs, as opposed to

simply a "general verdict" of acquittal. But, Andino cites no

support for the contention that a district court may consider

acquitted conduct only when dealing with a "general verdict" and

not "special findings." We therefore reject this aspect of

Andino's sentencing challenge as well.

Andino separately challenges his sentence on the ground

that the District Court erred by failing to "state in open court

the reasons for its imposition of the particular sentence."

Because Andino did not raise this objection below, our review is

only for plain error, which means that Andino must show: "(1) that

an error occurred (2) which was clear or obvious and which not

only (3) affected [his] substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of judicial

- 37 - proceedings." United States v. Romero, 896 F.3d 90, 92 (1st Cir.

2018) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001)). Yet, Andino has failed on appeal "to even attempt to

explain how the plain error standard has been satisfied." United

States v. Severino-Pacheo, 911 F.3d 14, 20 (1st Cir. 2018). He

has therefore "waived any appellate argument concerning the

procedural reasonableness of his sentence" on this basis. Id.

(citing United States v. Pabon, 819 F.3d 26, 33-34 (1st Cir.

2016)).

IV.

The judgment of the District Court is affirmed.

- 38 -