United States Court of Appeals For the First Circuit
No. 20-1749
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE MUÑOZ-MARTINEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Barron, Chief Judge, Howard and Thompson, Circuit Judges.
Ramón M. González-Santiago for appellant. Tyler Anne Lee, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, W. Stephen Muldrow, U.S. Attorney, District of Puerto Rico, Mariana E. Bauzá-Almonte, Assistant U.S. Attorney, Appellate Chief, and Robert P. Coleman II, Assistant U.S. Attorney, were on brief, for appellee.
August 22, 2023 HOWARD, Circuit Judge. Jorge Muñoz-Martínez ("Muñoz"),
a former narcotics officer with the Puerto Rico Police Department
("PRPD"), appeals from a single-count conviction under the
Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18
U.S.C. § 1962(c), contending, inter alia, that the jury's guilty
verdict was not supported by sufficient evidence. The unlawful
RICO enterprise with which Muñoz was found to be associated
consisted of a corrupt unit within the PRPD tasked with
investigating narcotics trafficking and related crimes. Among
other abuses, many officers within this unit, including Muñoz,
routinely stole money and other items during residential searches.
On appeal, Muñoz concedes that the government proved
this corrupt unit was an unlawful enterprise and that he was
associated with it but contends that the government failed to prove
that he participated in the conduct of this enterprise "through a
pattern of racketeering activity," as RICO requires. Thus,
Muñoz's appeal requires us to determine whether the government
established that he committed the two predicate acts of
racketeering alleged in his indictment, which were charged as
extortion and extortion conspiracy under Puerto Rico law. At
bottom, Muñoz argues that his conduct in these two instances -- in
which he either agreed to or did steal items from homes while
executing search warrants -- did not match the elements of
extortion. Because we agree that no rational jury could have
- 2 - found Muñoz guilty of extortion and extortion conspiracy, as those
crimes are properly construed under Puerto Rico law, we reverse
Muñoz's RICO conviction without considering his other challenges
on appeal.
I.
In July 2018, Muñoz and six others were charged with one
substantive RICO violation arising from their activities as
officers within the Caguas Drug Unit ("CDU") between 2014 and 2018.
In addition to details about the existence of an unlawful
enterprise within the CDU and the methods and means by which it
operated, the indictment alleged that Muñoz participated in the
enterprise's affairs by committing two specific acts of
racketeering. These included one act of extortion conspiracy in
May 2015 ("Racketeering Act Two"), and one act of extortion in
June 2015 ("Racketeering Act Three"). The indictment alleges that
both predicate acts occurred during residential search-warrant
executions, in which Muñoz surreptitiously took money or jewelry
for his own personal use, purportedly in violation of Puerto Rico's
extortion statute, P.R. Laws Ann. tit. 33, § 4828 (criminalizing
conduct by "[a]ny person who . . . under pretext of rights as a
public official or employee, compels another person to deliver
property").
In October 2019, Muñoz was convicted of the charged RICO
violation, following a five-day jury trial. The evidence
- 3 - established that the CDU was responsible for investigating drug-
trafficking related crimes, which included surveillance, executing
search and arrest warrants, and seizure of drugs, firearms, and
drug-sale proceeds. It further established that, between 2014 and
2018, Muñoz and other CDU officers engaged in unlawful activities
to personally enrich themselves, including theft of money, drugs,
firearms, and other items from the subjects of residential search-
warrant executions and traffic stops. Evidence also demonstrated
that CDU officers frequently submitted false statements to obtain
search warrants, conducted unlawful searches, and failed to report
their stolen proceeds in warrant returns.
The government's evidence as to the scope and methods of
this corruption included testimony from several former CDU
officers, including two of Muñoz's co-defendants, Eric Velasquez-
Martinez ("Velasquez") and Christian Rodriguez-Cruz ("Rodriguez").
In addition to describing the means and methods by which CDU
officers stole money and other items, Velasquez and Rodriguez
testified that about 95-to-99 percent of the search warrant
applications drafted by CDU officers contained false information.
Velasquez further estimated that about 90 percent of the officers
assigned to the CDU between 2012 and 2018 were generally involved
in the corrupt activities described.
Both Rodriguez and another former CDU officer and co-
defendant, Eidderf Jhave Ramos-Ortíz ("Ramos"), also testified
- 4 - that "[e]verybody" in the CDU generally engaged in theft and
extortion. For example, Ramos explained the typical practice
among CDU officers: "if we were entering a residence to execute
an arrest . . . , a search and seizure warrant or something and
there was money in view, then you would just grab the money and
put it in your pocket and then continue on with the search." As
Rodriguez further explained, the officers conducting the search
would assist each other in this endeavor. In other words, it was
"previously agreed on," or generally understood, among the
officers of the CDU that if one of them saw something during a
search, they would take it and the other would either not interfere
or help them conceal the theft. This would happen even when the
subject of the search was later arrested and/or charged.
Ramos further explained another way in which officers
would "steal money" from individuals on the street: "[w]e would
arrive in unmarked [PRPD] vehicles to [a] . . . drug selling
point, and catch the people with . . . drugs and money, and turn
them around, seize the money. Sometimes we'd let them go.
Sometimes we didn't." Both witnesses confirmed that, regardless
of the tact employed or the item stolen -- whether it be money,
drugs, or guns -- officers would divide up the profits among
themselves.
As to Muñoz's involvement in the unlawful enterprise,
the witnesses provided testimony about specific instances in which
- 5 - Muñoz personally took money or other items during residential
searches, or accepted proceeds from thefts by other CDU officers
during the same. This included evidence regarding the two
predicate racketeering acts attributed to Muñoz in the indictment.
For Racketeering Act Two, evidence established that, in
May 2015, Muñoz and Ramos executed a search warrant at the
apartment of Michael Santiago Figueroa ("Santiago") and stole a
gold chain from his residence. Specifically, Ramos testified
that, upon arriving at Santiago's apartment, Muñoz told Ramos to
help him with the search. The two officers began by searching the
bedroom, and eventually came upon a storage room in which there
were tools and other items. Muñoz stood at the door of the storage
room as Ramos searched a red toolbox that held a little black bag.
Ramos discovered a gold chain inside the bag and told Muñoz,
"[T]here's a chain [here]." Muñoz replied, "[W]ell, take it."
Ramos did so and handed the chain to Muñoz, who then put it into
his pocket. Ramos described this interaction as "between the two
of [them]," and that no one else was present. The next day, Muñoz
handed Ramos a sum of money and remarked: "so you can see how I
do things." Ramos testified that he understood this money to be
proceeds from Muñoz's sale of the chain and given to him so that
he would reciprocate going forward by sharing any similarly ill-
gotten gains with Muñoz.
The victim of this theft, Santiago, also testified at
- 6 - trial. He explained that he was in the apartment for the duration
of the search and arrested at its conclusion, but ultimately not
criminally charged. During the search, Santiago did not see Muñoz
do anything specific, other than generally "[s]earching the
property." He only later discovered that the chain was missing
when he returned home after being released by authorities.
For Racketeering Act Three, evidence established that,
in June 2015, Muñoz and Velasquez executed a search warrant at the
residence of Edwin Gonzalez Beltran ("Gonzalez"), during which
Muñoz stole money from Gonzalez's kitchen cabinets. Velasquez
testified that he and Muñoz were solely responsible for conducting
this search, although five or six other officers were also present
on the scene. As Velasquez described, the search began in the
kitchen, where Velasquez discovered a plate containing crack
cocaine, field-tested the drugs, and subsequently handcuffed
Gonzalez, who had been seated at a table nearby. Gonzalez also
provided testimony about the circumstances of this search. He
explained that, upon being handcuffed, he observed Muñoz searching
his kitchen cabinets. He further testified that he observed Muñoz
begin to open one cabinet that contained an unspecified amount of
cash and then "signal[] to" Velasquez. After this "signal,"
Velasquez moved Gonzalez out of the kitchen and into the bedroom
to continue his own search of the residence. Gonzalez further
testified that he objected to this move at the time, saying to
- 7 - Velasquez "Why are you doing this? . . . I have to be able to see
what you're doing." Gonzalez further explained that he felt Muñoz
"couldn't take [the money] out right in front of [him]" because it
would be "illegal." This observation was the extent of the
evidence regarding Gonzalez's interactions with Muñoz during the
search. Gonzalez was arrested following the search and charged
with drug trafficking.
Velasquez testified that, after the search, Muñoz told
him to meet him at a bar later that night. Outside the bar, Muñoz
approached Velasquez and handed him $90. Upon being handed the
money, Velasquez asked, "[W]hat's this," to which Muñoz replied,
"[T]his is your part. . . . Your share." Muñoz then said,
"[Y]ou're really blind, you know. You didn't see this," to which
Vasquez further responded, "[W]here was that?" Muñoz said, "[I]n
the cabinets."
At the close of the government's case, Muñoz moved for
a judgement of acquittal under Rule 29, on the ground that the
"government failed to present evidence sufficient to sustain [his]
conviction." See Fed. R. Crim. P. 29. Specifically, Muñoz argued
that evidence was insufficient to prove "both racketeering acts"
because there was no evidence that he "compelled anyone to deliver
property under the pretext of authority." After his motion was
denied, Muñoz rested his defense without presenting evidence. He
was ultimately convicted and sentenced to 60 months' imprisonment
- 8 - to be followed by 36 months' supervised release. This timely
appeal followed.
II.
In his primary challenge on appeal, Muñoz contends that
the district court erred in denying his motion for acquittal. We
review preserved challenges to the sufficiency of the evidence de
novo, evaluating the evidence in "the light most favorable to the
verdict" and asking "whether 'that evidence, including all
plausible inferences drawn therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime.'" United States v. Torres Monje, 989
F.3d 25, 27 (1st Cir. 2021) (quoting United States v. Santos-
Rivera, 726 F.3d 17, 23 (1st Cir. 2013)). In so doing, however,
"we must 'reject those evidentiary interpretations and illations
that are unreasonable, insupportable, or overly speculative.'"
United States v. Rodríguez-Martinez, 778 F.3d 367, 371 (1st Cir.
2015) (quoting United States v. Spinney, 65 F.3d 231, 234 (1st
Cir.1995)). To the extent that a sufficiency challenge raises
issues of statutory interpretation, our review is plenary. United
States v. Saccoccia, 354 F.3d 9, 12 (1st Cir. 2003).
A.
To sustain a conviction for a substantive RICO
violation, the government must prove, beyond a reasonable doubt,
"(1) the existence of an enterprise (2) that affected interstate
- 9 - commerce; and (3) that the defendant was associated with the
enterprise; (4) and conducted or participated in the conduct of
the enterprise; (5) through a pattern of racketeering activity."
United States v. Brandao, 539 F.3d 44, 50-51 (1st Cir. 2008); see
18 U.S.C. § 1962(c). Here, Muñoz only challenges the government's
proof as to the fifth element.
A "pattern of racketeering activity" requires proof that
the defendant committed at least two racketeering acts within a
ten-year period, inter alia. 18 U.S.C. § 1961(5); Brandao, 539
F.3d at 54. As relevant here, racketeering activity includes "any
act or threat involving . . . extortion . . . , which is
chargeable under State law and punishable by imprisonment for more
than one year." 18 U.S.C. § 1961(1). "A substantive RICO
prosecution requires, in a very practical sense, the full trial of
each of the predicate acts alleged." United States v. Levasseur,
846 F.2d 786, 801 (1st Cir. 1988). In other words, the government
must prove each essential element of the charges encompassed by at
least two predicate acts beyond a reasonable doubt to sustain a
conviction for substantive RICO. See Levasseur, 846 F.2d at 801;
United States v. Carrillo, 229 F.3d 177, 183 (2d Cir. 2000)
(explaining that, to support a RICO violation, the government must
prove all elements of the predicate offense "as defined by state
law"); see also United States v. Burhoe, 871 F.3d 1, 32 (1st Cir.
2017) (reversing RICO conviction where evidence was insufficient
- 10 - to prove at least two predicate acts).
As discussed above, the indictment in this case alleged
that Muñoz engaged in a pattern of racketeering activity through
committing two predicate crimes -- (i) extortion conspiracy in May
2015, and (ii) extortion in June 2015 -- both in violation of
Puerto Rico Penal Code Article 191. In relevant part, Article 191
defines the crime of extortion as "[a]ny person who . . . under
the pretext of rights as a public officer or employee, compels
another person to deliver property." P.R. Laws. Ann. tit. 33,
§ 4828 (official English translation); see id. § 5261 (Spanish).
Conspiracy requires that "two . . . or more persons conspire or
agree to commit a crime and have made specific plans regarding
their participation, the time, the location, or the acts to be
carried out," P.R. Laws Ann. tit. 33, § 4877 (official English
translation), as well as an overt act by one or more of the co-
conspirators towards carrying out the object of the unlawful
agreement, id. §§ 5334, 4878 (official English translation).
On appeal, Muñoz contends that no rational jury could
have found that he committed either extortion conspiracy or
extortion under these definitions, because the evidence failed to
prove the "compel[led] . . . delivery" element in either instance.
In support of this argument, Muñoz points to the undisputed facts
that his first victim, Santiago, was neither aware that the chain
was being taken at the time it was stolen nor in the room when it
- 11 - happened, and argues that his second victim, Gonzalez, did not
"deliver" the money to Muñoz in the natural sense of the word. In
other words, he contends that his conduct amounted only to simple
theft or larceny, which are not listed among RICO's enumerated
acts of racketeering, see 18 U.S.C. § 1961(1). In response, the
government argues that an "active[]" or "physical[] hand over" (or
agreement to affect the same) is not required to prove extortion
(or extortion conspiracy). Rather, it contends that "[i]t is
enough if, upon a show of authority -- here a warrant -- the victim
does not resist the defendant's obtaining or taking of the
property," as was purportedly the case with Santiago, or the victim
is "compelled . . . to surrender control of his property," as was
purportedly the case with Gonzalez.
B.
As both parties seem to agree that Muñoz's challenge
turns on the meaning of the Puerto Rico extortion statute's use of
"compels another person to deliver property," we begin with the
text of the statute. See United States v. Brown, 500 F.3d 48, 59
(1st Cir. 2017) ("When interpreting a statute, we begin with its
text." (citing Richardson v. United States, 526 U.S. 813, 818
(1999))). "In so doing, we accord the statutory text its ordinary
meaning by reference to the specific context in which that language
is used, and the broader context of the statute as a whole."
United States v. De la Cruz, 998 F.3d 508, 513 (1st Cir. 2021)
- 12 - (internal quotes and cites omitted); see also P.R. Laws Ann. tit.
33, § 4641 (instructing that "words and phrases [of the Penal Code]
shall be construed according to context and the meaning sanctioned
by common and current usage"). "When exhausting those [textual
and structural] clues enables us to resolve the interpretive
question put to us, our 'sole function' is to apply the law as we
find it, not defer to some conflicting reading.'" De la Cruz, 998
F.3d at 513 (alteration in original) (quoting Niz-Chavez v.
Garland, 141 S. Ct. 1474, 1480 (2021)).
1.
We conclude that the ordinary meaning of the statute's
use of "compels another person to deliver property" necessarily
implies that the accused's taking of property must be accomplished
with the victim's active acquiescence. Indeed, the word "compel"
is defined as "to force by physical necessity or evidential fact";
"to urge irresistibly by moral or social pressure"; "to force by
personal temperament or other subjective considerations"; "to
force or cause irresistibly: call upon, require, or command without
possibility of withholding or denying"; "to domineer over so as to
force compliance or submission," or "to obtain (a response) by
force, violence, or coercion." Compel, Merriam-Webster's
Unabridged Dictionary, https://unabridged.merriam-
webster.com/unabridged/compel (last visited Aug. 6, 2023).
Under any of these alternative definitions, the term necessarily
- 13 - implies that the subject of the compulsion must at least consent
to the "compliance" or "command" being sought, even if unlawfully
obtained, grudgingly provided, or involuntary, in the legal sense.
Similarly, the transitive verb "deliver" is defined as "give,
transfer: yield possession or control of: make or hand over: make
delivery of." Deliver, Merriam-Webster's Unabridged Dictionary,
https://unabridged.merriam-webster.com/unabridged/deliver (last
visited Aug. 6, 2023); see also Deliver, v.13(a), OED Online,
Oxford Univ. Press.,
https://www.oed.com/view/Entry/49470?rskey=3m8R4g&result=2&isAdv
anced=false#eid (last visited Aug. 6, 2023) (defining transitive
verb, "deliver," "[i]n legal contexts," as "[t]o hand over (goods,
notices, etc.) to another person legally or formally; esp. to put
(property) into the legal possession of another person."). Thus,
when read in the context of the operative statute -- "compels
another person to deliver property" -- the word "deliver"
necessarily implies that the victim must consent to the
displacement of his property, again, even if grudgingly provided.
Cf. Ocasio v. United States, 578 U.S. 282, 297 (2016) (noting
that "shakedown" "payments" are necessarily made "with [the
payor's] grudging consent").
At oral argument, the government conceded that this
reading was correct. Given this concession and our own textual
analysis, we need not tarry with any further confirmatory
- 14 - examination of the Puerto Rico Penal Code's legislative history or
similar extortion statutes. Cf. De la Cruz, 998 F.3d at 516.
Doing so would not cast any doubt on our conclusion that a
consented-to taking is a necessary element of the Puerto Rico
extortion statute.
Moreover, the government also conceded that, without
this element of induced consent, the Puerto Rico extortion statute
would not constitute a valid RICO predicate. Indeed, "for a state
offense to be 'an act or threat
involving . . . extortion, . . . which is chargeable under State
law,' as RICO requires, see 18 U.S.C. § 1961(1), the conduct must
be capable of being generically classified as extortionate."
Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409 (2003);
accord Wilkie v. Robbins, 551 U.S. 537, 567 (2007); see also United
States v. Kirsch, 903 F.3d 213, 221 n.9 (2d Cir. 2018) ("[I]n order
for conduct to serve as a state law RICO extortion predicate act,
it must (1) violate a state extortion statute and (2) satisfy the
'generic' definition of extortion."). The Supreme Court has
defined "generic extortion" for these purposes as "obtaining
something of value from another with his consent induced by the
wrongful use of force, fear, or threats," Scheidler, 537 U.S. at
409 (emphasis added) (quoting United States v. Nardello, 393 U.S.
286, 290 (1969)), which is similar to the federal definition of
extortion set forth in the Hobbs Act, see 18 U.S.C. § 1951(b)(2)
- 15 - (defining extortion as "the obtaining of property from another,
with his consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right").
In construing the federal definition of extortion, we
have endorsed the view that "[c]onsent is 'the razor's edge that
distinguishes extortion from robbery.'" Burhoe, 871 F.3d at 28
(quoting United States v. Cain, 671 F.3d 271, 283 (2d Cir. 2012));
see also Ocasio, 578 U.S. at 297 (noting that "consent" as used in
the Hobbs Act extortion provision "is designed to distinguish
extortion from robbery" (internal cites omitted)). Thus, "the
essential requirement to establish extortion" under the federal
definition "is [] that the victim retained some degree of choice
in whether to comply with the extortionate threat, however much of
a Hobson's choice that may be." Burhoe, 871 F.3d at 28 (cleaned
up, quoting Cain, 671 F.3d at 283). Because Puerto Rico's
definition of extortion is substantially similar to the federal
definition found in the Hobbs Act in relevant part, as it must be
to qualify as a RICO predicate, see Scheidler, 537 U.S. at 409, we
consider cases involving Hobbs Act extortion "as persuasive
analogous authority," Saccoccia, 354 F.3d at 12 n.2 (1st Cir.
2003).
2.
With this construction in place, we turn to the trial
evidence concerning the two predicate acts of racketeering. After
- 16 - careful review, we conclude that no rational factfinder could find
that Muñoz either agreed to or did obtain his victims' property
with their consent. Accordingly, his conviction must be reversed.
As to the May 2015 extortion-conspiracy charge, the
evidence established only that Ramos and Muñoz agreed to take
Santiago's gold chain for their own personal benefit; the evidence
was insufficient, however, to support a finding that they agreed
to take it without Santiago's consent. As the Supreme Court has
explained, "the fundamental characteristic of a conspiracy is a
joint commitment to an 'endeavor which, if completed, would satisfy
all of the elements of [the underlying substantive] criminal
offense." Ocasio, 578 U.S. at 287 (emphasis added, alteration in
original) (quoting Salinas v. United States, 522 U.S. 52, 65
(1997)). "In other words, each conspirator must have specifically
intended that some conspirator commit each element of the
substantive offense." Id. at 292. Puerto Rico law is no
different. See P.R. Laws Ann. tit. 33, §§ 4877, 4878 (defining
conspiracy as "[w]hen two . . . or more persons conspire or agree
to commit a . . . first degree or second degree felony"); see also
Town v. Velez Rivera, 693 D.P.R. 649, 652 (P.R. 1966) ("[T]he
[overt] act must be one conducive to the object of the
conspiracy.").
Thus, Muñoz's conviction can only be sustained if the
- 17 - government's evidence sufficiently established that he and Ramos
agreed that at least one of them would "compel[] [Santiago] to
deliver [his] property" to them, i.e., induce his consent to the
displacement of his chain. We conclude that this element was not
sufficiently proven. Rather, Ramos' testimony only established
that Muñoz told him to "take" the chain; Ramos did so; Ramos handed
it to Muñoz; and Muñoz pocketed it, sold it, and split the proceeds
with Ramos, which was consistent with Ramos' expectations.
Critically, however, Ramos also testified that this taking
occurred "between the two of [them]." Santiago was not present
in the storage room when this taking occurred and he was unaware
that it was happening. Rather, Santiago only discovered that the
chain was missing after he returned home from the police
department. Given that the evidence of this unlawful agreement
encompassed only a surreptitious taking without Santiago's
awareness, no rational jury could have found that Muñoz agreed to
obtain the chain with Santiago's consent. Cf. Ocasio, 578 U.S.
at 287 (holding that Hobbs Act extortion conspiracy requires proof
that the defendant "entered into a conspiracy that had as its
objective the obtaining of property from another conspirator with
his consent and under color of official right").
Nor can we conclude that the evidence sufficiently
established that such an agreement was implied. In an attempt to
persuade us otherwise, the government points to Ramos' description
- 18 - of how the corrupt CDU officers would generally "steal money"
during executions of residential search warrants and their general
"understanding" or "agreement" as to how this would be done. The
district court relied on similar evidence in denying Muñoz's Rule
29 motion. But, even if we assume, arguendo, that this background
understanding can reasonably be imputed to the specific agreement
between Muñoz and Ramos in May 2015, it does not reflect an
accepted practice of consented-to takings. As Ramos testified,
the typical practice for residential searches was that officers
would simply "grab" or "take" money or items in view, "put it in
[their] pocket and then continue on with the search warrant." He
further testified that this would happen even where the victims
were arrested and charged.
Thus, even if this general practice of unilateral,
secretive takings were relevant to the specific predicate act at
issue, it does not describe conduct that would constitute extortion
without more. Without any details about the victims' consent to
these thefts -- or at least their contemporaneous awareness from
which consent can reasonably be inferred -- this testimony reflects
a general practice of simple larceny. See P.R. Laws Ann., tit.
33, § 4820 ("Any person who without violence or intimidation
illegally takes personal property belonging to another shall
commit the crime of larceny."). Compare Camelio v. Am. Fed'n, 137
F.3d 666, 670-71, 671 n.5 (1st Cir. 1998) (affirming dismissal of
- 19 - private RICO action predicated on extortion, where defendant's
"unilateral acts," such as adverse union-related conduct, did not
constitute extortion due to the absence of victim's consent), and
Dickey v. Kennedy, 724 F. Supp. 2d 207, 214 (D. Mass. 2010)
(entering summary judgment against private RICO claims predicated
on health-inspector's purported extortion of property owner's
buildings, where evidence established that the health-inspector
"unilaterally condemned, renovated and then sold
property . . . against the will of or unbeknownst of the
'victims'"), with United States v. Watson, 778 F. App'x 340, 347-
49 (6th Cir. 2019) (affirming federal extortion-conspiracy
conviction against corrupt police officers where evidence
established that defendants "did not simply steal drugs and money,"
but rather that "victims agreed to give up their property so that
they could escape arrest").
By contrast, Ramos also described an alternative method
by which officers would steal money directly from victims at drug
selling points, without a warrant, where they would simply show
up, "catch the people with . . . drugs and money, . . . turn them
around, seize the money . . . [and s]ometimes . . . let them go."
Although conduct under these circumstances may plausibly
constitute extortion, see, e.g., Watson, 778 F. App'x at 347
(affirming federal extortion conviction based on evidence that
corrupt police officers "knew their drug-dealing victims would
- 20 - fear getting arrested or injured, and [] exploited these fears to
take drugs and money [directly] from them"), there is no evidence
that this is what was specifically agreed upon between Ramos and
Muñoz with respect to their theft from Santiago. The drug-
selling-point victims' contemporaneous awareness of, or presence
during, the respective takings illustrates the critical
difference. That is, consent can reasonably be inferred when a
victim is aware of or at least present during the taking, but the
same cannot be said when property is taken unbeknownst to the
victim. See Burhoe, 871 F.3d at 28-29 (describing consent for
federal extortion purposes as requiring "voluntar[y]
abandon[ment]" of property); 3 Wharton's Crim L. § 44:2 (16th ed.,
Nov. 2021 Update) (explaining that "[t]he required mental state
for extortion is the intent to compel another individual to commit
an act against their will").
Thus, Ramos's background testimony as to possible
extortionate methods and practices used by other CDU officers in
other contexts does not sufficiently prove that Muñoz agreed to
obtain Santiago's chain by extortion. Given the absence of other
evidence from which a rational jury could find that Muñoz conspired
to extort Santiago, we must reverse his conviction on this basis
alone. See Burhoe, 871 F.3d at 32 (reversing RICO conviction
where evidence established "at most one racketeering act").
- 21 - ii.
We further conclude that the evidence was also
insufficient to prove the second predicate act of substantive
extortion, arising from the June 2015 search of Gonzales's
residence. Much like Muñoz's theft from Santiago, the evidence
established that Muñoz took Gonzalez's money from his kitchen
cabinet and outside his presence. That is, the testimony of
Velasquez and Gonzalez established that Muñoz must have taken the
money after Gonzalez was moved to another room and out of sight.
But there was no evidence from which a rational jury could infer
that Gonzalez consented to this surreptitious taking. To the
contrary, Gonzalez's testimony, if anything, establishes that he
did not consent to what he suspected might occur once he was
removed from the kitchen, as he verbally protested this movement.
Cf. Burhoe, 871 F.3d at 28-29 (reversing federal extortion
conviction where victims' contemporaneous protests established
that the takings were not accomplished with their consent).
Moreover, evidence that Gonzalez was aware, at the time,
that the money in the cabinet would be taken was equivocal.
Although his testimony supported a reasonable inference that he
suspected it might happen, he was only able to confirm that the
money had in fact been stolen upon later learning that it was
missing and not logged in the warrant return. Because this
evidence "permits two equally plausible inferences" as to
- 22 - Gonzalez's contemporaneous awareness of the taking, "a reasonable
jury must necessarily entertain a reasonable doubt" about whether
he had such knowledge and in fact consented to the taking,
particularly given his objection to being moved. Rodríguez-
Martinez, 778 F.3d at 373 (internal quotes and cites omitted) ("We
'must reverse a conviction on the grounds of evidentiary
insufficiency where an equal or nearly equal theory of guilt and
a theory of innocence is supported by the evidence viewed in the
light most favorable to the verdict.'" (quoting United States v.
Woodward, 149 F.3d 46, 57 (1st Cir. 1998))).
Nevertheless, the government contends that Gonzalez's
physical detainment sufficiently establishes the
"compel[led] . . . delivery" by consent, i.e., he was handcuffed
and escorted out of the kitchen "so that Munoz could . . . take
[the] money." In other words, it argues that it is enough that
Gonzalez could "not resist" Muñoz's taking and that proof of a
"physical[] hand over" is not required. To support this
contention, the government cites two cases that upheld RICO
convictions predicated on extortionate acts even though the
extorted property was not physically exchanged hand-to-hand. See
United States v. John-Baptiste, 747 F.3d 186, 202 (3d Cir. 2014);
United States v. Ivezaj, 568 F.3d 88, 93-94 (2d Cir. 2009). But,
even if we were to accept the proposition that requiring a physical
exchange would be an "overly literal" reading of the word "deliver"
- 23 - where, for example, the extorted property was intangible, see
Ivezaj, 568 F.3d at 93-94, the government's alternative
characterizations of Gonzalez's "surrender" or "relinquish[ment]
[of] control over his property" are not supported by evidence of
his consent.
In both John-Baptiste and Ivezaj, the victims' consent
to the takings at issue was supportably inferred from evidence of
their voluntary abandonment of the extorted property into the
control of their extortionists. See John-Baptiste, 747 F.3d at
202 (affirming federal extortion conviction of police officer,
where evidence established that victim placed money for bribe to
retrieve her impounded car on defendant's patrol car dashboard and
circumstantial evidence established that defendant kept a portion
of it for herself); Ivezaj, 568 F.3d at 92-94 (affirming RICO
conviction predicated, in part, on New York extortion violation,
which requires "compel[led] . . . deliver[y]," where crime family
"wrested control of certain illegal gambling operations" from
rival family, i.e., the victim "never returned to [the] gambling
clubs . . . following the [defendant's] assault").
Here, it is far too speculative to infer from Gonzalez's
testimony that he knew the money was being taken at the time it
occurred and that he voluntarily abandoned control of it to Muñoz.
To the contrary, evidence that Gonzalez objected to being removed
from the kitchen can only reasonably be interpreted as
- 24 - demonstrating that he had not consented to the theft that he
suspected might occur. And, to the extent Gonzalez's will and
ability to prevent the taking was overborne by his detainment at
Muñoz's direction, this conduct could plausibly amount to robbery,
see 33 L.P.R.A. § 4826 ("tak[ing] . . . property [of] another in
the immediate presence of said person and against his/her will by
means of force"), but not extortion, 3 Wharton's Crim L. § 44:2
(explaining that "[t]he required mental state for extortion is the
intent to compel another individual to commit an act against their
will"), cf. Pueblo v. Rodríguez Berdasco, No. A1CR201900465, 2021
WL 4191392, at *8-9 (P.R. Cir. Aug. 30, 2021) (citing Wharton's in
aid of construing Puerto Rico false imprisonment statute).
3.
Finally, we address the government's argument that the
search warrants that precipitated and facilitated Muñoz's thefts
provided sufficient evidence of the victims' consent to the
displacement of their property. Specifically, the government
contends that the victims "consented to what appeared to be a
lawful search of [their] residence[s]" and thereby "relinquished
control over [the] property" that was taken. Muñoz contends that
applying the Puerto Rico extortion statute in this manner would be
too expansive. We agree that accepting the government's argument
would render "extortion" under the Puerto Rico statute too
expansive to qualify as a federal RICO predicate.
- 25 - The government cites no authority for this broad
proposition that, for extortion purposes, the subject of a search
warrant "consents" to the displacement of any of their property
simply by virtue of submitting to the execution of the warrant.
In any event, even if we accepted the argument that a warrant's
execution results in a consented-to taking of sorts, such consent
could only reasonably encompass items within the scope of the
warrant. Cf. United States v. Stierhoff, 549 F.3d 19, 24 (1st
Cir. 2008) ("The scope of a consensual search is generally defined
by its expressed object, and such a search may not exceed the scope
of the consent given."). Here, the record is bereft of any
evidence that the search warrants Muñoz utilized purported to
authorize the seizure of the specific items that were taken. Thus,
no rational jury could conclude that the warrants themselves
induced the victims' consent to the displacement of the property
that Muñoz took. If anything, the warrants could have only
plausibly induced the victims' consent to the searches themselves
and the seizure of the contraband identified in the warrants, not
the theft of any and all property that the searching officers were
to come upon while executing the search. Thus, we reject the
government's contention that the search warrants themselves
coupled with the victims' acquiescence to that general show of
authority provided sufficient evidence of their consent to the
allegedly extortionate takings, which were unbeknownst to them at
- 26 - the time they occurred.
III.
Having determined that Muñoz's conviction rests on
insufficient evidence that he committed at least two predicate
acts of racketeering, we need not reach his other evidentiary and
sentencing challenges on appeal. For the reasons discussed above,
we reverse his conviction and remand for disposition consistent
with this opinion.
- 27 -