United States v. Rosario-Orangel

• Court: Court of Appeals for the First Circuit
• Decided: March 20, 2026
• Docket: 20-1275
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 20-1275, 20-1276, 20-1283

UNITED STATES OF AMERICA,

Appellee,

v.

EDUARDO ROSARIO-ORANGEL, a/k/a Barba, a/k/a Cholon; AVELINO MILLÁN-MACHUCA, a/k/a Papito Machuca, a/k/a El Fuerte, a/k/a Viejo, a/k/a Gordo; LUIS H. QUIÑONES-SANTIAGO, a/k/a Hiram,

Defendants, Appellants.

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, Burroughs, District Judge.*

Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law Office LLC was on brief, for appellant Eduardo Rosario-Orangel.

Alejandra Bird López, with whom Eric Alexander Vos, Federal Public Defender, Rachel Brill, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, were on brief, for appellant Avelino Millán-Machuca.

Javier A. Morales-Ramos, for appellant Luis H. Quiñones-Santiago.

* Of the District of Massachusetts, sitting by designation. Alexander L. Alum, Assistant United States Attorney, with W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Francisco A. Besosa-Martínez, Assistant United States Attorney, Juan Carlos Reyes-Ramos, Assistant United States Attorney, and Ricardo A. Imbert-Fernández, Assistant United States Attorney, on brief, for appellee.

March 20, 2026

- 2 - BARRON, Chief Judge. We once again address challenges

that Luis H. Quiñones-Santiago, Eduardo Rosario-Orangel, and

Avelino Millán-Machuca1 bring to their federal convictions based

on statements that they contend were wrongly admitted into evidence

at their joint trial in the United States District Court for the

District of Puerto Rico. The convictions are, with respect to

each of these defendants, for conspiracy to violate the Racketeer

Influenced and Corrupt Organizations ("RICO") Act, see 18 U.S.C.

§ 1962(d), and conspiracy to possess with intent to distribute a

controlled substance, see 21 U.S.C. § 846.

In an earlier opinion in these consolidated appeals, we

rejected these three defendants' other challenges to their

convictions. We explained at that time, however, that we could

not resolve their challenges based on alleged hearsay statements

because the District Court had not made key findings about their

admissibility. For the same reason, we also explained that we

could not resolve Millán's challenge based on cumulative error,

because we concluded that the findings, once made, might bear on

it. We therefore remanded for the District Court to make the

Consistent with the appellants' opening briefs and our 1

practice regarding "Spanish naming customs," we refer to the appellants as "Quiñones," "Rosario," and "Millán," respectively. United States v. Rosa-Borges, 101 F.4th 66, 68 n.1 (1st Cir. 2024); see Caz v. Garland, 84 F.4th 22, 25 n.1 (1st Cir. 2023).

- 3 - appropriate findings, while retaining jurisdiction over the

appeals brought by Quiñones, Rosario, and Millán.

The District Court has now made the relevant findings

and concluded, based on them, that the statements at issue were

properly admitted into evidence. The parties have provided

supplemental briefing addressing those findings, and we have

carefully reviewed the parties' filings and the record. Our review

leads us to reject the challenges Quiñones, Rosario, and Millán

bring to their convictions based on the statements that each

contends were improperly admitted into evidence. That review also

leads us to reject Millán's challenge to his convictions based on

cumulative error. We therefore affirm these three defendants'

convictions.

I.

The convictions stem from a federal criminal

investigation into the activities of La Asociación Ñeta ("La

Ñeta"), an organization originally founded by prisoners to

advocate for their rights throughout Puerto Rico's prisons. Based

on that investigation, the U.S. government brought criminal

charges against fifty defendants in the District of Puerto Rico.

Quiñones, Rosario, and Millán were among them, and each of these

defendants was charged with two criminal counts.

The first count was for RICO conspiracy under 18 U.S.C.

§ 1962(d) for conspiring to violate 18 U.S.C. § 1962(c), which

- 4 - 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, as relevant here, "dealing in a controlled

substance," id. § 1961(1), and a "pattern of racketeering

activity" is defined as "at least two acts of racketeering," id.

§ 1961(5), that are "related, occur within ten years of one

another, and pose a threat of continued criminal activity," United

States v. Millán-Machuca, 991 F.3d 7, 18 (1st Cir. 2021).

The indictment alleged that the RICO enterprise was La

Ñeta. It alleged that entity had "evolved . . . [into] a criminal

organization" "whose members and associates engaged in drug

distribution and acts of violence, including murder." It further

alleged that Quiñones, Rosario, and Millán conspired to

participate directly or indirectly to facilitate La Ñeta's pattern

of racketeering activity involving drug trafficking in cocaine,

heroin, and marijuana.

The other count was for conspiracy to violate 21 U.S.C.

§ 841(a)(1), which makes it "unlawful for any person knowingly or

intentionally" "to manufacture, distribute, or dispense . . . a

controlled substance." Id.; see id. § 846 (criminalizing

conspiracy to violate § 841). The indictment alleged that

- 5 - Quiñones, Rosario, and Millán each had conspired to "knowingly and

intentionally possess with intent to distribute" more than one

"kilogram of a mixture or substance" containing heroin, more than

five "kilograms of a mixture or substance containing" cocaine, and

more than one hundred "kilograms of a mixture or substance

containing" marijuana.

After being jointly tried before a jury, Quiñones,

Rosario, and Millán were each convicted on both counts. They then

appealed, and we consolidated their appeals with the appeals that

three of their codefendants -- Luis Daniel Ramos-Baez, Juan J.

Claudio-Morales, and José Rafael Sanchez-Laureano -- had brought

to their convictions for the same two offenses. See United States

v. Ramos-Baez, 86 F.4th 28, 45-46 (1st Cir. 2023).

In our earlier opinion addressing these consolidated

appeals, we rejected the challenges brought by Ramos, Claudio, and

Sanchez to their convictions. We concluded, however, that we could

not resolve the challenges that Quiñones, Rosario, and Millán

brought based on certain statements that the government contended

were admissible at their trial pursuant to United States v.

Petrozziello, 548 F.2d 20 (1st Cir. 1977), but for which key

findings had not been made.

That case holds that, pursuant to Federal Rule of

Evidence 801(d)(2)(E), a statement that would otherwise be

inadmissible as hearsay is admissible if the district court finds

- 6 - that the party seeking its admission has shown by a preponderance

of the evidence that a coconspirator made the statement "during

and in furtherance of the conspiracy." Petrozziello, 548 F.2d at

22 (quoting Fed. R. Evid. 801(d)(2)(E)). Proof of the declarant's

membership in the conspiracy must be corroborated by "extrinsic

evidence beyond the statement itself." Ramos-Baez, 86 F.4th at

72. "The rationale" underlying this exception is that, because

"conspirators are partners in crime," they are

"deem[ed] . . . agents of one another." Anderson v. United

States, 417 U.S. 211, 218 n.6 (1974). "And just as the

declarations of an agent bind the principal only when the agent

acts within the scope of his authority, so the declaration of a

conspirator must be made in furtherance of the conspiracy charged

in order to be admissible against his partner." Id.

We explained that the District Court had not made

findings as to whether the alleged hearsay statements were in fact

made by a coconspirator during and in furtherance of the

conspiracy. We further concluded that we could not deem that

failure harmless because it was "not apparent" on the record before

us "whether the preponderance standard ha[d] been met" as to the

statements that Quiñones, Rosario, and Millán challenged under

Petrozziello. (Quoting United States v. Machor, 879 F.2d 945, 951

(1st Cir. 1989).)

- 7 - Accordingly, we remanded the three defendants' cases for

the District Court to make Petrozziello findings, while retaining

jurisdiction over their consolidated appeals. We also dismissed

without prejudice Millán's appeal insofar as it challenged his

convictions on the ground that the aggregate effect of errors at

his trial required vacating his conviction.2 We did so because we

concluded that a finding of Petrozziello error might support

Millán's cumulative error claim.

On remand, the District Court ordered Quiñones, Rosario,

and Millán to identify the statements for which Petrozziello

findings needed to be made. They collectively identified dozens

of such statements. The government, due to what it described as

"a calendar oversight," did not file a response. The District

Court then held a hearing and "f[ound] by a preponderance of the

evidence that with respect to the three defendants, the declarants

and the three defendants were members of the same conspiracy at

the time the statements were made," "the statements were made in

furtherance of the conspiracy," and "there was ample extrinsic

evidence beyond the statement[s themselves] of the defendants'

involvement in the conspiracy."

2 Quiñones also brought a cumulative error challenge, which we rejected on the ground that "no error" had been found in the "various [other] rulings" Quiñones challenged, leaving us with "no cumulative effect to consider." (Quoting United States v. Pérez-Montañez, 202 F.3d 434, 440-41 (1st Cir. 2000).)

- 8 - After the District Court's ruling on remand, we sought

supplemental briefing from the parties. The bulk of the statements

that Quiñones, Rosario, and Millán identify in their supplemental

briefing as having been admitted into evidence in violation of

Petrozziello were recounted in testimony at their trial by three

La Ñeta members, each of whom had pleaded guilty to the charged

RICO conspiracy. Those individuals are José González-Gerena, Alex

Miguel Cruz-Santos, and Orlando Ruiz-Acevedo.

Some of the other challenged statements were recounted

in the testimony that another La Ñeta member, Miguel

Álvarez-Medina, gave. He was not charged, however, in the

conspiracy, and he denied having ever participated in La Ñeta's

illicit activities, such as drug trafficking. The remaining

statements that we must address were entered into evidence through

transcripts and recordings of intercepted phone calls.

II.

The government contends that, in our prior opinion, we

"circumscribed" our review under Petrozziello to encompass only

those statements to which Quiñones, Rosario, and Millán

contemporaneously objected on Petrozziello grounds at their trial.

The government therefore argues that we must reject the vast

majority of the challenges under Petrozziello that Quiñones,

Rosario, and Millán advance in their supplemental briefing on the

- 9 - ground that none of these three defendants lodged any such

objection to the statements that underlie those challenges.

The government also argues that Quiñones, Rosario, and

Millán have waived their challenges to their convictions that rest

on any statements that were not specifically advanced in their

opening briefs in these appeals. So, the government contends, for

that reason, too, we must reject many of the challenges that

Quiñones, Rosario, and Millán now advance in their supplemental

briefs because, in their opening briefs to us, these three

defendants did not identify many of the statements that they now

contend were wrongly admitted under Petrozziello.

We need not address these threshold grounds for

rejecting the Petrozziello challenges before us, however, if those

challenges otherwise have no merit. Thus, we bypass the parties'

dispute about those threshold grounds because, for the reasons we

will explain, we conclude that their challenges to their

convictions under Petrozziello are unavailing once we account for

the deference that we owe the District Court's Petrozziello

findings and the substantial amount of unchallenged inculpatory

evidence that the record contains. See United States v. Ciresi,

697 F.3d 19, 26 (1st Cir. 2012) (noting that clear error review

applies to preserved Petrozziello challenges).

We emphasize upfront that the District Court did not

offer a statement-by-statement assessment under Petrozziello in

- 10 - rejecting the challenges that Quiñones, Rosario, and Millán bring

to their convictions under that precedent. Instead, the District

Court made a determination -- quoted above -- that none of the

challenges under Petrozziello had merit, given what the record

showed about the statements in question.

Quiñones, Rosario, and Millán make no argument to us

that the District Court, in so concluding, failed to make

Petrozziello findings as to any statements that they identified on

remand as being in need of such findings. They thus treat the

District Court as having made findings as to each of those

statements and simply challenge those findings on the ground that

the record does not suffice to support them. And, in pressing

their contentions that those findings do not hold up on this

record, they proceed by advancing statement-specific arguments in

their supplemental briefs.

In the analysis that follows, we directly address each

of those statement-specific challenges. In doing so, we do not

understand Quiñones, Rosario, or Millán to dispute that, if a

review of the record provides support for the District Court's

finding that each statement was made by a coconspirator during and

in furtherance of the conspiracy, then the District Court did not

err in admitting that statement under Petrozziello.

Moreover, we note that we may affirm the district court

on any ground manifest in the record. Segrain v. Duffy, 118 F.4th

- 11 - 45, 58 (1st Cir. 2024). Thus, to the extent the record makes clear

that any error under Petrozziello with respect to a specific

challenged statement would be harmless, we may reject the

Petrozziello-based challenge to that statement on that ground

alone. See United States v. Piper, 298 F.3d 47, 56-58 (1st Cir.

2002). And further, whenever there is some other basis manifest

in the record for rejecting a challenge to a statement that is

independent of the District Court's ground for doing so, we may

reject the challenge to that statement on that independent ground

as well. See, e.g., United States v. Barone, 114 F.3d 1284, 1296

(1st Cir. 1997) ("[W]e may affirm the district court's evidentiary

rulings on any ground apparent from the record on appeal.").

III.

We begin with Quiñones's Petrozziello challenges. They

concern statements that three distinct declarants made and that

were recounted in testimony that Ruiz and Cruz gave.

A.

Quiñones first takes aim at statements Ruiz recounted

that had been made by a La Ñeta member known as "Jowy" about

"differences and problems" between Jowy and Quiñones due to the

latter's failure to pass along certain drug "incentives" to La

Ñeta. The "incentives" were payments owed to La Ñeta in exchange

for that organization giving individual La Ñeta members permission

to sell drugs on their own behalf.

- 12 - Quiñones contends that these statements are not

admissible under Petrozziello because they merely described drug

dealing that advanced Quiñones's personal interests. As a result,

he contends they were not statements that a coconspirator made in

furtherance of a conspiracy involving him and Jowy.3

The record supportably shows, however, that González

(one of the cooperating witnesses for the government who pleaded

guilty to the charged conspiracy) separately testified that he had

personally "work[ed] . . . drugs with Jowy" on behalf of La Ñeta.

And the challenged statement by Jowy, on its face, conveyed

information regarding "differences and problems" between him and

Quiñones due to Quiñones's supposed failure to comply with La

Ñeta's requirements for paying drug "incentives" to that

organization. Thus, the District Court did not clearly err in

admitting this statement into evidence as a statement that a

coconspirator made during and in furtherance of the conspiracy to

facilitate La Ñeta's racketeering activities. See United States

v. Pérez-Vásquez, 6 F.4th 180, 195 (1st Cir. 2021) (concluding

statements were in furtherance of the conspiracy when made by one

conspirator to keep another "abreast of current developments and

3 Quiñones does not challenge the timing of the statements by arguing that they were not made "during" the charged conspiracy. In any event, the record shows that the statements were made within the timeframe charged in the indictment.

- 13 - problems facing the group" (quoting United States v. Flemmi, 402

F.3d 79, 95 (1st Cir. 2005))).

B.

Quiñones also challenges statements, recounted in Cruz's

testimony, that older La Ñeta members made to new inmates to teach

them about the structure and history of the organization. Quiñones

refers to the individuals who made these statements as the

"Elders." This challenge also fails.

Quiñones argues that Petrozziello bars these statements

because the Elders were not members of the charged conspiracy and

that, in any event, the statements were not made during and in

furtherance of that conspiracy. That is so, he contends, in part

because the statements were made outside the timeframe of the

conspiracy alleged in the indictment in which Quiñones was alleged

to have been a participant.

The government responds that the record supportably

shows that the Elders "were La Ñeta members" and thus, for that

reason alone, participants in the charged conspiracy. It goes on

to contend that the statements were made in furtherance of that

conspiracy because they provided new La Ñeta members with

information necessary to "continu[ing] on in the operation of the

association," although the government does not address when the

statements were made.

- 14 - Even if the District Court erred under Petrozziello in

admitting these statements, the error was harmless. In arguing

otherwise, Quiñones contends only that the government failed to

offer any independent "proof of the 'structure' of the [RICO]

'enterprise,'" thereby rendering the statements in question

especially damaging to his case. (Citing Boyle v. United States,

556 U.S. 938, 945 (2009).) But the record shows that these

statements were "cumulative of" a wealth of other evidence, United

States v. Valdivia, 680 F.3d 33, 46 (1st Cir. 2012), as various

witnesses testified from personal experience regarding meetings

related to La Ñeta's illicit activities, the organization's

hierarchical structure, and its practice of punishing members who

did not follow the organization's "norms and rules." Thus, we

reject this challenge on harmless error grounds. See United States

v. Rodríguez-Torres, 939 F.3d 16, 25 (1st Cir. 2019) (concluding

that the evidence "far surpasse[d] what Boyle requires for a RICO

enterprise" where an organization had "meetings[] and rules," "a

loose hierarchical structure," and a "business-like" practice of

"reward[ing] good performance and loyalty").

C.

Quiñones's remaining Petrozziello-based challenge

concerns testimony that Cruz gave about an alleged drug transaction

between Quiñones and Millán. Quiñones argues that this testimony

must have been based on statements of an unnamed third-party

- 15 - declarant, given that Cruz was in a different prison than Quiñones

at the time that the alleged transaction took place. Quiñones

then contends that there is no basis for finding that these

statements were admissible under Petrozziello as coconspirator

statements made in furtherance of the conspiracy. (In making this

challenge, Quiñones does not raise any timing-based concern about

the statements.)

Quiñones did not challenge these statements in his

opening brief to our Court. He also did not identify them in his

motion responding to the District Court's order on remand to

"identify those statements requiring . . . consideration under

[Petrozziello]." As a result, insofar as the challenge is not

waived by virtue of having been first raised only in his

supplemental briefing, our review is only for plain error. See

United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992). But

because Quiñones's opening and supplemental briefs on appeal

"fail[ed] to even mention plain error" with respect to the

statements he now challenges, "let alone argue for its application

here," he has waived on appeal any argument for meeting that

demanding standard.4 United States v. Benjamin-Hernandez, 49 F.4th

580, 585 (1st Cir. 2022).

4 Because we assume error with respect to only one of the statements that Quiñones challenges, we are again left with "no cumulative effect to consider." United States v. Ramos-Baez, 86 F.4th 28, 75 n.9 (1st Cir. 2023) (quoting Pérez-Montañez, 202 F.3d

- 16 - IV.

We now take up Rosario's Petrozziello challenges, which

concern the District Court's decision to allow statements that

Ruiz and Álvarez recounted in their testimony to be admitted into

evidence. The declarants are "Boringo," Dianis Negrón, and

"Quintana."

Rosario argues that there is no evidence that

establishes that any of these declarants were participants in "any

conspiracy" with him. He further argues that the record provides

no basis for finding that the statements were made during and in

furtherance of any conspiracy because it is "unknown" under what

circumstances or "for what purposes" the statements were made.

Accordingly, he contends that the District Court clearly erred in

admitting this testimony under Petrozziello. We are not persuaded

that the District Court committed reversible error.

We start with the challenge to Boringo's statement about

Rosario's alleged involvement in drug trafficking. Ruiz recounted

that statement while testifying that Boringo gave Ruiz drugs to

sell on behalf of La Ñeta and that Boringo would sometimes tell

at 441). Accordingly, we reject Quiñones's revived cumulative error challenge.

- 17 - him, "[L]ook, these drugs are good. I gave some to [Rosario]. I

gave some to Tito, I gave some to different jails."

Rosario argues that there is "no evidence" that Boringo

was a member of "any conspiracy" in which Rosario participated.

Ruiz testified, however, that he personally sold drugs for Boringo

after the date on which the charged conspiracy began, and that

Boringo paid La Ñeta in connection with those drug sales. That

testimony constitutes evidence extrinsic to the challenged

statement by Boringo about his involvement in the conspiracy with

which Rosario was charged with being a participant -- namely, the

conspiracy to facilitate La Ñeta's racketeering activities.

Moreover, the record shows that Ruiz testified that

Boringo made that statement to him while they were engaged in their

drug trafficking activities. The record thus supportably shows

that the statement was made for the purpose of Boringo

"vouching" -- to use the government's description -- for the

quality of the drugs. Accordingly, the District Court did not

clearly err in finding that a coconspirator made the statement in

furtherance of the conspiracy in question. Cf. United States v.

Colón-Díaz, 521 F.3d 29, 37 (1st Cir. 2008) (statements that a

particular individual's drugs "were 'the best' sought directly to

promote the conspiracy's goal" of selling drugs by "engender[ing]

confidence" in the buyer regarding their quality).

- 18 - B.

We also reject Rosario's challenge to Ruiz's testimony

that, even before Ruiz personally met Rosario, he "knew of" him

from "talk[ing] . . . about" him with Dianis Negrón. Rosario

argues that this testimony was attributable to statements that

Negrón made to Ruiz and that it was clear error to find that,

despite having been based on statements made by a third-party

declarant, the testimony was admissible under Petrozziello. The

government responds that this testimony "is neither hearsay nor

based on hearsay," as "Ruiz simply stated he talked about Rosario

with Negrón."

Even assuming that this testimony is hearsay or based on

hearsay, we conclude that any error in admitting it into evidence

was harmless. Rosario argues otherwise on the ground that Ruiz's

testimony regarding Rosario "would have been eliminated entirely"

if the challenged portions of it had to be excluded as hearsay.

As we have already explained, however, the District

Court did not clearly err in permitting Ruiz to testify regarding

the statement made to him by Boringo concerning Rosario's

involvement in drug trafficking. Moreover, the record shows that

when Ruiz was asked at trial whether he "kn[e]w of" Rosario prior

to meeting him, Ruiz responded that he "knew of him . . . [t]hrough

different people," including not only by talking about him with

Negrón but also through Boringo and another La Ñeta member known

- 19 - as "Tito Grande." So, any error in admitting the challenged

statements in the Ruiz testimony that Rosario attributes to Negrón

fails on harmless error grounds because Rosario does not challenge

the materially similar statements by Boringo and Tito Grande

introduced in that testimony. See Valdivia, 680 F.3d at 46.

Rosario's third and final Petrozziello-based challenge

concerns a statement about his alleged participation in drug

trafficking. Álvarez recounted the statement in question while

testifying that Quintana told him that Rosario supplied him

(Quintana) with drugs.

The government argues that the District Court properly

admitted this statement under Petrozziello. It also points out in

doing so that Álvarez testified that both Quintana and another La

Ñeta member known as "Chuito Carolina" told him about Rosario's

involvement in drug trafficking.5

That last point is significant. Rosario does not dispute

that the statement by Chuito was admissible, even though it is

5 Specifically, when Álvarez was asked whether Rosario "was . . . involved in drug trafficking" in his role "as the number two leader" of a particular prison, Álvarez responded, "Yes." When asked how he knew that, Álvarez responded, "He was the supplier of two friends of mine, Omar Quintana Moss, a/k/a Omar El Gordo. Jesus Delgado Ortiz, a/k/a Chuito Carolina. Both are [La Ñeta] members. . . . [H]e would supply substances for them to sell . . . ."

- 20 - "cumulative of" the challenged statement by Quintana. Valdivia,

680 F.3d at 46. He also does not challenge González's testimony

that Rosario told him on more than one occasion that he (Rosario)

had "fund" drugs -- that is, drugs that are sold by La Ñeta members

on La Ñeta's behalf. In addition, as we have just explained, the

District Court did not clearly err in admitting into evidence

Boringo's statement that he and Rosario were involved in

trafficking drugs together. Thus, any error in admitting the

Quintana statement was harmless. See id. (deeming harmless

admission of "purported hearsay testimony . . . cumulative of

other evidence in the record"); see also United States v. Veloz,

948 F.3d 418, 434 (1st Cir. 2020) (deeming admission of purported

hearsay harmless where another coconspirator "had already appeared

at trial and testified to the same effect").

We come, then, to Millán's Petrozziello challenges. In

all, they concern more than a dozen statements. Some were

recounted in testimony by González, Cruz, and Álvarez. The rest

were recounted in recordings of intercepted phone calls that the

government introduced into evidence. We see no basis for

overturning Millán's convictions based on these challenges.

Notably, the government argued at trial that Millán was

La Ñeta's "maximum leader" -- its highest-ranking individual -- for

- 21 - years. Also of note, Millán does not dispute that he served in La

Ñeta leadership. He argues only that the challenged statements

were improperly admitted under Petrozziello and highly

prejudicial. That is so, he contends, because the other evidence

at most "showed . . . Millán's efforts to maintain [La] Ñeta's

original prisoner advocacy mission" and to further its "legitimate

aims." That other evidence, as he sees it, did not show his

agreement to participate in a pattern of drug trafficking on behalf

of the organization or to facilitate its racketeering activities.

He also contends that these statements painted a false picture of

the control that he exercised over La Ñeta's membership or drug

proceeds.

It is important to emphasize at the outset that there is

significant inculpatory evidence against Millán that he does not

challenge under Petrozziello. Indeed, as we will explain, the

government introduced unchallenged evidence that, in his role as

maximum leader, he required that monthly reports be made regarding

the status of each prison's drug trafficking and incentive-related

finances, and he called meetings, requested reports, and issued

directives regarding La Ñeta's membership and disciplinary issues.

Other witness testimony that Millán does not challenge under

Petrozziello establishes that Millán worked directly with several

- 22 - La Ñeta members, including Cruz and Ruiz, to traffic drugs and

manage drug-related finances.6

There is a case to be made, based on this unchallenged

inculpatory evidence, that each of Millán's Petrozziello

challenges fails on harmless error grounds alone. Nonetheless,

Millán also brings a cumulative error challenge. We therefore

think it prudent to address each of the statements that he

challenges under Petrozziello so that we may properly address that

challenge. After all, even though we reject many of Millán's

individual Petrozziello challenges on harmless error grounds, he

premises his claim of cumulative error on the asserted aggregate

effect of errors that he contends is greater than the effect of

any one of the asserted errors on its own. See United States v.

Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993) (explaining that

multiple errors may "in the aggregate have a more debilitating

effect" on the fairness of trial proceedings than the errors

considered in isolation). Thus, to properly evaluate that

contention, it is important to ensure that we have a firm grasp on

the universe of challenged statements, if any, that may have been

6 As we explain below, we previously rejected Millán's challenges to Cruz and Ruiz's testimony under the Jencks Act, 18 U.S.C. § 3500; Brady v. Maryland, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150 (1972).

- 23 - admitted into evidence in violation of Petrozziello. Hence, the

need for the statement-by-statement analysis that follows.

We start with Millán's challenge to Jowy's statement

that Millán sent drugs to him to sell on behalf of La Ñeta.

González recounted the statement while testifying that, when he

was "working the drug tables" with Jowy, Jowy told him, "[W]e have

to tally up this for [Millán], 200. There can't be any credit on

this. This has to be a ticket over another ticket."

Millán argues that the District Court clearly erred in

finding this statement admissible under Petrozziello because "the

record lacks extrinsic evidence establishing that Jowy and

[Millán] were [coconspirators]" and does not "demonstrate" that

the statement was made in furtherance of the conspiracy.7 As we

explained above, however, González's firsthand testimony about

"working the drug tables" with Jowy is record evidence, extrinsic

to the challenged statement, of Jowy's membership in the conspiracy

in which Millán was charged with being a participant. In addition,

given the context that González's testimony provides, the

statement Millán challenges about what Jowy said about him to

González is fairly understood to have been intended to communicate

7 Millán makes no argument disputing that the statement in question was made during the charged conspiracy.

- 24 - information to González regarding La Ñeta's priorities for

processing the drugs in question. Thus, there was no clear error

under Petrozziello in admitting this statement into evidence as a

statement of a coconspirator made during and in furtherance of the

conspiracy. See United States v. Martinez-Medina, 279 F.3d 105,

117 (1st Cir. 2002) (concluding that statements were made in

furtherance where they "conveyed to other [coconspirators]

information about the operations of the drug conspiracy").

We next consider Millán's challenge to the statement

that Millán appointed Claudio, one of Millán's codefendants, to

collect phone "incentives" -- that is, payments that members of La

Ñeta made to the organization for the privilege of using certain

contraband cell phones. González recounted this statement when he

testified that an individual known as "Sandwich" told him that

Millán assigned Claudio "to deal with the cell phone incentives"

because he was "upset" with him.8

Millán argues that the record lacks extrinsic evidence

either that the declarant -- whom Millán does not

identify -- conspired with Millán or that the declarant made the

8 Millán does not argue that this particular statement was hearsay-within-hearsay.

- 25 - statements in furtherance of a conspiracy.9 The District Court

did not clearly err in finding that this statement satisfied

Petrozziello.

Contrary to Millán's assertion, the record provides

extrinsic evidence of Sandwich's membership in the conspiracy in

which Millán was charged with being a participant. Specifically,

one witness testified that Sandwich threatened to kill another La

Ñeta member for being a "snitch." See United States v. Rodríguez,

162 F.3d 135, 143 (1st Cir. 1998) (concluding that a defendant's

"violence against a suspected informant [wa]s relevant to prove

his membership in the conspiracy"). In addition, the statement

may supportably be found to have involved one coconspirator

(Sandwich) communicating information to another coconspirator

(González) regarding the dynamics between, and allocation of

duties among, the members of the enterprise -- La Ñeta -- whose

racketeering activities they were conspiring to facilitate. After

all, as noted above, González pleaded guilty to the charged RICO

conspiracy offense. Thus, we see no basis for finding clear error

under Petrozziello as to this statement. See Martinez-Medina, 279

F.3d at 117; see also Sepulveda, 15 F.3d at 1181 (concluding

statements were in furtherance of the conspiracy where they

9Millán again makes no argument that this statement was not made during the charged conspiracy.

- 26 - identified a member's "role and activities"); Flemmi, 402 F.3d at

95 (finding statement in furtherance of the conspiracy where it

kept coconspirators informed of "problems facing the group"

(quoting United States v. Jefferson, 215 F.3d 820, 824 (8th Cir.

2000))).

D.

There also is no merit to Millán's challenge under

Petrozziello to Cruz's testimony that he knew that Millán and

Quiñones trafficked drugs together because Cruz had once acted as

a conduit to pass heroin from Millán to Quiñones. Millán argues

that this testimony was "based entirely on [Quiñones's] statements

to [Cruz], not on [Cruz's] personal knowledge." He argues that

Cruz "provided no direct evidence of . . . Millán's involvement"

in the drug sales in question, such as "personal observation" or

"direct contact," and that it was error to find that the statement

was nonetheless admissible under Petrozziello.

The record shows, however, that, in response to the

government's questions regarding how Cruz knew that Millán and

Quiñones trafficked drugs together, Cruz repeatedly answered that

he knew because he participated in a drug transaction with them.

There is no suggestion in his testimony that he learned that

information from Quiñones. To the contrary, Cruz said he "worked

with" Millán on that transaction to get the drugs to Quiñones. We

therefore agree with the government that this testimony "was based

- 27 - on Cruz's personal experience as a middleman between Millán and

Quiñones" and so contains "no hearsay statement." See United

States v. Avilés-Colón, 536 F.3d 1, 14-15 (1st Cir. 2008). As a

result, here, too, the District Court did not err in admitting

this statement. See Barone, 114 F.3d at 1296.

E.

There similarly is no merit to Millán's challenge to

statements that Cruz recounted pertaining to, in Millán's words,

the "structure, norms, and activities across [La] Ñeta

institutions." (Citation modified.) The statements relate to La

Ñeta's leadership structure and the basic contours of its drug

operations and unlawful activities. Millán argues that "[t]he

declarants making these assertions were neither identified nor

shown to be conspirators with . . . Millán," and that the

statements "were not shown to further the conspiracy." But Millán

does not challenge ample other inculpatory evidence under

Petrozziello, including an intercepted phone call introduced at

trial in which Millán himself hinted at La Ñeta's organizational

hierarchy and the division of labor between its various members.

As a result, any error under Petrozziello as to these statements

was harmless. See Valdivia, 680 F.3d at 46.

F.

We next take up Millán's challenge to statements by

Joseph de Leon and Benji Loiza about Millán's alleged personal

- 28 - involvement in drug trafficking. Álvarez recounted these

statements in his testimony.10

It is important to remember in assessing this challenge

that the government did not need to prove that Millán was

personally involved in the sale of drugs to convict him of either

conspiracy offense at issue. See Ramos-Baez, 86 F.4th at 60; id.

at 53 (stating that the government was only required to show that

"each defendant knew about and agreed to facilitate the conspiracy

to conduct [La Ñeta's] affairs through the commission of at least

two acts of racketeering" (citation modified)). The reason that

fact matters is that there was ample evidence in the record that

Millán has not challenged under Petrozziello that shows that he

agreed to facilitate La Ñeta's drug trafficking activities.

For example, Ruiz testified that Millán had not only

given him drugs to sell, but that Millán would also alert him when

the money from drug sales had been received. In addition, the

record contains evidence of an intercepted call in which Millán is

discussing drug finances and issues related to drug debts owed by

La Ñeta members. In that same call, Millán appears to endorse a

Millán also challenges Álvarez's testimony that he learned 10

of Millán's position as maximum leader through an organization chart. To the extent that this statement prejudiced Millán by identifying him as La Ñeta's maximum leader, we find any error in the admission of this statement harmless, as Millán was repeatedly identified as La Ñeta's maximum leader at trial.

- 29 - "plan" requiring that each prison give La Ñeta leadership monthly

reports on its drug funds and incentives. Thus, any error under

Petrozziello in admitting these statements into evidence was

harmless.

G.

We also must reject Millán's challenge to Cruz's

testimony that (1) chapter leaders -- that is, La Ñeta leaders of

individual prisons -- were required to report to Millán regarding

drug trafficking activities; (2) Millán chose all chapter leaders;

and (3) Millán's drugs were "constantly" sold "mostly" in the

prison in which Millán was incarcerated. As Millán sees it, this

testimony could not have been based on Cruz's personal knowledge,

because it relates to events that either occurred in a different

prison from the one in which Cruz was located or for which he had

not been personally present. He thus contends that it was error

to admit the testimony under Petrozziello.

We are not persuaded by Millán's contention that Cruz

could not have testified about Millán appointing chapter leaders

and the reports those leaders made to Millán "[w]ithout relying on

hearsay." When questioned at trial about how he knew that

information, Cruz responded, "Because [Millán] put me in [a]

position of leadership, and also because of the things that you

learn along the way." Millán contends that the latter statement

shows that Cruz's testimony was based at least in part on

- 30 - information he had "learn[ed] along the way" from others. But

that statement appears to regard reports that were made to La Ñeta

leadership -- reports which Cruz went on to explain he had

personally made to Millán. Thus, to the extent Millán challenges

testimony that was based on Cruz's personal knowledge rather than

hearsay, it fails at the threshold. See Barone, 114 F.3d at 1296.

And to the extent Cruz's testimony was based in part on hearsay,

any error in its admission was harmless, given that other

admissible evidence was "cumulative of" the same. Valdivia, 680

F.3d at 46.

We also must reject the challenge to Cruz's testimony

that Millán's drugs were "constantly" sold "mostly" in a prison in

which Cruz was not housed. Independent of that testimony from

Cruz, the above-mentioned statements by Millán during the

intercepted call strongly support a finding that Millán "knew about

and agreed to facilitate" La Ñeta's drug transactions,

particularly in light of other testimony by Cruz and Ruiz regarding

their personal experiences working with Millán to traffic drugs.

Ramos-Baez, 86 F.4th at 53 (quoting United States v.

Leoner-Aguirre, 939 F.3d 310, 316 (1st Cir. 2019)). So, any error

on this score was also harmless. See Valdivia, 680 F.3d at 46.

H.

We next consider Millán's challenge under Petrozziello

to Cruz's testimony that Millán appointed Claudio and Quiñones to

- 31 - La Ñeta leadership roles. Millán contends that Cruz based his

testimony on hearsay statements that others made to him. He argues

that is so because Cruz "inferred" that Millán made the

appointments in question "because others told [him] 'that's how it

works.'" From that premise, Millán goes on to argue that these

statements are not admissible under Petrozziello because the

declarants who told Cruz about the appointments "are unidentified

and not shown to be in . . . a conspiracy with . . . Millán," no

extrinsic evidence of a conspiracy is identified, and the

statements are not "shown to be in furtherance of the conspiracy."

It is hardly evident that Cruz did not rely on his

personal knowledge to make the statements in question. Cruz did

not say in his testimony that he knew that "that's how

[appointments have] always worked" because others had told him so.

The record also shows that Cruz himself had been appointed to a La

Ñeta leadership position.

In any event, any error in admitting this testimony was

harmless. There was substantial other evidence about

appointments, including the statement attributable to Sandwich

that we described above about Millán appointing Claudio to collect

cell phone incentives.

Millán separately takes aim at González's testimony that

Millán had "knowledge of everything," which Millán contends was

- 32 - based on hearsay statements of an unknown declarant. But there

was ample other evidence supporting the same proposition. Below,

we affirm the District Court's decision to admit into evidence a

very similar statement by Rolando Millán-Machuca -- Millán's

brother -- regarding the need to provide Millán with "proof of

everything." And testimony by another witness and statements on

intercepted phone calls additionally support that such reports

were made to Millán. So, any error here was harmless as well.

J.

Millán's final challenge concerns a slew of statements

that were recounted in the recordings and transcripts of

intercepted telephone calls that the government introduced into

evidence. The challenged statements are: (1) a statement by a La

Ñeta member known as "Omi" regarding Millán putting another La

Ñeta member "in his place" for failing to fully remit an incentive;

(2) statements by "several declarants" describing reports made to

Millán regarding the murder of an inmate and the conduct of certain

La Ñeta members; (3) a statement by a La Ñeta member known as

"Bambani" regarding Millán having told another La Ñeta member to

"do whatever you have to do" to "deal with" certain La Ñeta

leadership issues; (4) a statement by Jowy that Millán had "closed

the doors" -- that is, halted the sale of particular drugs within

a prison; (5) statements made by Jowy, recounting a conversation

with Millán, regarding a dispute over incentive payments and

- 33 - stating that Millán "sent [someone] out to collect some money";

(6) statements by Rolando Millán-Machuca that Millán must have

"proof of everything"; and, finally, (7) statements by several

declarants regarding Millán's reactions to reports given to him,

as well as a hearsay-within-hearsay statement of a caller who

allegedly said she had "something" to "give" to Millán. Millán

argues that there is no extrinsic evidence in the record showing

either that Millán conspired with the declarants in the phone calls

or that the statements were made in furtherance of a conspiracy.11

1.

There is no merit to Millán's challenge to the first

statement, which Omi made to a group of individuals that included

Sandwich.12 Extrinsic evidence supportably shows that Omi was a

member of the charged conspiracy, as nonhearsay evidence

establishes that he smuggled cell phones into prison on behalf of

La Ñeta.13 The evidence also supports a finding that the statement

11 As to the final set of statements, Millán additionally argues that the evidence fails to show that they were made "at the time" that the declarant may have been conspiring with Millán. Insofar as Millán by this means to argue that the statement was not made during the timeframe of the charged conspiracy, we reject that argument, as the record clearly shows otherwise. 12We above concluded that there is sufficient evidence in the record to support the District Court's finding that Sandwich was a member of the charged conspiracy. 13 This evidence came in through a statement by Sandwich -- who, as we explained above and in the previous footnote, the record supportably showed to be a coconspirator -- to another La Ñeta member in the same call regarding the facilitation

- 34 - was made in furtherance of that conspiracy by keeping

coconspirators "abreast of current developments," Flemmi, 402 F.3d

at 95 (quoting Jefferson, 215 F.3d at 824), and encouraging

"loyalty" from conspirators, United States v. Laureano-Pérez, 797

F.3d 45, 66 (1st Cir. 2015).

2.

We also reject Millán's challenge to statements in which

several declarants -- including two individuals known as "La Cana"

and "Mickey Motors" -- discussed violations of La Ñeta's drug

trafficking rules and issues La Ñeta was facing following the

murder of an inmate. Other record evidence supportably shows that

La Cana and Mickey Motors were members of the conspiracy.14 And,

in context, these statements fairly can be understood to have

relayed updates on "the activities of the conspiracy's members,"

Avilés-Colón, 536 F.3d at 15, and issues and "problems facing the

of communication between La Ñeta members concerning its racketeering activities. See United States v. Mitchell, 596 F.3d 18, 24 (1st Cir. 2010) (pointing to admissible statements in "recordings of phone calls" as extrinsic evidence of membership in conspiracy); United States v. Ruiz, 999 F.3d 742, 749 (1st Cir. 2021) (concluding that out-of-court statements that qualify as nonhearsay under the federal rules constitute "extrinsic evidence" under Petrozziello). 14As to La Cana, one witness separately testified that she funneled drugs into prisons on behalf of La Ñeta. And as to Mickey Motors, Cruz testified that Mickey Motors was working to "clear up" La Ñeta's name after an inmate had been murdered in order to ensure that "everything they were working on was [not] going to be in [vain]."

- 35 - group," Pérez-Vásquez, 6 F.4th at 195 (quoting Flemmi, 402 F.3d at

95). They also encouraged ongoing compliance with La Ñeta's rules.

See Laureano-Pérez, 797 F.3d at 66; Ciresi, 697 F.3d at 30

(statements intended to "forestall any dissension" were in

furtherance of the conspiracy).

A handful of statements in the intercepted call were

made by an unidentified declarant. Any error in the admission of

those statements was harmless, as they were entirely "cumulative

of" the statements made by La Cana and Mickey Motors in the same

call. Valdivia, 680 F.3d at 46.

3.

We similarly must reject Millán's challenge to both the

third statement identified above, which was made by Bambani, and

the fourth statement identified above -- that Millán had "closed

the doors" -- which was made by Jowy. As the government contends,

Millán failed to preserve challenges to these statements because

he failed to include them in the list of statements for which

Petrozziello findings needed to be made that he provided to the

District Court on remand. As a result, these challenges are at

least forfeited and so reviewable only for plain error. See United

States v. Pena, 24 F.4th 46, 60-61 (1st Cir. 2022). The government

contends that any such challenges must be rejected, because Millán

"fail[ed] to argue the plain error standard in [his] briefing to

this Court" and so thereby has waived his challenges to unpreserved

- 36 - statements. (Citing, inter alia, United States v. Morales-Vélez,

100 F.4th 334, 345 (1st Cir. 2024).)

Millán counters that his supplemental brief incorporated

the plain error arguments made in his opening brief to our Court

and that the government is therefore wrong to say that he "failed"

to advance those arguments. We disagree.

In his opening brief, Millán argued that the District

Court's failure to conduct a Petrozziello analysis constituted

plain error. Now that the District Court has made such a finding,

Millán needs to develop an argument as to why any error in making

that finding with respect to the statements here is plain. As he

has not done so, he has "ma[de] no attempt to satisfy" the plain

error standard. United States v. Rodriguez-Monserrate, 22 F.4th

35, 40 (1st Cir. 2021). It follows that he has waived these

challenges.

4.

We reject, too, Millán's challenge to the District

Court's Petrozziello ruling as to the fifth set of challenged

statements, which Jowy made about disputes over incentive payments

and Jowy's statement that Millán "sent" someone "to collect some

money." As we explained above, the record supportably shows that

Jowy was a participant in the charged conspiracy. The statements

also fairly can be understood to have been made in furtherance of

that conspiracy because they kept other members of the conspiracy

- 37 - (Sandwich and Rolando Millán-Machuca) informed of "current

developments and problems facing the group." Pérez-Vásquez, 6

F.4th at 195 (quoting Flemmi, 402 F.3d at 95).

5.

That brings us to Millán's sixth challenge to statements

in the intercepted calls. Here, he focuses on statements that

Rolando Millán-Machuca made about Millán's need to receive "proof

of everything." The District Court did not clearly err in finding

those statements admissible under Petrozziello.

The record contains extrinsic evidence of Rolando

Millán-Machuca's membership in the charged conspiracy.15 It also

supportably shows that the statements were made in furtherance of

the conspiracy. In that regard, the record supportably shows that

they were made in the context of Rolando Millán-Machuca urging

other coconspirators, including Jowy, to provide Millán with

evidence that yet another coconspirator had violated the group's

drug trafficking rules and failed to remit incentive payments he

had collected on behalf of La Ñeta. See Laureano-Pérez, 797 F.3d

at 66 (statements in furtherance of conspiracy where they

encouraged compliance with group's rules).

That evidence included González's testimony that González 15

committed a murder-for-hire on direction from Rolando Millán-Machuca in the latter's role as a La Ñeta leader, as well as a statement, recounted in testimony by González and attributed to Millán, acknowledging the same.

- 38 - 6.

Finally, Millán challenges statements by several

declarants about Millán's reactions to reports allegedly made to

him and a statement by a La Ñeta member known as "Moncho" regarding

La Cana saying she had "something" to "give" to Millán. Even if

it were clear error to admit these statements under Petrozziello,

the challenges that Millán makes to his convictions based on them

fail because he does not explain how these particular statements

prejudiced him.

If Millán means to suggest that the statements

prejudiced him by tending to show that he was receiving reports

and engaging in leadership conduct related to La Ñeta's drug sales,

we cannot agree. Ample other evidence showed the same. Similarly,

insofar as La Cana's statement that she had "something" to "give"

to Millán supported an inference that Millán was trafficking drugs,

other witnesses, including Cruz and Ruiz, permissibly testified

about Millán's participation in drug trafficking.

Moreover, as we have explained, the government did not

need to prove that Millán personally trafficked drugs in order to

convict him of the conspiracy offenses at issue. And ample

independent evidence supportably showed that he agreed to

participate in that conspiracy. We thus conclude that any error

in admitting this somewhat cryptic statement into evidence was

- 39 - VI.

To this point, we have addressed all the

Petrozziello-based challenges that Quiñones, Rosario, and Millán

bring to their convictions. Our work is not yet done, though,

because we still must address Millán's separate challenge to his

convictions on cumulative error grounds.

We have not concluded in our analysis thus far that the

District Court erred in admitting any of the statements that Millán

challenges under Petrozziello. We sometimes bypass the question

of whether the District Court did so, however, by relying solely

on harmless error to explain why, with respect to a specific

challenge, there was no basis for vacating any of the convictions.

The question therefore arises whether, to properly address

Millán's claim of cumulative error, we must determine if there

were any errors in admitting the statements underlying those

As we will explain, we conclude that we need not do so.

Even if we were to assume as to each of those specific challenges

that the District Court erred under Petrozziello in admitting the

relevant statement into evidence as a coconspirator statement made

during and in furtherance of the conspiracy, there still would be

no merit to the claim of cumulative error due to the strength of

- 40 - the other properly admitted (or unchallenged) evidence against

Millán.16

The statements for which we bypassed the question of

Petrozziello error -- and thus the statements that we may assume

were admitted into evidence in violation of that

precedent -- include: (1) those recounted by Cruz regarding La

Ñeta's structure and history; (2) those by de Leon and Loiza

regarding Millán's alleged personal involvement in drug

trafficking; (3) those introduced in testimony by Cruz regarding

the sale of Millán's drugs and Millán's control over and

appointment of La Ñeta leaders; (4) González's testimony that

Millán has "knowledge of everything"; and (5) those recorded in an

In our earlier opinion rejecting Millán's challenges (save 16

for those based on Petrozziello), we resolved two of his disclosure-based challenges, which related to Ruiz and Cruz, under Giglio, 405 U.S. 150. We did so on the ground that no prejudice had been shown. Importantly, to make out a claim under Giglio, the defendant must show not only that the government failed to disclose certain information pre-trial, but also that the failure to disclose was material in that it prejudiced the defendant. See id. at 154; Ramos-Baez, 86 F.4th at 57. Thus, our no-prejudice-based rulings amounted to a conclusion that there was no Giglio violation, rather than a conclusion that there was a violation but that any error was harmless. And, although we left open the possibility that we might reconsider Millán's disclosure-based challenges in light of any Petrozziello errors that we might identify following the proceedings on remand, we now close it, as Millán has not shown that any potential Petrozziello errors should cause us to revisit our prior conclusions rejecting the Giglio-based challenges we disposed of on no-prejudice grounds. We therefore need not consider his disclosure-based challenges in assessing his claim of cumulative error.

- 41 - intercepted phone call regarding Millán's reactions to reports

given to him, and another individual's statement that she had

"something" to "give" to Millán. As to these statements, we must

ask whether, assuming it was error to admit them into evidence,

the cumulative effect of those errors sufficiently calls into

question the verdicts such that we must vacate the convictions

when we consider them in light of the other evidence in the record

as a whole. See Sepulveda, 15 F.3d at 1195-96. We conclude that,

given the otherwise "overwhelming" evidence, United States v.

Castellini, 392 F.3d 35, 52 (1st Cir. 2004), that Millán "knew

about and agreed to facilitate the conspiracy to conduct [La

Ñeta's] affairs through the commission of at least two acts of

racketeering," Ramos-Baez, 86 F.4th at 53 (citation modified),

these statements (even if erroneously admitted under Petrozziello)

do not create the kind of prejudice that would warrant overturning

the convictions.17

17As to Cruz, Millán argues that he identified the speakers on the intercepted phone calls and that the statements those speakers made were "central to the government's case." We previously concluded, however, that Millán had failed to explain how a late disclosure prejudiced him in seeking to exclude those calls. Because Millán does not assert that any Petrozziello-based errors would lead us to conclude otherwise, he has given us no reason to revisit that conclusion. Similarly, Millán does not argue that admission of any of the statements he now challenges renders the inconsistencies in Ruiz's testimony regarding drug quantities and Ruiz's prison disciplinary history, which we previously found insufficiently prejudicial, more harmful. We therefore decline to disturb our prior ruling on that issue as well. We note, finally, that Millán does argue that, if the

- 42 - First, as to the activities of La Ñeta, the record

contains unchallenged testimony from González -- an alleged

coconspirator who pleaded guilty to the RICO

conspiracy -- regarding numerous acts of racketeering that he

personally witnessed or conducted on La Ñeta's behalf. Those acts

included drug sales, which González testified occurred "[e]very

day," and a murder he personally committed under direction of La

Ñeta leadership. González also testified, unchallenged, regarding

La Ñeta's leadership structure, its drug trafficking processes,

the quantities of drugs that La Ñeta moved through numerous prisons

each month, and La Ñeta's processes for sanctioning members who

failed to abide by its rules.

Second, as to Millán specifically, González testified

without challenge from Millán that González personally "work[ed]

the drug tables" with Jowy every day for at least two weeks to

process drugs which Jowy told him -- in a statement we already

deemed admissible above -- had been sent by Millán. González

further testified -- without challenge from Millán -- that he had

personally spoken with Millán multiple times, both by phone and

face-to-face, including regarding drugs that were being sold on

challenged statements were omitted, Ruiz's testimony would become "the primary evidence" against Millán. For reasons we will explain, we disagree, as we conclude that, even without Ruiz's testimony, there is overwhelming evidence of Millán's agreement to participate in the alleged conspiracies.

- 43 - Millán's behalf and which González wanted permission to obtain, as

well as regarding the murder González had committed on direction

of another La Ñeta leader.

Third, Millán does not challenge González's testimony

that, in response to concerns that González communicated to Millán

regarding potential consequences González might face due to his

participation in that murder, Millán told González, "[F]orget

about that. That was an Order from Rolando. Rolando can give it,

because he's one of the first three positions within the maximum

leadership." And González testified, also unchallenged, that

Millán told him that he could tell anyone who "cause[d] an uproar

about [the murder] . . . to call [Millán]." This testimony alone

provides powerful evidence of Millán's knowing agreement to

facilitate the conspiracy, including his control over drug sales

conducted on his behalf and smoothing over member relations

following the commission of illicit acts. See United States v.

Acevedo-Hernández, 898 F.3d 150, 162 (1st Cir. 2018) ("A

defendant's knowing and voluntary participation can be proven

through circumstantial evidence, including inferences from acts

committed by the defendant that furthered the conspiracy's

purposes." (citation modified)); United States v. Rodríguez-Reyes,

714 F.3d 1, 8 (1st Cir. 2013) (concluding that defendants' behavior

"band[ing] together to protect their group's status and

exclusivity" supported finding an agreement to conspire); United

- 44 - States v. Negrón-Sostre, 790 F.3d 295, 312 (1st Cir. 2015)

(concluding that individuals' "regular, ongoing presence and

interaction with each other is certainly strong circumstantial

evidence that they associated themselves with the venture").18

Finally, the intercepted phone calls recount

unchallenged statements regarding Millán's control over the

sanctions that were imposed on members who owed drug debts to La

Ñeta or who broke La Ñeta's rules. Those statements include one

in which Millán himself said he had "personally sent word" to a La

Ñeta member to warn him that he would be punished unless he paid

his debts. There are also numerous admissible coconspirator

statements in intercepted calls that show that La Ñeta members

discussed drug finances and membership issues with Millán, and two

coconspirators made statements in those calls regarding Millán's

involvement in drug operations and the collection of drug finances.

Indeed, in a lengthy intercepted call recording a La Ñeta

leadership meeting that Millán does not challenge, Millán

repeatedly demonstrated an expectation that La Ñeta members would

report to him and defer to his leadership, and he also made several

comments referencing La Ñeta's drug economy.

18The testimony against Millán is even stronger when we take into consideration testimony by Ruiz and Cruz, who -- as noted above -- each testified that they had worked directly with Millán to traffic drugs.

- 45 - Given this substantial body of evidence showing that

Millán "knew about and agreed to facilitate the conspiracy to

conduct [La Ñeta's] affairs through the commission of at least two

acts of racketeering," Ramos-Baez, 86 F.4th at 53 (citation

modified), "[o]n this record, we cannot conclude that there is a

reasonable probability that exclusion of [the statements at issue]

would have altered the outcome of the trial," United States v.

Manon, 608 F.3d 126, 139 (1st Cir. 2010). Accordingly, Millán's

cumulative error challenge fails.

VII.

For the foregoing reasons, we affirm the appellants'

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