United States v. Sandoval

6 F.4th 63

• Court: Court of Appeals for the First Circuit
• Decided: July 7, 2021
• Docket: 18-1993P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 18-1993

UNITED STATES OF AMERICA,

Appellee,

v.

HERZZON SANDOVAL, a/k/a Casper,

Defendant, Appellant.

No. 18-2165

EDWIN GUZMAN, a/k/a Playa,

No. 18-2177

ERICK ARGUETA LARIOS, a/k/a Lobo,

Defendant, Appellant. 19-1026 UNITED STATES OF AMERICA,

CESAR MARTINEZ, a/k/a Cheche,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Selya, and Barron, Circuit Judges.

Madeleine K. Rodriguez, with whom Martin F. Murphy, Christian A. Garcia, and Foley Hoag LLP were on brief, for appellant Herzzon Sandoval. Michael R. Schneider, with whom Good Schneider Cormier & Fried was on brief, for appellant Edwin Guzman. Thomas J. Iovieno on brief for appellant Erick Argueta Larios. Stephen Paul Maidman for appellant Cesar Martinez. Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

July 7, 2021 BARRON, Circuit Judge. In these consolidated appeals,

Herzzon Sandoval, Edwin Guzman, Erick Argueta Larios, and Cesar

Martinez challenge their federal convictions and sentences, which

stem from a wide-ranging federal criminal investigation into La

Mara Salvatrucha ("MS-13") in Massachusetts. We affirm.

I.

MS-13 is a transnational criminal organization based in

El Salvador. In the United States, MS-13 is organized into small

local groups called "cliques." The Federal Bureau of Investigation

("FBI"), the Massachusetts State Police ("MSP"), and other law

enforcement agencies (together, "the Task Force") began an

investigation into MS-13 cliques in Massachusetts in 2012.

As part of this investigation, the FBI developed a

cooperating witness, "CW-1," who was able to become a member of

the "Eastside Loco Salvatrucha," or "ESLS," which is based in

Everett, Massachusetts and held regular meetings at a garage there.

Through CW-1's recordings and surveillance, the Task Force

identified Sandoval, Guzman, Larios, and Martinez as ESLS members

and ESLS as an MS-13 clique. It also identified Sandoval and

Guzman as the "runners" of ESLS, with Sandoval as the group's

undisputed leader and "first word" and Guzman as the group's

"second word." The Task Force identified Larios and Martinez as

ESLS "homeboys," or full members of the group.

- 3 - The Task Force determined that a person became a member

of ESLS by being "jumped in" or "beaten in" -- a process that

involves members forming a circle and beating the individual while

someone counts to thirteen. The Task Force also learned, largely

through CW-1's recordings and surveillance, of multiple stabbings

and attacks, and at least one murder, against MS-13 rivals -- or

"chavalas" -- in which ESLS members were allegedly involved.

In investigating the MS-13 cliques in Massachusetts, the

Task Force used an undercover technique known as a "protection

detail." Pursuant to this technique, CW-1 would recruit an

individual to protect drug shipments that CW-1 transported from

Massachusetts to New Hampshire, in exchange for five hundred

dollars. CW-1 recruited both Larios and Martinez for drug

protection details.

On May 15, 2017, a federal grand jury in the District of

Massachusetts returned a fifth superseding indictment ("FSI")

related to the Task Force's investigation. This indictment charged

over fifty individuals with federal crimes, including the four

defendants who bring the present appeals.

The indictment charged Sandoval, Guzman, Larios, and

Martinez with violating 18 U.S.C. § 1962(d), which makes it a crime

to conspire to violate the Racketeer Influenced and Corrupt

Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. The

indictment identified the conspiracy with which each of these

- 4 - defendants was charged as one that sought to violate § 1962(c) of

RICO. That provision makes it "unlawful for any person employed

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

of which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity."

Id.

"[R]acketeering activity" includes, among other things,

"any act or threat involving murder . . . which is chargeable under

State law and punishable by imprisonment for more than one year."

18 U.S.C. § 1961(1). The indictment specified that the agreed-

upon pattern of activity for each defendant consisted of the

following acts "involving murder": murder, Mass. Gen. Laws ch.

265, § 1; assault with intent to murder, id. § 15; attempt to

murder, id. § 16; armed assault with intent to murder, id. § 18;

and conspiracy to commit murder, Mass. Gen. Laws ch. 274, § 7.

The indictment also charged both Larios and Martinez with an

additional crime -- conspiracy to possess with intent to distribute

and to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

846.

On April 6, 2017, the District Court established four

separate trial groups for the defendants charged in the FSI.

Sandoval, Guzman, Larios, and Martinez were placed in trial group

three, which meant that they would be tried jointly.

- 5 - The joint trial of these four defendants began on January

30, 2018. The jury heard testimony from members of the Task Force

and from two cooperating defendants -- Jose Hernandez Miguel

("Hernandez Miguel") and Mauricio Sanchez ("Sanchez") -- who had

been ESLS homeboys. The government's case also included recordings

-- both audio and video -- that CW-1 had made of ESLS meetings and

conversations with MS-13 members.

After fifteen days of trial and four days of

deliberation, the jury convicted Sandoval, Guzman, and Larios of

violating 18 U.S.C. § 1962(d) but acquitted Martinez on the count

that charged him with that crime. The jury's verdict finding

Sandoval, Guzman, and Larios guilty of committing that offense did

not specify which racketeering acts the jury had found each of

these defendants had agreed would be committed.

The jury found Martinez guilty of conspiracy to possess

with intent to distribute and to distribute cocaine, finding five-

hundred grams or more attributable to and reasonably foreseeable

to him. The jury did not, however, find Larios guilty on the count

that charged him with committing that offense.

The District Court entered the judgments of conviction

and sentenced the defendants in late 2018. Sandoval received a

sentence of 240 months' imprisonment and 3 years of supervised

release; Guzman, 192 months' imprisonment and 3 years of supervised

release; Larios, 180 months' imprisonment and 3 years of supervised

- 6 - release; and Martinez, 72 months' imprisonment and 5 years of

supervised release.

II.

We begin with the sufficiency-of-the-evidence challenges

that Sandoval, Guzman, and Larios bring to their respective

convictions under 18 U.S.C. § 1962(d). We conclude that these

challenges are without merit.

A.

To secure a conviction for committing the RICO

conspiracy offense at issue for each defendant, the government was

required to prove beyond a reasonable doubt that the defendant

"knowingly joined the conspiracy, agreeing with one or more

coconspirators 'to further [an] endeavor which, if completed,

would satisfy all the elements of" the predicate RICO offense.

United States v. Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019)

(quoting Salinas v. United States, 522 U.S. 52, 65 (1997)).

Section 1962(c) is the predicate RICO offense for the RICO

conspiracy offense that each defendant was charged with

committing, and it contains three main elements: "(1) the conduct

(2) of an enterprise (3) through a pattern of racketeering

activity," Salinas, 522 U.S. at 62.

The "pattern of racketeering" element of that offense

"requires at least two acts of racketeering activity" within ten

years of each other. 18 U.S.C. § 1961(5). Thus, to prove the

- 7 - RICO conspiracy charge at issue for each defendant, the government

was required to prove beyond a reasonable doubt that each "agreed

that at least two acts of racketeering would be committed in

furtherance of the conspiracy." United States v. Leoner-Aguirre,

939 F.3d 310, 317 (1st Cir. 2019).

The government contends that a rational jury could

conclude from the evidence in the record that Sandoval, Guzman,

and Larios each agreed that at least two acts of racketeering would

be committed in furtherance of the conspiracy charged. In support

of this contention, the government relies on the evidence in the

record that pertains both to each defendant's ties to ESLS and to

ESLS being an MS-13 clique whose mission was for its members to

attack and kill rivals. In the government's view, the evidence of

the ties between each defendant and ESLS, when combined with the

evidence of ESLS's murderous mission and connection to MS-13 as

well as the evidence that the government introduced about the

nature of MS-13 itself, suffices to permit a reasonable juror to

find beyond a reasonable doubt that each defendant had entered

into the requisite agreement with respect to racketeering acts

involving murder.

After the government presented its case-in-chief,

Sandoval, Guzman, and Larios moved for judgment of acquittal on

the counts charging them with conspiring to violate § 1962(c).

Fed. R. Crim. P. 29(a). Then, at the close of all evidence, the

- 8 - District Court deemed these defendants to have renewed their

motions for judgment of acquittal. The District Court ultimately

denied the motions.

We review preserved challenges to the sufficiency of the

evidence de novo. See United States v. McLellan, 959 F.3d 442,

457 (1st Cir. 2020). We consider the evidence in the record in

the light most favorable to the jury's guilty verdict, Rodríguez-

Torres, 939 F.3d at 29, and inquire whether on that view of the

record "no levelheaded jury could have found [the defendants]

guilty," United States v. Guerrier, 669 F.3d 1, 7 (1st Cir. 2011).

B.

We begin with Sandoval's sufficiency challenge. He does

not dispute that the evidence suffices to show that he was the

leader of ESLS, that ESLS was an MS-13 clique, and that, as the

indictment alleged, MS-13 is an "enterprise" for purposes of RICO.

He also does not dispute that if the evidence suffices to show

that he, as an ESLS member, agreed that two or more murders of

ESLS rivals would be committed by members of ESLS, then the

evidence suffices to show that he committed the charged RICO

conspiracy offense.1 He contends nonetheless that his RICO

1 Sandoval did argue in his opening brief that the government was required to prove that he personally committed or agreed to commit two or more predicate acts. As the government points out, the Supreme Court of the United States rejected this standard in Salinas, 522 U.S. at 65-66. The government thus argues that Sandoval waived an argument that the government failed to meet the

- 9 - conspiracy conviction must be reversed for insufficient evidence,

because he argues that the evidence in the record does not suffice

to show that he entered into such an agreement. We are not

persuaded.

The jury heard evidence that Sandoval, as the leader or

"first word" of the ESLS clique, stated in a conversation with a

prospective ESLS member, Hernandez Miguel, that "when one is jumped

into MS-13, one is aware that one is jumped in to kill or to look

for chavalas." Moreover, Hernandez Miguel testified that Sandoval

made that statement to him in the course of a discussion that

Sandoval had with him about what it would mean for him to "run

with" ESLS, and Sandoval does not dispute that the evidence

suffices to show that ESLS was the MS-13 clique that he led. The

government also introduced evidence that supportably shows that

while Sandoval was leading ESLS, its members committed,

participated in, or assisted MS-13 members who were not themselves

members of ESLS in (1) a 2008 attack near Maverick Square in East

Boston on rivals of ESLS; (2) a December 14, 2014 shooting in

standard set forth in Salinas and Leoner-Aguirre -- proof that the "defendant agreed that at least two acts of racketeering would be committed in furtherance of the conspiracy," Leoner-Aguirre, 939 F.3d at 317 (emphasis omitted). Sandoval does cite this standard in his reply brief and maintains that the evidence was insufficient to show even agreement of this sort. For present purposes, we will treat this argument as preserved, given that Sandoval's sufficiency challenge cannot succeed even if it is. See United States v. Leavitt, 925 F.2d 516, 517 (1st Cir. 1991).

- 10 - Chelsea, Massachusetts, in which Javier Ortiz, an ESLS rival, was

killed; (3) a May 12, 2015 stabbing in Boston's Highland Park of

a rival gang member; (4) a December 27, 2015 attack on a rival

gang member in Chelsea; and (5) a January 1, 2016 stabbing of a

rival gang member in Chelsea.

What is more, the government introduced evidence that

supportably shows that Sandoval spoke at CW-1's request with yet

another individual, Joel Martinez, on December 6, 2015, about his

possibly joining the ESLS clique and that thereafter this

additional prospective ESLS member was involved in carrying out

both the December 2015 and the January 2016 attacks referenced

above. The evidence at trial supportably shows, moreover, that

this conversation between Sandoval and Joel Martinez about the

latter joining ESLS occurred at a time when Sandoval knew that --

or at least was operating under the impression that -- Joel

Martinez had recently killed Irvin de Paz, who was described as a

"chavala." Indeed, the evidence supportably shows that Sandoval

explained to Joel Martinez in the conversation about his becoming

a member of ESLS that, because everyone in ESLS would have to agree

to him joining the clique, the other ESLS members wanted to meet

him, let him "find out to how [ESLS] think[s] as a group," and

make sure that his "way of thinking coordinates with [ESLS's]."

It is thus significant that credible evidence introduced

at trial supportably shows that when ESLS members met the following

- 11 - month, on January 8, 2016, to discuss jumping Joel Martinez into

the clique, Luis Solis Vasquez, an ESLS member, mentioned that

Joel Martinez had committed two attacks "in a short time." It is

significant, too, that evidence in the record supportably shows

that Sandoval then told the group at that meeting that "[Joel

Martinez] was doing the things that he's supposed to be doing,"

and that Joel Martinez was jumped in as a "homeboy" for ESLS that

same day.

Considered as a whole, the evidence reviewed above

suffices to permit a rational juror to find that the mission of

ESLS, as an MS-13 clique, was to murder and attempt to murder its

rivals, that Sandoval knew that this was ESLS's mission, and that

he agreed to facilitate that mission through his leadership role

in that clique. Given that the conspiracy offense set forth in 18

U.S.C. § 1962(d) does not require the government to prove that the

charged acts of racketeering were actually committed by either the

defendant charged with the conspiracy or by others, Salinas, 522

U.S. at 65; Rodríguez-Torres, 939 F.3d at 29 ("All the government

need show is that the defendant agreed to facilitate a scheme in

which a conspirator would commit at least two predicate acts, if

the substantive crime occurred." (emphasis added)), no more

evidence was needed to support a finding by a reasonable juror

that the agreement element of this conspiracy offense had been

proved beyond a reasonable doubt, see United States v. Cianci, 378

- 12 - F.3d 71, 90 (1st Cir. 2004) (explaining that "[t]he conspiratorial

agreement need not be express so long as its existence can

plausibly be inferred from the defendants' words and actions and

the interdependence of the activities and persons involved"

(alteration in original) (quoting United States v. Boylan, 898

F.2d 230, 241-42 (1st Cir. 1990))). We therefore reject Sandoval's

sufficiency challenge to his RICO conspiracy conviction.

C.

Guzman's sufficiency challenge to his § 1962(d)

conviction necessarily fails insofar as it rests on contentions

like those that we have just rejected. But, Guzman does also make

some additional arguments that we must separately address.

First, Guzman argues that the evidence at trial

indicated that the mission of MS-13 was to "look for," "stab," or

"attack" rivals, or to "commit generic 'violence,'" but that none

of this conduct itself constitutes an act of racketeering. He

thus contends that the evidence of the requisite "agreement" that

two or more acts of racketeering would be committed in furtherance

of the conspiracy was insufficient in his case.

Guzman supports this contention with precedents in which

the jury was presented with alternative theories of guilt, one of

which was legally invalid. E.g., United States v. Nieves-Burgos,

62 F.3d 431, 435-36 (1st Cir. 1995) (explaining the rule that when

a "jury returns a guilty verdict on an indictment charging several

- 13 - acts in the conjunctive," the verdict must be set aside where "one

of the possible bases of conviction was legally erroneous" and it

"is impossible to tell which [basis] the jury selected" (first

quoting Turner v. United States, 396 U.S. 398, 420 (1970); and

then quoting Yates v. United States, 354 U.S. 298, 312 (1957))).

Here, however, the District Court clearly instructed the jury about

which RICO predicate acts the government had to prove the

defendants agreed that a member of the conspiracy would commit and

explained that those acts did not include armed assault with intent

to kill, assault and battery, or assault and battery with a

dangerous weapon. Thus, there is no force to this aspect of

Guzman's challenge, at least so long as the evidence suffices to

permit a reasonable juror to find that the mission of ESLS was to

commit racketeering acts that were charged in the indictment, such

as murder and assault with intent to murder.

Guzman does also contend that the evidence shows that he

"joined ESLS as a young man at a time when far fewer violent acts

were being committed" and that, by the time that the Task Force

investigation was underway, he "had become a hardworking, married

man with children, who sought to distance himself from the violent

acts" of the more violent members who "resented him and targeted

him." Guzman thus likens his situation to that of the defendant

in the Fourth Circuit's unpublished decision in United States v.

Barnett, 660 F. App'x 235 (4th Cir. 2016), which ruled that the

- 14 - defendant's association with a gang was insufficient to show that

she agreed to the commission of racketeering acts. Id. at 248.

But, as we have explained, the evidence suffices to show

that the very mission of ESLS included the commission of the

predicate racketeering acts involving murder. Moreover, the jury

heard testimony from Hernandez Miguel about an episode some time

before he was removed to El Salvador in 2009 in which he and Guzman

"smashed [a chavala's] face with beer bottles" and about Guzman

providing him with clean clothes after the May 12, 2015 stabbing

in which Hernandez Miguel had participated. Thus, even if, as

Guzman contends, neither of these incidents itself involved the

commission of a charged racketeering act, the testimony from

Hernandez Miguel about those incidents -- especially given the

recency of the second of them -- still suffices to support a

plausible inference that Guzman was aware that ESLS's mission came

to include murder or attempted murder of rival gang members during

the course of his membership in it. After all, jurors are

permitted to make reasonable inferences, drawing on common sense,

about such matters as whether a member of a gang that has been

shown to have a mission of killing or attempting to kill rivals

would have known of that mission if he was involved in it as a

member both in helping to commit a violent attack on a rival and

in helping a member clean up after stabbing a rival. Accordingly,

- 15 - we reject Guzman's sufficiency challenge to his conviction for

violating § 1962(d).

D.

The last of the sufficiency challenges that we must

address is the one that Larios brings. He contends that the

evidence about the mission of MS-13 and ESLS cannot support a

finding of the requisite agreement as to him not only because of

when he joined the clique but also because there was no evidence

that he held a leadership position in it. In particular, Larios

contends that any inferences that could permissibly be drawn from

Hernandez Miguel's testimony about how Hernandez Miguel understood

the goals of the ESLS clique in 2009 would not suffice to permit

a similar inference to be drawn about how Larios understood that

clique's mission during his membership in it, given that Larios

joined that clique years later in 2013. Larios asserts in this

regard that the only evidence that the government presented that

described the goals and mission of ESLS or MS-13 as of the time

that Larios joined the clique was Sanchez's testimony that the

rules when he joined in 2013 were (1) "[a]ttend the meetings";

(2) "[n]ot let a homeboy down"; and (3) "[r]epresent [MS-13]

through colors" and "be[] solid" with MS-13.

This argument fails to account, however, for all the

evidence in the record. For example, Sanchez went on to explain

in his testimony that "being solid" with MS-13 meant having the

- 16 - organization's respect, which one earned by "[d]oing hits on the

rivals and the chavalas." Thus, there is evidence that at the

time Larios joined the clique in 2013, respect was earned by "doing

hits." And, the evidence also supportably shows that Larios was

present at Joel Martinez's jump-in and for the discussions about

Joel Martinez's attacks on rival gang members that preceded it.

In addition, the jury heard evidence both that Larios requested a

"green light" from Sandoval to kill CW-1, on suspicion that CW-1

was an informant, in 2015 and that Larios was given a clique

handgun around 2014 or 2015 after he had been shot at by chavalas,

so that "he could also shoot."

Accordingly, we conclude that the evidence, when

considered as a whole and in the light most favorable to the jury's

verdict, Guerrier, 669 F.3d at 7, suffices to support an inference

that Larios knew that such killings and attempted killings of

rivals were part of MS-13's practice and mission and that he agreed

to further that mission as a member of ESLS -- indeed, by

committing predicate acts himself if need be. We therefore

conclude that a rational jury could find beyond a reasonable doubt

that Larios agreed that at least two acts of murder or attempted

murder would be committed in furtherance of the conspiracy.

III.

Sandoval, Guzman, and Larios next contend that even if

their sufficiency challenges fail, their convictions must be

- 17 - vacated due to the District Court's error in denying a motion for

a continuance due to pretrial publicity. These same three

defendants then separately bring a related challenge, which

Martinez also joins on appeal, to the District Court's denial of

a motion for a mistrial due to certain questions jurors raised

regarding their safety after the trial was underway. They contend

that this error, too, requires that their convictions be vacated.

We find no merit, however, to either of these claims of error,

which we consider in turn.

We start with the challenge based on the denial of the

continuance motion. We describe the relevant facts and procedural

history before turning to our analysis of the merits.

1.

On the evening of the first day of jury empanelment --

January 30, 2018 -- President Trump delivered his State of the

Union address. The next morning, Sandoval moved to continue the

trial until March 2018 to "permit the impact of the President's

remarks to dissipate."

The motion contended that the President's address

"sharply condemned MS-13," describing its members as "savage" and

its crimes as "brutal[]." The motion also highlighted the fact

that media coverage of the address included emotional footage of

grieving families whose children were said to have been murdered

- 18 - by MS-13 members and whom the President had invited to the Capitol

for the address.

The District Court denied the motion, in which Larios

and Guzman had joined. The District Court indicated that it would

ask the jurors an open-ended question about whether they had "heard

or seen anything about MS-13," and it then proceeded to ask the

jurors if any of them had "learned or seen or read anything about

MS-13 prior to coming into court" that day. In response, seven

prospective jurors -- none of whom were empaneled -- specifically

mentioned the State of the Union address.2

2.

The three defendants who join in this challenge on appeal

-- Sandoval, Guzman, and Larios -- argue that the steps that the

District Court took to address the concern about pretrial publicity

raised in the motion were inadequate and that, even though none of

the empaneled jurors mentioned hearing or seeing the President's

statements, the District Court should have presumed prejudice

among the members of the jury pool as a result of the media coverage

of President Trump's comments about MS-13. The three defendants

2 One juror had already mentioned "hear[ing] the President's speech last night" in response to another question; this juror was also not empaneled.

- 19 - thus contend that the District Court abused its discretion in

denying the motion for a continuance.3

We may assume that all three defendants preserved their

challenge to the denial of this motion, such that our review of

that denial is for manifest abuse of discretion, see West v. United

States, 631 F.3d 563, 568 (1st Cir. 2011). For, as we will explain,

even under that standard of review, the challenge is without merit.

These defendants rely chiefly on our pretrial publicity

cases in arguing that the District Court erred in not presuming

prejudice. But, while those cases provide that prejudice should

be presumed "where 'prejudicial, inflammatory publicity about [a]

case so saturated the community from which [a defendant's] jury

was drawn as to render it virtually impossible to obtain an

impartial jury,'" United States v. McNeill, 728 F.2d 5, 9 (1st

Cir. 1984) (alterations in original) (quoting United States v.

Chagra, 669 F.2d 241, 250 (5th Cir. 1982)),4 none of the cases

3 The defendants do not make any claim that the District Court conducted an inadequate voir dire. Cf. United States v. Tsarnaev, 968 F.3d 24, 56-62 (1st Cir. 2020), cert. granted, 141 S. Ct. 1683 (2021); United States v. Lazo, 816 F. App'x 752, 760-62 (4th Cir. 2020) (considering requested voir dire questions in an MS-13 case in light of the 2018 State of the Union address). 4 The case law also establishes a second approach to presuming prejudice, which permits the presumption "where 'enough jurors admit to prejudice to cause concern as to any avowals of impartiality by the other jurors.'" United States v. Casellas- Toro, 807 F.3d 380, 386 n.3 (1st Cir. 2015) (quoting United States v. Orlando-Figueroa, 229 F.3d 33, 43 (1st Cir. 2000)). The

- 20 - these defendants cite establishes that the presumption of

prejudice must (or even may) be applied when the pretrial publicity

did not concern the particular defendants in the case, cf., e.g.,

United States v. Casellas-Toro, 807 F.3d 380, 388 (1st Cir. 2015)

(presuming that pretrial publicity prejudiced defendant in federal

prosecution where there was "'[m]assive' and 'sensational'

publicity" of the defendant's state trial for "an intertwined,

heinous crime"). Nor are we aware of any other authority that

supports the application of such a presumption in these

circumstances.

Moreover, although the government's case against these

defendants on the RICO conspiracy charge that each faced did rely

in significant respects on evidence concerning the nature of MS-

13 as a transnational criminal organization, that case ultimately

depended on what the evidence showed about each of their ties to

ESLS and their knowledge of the mission of that particular MS-13

clique rather than merely on the nature of MS-13 itself. Thus,

given the District Court's voir dire and its instructions

repeatedly reminding the jury that it was required to consider

each defendant's guilt individually, we reject the contention that

the District Court abused its discretion in denying the motion for

the continuance. See McNeill, 728 F.2d at 9 ("Even setting aside

defendants make no argument for a presumption of prejudice on this ground.

- 21 - for a moment the significant fact that . . . newspaper articles

focused on another person (albeit one in a similar predicament),

the contents of those articles would not have the inevitable result

of convincing prospective jurors that McNeill was guilty as

charged.").

We next consider the challenge that all four defendants

-- including Martinez -- bring to the District Court's denial of

a motion for a mistrial that was based on an alleged "climate of

fear" among the jurors. Here, too, we conclude that the District

Court did not manifestly abuse its discretion. See United States

v. Chisholm, 940 F.3d 119, 126 (1st Cir. 2019).

On the fourth day of trial, during which the government

presented testimony that MS-13's "position concerning informants"

was that its members would kill them, the District Court received

two notes from jurors. One of the notes asked whether jurors'

names would be made public or made available to the defendants.

The other note asked, "Should I worry about my safety[?]"

As the trial progressed, the government asked Hernandez

Miguel during his testimony on February 8, 2018, what he thought

MS-13 would do to him as a result of his testimony. He responded

that the rules of MS-13 provide that when someone testifies against

another member of that organization, its members will "kill him

- 22 - and also kill his family." Hernandez Miguel then went on to say

that "if something happens to my family, it will be their fault,"

and the District Court struck that statement.

The next day the District Court informed counsel that it

had received two additional notes from jurors expressing concerns

about their own safety. One of these notes asked whether the

jurors' identities were being revealed to the defendants. The

other note asked whether there were known cases of MS-13 affiliates

harming jurors -- or the families of jurors -- who had to

deliberate about crimes committed by other MS-13 members and stated

that "[t]his is a concern of multiple jurors."

In response, the District Court addressed the jurors,

without the defendants present (but with their attorneys in

attendance). The District Court told the jurors that there was

"no reason for concern" and no reason to believe that there was a

threat of violence to any of them. The District Court further

explained to the jurors at that time that actions had been taken

to protect their anonymity, and the District Court reminded the

jurors that they were obliged to render a verdict without any fear

of consequences and that they were not to discuss the case among

themselves prior to deliberations. The District Court then

conducted an individual voir dire to ask the jurors whether they

thought they could still render a fair verdict and to discuss any

remaining concerns.

- 23 - The District Court discharged one juror based on that

individual's responses to the individual voir dire.5 All of the

remaining jurors had confirmed during that voir dire that they

would be able to render a fair verdict without fear of

consequences, with the exception of one juror who indicated that

he was "95 percent confident that he could do so." That juror was

an alternate, however, who did not participate in returning the

verdict in this case.

At the end of the process, Sandoval's counsel moved for

a mistrial. He pointed to an alleged "climate of fear" reflected

by the notes from the jurors, as well as both an "undercurrent of

discussion about the testimony" despite the Court's instructions

and what he alleged was a lack of candor in some jurors' voir dire

responses. The other defendants joined this motion, which the

District Court denied.

A trial judge has "wide discretion" in responding to

concerns about juror impartiality and determining appropriate

remedial measures to ensure it. United States v. Tejeda, 481 F.3d

44, 52 (1st Cir. 2007) (quoting United States v. Rodríguez-Ortiz,

455 F.3d 18, 23 (1st Cir. 2006)). In this case, the District Court

had the opportunity to "observe[] the demeanor of each juror,"

5 This dismissal did not appear to be entirely related to a fear of consequences.

- 24 - id., and stated that it was "confident based on the voir dire,"

the instructions given, and the jurors' reaction to the

instructions that the jurors would be able to reach a fair and

impartial verdict. Because the trial judge is usually in the best

position to make such a determination, "'it is only rarely -- and

in extremely compelling circumstances -- that [we], informed by a

cold record, will venture to reverse a trial judge's on-the-spot

decision' that the interests of justice do not require aborting an

ongoing trial." Chisholm, 940 F.3d at 126 (alteration in original)

(quoting United States v. Georgiadis, 819 F.3d 4, 16 (1st Cir.

2016)). We see no basis on this record for concluding that the

interests of justice would require that extreme consequence here,

given the steps that the District Court took to address the concern

reflected in the notes from jurors.

The defendants do assert that the District Court's

remedial actions were demonstrably insufficient. They point out

that one week after the individual voir dire responding to jurors'

expressions of fear, the District Court received a note from a

juror that indicated that one juror had attempted on multiple

occasions to engage other jurors -- who were following instructions

-- in conversation about the case, despite the District Court's

emphasis during the individual voir dire on not discussing the

case. Cf. Tejeda, 481 F.3d at 53 (explaining that court instructed

the jury not to discuss threatening incident and that "those who

- 25 - were later questioned said the jurors had complied with that

instruction").

But, the District Court investigated this issue,

including by following up with that very juror, who indicated to

the District Court in response that there had been no discussion

of the merits of the case and that he was not attempting to sway

or deliberate with other jurors. The District Court then went on

to remind that juror of the critical importance of not engaging in

any discussion about the case of any kind prior to the jury's

deliberations, and no defendant thereafter objected to the

handling of the issue.6 We thus conclude that the District Court

did not abuse its considerable discretion in declining the "last-

resort remedy" of ordering a mistrial. Chisholm, 940 F.3d at 126.

IV.

We turn our focus, then, to a set of challenges that

Sandoval, Guzman, and Larios bring concerning the testimony of FBI

Supervisory Special Agent Jeffrey Wood, as they contend that their

convictions must be vacated in consequence of errors that were

made with respect to admitting the testimony that he provided at

trial. Once again, we conclude that the challenges fail.

6 Nor do the defendants point to any expressions of fear from the jurors after that individual voir dire on February 9, 2018.

- 26 - A.

We first consider Sandoval, Guzman, and Larios's

contention that the District Court abdicated its gatekeeping role

in permitting Wood to testify as an expert regarding MS-13. We do

not agree.

A trial court's gatekeeping obligation with respect to

the admission of expert testimony applies to nonscientific

evidence, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999),

and the parties here agree that the District Court had such an

obligation with respect to Agent Wood's testimony about MS-13 and

the nature of its operations. But, our review of whether the

District Court's manner of performing its gatekeeping function

amounted to an abdication of that role is only for abuse of

discretion, see United States v. Phillipos, 849 F.3d 464, 471 (1st

Cir. 2017), and we conclude that there was none with respect to

the District Court's assessment of Agent Wood's ability to testify

as an expert, see United States v. Lopez-Lopez, 282 F.3d 1, 14

(1st Cir. 2002) (finding "no reason to believe that the district

court somehow failed to perform its gatekeeping function" where,

"outside of the presence of the jury, . . . [it] heard defense

counsel's objections" and found that the agent's "testimony was

based on his experience"); United States v. Diaz, 300 F.3d 66, 73-

74 (1st Cir. 2002) (explaining that there is "no particular

- 27 - procedure that the trial court is required to follow in executing

its gatekeeping function").

Before trial, the government informed the defense that

it would offer expert testimony regarding the history, structure,

and organization of MS-13. Sandoval, Larios, and Martinez all

moved in limine to exclude the proposed expert testimony. At the

final pretrial conference, the District Court carefully considered

the defendants' motions in limine and Sandoval's request for a

Daubert/Kumho hearing with respect to Agent Wood testifying as an

expert, which was premised on the notion that such a hearing could

provide more information about the qualifications and trainings

listed in the expert disclosure.

The government maintained, however, that no hearing was

necessary to determine Wood's qualifications to so testify. It

noted in that regard the detailed expert disclosure that had been

made regarding Wood's qualifications and the availability of his

testimony in an earlier trial before the District Court stemming

from the same investigation.

Notwithstanding the government's contention that there

was no need for a hearing on Agent Wood's qualifications, the

District Court permitted the defendants to seek additional

information about Wood's background and the basis for his

testimony. Furthermore, the District Court indicated that it would

- 28 - revisit whether to hold a voir dire of Wood on the basis of that

information.

Then, on the first day of trial, the District Court ruled

that the background information about the operation of MS-13 was

an appropriate subject of expert testimony. It acknowledged that,

as in other cases in which expert testimony aids the jury in

understanding the operation of complex criminal schemes, the

knowledge is "not acquired due to some kind of scientific

methodology" but instead is based on law enforcement trainings and

materials and information gained in the course of investigation.

The District Court found this foundation of knowledge to be an

appropriate basis for expert testimony on issues like MS-13's

hierarchy and structure and indicated that cross-examination and

objections could ensure that Agent Wood was not drawing

inappropriate conclusions from unduly small data sets in providing

his testimony on those topics as an expert witness. Finally, the

District Court found that Wood's background and experience

sufficed to enable him to testify about MS-13's history, structure,

organization, rituals, rivals, and mission, due to knowledge that

he had accrued through speaking to law enforcement professionals

and cooperators and reviewing videos, photographs, and law

enforcement presentations and materials.

We have recognized that in the law enforcement field an

"expert's experience and training bear a strong correlation to the

- 29 - reliability of the expert's testimony." United States v. Martinez-

Armestica, 846 F.3d 436, 444 (1st Cir. 2017) (quoting United States

v. Jones, 107 F.3d 1147, 1155 (6th Cir. 1997)); see also Fed. R.

Evid. 702 advisory committee note to 2000 amendments ("In certain

fields, experience is the predominant, if not sole, basis for a

great deal of reliable expert testimony."). The record suffices

to show that Wood's "training and experience support the

reliability of his testimony" regarding those general matters

concerning MS-13's operations, Martinez-Armestica, 846 F.3d at

445, as the record shows that he had significant experience

investigating MS-13, reviewing information about MS-13, and

speaking to law enforcement officials and MS-13 members about the

organization and the way that it functions.

The three defendants who join this challenge nonetheless

contend that there was insufficient information put forward in

support of Wood testifying as an expert about, for example, how

many individuals had spoken with him and the percentage of those

conversations that supported his opinions and conclusions

concerning MS-13. But, these defendants cite no authority

providing that a district court must conduct a probing inquiry of

that degree of intensity into an expert witness's expertise when

it is founded on that witness's experience, as Wood's is.

Moreover, the District Court permitted the defense at trial to

elicit information about the underlying conversations that Agent

- 30 - Wood asserted informed his expert opinions regarding the

operations of MS-13 so that the jury could factor that into its

assessment of the weight to be accorded to Wood's testimony. Thus,

we reject the claim that the District Court abused its discretion

in permitting Wood to provide expert testimony by failing to

fulfill its gatekeeping role. See Martinez-Armestica, 846 F.3d at

445.

These same three defendants next contend that the

District Court erred by permitting Wood to provide testimony that

went beyond the scope of proper expert testimony. Here, too, we

review for abuse of discretion. See United States v. Montas, 41

F.3d 775, 783 (1st Cir. 1994).

The defendants distinguish between what they call

"conventional topics of gang testimony" -- information about MS-

13's structure, organization, history, colors, tattoos, and rivals

-- and other subjects "highly prejudicial" to the defendants. But,

the testimony that the defendants contend falls into this latter

category -- specifically, information about the mission of MS-13,

the requirements to join MS-13, MS-13's treatment of suspected

informants, and the interactions between El Salvador and U.S. MS-

13 cliques -- was fairly within the scope of the information about

MS-13's modes of operation generally. And that is a subject that

the District Court reasonably found to be one for which expert

- 31 - testimony would aid the jury and one on which Wood was qualified

to testify. See Montas, 41 F.3d at 783 ("We have admitted expert

testimony regarding the operation of criminal schemes and

activities in a variety of contexts, finding such testimony helpful

to juries in understanding some obscure or complex aspect of the

crime."); United States v. Angiulo, 897 F.2d 1169, 1189 (1st Cir.

1990) (upholding admission of expert testimony that "assist[ed]

the jury to understand the often complex structure of organized

crime activities"); see also, e.g., United States v. Mejia, 545

F.3d 179, 189-90, 195 (2d Cir. 2008) (collecting cases upholding

law enforcement officers' expert testimony on topics like

"membership rules" and "organizational hierarchy" and explaining

that the decision to permit such expert testimony "reflects [the]

understanding that . . . law enforcement officers may be equipped

by experience and training to speak to the operation, symbols,

jargon, and internal structure of criminal organizations"); United

States v. Rios, 830 F.3d 403, 413-16 (6th Cir. 2016) (explaining

that law enforcement experts in organized crime cases "may properly

give expert testimony 'on the structure, the organization, [and]

the rules' of the organized-crime entity" but distinguishing

testimony as to "specific criminal actions," as that information

is "well within the average juror's ability to understand"

(alteration in original) (quoting United States v. Tocco, 200 F.3d

401, 418 (6th Cir. 2000))); United States v. Garcia, 793 F.3d 1194,

- 32 - 1213 (10th Cir. 2015) (noting that "[e]xpert testimony about a

gang's history, territory, colors, hand signs, graffiti use,

naming practice, tattoos, structure, membership rules, and similar

sociological evidence can assist the jury in understanding and

evaluating evidence concerning the specific crimes charged," but

distinguishing testimony about specific events).

That some of Wood's expert testimony about the rules and

operation of MS-13 was more prejudicial than other forms of general

gang testimony also does not mean, as the defendants suggest, that

it was necessarily improper as expert testimony. The District

Court acted within its discretion in determining that the

testimony's prejudicial effect did not substantially outweigh the

testimony's probative value. See Montas, 41 F.3d at 784 ("[T]he

trial court enjoys vast discretion in deciding whether to admit

expert testimony under Rules 702 and 403."); see also Angiulo, 897

F.2d at 1189 (upholding expert testimony about defendants' roles

in the criminal organization, recognizing that "although this type

of testimony posed some risk of prejudicing the defendants, it was

particularly helpful in assisting the jury to understand the often

complex structure of organized crime activities").

We also reject the contention that the District Court

abused its discretion in admitting Wood's testimony insofar as

that contention is premised on the fact that some of that testimony

was not proper for an expert witness to provide because it did not

- 33 - constitute expert opinion at all and instead constituted testimony

that only a fact witness could give. The problem with this

contention is that Wood testified not only as an expert about MS-

13's operations but also as a fact witness due to his role on the

Task Force that conducted the investigation into ESLS. Compare

United States v. Flores-De-Jesús, 569 F.3d 8, 26 (1st Cir. 2009)

("[Agent's] testimony was permissible to the extent that he was

testifying either 1) as a case agent describing the course of the

investigation and events in which he had personally participated,

or 2) as an expert whose testimony provided background and context

on drug conspiracies and distribution in public housing projects

in Puerto Rico."), with Mejia, 545 F.3d at 196 (noting that the

witness "was proffered and testified . . . only as an expert,"

such that the "parts of his testimony that involved purely factual

matters, as well as those in which [he] simply summarized the

results of the Task Force investigation, fell far beyond the proper

bounds of expert testimony").

To be sure, "'courts must be mindful when the same

witness provides both lay and expert testimony' because of the

heightened possibility of undue prejudice," which is a concern

that "is especially acute where the dual roles of expert and fact

witness are filled by a law enforcement official." Flores-De-

Jesús, 569 F.3d at 21 (citation omitted) (quoting United States v.

Upton, 512 F.3d 394, 401 (7th Cir. 2008)). But, there is no per

- 34 - se prohibition against a witness testifying in both capacities.

See id. Moreover, the District Court explained to the jury that

Wood was "testifying about what he did in the course of th[e]

investigation" and that "because of his training and education, he

knows certain things about MS-13." It further instructed the jury

to be mindful of distinguishing those roles in evaluating a

witness's testimony and clarified at certain points that Wood was

testifying as to a general proposition based on his claimed

"special knowledge" about the gang generally and not about the

individual defendants. The District Court also directed the

government to make that line clear, and Wood was not referred to

as an expert before the jury. See United States v. Garrett, 757

F.3d 560, 569 (7th Cir. 2014) (noting that in the case of such

dual-capacity witnesses, "[a]voiding the use of the term 'expert'

goes a long way in reducing the possibility that jurors will attach

'undue weight' to the testifying officer's fact testimony"

(quoting United States v. Cheek, 740 F.3d 440, 447 (7th Cir.

2014))). Thus, there was no abuse of discretion on this score

either.

We move on, then, to Sandoval, Guzman, and Larios's

federal constitutional challenge concerning Agent Wood's

testimony, which these defendants base on the Confrontation

Clause. See U.S. Const. amend. VI. We may assume that this

- 35 - challenge is preserved as to all three defendants, see United

States v. Ramos-González, 664 F.3d 1, 4 (1st Cir. 2011) (counsel's

objection concerning witness's lack of personal knowledge

sufficiently raised Confrontation Clause issue), because, even on

the understanding that our review is de novo, id., the

Confrontation Clause challenge still fails.

The defendants broadly assert that Wood's testimony was

a regurgitation of conversations that he had with law enforcement

officers in the United States and El Salvador. The defendants

acknowledge that properly qualified experts whose work is based on

reliable principles and methods may rely on inadmissible hearsay

evidence in forming an expert opinion without running afoul of the

Confrontation Clause in then relaying that opinion, once formed,

through their own testimony. See Fed. R. Evid. 703; United States

v. De La Cruz, 514 F.3d 121, 133-34 (1st Cir. 2008). But, the

defendants contend, Wood's testimony was not the product of

"reliable principles and methods" from which he could provide

expert opinions drawn from his conversations with law enforcement.

Thus, they contend, he necessarily served in providing his

testimony merely as a "conduit for testimonial hearsay." Ramos-

González, 664 F.3d at 5.

The only portions of Wood's testimony that the

defendants appear to challenge concern the information pertaining

to MS-13 that Wood obtained in conversation with law enforcement

- 36 - officers. Nonetheless, the defendants do not point to any

particular testimony that conveyed the content of particular

interviews or parroted the conclusions of others. See United

States v. Johnson, 587 F.3d 625, 635-36 (4th Cir. 2009)

(contrasting cases in which experts make "direct reference to the

content of . . . interviews" from those in which experts

"present[] [their] independent judgment and specialized

understanding to the jury"). Instead, they assert that Wood

"failed to explain his process for 'amalgamating the potentially

testimonial statements.'" Reply Br. of Appellant Herzzon Sandoval

14 (quoting Rios, 830 F.3d at 418).

We have already rejected, however, the defendants'

challenge to Wood's testimony based on the contention that the

principles and methods that he relied on to form his expert opinion

were inadequate to permit him to offer expert testimony. And,

given that conclusion, the defendants' acknowledgement that Wood

did "amalgamat[e]" the potential information he relied upon

fatally undercuts their Confrontation Clause claim. See Rios, 830

F.3d at 418 ("When an expert's understanding of the inner workings

of a criminal organization stems in significant part from . . .

activities [like interviews and interrogations], courts have

agreed that it is the process of amalgamating the potentially

testimonial statements to inform an expert opinion that separates

an admissible opinion from an inadmissible transmission of

- 37 - testimonial statements."); see also Mejia, 545 F.3d at 197-98

(recognizing difference between an expert "synthesi[zing] . . .

various source materials" and "repeating information he had heard

or read"); Garcia, 793 F.3d at 1214 (concluding that gang expert's

statement merely "relayed what . . . gang members told him" where

it "involve[d] . . . no calibrated judgment based on years of

experience and the synthesis of multiple sources of information").

Therefore, even assuming that Wood did rely on testimonial

statements in offering his expert testimony regarding MS-13, we

find on this record that his testimony did not run afoul of the

Confrontation Clause because it reflected his independent

judgment, gleaned from years of experience studying MS-13.

Sandoval, Guzman, and Larios relatedly contend that the

District Court improperly limited the scope of the defense's cross-

examination of Wood concerning CW-1 in a way that impaired their

rights under the Confrontation Clause. We conclude that this

challenge also is without merit.

In the early stages of the Task Force's Massachusetts

MS-13 investigation, the FBI began developing CW-1 as a cooperating

witness. CW-1 was brought to Boston from El Salvador -- the

country to which he had been removed after serving a federal prison

sentence -- around 2013, and initially posed as a drug dealer.

- 38 - Hernandez Miguel introduced CW-1 to ESLS and, around 2014, CW-1

was jumped in to the ESLS clique.

Wood was not the case agent when CW-1 was first brought

on as an informant or when CW-1 infiltrated the ESLS clique, but

he was involved in the investigation as of those times. And, after

Wood became the case agent in 2015, he began the process to enter

CW-1 into the witness protection program.

Shortly thereafter, according to Wood's testimony, he

became aware of information indicating that CW-1 had committed

serious violent crimes throughout the course of the investigation.

Wood met with CW-1 about these concerns in December 2015, and CW-

1 denied involvement. CW-1 was admitted into the witness

protection program but was terminated from the program over a year

later.

The defendants sought to cross-examine Wood about CW-

1's termination from witness protection and about the details of

CW-1's "crime spree." The District Court repeatedly questioned

the relevance of this information in the absence of CW-1 being

called as a witness or the government introducing evidence about

the value that CW-1 provided to the FBI or the good things that

CW-1 did. The District Court also noted that CW-1, who did not

testify, could not be impeached through Wood.

Sandoval's counsel argued in response that the

information about CW-1 went to Wood's credibility, as Wood had

- 39 - "been presented as a person who conducted a detailed thorough

investigation" and evidence that a critical witness he relied on

was "out there committing crime" under his nose was "relevant to

[Wood's] overall credibility." The District Court ultimately

ruled that it would permit cross-examination of Wood to "elicit in

bare bones fashion that CW-1 committed serious crimes, if this is

what happened, during the time that he was a cooperating witness

and leave it at that, nothing further."

Sandoval, Guzman, and Larios contend that their

Confrontation Clause rights were infringed by the District Court's

ruling limiting cross-examination of Wood about both CW-1's

commission of serious crimes while serving as an informant for the

FBI and CW-1's involvement with and termination from the witness

protection program. When a challenge to a district court's

decision to limit cross-examination has been properly preserved,

we review de novo the district court's "conclusion that, even

though cross-examination was limited, the defendant was afforded

sufficient leeway to establish a reasonably complete picture of

the witness' veracity, bias, and motivation." United States v.

Jiménez-Bencevi, 788 F.3d 7, 21 (1st Cir. 2015) (quoting United

States v. Capozzi, 486 F.3d 711, 723 (1st Cir. 2007)).7 If this

7 The government contends that the defendants forfeited their Confrontation Clause claim regarding the limits on Agent Wood's

- 40 - "threshold is satisfied, we 'review the particular limitations

only for abuse of discretion.'" Id. (quoting United States v.

Martínez-Vives, 475 F.3d 48, 53 (1st Cir. 2007)).

We may assume that the challenge at issue has been

properly preserved by each defendant, as the District Court's

ruling limiting cross-examination of Wood still permitted the

defense to "paint for the jury a complete picture" and thus

"afforded a reasonable opportunity to impeach" Wood. Id. (quoting

Martínez-Vives, 475 F.3d at 53). The District Court's ruling did

not bar any defendant from using cross-examination to call

attention to issues related to the quality of the information that

Wood was relying upon, and, more specifically, to raise concerns

about the veracity of those he was speaking to when forming his

opinions. The District Court's ruling also did not prevent

testimony from being elicited from Wood that he had learned that

"CW-1 had committed some serious violent crimes throughout the

investigation," that CW-1 had made false representations about

these crimes to the FBI, and that CW-1 was ultimately terminated

from the witness protection program. The jury thus was not barred

cross-examination because they argued below only that the proposed questioning was "relevant" as it went to Wood's credibility. But, this claim necessarily sounds in the Confrontation Clause, which ensures the right to engage in "appropriate cross-examination" to permit the jury to "draw inferences relating to the reliability of the witness." Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).

- 41 - -- through the limits on cross-examination of Wood -- from being

given "sufficient information from which it could conclude," see

Brown v. Powell, 975 F.2d 1, 5 (1st Cir. 1992), that Wood's

credibility might be undermined by the fact that he allegedly

"missed the fact" that CW-1 had been committing serious crimes and

then lied to Wood about doing so.

Nor did the District Court abuse its discretion in

imposing the limits that it did on the ability of the defendants

through cross examination to elicit the details of CW-1's criminal

activity. The defendants contend that the type of questioning

that the defense was left to pursue was "simply too vague and

opaque" to be effective. But, the District Court had "wide

latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the

issues, . . . or interrogation that is repetitive or only

marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). And, the District Court supportably concluded that the

line of questioning at issue was irrelevant insofar as it was

offered to impeach CW-1, who did not testify, and only marginally

relevant insofar as it related to Agent Wood's competence as a

case agent or expert. The District Court's subsequent decision to

limit the level of detail on the topic also was neither overbroad

nor "manifestly unreasonable." United States v. Ofray-Campos, 534

- 42 - F.3d 1, 36 (1st Cir. 2008) (quoting United States v. Callipari,

368 F.3d 22, 36 (1st Cir. 2004)).

E.

Finally, we consider the same three defendants' Jencks

Act claim, 18 U.S.C. § 3500, which concerns a "Threat Assessment"

that the FBI prepared as part of the process for admitting CW-1

into the witness protection program. The Jencks Act requires the

government, "once a witness has testified, to proffer upon a

defendant's timely request any statement of that witness in its

possession, whether or not exculpatory, that relates to the subject

matter of the witness's testimony." United States v. Sepúlveda-

Hernández, 752 F.3d 22, 32 (1st Cir. 2014).

Following the defendants' request, the government

ultimately produced a redacted version of the Threat Assessment.

Neither the District Court nor the defendants viewed the unredacted

document, which the defendants contend may have been a "statement"

of Agent Wood for Jencks purposes and thus subject to production

under that Act. The defendants argue that the District Court

abused its discretion by failing to conduct an independent inquiry

into whether the Threat Assessment was Jencks material -- which

includes any written statement "made by" "any witness called by

the United States" "and signed or otherwise adopted or approved by

him," 18 U.S.C. § 3500(e) -- and by failing to order the production

of the unredacted document, which was first referenced during

- 43 - Wood's direct examination when he indicated that filling out a

Threat Assessment was one step he took to protect CW-1's family in

El Salvador. We review a claim of Jencks error -- which we will

assume is preserved as to Sandoval, Guzman, and Larios8 -- for

abuse of discretion. See Sepúlveda-Hernández, 752 F.3d at 33. We

find none.

Sandoval first sought production of the Threat

Assessment before trial. He then moved for the immediate

production of the Threat Assessment after Wood mentioned the

document in his testimony on the fourth day of trial. Sandoval

followed up with a written motion seeking production of "the

original Threat Assessment, the amended version, and the special

benefits parole package" as "'written statement[s] made by . . .

or otherwise adopted or approved by' Special Agent Wood."

(alterations in original) (quoting 18 U.S.C. § 3500). The

reference to an "amended version" of the Threat Assessment

seemingly refers to Wood's representation on cross-examination

that he had amended the application for CW-1 to enter the witness

protection program after beginning that paperwork in late 2015.

8Larios purports to join Sandoval's challenges but does not include the Jencks Act claim -- unlike the other claims related to Agent Wood's testimony -- in those challenges that he specifically joins. Nevertheless, we will assume for present purposes that Larios has preserved this claim.

- 44 - The District Court reviewed a redacted version of the

Threat Assessment and, on the fourteenth day of trial, ordered the

government to produce a copy under seal. The unredacted document

was not produced under seal, but the defense received a redacted

version on the fifteenth day of trial.9 After reviewing the

redacted copy, the defense objected again to the government's

failure to produce the unredacted copy.10 The District Court then

asked Sandoval's counsel whether he "want[ed] a continuance" or

what relief he sought with respect to the Jencks issue. Sandoval's

counsel declined a continuance at that point "given where we are

in the trial" but noted that, had the Threat Assessment been timely

produced following Wood's testimony, it could have been useful

material for cross-examination of Wood. The District Court

overruled the objection.

The District Court did not determine whether the Threat

Assessment was producible under the Jencks Act. The defendants

contend that the failure to make that determination was an abuse

9 When the District Court asked whether there was an "amended Threat Assessment," the government responded, "Judge, this is what I got from Washington." There was no further inquiry into whether there was a version of the document other than the redacted version the government provided. 10The defendants do not argue that the failure to produce an unredacted version was failure to comply or election not to comply with a court order under the Jencks Act, see 18 U.S.C. § 3500(b)- (d), presumably because no Jencks determination had been made.

- 45 - of discretion. And, although the Jencks Act does not "provide[]

grounds for relief unless the exclusion or failure to produce

prejudiced [the] defense," United States v. Nelson-Rodriguez, 319

F.3d 12, 35 (1st Cir. 2003), the defendants contend that this Court

cannot evaluate the prejudicial effect of the failure to produce

the materials given that the content of the redacted material is

still unknown and thus that we must remand for the District Court

to conduct a hearing.

The government responds that a claim of prejudice cannot

lie because the defense declined the offer for a continuance that

the District Court had given to them and thus that a remand for a

hearing is not required. See United States v. Arboleda, 929 F.2d

858, 863-64 (1st Cir. 1991); cf. United States v. Kifwa, 868 F.3d

55, 63 (1st Cir. 2017) ("Where, as here, a defendant spurns a

continuance that would have cured the adverse effects of a delayed

disclosure, a claim of prejudice will not lie."). The defendants

maintain, however, that we cannot determine whether a continuance

would have cured the prejudice until the government produces the

unredacted Threat Assessment or a Jencks determination is made as

to that material.

It is true that Kifwa and the other authority the

government relies on concern the failure by a defendant to seek a

continuance after belatedly receiving the discoverable

information. See Kifwa, 868 F.3d at 63; United States v.

- 46 - Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993). Here, by contrast,

the defense never received the redacted portion of the Threat

Assessment that the defendants contend was potential Jencks

material. Nor did the defense at any point obtain a ruling from

the District Court that that material was not Jencks material.

But, these facts demonstrate only that we do not know

whether the material was actually subject to production (and that

its absence was therefore potentially prejudicial). These facts

do not demonstrate that a continuance would not have cured the

prejudice. The defendants, moreover, do not themselves offer a

reason to conclude that a continuance would not have cured the

prejudice, aside from the fact that there was no review of, or

Jencks determination as to, the redacted portions of -- and, if

such a document exists, an amended version of -- the Threat

Assessment.

Indeed, the record contains nothing that shows that a

continuance would not have allowed the determination about whether

the material was Jencks material to be made. And, had that

determination been made in the affirmative, the District Court had

made clear to the parties that it would "permit a recall of [Agent

Wood]," should it be "appropriate and fair to do [so]," if the

information turned out to be Jencks material useful to the defense.

See Arboleda, 929 F.2d at 864 (finding "failure to identify any

prejudice" doomed Jencks claim because it "is not enough" that

- 47 - defense counsel argued that cross-examination would have been

"conducted 'differently'" had Jencks material been available at

that time and because defense counsel "persisted in declining the

trial court's invitations to recess or recall the witnesses for

further questioning"); United States v. Pope, 574 F.2d 320, 326-27

(6th Cir. 1978) (concluding that the government's failure to timely

furnish Jencks statements was "cured by the remedy [the District

Court] provided in permitting the proofs to be reopened so that

[the witness] could be further cross-examined on the basis of the

omitted statement"). Thus, in these circumstances -- where the

defense spurns a continuance that would have allowed the District

Court to conduct an in camera review of the full document to

determine whether it is Jencks material -- the defendants cannot

demonstrate the prejudice that they must to succeed on a claim of

a Jencks Act violation, which means no remand for a hearing is

necessary. See United States v. Rosario-Peralta, 175 F.3d 48, 53

(1st Cir. 1999); Arboleda, 929 F.3d at 864 (noting that we have

"treated with skepticism similar claims of prejudice when

accompanied by a failure to attempt at trial to mitigate the

perceived harm").

Next up are two challenges that concern the admission of

various statements by witnesses at trial. We conclude that neither

one has merit.

- 48 - A.

Larios, Sandoval, and Guzman bring the first of these

two challenges, in which they contend that the admission of

cooperating witness CW-1's statements -- included in transcripts

of conversations between the defendants and other ESLS members

taken from recordings that CW-1 had made for the government --

violated the Confrontation Clause and thus requires that their

convictions be vacated.11 We find no merit to the contention.

Beginning in 2014, CW-1 began to record some of the ESLS

clique meetings at the garage in Everett. In 2015, the FBI set

CW-1 up as a "gypsy cab driver" -- or an unlicensed cab driver --

and outfitted his vehicle with a secret audio-video recorder.

Through this means, CW-1 recorded conversations with various MS-

13 members who called for rides. Additionally, the FBI was able

to intercept CW-1's phone calls. The transcripts of some of the

recorded conversations from these sources -- translated into

English -- were introduced into evidence, and some portions were

read aloud to the jury during the trial.

11Larios has asserted this claim on appeal, and both Sandoval and Guzman purport to join Larios's challenge. And, although some of the particular aspects of this challenge -- such as the statements concerning the drug protection detail -- are specific to Larios, we still treat this claim as brought by all three defendants for ease of exposition.

- 49 - Before trial, Larios filed a motion in limine to exclude

CW-1's statements contained on the audio recordings, when offered

by the government, so long as CW-1 was unavailable for cross-

examination.12 The District Court subsequently denied the motion

on the understanding that the statements would not be offered for

their truth, given the government's representation to that effect.

But, the District Court made clear that the issue would be

revisited at trial "if it looks like there is something that is

offered for its truth."

We review preserved challenges to the District Court's

evidentiary rulings for abuse of discretion, though in doing so

"we consider de novo whether the strictures of the Confrontation

Clause have been met." United States v. Walter, 434 F.3d 30, 33

(1st Cir. 2006) (quoting United States v. Vega Molina, 407 F.3d

511, 522 (1st Cir. 2005)). Where the appellant did not lodge a

proper objection below, we review only for plain error. United

States v. Díaz, 670 F.3d 332, 344 (1st Cir. 2012).

The motion in limine specifically identified portions of 12

recordings from the January 8, 2016 clique meeting -- specifically those concerning finding housing for Joel Martinez -- and recordings from a December 8, 2014 drug protection detail. Though this feature of the motion may have alerted the District Court to the statements Larios believed were in danger of being used for their truth, the motion in limine did not provide the context that would have enabled the District Court to determine the purpose for which the statements were proffered.

- 50 - Larios's motion in limine was not on its own sufficient

to preserve the objection. See United States v. Noah, 130 F.3d

490, 496 (1st Cir. 1997) ("It is settled in this circuit that,

when the district court tentatively denies a pretrial motion in

limine, or temporizes on it, the party objecting to the preliminary

in limine determination must renew his objection during the trial,

and the failure to do so forfeits any objection."); United States

v. Reda, 787 F.3d 625, 628 n.1 (1st Cir. 2015). But, the defendants

contend that they renewed this objection during the trial and

thereby preserved it. We are not persuaded.

The defendants first point to a "standing objection"

that the District Court granted to "all the videos" on the third

day of trial. But, the grant of that standing objection was given

in the course of the presentation of various surveillance videos

collected from "personal cameras" from "several residences," which

bear no clear relation to the statements at issue here. The grant

of that standing objection also followed a series of objections on

relevance grounds.

The defendants separately point to an objection that was

made concerning the speaker designations in the transcript and the

need for authentication of the transcripts.13 But, this objection,

13The defendants had previously raised Confrontation Clause issues arising from Agent Wood conveying impressions from oral statements, which relied upon translations and speaker

- 51 - too, made no reference to any Confrontation Clause concerns; it

focused only on concerns related to speaker identification, the

"accuracy of the translations," and Petrozziello issues.14

Nor do either of the two subsequent objections that the

defendants also highlight have any apparent connection to this

particular confrontation issue. One such objection concerned

Wood's testimony and the basis of his knowledge. The other, after

which the District Court "g[ave] a standing objection to defendants

on the transcripts," was the "[s]ame objection" seemingly on the

issue of the transcript authentication, speaker identification,

and translation accuracy. At most, therefore, we review this claim

for plain error, which means that we must find that the District

Court committed "(1) an error (2) that is clear and obvious,

(3) affecting the defendant's substantial rights, and

(4) seriously impairing the integrity of judicial proceedings."

Reda, 787 F.3d at 628.

identifications for which Agent Wood -- who did not speak Spanish -- did not have personal knowledge. 14 The defendants do not contend that the issue of CW-1's statements being used for the truth came within the Petrozziello objection. Nor could they, given that the defendants maintained that CW-1 was not a coconspirator such that the admission of his testimony would depend on the court's Petrozziello finding. See United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977) (holding that the out-of-court declaration of an alleged coconspirator is properly admitted only when "it is more likely than not that the declarant and the defendant" were coconspirators "and that the statement was made in furtherance of the conspiracy").

- 52 - 3.

The defendants who join this challenge "fail[] to even

attempt to explain how the plain error standard has been

satisfied." United States v. Veloz, 948 F.3d 418, 429 (1st Cir.

2020) (quoting United States v. Severino-Pacheco, 911 F.3d 14, 20

(1st Cir. 2018)); see also United States v. Pabon, 819 F.3d 26, 33

(1st Cir. 2016) ("[Appellant] has waived these challenges because

he has not even attempted to meet his four-part burden for

forfeited claims."). Moreover, even if we looked past the

appellate waiver, we would find no plain error.

The parties agree that the statements at issue were

testimonial. The key issue, therefore, is whether they were

"admitted for purposes other than establishing the truth of the

matter asserted." United States v. Maher, 454 F.3d 13, 19-20 (1st

Cir. 2006).

Many of the statements by CW-1 that the defendants

challenge were made during the January 8, 2016 clique meeting that,

the evidence supportably shows, ended with Joel Martinez's jump-

in. For example, the transcripts entered into evidence show that,

during that meeting, in a conversation about the murder of Irvin

de Paz and who would receive credit for it (and, at the same time,

who would be implicated for it), CW-1 characterized Joel Martinez

as being "on observation" by another MS-13 clique at the time he

murdered Irvin de Paz. The transcripts further show that in that

- 53 - conversation CW-1 expressed the view that the ESLS clique had to

think about finding housing for Joel Martinez, though this was not

the first time this had been suggested in the recorded

conversation. And, in a discussion about the "hits" that Joel

Martinez had done, the transcripts show that CW-1 added that "[he]

did another one with [Sanchez]" and then characterized that hit as

being against rival gang members rather than civilians.

The defendants contend that these statements were

offered to establish that these attacks happened, that they were

connected to MS-13, and that the clique was finding housing for

Joel Martinez because he committed the murder. Similarly, they

point to CW-1's statements identifying the victims in the murder

of Javier Ortiz as rival gang members. And, the defendants contend

that CW-1's statements telling Joel Martinez that he should ask to

be an ESLS homeboy provided substantive evidence showing that

criminal activity was acceptable to MS-13 members. They also

contend that CW-1's statements on the transcripts connected to a

December 8, 2014 drug protection detail for which CW-1 solicited

Larios's help were offered for their truth because it was CW-1 who

"proposed the plan" and because CW-1's statements "related to the

commission of that criminal activity."

The defendants are right that we have been careful to

reject "overbroad" applications of the "context" exception to the

prohibition against the admission of hearsay. E.g., United States

- 54 - v. Cabrera-Rivera, 583 F.3d 26, 33-34 (1st Cir. 2009) (quoting

Maher, 454 F.3d at 22-23). The "context" justifications that were

rejected in those cases, however, are distinguishable.

In both Cabrera-Rivera and Maher, the non-hearsay

rationale for the statements was that they "put the investigation

into context" -- that is, they helped explain why the investigation

proceeded as it did. Cabrera-Rivera, 583 F.3d at 33; see Maher,

454 F.3d at 22. The admission of the challenged statements here,

in contrast, can fairly be characterized as putting the

conversation into context -- that is, putting the defendants'

statements into the full context of the conversation so that their

inculpatory nature could be properly understood. See Walter, 434

F.3d at 34 ("The other parts of the discussion 'were properly

admitted as reciprocal and integrated utterance(s) to put [the

defendant's] statements into perspective and make them

intelligible to the jury and recognizable as admissions.'"

(alteration in original) (quoting United States v. McDowell, 918

F.2d 1004, 1007 (1st Cir. 1990))).

The defendants who join this challenge do rightly assert

that some of CW-1's statements that they challenge as improperly

admitted identified various attacks -- which the government then

characterized as racketeering activity -- and linked them to MS-

13. For example, it was CW-1 who, in a conversation at the January

8, 2016 clique meeting about the hits that Joel Martinez had

- 55 - participated in, added that "he did another one with [Sanchez]."

The defendants thus contend that these statements were offered for

the truth of the matter that these attacks occurred and were

committed by other MS-13 associates in furtherance of the

conspiracy.

But, as the government points out, such statements were

admissible not only as "reciprocal and integrated utterances" but

also to demonstrate the clique's motivations for jumping Joel

Martinez into the clique and the clique members' reactions to

reports of violence, rather than for the truth of what was asserted

in CW-1's statements -- for example, that Joel Martinez actually

did commit that hit. And, notably, there was other evidence

presented about the fact of the commission of these attacks,15

while the government's closing argument makes clear that it was

using the transcripts to illustrate how the clique responded to

the commission of these attacks. Even beyond those reasons, we

also note that the defendants did not seek a limiting instruction

when the transcripts were presented. See id. at 35 (holding that

because the defendant "never asked for such a limiting

15The defendants contend that there was "no factual basis for the murder [of Irvin de Paz] and connecting it to MS-13 except for CW-1 reporting it in the transcript." But, Sergeant Richard Daley of the Boston Police Homicide Unit and FBI Special Agent Jeffrey Wood testified about the murder and the identification of Joel Martinez as the perpetrator, and there was plenty of other evidence connecting Joel Martinez to MS-13.

- 56 - instruction . . . he is not entitled to argue here that the

district court's failure to provide [one] constitutes reversible

error"). We thus conclude that the admission of these statements

is, if error at all, not the sort of "'indisputable' error [that]

warrants correction on plain error review," United States v.

Ackerly, 981 F.3d 70, 76 (1st Cir. 2020) (quoting United States v.

Jones, 748 F.3d 64, 70 (1st Cir. 2014)).

Larios also challenges the admission of his own post-

arrest statement. But, this challenge fails as well.

At trial, Hernandez Miguel testified about certain

statements that Larios made to him while they were detained

together after being arrested in January 2016. The conversation

concerned Larios's prior arrest, in January 2015, on Massachusetts

firearms charges. Larios reportedly told Hernandez Miguel that

after his 2015 arrest he was "certain it was [CW-1] who had

snitched on him," so he formed a plan with Martinez to kill CW-1

and asked Sandoval for a "green light" to kill him.

Larios does not and cannot argue that the statement was

inadmissible when offered against him. See Fed. R. Evid.

801(d)(2)(A) (statements by party opponents are "not hearsay").

Instead, he argues that the statements were inadmissible in the

joint trial because their admission violated Sandoval's and

- 57 - Martinez's Bruton rights.16 See Bruton v. United States, 391 U.S.

123, 137 (1968) (holding that a defendant's Confrontation Clause

rights are violated when a non-testifying codefendant's confession

implicating the defendant in the crime is introduced at their joint

trial). But, this claim necessarily fails because "Bruton is

inapplicable [where] the statement in question was [the

defendant's] own, not that of a codefendant." United States v.

Rivera-Rodríguez, 617 F.3d 581, 594 (1st Cir. 2010); cf. United

States v. Sabatino, 943 F.2d 94, 96 n.1 (1st Cir. 1991) ("Sixth

Amendment rights . . . are personal in nature and cannot be

asserted vicariously . . . .").17

VI.

Our next focus is on a pair of challenges that concern

purported misstatements of the evidence in the government's

closing argument. Here, too, the challenges provide no basis for

overturning the convictions of any of the defendants.

The first of these challenges is Sandoval, Guzman, and

Larios's claim that a mistrial was warranted based on the

16 Larios makes clear that the claimed constitutional infirmity is not that he or any other defendant was unable to confront Hernandez Miguel, who was available for cross- examination; instead, it is that Sandoval and Martinez were unable to confront Larios himself. 17 Neither Sandoval nor Martinez has joined this claim.

- 58 - government's inaccurate closing-argument comment that Sandoval had

ordered his clique to "go kill chavalas." This challenge concerns

a statement that the government made during rebuttal in response

to Sandoval's closing argument that there was no evidence that he

had advance knowledge of the racketeering acts alleged or had

agreed that anything should happen to victims like Javier Ortiz

and Irvin de Paz. The statement was:

[Sandoval] doesn't say to his clique, I want you to go kill Irvin de Paz, I want you to go kill Javier Ortiz, I want you to kill Saul Rivera, I want you to kill Minor Ochoa, right, he says go kill chavalas, right, so this advanced warning argument is foolish.

Sandoval moved for a mistrial on the ground that there

was no evidence that he said, "go kill chavalas." The government

responded that the statement was paraphrasing what Sandoval had

said and constituted fair argument based on Sandoval's position in

the clique and the statements that the evidence supportably shows

that he had made. The District Court denied Sandoval's motion.

We review the denial of a request for a mistrial for

abuse of discretion, United States v. Gentles, 619 F.3d 75, 81

(1st Cir. 2010), and a preserved challenge to the propriety of a

prosecutor's arguments de novo, Veloz, 948 F.3d at 435. We find

no error by the District Court in denying the motion for the

mistrial based on the prosecutor's statement in the closing

argument.

- 59 - The prosecutor's statement in the closing argument, when

considered in context, did not suggest that Sandoval had said the

precise words "go kill chavalas." Moreover, the record did contain

evidence supportably showing that Sandoval said to Hernandez

Miguel, in explaining to him what it means to be a member of MS-

13 in connection with his possibly becoming a member of its ESLS

clique, that "when one is jumped into MS-13, one is aware that one

is jumped in to kill or to look for chavalas." We thus conclude

that the statement by the government in its rebuttal to Sandoval's

closing argument offered a reasonable interpretation of existing

evidence. We note, too, that the District Court instructed the

jury in terms that apprised it of the need to distinguish between

argument and evidence.

Guzman also takes aim at what he contends is a

misstatement that the government made at the end of its closing

argument. In summarizing the involvement of each defendant, the

prosecutor stated:

[Guzman] is along with [Hernandez Miguel] when he breaks that beer bottle over that man's head and leaves him gasping for air in the street in East Boston. He collects the money that enables MS-13 to continue to thrive, he beats [Sanchez] for violating clique rules, and he's actually the one that counts [Joel Martinez] in to the Eastside clique and welcomes him to La Mara.

(emphasis added).

- 60 - The parties' transcripts both indicate that it was

Guzman who counted to thirteen during Joel Martinez's jump-in.

There was a dispute over who said words "Welcome to the Mara,

buddy," immediately after the jump-in. But, no party attributed

this statement to Guzman.18 The government therefore concedes that

the statement quoted above contained a misstatement.

In light of that concession, we must determine "whether

the offending conduct so poisoned the well that the trial's outcome

was likely affected." United States v. Morales-Cartagena, 987

F.2d 849, 854 (1st Cir. 1993) (quoting United States v. Mejia-

Lozano, 829 F.2d 268, 274 (1st Cir. 1987)). In doing so, "we must

assess the prosecutor's statements 'within the context of the case

as a whole,'" United States v. Madsen, 809 F.3d 712, 717 (1st Cir.

2016) (quoting United States v. Pires, 642 F.3d 1, 14 (1st Cir.

2011)), "consider[ing] 'the frequency and deliberateness of the

prosecutor's comments, the strength and clarity of the trial

18 Speaker identifications had been an issue throughout the trial. During the final pretrial conference, Larios's counsel cited the fact that the "Welcome to the Mara" statement had been attributed to Guzman at his detention proceeding but then was identified with a different speaker in the transcripts used at trial as an example of the difficulties of speaker identification in this case involving many group meetings and many different speakers. And, during Sandoval's cross-examination of Agent Wood, Wood indicated that he was told that it was Guzman who spoke the words "Welcome to the Mara." Thus, Guzman claims that although he did not contemporaneously object to the argument that Guzman was the one who "welcome[d]" Joel Martinez, the District Court "was certainly alerted to the issue."

- 61 - judge's instructions, and the strength of the government's case

against the defendant,'" id. (quoting Morales-Cartagena, 987 F.2d

at 854). Moreover, because Guzman did not raise this objection

below, our review is only for plain error. We find none.

There is no assertion that the misstatement was

deliberate. In fact, the ongoing confusion about speaker

identification suggests that it was not.

The misstatement was also brief and isolated. That fact

is not in and of itself necessarily dispositive, see United States

v. Santana-Camacho, 833 F.2d 371, 373-34 (1st Cir. 1987); cf.

United States v. Azubike, 504 F.3d 30, 38-41 (1st Cir. 2007)

(reviewing preserved challenge), as the remark did go to an issue

that the government had made central to the case. But, in this

case, this one isolated remark did not "strongly fortif[y] the

government's theory." Santana-Camacho, 833 F.2d at 374.

In an attempt to show otherwise, Guzman's counsel argues

that other evidence in the record indicates that Guzman did not

fully embrace jumping Joel Martinez into the clique. But, the

jury also was presented with evidence that Guzman attended the

jump-in, actively participated in the jump-in, including counting

to thirteen, and advocated for helping Joel Martinez find a place

to stay to hide out from the police.

In addition, the District Court gave clear and repeated

instructions that the statements and arguments of counsel were not

- 62 - evidence and that "[i]f the facts as you remember them from the

evidence differ from the way the lawyers have stated them, your

memory of the facts should control." See Morales-Cartagena, 987

F.3d at 855 (finding such an instruction to decrease the risk of

juror confusion resulting from government's misstatement of

facts). And, while such an instruction may not be sufficient to

mitigate the prejudicial effects of a misstatement in all cases,

see, e.g., Azubike, 504 F.3d at 41-42, we note that in this case

the government's closing argument also repeatedly encouraged the

jury to reread the transcript of the January 8, 2016 meeting and

jump-in to "really understand what it is that th[e] clique is doing

when they jump in and celebrate [Joel Martinez] as a new member of

the gang." That is significant because the transcripts clearly

did not attribute the "Welcome to the Mara" comment to Guzman,

while at the same time they identified Guzman as the one counting

down. Cf. Pires, 642 F.3d at 15 (noting that the jury took a

recording that included the accurate statement that the government

had misquoted during its argument into the jury room). Thus,

considering the record as a whole, we find no real risk that the

misstatement "unfairly prejudiced the jury's deliberations."

Santana-Camacho, 833 F.2d at 375 (quoting United States v. Young,

470 U.S. 1, 19 (1985)).

- 63 - VII.

We next turn to the purported instructional errors that

Sandoval, Guzman, and Larios raise. First, they contend that the

District Court improperly instructed the jury regarding the intent

required for RICO conspiracy. They also claim that the District

Court's refusal to give an entrapment instruction constituted

reversible error. And, finally, they assign error to the District

Court's denial of Larios's request for a missing witness

instruction.

At trial, the District Court instructed the jury, in

relevant part, as follows:

Again, a conspiracy is an agreement to commit a crime. The agreement may be spoken or unspoken. It does not have to be a formal agreement or a plan in which everyone involved sat down together and worked out all the details. The government, however, must prove beyond a reasonable doubt that those who were involved intended to agree and shared a general understanding about the crime.

The defendants contend that this instruction left the jury with an

overly broad understanding of the requisite intent for RICO

conspiracy. Specifically, they contend that the District Court

erred in refusing Guzman's proposed instruction, which requested

that "general" be replaced with "specific," such that the

instructions would have provided that the government "must prove

- 64 - beyond a reasonable doubt that those who were involved shared a

specific understanding about the crime."

At the jury charge conference on February 16, 2018,

Guzman noted in response to the District Court's draft of the

instruction that it gave that in his proposed jury instructions he

"had asked for the word 'specific' to be included and to delete

'general.'" The District Court responded that the charge it

planned to give was "standard language" and that it may be

confusing to replace "general" with "specific," but indicated that

it was willing to reconsider the issue if Guzman had a case

indicating that the requested language was accurate. Guzman

thereafter filed a written request for a "specific intent"

instruction, asking that "the word 'general' on page 28 of the

Court's proposed jury instruction[s] . . . be changed to the word

'specific.'"

The District Court ultimately concluded that it would

not give the instruction that Guzman proposed. It explained that

the "general understanding" language that it planned to use in the

instruction it intended to give was "standard language" and that

it did not believe that Guzman's proposed instruction was correct.

The District Court instructed the jury with the "general

understanding" language quoted above. After the jury instructions

were given, Guzman noted that he "continue[d] to object to the

word 'general' . . . , and it should be 'specific.'"

- 65 - A district court's "refusal to give a particular

instruction constitutes reversible error only if the requested

instruction was (1) correct as a matter of substantive law, (2) not

substantially incorporated into the charge as rendered, and

(3) integral to an important point in the case." United States v.

McGill, 953 F.2d 10, 13 (1st Cir. 1992). Here, the requested

"specific intent" instruction would have charged the jury that the

"government . . . must prove beyond a reasonable doubt that those

who were involved intended to agree and shared a specific

understanding about the crime."

In rejecting the requested substitution of "specific"

for "general," the District Court correctly explained that "[t]he

agreement has to be the specific agreement, in this case, to commit

racketeering in such-and-such a way, but you don't have to agree

to every detail of the agreement or every detail of how the crimes

are going to be committed." See Aetna Cas. Sur. Co. v. P & B

Autobody, 43 F.3d 1546, 1562 (1st Cir. 1994) ("To prove a violation

of § 1962(d), it is enough to prove that a defendant agreed with

one or more others that two predicate offenses be committed. . . .

It is not necessary, however, to find that each defendant knew all

the details or the full extent of the conspiracy . . . ."). Thus,

we agree with the District Court that instructing the jury that

the defendants must have "shared a specific understanding about

the crime" may have at the very least been misleading in suggesting

- 66 - not only that the defendants needed to intend that some member of

the conspiracy would commit two of a certain type of predicate act

but also that they understood and agreed to the particular manner

in which those predicate acts would be committed. And, "the law

is settled that a trial court may appropriately refuse to give a

proffered jury instruction that is incorrect, misleading, or

incomplete in some material respect." United States v. DeStefano,

59 F.3d 1, 4 (1st Cir. 1995); see also United States v. David, 940

F.2d 722, 738 (1st Cir. 1991) ("[T]he lower court acted within its

discretion in refusing to give an instruction which, if not flatly

erroneous, at least ran a substantial risk of misleading the

jury.").

At points, the defendants also appear to argue on appeal

that the instructions that were given were themselves problematic,

because they "failed to make clear the requirement that each

defendant share the specific understanding or intent that a

coconspirator would commit two or more of the predicate acts or

type of acts charged." But, insofar as such an argument is

properly before us, we reject it. Considered as a whole, the

instructions "adequately illuminate[d] the law applicable" to the

issue. DeStefano, 59 F.3d at 3; see Leoner-Aguirre, 939 F.3d at

317 n.7 (rejecting argument that district court erred in referring

to "types of racketeering in its instruction, rather than precise

acts" (citing United States v. Applins, 637 F.3d 59, 80-82 (2d

- 67 - Cir. 2011))). In fact, they did not even "var[y] in a material

way," United States v. Barnes, 251 F.3d 251, 260 (1st Cir. 2001)

(emphasis omitted), from the instruction Guzman requested.19

To that very point, the District Court instructed the

jury that "the government must prove that the defendants agreed

that one or more members of the enterprise would commit crimes

that qualify as racketeering acts by law and that are specified in

the indictment." The instructions specified that the jury "must

unanimously agree as to each defendant individually on which type

or types of racketeering activity that defendant agreed the

enterprise would conduct." And, in response to a note from the

jury, the District Court explained that while "[t]he defendants

don't have to have personally committed any racketeering acts" or

agree that they would do so, "the agreement has to include an

agreement that a pattern of racketeering activity would occur, and

they have to agree that a particular type of racketeering activity

would occur, and you have to unanimously agree on the particular

type of racketeering activity."

Although we reject the defendants' claim of instructional 19

error on this score here, there is not a "one size fits all" approach to such instructions. We examine the "context" of "the court's instructions as a whole" on a case-by-case basis. Barnes, 251 F.3d at 259-60. We note, though, that in consequence we do not endorse the government's contention that we must uphold the instruction here just because we upheld an instruction containing similar "general understanding" language in Barnes.

- 68 - B.

Guzman, Sandoval, and Larios also argue that the

District Court's failure to give a requested jury instruction on

entrapment was reversible error. Entrapment is an affirmative

defense, and "an accused is entitled to an instruction on his

theory of defense so long as the theory is a valid one and there

is evidence in the record to support it." United States v.

Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988). We conclude that

there was not sufficient evidence of entrapment here to support

such an instruction, however, and so there was no error.

During the trial, Guzman filed a written request for a

jury instruction on entrapment. At the charge conference, Guzman

argued that such an instruction was warranted given the evidence

that the government's cooperating witness "basically brought

racketeering acts to the Eastside clique," which could enable the

jury to conclude that "if [Guzman] did, in fact, enter into this

conspiracy, it was because he was entrapped by the government's

agent." The District Court, after carefully considering the

request and recognizing that the "failure to give[] an entrapment

[instruction] if there is sufficient evidence for a jury to find

entrapment is reversible error," ultimately declined to give the

- 69 - Larios preserved this issue by objecting, on behalf of

all defendants, to the failure to give the entrapment instruction.

Therefore, we review the District Court's refusal to give the

entrapment instruction de novo, "examin[ing] the evidence in the

light most favorable to the accused so as to determine whether the

record supports an entrapment theory." United States v. Vasco,

564 F.3d 12, 18 (1st Cir. 2009) (quoting United States v.

Shinderman, 515 F.3d 5, 13 (1st Cir. 2008)).

For a defendant "to be entitled to an instruction on

entrapment, the record must show 'some hard evidence' of both

government inducement" of the criminal conduct "and the

defendant's lack of predisposition" to engage in the criminal

conduct. United States v. González-Pérez, 778 F.3d 3, 11 (1st

Cir. 2015) (quoting Shinderman, 515 F.3d at 14). Here, the

evidence is insufficient with respect to the inducement showing,

which "requires not only giving the defendant the opportunity to

commit the crime but also a 'plus' factor of government

overreaching." Id. (quoting United States v. Guevara, 706 F.3d

38, 46 (1st Cir. 2013)); see also United States v. Dávila-Nieves,

670 F.3d 1, 10 (1st Cir. 2012) (explaining that "[t]ypical plus

factors are 'excessive pressure, . . . taking advantage of an

alternative, non-criminal type of motive,' . . . intimidation,

threats, or 'dogged insistence'" (first quoting United States v.

- 70 - Young, 78 F.3d 758, 761 (1st Cir. 1996); and then quoting Vasco,

564 F.3d at 18)).

The defendants assert that the government used its

cooperating witness, CW-1, to "specifically target" the defendants

through "excessive pressure" and "improper tactics."20 These

tactics, according to the defendants, included delaying arrests to

bolster evidence; using "an ex-convict and deportee" as a

cooperating witness; allowing the cooperating witness to "plot

with . . . MS-13 leaders to 'green light' Sandoval and Guzman"

because they were not "out on the streets committing acts of

violence"; assisting the cooperating witness in arranging drug

protection details; continuing to employ the cooperating witness

even after he had committed "serious violent crimes"; directing

the cooperating witness to encourage Sandoval to invite Martinez

to join the ESLS clique; and having the cooperating witness

20 Because CW-1 is a government agent for this purpose, the doctrine of "derivate entrapment" is inapposite. Compare United States v. Luisi, 482 F.3d 43, 53 (1st Cir. 2007) ("It is beyond dispute that an individual . . . hired by the government as an informant[] is a 'government agent' for entrapment purposes."), and Sherman v. United States, 356 U.S. 369, 374-75 (1958) (holding that unpaid informant was still a government agent for entrapment purposes when government was not aware of informant's methods), with Luisi, 482 F.3d at 53 (explaining that "derivate entrapment" occurs when "a government agent 'uses [an] unsuspecting middleman as a means of passing on an inducement' to the defendant" (quoting 2 Wayne R LaFave, Substantive Criminal Law § 9.8(a) (2d ed. 2003))).

- 71 - manipulate the timing of Martinez's jump-in such that the

defendants would be "tied to Martinez's violent acts."

The defendants develop no argument explaining, however,

how these actions constituted "excessive pressure," and our law on

government inducement does not support categorizing them as such.

The actions do demonstrate that the government, through its agent,

"created the opportunity for [the defendants] to become criminally

involved." United States v. Pratt, 913 F.2d 982, 989 (1st Cir.

1990). Those actions do not, however, "make the government's

involvement rise to the level of entrapment." Id.; see also United

States v. Teleguz, 492 F.3d 80, 84-85 (1st Cir. 2007) (recognizing

that "sting operations by their nature often involve government

manipulation, solicitation, and, at times, deceit" but noting that

they "ordinarily do not involve improper inducement").

Looking at the evidence in the light most favorable to

the defendants, no reasonable juror could conclude that the

government improperly induced the crime. We therefore "need not

dwell on the evidence of predisposition." González-Pérez, 778

F.3d at 13 (citing United States v. Ramos-Paulino, 488 F.3d 459,

462 n.1 (1st Cir. 2007)).21

21We do note that, although the required showing as to predisposition is not in this posture a particularly burdensome one, see Luisi, 482 F.3d at 58, Sandoval and Larios have joined this claim -- which Guzman raises on appeal -- without developing any argument as to predisposition, which is necessarily a

- 72 - C.

That leaves the claim that these same three defendants

press on appeal concerning the District Court's failure to give a

"missing witness" instruction concerning CW-1. We again find no

error.

The requested instruction would have directed the jury

as follows:

If it is particularly within the power of the government to produce a witness who could give material testimony, or if a witness, because of [his] relationship to the government, would normally be expected to support the government's version of events, the failure to call that witness may justify an inference that [his] testimony would in this instance be unfavorable to the government.

We review the District Court's refusal to give the instruction for

abuse of discretion. United States v. DeLuca, 137 F.3d 24, 38

(1st Cir. 1998).

A threshold requirement for a missing witness

instruction is that the uncalled witness not be "equally available

to both parties." United States v. Spinosa, 982 F.2d 620, 632

(1st Cir. 1992). Even if the uncalled witness may be physically

available to the defense, a missing witness instruction may be

appropriate when the witness was so "'favorably disposed' to

defendant-specific inquiry, and have therefore waived the issue. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

- 73 - testify for the government by virtue of their status or

relationship with the parties," DeLuca, 137 F.3d at 38 (quoting

United States v. Welch, 15 F.3d 1202, 1214 (1st Cir. 1993)), that

the witness "is considered to be legally unavailable," Spinosa,

982 F.2d at 632.

Before trial, the defendants jointly moved to compel the

disclosure of CW-1's location to defense counsel after learning

that CW-1 had been terminated from the witness protection program.

The defendants' motion sought CW-1's location "so that defense

counsel [could] subpoena him to appear as a witness at trial."

The government declined to provide CW-1's address given the

"serious, ongoing, and obvious security threat to CW-1 and CW-1's

family" but indicated that "CW-1 will be available" should the

defendants wish to call him as a witness at trial. The government

reaffirmed at the final pretrial conference that it would produce

CW-1 for trial if the defense so requested.

At that pretrial conference, the defendants argued that

production for trial alone would be insufficient and that it was

important to be able to speak to the witness before trial. The

District Court indicated that it would consider the defendants'

request to receive independent access to interview CW-1 before the

trial if the defense filed a motion outlining the Court's authority

to do so; otherwise, it would "assume that the government would

deal with [the] problem [of] the defendant[s'] inability to locate

- 74 - CW-1 or subpoena him by producing him upon reasonable request to

testify at the trial or to be available for testimony at the

trial," an approach it found "sufficient" given the safety

concerns.

There is no indication that the defense filed such a

motion or pursued the issue of interviewing CW-1 pretrial further.

The defense did, however, continue to dispute throughout the trial

that there was an "equal opportunity" to call CW-1 given that there

would be no opportunity to talk to the witness before calling him

to the stand.

Larios included a "missing witness" instruction in his

proposed jury instructions. He later renewed his request for a

"missing witness" instruction, explaining that the government's

offer to produce CW-1 was "hollow" -- as it required the defense

to "call a witness that [it] cannot interview or contact prior to

trial" -- and arguing that a missing witness instruction was proper

given that CW-1 was "favorably disposed" to testify on behalf of

the government.

The District Court addressed the request for a missing

witness instruction on the last day of trial. The government

argued that "[it] has always indicated [its] willingness to make

[CW-1] available," and though it did not "give [the defense] the

address, as the Court said [it] did not have to, to let an

investigator walk up to his front door and knock," it would have

- 75 - made CW-1 available so that the defense could "speak with him

directly" had the defendants so requested. Larios's counsel

responded that "it was never made known to [the defense] that [CW-

1] would be available to be interviewed. In fact, it was made

known to [the defense] that [CW-1] would not be available for an

interview, just physically to be able to be called as a witness at

trial." The District Court noted the unusual nature of the

situation given that CW-1 had been terminated from the witness

protection program but determined that it would not give the

"missing witness" instruction.

The defendants seem to acknowledge that CW-1 was not

physically unavailable given that the government was willing to

produce him for trial. But, this does not end our inquiry, because

the defendants contend that CW-1 was legally unavailable by virtue

of his relationship with the government and the fact that the

defense was unable to speak to him before trial.

We find that the District Court did not abuse its

discretion in denying the instruction in these circumstances. The

defense never made a formal request in the District Court for

permission to interview CW-1, even though at the pretrial

conference the District Court had invited the defense to file a

motion to that effect. Thus, we find that the defendants cannot

claim that CW-1 was "unavailable" on the basis of the inability to

- 76 - speak to him before calling him to the stand, given that the

defendants never requested that the government produce CW-1 for an

interview after it refused to disclose his location.

The defendants also argue that a missing witness

instruction was warranted on another basis. We have recognized

that the government's failure to call a witness who is physically

available to the defense and could be subpoenaed by them could be

a basis for the defendants to receive a missing witness instruction

in limited circumstances. We have explained that if such a witness

is "clearly favorably disposed" to the government, the witness may

be treated as not legally "available" to criminal defendants such

that the defendants would be entitled to the missing witness

instruction even though they would have had the means to call that

witness. Spinosa, 982 F.2d at 633; DeLuca, 137 F.3d at 38. The

notion is that the instruction is appropriate to call attention to

the possible defendant-friendly inference that arises from the

government's failure to call that witness. See United States v.

Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir. 1981).

There is no such showing here, however, that would

convince us that the District Court abused its discretion in

denying the instruction on this basis. The fact that CW-1 was a

government informant for an ongoing period is not independently

sufficient to establish favorable disposition for an equally

available witness. See DeLuca, 137 F.3d at 38 (noting that paid

- 77 - government informants' "cooperation . . . during the criminal

investigation did not necessarily satisfy appellants' burden of

proof" to establish favorable disposition).

This is not to say that any greater showing would be

required of a defendant who was denied access to the uncalled

witness when such access could have enabled the defendant to

demonstrate that the witness was favorably disposed toward the

government. Cf. Ariza-Ibarra, 651 F.2d at 17 n.1 (Bownes, J.,

dissenting) (noting that the majority "fault[s] the defense for

failing to show how [an informant's] testimony would have been

helpful to defendants" but finding it unclear "how the defense

could have made such a showing when they were deprived of the

opportunity to interview the informant"). In this case, however,

our finding regarding the defendants' failure to pursue this access

makes an argument along those lines by these defendants unavailing.

We note, too, that the defense was permitted to argue

that the jury should draw a negative inference from CW-1's absence

at trial. That the defendants had that opportunity "significantly

undercut[s]" their "claim that the denial of a 'missing witness'

instruction was detrimental to the defense." United States v.

Martinez, 922 F.2d 914, 925 (1st Cir. 1991) (citing Ariza-Ibarra,

651 F.2d at 16 n.22); accord United States v. Perez, 299 F.3d 1,

5 (1st Cir. 2002).

- 78 - VIII.

Finally, all four defendants bring challenges to their

sentences. We take these challenges in turn, starting with the

ones that Sandoval brings.

Sandoval first takes aim at the procedural

reasonableness of his sentence. Specifically, he contends that

the District Court improperly attributed certain activity to him

as "relevant conduct" under the applicable United States

Sentencing Guidelines ("Guidelines").

Under the Guidelines, the base offense level for a RICO

conspiracy conviction is either 19 or, if greater, "the offense

level applicable to the underlying racketeering activity."

U.S.S.G. § 2E1.1(a)(1)-(2).22 We have understood "underlying

racketeering activity" in this context to mean "any act, whether

or not charged against [the] defendant personally, that qualifies

as a RICO predicate act under 18 U.S.C. § 1961(1) and is otherwise

relevant conduct under [U.S.S.G.] § 1B1.3." United States v.

Carrozza, 4 F.3d 70, 77 (1st Cir. 1993) (footnote omitted).

22 We have interpreted this language in U.S.S.G. § 2E1.1(a) as a "cross reference," which refers in the Guidelines context to an instruction to apply another offense guideline. United States v. Carrozza, 4 F.3d 70, 75 (1st Cir. 1993); see also U.S.S.G. § 1B1.5.

- 79 - "[R]elevant conduct in a RICO case" for purposes of

§ 1B1.3 of the Guidelines "includes all conduct reasonably

foreseeable to the particular defendant in furtherance of the RICO

enterprise to which he belongs." Id. at 74. The District Court

must find such relevant conduct by a preponderance of the evidence.

United States v. Marino, 277 F.3d 11, 37 (1st Cir. 2002). Any

such conduct becomes a "cross reference" that may be used to set

the offense level. Carrozza, 4 F.3d at 75.

We review the District Court's interpretation and

application of this guideline de novo. See United States v.

Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). But, when it

comes to the District Court's factual findings pursuant to this

Guidelines regime -- such as which activities of the conspiracy

were reasonably foreseeable to the defendant -- we review only for

clear error. See id.; Marino, 277 F.3d at 38.

Sandoval's revised Presentence Investigation Report

("PSR") concluded that Sandoval was accountable for three separate

offenses that constituted "underlying racketeering activity": the

attempted murder of December 27, 2015; the attempted murder of

January 1, 2016; and being an accessory after the fact to the

September 20, 2015 murder of Irvin de Paz. Each of these offenses

-- or cross-references -- was treated as a separate group and,

- 80 - when combined, these groups resulted in a combined adjusted offense

level of 40. See U.S.S.G. §§ 1B1.3(a), 3D1.4.

The PSR included a four-level adjustment for Sandoval's

role as an "organizer or leader" of criminal activity. See

U.S.S.G. § 3B1.1(a). The PSR then reduced the resulting total

offense level ("TOL") of 44 to 43 pursuant to U.S.S.G. ch. 5, pt.

A, cmt. n.2. The PSR also determined that Sandoval's criminal

history category ("CHC") was I.

The TOL of 43 and CHC of I yielded a Guidelines

sentencing range ("GSR") of life imprisonment. See U.S.S.G. ch.

5, pt. A (sentencing table). But, because the statutory maximum

was 20 years, see 18 U.S.C. § 1963(a),23 the Guidelines sentence

was also 20 years, or 240 months, see U.S.S.G. § 5G1.1(a).

Sandoval did not object below to the interpretation of

the Guidelines that led to this determination in the PSR. He did,

however, contend that the government had not met its burden to

show that the attempted-murder offenses treated as "relevant

conduct" in the PSR were reasonably foreseeable to Sandoval and

within the scope of his own agreement -- and, moreover, that the

government failed to offer sufficient reliable evidence to

18 U.S.C. § 1963(a) provides that the statutory maximum for 23

a conviction under 18 U.S.C. § 1962 is "20 years (or life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment)." The PSR used a 20-year statutory maximum as to Sandoval and the government did not argue that a higher statutory maximum should apply.

- 81 - establish that Joel Martinez committed the acts or that the acts

described constituted attempted murder at all. Sandoval also

objected to the application of the accessory-after-the-fact cross-

reference on multiple grounds -- including the fact that accessory

after the fact was not a charged RICO predicate or, he argued,

even a chargeable RICO predicate at all -- and contended that,

should the District Court nevertheless apply a cross-reference for

this activity, it should be limited to harboring, which carries a

lower base offense level. See U.S.S.G. § 2X3.1(a)(3)(B).

Sandoval's sentencing hearing was held on October 9,

2018. After hearing the parties' arguments, the District Court

found that the PSR correctly calculated the Guidelines offense

levels and properly accounted for both the two attempted murders

and the accessory-after-the-fact cross-reference.

In so concluding, the District Court made an

individualized finding regarding the relevant conduct

determination. It found that the two attacks were attempted

murders and that first-degree murder was the appropriate cross-

reference for these attempts. It then also found that they were

reasonably foreseeable to Sandoval. Moreover, as to the accessory-

after-the-fact cross-reference, the District Court found both that

it was a racketeering act and that, by a preponderance of the

evidence, Sandoval's actions went beyond mere harboring.

- 82 - 3.

On appeal, Sandoval reasserts his argument below that

the government failed to prove, even by a preponderance of the

evidence, that either attempted murder was reasonably foreseeable

to him.24 He points to the lack of any evidence presented at trial

that he knew about either of these attacks in advance, much less

ordered or authorized those attacks. He also contends that there

is not sufficient evidence to support the general conclusion that

any crime committed by Joel Martinez was foreseeable to Sandoval.

Whether the conduct was reasonably foreseeable to

Sandoval is a fact-bound determination that we review for clear

error. See Marino, 277 F.3d at 38; United States v. LaCroix, 28

F.3d 223, 226, 230-31 (1st Cir. 1994); United States v. Rodríguez,

731 F.3d 20, 28 (1st Cir 2013).25 We find none.

The District Court supportably found that the evidence

showed by a preponderance that based on Sandoval's conversations

with Joel Martinez about joining ESLS, "[Joel Martinez] would view

himself as being somewhat in a probationary lifestyle" requiring

that he "prove that he was worthy by committing attacks," which

24Sandoval does not challenge the related determination that the acts were attempted murders by a preponderance of the evidence. 25 Sandoval does not contend that the District Court failed to conduct an individualized analysis as to foreseeability. Nor could he, given that the record makes clear that the District Court made the requisite individualized assessment.

- 83 - "indeed . . . followed [in] short order." And, the District Court

noted that the conclusion that it was foreseeable to Sandoval that

such attacks would happen -- and that they would rise to the level

of attempted murder -- was reinforced by Sandoval's statements at

the January 8, 2016 clique meeting. The District Court interpreted

these statements as effectively stating that the attempted murders

bolstered the clique's reputation and that the clique needed a

"new generation." Taken against the background of an organization

supportably shown by a preponderance to have had a purpose to kill

rivals, in which young people are promoted by attacking or killing

them, the District Court supportably found it "reasonably

foreseeable to [Sandoval] . . . that younger members would kill or

attempt to kill to impress the leadership, to gain respect for

themselves and to become members."

Sandoval contends that the conversation with Joel

Martinez before the attempted murders at issue here contained no

implication that Joel Martinez needed to do anything else to prove

himself -- Sandoval argues that, to the contrary, he indicated

that a discussion with the clique members was all that was needed.

And, Sandoval argues, the government failed to offer any evidence

that he ordered Joel Martinez to commit any acts of violence or

instructed anyone else to report back on Joel Martinez's

activities.

- 84 - But, the District Court's "conclusions were properly

rooted in the evidence and its inferences founded in logical

reasoning." United States v. Hernández, 218 F.3d 58, 71 (1st Cir.

2000). Its conclusion that the attempted murders were reasonably

foreseeable to Sandoval also was not clearly erroneous. See, e.g.,

United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990) ("[W]here

there is more than one plausible view of the circumstances, the

sentencing court's choice among supportable alternatives cannot be

clearly erroneous.").

Given our determination on this score, we need not

address Sandoval's claims concerning the accessory-after-the-fact

group. Sandoval argues that the group should have been limited to

mere harboring, which receives fewer levels under the Guidelines.

But, that difference would not have affected the TOL -- or the GSR

-- that applied to Sandoval (not to mention the statutory

maximum).26

If the base offense level for the cross-reference had been 26

20 because the conduct was limited to "harboring," as Sandoval urges, that group would have been discounted for purposes of the combined offense level determination under U.S.S.G. § 3D1.4. See id. § 3D1.4(c) (providing that any group that is "9 or more levels less serious" will not increase the applicable offense level). The combined units would thus have added 2 levels rather than 3 levels. This would have resulted in a TOL of 43. But, the TOL was "treated as an offense level of 43," U.S.S.G. ch. 5, pt. A, cmt. n.2, even with the additional level resulting from the accessory-after-the-fact group.

- 85 - 4.

Sandoval also asserts that a statutory-maximum sentence

is such a significant upward variance from what he contends was

his proper GSR -- 51 to 63 months -- that his sentence is

substantively unreasonable. As we have explained, however, the

District Court's calculation of the GSR as 240 months of

imprisonment was not in error, and challenges based on substantive

unreasonableness are "unlikely" to succeed when, as in this case,

"the sentence imposed fits within the compass of a properly

calculated [GSR]." United States v. Ruiz-Huertas, 792 F.3d 223,

228-29 (1st Cir. 2015) (quoting United States v. Vega-Salgado, 769

F.3d 100, 105 (1st Cir. 2014)). Given that the District Court

offered a "plausible sentencing rationale" for the imposition of

that statutory-maximum sentence and reached a "defensible result,"

United States v. Zapata-Vázquez, 778 F.3d 21, 24 (1st Cir. 2015)

(quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008))

-- namely, that murders and a great deal of violence occurred that

would not have occurred but for this organization in which Sandoval

was a "significantly high leader" -- the within-Guidelines

sentence of 240 months of imprisonment that Sandoval received was

substantively reasonable.

Next, we take up the procedural and substantive

reasonableness challenges that Guzman brings to his 192-month

- 86 - sentence of imprisonment. We first review the relevant procedural

history.

Guzman's PSR calculated an offense level based on four

groups of relevant conduct: accessory after the fact to the May

12, 2015 attempted murder; accessory after the fact to the

September 20, 2015 murder; the attempted murder of December 27,

2015; and the attempted murder of January 1, 2016. When combined

with a "manager or supervisor" adjustment pursuant to U.S.S.G.

§ 3B1.1(b), these cross-references yielded a TOL of 37 and, with

Guzman's CHC of I, a GSR of 210 to 240 months of imprisonment.27

Guzman objected to all of these cross-references and to the

"manager or supervisor" adjustment.

Guzman's sentencing hearing was held on November 15,

2018. The District Court found that, by a preponderance of the

evidence, Guzman was liable as an accessory after the fact to the

May 12, 2015 attempted murder. But, the District Court did not

include as relevant conduct under U.S.S.G. § 2E1.1 the acts

involving Joel Martinez -- the two attempted murders and being an

accessory after the fact to the September 20, 2015 murder.

Therefore, the District Court used a lower GSR than the PSR: 121

27The PSR calculated the GSR at 210 to 262 months of imprisonment, see U.S.S.G. ch. 5, pt. A (sentencing table), but reduced it to 210 to 240 months of imprisonment in light of the statutory maximum, see U.S.S.G. § 5G1.1.

- 87 - to 151 months' imprisonment. But, the District Court stated that

it found this range "too low" based on the facts and compared to

other gang members' sentences. Thus, it stated that this was "a

case that needs to be resolved on the factors of Section 3553(a)."

In conducting that analysis, the District Court started

from the premise that the case involved "what's in effect a huge

murder conspiracy," in which it found Guzman to have held a

"substantial leadership role." But, the District Court also

recognized that there was no evidence that Guzman personally

committed violent acts and that there was less evidence against

Guzman than against many of the other defendants charged in the

indictment. The District Court also considered that Guzman had a

close relationship with his family and a stable work history, that

he had a painfully difficult childhood, and that he had joined the

gang at a young age and there was "some evidence that he was

participating less as time went on." The District Court ultimately

imposed a 192-month sentence of imprisonment -- a sentence lower

than Sandoval's (and lower than the government's recommendation as

to Guzman, which was also the statutory-maximum 240 months) in

light of Guzman's "somewhat diminished participation in the

organization" and his "family ties."

First, Guzman contends that accessory after the fact to

attempted murder does not qualify as a RICO predicate act of

- 88 - racketeering and thus that any conduct of that type could not be

counted as relevant conduct in determining his offense level under

the Guidelines. Our review is de novo. See United States v.

Dávila-Félix, 667 F.3d 47, 54 (1st Cir. 2011).

As explained above, "underlying racketeering activity"

under U.S.S.G. § 2E1.1 must be activity that qualifies as a RICO

predicate act of racketeering under 18 U.S.C. § 1961(1). Carrozza,

4 F.3d at 77. Section 1961(1), in turn, defines "racketeering

activity" to include "any act or threat involving murder . . .

which is chargeable under State law and punishable by imprisonment

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

Guzman does not dispute that accessory after the fact to

attempted murder is chargeable under state law and punishable by

imprisonment for more than one year. See Mass. Gen. Laws ch. 274,

§ 4. But, he contends that accessory after the fact to attempted

murder under Massachusetts law does not involve murder and so

cannot qualify as a predicate act of racketeering.

In United States v. McKenney, 450 F.3d 39 (1st Cir.

2006), however, we construed the use of "involving" in a provision

of the Armed Career Criminal Act ("ACCA"), 18 U.S.C.

§ 924(e)(2)(A)(ii) (providing that a "serious drug offense"

includes "an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or

distribute, a controlled substance"), to mean "to relate closely"

- 89 - or "to connect closely." Id. at 43. And, construing that same

provision of the ACCA, the Supreme Court explained that "involve"

can mean "to include as a necessary circumstance, condition, or

consequence." See Shular v. United States, 140 S. Ct. 779, 786

(2020).

Relying on these definitions, the government argues that

accessory after the fact to attempted murder under Massachusetts

law -- because it requires that the offending conduct occur "after

the commission of a felony" and with the knowledge that the

principal "has committed a felony," Mass. Gen. Laws ch. 274, § 4

-- is an "act[] . . . involving murder," 18 U.S.C. § 1961(1)(A).

On that basis, it urges that we affirm the District Court's

treatment of this conduct as "underlying racketeering activity"

used to set the base offense level under U.S.S.G. § 2E1.1.

By its terms, the Massachusetts accessory-after-the-fact

statute does "include as a necessary circumstance," Shular, 140 S.

Ct. at 785, the commission of the underlying felony, see Mass.

Gen. Laws ch. 274, § 4. Guzman nonetheless contends that the

accessory-after-the-fact offense in question is not one "involving

murder." But, at least given the limited arguments that he makes

to us for reaching that conclusion, we cannot agree.

Guzman first contends that the constructions of

"involving" in McKenney and Shular "contain no limiting

principle." But, we are hardly in a position as a panel to rely

- 90 - on that rationale here, for to do so would be to undermine both a

prior precedent of our court and a precedent of the Supreme Court.

Moreover, contrary to Guzman's assertion, we emphasized in

McKenney that "involving" "is not to be too broadly read" and that

the "relationship must not be too remote or tangential." 450 F.3d

at 45. And, Guzman does not develop an argument that insofar as

there is a limiting principle, this case is on the wrong side of

it.

To the extent that he does develop such an argument, it

is based solely on his contention that accessory after the fact to

attempted murder has a different mens rea from the offense of

murder itself and involves conduct "that is often, in itself,

comparatively innocuous." And, in support of his position on this

score, Guzman relies on one out-of-circuit precedent construing a

provision that is quite distinct textually from the one at issue

here. That precedent is the Ninth Circuit's decision in United

States v. Innie, 7 F.3d 840 (9th Cir. 1993), which rejected the

government's argument that being an accessory after the fact to a

"crime of violence" under the then-existing career offender

provision of the Guidelines is analogous to conspiring to commit

or aiding and abetting a "crime of violence" under that provision

of the Guidelines. See id. at 852.

But, the question in that case, given what the relevant

provision of the Guidelines said, was not the same as ours or the

- 91 - one presented in McKenney. It concerned whether the defendant's

prior conviction for murder for hire "involve[d] conduct that

presents a serious potential risk of physical injury to another."

Id. at 849 (quoting U.S.S.G. § 4B1.2(1) (1991)).

True, in that distinct context, the Ninth Circuit found

it significant that, "unlike one who conspires to commit a crime

of violence, an accessory after the fact does not agree to commit

the crime of violence" and thus that the accessory-after-the-fact

offense did not constitute a "crime of violence" under that

Guidelines provision. Id. at 852. But, we do not see how that

addresses the issue here.

One can see the basis for the conclusion -- contestable

as it may be -- that an offense of accessory after the fact to

murder for hire may not "involve[] conduct that presents a serious

risk of physical injury to another," U.S.S.G. § 4B1.2(1) (1991),

given the temporal relationship between the "risk" that must be

generated by the offense and when the offense of accessory after

the fact to murder for hire actually occurs. But, here, we are

not attempting to determine whether the offense of accessory after

the fact to attempted murder involves conduct that poses a risk of

physical injury. We are trying to determine only whether it may

be said to be one "involving murder," 18 U.S.C. § 1961(1)(A).

Thus, Guzman has not shown that McKenney and Shular,

which construed a provision using similar "involving" language, do

- 92 - not support the government's position that this accessory-after-

the-fact offense qualifies as one involving murder because murder

is a "necessary circumstance" or "condition" of the offense,

Shular, 140 S. Ct. at 785. Given the limited and inapposite

arguments that Guzman makes to us in challenging this aspect of

the District Court's sentencing of him, we reject his challenge to

it, without thereby suggesting that there is no basis for

questioning whether such an offense can be a racketeering act based

on it being deemed one "involving murder."28

3.

Having rejected Guzman's legal contention that the

conduct involved in the offense of accessory after the fact to

attempted murder cannot constitute "underlying racketeering

28We do note that the U.S. Department of Justice's own RICO manual for federal prosecutors, which neither the government nor Guzman refers to, states that "as a general rule, [a] state offense[] for 'accessory after the fact' to the commission of a state offense referenced in Section 1961(1)(A) does not constitute 'an act involving' such a referenced offense" and cites Innie as seeming support for that conclusion. Organized Crime & Gang Section, U.S. Dep't of Justice, Criminal RICO: 18 U.S.C. § 1961- 1968: A Manual for Federal Prosecutors 27 n.22, 406 & n.445 (6th ed. 2016), https://www.justice.gov/archives/usam/file/870856/ download. We note as well that, in relying on Shular, the government does not address the fact that, in addressing the meaning of "involving" in 18 U.S.C. § 924(e)(2)(A)(ii), the Supreme Court specifically distinguished Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003), which was construing the same RICO provision we consider here. See Shular, 140 S. Ct. at 786; Scheidler, 573 U.S. at 409. Guzman, however, does not cite Scheidler or develop any argument sounding in § 1961(1)(A)'s generic-offense approach. Therefore, he has waived any argument to that effect. See Zannino, 895 F.2d at 17.

- 93 - activity" here because the offense is not an act of racketeering

under RICO, we must consider Guzman's factual argument concerning

the accessory-after-the-fact cross-reference. But, here, too, we

are not persuaded.

Again, the District Court applied only one accessory-

after-the-fact cross-reference as to Guzman. This was related to

the May 12, 2015 stabbing. The evidence presented about that

stabbing came primarily from Hernandez Miguel's testimony.

According to that testimony, Hernandez Miguel went with

other MS-13 members to a park in Chelsea on a request from a fellow

ESLS member who had encountered members of the rival 18th Street

gang there. On the way to the park, Hernandez Miguel testified,

they picked up a foot-long military-style knife. Hernandez Miguel

testified that, once they arrived at the park, the "chavalas"

started running after an MS-13 member flashed a knife. Hernandez

Miguel saw two ESLS members beating a rival gang member on the

ground -- he then joined them and started stabbing the rival gang

member with the military-style knife. The man he was stabbing

kicked the knife while Hernandez Miguel was stabbing him with it,

and Hernandez Miguel ended up cutting himself.

Hernandez Miguel left with CW-1 and another individual

who was associated with a different MS-13 clique. He testified

that they decided to go to Guzman's house given that Hernandez

- 94 - Miguel was bleeding a lot. Guzman led Hernandez Miguel into the

basement, where Hernandez Miguel "told [Guzman] what had

happened." According to Hernandez Miguel's testimony, Guzman

helped Hernandez Miguel clean the wound by pouring tequila on it,

provided Hernandez Miguel with clean clothing, and told Hernandez

Miguel that he would dispose of the bloody clothing by "tak[ing]

it to the garbage since he worked with the garbage" (which may

have been a reference to Guzman's employment as a garbage

collector). Guzman also, according to this testimony, expressed

concern that the individual who was not an ESLS member "might

snitch" and told Hernandez Miguel that he should not have brought

along someone Guzman did not know.

The government's evidence also included testimony from

an officer with the Chelsea Police Department who, the evidence

supportably shows, responded to the scene of the stabbing. The

officer testified that an individual with tattoos he associated

with the 18th Street gang was lying on the ground bleeding from a

single stab wound to the left side of the middle of his torso.

The individual was transported "immediately to the hospital" in an

ambulance.

Guzman first argues that the evidence was insufficient

to show by a preponderance of the evidence that the underlying act

-- the May 12, 2015 stabbing -- constituted attempted murder under

- 95 - Massachusetts law. The District Court supportably concluded that

Hernandez Miguel did intend to commit murder, given that he stabbed

someone in the torso and given the context in which that stabbing

had occurred, based on what the evidence supportably showed about

the mission of the ESLS clique and the reason they were attacking

rival gang members in the park. This conclusion was not clear

Guzman next argues that, even if the stabbing did

constitute attempted murder, the government still failed to show

that Guzman had sufficient knowledge of the underlying felony to

be considered an accessory after the fact under Massachusetts law.

Even assuming, as Guzman contends, that this requires that Guzman

was apprised of "the substantial facts of the [underlying]

felonious crime," Commonwealth v. Devlin, 314 N.E.2d 897, 899 &

n.4 (Mass. 1974), we find that the District Court did not clearly

err in answering this question in the affirmative. In addition to

Hernandez Miguel's testimony that he told Guzman "what had

happened" and what the evidence supportably showed about Guzman's

understanding of the clique's mission, the District Court could

supportably conclude from Hernandez Miguel's description of

Guzman's actions -- which included explaining that he would throw

Hernandez Miguel's clothes away because he "worked with the

garbage" and expressing concern that someone might "snitch" --

- 96 - that a preponderance of the evidence showed that Guzman "knew that

[the] felony had been committed," Devlin, 314 N.E.2d at 899.

4.

Next, Guzman asserts that the District Court imposed an

upward departure without notice. This challenge is based on the

fact that, in the statement of reasons, the District Court

completed the section corresponding to departures (section V)

rather than the section corresponding to variances (section VI),

indicating an above-Guidelines departure under U.S.S.G. § 5K2.18

pursuant to a government motion for departure. Our review is for

abuse of discretion. See United States v. Flores-Quiñones, 985

F.3d 128, 133 (1st Cir. 2021).

As Guzman acknowledges, the government had not sought an

upward departure. And, as he also acknowledges, the District Court

did not check the box in section IV of the statement of reasons

indicating that it departed from the Guidelines range (IV.C);

instead, it checked the box indicating that it imposed a variance

(IV.D).

The District Court explained, moreover, that it was

imposing a sentence based on the 18 U.S.C. § 3553(a) factors.

Thus, in the context of the record as a whole, we find it clear

that the District Court was varying rather than departing, despite

its completion of the "departures" section of the written statement

- 97 - of reasons. See United States v. Santini-Santiago, 846 F.3d 487,

491 (1st Cir. 2017) (explaining that setting a sentence in

reference to the § 3553(a) factors is the "hallmark of a

variance").

Guzman argues in the alternative that even if the

District Court is deemed to have fashioned a variant sentence under

§ 3553(a), there was still procedural error. Our review is for

abuse of discretion. See Flores-Machicote, 706 F.3d at 20.

First, Guzman contends that Fed. R. Crim. P. 32(h)'s

notice requirement "applies equally to both departures and

variances," but we have squarely rejected this claim. See United

States v. Aponte-Vellón, 754 F.3d 89, 93-94 (1st Cir. 2014) (citing

Irizarry v. United States, 553 U.S. 708, 716 (2008)). He also

argues that even if the District Court is deemed to have fashioned

a variant sentence in light of the sentencing factors enumerated

in § 3553(a), its reliance on U.S.S.G. § 5K2.18 -- violent gang

membership -- would still have contravened Guidelines principles.

Cf. United States v. Lawrence, 254 F. Supp. 3d 441, 455 (E.D.N.Y.

2017) (Weinstein, J.) ("The Guidelines do not consider gang

membership as a factor in sentencing, except for defendants who

are sentenced under 18 U.S.C. § 521 . . . .").

Guzman does not point to any indication other than the

check mark in the statement of reasons that the District Court

- 98 - used this particular rationale, and the District Court did not

refer to U.S.S.G. § 5K2.18 at the sentencing hearing. Instead,

its § 3553(a) analysis shows that the District Court considered

what it found to be Guzman's "significant role" in what was "in

effect a huge murder conspiracy." And, aside from his sufficiency

arguments, Guzman does not argue that this was problematic as a

Guidelines matter.

5.

Next, Guzman assigns error to the District Court's

finding that Guzman was a "manager or supervisor" under U.S.S.G.

§ 3B1.1(b), which resulted in a three-level enhancement. Guzman

asserts that his title as "second word" was not alone sufficient

to conclude that he functioned as a manager or supervisor. And,

he contends, the evidence of the role he actually played in the

clique did not support the District Court's finding that he played

a managerial or supervisory role. He contends that he did not

"exercise significant decisionmaking authority."29 Instead, Guzman

argues, his role was effectively like that of any other homeboy,

29This language comes from the factors listed in application note 4 to U.S.S.G. § 3B1.1. Guzman contends that the District Court "fail[ed] to properly apply the multi-factor analysis set forth in" U.S.S.G. § 3B1.1 and that application note. But, application note 4 sets out factors, including "the exercise of decision making authority," for sentencing courts to use in "distinguishing a leadership and organizational role" -- which receives an additional offense-level increase -- "from one of mere management or supervision."

- 99 - save perhaps for his role collecting dues, which was, he argues,

a role more akin to a "mere clerk" than a "discretionary

decisionmaker" entrusted to handle substantial funds. Our review

is for clear error, see United States v. Soto-Beníquez, 356 F.3d

1, 54 (1st Cir. 2003), and we find none.

At trial, Hernandez Miguel testified that Guzman was in

charge of the clique money and would "collect the dues." The

government also argues that Guzman had some degree of control over

the clique's guns. And, while testimony at trial indicated that

clique members considered Sandoval the "main runner" and Guzman as

the "second one," Hernandez Miguel also testified that "the second

one is there in case the first one is not." The evidence also

supportably showed that clique members sought permission from the

"runners," plural, which was fairly understood to include Guzman,

to do certain things and that clique members reported their

activities to "runners," plural.

In light of this evidence, we find that the District

Court did not clearly err in finding, by a preponderance of the

evidence, that Guzman exercised "some 'degree of control or

organizational authority over others.'" United States v. Cali, 87

F.3d 571, 578 (1st Cir. 1996) (quoting United States v. Fuller,

897 F.2d 1217, 1220 (1st Cir. 1990)); see also United States v.

Savoie, 985 F.2d 612, 616 (1st Cir. 1993) ("Managerial status

[generally] attach[es] if there is evidence that a defendant, in

- 100 - committing the crime, exercised control over, or was otherwise

responsible for overseeing the activities of, at least one other

person.").

6.

Finally, Guzman contends that his above-Guidelines

sentence was substantively unreasonable. As we have indicated,

"[t]he hallmarks of a substantively reasonable sentence are 'a

plausible sentencing rationale and a defensible result.'" Zapata-

Vázquez, 778 F.3d at 24 (quoting Martin, 520 F.3d at 96). When,

as here, we are reviewing a sentence outside the GSR, we are

"obliged to consider the extent of the variance," but we still

"give due deference to the district court's decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance."

Martin, 520 F.3d at 92 (quoting Gall v. United States, 552 U.S.

38, 51 (2007)). "[E]ven a substantial variance does not translate,

ipso facto, into a finding that the sentence is substantively

unreasonable." Flores-Machicote, 706 F.3d at 25. Instead, "[w]e

will reverse only where the sentence is either outside the

'universe of reasonable sentences' or was implausibly reasoned."

United States v. Alejandro-Rosado, 878 F.3d 435, 440 (1st Cir.

2017) (quoting United States v. Rivera-González, 776 F.3d 45, 52

(1st Cir. 2015)). We review for abuse of discretion. See Martin,

520 F.3d at 87.

- 101 - Guzman's substantive reasonableness challenge is based

in part on the District Court's reliance on what he contends were

improper sentencing factors. First, Guzman contends that the

District Court's statements that Guzman "did not accept

responsibility" and "did not cooperate" improperly punished Guzman

for exercising his Fifth and Sixth Amendment rights. The record

does not indicate that the District Court increased Guzman's

sentence for this reason. Instead, the record makes clear that,

in determining what Guzman's sentence should be, the District Court

was considering how Guzman's offense conduct and sentencing

considerations compared to other defendants charged in the FSI,

such that Guzman's sentence would fairly compare to those other

sentences imposed. And, one consideration relevant to that inquiry

was the fact that some of those defendants' sentences reflected

the fact that they had received credit for their cooperation or

acceptance of responsibility "within the meaning of the

guidelines." Moreover, to the extent the District Court was

considering the fact that Guzman did not personally cooperate or

accept responsibility in setting his sentence, we have held that

considerations such as failure to accept responsibility can

properly inform a sentencing court's § 3553(a) analysis even when

the Guidelines range itself reflects the fact that the defendant

did not accept responsibility. See United States v. Paz Uribe,

- 102 - 891 F.2d 396, 400 (1st Cir. 1989); United States v. Cruzado-

Laureano, 527 F.3d 231, 236-37 (1st Cir. 2008).

Guzman also contends that the District Court's upward-

variance decision was based largely on factors already accounted

for in the Guidelines calculation -- specifically, Guzman's

leadership role and his role as an accessory after the fact to the

May 12, 2015 attempted murder.

To the extent the District Court relied on these factors

to impose a sentence above the Guidelines range, it "specifically

articulate[d] [its] reasons for doing so," which was all it was

required to do. United States v. Maisonet-González, 785 F.3d 757,

764 (1st Cir. 2013); see also United States v. Hernández-Ramos,

906 F.3d 213, 215 (1st Cir. 2018) (concluding that the sentencing

court's reliance on offense conduct and personal characteristics

in varying upward was not improper double-counting because those

considerations "form the foundation of most guidelines

calculations" and therefore the defendant's "double-counting

argument, if embraced, would render every variance based on offense

conduct and the defendant's characteristics unreasonable"). The

District Court did not abuse its discretion in this respect.

Guzman also argues that to the extent the above-

Guidelines sentence was based on his gang membership, this, too,

was improper. Because this argument relies on the U.S.S.G.

§ 5K2.18 argument we have already rejected, it fails here as well.

- 103 - Guzman also asserts that an above-Guidelines sentence

could not rest on Guzman's participation in the gang or his

participation in Joel Martinez's jump-in given the evidence

showing that his "participation waned considerably during the

government's investigation of the case" and that he "was not

supportive of expanding ESLS to include [Joel Martinez] and his

associates." But, the District Court did account for Guzman's

"somewhat diminished participation" in the organization and the

evidence suggesting "that he was participating less and maybe

caring more about his family than the gang." Its determination

that the fact that "he held a leadership role in an organization

that encouraged people to commit murder, that promoted murder and

that protected murderers" nevertheless justified an upwardly

variant sentence was plausible.

We conclude that the District Court's sentencing

rationale, which carefully addressed the competing considerations

-- such as Guzman's family ties, hard work, and "somewhat

diminished participation" in the organization along with his

leadership role in "what's in effect a huge murder conspiracy" --

both was plausible and arrived at a result that was within the

"universe of reasonable sentences," Rivera-González, 776 F.3d at

52. There was no error in this regard.

- 104 - C.

We next consider the challenges that Larios brings to

his 180-month sentence of imprisonment for RICO conspiracy. We

begin by explaining the relevant procedural history.

The PSR calculated five groups to determine Larios's

adjusted offense level, based on the following relevant conduct:

the cocaine conspiracy related to the drug protection detail,

calculated based on 5 kilograms of cocaine; the conspiracy to

murder CW-1; accessory after the fact to the September 20, 2015

murder of Irvin de Paz; accessory after the fact to the December

27, 2015 attempted murder; and accessory after the fact to the

January 1, 2016 attempted murder.

Larios objected to all of these cross-references. He

also objected to the use of the preponderance standard for the

relevant conduct determination, arguing that such enhancements

should be proved beyond a reasonable doubt. And, he argued that

he was entitled to a downward departure for sentencing factor

manipulation.

At Larios's sentencing on November 19, 2018, the

District Court reiterated its finding, as a general matter, that

accessory after the fact does constitute racketeering activity for

purposes of U.S.S.G. § 2E1.1(a)(2). But, the District Court

declined to adopt the PSR's attribution of the three accessorial

- 105 - crimes to Larios. And, the District Court calculated the drug

conspiracy group based on one kilogram of cocaine -- an amount it

found foreseeable to Larios -- rather than the five kilograms used

in the PSR. The District Court adopted the PSR's recommendation

as to the cross-reference for conspiracy to murder CW-1, which it

found appropriate to include as a Guidelines matter. Thus, the

District Court determined that Larios had a TOL of 35. Combined

with a CHC of I, this generated a GSR of 168 to 210 months of

imprisonment. See U.S.S.G. ch. 5, pt. A (sentencing table).

The District Court imposed a 180-month prison sentence.

In doing so, it stated that it felt the sentence imposed would be

"appropriate whether or not the guidelines came out the way they

did, whether higher or lower." In determining that the sentence

was appropriate, the District Court considered, among other

factors, that Larios was not a clique leader, that there was no

evidence that he had personally committed actual violence, and the

sentences given to his codefendants.

Larios challenges the standard of proof used to find

relevant conduct based on the Due Process Clause of the U.S.

Constitution. He contends that it requires that a heightened

standard of proof apply to those determinations when the relevant

conduct drives the Guidelines significantly higher. He relies for

this proposition on our recognition that "[a]t the outer limits,

- 106 - Guidelines offense-level increases based on uncharged crimes might

violate a defendant's Sixth Amendment and due process rights if

the additional increases are responsible for such a

disproportionate share of the sentence that they become the 'tail

which wags the dog of the substantive offense.'" United States v.

González, 857 F.3d 46, 59-60 (1st Cir. 2017) (quoting United States

v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995)). Our review is de

novo. See id. at 58.

We have recognized that "[r]elevant conduct increases a

defendant's sentence, sometimes very significantly, despite the

fact that it was not charged in an indictment, and even despite

the fact that a jury may have acquitted the defendant for that

precise conduct." Carrozza, 4 F.3d at 80 (citation omitted).

Nevertheless, we have held that the applicability of relevant

conduct need only be proved by a preponderance of the evidence

where it does not change the statutory sentencing range, see id.;

González, 857 F.3d at 58-61, and we have rejected the suggestion

that there may be reason to deviate from this rule in the RICO

context, see Carrozza, 4 F.3d at 80-81.

Nor did the use of the preponderance standard to

determine relevant conduct in this particular case lead to an

outcome so unfair as to raise due process concerns. This Court

has found an enhancement based on relevant conduct to raise such

concerns in one case, which we described as "an unusual and perhaps

- 107 - a singular case." Lombard, 72 F.3d at 187; see also González, 857

F.3d at 60. Larios makes no attempt to compare his case to the

"extreme" circumstances present there. And, any comparison

demonstrates that Larios's argument cannot succeed.

Larios received a sentence under the 20-year statutory

maximum for the offense of conviction. See 18 U.S.C. § 1963(a);

Lombard, 72 F.3d at 180-81; see also González, 857 F.3d at 60

(finding it "critical[]" that the sentence imposed was the

statutory maximum for the pled-to crime, unlike in Lombard, in

which there was no statutory maximum for the pled-to crime and the

relevant conduct thus "essentially displaced the lower Guidelines

range that otherwise would have applied," 72 F.3d at 178); United

States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001). Moreover, the

District Court here "recognized its discretion to sentence

[Larios] outside of the Guidelines range," González, 857 F.3d at

60, and in fact noted that although the sentence imposed did fall

within the calculated Guidelines range, that sentence was selected

as the appropriate one under 18 U.S.C. § 3553(a) based on factors

including comparison to Larios's codefendants, see id. (noting

that one confounding factor in Lombard had been the sentencing

court's belief that it "lacked the authority to impose anything

less than a life sentence").

- 108 - 3.

Larios separately contends that there is insufficient

evidence in the record, even under a preponderance standard, to

attribute the drug conspiracy and the conspiracy to murder CW-1 to

him. We disagree.

We address the cross-reference for conspiracy to murder

CW-1 first. This cross-reference reflects the testimony from

Hernandez Miguel that Larios had told him that he had previously

"made a plan" with Martinez to kill CW-1 and had asked Sandoval

for a "green light."

Larios argues that Hernandez Miguel's testimony about

Larios's statements was uncorroborated; that the statements, if

made, were merely "idle chatter"; and that even if Larios did make

the statements and was sincere, there was no agreement and "can be

no conspiracy based on only one person's illusory desire." But,

we will set the District Court's determination on this score aside

only if clearly erroneous. See Sepulveda, 15 F.3d at 1200.

Having presided over the lengthy and complex trial, the

District Court was "steeped in the facts of the case" and in a

superior position to make credibility determinations. Id. It

thus did not clearly err in attributing the conspiracy to murder

CW-1 to Larios for sentencing purposes based on Hernandez Miguel's

testimony indicating that Larios and Martinez had "devised a plan"

and the fact that such testimony comported with the other evidence

- 109 - adduced at trial about MS-13's methods of operation, which included

killing informants but only upon a "green light" from leadership.

Given this conclusion, we need not consider Larios's

arguments that the inclusion of the drug conspiracy as "underlying

racketeering activity" was unsupportable. The inclusion of that

offense as a cross-reference had no independent effect on the TOL

-- or the GSR -- that applied to Larios.30 See Sepulveda, 15 F.3d

at 1199 ("It is unnecessary to address an allegedly erroneous

sentencing computation if, and to the extent that, correcting it

will not change the applicable offense level or otherwise influence

the defendant's GSR . . . ."); cf. Carrozza, 4 F.3d at 82 n.10

(noting that district courts need not even "make findings as to

acts proffered as relevant conduct" if those acts will not affect

the offense level under U.S.S.G. § 3D1.4).31

30Because the drug quantity that the District Court used for the drug conspiracy cross-reference resulted in an adjusted offense level for that group that was nine levels lower than the adjusted offense level for the "conspiracy to murder CW-1" group, it did not result in an offense-level increase. See U.S.S.G. § 3D1.4(c) (providing that groups "9 or more levels less serious than the Group with the highest offense level . . . will not increase the applicable offense level but may provide a reason for sentencing at the higher end of the sentencing range for the applicable offense level"). Thus, Larios would have faced a TOL of 35, and a GSR of 168 to 210 months of imprisonment, with or without the determination that the events surrounding the drug protection detail constituted "underlying racketeering activity" under U.S.S.G. § 2E1.1. 31Larios also briefly assigns error to the District Court's reliance on the accessorial crimes stemming from the January 8, 2016 clique meeting and jump-in of Joel Martinez. As he acknowledges, however, the District Court did not include any

- 110 - 4.

Larios's final challenge regarding his sentence takes

aim at the District Court's decision rejecting his claim of

sentencing factor manipulation, which is also known in this circuit

as "sentencing entrapment." United States v. DePierre, 599 F.3d

25, 29 (1st Cir. 2010). Larios bears the burden to show by a

preponderance of the evidence that "the government . . .

improperly enlarged the scope or scale of the crime to secure a

higher sentence." See id.; see also United States v. Barbour, 393

F.3d 82, 86 (1st Cir. 2004). Our review is for clear error.

Barbour, 393 F.3d at 86.

We note at the outset that, to the extent Larios can be

understood as arguing that the District Court failed to even

consider his sentencing manipulation claim, we disagree. The

District Court made clear that it overruled any argument Larios

made based on sentencing entrapment or manipulation. See United

States v. Jaca-Nazario, 521 F.3d 50, 57 (1st Cir. 2008) (concluding

based on a similar statement that the sentencing court considered

sentencing factor manipulation enough to reject it). In fact, as

Larios's counsel acknowledged during the sentencing hearing, the

accessory-after-the-fact cross-references as "underlying racketeering activity" under U.S.S.G. § 2E1.1. Thus, his argument that those offenses were not charged or chargeable RICO predicates is inapposite. Larios develops no argument suggesting that the District Court's consideration of this activity in conducting a § 3553(a) analysis was otherwise improper.

- 111 - District Court had already considered and rejected the need to

consider sentencing manipulation during Sandoval's sentencing

proceeding.

Nor can we conclude that the District Court clearly erred

in making the determination that sentencing manipulation had not

been shown. The primary focus of the sentencing manipulation

inquiry in this circuit is on the impropriety of the government's

conduct. DePierre, 599 F.3d at 29; Jaca-Nazario, 521 F.3d at 58.

In order to meet his burden, Larios must show "extraordinary

misconduct." DePierre, 599 F.3d at 29 (quoting Jaca-Nazario, 521

F.3d at 58); accord United States v. Montoya, 62 F.3d 1, 4 (1st

Cir. 1995).

Larios relies on the government's role in the drug

protection detail and the circumstances linking Larios to the

December 27, 2015 and January 1, 2016 attempted murders and the

Irvin de Paz murder. But, none of these events inflated the

applicable GSR. Thus, we do not see how sentencing manipulation

would apply here, much less have an effect in Larios's case, given

that it provides an "equitable remed[y]" in the form of lowering

the offense level or authorizing a below-Guidelines sentence in

those cases in which the sentence has been improperly driven up by

government misconduct. United States v. Capelton, 350 F.3d 231,

246 (1st Cir. 2003); see also Montoya, 62 F.3d at 3; United States

v. Gibbens, 25 F.3d 28, 31 (1st Cir. 1994).

- 112 - Moreover, while Larios does attempt to differentiate CW-

1's involvement from an ordinary sting operation in terms of CW-

1's personal involvement in serious, unauthorized criminal

activity, there was a factual dispute as to the government's

knowledge of these unauthorized acts, and the government's

explanation, "apparently credited by the district court, is at

least as plausible as the adverse inference that [Larios] would

have us draw," Gibbens, 25 F.3d at 32. So, too, were there

plausible explanations for the government to delay the arrest of

Joel Martinez. See Barbour, 393 F.3d at 85-86 (explaining that

legitimate reasons to delay the arrest of the defendant himself

included identifying additional coconspirators and obtaining more

evidence).

A defendant "cannot make out a case of undue provocation

simply by showing that the idea originated with the government or

that the conduct was encouraged by it, or that the crime was

prolonged beyond the first criminal act, or exceeded in degree or

kind what the defendant had done before." Montoya, 62 F.3d at 3-4

(citations omitted). Moreover, "the district court's ultimate

judgment whether the government's conduct is outrageous or

intolerable is not lightly to be disregarded." Id. at 4.

Accordingly, we conclude that there is no merit to Larios's claim

of sentencing factor manipulation.

- 113 - D.

Finally, we consider Martinez's sentencing challenges.

Martinez, who was acquitted of the RICO conspiracy count, was

convicted only of conspiracy to distribute (500 grams or more of)

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846.

After receiving the PSR, Martinez objected to the

inclusion of material related to conduct for which he was acquitted

in the PSR's statement of offense conduct. He argued that the

material, which was not conduct related to the drug offense for

sentencing purposes, was "extremely prejudicial and harmful."

Martinez requested a statutory-minimum sentence of 60 months. The

government requested a sentence of double that length, arguing

that Martinez was "more dangerous than his GSR suggests" given

corroborated evidence of Martinez's involvement in MS-13 and his

commission of violence on behalf of the enterprise.

Martinez was sentenced on December 18, 2018. The

District Court adopted the PSR's GSR calculation of 60 to 63 months

of imprisonment.32 At Martinez's sentencing hearing, the District

Court noted that "considerable caution" was warranted with respect

to the use of acquitted conduct. Nevertheless, it concluded that

it "could find fairly easily by a preponderance of the evidence

32Martinez's TOL of 24 and CHC of I yielded an advisory GSR of 51 to 63 months, see U.S.S.G. ch. 5, pt. A (sentencing table), but the GSR was compressed by the interposition of a statutory mandatory minimum, see U.S.S.G. § 5G1.1(c)(2).

- 114 - that Mr. Martinez was a member of MS-13, that he attended ESLS

clique meetings," and that he was present at Joel Martinez's jump-

in. The District Court imposed an upwardly variant sentence of 72

months -- significantly lower than the government's recommendation

of 120 months -- to "reflect[] the fact that . . . Martinez is

more dangerous an individual than the guidelines or his criminal

record suggest."

Martinez appeals his 72-month sentence as procedurally

unreasonable on two grounds. First and foremost, he challenges

the District Court's reliance on acquitted conduct in sentencing.

Additionally, he argues -- albeit only in a footnote -- that the

District Court improperly departed from the GSR without meeting

the requirements of U.S.S.G. § 5K2.18 or Fed. R. Crim. P. 32(h).

We take the acquitted conduct point first. Martinez

acknowledges that this argument is foreclosed by First Circuit

precedent. See, e.g., United States v. Gobbi, 471 F.3d 302, 314

(1st Cir. 2006) (holding that United States v. Booker, 543 U.S.

220 (2005), did not change the law that "acquitted conduct, if

proved by a preponderance of the evidence, still may form the basis

for a sentencing enhancement"). But, Martinez argues at length

that this Court, in so holding, has adopted an erroneous and

overbroad interpretation of United States v. Watts, 519 U.S. 148,

156-57 (1997) (per curiam) (holding that "a jury's verdict of

- 115 - acquittal does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct

has been proved by a preponderance of the evidence"). He therefore

effectively asks us to reconsider this Court's decisions upholding

the use of acquitted conduct at sentencing.

Martinez makes no argument as to how we may do so,

however. With rare exceptions, "newly constituted panels in a

multi-panel circuit are bound by prior panel decisions closely on

point." United States v. Rodríguez, 527 F.3d 221, 224-25 (1st

Cir. 2008). Martinez makes no attempt to establish how either of

those exceptions -- which require either that subsequently

announced controlling authority contradict the preexisting panel

opinion or that subsequently announced authority, "although not

directly controlling, nevertheless offers a sound reason for

believing that the former panel, in light of fresh developments,

would change its collective mind," id. at 225 (quoting Williams v.

Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)) -- apply here.

And, indeed, it is clear they do not. Martinez argues

that Booker, along with various Justices' calls (in non-

controlling opinions) to examine the continuing use of acquitted

conduct in sentencing, see, e.g., Jones v. United States, 574 U.S.

948, 948 (2014) (Scalia, J., dissenting from denial of certiorari),

demonstrates that "the Supreme Court has never foreclosed

challenges to the use of acquitted conduct at sentencing under the

- 116 - Due Process Clause and the Sixth Amendment's right to a trial by

jury." This invocation of that precedent, however, fails to

provide a basis for this panel to revisit this Court's (post-

Booker) opinions expressly foreclosing that very issue. Nor do

the post-Watts cases Martinez cites as emphasizing "the central

role of the jury" suffice to meet the "narrowly circumscribed"

exceptions to the law-of-the-circuit doctrine, United States v.

Barbosa, 896 F.3d 60, 74 (1st Cir. 2018).

Martinez also contends, like Guzman, that the District

Court applied an improper upward departure. Again, we review for

abuse of discretion. See Flores-Quiñones, 985 F.3d at 133.

Here, too, the District Court checked the box for

U.S.S.G. § 5K2.18 -- "Violent Street Gang" -- in the "reasons for

departure" section of the statement of reasons. But, unlike in

Guzman's statement of reasons, the District Court in Martinez's

case also completed section VI of the statement of reasons, which

concerns variances. Doing so was consistent with its selection

under section IV of the statement of reasons that it was

"impos[ing] a sentence otherwise outside the sentencing guideline

system (i.e., a variance)" and not departing from the Guidelines

range.

Moreover, the District Court's oral pronouncements make

clear that it was varying rather than departing. The District

- 117 - Court did state that it was going to "depart upward but only to 72

months," but it is clear in context that the District Court was

not referring to a formal departure under the Guidelines. And, in

its oral statement of reasons, the District Court explained that

the sentence was "a nonguideline sentence imposed under Section

3553(a) for the reasons indicated." We find that the record

indicates that the District Court imposed a variant sentence rather

than a departure. See United States v. Nelson, 793 F.3d 202,

206-07 (1st Cir. 2015) (finding variance rather than departure

even though "[t]he district court at one point used the term

'depart'" but then "explained its decision to impose an above-the-

range sentence" in part by referencing "several of the enumerated

section 3553(a) factors").

In any event, any procedural error that occurred to the

extent that the District Court's rationale is better understood as

a departure would be harmless. The record makes abundantly clear

that "the district court would have imposed the same sentence as

a variance in any event," Aponte-Vellón, 754 F.3d at 93, and

Martinez makes no separate claim that the extent of the variance

was unwarranted.

IX.

For the foregoing reasons, we affirm the convictions and

sentences for these defendants.

- 118 -