United States v. Velazquez-Fontanez

6 F. 4th 205

• Court: Court of Appeals for the First Circuit
• Decided: July 27, 2021
• Docket: 18-1188P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 18-1188, 19-1010

UNITED STATES,

Appellee,

v.

CARLOS VELAZQUEZ-FONTANEZ,

Defendant, Appellant.

No. 18-1215

RUBEN COTTO-ANDINO, a/k/a Ruben El Negro,

No. 18-2265

JOSE D. RESTO-FIGUEROA, a/k/a Tego,

Defendant, Appellant. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.

Maria Soledad Ramirez-Becerra, with whom Maria Soledad Ramirez Becerra Law Office was on brief, for appellant Carlos Velazquez-Fontanez. José Luis Novas Debién for appellant Ruben Cotto-Andino. Michael R. Hasse for appellant Jose D. Resto-Figueroa. Michael A. Rotker, Attorney, Criminal Division, Appellate Section, with whom W. Stephen Muldrow, United States Attorney, Victor O. Acevedo-Hernandez, Assistant United States Attorney, Alberto R. Lopez-Rocafort, Assistant United States Attorney, and Brian C. Rabbitt, Acting Assistant Attorney General, Criminal Division, were on brief, for appellee.

July 27, 2021 KAYATTA, Circuit Judge. A federal grand jury in the

District of Puerto Rico returned an indictment charging

105 individuals with various criminal offenses connected to La

Rompe ONU, a drug trafficking organization that operated from 2007

until at least July 17, 2015, in San Juan, Puerto Rico. Following

a trial, three of the indicted defendants -- Carlos

Velazquez-Fontanez, Jose D. Resto-Figueroa, and Ruben Cotto-Andino

-- were convicted on every count charged against them. On appeal,

they challenge their convictions on several grounds. For the

reasons that follow, we affirm Velazquez-Fontanez's and

Resto-Figueroa's convictions; we vacate Cotto-Andino's

convictions; and we remand for further proceedings consistent with

this opinion.

I. BACKGROUND

We begin with the essential background facts. In 2004,

drug traffickers in San Juan, Puerto Rico, formed "La Organización

de Narcotraficantes Unidos" ("La ONU"), a cartel designed to reduce

conflicts between traffickers and to avoid police scrutiny. By

2008, La ONU had splintered into two rival gangs, La ONU and La

Rompe ONU ("La Rompe"). The two groups have since waged war over

control of San Juan's most profitable drug distribution territory.

At drug distribution "points" under its control, La Rompe sold

marijuana, cocaine, crack cocaine, heroin, and prescription drugs.

- 3 - To secure and finance La Rompe's drug-trafficking activities, its

members committed robberies, carjackings, and contract killings.

La Rompe's leaders decided who could sell drugs in its

territory, ordered lower-ranking members to commit robberies or

killings, and authorized La Rompe members to kill fellow members

when intra-gang disputes arose. Members rose up La Rompe's ranks

by hunting down and killing members of La ONU.

The indictment claimed that Cotto-Andino,

Velazquez-Fontanez, and Resto-Figueroa were members of La Rompe.

It charged them with racketeering conspiracy in violation of 18

U.S.C. § 1962(d) based on numerous acts of drug trafficking and

several murders, and with conspiracy to possess with intent to

distribute cocaine, crack cocaine, heroin, and marijuana within

1,000 feet of a public-housing facility in violation of 21 U.S.C.

§§ 841(a)(1), 846, and 860. The indictment also charged

Velazquez-Fontanez with drive-by-shooting murder in furtherance of

a major drug offense in violation of 18 U.S.C. § 36(b)(2)(A) and

with using a firearm during and in relation to a crime of violence

in violation of 18 U.S.C. § 924(c)(1)(A), (j)(1)–(2). In

connection with a separate incident, the indictment charged

Resto-Figueroa with drive-by-shooting murder in furtherance of a

major drug offense in violation of 18 U.S.C. § 36(b)(2)(A) and

with using a firearm during and in relation to a crime of violence

in violation of 18 U.S.C. § 924(c)(1)(A), (j)(1)–(2).

- 4 - Velazquez-Fontanez, Resto-Figueroa, and Cotto-Andino

were tried together. The jury returned guilty verdicts on every

count against each defendant.1 These timely appeals followed.

II. DISCUSSION

We address defendants' appellate challenges to their

convictions in the following order: (A) the defendants'

sufficiency of the evidence arguments; (B) Cotto-Andino's

evidentiary objections; (C) Resto-Figueroa's mistrial motion;

(D) Resto-Figueroa's instructional error claims; and

(E) Velazquez-Fontanez's and Resto-Figueroa's challenges to the

district court's responses to questions asked by the jury during

its deliberations.

A. Sufficiency of the Evidence

Each defendant timely moved pursuant to Fed. R. Crim.

P. 29 to challenge the sufficiency of the evidence against him.

Reviewing de novo the denial of these motions, see United States

v. Millán-Machuca, 991 F.3d 7, 17 (1st Cir. 2021), we view the

trial record in the light most favorable to the verdict and draw

all reasonable inferences in the verdict's favor, see United States

v. Meléndez-González, 892 F.3d 9, 17 (1st Cir. 2018). Our task is

to determine "whether 'any rational trier of fact could have found

1 Both Velazquez-Fontanez and Resto-Figueroa were also charged with and convicted of an additional section 924(c) count, but those convictions were subsequently dismissed.

- 5 - the essential elements of the crime beyond a reasonable doubt.'"

United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) (quoting

United States v. Henderson, 320 F.3d 92, 102 (1st Cir. 2003)).

Unlike his two co-defendants, Cotto-Andino challenges

several of the district court's evidentiary rulings. When we

review those rulings in a later section, we adopt a "balanced"

approach, "objectively view[ing] the evidence of record." United

States v. Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015)

(quoting United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir.

2015)). For now, though, we present the facts relevant to

Cotto-Andino's sufficiency challenge in the light most favorable

to the verdict.

1. 18 U.S.C. § 1962(d)

The Racketeer Influenced and Corrupt Organizations Act

makes it "unlawful for any person employed by or associated with

any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate,

directly or indirectly, in the conduct of such enterprise's affairs

through a pattern of racketeering activity." 18 U.S.C. § 1962(c).

The elements of a substantive RICO offense consist of "(1) the

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

activity." Salinas v. United States, 522 U.S. 52, 62 (1997). RICO

also makes it "unlawful for any person to conspire to" commit a

substantive RICO offense. 18 U.S.C. § 1962(d). To prove a RICO

- 6 - conspiracy offense, the government must show that "the defendant

knowingly joined the conspiracy, agreeing with one or more

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

would satisfy all the elements of a substantive [RICO] offense.'"

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

(alterations in original) (quoting Salinas, 522 U.S. at 65).

Unsurprisingly, none of the defendants contends that the

government failed to prove the existence of a far-ranging RICO

enterprise and conspiracy. Eyewitness testimony described in

detail the rise of La Rompe as a coordinated and hierarchal

organization, with members bound together by shared hand signals,

meetings, drug distribution, and the use of violence to maintain

power and control over drug points in the face of competition from

La ONU. Each defendant challenges instead the sufficiency of the

proof that he was a member of that RICO conspiracy.

The Supreme Court has made clear that holding a

particular person responsible for the acts of a RICO conspiracy

does not require the government to prove that that person committed

or even agreed to commit two or more racketeering acts. See

Salinas, 522 U.S. at 65. Rather, "the government's burden . . .

is to prove that the defendant agreed that at least two acts of

racketeering would be committed in furtherance of the conspiracy."

Millán-Machuca, 991 F.3d at 18 (quoting United States v.

- 7 - Leoner-Aguirre, 939 F.3d 310, 317 (1st Cir. 2019), cert. denied,

140 S. Ct. 820 (2020)).2

So, for each defendant, we ask whether the government

presented evidence from which a reasonable jury could have

concluded that each defendant knowingly agreed that at least two

racketeering acts would be committed in furtherance of La Rompe's

ends.

a. Cotto-Andino

Three cooperating witnesses testified that Cotto-Andino

controlled La Rompe's drug point at the Jardines de Cupey public-

housing facility, and two of those three also testified that

Cotto-Andino ran La Rompe's drug point at the Brisas de Cupey

public-housing facility. To avoid attracting the attention of the

police, Cotto-Andino delegated day-to-day responsibility for

2 This court has on occasion stated that a RICO conspiracy conviction requires proof that a defendant agreed to commit, or in fact committed, two or more predicate offenses. See United States v. Ramírez-Rivera, 800 F.3d 1, 18 (1st Cir. 2015); United States v. Shifman, 124 F.3d 31, 35 (1st Cir. 1997); United States v. Hurley, 63 F.3d 1, 8–9 (1st Cir. 1995); Libertad v. Welch, 53 F.3d 428, 441 (1st Cir. 1995); Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1561 (1st Cir. 1994); Miranda v. Ponce Fed. Bank, 948 F.2d 41, 47–48 (1st Cir. 1991); Feinstein v. Resol. Tr. Corp., 942 F.2d 34, 41 (1st Cir. 1991); United States v. Boylan, 898 F.2d 230, 241 (1st Cir. 1990); United States v. Torres Lopez, 851 F.2d 520, 528 (1st Cir. 1988); United States v. Angiulo, 847 F.2d 956, 964 (1st Cir. 1988); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981). We more recently made clear that those statements are inconsistent with the Supreme Court's 1997 holding in Salinas. See Leoner-Aguirre, 939 F.3d at 317; Millán-Machuca, 991 F.3d at 18 n.3; United States v. Sandoval, No. 18-1993, 2021 WL 2821070, at *3 n.1 (1st Cir. July 7, 2021). We follow, as we must, Salinas.

- 8 - running the Jardines de Cupey drug point to the Morales Castro

brothers, known as Nestor and Bimbo. In return, Nestor and Bimbo

paid Cotto-Andino a portion of the drug point's proceeds --

referred to as "rent" or a "ticket." Cotto-Andino made a similar

arrangement with Nestor and Bimbo for the Brisas de Cupey drug

point. In addition to interacting with Cotto-Andino, Nestor and

Bimbo also attended meetings with La Rompe's supreme leader,

"Mayito."

Given La Rompe's raison d'être, i.e., to provide revenue

from drug sales for its leaders, Cotto-Andino's control of two La

Rompe drug points provided ample evidence that he had agreed that

drugs would be repeatedly sold in furtherance of La Rompe's

conspiracy. Indeed, this evidence placed him at or at least near

the heart of the conspiracy.

Cotto-Andino points to evidence establishing an

alternative explanation for his admitted involvement at or near

the drug points, i.e., he worked lawfully as a construction

contractor on jobs in Jardines de Cupey and Brisas de Cupey. For

purposes of our sufficiency analysis, however, we can presume that

the jury rejected that view of his conduct in favor of witness

testimony identifying Cotto-Andino, Nestor, and Bimbo as leaders

of La Rompe and its drug trafficking operation in Jardines de Cupey

and Brisas de Cupey. See, e.g., United States v. Nueva, 979 F.2d

880, 884 (1st Cir. 1992) (explaining that an appellate court will

- 9 - not disturb a jury verdict "simply because the defense posited a

story at odds with that of the government"). Cotto-Andino

alternatively argues that the evidence did not establish that he

knowingly participated in an overarching conspiracy involving La

Rompe, as opposed to a smaller, independent conspiracy with Nestor

and Bimbo. But, when viewed favorably to the verdict, the evidence

was sufficient to bely any notion that there existed an independent

drug point in La Rompe's territory.

b. Velazquez-Fontanez

Velazquez-Fontanez served as a municipal police officer

in San Juan. He supplied guns and ammunition to La Rompe members,

including his brother, Bebo, a La Rompe enforcer who ran several

drug points. When Bebo was incarcerated in 2011,

Velazquez-Fontanez helped manage Bebo's drug points.

Velazquez-Fontanez delivered packages of marijuana and cocaine to

Quija, a "runner" who moved drugs to and from one of Bebo's drug

points. Velazquez-Fontanez transported drug point proceeds as

well.

The testimony of two cooperating witnesses -- Luis Ivan

Yanyore-Pizarro and Oscar Calviño-Acevedo -- also implicated

Velazquez-Fontanez in a drive-by shooting. On June 25, 2011, while

he was in jail, Bebo used a contraband cell phone to call Quija.

Bebo told Quija to go to a business in Caimito (one of San Juan's

subdivisions) and kill five men present there, one of whom was

- 10 - known as Prieto-Pincho. Bebo wanted Prieto-Pincho dead because he

took control of several of Bebo's drug points. Later that evening,

Velazquez-Fontanez called Quija and told him that Prieto-Pincho

and his men were outside of the business washing their cars. After

one of La Rompe's leaders gave the green light to kill

Prieto-Pincho and his men, several members of La Rompe, including

Yanyore-Pizarro and Calviño-Acevedo, drove toward the business.

As they approached their destination, Yanyore-Pizarro called

Velazquez-Fontanez, who confirmed that the men were there and that

Prieto-Pincho was "the big guy, who's the one who is speaking over

the phone." Yanyore-Pizarro responded that he "already s[aw]

them," told Velazquez-Fontanez to "listen to the show," and kept

the phone line open as the men exited the car and opened fire,

killing Prieto-Pincho and three others. The next day,

Velazquez-Fontanez saw Yanyore-Pizarro in person and told

Yanyore-Pizarro that "that sounded awesome" and that "the part

[that Velazquez-Fontanez] liked the most was when the rifle

continued shooting at the end."

Velazquez-Fontanez argues that the shooting on June 25,

2011, cannot support his RICO conspiracy conviction because it was

solely motivated by Bebo's personal desire for revenge against

Prieto-Pincho. The jury was entitled to reject this account and

instead credit the government's evidence that the shooting was

carried out to further La Rompe's ends. So, too, was the jury

- 11 - free to reject Velazquez-Fontanez's argument that he was not guilty

because he had a legitimate job as a police officer and was legally

permitted to own weapons and ammunition.

Velazquez-Fontanez next points out that some witnesses

who cooperated with the government did not identify him as a member

of La Rompe. But even the uncorroborated testimony of a single

cooperating witness may be sufficient to support a conviction, so

long as the testimony is not facially incredible. See United

States v. Cortés-Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (collecting

cases). Here, multiple witnesses described Velazquez-Fontanez's

participation in La Rompe's criminal activities; it matters not

for purposes of our sufficiency review that others did not do so.

Velazquez-Fontanez also asserts that the cooperating

witnesses' testimony implicating him in La Rompe's activities

should not have been admitted because it was inadmissible hearsay

not subject to the co-conspirator exception. See generally United

States v. García-Torres, 280 F.3d 1 (1st Cir. 2002). He notes a

few instances where witnesses testified about out-of-court

statements by Bebo and Quija. But he makes no attempt to explain

how these statements were not in furtherance of the conspiracy or

why the evidence that he transported guns, money, and drugs for

Bebo and Quija does not show that all three belonged to the same

conspiracy. See, e.g., United States v. Piper, 298 F.3d 47, 52

(1st Cir. 2002) (conditioning the admission of statements in

- 12 - furtherance of a conspiracy under Fed. R. Evid. 801(d)(2)(E) on

the introduction of "extrinsic evidence . . . sufficient to

delineate the conspiracy and corroborate the declarant's and the

defendant's roles in it"). This lack of development dooms his

argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").

Finally, Velazquez-Fontanez argues that a conspiracy to

commit a controlled substance offense in violation of section 846

cannot serve as a predicate offense for the RICO charge. We see

no reason to accept this argument. The fact that section 846

limits its own object offenses simply does not suggest that a

section 846 offense itself cannot be the object or predicate for

another offense. And Velazquez-Fontanez offers no other reason

why a section 846 conspiracy cannot serve as the predicate or

object for a RICO offense.3 See id.

In sum, there was ample and competent testimony which,

if believed, directly tied Velazquez-Fontanez to La Rompe and

established that he knew his fellow gang members would engage in

at least two RICO predicate offenses.

3 Velazquez-Fontanez makes this same argument regarding his convictions under 18 U.S.C. § 36(b)(2) and 18 U.S.C. § 924(c)(1)(A), (j)(1)–(2). We reject it in both instances for the same reason.

- 13 - c. Resto-Figueroa

The trial record supports Resto-Figueroa's RICO

conspiracy conviction as well. Cooperating witnesses testified

that Resto-Figueroa was a La Rompe enforcer who carried firearms,

sold marijuana and crack cocaine for the gang, and stored its

weapons at his home.

Cooperator testimony also implicated Resto-Figueroa in

a drive-by shooting that ended an intra-gang feud. The feud began

when Pollo, a La Rompe member, killed another member over a dispute

about payment for marijuana. The slain member's brother, Oreo,

obtained permission from La Rompe's leaders to kill Pollo. Oreo

then enlisted Resto-Figueroa and several other La Rompe members to

assist with the killing. On August 28, 2012, members dressed up

as police officers and drove SUVs equipped with tinted windows,

police lights, and sirens away from Resto-Figueroa's house to

Pollo's neighborhood, the Jardines de Cupey housing project. After

their mock police raid of Pollo's apartment turned up nothing,

Resto-Figueroa and the others drove through the housing project

until they spotted Pollo on the street. Some men in the SUVs

opened fire on Pollo, and others, including Resto-Figueroa, exited

the SUVs and began running toward Pollo. By the time that

Resto-Figueroa reached Pollo, Pollo was dead. After the shooting,

the men returned to the SUVs and drove to Resto-Figueroa's house.

- 14 - Resto-Figueroa asserts that this evidence did not

establish his knowing participation in La Rompe's enterprise. At

most, he contends, the evidence establishes a smaller conspiracy

in which he was brought in as an "outside contractor" to kill

Pollo. Resto-Figueroa's account downplays evidence of the extent

of his connection to La Rompe, specifically his drug selling and

storage of La Rompe weaponry. That evidence of Resto-Figueroa's

sustained and knowing connection to La Rompe's activities provides

ample support for a rational jury's conclusion that Resto-Figueroa

agreed to join the charged RICO conspiracy with knowledge that at

least two racketeering acts would be committed.

In challenging the evidence's sufficiency,

Resto-Figueroa also argues that one prominent La Rompe member-

turned-cooperator -- Yanyore-Pizarro -- did not mention

Resto-Figueroa and another -- Calviño-Acevedo -- is unworthy of

credence. These contentions miss the mark on appeal because they

go to the evidence's weight and credibility, not its sufficiency.

See, e.g., United States v. Noah, 130 F.3d 490, 494 (1st Cir.

1997).

* * *

In sum, the evidence against all three defendants was

sufficient to support their RICO conspiracy convictions.

- 15 - 2. 21 U.S.C. § 846

All three defendants were also convicted of conspiring

to possess with intent to distribute controlled substances within

1,000 feet of a public-housing facility. See 21 U.S.C. §§ 841(a),

846, 860. To prove this offense, the government had to establish

the existence of a conspiracy to possess cocaine, crack cocaine,

heroin, and/or marijuana with intent to distribute it within 1,000

feet of a protected area, such as real property comprising a

housing facility owned by a public housing authority, and that the

defendant knowingly and willfully joined in that conspiracy. Id.

§§ 841(a), 846, 860. Each defendant offers a slightly different

argument for why the proof of such a conspiracy was insufficient

as to him. We review each set of arguments in turn.

In challenging his section 846 conspiracy conviction,

Cotto-Andino repurposes his contention that the government proved

only a small conspiracy (among him, Nestor, and Bimbo). We have

already explained why this argument fails. See supra

Part II.A.1.a.

Velazquez-Fontanez argues that his conviction cannot

stand because he did not sell drugs for the conspiracy. But, taken

in the light most favorable to the verdict, the evidence

established that Velazquez-Fontanez furthered the drug

- 16 - conspiracy's activities by couriering proceeds and drugs between

members. And, despite its lack of corroboration through photo,

video, or phone record evidence, the testimony of the cooperating

witnesses, reviewed above in Part II.A.1.b, provided adequate

proof of his involvement in a conspiracy to possess drugs for

distribution. See Cortés-Cabán, 691 F.3d at 14.

c. Resto-Figueroa

Resto-Figueroa argues that the evidence did not

establish that he knowingly participated in La Rompe's drug-

trafficking conspiracy. But, as we have already noted, see supra

Part II.A.1.c, a rational jury viewing the evidence could have

concluded that Resto-Figueroa's sales of drugs and joint activity

with La Rompe members show that he was a knowing participant in La

Rompe's drug conspiracy, not just a "hired gun."

3. 18 U.S.C. § 36(b)(2)

Both Velazquez-Fontanez and Resto-Figueroa were

convicted of violating 18 U.S.C. § 36(b)(2)(A). That statute

imposes penalties on any person who, "in furtherance . . . of a

major drug offense and with the intent to intimidate, harass,

injure, or maim, fires a weapon into a group of two or more persons

and who, in the course of such conduct, kills any person," where

the killing "is a first degree murder." 18 U.S.C. § 36(b)(2)(A).

One who aids or abets another in the commission of a crime may be

punished as a principal. 18 U.S.C. § 2.

- 17 - a. Velazquez-Fontanez

A reasonable jury could have concluded that

Velazquez-Fontanez aided and abetted the drive-by shooting of

Prieto-Pincho and others. The government presented evidence that

Velazquez-Fontanez directed La Rompe members to the location where

Prieto-Pincho and four other people could be found and described

Prieto-Pincho's appearance. See supra Part II.A.1.b. A

reasonable jury could have inferred that Velazquez-Fontanez did so

to facilitate Prieto-Pincho's murder, which La Rompe's leaders

ordered at the request of Velazquez-Fontanez's brother. And that

inference becomes stronger when the foregoing evidence is

considered alongside testimony that Velazquez-Fontanez listened to

and later expressed approval of the shooting.

According to Velazquez-Fontanez, other members of La

Rompe made the plans to kill Prieto-Pincho and his associates, and

the evidence did not establish a connection between those plans

and Velazquez-Fontanez's words and actions. The evidence that he

spoke to the shooters, he argues, does not establish that he did

anything more than "answer[] a call made by Yanyore-Pizarro."

Velazquez-Fontanez essentially asks us to disregard our obligation

to draw all reasonable inferences in the verdict's favor. See

Meléndez-González, 892 F.3d at 17. That deferential standard of

review, as applied here, leads to the conclusion that the evidence

adequately supported the verdict. And Velazquez-Fontanez errs in

- 18 - claiming that the government's reliance on cooperating witness

testimony necessarily undermines the sufficiency of the evidence.

See Cortés-Cabán, 691 F.3d at 14.

Velazquez-Fontanez also argues that the government

failed to prove that a weapon was fired. This contention is

meritless. By returning a general verdict that Velazquez-Fontanez

was guilty beyond a reasonable doubt of aiding and abetting a

drive-by shooting in violation of section 36(b)(2)(A), the jury

necessarily found that a person "fire[d] a weapon into a group of

two or more persons." The evidence establishing this element was

overwhelming.

b. Resto-Figueroa

A reasonable jury could have likewise concluded that

Resto-Figueroa aided and abetted the drive-by shooting of Pollo

and others on August 28, 2012. As described above, see supra

Part II.A.1.c, ample witness testimony established that

Resto-Figueroa, along with others, traveled to Jardines de Cupey

to find and kill Pollo.

Resto-Figueroa's initial challenge to his drive-by

shooting conviction proceeds from a mistaken premise. He asserts

that he did not act with the requisite enterprise motive to be

convicted of a violent crime in aid of racketeering. See 18 U.S.C.

§ 1959(a) (punishing certain crimes committed "for the purpose of

gaining entrance to or maintaining or increasing position in an

- 19 - enterprise engaged in racketeering activity"). But Resto-Figueroa

was not charged with an offense under section 1959. To the extent

that Resto-Figueroa's brief may be read to challenge the

sufficiency of the evidence that the drive-by shooting was "in

furtherance . . . of a major drug offense," 18 U.S.C. § 36(b)(2),

this argument also fails. As described above, La Rompe's leaders

authorized Pollo's killing to settle an intra-gang feud. A

reasonable jury could have found that Resto-Figueroa intended to

further La Rompe's drug-trafficking activity by helping Oreo kill

Pollo. Finally, Resto-Figueroa's argument that the government's

witnesses lacked credibility falls flat on sufficiency review.

See Noah, 130 F.3d at 494.

For these reasons, sufficient evidence supported the

drive-by shooting convictions of Velazquez-Fontanez and

Resto-Figueroa.

4. 18 U.S.C. § 924(c)

Based on the predicate offense of a drive-by shooting

murder in violation of section 36(b)(2)(A), Velazquez-Fontanez was

convicted of aiding and abetting the use of a firearm during and

in relation to a crime of violence.4 See 18 U.S.C. § 924(c)(1)(A).

4Resto-Figueroa was also convicted of a section 924(c) offense predicated on a violation of section 36(b)(2)(A). Apart from his challenge to his conviction for the predicate offense, see supra Part II.A.3.b, Resto-Figueroa does not challenge his section 924(c) conviction on appeal.

- 20 - A "crime of violence" is defined as a felony offense that either

"(A) has as an element the use, attempted use, or threatened use

of physical force against the person or property of another," (the

"elements clause") or "(B) that by its nature, involves a

substantial risk that physical force against the person or property

of another may be used in the course of committing the offense"

(the "residual clause"). 18 U.S.C. § 924(c)(3)(A)–(B). Because

United States v. Davis held that the residual clause was

unconstitutionally vague, a felony offense must qualify under the

elements clause to serve as a predicate offense for a conviction

for use of a firearm during and in relation to a crime of violence.

139 S. Ct. 2319, 2336 (2019). Velazquez-Fontanez claims that Davis

undermines his section 924(c) conviction because his

section 36(b)(2)(A) predicate offense does not satisfy the

elements clause.

Davis does not help Velazquez-Fontanez. To assess

whether a violation of section 36(b)(2)(A) satisfies the elements

clause, we apply the categorical approach, "consider[ing] the

elements of the crime of conviction, not the facts of how it was

committed, and assess[ing] whether violent force is an element of

the crime." United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st

Cir. 2018) (quoting United States v. Taylor, 848 F.3d 476, 491

- 21 - (1st Cir. 2017)). The language of section 36(b)(2)(A)5 easily

satisfies section 924(c)(3)'s elements clause. The act of

"fir[ing] a weapon" involves the use of violent force. See Johnson

v. United States, 559 U.S. 133, 140 (2010) (defining "physical

force" as "force capable of causing physical pain or injury to

another person"); United States v. Edwards, 857 F.3d 420, 426 (1st

Cir. 2017) (remarking that it would be "absurd[]" to conclude that

"'pulling the trigger on a gun' involves no '"use of force" because

it is the bullet, not the trigger, that actually strikes the

victim'" (quoting United States v. Castleman, 572 U.S. 157, 171

(2014))). And a violator of section 36(b)(2) must undertake that

violent force "with the intent to intimidate, harass, injure, or

maim," satisfying the elements clause's mens rea requirement. See

United States v. García-Ortiz, 904 F.3d 102, 108–09 (1st Cir. 2018)

(explaining that a general intent crime satisfies

section 924(c)(3)(A)'s mens rea requirement); see also Borden v.

United States, 141 S. Ct. 1817, 1826 (2021) (plurality opinion)

(observing that ACCA's elements clause "obvious[ly]" applies to

"[p]urposeful" forceful conduct). For these reasons,

5 Section 36(b)(2)(A) imposes penalties on any person who, "in furtherance . . . of a major drug offense and with the intent to intimidate, harass, injure, or maim, fires a weapon into a group of two or more persons and who, in the course of such conduct, kills any person . . . if the killing . . . is a first degree murder."

- 22 - Velazquez-Fontanez's section 36(b)(2)(A) offense meets the

requirements of section 924(c)(3)'s elements clause.

B. Cotto-Andino's Evidentiary Objections

We consider next several related challenges by

Cotto-Andino to the district court's evidentiary rulings. When a

defendant preserves an objection, we generally review a district

court's evidentiary ruling for abuse of discretion. See United

States v. Appolon, 715 F.3d 362, 371 (1st Cir. 2013). A harmless

evidentiary error does not require reversal. See Kotteakos v.

United States, 328 U.S. 750, 765 (1946).

This court reviews challenges related to the enforcement

of subpoenas under the Sixth Amendment's Compulsory Process Clause

for abuse of discretion. See United States v. DeCologero, 530

F.3d 36, 74–75 (1st Cir. 2008).6 A defendant's conviction will

stand if a non-structural constitutional error "was harmless

beyond a reasonable doubt." Chapman v. California, 386 U.S. 18,

24 (1967).

1. Uncharged Murder Evidence

As part of its case-in-chief, the government presented

the testimony of Oscar Calviño-Ramos, a cooperating witness. He

6 But see United States v. Galecki, 932 F.3d 176, 184–85 (4th Cir. 2019) ("With regard to compulsory process claims, our sister circuits apply both de novo and abuse of discretion standards of review, even at times applying different standards within the same circuit without explanation.").

- 23 - asserted that Cotto-Andino killed Cano Ingram -- a rival drug

dealer -- and Carlos Tomate -- someone who had previously forced

Cotto-Andino out of a housing project. In support of the assertion

that Cotto-Andino murdered Cano Ingram, Calviño-Ramos claimed that

Cotto-Andino said in 1995 that he would kill Cano Ingram if he had

any problems with him, and that the killing took place in 1995 or

1996. According to the government, the two killings allowed

Cotto-Andino to consolidate power over drug points in the Jardines

de Cupey and Brisas de Cupey housing projects.

Cotto-Andino timely objected to this evidence as

improper character evidence offered only to suggest that

Cotto-Andino was a very bad guy. See Fed. R. Evid. 404(b)(1).

The government, though, pointed out that the evidence provided

important and properly relevant proof of how Cotto-Andino came to

be in a position to demand and receive a percentage of the sales

proceeds from two La Rompe drug points. See Fed. R.

Evid. 404(b)(2). This theory of relevance did not rely on any

claim of propensity, either explicitly or implicitly, see United

States v. Henry, 848 F.3d 1, 15 (1st Cir. 2017) (Kayatta, J.,

concurring). Rather, it was the government's attempt to provide

an origin story to show how Cotto-Andino came to be in a position

to exact "rent" from Nestor and Bimbo for sales from those two

drug points, the allegation central to the government's RICO and

drug distribution conspiracy charges against Cotto-Andino. In

- 24 - this sense, the evidence was like the scenes of De Niro's young

Vito Corleone in The Godfather Part II, explaining how Brando's

Don Vito was in the position of power in which the viewer found

him at the beginning of The Godfather.

This properly relevant evidence by its nature reflected

poorly on Cotto-Andino's character, obligating the district court

to balance its probative value against the potential for unfair

prejudice. Fed. R. Evid. 403; United States v. Rodríguez-Berríos,

573 F.3d 55, 64 (1st Cir. 2009). But we see no abuse of discretion

in the district court's balancing analysis. The evidence provided

an important rebuttal to Cotto-Andino's defense that he associated

innocently with La Rompe members or was merely present at its drug

points. As to the murder of Cano Ingram in particular,

Calviño-Ramos's testimony relied in part on a threat allegedly

made by Cotto-Andino himself, a party admission carrying

significant probative force. Cf. United States v. Ford, 839 F.3d

94, 110 (1st Cir. 2016) (questioning whether evidence with

"negligible probative value" should have been excluded pursuant to

Rule 403). And the district court took the precaution of telling

the jurors that they "may not use this evidence to infer that,

because of his character, he carried out the acts charged in this

case." See United States v. Pelletier, 666 F.3d 1, 6 (1st Cir.

2011) (observing that limiting instructions can cabin unfair

prejudice).

- 25 - Of course, the admission of evidence that Cotto-Andino

had killed two people to acquire control of two drug points opened

the door to any reasonable rebuttal. Cotto-Andino relied on cross-

examination alone to challenge the testimony about Carlos Tomate's

death, but he sought to rebut the allegation that he killed Cano

Ingram by proffering a witness and some records indicating that

Cano Ingram was alive until 2001. Specifically, Cotto-Andino

sought to call Jose Franco-Rivera, an attorney, as a witness to

testify that from 1997 to 1998, he represented a person indicted

for robbery under the name of "Antonio Vazquez-Pagan, also known

as Cano Ingram." In the alternative, Cotto-Andino asked the court

to take judicial notice of a published opinion that referred to

the lawyer's client as "Cano Ingram." He also sought to introduce

a death certificate indicating that Vazquez-Pagan died on

March 29, 2001.

After holding a Rule 104 hearing, the district court

concluded that the relevance of the proffered evidence hinged on

an insufficiently proven assumption that there were not two Cano

Ingrams -- one who was killed in the mid-90s by Cotto-Andino and

one who died in 2001. See Fed. R. Evid. 104(b) ("When the

relevance of evidence depends on whether a fact exists, proof must

be introduced sufficient to support a finding that the fact does

exist."). The district court observed that there was no evidence

that Vazquez-Pagan a/k/a Cano Ingram was engaged in drug sales or

- 26 - was active in Jardines de Cupey. The district court added that

admitting the evidence might "confuse the jurors." See Fed. R.

Evid. 403.

Seeking more support for his assertion that Antonio

Vazquez-Pagan and the person identified as Cano Ingram by

Calviño-Ramos were one and the same, Cotto-Andino served a subpoena

on the Criminal Investigation Corps of the Commonwealth of Puerto

Rico. The subpoena sought "[a]ll booking and criminal profiling

documentation regarding Antonio Vazquez-Pagan," which Cotto-Andino

expected to yield a criminal dossier containing Vazquez-Pagan's

aliases, addresses, and information about criminal conduct. When

the custodian of records did not appear pursuant to the subpoena,

the district court declined to enforce it, expressing doubt that

the documents produced would be admissible under any hearsay

exception or relevant absent proof that there were not two Cano

Ingrams. The net result was that the district court precluded

Cotto-Andino's effort to cast doubt on the government's claim that

he killed Cano Ingram.

The government would have us view the excluded evidence

as bearing on only a side-show debate about the timing of Cano

Ingram's death that could not properly be explored through

extrinsic evidence. Not so. Proof that the person identified by

Calviño-Ramos as Cano Ingram was alive for five to six years after

Cotto-Andino supposedly killed him would have called into question

- 27 - the very claim that Cotto-Andino killed Cano Ingram. And, in so

doing, it would have cast doubt on a central pillar holding up the

government's origin story and Calviño-Ramos's testimony as a

whole.7

So we turn our attention to the reasons given by the

district court for excluding the proffered evidence. District

courts "have wide discretion in deciding whether an adequate

foundation has been laid for the admission of evidence." Veranda

Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1371 (1st

Cir. 1991) (quoting Real v. Hogan, 828 F.2d 58, 64 (1st Cir.

1987)). Deference to that discretion is particularly apt here

given the district court's greater understanding of the context

for a dispute about the prevalence in Puerto Rico of a nickname

such as Cano Ingram.8 And, in finding that Cotto-Andino had failed

to show that the two witnesses were testifying about the same

person, the district court reasonably emphasized Vazquez-Pagan's

lack of demonstrated connections to Jardines de Cupey and the

discrepancy in suspected criminal activity. So we may assume

(without deciding) that the district court did not abuse its

discretion in finding that Cotto-Andino's proffered evidence did

7 Nor would Fed. R. Evid. 608(b) bar the evidence's introduction because it was not offered to prove a specific instance of Calviño-Ramos's conduct. 8 The parties tell us that "Cano Ingram" combines a term for a blond man and the common name for a type of firearm.

- 28 - not reliably establish that Antonio Vazquez-Pagan was the same

person described in Calviño-Ramos's testimony, at least based on

the existing record before the district court when it ruled.

More problematic is the district court's refusal to aid

Cotto-Andino's effort to add to that record by obtaining

information about Vazquez-Pagan's aliases, addresses, and criminal

activity. Under the Sixth Amendment's Compulsory Process Clause,

a defendant has "the right to the government's assistance in

compelling the attendance of favorable witnesses at trial and the

right to put before a jury evidence that might influence the

determination of guilt." Pennsylvania v. Ritchie, 480 U.S. 39, 56

(1987). By refusing to enforce the subpoena, the district court

denied Cotto-Andino the opportunity to provide the links that the

district court found to be missing in its Rule 104(b) ruling.

To be sure, Cotto-Andino does "not have an unfettered

right to offer testimony that is incompetent, privileged, or

otherwise inadmissible under standard rules of evidence." Taylor

v. Illinois, 484 U.S. 400, 410 (1988). But given the significance

of Cano Ingram's death to the government's case against

Cotto-Andino, the district court too readily assumed that none of

the subpoenaed records would provide admissible evidence

corroborating Franco-Rivera's proposed testimony and supporting

- 29 - Cotto-Andino's effort to contradict Calviño-Ramos's testimony.9

Indeed, Cotto-Andino's subpoena sought booking information, a type

of evidence that the government may offer in criminal cases when

it consists of "ministerial, non-adversarial information." See

United States v. Dowdell, 595 F.3d 50, 72 (1st Cir. 2010); Fed. R.

Evid. 803(8)(A)(ii). If the subpoena yielded information

suggesting that Vazquez-Pagan was the Cano Ingram to whom

Calviño-Ramos had referred, that would have eliminated any concern

about the defense evidence under Rule 104(b). Nor can we agree

that the evidence would have confused the jury unless we were to

say -- incorrectly -- that casting reasonable doubt on the central

thrust of testimony by a government witness equates to creating

impermissible confusion. See United States v. Collorafi, 876 F.2d

303, 306 (2d Cir. 1989) (explaining that "[a] mere statement that

evidence would be confusing is not enough" to justify exclusion on

Rule 403 grounds because "factual controversy breeds confusion");

United States v. Evans, 728 F.3d 953, 966 (9th Cir. 2013)

(observing that an "increased . . . chance[] that the jury would

acquit" cannot be attributed to jury confusion without

"prejudg[ing] the 'correct' outcome of the trial before it

occurs").

9 The government's brief on appeal does not identify any reason why the proffered evidence or the subpoenaed records would be inadmissible as hearsay not subject to any exception.

- 30 - Importantly, aside from pointing out the already-

mentioned gaps in Franco-Rivera's testimony, the government

provided no information tending to negate the assertion that

Vazquez-Pagan and Cano Ingram were one and the same. And it seems

most likely that the government and its witness could have proved

that there were two Cano Ingrams much more easily than Cotto-Andino

could have proven the opposite, especially without enforcement of

the subpoena.

For the foregoing reasons, we conclude that, because the

district court exercised its discretion to preclude the proffered

evidence of Cano Ingram's 2001 death as dependent on an unproven

fact, the district court erred in then refusing to enforce a

subpoena reasonably calculated to prove that fact. The remaining

question is whether the government has shown that the error was

harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24.

We think not. The case against Cotto-Andino was strong,

but not overwhelming given its heavy dependence on cooperating

witnesses. See United States v. Wright, 937 F.3d 8, 31 (1st Cir.

2019) (observing, in the constitutional-error context, that

cooperating-witness evidence "is rarely deemed to be overwhelming

on its own"). Calviño-Ramos's allegation that Cotto-Andino was a

murderer was, if believed, a big deal that operated on two levels:

It made it more plausible that Cotto-Andino had the control and

reputation necessary to play the role alleged in the conspiracy,

- 31 - and it painted him as a bad guy. The government convinced the

district court -- and this court -- that the obvious and

substantial prejudice inherent in evidence that Cotto-Andino

murdered someone did not substantially outweigh its proper

relevance. But that very success places the government in a weak

position in claiming now that the evidence that Cotto-Andino was

precluded from rebutting was of no substantial moment.

We faced an analogous situation in United States v.

Rosario-Pérez, 957 F.3d 277 (1st Cir. 2020). There, the government

successfully secured the admission of an allegation that the

defendant had committed an uncharged murder. Id. at 289. When

the defendant then sought to counter that allegation, the trial

court erroneously excluded the exculpatory evidence. Id. at 290–

94. We found such an exclusion to be cause for vacating the

verdict, reasoning that "to allow evidence that [the defendant]

murdered [a drug seller indebted to him] and disallow plausible

evidence that he did not based on erroneous rulings is an

unacceptable result." Id. at 294.

For similar reasons, we cannot deem harmless the

district court's decision to deny Cotto-Andino the opportunity to

gather and present evidence to rebut Calviño-Ramos's allegation.

By cutting off Cotto-Andino's efforts to gather evidence relevant

to establishing when Cano Ingram died, the district court undercut

the defendant's attempt to kill three birds with one stone:

- 32 - Cotto-Andino did not kill Cano Ingram, Calviño-Ramos is a liar,

and the government has not explained how Cotto-Andino could have

possessed the role in La Rompe alleged by the government.

In sum, the district court's constraint of

Cotto-Andino's attempt to rebut the government's uncharged murder

evidence exceeded the bounds of the court's discretion, was not

harmless, and requires vacatur of Cotto-Andino's convictions.

2. Flight Evidence

Cotto-Andino also argues that evidence that he fled to

avoid arrest should have been excluded. Over Cotto-Andino's

objection, Elvin Cruz-Castro testified that Cotto-Andino came to

Cruz-Castro's home in Hallandale Beach, Florida, in April 2016 and

told Cruz-Castro that "he needed a place to stay for a few days

because he was being wanted by the authorities." Two days after

Cotto-Andino arrived at Cruz-Castro's home, federal agents

arrested Cotto-Andino.

Citing United States v. Benedetti, 433 F.3d 111 (1st

Cir. 2005), Cotto-Andino argues the government did not "present

sufficient extrinsic evidence of guilt to support an inference

that [his] flight was not merely an episode of normal travel but,

rather, the product of a guilty conscience related to the crime

alleged." Id. at 116. He claims that his request to stay with

Cruz-Castro is not indicative of a guilty conscience because Cotto-

Andino moved to Florida in 2013, well before his indictment in

- 33 - July 2015. He also argues that the evidence should have been

excluded under Rule 403.

Because this same evidentiary issue is likely to arise

at any retrial, we consider this argument now. In so doing, we

review for abuse of discretion the district court's determinations

that there existed a sufficient factual predicate to support an

inference that the flight reflected consciousness of guilt of the

alleged offense, see United States v. West, 877 F.3d 434, 438 (1st

Cir. 2017), and that Rule 403 did not bar the flight evidence's

admission, see id. at 439.

There was no abuse of discretion here. The government

presented evidence to support the inference that Cotto-Andino's

consciousness of guilt of the alleged offenses prompted his travel

to Cruz-Castro's home. Multiple cooperating witnesses testified

that Cotto-Andino controlled two La Rompe drug points. That

alleged criminal activity formed the basis of the July 2015

indictment against Cotto-Andino, and he was subject to arrest on

that indictment when he contacted Cruz-Castro in April 2016.

Cotto-Andino's own words establish that the authorities' pursuit

motivated his request to stay with Cruz-Castro. Cf. United States

v. Candelaria-Silva, 162 F.3d 698, 705–06 (1st Cir. 1998)

(emphasizing, among other evidence establishing requisite factual

predicate for flight evidence's introduction, defendant's

admission following arrest in Massachusetts that "he knew he was

- 34 - wanted in Puerto Rico"). The district court reasonably found that

this evidence could support the inference that Cotto-Andino's

travel to Hallandale Beach reflected consciousness of guilt of the

crimes alleged in the indictment. See Benedetti, 433 F.3d at 117

(finding sufficient factual predicate based on evidence of

defendant's unlawful firearm possession and broken promise to

surrender voluntarily after indictment). Cotto-Andino's presence

in Florida prior to his indictment in July 2015 perhaps offered a

basis for claiming that he sought to stay with Cruz-Castro several

months later for purposes other than flight. But it certainly did

not compel such a finding given Cruz-Castro's testimony.

Cotto-Andino has not shown that the district court's

Rule 403 balancing analysis inadequately accounted for his

presence in Florida before April 2016. Moreover, the district

court prudently cautioned the jury that "there could be

reasons . . . for defendant's actions that are fully consistent

with innocence," reducing any risk of unfair prejudice. See United

States v. Fernández-Hernández, 652 F.3d 56, 70 n.11 (1st Cir. 2011)

(noting that district court provided limiting instruction and

finding no abuse of discretion).

3. Gun Possession at Time of Arrest

Cotto-Andino next challenges the admission of evidence

that he possessed a gun at the time of his arrest, arguing that it

had no special relevance and, alternatively, that any probative

- 35 - value it possessed was substantially outweighed by unfair

prejudice. See Fed. Rs. Evid. 404(b), 403. It is not certain

that this issue will arise again at any retrial. Moreover, its

resolution depends in part upon an exercise of discretion in

assessing both the proffered relevance and the potential prejudice

in the context of the case as a whole. We therefore see little

benefit to addressing the issue further beyond referring to our

guidance tendered in Henry, 848 F.3d at 9.

4. Possession of Cell Phones at Time of Arrest

Finally, Cotto-Andino argues that the district court

improperly permitted Jason Ruiz, an agent of the Bureau of Alcohol,

Tobacco, and Firearms, to provide lay opinion testimony about the

circumstances of Cotto-Andino's arrest. On direct examination,

Ruiz testified that law enforcement found Cotto-Andino with three

cell phones, two of which were flip phones. On cross-examination,

Cotto-Andino asked Ruiz whether there was anything illegal,

uncommon, or meaningful about having multiple cell phones. Over

Cotto-Andino's objection, Ruiz testified on redirect that, based

on his experience investigating narcotics cases, defendants often

carry multiple cell phones and use flip phones as temporary

"burner" phones to evade law enforcement efforts to track and

intercept drug-related communications. Later in the trial, Eddie

Vidal-Gil was qualified as an expert on drug trafficking based on

his experience as a police officer. Vidal-Gil's testimony about

- 36 - the possession of multiple cell phones and use of flip phones was

essentially identical to Ruiz's testimony.

On appeal, the parties' briefing on this issue focused

on whether Ruiz's lay opinion testimony was properly admitted

pursuant to Fed. R. Evid. 701. That question is largely academic

where, as here, a qualified expert witness gave substantially

identical testimony. We have no reason to think that an expert

would not provide similar testimony at any retrial. Nor do we

have any reason to think that cross-examination of Ruiz at any

retrial would invite such lay opinion testimony, as it arguably

did here. Cf. United States v. Valdivia, 680 F.3d 33, 51 (1st

Cir. 2012) (explaining that defendant challenging improper expert

testimony "cannot earnestly question the government's attempt to

re-forge inferential links that [the defendant] sought to sever"

during preceding cross-examination). We therefore see no reason

to say more now on this issue.

C. Resto-Figueroa's Mistrial Motion

We turn now to Resto-Figueroa's argument that he was

denied a fair trial because he relied to his detriment on an

inaccurate grand jury transcript provided by the government. We

review the district court's denial of a motion for a mistrial for

"manifest abuse of discretion." United States v. Chisholm, 940

F.3d 119, 126 (1st Cir. 2019) (quoting DeCologero, 530 F.3d at

52).

- 37 - The transcript in question consists of grand jury

testimony given by Oscar Calviño-Acevedo. As a tape recording of

that testimony confirms, Calviño-Acevedo testified that

Resto-Figueroa (known as "Tego") was one of the participants in

the August 28 shooting of Pollo and others. This testimony was

more or less identical to statements Calviño-Acevedo made

previously, including in a trial based on the same indictment.

The transcript of the grand jury testimony, however, erroneously

used the nickname of another person, "Bebo," rather than "Tego."

When Calviño-Acevedo testified at trial that Tego was

involved in the shooting, defense counsel began a line of cross-

examination by asking whether Calviño-Acevedo told the grand jury

that Tego was involved. Counsel went to sidebar where a long

conversation ensued, during which defense counsel pointed to the

transcript of Calviño-Acevedo's grand jury testimony. At that

point, government counsel (who had conducted the grand jury

questioning and who knew that Bebo had been incarcerated at the

time of the shooting) realized that the grand jury transcript

erroneously named Bebo rather than Tego. It also became apparent

that counsel could get from the court reporter an audio tape of

the pertinent grand jury testimony.

Counsel for Resto-Figueroa moved for a mistrial,

contending that a misleading transcript had led him to adopt a

trial strategy that now would backfire, making counsel rather than

- 38 - the witness appear deceptive. The district court denied the motion

but allowed counsel to use the transcript to continue the cross-

examination if he so wished.

When the sidebar conference concluded, Resto-Figueroa

proceeded with cross-examination. He asked Calviño-Acevedo about

the list of people who went to Jardines de Cupey, reading the names

from the grand jury transcript that did not include Tego.

Calviño-Acevedo said those were the names he provided, but he

insisted that he mentioned Tego, too. After reviewing the grand

jury transcript, Calviño-Acevedo agreed that the transcript did

not include Tego's name.

The next day, while Calviño-Acevedo was still on the

witness stand, the government produced a recording of his grand

jury testimony. Both Resto-Figueroa and the government agreed

that the recording showed that Calviño-Acevedo had indeed

mentioned Tego in his grand jury testimony. Because Resto-Figueroa

had probed the point on cross, the government sought to introduce

the recording on redirect as a prior consistent statement

admissible under Fed. R. Evid. 801(d)(1)(B). Resto-Figueroa then

renewed his mistrial motion, arguing that he would suffer prejudice

because he relied in good faith on the disclosed grand jury

transcript's accuracy. The district court denied the motion.

Before the government conducted its redirect

examination, the district court consulted the parties about a

- 39 - special instruction to the jury. The instruction explained that

the grand jury transcript contained an error that had, until then,

gone undetected, emphasized that Resto-Figueroa's counsel asked

his initial questions "on a good-faith basis," and told the jury

"not [to] make any adverse inferences against him or his

client . . . because of that cross-examination that was held."

Resto-Figueroa continued to press his request for a mistrial but

assented to the instruction's wording. The government then played

the recording as part of its redirect examination.

Resto-Figueroa argues on appeal that he suffered acute

prejudice from the transcript error because the government's case

against him turned on the jury's evaluation of the credibility of

cooperating witnesses with lengthy criminal records. Rather than

helping him exploit that potential vulnerability in the

government's proof, Resto-Figueroa's reliance on the transcript

ultimately underscored Calviño-Acevedo's inculpatory testimony

when the government introduced the recording.

The district court did not abuse its discretion in

denying Resto-Figueroa's motion for a mistrial. Defense counsel

learned that the transcript was likely in error before he used it

to impeach the witness. He can hardly cry foul about the district

court then allowing the government to use the recording to

rehabilitate the witness. The district court informed the jury of

the circumstances and carefully instructed against drawing any

- 40 - adverse inferences against counsel based on his earlier cross-

examination. Importantly, there is no evidence of any wrongdoing

by the government. Neither counsel noticed the error in the

transcript until sidebar, at which point government counsel

brought it to the attention of the court and opposing counsel.

This was, in short, one of the nettlesome surprises that can easily

arise in a trial. To the extent the events played out to enhance

Calviño-Acevedo's credibility as compared to that of defense

counsel, they did so because defense counsel, aware of the likely

error, pressed a strong attack that presumed there was no error.

In sum, the transcript error does not present "extremely compelling

circumstances" that would warrant reversal of the district court's

denial of a mistrial in Resto-Figueroa's favor. United States v.

Georgiadis, 819 F.3d 4, 16 (1st Cir. 2016) (quoting United States

v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000)).

D. Instructional Error

Resto-Figueroa also argues that the jury instructions

were erroneous in several ways. We address his arguments in turn.

Resto-Figueroa first claims the instructions did not

require the jury to find that the alleged RICO enterprise actually

existed or that the enterprise's activities actually affected

interstate commerce. Instead, the instructions told the jury that

the government need only prove that these elements "would" be

satisfied. Resto-Figueroa did not object when these instructions

- 41 - were given, so our review is for plain error. Henry, 848 F.3d at

13. The evidence that La Rompe existed and affected interstate

commerce is so overwhelming that Resto-Figueroa cannot prove that

the challenged "would" instructions caused any prejudice. For

that reason, we see no basis to upset the verdict based on this

instruction, whether or not it was correct. See Rodríguez-Torres,

939 F.3d at 35-36 (finding proof of La Rompe's existence so

overwhelming as to render unprejudicial any potential error in

similar instruction).

Next, Resto-Figueroa contends that the instructions did

not require the jury to find actual association between the

defendant and anyone involved with the enterprise. This

unpreserved argument also fails. Read as a whole, the district

court's charge required the jury to find that Resto-Figueroa

associated with the enterprise with knowledge of its nature and

its extension beyond his own role.10 See United States v. Gomez,

10 The district court explained that "a person is 'associated with' an enterprise when, for example, he joins with other members of the enterprise and he knowingly aids or furthers the activities of the enterprise, or he conducts business with or through the enterprise." The district court later instructed the jury that "it is sufficient that the government prove beyond a reasonable doubt that at some time during the existence of the enterprise as alleged in the indictment, the conspirator was or would be 'employed by' or 'associated with' the enterprise within the meaning of those terms as I have just explained and that he knew or would know of the general nature of the enterprise, and knew or would know that the enterprise extended beyond his own role in the enterprise."

- 42 - 255 F.3d 31, 38 (1st Cir. 2001) (emphasizing that individual

instructions "may not be evaluated in isolation"). The instruction

given on association was not clearly erroneous.

Finally, Resto-Figueroa asserts for the first time on

appeal that the instructions did not require the jury to find that

a defendant knowingly joined a conspiracy to commit a substantive

RICO violation. Resto-Figueroa cannot clear the plain error hurdle

here. The district court told the jury that "the agreement to

commit a RICO offense is the essential aspect of a RICO conspiracy

offense" and gave an instruction on this issue that tracked

Salinas.11 See supra Part II.A.1. This instruction was not clearly

erroneous.

E. Responses to Jury Questions

During its deliberations, the jury used notes to

communicate questions to the district court on three occasions.

Upon receipt of each question, the district court informed counsel

of the jury's message and gave them an opportunity to articulate

their views regarding a proper response. See United States v.

Sabetta, 373 F.3d 75, 78 (1st Cir. 2004) (describing best practices

for responding to a jury's message).

11 The district court explained that agreement could be shown by proof "beyond a reasonable doubt that the defendant agreed to participate in the enterprise with the knowledge and intent that at least one member of the RICO conspiracy (who could be, but need not be, the defendant himself) would commit at least two racketeering acts in conducting affairs of the enterprise."

- 43 - First, the jury sent a note stating, "We, the jurors,

request the witnesses' testimonies transcripts." Resto-Figueroa

argued that the jurors have a right to request a read-back of the

testimony and asked the district court to "inquire if they are

asking for a read-back of the totality of the trial or just have

a particular witness." Velazquez-Fontanez joined Resto-Figueroa's

request. Cotto-Andino sought "a read-back of the testimony, sans

sidebars and objections." The district court rejected these

proposals, responding that: "You are to rely on your collective

memory of the witnesses' testimonies. Transcripts are not

evidence." Velazquez-Fontanez and Resto-Figueroa argue that the

district court erred in doing so.

Our review is for abuse of discretion. United States v.

Vázquez-Soto, 939 F.3d 365, 375 (1st Cir. 2019). We discern no

abuse of discretion here. See United States v. Akitoye, 923 F.2d

221, 226 (1st Cir. 1991) (advising district courts facing similar

requests to consider the scope of the jury's request; what

obstacles, if any, would impair the request's fulfillment; and the

amount of time the desired action would take). As the district

court discussed with counsel on the record, the transcripts had

not yet been completed. Moreover, any transcript would need to be

redacted to exclude sidebar conversations between the district

court and counsel. The jury specifically asked for transcripts of

"the witnesses' testimonies." Another trial judge might well have

- 44 - endeavored to see if their request might be greatly narrowed. On

the other hand, such an attempt at a give-and-take with a twelve-

member jury might itself have involved the court too much in the

jury's deliberations, or perhaps itself taken much time. See

United States v. Aubin, 961 F.2d 980, 983–84 (1st Cir. 1992)

(finding no abuse of discretion in the district court's refusal to

inform a jury that it could request a read-back based in part on

concerns about "out-of-context testimony" and potential

"difficulty agreeing to the scope of what should be read back").

In any event, a district court does not abuse its discretion by

requiring the jury to proceed as most juries usually proceed. See

Vázquez-Soto, 939 F.3d at 377 (observing that a jury "does not

have the right to a rereading" of testimony (quoting Aubin, 961

F.2d at 983)).

Second, the jurors wrote: "[W]e, the jurors, request

further clarification on what conspiracy means in Count Two. Also,

does aiding and abetting apply to Count Two, Four and Five?" The

district court responded to the jury by saying, "Please refer to

Instruction Number 32 for clarification on what conspiracy means

in Count Two. Aiding and abetting does not apply to Count Two.

It applies to Counts Four and Five." In doing so, the district

court declined Resto-Figueroa's request to "inquire further" of

the jurors.

- 45 - Velazquez-Fontanez argues that the district court's

response regarding the meaning of conspiracy did not provide the

clarification the jury requested. Resto-Figueroa adopts

Velazquez-Fontanez's argument by reference, and he adds that the

district court's RICO conspiracy instruction was "generally

incomprehensible." We review for abuse of discretion a district

court's decision on whether to give a supplementary jury

instruction. See United States v. Monteiro, 871 F.3d 99, 114 (1st

Cir. 2017).

The defendants did not object to or seek to modify the

district court's initial conspiracy instruction. Nor did they

suggest an alternative instruction that the district court should

have provided in response to the note. Even where a defendant

does offer an alternative, we typically do not fault a district

court for declining to expand upon its "initial, entirely correct

instructions" and instead "refer[ring] the jury to the original

formulation." United States v. Roberson, 459 F.3d 39, 46 (1st

Cir. 2006) (quoting Elliott v. S.D. Warren Co., 134 F.3d 1, 7 (1st

Cir. 1998)). Defendants have not shown that the district court

abused its discretion by sticking to the instruction given here

without objection.

Third, the jurors wrote, "[W]e, the jurors, request

further clarification on Instruction Number 44 regarding the

meaning of being present." The government asserted that, although

- 46 - it had agreed to the instruction, the instruction "is highly

confusing" because its theory posited "that he was handling

everything through phone." The government requested a

supplementary instruction stating: "Presence does not require

actual physical presence. Please refer to instruction on aiding

and abetting in regards to that." Velazquez-Fontanez requested

that the district court "refer them to [the] instructions as they

are." The district court proposed a response that said: "Please

refer to Instruction Number 44 in conjunction with Instruction

Number 34, 'Aid and Abet,' in light of all the evidence presented

in the case." Velazquez-Fontanez responded that he had "[n]o

objection" to the district court's proposal.

Velazquez-Fontanez argues on appeal that this

supplementary jury instruction was improper. But this challenge

goes nowhere. Velazquez-Fontanez waived his objection when he

affirmatively stated that he had "[n]o objection" to the district

court's proposed response, which aligned with Velazquez-Fontanez's

request that the district court refer the jury to the existing

instructions. See United States v. Corbett, 870 F.3d 21, 30–31

(1st Cir. 2017) (holding that challenge to response to juror note

was waived where defendant said that proposed response "restates

the instruction already given, so I have no problem"); United

States v. Acevedo, 882 F.3d 251, 264 (1st Cir. 2018) (holding that

challenge to revised jury instruction was waived where defendant

- 47 - stated he had no objection and changes were made in light of

defendant's concerns).

III. CONCLUSION

For the foregoing reasons, we affirm the convictions of

Carlos Velazquez-Fontanez and Jose Resto-Figueroa. We vacate the

convictions of Ruben Cotto-Andino and remand his case for further

proceedings consistent with this opinion.

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