APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon. José Antonio
Fusté, U.S. District Judge] [Hon. Aida M.
Delgado-Colón, U.S. District Judge]
Goldberger for the consolidated appellants and on brief, with
Pamela A. Wilk, for appellant Luis D. Rivera-Carrasquillo.
L. Parsons for the consolidated appellants and on brief for
appellant Ramón Lanza-Vázquez.
J. Paez on brief for appellant Edwin Bernard Astacio-Espino.
O. Acevedo-Hernández, Assistant United States
Attorney, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Francisco A.
Besosa-Martínez, Assistant United States Attorney,
were on brief, for appellee.
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE
many years, a vicious gang called "La ONU"
committed unspeakably brutal crimes in Puerto Rico, raking in
millions of dollars from drug sales and killing anyone (and
we mean anyone) in its way - police officers,
defectors, rivals in the "La Rompe ONU" gang, you
name it. Law enforcement eventually took La ONU
down, however. And a federal grand jury criminally indicted
scores of its members, including appellants Astacio-Espino,
Lanza-Vázquez, and Rivera-Carasquillo (their full
names and aliases appear in our case caption). A bone-chilling
read, the superseding indictment (the operative indictment in
this case) accused each of these three gangbangers of doing
some or all of the following:
• conspiring to violate the Racketeer Influenced and
Corrupt Organizations Act, see 18 U.S.C. 1961(d) -
familiarly called the RICO conspiracy statute;
• aiding and abetting violent crimes in aid of
racketeering, namely murder or attempted murder under Puerto
Rico law, see 18 U.S.C. 1959(a) - commonly called
the VICAR statute;
• aiding and abetting the use and carrying of firearms
during VICAR murders, see 18 U.S.C. §§
924(c)(1)(A), 924(j)(1) and (2);
• knowingly transferring a firearm for use during VICAR
murders, see 18 U.S.C. § 924(h);
• conspiring to engage in drug trafficking, see
18 U.S.C. §§ 846, 860; and
• conspiring to possess firearms during drug-trafficking
crimes, see 18 U.S.C. § 924(o).
Astacio-Espino moved unsuccessfully to suppress material
seized by the government, the case went to trial. And the
evidence there painted a damning picture of what the trio did
with La ONU, as a sampling makes clear.
drug-point owner and enforcer (an enforcer hunts down and
kills "the enemy," by the way), Astacio-Espino
helped murder a police officer and a La Rompe member known as
"Pekeke" (whose real name was Christian
Toledo-Sánchez). Lanza-Vázquez also was a
drug-point owner and enforcer. Along with other La ONU
members, he helped kill someone thought to be a
"squeal[er]." Rivera-Carasquillo was not just a
drug-point owner and enforcer. He was a leader too. He also
participated in Pekeke's slaying. And he helped murder
someone accused of shooting at a La ONU leader as the leader
drove through a La Rompe-allied area. Rivera-Carasquillo
choked him while others from La ONU stomped on his chest
until he died. To send a message, apparently,
Rivera-Carasquillo (according to a cooperating witness)
"went at" the person "with [an] AK [rifle] and
just removed his face" - i.e.,
Rivera-Carasquillo "[e]rased his face."
everything in - testimony from cooperating coconspirators,
law-enforcement officials, and forensic-science experts;
autopsy and crime-scene photos; physical evidence in the form
of seized guns, ammo, and drugs, etc. - the jury
found Astacio-Espino, Lanza-Vázquez, and
Rivera-Carasquillo guilty as charged. And the district judge
imposed a number of sentences on them, including life
sentences (because they do not contest their sentences, we
need say no more about that subject).
to score a new trial, Astacio-Espino, Lanza-Vázquez,
and Rivera-Carasquillo later filed two post-trial motions -
one claiming that a partial closure of the courtroom during
jury selection constituted "plain, reversible
error," and the other alleging that a cooperating
witness in a related case had given a different account of
Pekeke's murder. But they had no success.
before us, Astacio-Espino, Lanza-Vázquez, and
Rivera-Carasquillo press a variety of claims. We tackle the
claims one by one below, highlighting only those facts needed
to put things in perspective. But for those who want our
conclusion up front: after slogging through the issues, we
affirm the contested convictions.
moved pretrial to suppress a cache of guns and drugs seized
during the warrantless search of a house (and the SUV garaged
there) belonging to Ismael E. Cruz-Ramos - a person indicted
with our appellants but whose trial was before a different
district judge: Judge William E. Smith (of the District of
Rhode Island, sitting by designation), rather than Judge
Fusté. Cruz-Ramos had moved earlier to suppress the
same evidence taken during the same search. And Judge Smith
gave him a split decision, suppressing (for reasons not
relevant here) some items (rifles) but not others (handguns
and drugs). Convinced that he had "standing" to
challenge the search as an "overnight guest" of
Cruz-Ramos, Astacio-Espino asked Judge Fusté to
suppress everything.To back up his overnight-guest claim,
Astacio-Espino relied heavily on an untranslated
Spanish-language declaration by Cruz-Ramos. The next day,
Judge Fusté entered an electronic order stating that
he was "respecting Judge Smith's ruling on these
issues" - though a day later he clarified that he would
"not extend" his colleague's edict "to
parties without standing" and that he would "decide
the same in the context of trial." When trial came,
Judge Fusté ended up "respect[ing]" Judge
Smith's order. So Judge Fusté suppressed the
rifles, but not the handguns or the drugs - though without
explaining why he thought Astacio-Espino had standing, even
though the government seemingly sought one.
Arguments and Analysis
to undo what Judge Fusté did, Astacio-Espino pins his
hopes on a straightforward theory. Fairly recently, he notes,
a panel of this court partially reversed Judge Smith's
suppression ruling in Cruz-Ramos's case. See
Ramírez-Rivera, 800 F.3d at 27-33 (holding that
the police lacked probable cause for the search and that
neither the good-faith exception to exclusionary rule nor the
harmless-error doctrine applied). Proclaiming himself
"an overnight guest at [Cruz-Ramos's]
residence," he insists we should reverse Judge
Fusté's suppression decision too, since Judge
Fusté simply adopted Judge Smith's now-discredited
ruling. Not to be outmaneuvered, the government identifies
three supposed bases for affirming Judge Fusté's
ruling: Astacio-Espino's failure to argue in his opening
brief that he had a legitimate expectation of privacy
sufficient to show standing to contest the search;
Astacio-Espino's reliance on the untranslated
Spanish-language document to establish his status as an
overnight guest at Cruz-Ramos's house; and the
harmlessness of any error (if error there was) on Judge
Fusté's part, given the overwhelming evidence of
the issue afresh ("de novo," in
law-speak), see United States v.
Orth, 873 F.3d 349, 353 (1st Cir. 2017) - knowing
too that we can affirm on any basis supported by the
record, see United States v.
Arnott, 758 F.3d 40, 43 (1st Cir. 2014) - we think
the government has the better of the argument.
Amendment rights are personal ones. See,
e.g., Rakas v. Illinois, 439
U.S. 128, 133 (1978). So a criminal defendant wishing to
challenge a search must prove that he had "a legitimate
expectation of privacy" in the searched area,
id. at 143 - i.e., he must show that he
"exhibited an actual, subjective, expectation of
privacy" and that this "subjective expectation is
one that society is prepared to recognize as objectively
reasonable," United States v.
Rheault, 561 F.3d 55, 59 (1st Cir. 2009); see
also United States v. Werra, 638 F.3d
326, 331 (1st Cir. 2011). An overnight guest generally has a
reasonable expectation of privacy in his host's home.
See, e.g., United States v.
Almonte-Báez, 857 F.3d 27, 32 n.4 (1st Cir.
2017) (citing Minnesota v. Olson,
495 U.S. 91, 96-97 (1990)). The problem for Astacio-Espino is
that he supported his overnight-guest claim with a
Spanish-only declaration - a problem, because judges cannot
consider untranslated documents. See, e.g.,
United States v.
Quiñones-Otero, 869 F.3d 49, 53 (1st Cir.
2017) (citing the Jones Act, 48 U.S.C. § 864;
González-de-Blasini v. Family
Dep't, 377 F.3d 81, 88 (1st Cir. 2004); and
Dávila v. Corporación de
Puerto Rico Para La Difusión Pública, 498
F.3d 9, 13 (1st Cir. 2007)).And this evidentiary gap
devastates his suppression argument, because "a failure
to present evidence" on the "reasonable
privacy" front "prevents a defendant from making a
claim for suppression under the Fourth Amendment."
See United States v. Samboy, 433
F.3d 154, 161-62 (1st Cir. 2005).
Lanza-Vázquez, and Rivera-Carasquillo criticize the
judge for empaneling an anonymous jury. But they concede that
Ramírez-Rivera - a decision disposing of
appeals brought by some of their coindictees - forecloses
their argument, and they raise the point only to preserve the
issue "for future consideration." Enough said about
their appeals were pending, Astacio-Espino,
Lanza-Vázquez, and Rivera-Carasquillo jointly moved
the district judge to supplement the record on appeal,
arguing that a post-trial investigation by counsel revealed
that "official personnel" had kept some of
appellants' friends and family from attending jury
selection. See Fed. R. App. P. 10(e)(2); see
also United States v. Pagán-Ferrer, 736 F.3d 573,
581-84 (1st Cir. 2013) (discussing Fed. R. App. 10(e)). And
they asked the judge to hold a hearing and make findings of
fact on the matter.
some procedural wrangling not relevant here, the judge
decided to hold an evidentiary hearing. Pertinently for our
purposes, appellants called six witnesses:
Astacio-Espino's mother (Francisca Espino);
Lanza-Vázquez's former girlfriend (Betzaida
Caballero-Ortiz); Rivera-Carrasquillo's father
(Héctor Rivera-Rosa), mother (Maribel Carrasquillo),
and trial counsel (José Aguayo); and
Lanza-Vázquez's and Rivera-Carrasquillo's
friend (Juan Carlos Ramos-Piñeiro). The government,
for its part, called two witnesses: a former court security
officer (Héctor Villavicencio) and a courtroom deputy
clerk (Ana Romero), both of whom had been assigned to the
courtroom for jury selection in appellants' case.
to bare essence, appellants' witnesses testified that
when the courtroom opened around 9:00 a.m., a man stationed
at the door - thought by some to be a United States marshal -
said that only one family member per defendant could go in
(Lanza- Vázquez's ex-girlfriend testified that the
man told her only potential jurors could go in). No
prospective jurors were in the courtroom when this happened.
And none of the witnesses could give a good physical
description of the man.
the government's witnesses, the court security officer
pertinently testified that he got to the courtroom at 9:00
a.m. on the day of jury selection, opened the doors, and did
not stop anyone from coming in. Asked whether he "at any
time [told] anyone that they could not come in," he
replied "no." He added that the judge handling jury
selection (Judge Fusté) had always instructed him to
let the public in. He also noted that he only left the door
when he had to hand prospective jurors papers or a microphone
(potential jurors used the mic in responding to questions
asked during voir dire - a process that allows counsel and
the judge to see if there are grounds to challenge a possible
juror, for example). And the courtroom deputy relevantly
testified that once the judge excused a potential juror, the
excused person would leave through the courtroom's front
door. She also said that she saw members of the public
sitting in benches reserved for them. And asked whether
"it ever appear[ed]" that the benches were "so
full that no one else could be there," she answered
"no." In a post-hearing rescript, the judge found
that each of the "family/friend witnesses had much to
gain by alleging that they were prevented from entering the
courtroom," given how their loved ones faced spending
the rest of their lives behind bars. Noting that two years
had passed before the witnesses alleged a man had restricted
access to the courtroom and that none of them could give a
physical description of the man, the judge found it
"difficult to consider their testimony credible."
But the judge had no difficulty crediting the court security
officer's testimony about opening the courtroom around 9
a.m. and not stopping anyone from entering. And
"[h]aving been present during jury voir dire,"
which put him "in the best position to determine the
credibility" of the testifying witnesses, the judge
found "that the courtroom was not closed, neither
partially nor fully and neither expressly nor impliedly,
during the jury voir dire" in this case.
Lanza-Vázquez, and Rivera-Carasquillo believe the
record shows that a partial courtroom closure occurred,
which, they continue, violated two constitutional provisions:
Article III, by delegating the closure decision to a
non-judicial officer; and the Sixth Amendment, by depriving
them of their right to a public trial. The government's
principal response is that the judge committed no clear error
in finding no courtroom closure here. We side with the
Appellants and the government - who agree on little else -
agree that we must give clear-error review to the judge's
no-courtroom-closure finding and plain-error review to
appellants' unpreserved legal arguments. See United
States v. Negrón-Sostre, 790
F.3d 295, 301 (1st Cir. 2015) (applying those standards in a
similar situation). We begin and end with the judge's
no-courtroom-closure finding, knowing that winning a
clear-error challenge is no easy thing because the challenger
must show that the contested finding stinks like "a 5
week old, unrefrigerated, dead fish." See Toye
v. O'Donnell (In re O'Donnell), 728
F.3d 41, 46 (1st Cir. 2013) (quoting S Indus., Inc.
v. Centra 2000, Inc., 249 F.3d 625, 627
(7th Cir. 2001)). Put less colorfully, the challenger must do
more than show that the finding is "probably
wrong," for we can reverse on clear-error grounds only
if - after whole-record review - we have "a strong,
unyielding belief" that the judge stumbled.
See id. (emphasis added) (quoting Islamic Inv.
Co. of the Gulf (Bah.) Ltd. v. Harper (In
re Grand Jury Investigation), 545 F.3d 21, 24 (1st Cir.
clear-error argument turns entirely on their claim that the
judge should have believed their witnesses over the
government's. As an example, they contend that the
"demeanor" of their witnesses "was thoughtful
and unemotional." And they insist that the testimony of
the government's witnesses "did not refute the
family members' consistent testimony" that a
"courtroom official" told them "that only one
member of each defendant's family could enter the
courtroom for jury selection." By basically focusing on
the witnesses' credibility, they make their job
"particularly" challenging, because - unlike us -
the judge heard the witnesses from both sides and eyed their
manner. See United States v.
Guzmán-Batista, 783 F.3d 930, 937 (1st Cir.
2015). If, as here, a judge's finding is based on witness
credibility, that finding, "if not internally
inconsistent, can virtually never be clear
error." See Anderson v. City
of Bessemer, 470 U.S. 564, 575 (1985) (emphasis added).
And we see nothing "[in]coherent and facially
[im]plausible" about the government witnesses'
account. See id.
trying to turn defeat into victory, appellants protest that
the testimony of the government's witnesses "left
open the distinct possibility that it was a [deputy United
States marshal] inside the courtroom and near the courtroom
door who told the defense witnesses exactly what they said
they were told when they tried to enter." Here is the
problem with that theory. The defense's witnesses
testified that an official-looking man told them about the
one-family-member-per-defendant policy when the courtroom
doors opened at 9:00 a.m., when no prospective jurors were
there. During that key period - between the opening of the
doors and the seating of potential jurors - the only person
manning the door was the court security officer, who said he
stopped no one from going in. Or so the court
security officer testified, which the judge was entitled to
credit. And under clear-error review, "[a] finding that
is 'plausible' in light of the full record - even
if another is equally or more so - must govern."
Cooper v. Harris, 137 S.Ct. 1455,
1465 (2017) (emphasis added).
are in no position to disturb the judge's
no-courtroom-closure finding - a conclusion that defeats
appellants' challenge and makes it unnecessary to