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United States v. Rivera-Carrasquillo

United States Court of Appeals, First Circuit

August 2, 2019

LUIS D. RIVERA-CARRASQUILLO, a/k/a Danny KX, a/k/a Danny Vorki; EDWIN BERNARD ASTACIO-ESPINO, a/k/a Bernard, a/k/a Bernal; RAMÓN LANZA-VÁZQUEZ, a/k/a Ramoncito, Defendants, Appellants.

          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]

          Peter Goldberger for the consolidated appellants and on brief, with Pamela A. Wilk, for appellant Luis D. Rivera-Carrasquillo.

          Inga L. Parsons for the consolidated appellants and on brief for appellant Ramón Lanza-Vázquez.

          Mariem J. Paez on brief for appellant Edwin Bernard Astacio-Espino.

          Victor 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.

          Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.



         For 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.[1] 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).[2] 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).

         After 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.

         A 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).[3] 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."

         Taking 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).

         Hoping 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.[4]

         Now 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.[5]

         Suppression Claim


         Astacio-Espino 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.[6]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

         Seeking 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 Astacio-Espino's guilt.

         Reviewing 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.

         Fourth 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)).[7]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).[8]

         Anonymous-Jury Claim

         Astacio-Espino, 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 that, then.

         Partial-Courtroom-Closure Claim


         While 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.

         After 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.

         Reduced 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.

         As for 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.

         Arguments and Analysis

         Astacio-Espino, 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 government.

          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. 2008)).

         Appellants' 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.

         Still 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).

         So we are in no position to disturb the judge's no-courtroom-closure finding - a conclusion that defeats appellants' challenge and makes it unnecessary to ...

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