United States Court of Appeals For the First Circuit

Nos. 13-2139, 13-2427

UNITED STATES OF AMERICA,

Appellee,

v.

ALEXIS CANDELARIO-SANTANA, and DAVID OQUENDO-RIVAS,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Selya, Circuit Judges.

Alan J. Black, for appellant Candelario-Santana. Linda Backiel, for appellant Oquendo-Rivas. Jenny C. Ellickson, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney General, were on brief, for appellee.

August 17, 2016 TORRUELLA, Circuit Judge. These consolidated appeals

stem from a drug-related mass shooting carried out in furtherance

of a Racketeer Influenced and Corrupt Organizations Act ("RICO")

enterprise. Following the shooting, a federal grand jury in the

United States District Court for the District of Puerto Rico

returned a fifty-two count superseding indictment charging Alexis

Candelario-Santana ("Candelario") and David Oquendo-Rivas

("Oquendo") (collectively, "Defendants-Appellants") with violent

crimes in aid of racketeering activity ("VICAR"). Candelario was

further charged with a number of drug trafficking offenses and

thirteen RICO conspiracy-related murders. The Government sought

the death penalty for Candelario. Defendants-Appellants were

tried jointly before, and found guilty on all counts by, a death-

qualified jury. As the jury failed to reach a unanimous decision

on whether Candelario should receive a death sentence, both

defendants received life sentences. Defendants-Appellants timely

filed notices of appeal, deploying a veritable flotilla of

challenges. We affirm Oquendo's convictions but vacate and remand

as to Candelario.

-2- I. Background

We include the foundational facts in this section and

delve into facts essential to each issue raised on appeal in our

analysis.

In 1993, Candelario became the head of a drug-

trafficking organization, known as the Palo de Goma drug point,

operating in the Sabana Seca ward of Toa Baja, Puerto Rico.

Throughout the 1990s, Candelario retained exclusive control over

drug sales in the surrounding areas, often through violent means.

Aided by Braulio Rodríguez ("Menor"), Candelario murdered or

arranged the murder of at least a dozen individuals. In the late

1990s, Candelario fled to Michigan in an attempt to avoid arrest,

leaving his cousin, Wilfredo Semprit-Santana ("Rufo"), and Carmelo

Rondón-Feliciano ("Omi") to oversee day-to-day operations at Palo

de Goma.1 In return, Rufo and Omi agreed to "pay rent" to, that

is, share the drug proceeds with, Candelario. In 2003, Candelario

pleaded guilty to a dozen murder charges in Puerto Rico court.

Rufo and Omi continued making payments to Candelario for use of

the drug point. At some point, Candelario's relationship with

Rufo and Omi began to deteriorate; the duo stopped making payments

to Candelario, who threatened them. In 2006, following Omi's

1 In his testimony, Rufo claimed that only Omi was left in charge of the drug point.

-3- arrest by federal authorities, Rufo's brother, Pedro Semprit-

Santana ("Semprit"), joined Palo de Goma, also declining to make

payments to Candelario.

In February 2009, Candelario was released from prison.

That same year, Rufo rented and renovated La Tómbola, a mini-

market and bar located in Sabana Seca. During La Tómbola's opening

night party on October 17, 2009, several shooters attacked

attendees, killing nine and injuring more than a dozen people.

Following the events at La Tómbola, three eyewitnesses identified

Oquendo as a gunman. Two others identified Candelario. Another

witness identified the voice of a shooter as that of Candelario.

II. Procedural History

A federal grand jury returned a fifty-two count

superseding indictment against Candelario and Oquendo. Counts two

to forty-nine charged Defendants-Appellants with VICAR activity

and with carrying firearms during and in relation to crimes of

violence in violation of

and 2 and

and 2, respectively. The indictment also charged

Candelario with conspiracy to engage in a racketeering enterprise,

in violation of

(d); conspiracy to possess with

intent to distribute crack cocaine, cocaine, heroin, and

marijuana, in violation of

; and possession of a

-4- firearm by a prohibited person, in violation of

(g)(1).

We take each relevant issue on appeal in turn, beginning

with Oquendo's challenge to the district court's refusal to

suppress statements he made on the day of his arrest, proceeding

to Oquendo and Candelario's claim of unconstitutional closure,

Oquendo's potpourri allegations of trial error, and Oquendo's

challenge to the jury instructions, and finally concluding by

dispensing of Oquendo's insufficiency of the evidence claim.

III. Oquendo's Statements on the Day of His Arrest

Several days after the shooting, Puerto Rico Police

Department ("PRPD") Officer Carlos Rodríguez-Negrón ("Rodríguez")

received information that the individuals who perpetrated the La

Tómbola shooting were hiding in a small neighborhood in Sabana

Seca. As we recounted in an earlier, related case:

rumors led officers from the [PRPD] to a . . . home, where several men involved in the murders were thought to be hiding. Arriving at the residence, officers observed three men standing in its fenced-in yard. Startled by the officers, one man -— later identified as Oquendo -- lifted his shirt to reveal a firearm in his waistband. All three men then fled. One, exiting the yard, successfully evaded the ensuing pursuit; he has never been identified. The other two, Oquendo and . . . Christian Ortiz–Rivera ("Ortiz"), ran up an exterior staircase and into the home's second-story interior. The officers gave chase.

Entering the home's upper level, [Rodríguez] observed Oquendo toss a handgun out of the window. Soon after, Officer Rodríguez and Officer Roberto Cruz grabbed

-5- Oquendo and restrained him on the floor. While demobilizing Oquendo, they heard a fellow officer call out from below, indicating that he had possession of the thrown weapon. Officer Rodríguez then entered an adjoining bedroom, where he witnessed Ortiz attempting to hide two more firearms in a laundry basket. One of these guns had an obliterated serial number. Subsequent to detaining both men, but before their formal arrest, Officer Rodríguez asked if they were licensed to possess firearms. Oquendo and Ortiz both answered, "no."

After being placed under formal arrest and verbally read his Miranda rights, Oquendo was taken to the police station in Bayamón, Puerto Rico for questioning. There, Officer Rodríguez provided him with a Spanish-language Miranda waiver form. This form set forth, in a bullet-point list, the nature of Oquendo's Miranda rights. Under that bulleted description, the form provided space for Oquendo to waive his rights by consenting to make a statement outside the presence of a lawyer, if he so desired. After reviewing the form, Oquendo indicated that he did not wish to make a statement. No questions were asked and, after signing and dating the form, Officer Rodríguez left the room.

Approximately twenty minutes later, Agent Julio Torres ("Agent Torres") from the federal Alcohol, Tobacco, Firearms and Explosives Bureau ("ATF") entered Oquendo's interrogation room. Agent Torres handed Oquendo another blank copy of the Spanish- language Miranda waiver form. After reviewing this duplicate form, Oquendo wrote next to the portion of the form related to waiver, "I do not understand this, my lawyer speaks." Agent Torres then verbally read Oquendo his Miranda rights and, upon seeing the note, asked Oquendo what he did not understand. In response, Oquendo indicated that he was willing to speak without a lawyer present, but that he did not want to answer any questions about the deaths at La Tómbola. Agreeing to limit the scope of his questions, Agent Torres had Oquendo circle the portion of the waiver form consenting to speak without a lawyer. Both Oquendo and Agent Torres then signed the form, and questioning began. During the course

-6- of his interrogation, Oquendo made statements indicating that he knew Ortiz possessed a gun with an obliterated serial number.

United States v. Oquendo-Rivas,

(1st Cir. 2014).

In this case, Oquendo filed a motion to suppress

statements made to law enforcement. At the suppression hearing,

Rodríguez described "put[ting] [Oquendo] down on the floor" "real

fast" and said he "put [him] under arrest for [his] safety."

Rodríguez stated that he twice Mirandized both men. According to

Rodríguez, both men replied "[t]hat they're clear. That both

weapons are theirs, but that they are not involved whatsoever with

the events that occurred at La Tómbola." Rodríguez later amended

his statement, adding that, as noted above, prior to Mirandizing

Oquendo and Ortiz, he asked them whether they had a firearms

license, and both men responded in the negative. At that point,

Rodríguez claims he administered Miranda warnings.

Oquendo's motion was denied following the hearing. The

district court reasoned that, because Rodríguez asked Oquendo

whether he had a valid gun license during a Terry-type

intervention, Oquendo was not in formal custody, making Miranda

warnings unnecessary. Even if the gun-licensing question were

impermissible, the district court continued, Rodríguez had

probable cause for arresting Oquendo, as he brandished a firearm.

The district court additionally found that Oquendo spontaneously

-7- made his initial statements ("we're clear . . . both weapons are

[ours], but . . . they are not involved whatsoever with the events

that occurred at La Tómbola") pursuant to a valid Miranda waiver.

With regard to the statements made to Agent Torres, the district

court concluded that Oquendo did not assert that he wished to

consult with counsel, and that Oquendo voluntarily waived his right

to remain silent.

A.

This court reviews factual determinations and

credibility assessments underlying a motion to suppress for clear

error and reviews legal conclusions de novo.

. We view

the facts in the light most favorable to the district court's

ruling on the motion. United States v. Camacho,

(1st Cir. 2011). "So long as 'any reasonable view of the evidence

supports it,' [this court] will uphold the denial of the motion to

suppress." United States v. Molina-Gómez,

(1st

Cir. 2015) (quoting United States v. Brown,

(1st

Cir. 2007) (internal quotation marks and citation omitted)).

During a stop pursuant to Terry v. Ohio,

(1968), "officers [may] 'diligently pursue[] a means of

investigation . . . likely to confirm or dispel their suspicions

quickly.'" United States v. Trueber,

(1st Cir.

2001) (quoting United States v. Sharpe,

(1985)).

-8- However, no bright-line rule exists demarcating Terry-type

interventions from arrests. United States v. Rabbia,

(1st Cir. 2012). Nevertheless, a detention transforms into

a de facto arrest when a reasonable person, in the suspect's

position, would feel the degree of restraint normally associated

with formal arrest. United States v. Zapata,

(1st Cir. 1994). The question is, then, whether "in light of the

totality of the circumstances . . . a reasonable person in the

suspect's position would have understood [his] position 'to be

tantamount to being under arrest.'" United States v. Chaney,

(1st Cir. 2011) (quoting Zapata,

).

Upon review, factors to consider include: "the location

and duration of the stop, the number of police officers present at

the scene, the degree of physical restraint placed upon the

suspect, and the information conveyed to the suspect." Rabbia,

. This court also inquires into "whether the suspect

was questioned in familiar or at least neutral surroundings . . .

and the duration and character of the interrogation." United

States v. Nishnianidze,

(1st Cir. 2003) (quoting

United States v. Masse,

(1st Cir. 1987)).

Officers' temporary use of coercive measures, such as handcuffs,

and even drawing a weapon are not dispositive. See United States

v. Fornia-Castillo,

(1st Cir. 2005). Whether

-9- a Terry stop escalated to a de facto arrest "'qualif[ies] for

independent review' as it . . . presents a 'mixed question of law

and fact.'" Trueber,

(alterations in original)

(quoting Thompson v. Keohane,

(1995)).

Once an individual is in custody, police must advise the

arrestee of his or her constitutional rights before interrogation.

Miranda v. Arizona,

(1966). Failure to warn

a person of their Miranda rights renders inadmissible any statement

elicited in the course of the custodial interrogation. United

States v. Jackson,

(1st Cir. 2008).

B.

Here, at first glance, the suppression issue as to

Oquendo's pre-Miranda statement appears to hinge on this court's

independent determination of whether the Terry stop escalated into

an arrest before officers asked Oquendo if he had a gun license.

Several factors cause concern. The location was secluded. Cf.

Berkemer v. McCarty,

(1984) (explaining that

"exposure to public view both reduces the ability of an

unscrupulous policeman to use illegitimate means to elicit self-

incriminating statements and diminishes the motorist's fear that,

if he does not cooperate, he will be subjected to abuse"). Oquendo

was placed in handcuffs, which the record does not suggest were

removed at any point, and officers did not take measures to ensure

-10- that Oquendo knew that he was not under arrest. Cf. Fornia-

Castillo,

(officers removed handcuffs within fifteen

minutes and did not admit into evidence statements made by

defendant while he remained in handcuffs); see also Rabbia,

(finding that the officer's questioning after

removing handcuffs did not convert the initial Terry stop into a

custodial arrest). Nor does the record suggest that Rodríguez

informed Oquendo that the handcuffs were a temporary safety

measure. Rabbia,

(officer informed defendant that

he was being handcuffed as a safety measure and would remove the

restraints once other officers arrived). It is also not clear how

much time elapsed between apprehension and questioning, and we

note that officers moved Oquendo; that Rodríguez pointed his weapon

at Oquendo, kept it on him during the chase, and had it in his

hand while apprehending him; and that the officers used some force

in apprehending Oquendo, "throw[ing]" him on the floor and

handcuffing him.2 Ultimately, however, no one of these factors is

dispositive under our precedent. We are also keenly aware that

they reflect circumstances created by suspects' flight -- the

location and nature of setting, for example -- and officers'

contextually reasonable responses to the circumstances created by

2 As we said in Oquendo-Rivas, "[the officers] grabbed Oquendo and restrained him on the floor."

.

-11- suspects' flight. See Chaney,

. There were two

officers, but also two suspects. See Rabbia,

(suggesting consideration of the number of officers involved).

Although the officers did not communicate that the stop and

handcuffing were temporary, and Rodríguez referred to it as an

arrest when testifying, the record does not suggest that the

officers conveyed to the suspects that they were under arrest prior

to the Miranda warnings. United States v. Streifel,

(1st Cir. 1986) ("[Officers'] intentions were relevant only to

the extent that they were communicated to the defendants."); see

also Trueber,

. In particular, the brevity of the

pre-arrest interrogation -- a single pre-Miranda question -- and

its clear relationship to the reason for Oquendo's detention, see

Trueber,

, as well as his subsequent arrest, might

persuade us that this was a Terry-type intervention and did not

escalate into a de facto arrest. Yet we can also imagine how a

reasonable person in Oquendo's position might believe he was under

arrest. See Chaney,

.

We find that we need not determine if it was a Terry-

style intervention or a de facto arrest, as the admission of the

statement was harmless error. Arizona v. Fulminante,

(1991) (affirming harmless-error analysis applies to

admission of pre-Miranda statements); Bryant v. Vose, 785 F.2d

-12- 364, 367 (1st Cir. 1986). Rodríguez earlier observed Oquendo

"fle[eing] while brandishing a firearm, which he later attempted

to dispose," separate grounds for arrest, and one of the firearms

recovered had a serial number that had been obliterated. See

Oquendo-Rivas,

. Three eyewitnesses identified

Oquendo as one of the La Tómbola gunmen. As such, "the admission

of [Oquendo's pre-Miranda statement to Rodríguez] did not

contribute to [Oquendo's] conviction." Fulminante,

(citing Chapman v. California,

(1967)).

C.

We reject Oquendo's credibility-based challenge to his

post-Miranda statement to the PRPD officers. He claims that it

is implausible that the arrestees spontaneously stated that the

weapons were theirs but had nothing to do with the shooting. But

the district court deemed Rodríguez's account credible and

asserted that the statements "could easily be seen as revealing a

guilty conscience." And, as we have elsewhere observed, "'the

ball game is virtually over' once a district court determines that

a key witness is credible." United States v. Guzmán-Batista,

(1st Cir. 2015) (quoting Rivera-Gómez v. de Castro,

(1st Cir. 1990)). Oquendo did not marshal any

"objective evidence that contradicts [Rodríguez's] story" or show

that Rodríguez's account was "so internally inconsistent or

-13- implausible that no reasonable factfinder would credit it." Id.

at 937. Rather, Rodríguez's account was uncontroverted. Oquendo

has not produced that which would "definitely and firmly convince[]

[us] that a mistake has been made," Oquendo-Rivas,

,

and so we leave undisturbed the lower court's credibility

assessment.

D.

Stare decisis bars this court from reconsidering the

admissibility of Oquendo's post-Miranda statements to Torres. In

Oquendo-Rivas, we decided that neither Oquendo's right to remain

silent nor his right to counsel had been violated and thus that

his motion to suppress was correctly denied.

;

see EEOC v. Trabucco,

(1st Cir. 1986). None of the

criteria for overturning precedent have been met: Oquendo did not

show that the issue was not argued or that the previous panel

"ignored" the issue -- or that the decision was outdated,

inconsistent with current law, or unworkable. Trabucco,

. Rather, his arguments presume this issue has not already

been decided. We thus once again uphold the district court's

denial of the motion to suppress.

IV. The Closure

The district court ordered a witness who did not appear

on the day he was slated to testify against Candelario at trial,

-14- who had previously testified before the grand jury and been

interviewed by agents, arrested and brought to court. On

February 27, 2013, at 5:20 p.m., the district court held an in-

chambers conference to address the witness's concerns. At the

start of the conference, the witness expressed: "I'm afraid, and

I fear for my family." Presumably because it sought a more

concrete reply, the district court pressed the witness to clarify

whom, if anyone, he feared. He replied: "Well, these delinquents,

they have family, and. . . I know all of those people . . . I grew

up in that neighborhood, and I know how things are done there."

The court then informed him: "Are you aware that many other people

from your community have come to testify about things they know,

and have even identified, rightly or wrongly, some of these people?

And nothing has happened to them."

Replying to another question from the district court,

the witness indicated that he had received no threats.

Immediately thereafter, he clarified, without offering more, that

he was known to a person related to Candelario. The reluctant

witness confided: "All of our lives we know about the things that

have gone on in Sabana Seca, and this is like a chain. And things

are still continuing to happen. They continue."

The court then stated:

Look at the alternatives. I'm not telling you this to scare you. Believe me. I'm not trying to do that.

-15- But you have to understand that I have an obligation to make certain that matters that pertain to legal process are complied with. And while I cannot force you, I would hate and I would be very sorry if I have to imprison you because of this. And you will have to go to the same Federal jail where all these guys are. Imprisonment for contempt of this nature is you go in and you don't come out until you comply with the Order of the Court.

The court later added, "if you don't leave me an alternative --

can you imagine yourself sleeping tonight in Federal jail with all

these guys there?"

In further trying to persuade the witness to testify,

the district court assured him that, though the court and counsel

knew his identity, the witness's name would not be released to the

press. Alternatively, the court offered to assign the witness an

alias under which he could testify, but noted that Candelario

likely already knew the witness's name:

THE COURT: I can give you a different name, because I am not hiding your name, because the lawyers have it. The lawyers have it. They know who you are. They have your Grand Jury testimony.

THE WITNESS: Yeah, but the attorneys already gave it to [Candelario], didn't they?

THE COURT: I don't know whether they did that, but you don't think [Candelario] knows?

At this point, Government counsel interjected and offered to re-

locate the witness. Later, the district court offered the witness

"protection." The witness turned down both offers.

-16- As negotiations continued, the district court devised a

plan where the court security officers would announce to the public

that the court was adjourning for the day. The court, however,

would then resume with the witness's testimony once the courtroom

was vacated. Additionally, the lower court would allow the

witness to face away from Candelario, and to identify him using a

photograph. The plan went through, over the objections of counsel

for Candelario.

A.

As Justice Black once observed, "[b]ad men, like good

men, are entitled to be tried and sentenced in accordance with

law . . . ." Green v. United States,

(1961)

(Black, J., dissenting); see also Sorich v. United States,

, 1311 (2009) (Scalia, J., dissenting) (mem.).

We begin with the troubling question of whether the

district court's closing feint to facilitate the reluctant

witness's testimony constituted a constitutionally impermissible

closure, effecting structural error. We find that, in Candelario's

case, it did.3 As such, we need not proceed to the further question

3 Counsel for Oquendo expressly waived any public trial claim by affirmatively stating, in reply to the district judge's inquiry as to his consent to the closing, "I don't mind." See United States v. Christi,

(1st Cir. 2012) (finding that where defense counsel failed to speak while judge discussed closure "her silence passed beyond inadvertence or passivity to the point of

-17- whether the district court's statements to the witness regarding

the consequences of refusing to testify were coercive.

This court reviews de novo whether a district court

violated a defendant's Sixth Amendment right to a public trial.

United States v. Laureano-Pérez,

(1st Cir. 2015).

The Sixth Amendment affords defendants the right to a public trial.

U.S. Const. amend. VI. This constitutional guarantee "embodies a

view . . . that judges, lawyers, witnesses, and jurors will perform

their respective functions more responsibly in an open court than

in secret proceedings." Waller v. Georgia,

, 46 n.4

(1984) (quoting Estes v. Texas,

(1965) (Harlan,

J., concurring)). Denial of a public trial constitutes structural

error, United States v. Negrón-Sostre,

(1st Cir.

2015), rendering the entire trial process "fundamentally unfair,"

Neder v. United States,

(1999) (quoting Rose v.

Clark,

(1986)). Given the magnitude of this

error, a defendant need not demonstrate prejudice. Owens v.

United States,

(1st Cir. 2007). "The mere

demonstration that [a defendant's] right to a public trial was

violated entitles a petitioner to relief."

(citation and

internal quotation marks omitted).

waiver").

-18- The right to a public trial is not absolute, however.

Globe Newspaper Co. v. Superior Court for Norfolk Cnty.,

(1982). It "may give way in certain cases to other rights

or interests, such as the defendant's right to a fair trial or the

government's interest in inhibiting disclosure of sensitive

information." Waller,

. "Such circumstances will

be rare, however, and the balance of interests must be struck with

special care."

In Waller, the Supreme Court established a

four-pronged test for evaluating the constitutionality of

courtroom closures:

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

. Complete closures are justified to the extent that all

four requirements are satisfied.

"The presumption of openness may be overcome only by an

overriding interest based on findings that closure is essential to

preserve higher values and is narrowly tailored to serve that

interest." Press-Enter. Co. v. Superior Court of Cal., Riverside

Cnty.,

(1984). In such cases, "[t]he interest

is to be articulated along with findings specific enough that a

reviewing court can determine whether the closure order was

-19- properly entered." Id.; see also Richmond Newspapers, Inc. v.

Virginia,

(1980) ("Absent an overriding interest

articulated in findings, the trial of a criminal case must be open

to the public." (emphasis added)).

The Clemente Ruiz Nazario U.S. Courthouse closes its

doors to the public at 5 pm. See Court Locations, U.S. District

Court for the District of Puerto Rico,

http://www.prd.uscourts.gov/?q=court-locations; see generally

(a) ("Except as otherwise permitted, [federal

agencies must] close property to the public during other than

normal working hours."). Although the doors to the actual

courtroom remained unlocked, the announcement that the court was

adjourning, the attorneys' feint at packing up, and the after-

hours time at which the court reconvened effected a closure. See,

e.g., Walton v. Briley,

(7th Cir. 2004) (finding

complete closure where two proceedings "encompassing the entirety

of the prosecution's" case-in-chief took place during late evening

hours (quoting United States ex. rel. Walton v. Gilmore,

, *1 (N.D. Ill. June 25, 2001)). Because nothing in the

record suggests that any part of the proceeding remained open or

any members of the public remained, it was a complete closure.

Cf. Wilder v. United States,

(1st Cir. 2015),

cert. denied,

(2016) (finding that procedures that

-20- are the functional equivalent of sidebar conferences do not

constitute complete closure); Bucci v. United States,

(1st Cir. 2011). Far from inadvertent, the closure here was

deliberate. See Negrón-Sostre,

. Moreover, it

encompassed the entirety of one witness's testimony, the

presentation of evidence. Cf. United States v. Bucci,

(1st Cir. 2008) (noting that the fact that "no evidence

was presented against either defendant" weighed in favor of

excusing closure during civil contempt proceedings related to

criminal trial).

The closure fails the Waller test at the first prong:

The Government did not request a closure nor did the Government or

the court identify an overriding interest, much less establish

that it was "likely to be prejudiced." See, e.g., Laureano-Pérez,

(finding "substantial interest" for exclusion where

a member of the public made faces and mouthed words at a witness

in an intimidation attempt); see also Martin v. Bissonette,

(1st Cir. 1997) (no error in excluding defendant's

family members who "played prominent roles in menacing a witness");

United States v. Addison,

(10th Cir. 2013)

(no error in excluding a person who "intimidated" a government

witness); United States v. Hernández,

, 748 (9th Cir.

1979) (affirming closure where witness received menacing phone

-21- calls and informing law enforcement that a contract "had been put

out on his life"). The district court articulated no findings to

that effect. To the contrary, at different points in its exchange

with the witness, the district court made clear its belief that

closure would not protect the witness or his identity.4 While we

can imagine a scenario with somewhat similar facts in which the

district court instead acknowledged and inquired into the

witness's concerns, formally found an "overriding interest" likely

to be prejudiced, explored alternatives to closure in full, and

narrowly tailored some form of closure to protect that overriding

interest, resulting in a constitutionally permissible closure,

that is not what occurred here. Waller,

; Press-

Enter. Co.,

; Richmond Newspapers, Inc.,

. On this record, given the district court's statements

undermining the witness's concerns and the absence of any finding

of an overriding interest, we cannot find that the closure in this

4 The court stated, "Well, [Candelario] already knows that you testified," and asked, "but you don't think he knows [your name]?" When asked if he was afraid of "[a]ny particular person," the witness responded, "[n]o," and expressed a generalized fear of people associated with Candelario. The district court asked, "Are you aware that many other people from your community have come to testify about things they know, and have even identified, rightly or wrongly, some of these people?" He added, "And nothing has happened to them," apparently discrediting the notion that the witness would be put at risk if he testified before the public.

-22- case was constitutionally permissible and must vacate and remand

as to Candelario.

V. Oquendo's Assorted Allegations of Error

Oquendo alleges that the district court erred by failing

to sua sponte sever his trial from Candelario's and that the

Government committed prosecutorial misconduct in its closing

statements. Because Oquendo neither articulated the severance

issue below nor objected to the alleged prosecutorial misconduct,

this court reviews his claims for plain error. United States v.

Richardson,

(1st Cir. 2008); United States v.

Robinson,

(1st Cir. 2007). "Plain error review

puts a heavy burden on the defendant; he must show '(1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings.'" United States v. Laracuent,

(1st Cir. 2015) (quoting United States v. Negrón–Narváez,

(1st Cir. 2005)).

A.

We first address Oquendo's belated objection to joinder.

The risk of spillover prejudice does provide a basis for requesting

severance under criminal rule 14(a). Fed. R. Crim. P. 14(a) (a

court "may order separate trials" or "sever the defendants' trials"

-23- if "the joinder of. . . defendants in an indictment. . . or a

consolidation for trial appears to prejudice a defendant or the

government"). But "severance [is] warranted 'only if there is a

serious risk that a joint trial would compromise a specific trial

right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.'" United States v.

Tiem Trinh,

(1st Cir. 2011) (quoting United

States v. Celestin,

(1st Cir. 2010)). "To

establish prejudice, [defendant] must show more than just a better

chance of acquittal at a separate trial."

(citation and

internal quotation marks omitted). "Garden variety prejudice,

which always exists when more than one defendant or offense are

tried together, does not warrant a new trial."

(quoting United

States v. Tejeda,

(1st Cir. 2007)). Moreover, a

trial court can safeguard a defendant from potentially prejudicial

spillover by delivering jury instructions as to the admissibility

of the evidence. United States v. Floyd,

(1st

Cir. 2014). "[A] death-qualified jury constitutionally may hear

and determine non-capital charges" insofar as "significant

interests" justify trying capital and non-capital defendants

jointly. United States v. Green,

(1st Cir.

2005) (citing Buchanan v. Kentucky,

(1987)).

-24- We find that the district court did not err in declining

to sua sponte sever Defendants-Appellants' trials before a death-

qualified jury.5 At trial, the Government established one of the

VICAR elements -- e.g., the existence of an ongoing enterprise --

primarily through former associate Menor's often vivid testimony

regarding Candelario's antecedent offenses. Even assuming,

arguendo, that the Government presented irrelevant and potentially

prejudicial testimony, the district court repeatedly delivered

limiting instructions to the jury. Moreover, the court instructed

the jury to render a guilty verdict as to each defendant only if

the Government proved each element beyond a reasonable doubt as to

the defendant. These curative instructions insulated Oquendo from

any potential harm. Floyd,

. Oquendo's garden

variety allegations of unfair prejudice are further negated by the

overwhelming direct and circumstantial evidence against him,

including the three eyewitnesses who identified him as one of the

La Tómbola shooters.

5 Oquendo cites no case law nor articulates any legal basis in support of his severance claim. Furthermore, Oquendo does not dispute that the instant case qualified for joinder. Nor does he challenge on constitutional grounds the empanelling of a death- qualified jury to try his non-capital charges. Because he cannot establish plain error, we affirm the lower court's decision to try defendants jointly before a death-qualified jury.

-25- B.

Oquendo objects for the first time on appeal to the

Government's statements in closing to the effect that Oquendo and

Candelario knew one another; referring to Oquendo as "blindly

loyal" and "somebody . . . who is easily led"; describing the

victims of the shooting as having been "killed like dogs"; and

urging the jury to "put an end to Alexis'[s] war."

To obtain reversal on the basis of prosecutorial

misconduct, a defendant must show that the actions of the

Government "so poisoned the well that the trial's outcome was

likely affected." United States v. Vázquez-Larrauri,

(1st Cir. 2015) (quoting United States v. Kasenge,

(1st Cir. 2011)). Put another way, a defendant must

establish that the errors "likely swayed the outcome of the trial."

United States v. Báez-Martínez,

(1st Cir. 2015),

rev'd on other grounds,

(2015). Factors to be

weighed in this analysis include: "(1) the severity of the

prosecutor's misconduct, including whether it was deliberate or

accidental; (2) the context in which the misconduct occurred;

(3) whether the judge gave curative instructions and the likely

effect of such instructions; and (4) the strength of the evidence

against the defendants." United States v. Nelson–Rodríguez, 319

-26- F.3d 12, 38 (1st Cir. 2003) (quoting United States v. Wihbey,

, 771–72 (1st Cir. 1996)) (quotation marks omitted).

Regarding claims of misstatement of evidence, "[t]o

determine whether the prosecutor's misstatement amounted to plain

error, it must be viewed within the context of the entire trial."

United States v. Santana-Camacho,

(1st Cir.

1987). "[T]he court must consider the probable effect the

prosecutor's [remarks] would have on the jury's ability to judge

the evidence fairly."

(alterations in original) (citation

omitted). This court has previously found plain error from

misstatement of the evidence when, for example, "the prosecutor

made a remark that 'was not made in response to any improper

statement made by the defense counsel[,] . . . lacked any basis in

the evidence[,] and . . . contradicted the evidence.'" United

States v. Nickens,

(1st Cir. 1992) (quoting

Santana-Camacho,

). We take no issue, however,

with the efforts of a prosecutor to "attempt to persuade the jury

to draw inferences from the evidence" in closing arguments.

United States v. O'Shea,

(1st Cir. 2005) (quoting

United States v. Hamie,

(1st Cir. 1999)).

In assessing whether reversal is warranted under the

cumulative-error doctrine, this court evaluates whether

"[i]ndividual errors, insufficient in themselves to necessitate a

-27- new trial, may in the aggregate have a more debilitating effect."

Laureano-Pérez,

(alteration in original) (quoting

United States v. Sepúlveda,

, 1195–96 (1st Cir. 1993)).

Of course, "[a]bsent any particularized error, there can be no

cumulative error." Williams v. Drake,

(1st Cir.

1998).

In the instant case, no plain error resulted from the

prosecutor's purported misstatement of the evidence. A reasonable

jury could infer that Oquendo and Candelario knew one another,

based on Rufo's testimony. O'Shea,

. Similarly,

the purported "calls to speculation" do not rise to the level of

plain error. For example, by exhorting the jury to conclude that

Oquendo was "blindly loyal" to Candelario, the prosecutor merely,

albeit colorfully, urged an inference supported by evidence of

Oquendo's participation in the La Tómbola shooting.

Even if either statement constituted an error, neither

changed the trial's outcome. Báez-Martínez,

;

Vázquez-Larrauri, 778 F.3d at 283. Given the weight of the

evidence, there is no substantial chance that absent the purported

misstatement the jury would have acquitted. Arrieta-Agressot v.

United States,

(1st Cir. 1993). We note once more

at this juncture that three eyewitnesses identified Oquendo as one

of the perpetrators of the La Tómbola shooting.

-28- During the prosecution's rebuttal, the Government also

urged the jury to "put an end to Alexis'[s] war." By itself, this

statement is not tantamount to an appeal to convict as a civic

duty. Moreover, these comments fall well short of the ignoble

benchmark set by other remarks we have nonetheless declined to

find constituted plain error. See, e.g., Sepúlveda, 15 F.3d at

1188 n.21 ("We put this organization out of business. And it's

up to you to decide that it stays that way. Because ask

yourselves, the business practices of this organization, this

organized group of drug dealers, what practices will be allowed to

continue in the streets of Manchester and the surrounding towns of

New Hampshire if these people are allowed or permitted to revive

the drug ring . . . ."). Likewise, we find that the Government

did not improperly appeal to the jury's passion. The

prosecution's characterization of Candelario's actions as "war"

finds footing in the record. Indeed, Rufo's testimony referred

to the conflicts between members of Palo de Goma as a "war."

Lastly, we do not find plain error resulted from the prosecution's

vivid description of the La Tómbola shooting: The phrase "killed

like dogs," may be distasteful, but it is hardly plain error.

In conclusion, we find Oquendo has not carried the burden

of establishing that the prosecution's summation "likely swayed

the outcome of the trial," Báez-Martínez,

, nor

-29- demonstrated some series of errors creating cumulative error

requiring reversal. Laureano-Pérez,

; Drake,

.

VI. The Jury Instructions

Oquendo argues that the district court plainly erred

when it failed to convey that the jury should render a verdict of

guilty only if Oquendo "acted with a purpose to further or benefit

from an ongoing conspiracy," as charged in the indictment.

According to Oquendo, "[t]he Court's instructions, taken as a

whole, authorized [Oquendo's] conviction for the offense of aiding

and abetting in a murder or attempted murder under the laws of

Puerto Rico or

(Count 10) rather than in the VICAR

offense charged in the indictment." Oquendo also complains that

the instructions violated his due process rights by allowing a

conviction on the basis of speculation. In this regard, Oquendo

maintains that the instructions required the Government to prove

that Oquendo acted to benefit from or in furtherance of an

enterprise that, inter alia, "existed or would exist" and that the

conduct "posed or would pose a threat of continued criminal

activity." Per United States v. Patrick,

(1st Cir.

2001), he argues, the enterprise need be ongoing at the time of

the charged conduct. With regard to the VICAR instructions, he

claims, the district court "fail[ed] to make clear the critical

-30- element of knowledge of enterprise-related motive." Lastly,

Oquendo protests that while the indictment charged Oquendo in the

conjunctive (acting "for either receipt of payment by the

enterprise and to gain, maintain or increase position in it"), the

district court conveyed instructions in the disjunctive.

A.

As Oquendo failed to object to any of the jury

instructions he now challenges, this court reviews his claims for

plain error. United States v. López-Díaz,

(1st

Cir. 2015). That is, his claims of instructional error are forfeit

unless he can establish plain error. United States v. Gómez,

(1st Cir. 2001). "When applying the plain error

standard in the context of jury instructions, [this court] look[s]

at the instructions as a whole to ascertain the extent to which

they adequately explain the law without confusing or misleading

the jury." United States v. Fermin,

(1st Cir.

2014) (quoting United States v. Brown,

(1st Cir.

2012)) (internal quotation marks omitted).

B.

We find that, taken "as a whole," Fermin,

, the jury instructions adequately apprised the jury of the

necessary elements to convict Oquendo of aiding and abetting

Candelario's VICAR offense.

-31- The district court explained that to establish "aiding

and abetting" the Government had to prove that "[Oquendo]

consensually shared [Candelario's] knowledge of the underlying

criminal act." Immediately following these instructions, the

court clarified that the Government was tasked with proving that

the "[aforementioned] underlying criminal conduct was committed"

pursuant to an enterprise-related purpose. Although the district

court's articulation of the "ongoing enterprise" requirement was

admittedly problematic, the jury instructions, viewed in their

entirety, adequately explained the law, as the court also clarified

the structural features of an enterprise. Cf. Brown,

(finding no plain error where jury instructions included

"questionable articulations" but later clarified the law). For

the same reason, we find that the district court did not err when

it advised the jury that the prosecution could establish the VICAR-

related purpose (i.e. carrying out the act "in receipt of payment"

or "to gain entrance to" the enterprise) in the disjunctive, though

the indictment charged Defendants-Appellants in the conjunctive.6

Finally, the district court did not err when it advised the jury

6 We note that this issue is in any case likely waived, as Oquendo does not develop this argument fully. United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

-32- that the VICAR motive "need not be the sole or principal motive":

The instruction in question is consistent with our holding in

United States v. Tse.

(1st Cir. 1998).

VII. Sufficiency of the Evidence

Finally, Oquendo argues that the evidence is

insufficient to support his convictions, and that his Fed. R. Crim.

P. 29 motion for acquittal should have been granted. This

argument, too, fails to persuade us.

This court reviews de novo a district court's denial of

a motion for judgment of acquittal under Fed. R. Crim. P. 29.

United States v. Alberico,

(1st Cir. 2009). Such

a motion will only be "granted if 'the evidence and all reasonable

inferences to be drawn from the evidence, both taken in the light

most favorable to the [G]overnment, are insufficient for a rational

fact finder to conclude that the prosecution has proven, beyond a

reasonable doubt, each of the elements of the offense.'"

(quoting United States v. Pimental,

(1st Cir.

2004)).

"An appellate court plays a very circumscribed role in

gauging the sufficiency of the evidentiary foundation upon which

a criminal conviction rests. [We] neither weigh[] the credibility

of the witnesses nor attempt[] to assess whether the prosecution

succeeded in eliminating every possible theory consistent with the

-33- defendant's innocence." United States v. Medina-Martínez,

(1st Cir. 2005) (quoting United States v. Noah,

(1st Cir. 1997)). Instead, this court analyzes whether,

through the lens of a rational trier of fact, "the evidence

presented at trial, together with all reasonable inferences,

viewed in the light most favorable to the government, established

guilt." United States v. Strong,

(1st Cir. 2013)

(citation and quotation marks omitted). "The court's only inquiry

is whether the guilty verdict is supported by a plausible rendition

of the record." United States v. Rodríguez-Reyes,

(1st Cir. 2013) (citation and quotation marks omitted). We note

that, in particular, the findings of a jury should be left

undisturbed where the evidence, along with all inferences

reasonably derived therefrom, suffice to establish guilt beyond a

reasonable doubt. Medina-Martínez,

; United States

v. Bruno,

(2d Cir. 2004).

Viewing the evidence presented at trial in the light

most favorable to the Government, and drawing all rational

inferences accordingly, Alberico,

, we have little

trouble concluding that a rational trier of fact could find beyond

a reasonable doubt that the Government proved the VICAR elements

at issue.

-34- A.

VICAR prohibits murder and other violent crimes "for the

purpose of gaining entrance to or maintaining or increasing

position in an enterprise engaged in racketeering activity."

(a). As we and other circuits have elsewhere

recognized, Congress intended the motive requirement to be

construed liberally. United States v. Concepción,

(2d Cir. 1992); see Tse,

(citing Concepción

favorably). The Government need not prove that a defendant

committed the violent act solely or principally for the purpose of

gaining entrance to the enterprise. See Tse,

. An

"enterprise" refers to "any union or group of individuals

associated in fact . . . which is engaged in, or the activities of

which affect, interstate or foreign commerce."

(b)(2). The enterprise must be "ongoing" and have "existed in

some coherent and cohesive form." United States v. Nascimento,

(1st Cir. 2007) (internal quotation marks and

citations omitted). Although members can enter and exit the

enterprise, it "must continue in an essentially unchanged form

during substantially the entire period alleged in the indictment."

Patrick,

.

-35- B.

Here, the enterprise continued, albeit with multiple

changes in leadership, from 1993 through 2009. Over that period,

Palo de Goma exhibited a well-organized structure; sold the same

drugs; and killed members of rival enterprises. Although Palo de

Goma did not exhibit all distinguishing traits traditionally

associated with gangs -- such as gang colors and initiation rites,

see, e.g., Patrick,

-- the facts nonetheless support

finding the cohesive structure and sufficient degree of

sophistication to establish the elements of an enterprise. See

Nascimento,

(enterprise "lacked some of the

accouterments of more structured street gangs" yet was

"sufficiently well-defined" to constitute an enterprise). And

while, admittedly, the upper ranks of the organization shifted

over time due to internal disputes, the succeeding members

functioned as a continuous unit, working together toward a common

purpose. See Patrick,

(affirming jury instruction

that "although individuals may come and go, the enterprise must

continue in an essentially unchanged form").

With regard to motive, the Government presented evidence

that Candelario murdered past rivals, some within the enterprise;

Defendants-Appellants carried out the attack; and Candelario

shared the purpose of his prior murders with those who carried out

-36- attacks for and with him. These circumstances, in conjunction

with Candelario's death threats to Rufo over his refusal to

continue sharing Palo de Goma drug revenue, supported the finding

that Candelario's motive was to reassert his role in the enterprise

and that Oquendo shared his motive.7 As such, we are satisfied

that, viewed in its entirety and in the light most favorable to

the Government, the record contains sufficient evidence for the

jury to have plausibly found beyond a reasonable doubt that

Candelario carried out the La Tómbola shooting "for the purpose of

gaining entrance to" the enterprise,

(a), and

Oquendo knew of and shared that purpose. Rodríguez-Reyes,

. The jury's findings stand. Medina-Martínez,

.

7 At trial, the Government employed overlapping evidence, mostly through Menor's testimony of predicate murders, to prove the "enterprise" and "pattern of racketeering activity" elements. While the pattern of racketeering activity does not necessarily establish the existence of an enterprise "separate and apart" from the activities themselves, United States v. Turkette,

(1981), the evidence may intersect in some cases. Boyle v. United States,

(2009). Because the evidence showed that Palo de Goma members performed at least some racketeering activity to advance a goal beyond the underlying criminal activity itself (e.g., eliminating members of rival drug points), see Nascimento,

, the evidence of both elements demonstrated that members worked together to maintain or advance Palo de Goma's position as a drug point.

-37- VIII. Conclusion

For the reasons set forth above, we affirm Oquendo's

convictions but vacate those of Candelario and remand for

proceedings consistent with this opinion.

Affirmed, Vacated and Remanded.

-38-