United States Court of Appeals For the First Circuit

No. 18-1333

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL LEONER-AGUIRRE, a/k/a Tremendo,

Defendant, Appellant.

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

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

Before

Lynch, Selya, and Barron, Circuit Judges.

Julia Pamela Heit for appellant. Kunal Pasricha, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

September 20, 2019 LYNCH, Circuit Judge. After a two-week trial, a jury

in 2017 convicted Rafael Leoner-Aguirre ("Aguirre"), a leader of

the MS-13 gang in Massachusetts, of RICO conspiracy,

(d). The predicate acts charged involved murder, robbery,

and drug dealing. The district court sentenced Aguirre to 228

months' imprisonment and three years of supervised release.

He appeals from his conviction. Aguirre first argues

that the district court erred when it instructed the jury on the

requirements to convict him for RICO conspiracy. He argues that

the district court erred by not following a statement of the law

contained in United States v. Ramírez-Rivera,

(1st

Cir. 2015). We hold that the district court was correct to reject

this instruction under Salinas v. United States,

(1997), and United States v. Cianci,

(1st Cir. 2004).

Aguirre more generally challenges the jury instructions for

failing to require the jury to make an affirmative finding, in the

verdict, as to which predicate acts he and his co-conspirators in

fact committed. We reject this argument as well for being

inconsistent with Salinas.

Further, he argues that the evidence did not negate his

affirmative defense that he withdrew from the conspiracy when he

was imprisoned. Though he did not so object at trial, he now

argues that the district court erred when it instructed the jury

on the requirements of a withdrawal defense. Again, case law from

- 2 - the Supreme Court, Smith v. United States,

(2013),

and this circuit forecloses his argument. Finally, he makes

several meritless challenges to the admission of certain

testimony. We affirm his conviction.

I.

We state the facts in the light most favorable to the

jury's verdict. United States v. Ciresi,

(1st

Cir. 2012). The indictment arose from the defendant's activities

as a high-ranking member of the Mara Salvatrucha gang, MS-13. MS-

13, based in El Salvador and also operating in the United States,

is composed of subgroups called "cliques." The "Enfermos" clique

operates in El Salvador and Massachusetts.

Around 2012, the Enfermos paid for Aguirre to come to

the United States. Aguirre arrived in Michigan, and while he

lived there, he created promotional videos for MS-13 to attract

new members that touted the gang's mission of killing rivals. In

2014, Aguirre went to Massachusetts with the goal of enlarging the

clique, and became its highest-ranking member. He was the

"palabrero," the local leader of the Enfermos, and began overseeing

the activities of Enfermos members, including by taking control of

promotions within the clique, recruiting new members, and

disciplining members who broke clique rules. Aguirre also ordered

clique members to commit a number of crimes, including robberies,

beatings, and murders.

- 3 - Aguirre also directly participated in three attempted

murders, either personally or by ordering the murder be committed

by other MS-13 members. The first was on April 6, 2014, and began

when Aguirre recognized two rival gang members walking toward him

and his girlfriend. Aguirre approached the men and attacked one

of them with a machete. The victim defended himself with a box-

opening knife. Aguirre struck the victim in the arm and the head

with the machete and said, "La Mara Salvatrucha." The victim was

hospitalized and lived. He testified at trial about the attack

and identified Aguirre as his attacker.

The second murder attempt took place on April 16, 2014,

after Aguirre learned that rivals had attacked two Enfermos

members. Seeking revenge, Aguirre and three other Enfermos

members set out to find the rivals, and spotted Javier Servellon

and his friend. A fight ensued; Servellon tried to defend his

friend; Aguirre aimed a gun at Servellon and shot him as he tried

to run away. Again, the victim was hospitalized and survived.

Aguirre was arrested on state charges and a jury, in 2015,

convicted him of assault with intent to kill.1

The third attempt was while Aguirre was in state prison

on his assault conviction. He remained the leader of the Enfermos

1 Aguirre's former girlfriend also witnessed this fight. She stated that she stayed in the car while the fight took place. She heard a gunshot during the fight and, when Aguirre returned, he stated he shot a man but did not know if he was dead.

- 4 - while in prison. He ordered the Enfermos to kill Christian

Henriquez, a fellow Enfermos member, suspected of betraying the

clique. Daniel Menjivar, an Enfermos member, was recorded as

saying that Aguirre gave the order to kill Henriquez. Henriquez

also testified at trial that Menjivar had told him that Aguirre

gave "the green light" for Henriquez to be killed. Other

recordings captured Enfermos members discussing how to kill

Henriquez. By April 2015, law enforcement had uncovered the plan

and warned Henriquez, who avoided harm.

Aguirre also personally committed multiple armed

robberies using a machete and a gun from March 2014 until his

arrest in April 2014. Further, an Enfermos member also gave

Aguirre money from drug sales. Aguirre used the money to buy

weapons and send money back to El Salvador.

In May 2017, a grand jury indicted Aguirre for RICO

conspiracy in violation of

(d). Specifically, the

indictment charged that Aguirre was "employed by and associated

with MS-13, an enterprise which was engaged in, and the activities

of which affected, interstate and foreign commerce." It charged

that he "did knowingly conspire with [his co-defendants and other

persons] to violate [

(c)], that is, to conduct and

participate, directly and indirectly, in the conduct of the affairs

of the MS-13 enterprise through a pattern of racketeering

activity." The indictment further charged "that each defendant

- 5 - agreed that a conspirator would commit at least two acts of

racketeering activity in the conduct of the affairs of the MS-13

enterprise." The indictment alleged that the pattern of

racketeering activity included "multiple offenses involving

trafficking in narcotics, including . . . marijuana," "multiple

acts involving murder," and "multiple acts involving robbery."

The indictment named Aguirre as a participant in three attempted

murders and alleged that other MS-13 members committed six murders.

He was charged with RICO conspiracy; not substantive RICO offenses.

As said, he was convicted of the one RICO conspiracy count charged.

II.

We first address Aguirre's challenges to the jury

instructions on the elements of RICO conspiracy given at trial.

Then we review his arguments about his defense of withdrawal from

the conspiracy and the standards for showing withdrawal. Finally,

we address the evidentiary issues he raises.

A. Jury Instructions for RICO Conspiracy

Before addressing Aguirre's challenges, we first recount

the procedural history of his requests to the district court that

the jury be instructed to make certain findings in order to convict

him of RICO conspiracy. The nature of his request has evolved

over time, and his briefing is unclear as to which request is at

issue.

We begin with his first motion, made before his trial

- 6 - began, in which Aguirre requested "that the issue of whether he

conspired to commit or further the crime of attempted murder not

be considered at sentencing unless submitted to the jury as a RICO

predicate offense, and absent a jury's affirmative finding using

a reasonable doubt standard." The government opposed this motion

as inconsistent with RICO conspiracy law, and the district court

denied the request.

On October 27, 2017, at the final pretrial conference,

Aguirre raised the question of what a jury must find to convict

for RICO conspiracy. His counsel asked, "how exactly [will] we

know what the jury found with respect to" the defense's arguments

that the crimes Aguirre committed were not predicate acts "if all

they're asked to do is come back and say, yeah, there's two

predicate offenses, and we don't know which ones they are, we don't

have to specify whether they're the attempted murders or the armed

robberies or anything else." The government again opposed

Aguirre's arguments, and the district court stated that it would

not make a final ruling on jury instructions yet.

On November 17, 2017, the district court held the charge

conference. The next day, Aguirre filed a supplemental proposed

jury instruction that requested "an instruction that explicitly

follows the elements of a RICO conspiracy charge as stated in

United States v. Ramírez-Rivera." Ramírez-Rivera stated that for

a defendant to be convicted of RICO conspiracy, the government

- 7 - must prove, among other elements, that he "participated in the

conduct of the affairs of the enterprise . . . through a pattern

of racketeering activity by agreeing to commit, or in fact

committing, two or more predicate offenses." Ramírez-Rivera,

. In so stating, Ramírez-Rivera relied on United States

v. Shifman,

(1st Cir. 1997). Ramírez-Rivera,

. But Shifman had been abrogated in this regard by

Salinas. See Salinas,

. In its brief to the

Ramírez-Rivera panel, the government never argued that Shifman had

been abrogated by Salinas. It also failed to respond to the

defendants' contention that the First Circuit requires "that

[defendants] personally agree to commit two or more racketeering

acts," which cited pre-Salinas case law for support.2

On the first day of trial, the district court addressed

2 Not at issue on appeal is Aguirre's second request of an instruction on the elements of certain crimes that do not constitute "racketeering activity." Aguirre refers to these offenses as "lesser included" crimes. The district court agreed to and did instruct on three crimes that are not "racketeering activity" under the statute: voluntary manslaughter, involuntary manslaughter, and the state crime of armed assault with intent to kill. The district court prefaced this instruction by telling the jury that it would hear instructions "on the definitions of certain related crimes that are not racketeering acts to try to give [it] a reasonably clear picture of what the law requires." After instructing on the elements of crimes that constitute racketeering activity, the district court also told the jury that the next set of crimes "do not qualify as 'racketeering acts,'" and instructed on the elements of these three nonracketeering crimes and on how self-defense can mitigate the seriousness of a crime. The prosecution did not object.

- 8 - Aguirre's request in the supplement. The district court noted

that Ramírez-Rivera "appears to conflict with [Salinas]" on the

elements of RICO conspiracy. The district court then stated:

I think I have to conclude through inadvertence or mistake that the First Circuit in 2015 misstated what the relevant elements were and that, again, because it has been overruled by Salinas, the government need not prove that the defendant agreed to commit or, in fact, committed two predicate . . . offenses, and my jury instructions and the course of trial will reflect that.

At the close of trial, the district court instructed the jury that

"[t]he government is not required to prove either that the

defendant personally agreed to commit two racketeering acts or

that he actually committed two such acts."

The district court then properly instructed that the

indictment alleged these predicate acts: "murder, assault with

intent to commit murder, armed assault with intent to murder[,]

conspiracy to commit murder, armed robbery, armed assault with

intent to rob, and criminal offenses involving trafficking in

narcotics,"3 and explained the elements of some of these offenses.

The district court also instructed that the jury "must unanimously

agree on which type or types of racketeering activity that the

defendant agreed the enterprise would conduct -- for example, at

3 The two "criminal offenses involving trafficking in narcotics" charges were "to conspire to distribute control[led] substances, including marijuana, or to possess such substances with the intent to distribute."

- 9 - least two acts of murder, at least two acts of robbery, or at least

two acts of narcotics trafficking, or all of them, or any

combination of them." (Emphasis added). At the close of the

instructions, Aguirre preserved his objection to the denial of the

Ramírez-Rivera instruction.

Aguirre argues on appeal that the district court erred

when it refused to require the jury to "set forth the predicate

acts . . . which they found that Aguirre committed or conspired to

commit" because the district court was "obliged to follow" Ramírez-

Rivera.4 A challenge to a refused jury instruction succeeds only

when "the requested instruction was (1) substantively correct; (2)

not substantially covered elsewhere in the charge; and (3)

concerned a sufficiently important point that the failure to give

it seriously impaired the defendant's ability to present his or

her defense." United States v. Prigmore,

(1st Cir.

2001). His challenge fails on the first prong, as we explain

below, because the statement he relies on from Ramírez-Rivera was

incorrect and inconsistent with Salinas.

Aguirre makes a separate argument that the government's

decision to prove his agreement to a RICO conspiracy by introducing

4 To the extent that Aguirre's argument on appeal is that the district court erred by denying his request to instruct the jury on the elements of RICO conspiracy as stated in Ramírez- Rivera, Aguirre preserved this objection, so our review is de novo. United States v. Galatis,

(1st Cir. 2017).

- 10 - evidence that he and his co-conspirators in fact committed multiple

acts of racketeering triggered a "concomitant obligation to charge

the jury to make a finding concerning which predicate acts it found

that Aguirre or others committed beyond a reasonable doubt."

Aguirre argues that this instruction was "necessary" to his defense

strategy, which focused on arguing that the crimes he and his co-

conspirators committed were what he calls "lesser included"

offenses, and not predicate acts that constitute racketeering

activity under the statute. Without an express jury finding on

which predicate acts were committed, Aguirre argues there is no

way to know if the jury found that the crimes he and his co-

conspirators committed were predicate acts or "lesser included"

offenses. Aguirre did not submit any proposed jury instruction

along these lines at trial, so our review of this argument is for

plain error. We find no error in the district court's

instructions.

Aguirre's challenges are based on a misunderstanding of

RICO conspiracy law. The RICO statute's conspiracy provision

makes it "unlawful for any person to conspire to violate any of

the provisions of subsection (a), (b), or (c) of this section."

(d). Subsection (c), which Aguirre was charged

with conspiring to violate, prohibits "any person employed by or

associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

- 11 - participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity or

collection of unlawful debt."

§ 1962(c). Relevant here,

"racketeering activity," composed of predicate acts, includes "any

act or threat involving murder, . . . robbery, . . . or dealing in

a controlled substance." Id. § 1961(1)(A). A pattern of

racketeering activity "requires at least two acts of racketeering

activity" within ten years of each other. Id. § 1961(5).

The government's burden in proving a violation of the

conspiracy offense, section 1962(d), is to show that the defendant

"knew about and agreed to facilitate" a substantive RICO violation.

Salinas,

. So, conspiracy to violate subsection (c)

requires proof that the defendant knew about and agreed to

facilitate "the conduct of [an] enterprise's affairs through a

pattern of racketeering activity."

(c); see also

Salinas,

(stating that the "predominant" elements

of a subsection (c) violation are "(1) the conduct (2) of an

enterprise (3) through a pattern of racketeering activity").

In Salinas, the Supreme Court made clear that the

government does not need to prove that the defendant "himself

commit[ted] or agree[d] to commit the two or more predicate acts

requisite to the underlying offense." Salinas,

;

see Cianci,

(quoting Salinas,

).

Nor must the government prove that the defendant or his

- 12 - co-conspirators committed any overt act in furtherance of the

conspiracy. Salinas,

. It follows that the

government's burden, as to the "pattern of racketeering activity"

requirement for a RICO conspiracy violation, is to prove that the

defendant agreed that at least two acts of racketeering would be

committed in furtherance of the conspiracy. See

("One

can be a conspirator by agreeing to facilitate only some of the

acts leading to the substantive offense.").

We turn to Aguirre's argument that the district court

was "obliged to follow" Ramírez-Rivera. The district court

correctly noted that Ramírez-Rivera quotes the Shifman, pre-

Salinas requirement for RICO conspiracy that the government prove

that the defendant committed or agreed to commit the predicate

acts. Ramírez-Rivera,

. Shifman was decided four

months before Salinas. We agree with the district court that

Salinas controls, and not the language from Ramírez-Rivera.5 Our

recent decision in United States v. Rivera-Carrasquillo,

(1st Cir. 2019), originally quoted the same pre-Salinas

requirement as Ramírez-Rivera. But that error was eliminated when

the court, within a few days, issued an errata sheet removing this

5 Our precedent on the elements of RICO conspiracy has at times been muddled. The district court's rejection of the proposed instruction comported with other binding First Circuit authority faithfully applying Salinas. See, e.g., Cianci,

. Under these circumstances, the district court did not err by declining to give Aguirre's proposed instruction.

- 13 - language. Id. at 47. So, Aguirre's requested instruction was

contrary to Salinas, and the district court quite properly rejected

it.

As to Aguirre's separate argument that, given the

government's method of proof, the district court should have

required the jury to make an affirmative finding as to the

predicate acts he or his co-conspirators in fact committed, we see

no error in what the district court did because this request is

not required by Salinas. The government's decision to prove the

fact of Aguirre's conspiracy agreement in part with evidence that

he and his co-conspirators in fact intended to and did commit at

least two of the types of racketeering activity does not change

the fact that conviction of RICO conspiracy does not require proof

that the defendant himself, or his co-conspirators, in fact

committed the racketeering activity. Aguirre's argument about

"lesser included" offenses is similarly misguided because it does

not matter whether he committed an act of racketeering or a "lesser

included" offense,6 so long as what he conspired to were predicate

acts, such as "any act or threat involving murder."

(1)(A). The conspiratorial agreement is what matters.

6 Even if Aguirre could prove that the crimes he committed or ordered were "lesser included" offenses, the jury still could conclude the commission of "lesser included" offenses was evidence that Aguirre agreed that a pattern of racketeering activity would be committed.

- 14 - For these reasons, there was no error.7 We add that

there was, in any event, more than abundant evidence that all of

the charged types of offenses committed were predicate acts, as

well as that he joined the conspiracy charged.

B. Alleged Withdrawal from the Conspiracy

Aguirre next argues that he withdrew from the conspiracy

upon his arrest, and so no post-arrest predicate act could be

attributed to him. To preserve a challenge to the sufficiency of

the evidence, the defendant must "mov[e] for an acquittal at the

close of the defense's evidence at trial." United States v. Van

Horn,

(1st Cir. 2002). Aguirre renewed his motion

for judgment of acquittal at the close of evidence, so this

challenge is preserved.

He further argues, for the first time on appeal, that

placing the burden on a defendant to prove withdrawal from a

conspiracy, as the district court instructed, is "constitutionally

7 To the extent that Aguirre may be attempting to argue that it was error for the district court to refer to types of racketeering in its instruction, rather than precise acts, we reject this argument. See, e.g., United States v. Applins,

(2d Cir. 2011) (concluding that a district court's instruction, which stated that the jury "must be unanimous as to which type or types of predicate racketeering activity the defendant agreed would be committed," was not error and that "a finding of specific predicate acts" was not required (emphasis omitted)).

- 15 - deficient."8 Review of that issue is for plain error.9

As to Aguirre's first challenge, we review preserved

challenges to the sufficiency of the evidence by asking "whether,

taking the evidence in the light most favorable to the jury's

verdict, a rational jury could have found the defendant guilty

beyond a reasonable doubt." United States v. Hicks,

(1st Cir. 2009). For purposes of this withdrawal argument,

Aguirre does not dispute that he joined the conspiracy. The law

is clear that "a defendant's membership in the ongoing unlawful

scheme continues until he withdraws." Smith,

.

The burden is on a defendant to prove the affirmative defense of

withdrawal.

. To withdraw, "a conspirator must act

affirmatively either to defeat or disavow the purposes of the

conspiracy." United States v. Juodakis,

(1st

Cir. 1987) (per curiam).

We flatly reject as a matter of law the argument that

8 Aguirre asserts this requirement is unconstitutional because it is "comparable to a nearly irrevocable presumption" that the Supreme Court has rejected in other contexts. He says this "presumption of the continuing conspiracy must be regarded as irrational or arbitrary and cannot survive constitutional scrutiny." (Internal quotation marks omitted). 9 Aguirre objected at the close of the jury instructions to "the failure to use the withdrawal instruction." At the charge conference, Aguirre requested the inclusion of this statement in the jury instructions: "Whether or not the arrest and incarceration of a conspirator constitutes withdrawal may be determined by the facts of the case." This is not the same challenge Aguirre makes on appeal.

- 16 - Aguirre's arrest and imprisonment necessarily constituted his

withdrawal from the conspiracy. Imprisonment alone does not

satisfy a defendant's burden of proving withdrawal. See, e.g.,

United States v. Pizarro-Berríos,

(1st Cir. 2006)

(noting that "the fact that [defendant] was in jail does not in

and of itself mean that he withdrew from the scheme").

There was ample evidence for a jury to find, as it did,

that Aguirre not only remained in the conspiracy, but also actively

participated in it following his arrest and imprisonment. There

was testimony that Aguirre stated that the gang was his family and

he would never leave it, and there was other evidence that he

remained the leader of the Enfermos while in prison. Further,

Henriquez's testimony and the recorded conversation between

Menjivar and a confidential witness showed that Aguirre ordered

the murder of Henriquez by MS-13 members while Aguirre was in

prison.

At best, Aguirre's evidence tended to show a diminution

in his leading and communicating with the clique, and that there

were rumors that he "wanted out." Even "[m]ere cessation of

activity in furtherance of the conspiracy does not constitute

withdrawal," Ciresi,

(quoting Juodakis,

), and the evidence here does not show even cessation.

Aguirre's second challenge, which he raises for the

first time on appeal, is that placing the burden on a defendant to

- 17 - show withdrawal is "constitutionally deficient" and, further, that

the government should be required to advise him of the needed steps

to prove withdrawal.

At oral argument, Aguirre argued for the first time that

the district court erred when it instructed the jury that the

defendant had the burden to show he withdrew from the charged

conspiracy. Aguirre did not cite a single case in support of his

argument. Putting waiver aside, we see no error, plain or

otherwise.

As to his jury instruction challenge, Aguirre doubly

waived this argument because it was not made at trial and also

because "arguments not raised in a party's initial brief and

instead raised for the first time at oral argument are considered

waived." Pizarro-Berríos,

. Aguirre's jury

instruction challenge is, in any event, meritless, as is his more

general constitutional challenge to the law on withdrawal from a

conspiracy. Our review of both arguments is for plain error

because Aguirre did not raise either argument at trial.

When instructing the jury on what constitutes withdrawal

from a conspiracy, the district court stated that "[i]t is the

defendant's burden to show that he has withdrawn from the

conspiracy." The district court then instructed that to show

withdrawal:

[A] conspirator must act affirmatively to

- 18 - either defeat or disavow the purposes of the conspiracy. Typically, that requires either a full confession to authorities or a communication by the accused to his co- conspirators that he has abandoned the enterprise and its goals. A defendant cannot withdraw simply by ceasing activity in furtherance of the conspiracy or by being prevented from continuing to participate in the conspiracy.10

In Smith, the Supreme Court held that "[a]llocating to

a defendant the burden of proving withdrawal does not violate the

Due Process Clause" unless it negates an element of the crime.

Smith,

. Further, this circuit has repeatedly

stated that a full confession or communication of abandonment to

one's co-conspirators are typical ways for a defendant to show

withdrawal, as the district court correctly instructed. See,

e.g., Juodakis,

. For these reasons, we reject

Aguirre's challenges.11

C. Challenges to the Admission of Testimony

1. Allegedly False Testimony

Aguirre next argues that the government "relied on

10 His claim, made at oral argument, that the district court's instructions limited the potential mechanisms of withdrawal and so were erroneous is flatly refuted by the record. 11 To the extent that Aguirre argues his trial counsel was ineffective, Aguirre waives this argument for failing to develop it. United States v. Zannino,

(1st Cir. 1990). The arguments Aguirre raises for the first time in his reply brief are waived. See United States v. Lemmerer,

(1st Cir. 2002).

- 19 - inherently misleading testimony" to convict him. Aguirre did not

raise this argument in the trial court, so our review is for plain

error. Aguirre's challenge is meritless, and we find no error,

much less plain error.

Prosecutors must correct testimony that they know to be

false. Napue v. Illinois,

(1959). Here,

defense counsel asked an FBI agent on cross-examination about who

originated the plot to kill Henriquez. The agent replied, "I

wasn't sure if it was Big Crazy12 or if the information we had was

coming out of the prison concerning [Aguirre] making that order.

I thought we had developed information that [Aguirre] had issued

the order from prison." At the defense's request, the district

court struck this answer from the record and instructed the jury

to disregard it. The agent's later testimony on redirect and on

recross-examination made clear that it was his belief that Aguirre

gave the order to kill Henriquez and this belief came from a

recording in which Menjivar stated that Aguirre gave the order to

kill Henriquez.

There was no Napue error, plain or otherwise, because

the agent's first answer, itself not false, was stricken, and his

admitted testimony was not false but accurately recounted the

evidence.

12 Big Crazy was the gang name of the leader of a different MS-13 clique, operating in Everett, Massachusetts.

- 20 - 2. Alleged Petrozziello Error

Aguirre next argues that the admission of a recording,

in which Menjivar stated that Aguirre gave the order to kill

Henriquez, was error because the recording was "impermissible

hearsay." The district court provisionally admitted this

recording as a co-conspirator statement under Federal Rule of

Evidence 801(d)(2)(E) and made a final ruling admitting the

statement on the last day of trial pursuant to United States v.

Petrozziello,

(1st Cir. 1977). Because Aguirre did

not "renew [his] objection at the close of evidence," Ciresi,

, our review is for plain error,

.

The district court did not err. Statements made by the

defendant's co-conspirators during and in furtherance of the

conspiracy are not hearsay. Fed. R. Evid. 801(d)(2)(E). Here,

sufficient evidence supported the district court's decision to

admit the recorded statement by Menjivar: Menjivar was a member

of the Enfermos, and he made this statement to an informant while

discussing another Enfermos member's alleged betrayal. See United

States v. Avilés-Colón,

(1st Cir. 2008) (finding

admissible a statement made to a government informant if it

otherwise satisfies Rule 801(d)(2)(E)).13

13 Aguirre also argues that there was no evidence of "how" Menjivar knew this information and that the statement was "opinion." But a statement does not need to be based on personal knowledge if it otherwise satisfies Rule 801(d)(2)(E). See United

- 21 - 3. Alleged Rule 403 Error

Aguirre next argues that the district court violated

Rule 403 when it admitted evidence documenting two MS-13 meetings

and testimony about six murders committed by MS-13 members, all of

which happened after his arrest. Aguirre objected at trial on

several different grounds but did not mention Rule 403. We

nonetheless assume favorably to him that abuse of discretion

applies. See United States v. Appolon,

(1st

Cir. 2013).

A district court may exclude evidence when its probative

value is substantially outweighed by the danger of unfair

prejudice. Fed. R. Evid. 403. The district court has "especially

wide latitude" in striking this balance. United States v.

Mehanna,

(1st Cir. 2013) (quoting United States v.

Candelaria-Silva,

(1st Cir. 1998)). The

district court did not abuse its discretion under Rule 403. To

avoid the risk of unfair prejudice, the district court told the

government at the beginning of trial to focus its evidence on

Aguirre's agreement to be a part of the charged enterprise. After

the defense stated in its opening that the conspiracy was just

"six kids" and implied that there was no evidence of "dead bodies,"

the government argued that it should be permitted to introduce

States v. Saccoccia,

(1st Cir. 1995).

- 22 - more evidence of the wider MS-13 conspiracy. The district court

allowed the government to challenge this defense characterization,

which it did with the evidence that Aguirre now challenges. This

evidence was probative in countering the defense's inaccurate

characterization of the conspiracy, and it was not unfairly

prejudicial to introduce these statements and acts of other MS-13

members. We see no abuse of discretion.

Aguirre also argues that the testimony of Irwin Martinez

violated Rule 403. But at trial, the district court struck

Martinez's testimony from the record and directed the jury to

disregard it. "When a limiting instruction adequately addresses

any prejudice that might arise from improperly admitted evidence

and the record lacks evidence that the jury disregarded the

instruction, the evidentiary error is harmless." United States

v. Mangual-Santiago,

(1st Cir. 2009). Aguirre

points to no evidence that the jury disregarded this instruction,

so we find no error.

D. Double Jeopardy

Aguirre's final challenge is that the prosecution

violated his right against double jeopardy because a state court

tried him for what he argues was the same crime. Gamble v. United

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(2019), forecloses this argument.14

Aguirre was convicted fair and square. Affirmed.

14 To the extent that the defendant has made other arguments, they are unpreserved, undeveloped, meritless, or all of the above.

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