United States Court of Appeals For the First Circuit

Nos. 18-1687 19-1750

UNITED STATES OF AMERICA,

Appellee,

v.

NOE SALVADOR PÉREZ-VÁSQUEZ, a/k/a Crazy,

Defendant, Appellant.

Nos. 19-1027 19-1745 UNITED STATES OF AMERICA,

Appellee,

v.

LUIS SOLÍS-VÁSQUEZ, a/k/a Brujo,

Defendant, Appellant.

Nos. 18-1975 19-1734 UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR ENAMORADO, a/k/a Vida Loca,

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, Lipez, and Barron, Circuit Judges.

H. Manuel Hernández for appellant Noe Salvador Pérez- Vásquez, a/k/a Crazy. Ian Gold for appellant Luis Solís-Vásquez, a/k/a Brujo. Rosemary Curran Scapicchio for appellant Hector Enamorado, a/k/a Vida Loca. Sonja Ralston, Appellate Section Attorney for the Department of Justice, with whom Andrew E. Lelling, United States Attorney, Donald C. Lockhart, Assistant United States Attorney, Brian C. Rabbitt, Acting Assistant Attorney General, and Robert A. Zink, Acting Deputy Assistant Attorney General, were on brief, for appellee.

July 26, 2021 LYNCH, Circuit Judge. In 2016, the government indicted

sixty-one alleged members of the MS-13 gang for participation in

a Racketeer Influenced and Corrupt Organization Act ("RICO")

conspiracy and other crimes. The district court divided the sixty-

one defendants into four trial groups. This appeal concerns some

of the defendants in group two. The defendants in group three are

the subject of our opinion in United States v. Sandoval, Nos. 18-

1993, 18-2165, 18-2177, 19-1026,

, at *2 (1st Cir.

July 7, 2021).

Three defendants from group two proceeded to trial.

After a nineteen-day trial, a jury convicted each of the defendants

of RICO conspiracy with a special finding that defendant Noe

Salvador Pérez-Vásquez participated in the murder of Jose Aguilar

Villanueva and special findings as to each that they had

participated in the murder of Javier Ortiz. The defendants allege

a number of errors in both their trial and sentencings. We carve

out to be discussed in a later opinion defendant Luis Solís-

Vásquez's challenge to the district court's restitution order.

Having determined that the remaining challenges do not have merit,

we affirm.

I. Facts

Because the defendants have challenged the sufficiency

of the evidence, we recite the facts "in the light most favorable

- 3 - to the jury's verdict." United States v. Leoner-Aguirre,

(1st Cir. 2019).

A. MS-13

La Mara Salvatrucha, commonly known as MS-13, is a

transnational gang headquartered in El Salvador and with extensive

operations in the United States, including in Eastern

Massachusetts. The gang is organized into "programs" and

"cliques." Cliques are local groups that each belong to a regional

program. Within each clique, the primary leader is called the

"first word" and the second in command is called the "second word."

Full members are known as "homeboys." Individuals generally

progress from "paro" to "chequeo" before becoming homeboys.1

Chequeos often must perform a violent crime to earn a promotion to

homeboy, though the requirement has varied over time and between

cliques. They are then beaten or "jumped" in as full members.

MS-13 has defined its primary mission as killing rivals,

especially members of the 18th Street gang. If possible, a homeboy

is supposed to kill a rival gang member, known as a "chavala," on

sight. MS-13 members are also required to help out fellow gang

members whenever they are asked.

1 There has been some variation over time and between cliques as to the ranks below homeboy, but that variation is not important to this case.

- 4 - MS-13 members are forbidden from cooperating with law

enforcement. A member who cooperates with law enforcement will

have a "green light" put on him, which means he will be killed by

other MS-13 members. MS-13 associates are not permitted to kill

other MS-13 associates unless leadership, usually in El Salvador,

puts a "green light" on the individual.

B. Defendants' Roles in MS-13

In 2014 and 2015, at the time of the events at issue in

this case, each of the defendants was a full MS-13 member in a

clique near Boston. Noe Salvador Pérez-Vásquez, a/k/a "Crazy,"

claimed to be the second in command of the Everett Locos

Salvatrucha clique. Luis Solís-Vásquez, a/k/a "Brujo," was a

homeboy in the Eastside Locos Salvatrucha clique. Hector

Enamorado, a/k/a "Vida Loca" was a homeboy in the Chelsea Locos

Salvatrucha clique.

C. Cooperating Witnesses

Law enforcement investigations of crimes by MS-13

members often use confidential sources, some of whom become

witnesses in later prosecutions. In 2012 the FBI began working

with a source to infiltrate the MS-13 cliques in the Boston area.

This informant is known as cooperating witness 1 ("CW-1") or by

his street name, "Pelon." The government gave CW-1 a car with

recording equipment inside, which he used to work as an unlicensed

taxicab driver. CW-1 posed as a drug dealer and began spending

- 5 - time with various MS-13 members. He was eventually beaten in as

a homeboy in the Eastside Locos Salvatrucha Clique. To advance

the investigation he would regularly give rides to MS-13 members

and record their conversations with him and each other. Additional

details of CW-1's involvement were discussed in this court's

opinion in United States v. Sandoval.

, at *1-2.

CW-1 did not testify at the defendants' trial. CW-1 was

the source of two types of evidence introduced by the government.

First, the government introduced recordings and transcripts from

CW-1's recording device of both conversations between MS-13

members and CW-1's conversations with MS-13 members. Second, some

of the government's law enforcement witnesses testified about

statements that CW-1 made to them in the course of their

investigation.

D. The Murder of Jose Aguilar Villanueva

German Hernandez-Escobar, a/k/a "Terible," the leader of

the Everett Locos Salvatrucha clique, was arrested in March 2015.

Members of the clique, including second-in-command Pérez-Vásquez,

believed that someone in the gang had "snitched" on Terible, and

began an investigation. They concluded that Jose Aguilar

Villanueva, a sixteen-year-old associate of MS-13 known as

"Fantasma," had cooperated with the police and was responsible for

Terible's arrest. MS-13 leaders in El Salvador issued a green

- 6 - light to kill Villanueva and Pérez-Vásquez began planning that

murder with others in MS-13.

Pérez-Vásquez told Josue Alexis De Paz, a/k/a "Gato," a

chequeo seeking promotion to homeboy and Villanueva's roommate,

that he would have to "participate" in Villanueva's death. Another

MS-13 member nicknamed "Inocente" called De Paz and told him to

bring Villanueva to a restaurant in Somerville. The plan was to

take Villanueva from the Somerville restaurant to an MS-13 meeting

place in Malden called "the Mountain" and murder him there.

Inocente was arrested before he could execute this plan.

After the arrest of Inocente, another homeboy told De

Paz that the Everett clique wanted Villanueva murdered soon, and

that De Paz would have to murder Villanueva with the help of a

chequeo, Manuel Diaz Granados, a/k/a "Perverso." On the day of

the murder, Pérez-Vásquez spoke to De Paz and told him to plan the

murder carefully.

On July 5, 2015, De Paz and Granados met at the home De

Paz shared with Villanueva and waited for Villanueva to return

from a day trip to the beach. When he returned, De Paz told

Villanueva that the three of them needed to go out to look for a

man who had broken into their house several days earlier. The

three went to a park, De Paz "grabbed [Villanueva] from behind,"

and Granados began stabbing Villanueva with a large green-handled

knife. Moments later, De Paz dropped Villanueva, took out a

- 7 - folding knife, and stabbed Villanueva as well. Villanueva died

from his injuries.

Afterward Pérez-Vásquez told De Paz that he would be

promoted to homeboy for his participation in Villanueva's murder.

E. The Cocaine-Trafficking Operation

In early December 2014, CW-1 asked Pérez-Vásquez and

other MS-13 members if they were interested in performing a

"protection detail" for drugs being moved from Boston to New

Hampshire. Pérez-Vásquez and four other MS-13 members

volunteered. On December 8, 2014, a government agent gave the MS-

13 members five kilograms of cocaine and they delivered it to

another undercover agent in New Hampshire. Each was paid $500 for

this work.

F. The Murder of Javier Ortiz

The defendants were also each involved in the planning

and execution of the murder of Javier Ortiz, a reputed member of

the 18th Street gang. Early in the morning on December 14, 2014,

Enamorado went to an apartment in Chelsea where a woman sold

tamales after the bars closed. There he saw Ortiz and some

friends, who Enamorado believed to be 18th Street gang members and

who had beaten him and burned his face with a cigarette the night

before. Enamorado left the apartment and called Pérez-Vásquez

repeatedly. When Pérez-Vásquez answered, Enamorado asked him to

bring a clique-owned gun to him in Chelsea. Enamorado told Pérez-

- 8 - Vásquez that he had encountered several 18th Street gang members,

that they had beaten him the night before, and that he wanted the

gun because he was going to kill them. Pérez-Vásquez, who was at

a garage in Everett where MS-13 members would gather, relayed this

information to Solís-Vásquez and two other gang members at the

garage. Pérez-Vásquez decided that he would bring the clique gun

to Enamorado, and Solís-Vásquez decided that he would go as well

because he had another clique gun stored in the garage.

Pérez-Vásquez and Solís-Vásquez met Enamorado in

Chelsea, where he was sitting on the steps outside the apartment.

Pérez-Vásquez asked Enamorado where the "chavalas" were.

Enamorado said he would go inside alone with the gun Pérez-Vásquez

had brought, and told Solís-Vásquez to stay at the door of the

apartment with the other gun so that no one could leave. Solís-

Vásquez waited at the door for a brief time, but then went to the

porch to smoke a cigarette with another MS-13 member. At the same

time, Enamorado entered the apartment and walked over to the

bathroom where Ortiz was. He shot Ortiz three times in the back,

emerged from the bathroom and then shot Saul Rivera, another

visitor to the apartment. Ortiz died from his injuries.

The apartment's owner and Saul Rivera both identified

Enamorado in photographic lineups as the perpetrator within hours

of the shootings.

G. The Arrest and Interrogation of Enamorado

- 9 - After the murder of Ortiz, Pérez-Vásquez offered CW-1

$400 to drive Enamorado out of the state. CW-1 agreed and told

the police about the plan. On December 16, 2014, CW-1 picked up

Enamorado, Pérez-Vásquez, and Pérez-Vásquez's girlfriend to drive

out of Massachusetts. The police pulled them over and arrested

Enamorado.

Chelsea Police Officer David Delaney booked Enamorado in

English. Enamorado's first language is Spanish. Delaney testified

that Enamorado appeared to understand him. Delaney marked on an

intake form that Enamorado did not appear to be under the influence

of drugs or alcohol. In response to Delaney's questioning,

Enamorado told Delaney that he had not consumed drugs or alcohol

that day.

After booking, Chelsea Police Detective Steven Garcia

and State Trooper Timothy O'Connor interviewed Enamorado in

Spanish. Detective Garcia testified that he did not observe any

signs that Enamorado was intoxicated. Garcia gave Enamorado a

written form in Spanish that described his Miranda rights. Garcia

read the form aloud and Enamorado signed a waiver of his Miranda

rights under the name Jesus Gonzales.

During the interrogation, Enamorado admitted to being a

member of MS-13, that his name was Hector Enamorado, and that his

nickname was Vida Loca. He said that on the day before the murder

of Javier Ortiz, he had gotten into an altercation with several

- 10 - 18th Street gang members. He claimed to have forgotten everything

that happened on the night of the murder, but said that if he went

back to the apartment, it would have been for revenge.

At the start of the interview, Trooper O'Connor pressed

a button on the recording system to begin recording. A green light

on the recording system lit up to indicate that the interview was

being recorded. However, in February 2017, the officers learned

that the audio recording had failed about 20 seconds into the

interview. The entirety of the video recording was preserved.

II. Procedural History

A. Pre-Trial

In 2016, the defendants were each charged with

conspiracy to conduct affairs through a pattern of racketeering

activity (RICO conspiracy) in violation of

(d).

Pérez-Vásquez was also charged with conspiracy to distribute five

kilograms or more of cocaine in violation of

,

possession of a firearm in furtherance of a drug trafficking crime

in violation of

(c)(1), and conspiracy to distribute

marijuana in violation of

. Each was convicted of

all charges, except that Pérez-Vásquez was acquitted on the

firearms charge.

The defendants filed various motions in limine asking to

limit or exclude expert testimony before trial. During the final

pretrial conference, the district court said it would "permit

- 11 - expert testimony as to things such as symbols or colors or slang

or the organization or structure of MS-13." The district court

would not permit "an overview of the evidence or a broad

description of the investigation." It also instructed that the

defendants "may have to object to preserve a[ny] particular point."

Enamorado also moved to suppress the statements he made

in custody on December 16, 2014, arguing that he did not knowingly,

intelligently, and voluntarily waive his Miranda rights because he

was under the influence of drugs and alcohol at the time and

because he was not "intellectually, emotionally, or physically

able to understand his rights." He added that the failure to make

a full audio recording rendered the statements inadmissible. The

district court denied the motion, stating that there was

insufficient evidence Enamorado was intoxicated or failed to

understand the officers, and that the failure of the audio

equipment did not justify suppression.

B. Trial

The trial was conducted over nineteen days from March 27

to April 23, 2018. Through the reading of exhibits and the

testimony of both law enforcement and MS-13 members, the government

offered evidence both as to the murders and trafficking described

above and as to a host of other crimes. The defendants presented

no witnesses and did not testify.

- 12 - The government's first witness was George Norris, a gang

investigator analyst for the state attorney's office in Maryland.

Based on his professional experience, Investigator Norris

testified as to MS-13's history, structure, rules, symbols, and

practices. Investigator Norris did not participate in the

investigation of this case.

Investigator Norris explained that his knowledge of MS-

13 was gained through "interviews and interrogations, both in

custody and out of custody of gang members or associates,

interviewing witnesses of crimes that involve MS-13, interviewing

family members of MS-13 members or associates, interviewing other

law enforcement officers, . . . interviewing victims of gang

crimes, reading books, watching documentaries . . . [and] social

media monitoring and harvesting intelligence off of social media."

He also was trained at several conferences about gangs in general

and MS-13 in particular.

Agent Jeffrey Wood, an FBI supervisor for the gang squad

and the lead investigator during part of the investigation of the

MS-13 cliques in Boston, testified next. He first spoke about the

transnational structure of the gang and then about its structure

in Massachusetts. He next testified about his investigations into

the broader East Coast Program and his work with CW-1.

Agent Wood also testified as to various pieces of

evidence his team recovered during a large scale "sweep" of arrests

- 13 - of MS-13 members in January 2016. He described an MS-13 "rule

book" found at a gang member's house and a set of WhatsApp messages

between Pérez-Vásquez and other gang members that listed

additional guidelines for proper conduct in MS-13.

Agent Wood next testified as to his work with another

cooperating witness, CW-5. He arranged for CW-5 to pose as an

MS-13 member and record a conversation with Inocente while he was

being held at the Essex House of Corrections. Inocente described

what he knew about the murder of Villanueva and the roles played

by Enamorado and Pérez-Vásquez in the Ortiz murder. The transcript

of this recording was admitted into evidence. Agent Wood also

described his role in organizing the drug "protection detail" that

Solís-Vásquez participated in and his role in the investigation of

the Villanueva murder.

Massachusetts State Trooper Brian Estevez read into

evidence a number of transcripts of recorded phone calls between

MS-13 members, introduced evidence extracted from Villanueva's and

others' cellphones, and explained how the FBI wiretapped CW-1's

phone. He also introduced various recordings made by CW-1, and

explained his involvement in Enamorado's arrest.

Several MS-13 members who had pled guilty testified for

the prosecution. They each described their roles in MS-13, the

"rules" of the organization, and crimes they had personally

- 14 - committed as part of MS-13.2 They also testified as to

conversations between them and other MS-13 members about the

ongoing activities of the gang and the various crimes other MS-13

members had committed.

At the close of evidence all of the defendants moved for

a directed verdict based on the sufficiency of the evidence. The

district court denied the motions.

In Pérez-Vásquez's closing statement, his lawyer

conceded that Pérez-Vásquez was part of MS-13, that MS-13 was a

criminal enterprise, and that he had brought a gun to "Vida Loca."

Pérez-Vásquez's lawyer then argued that he could not be found

guilty of the Ortiz murder because he "didn't share the intent

that Mr. Enamorado had at the time he discharged that weapon into

Mr. Javier Ortiz."

After Pérez-Vásquez's closing argument, Enamorado's

counsel moved for a mistrial, arguing that "[t]he co-defendant has

just become a witness against my defendant without notice in

violation of Bruton, and there's no way this jury now is going to

be able to give Mr. Enamorado a fair verdict after what just

happened." The district court summarily denied the motion.

Enamorado's counsel did not request a limiting instruction.

2 De Paz testified as to his involvement in the murder of Villanueva, and that Pérez-Vásquez had ordered the murder. Jose Hernandez-Miguel, a/k/a "Muerto," testified about the murder of Javier Ortiz.

- 15 - On April 17, 2018, the district court conducted a jury

charge conference. The district court told the defendants that as

to the murders of Villanueva and Ortiz, it would only give a

second-degree murder instruction, not a first-degree murder

instruction. The defendants said they did not object. The

defendants also did not object to the proposed instructions as to

the RICO conspiracy. After the finalized instructions were read

to the jury on April 18, the district court asked the defendants

if they had "[a]nything further on the jury instruction[s]." Each

defendant said no.

The jury convicted all three defendants of RICO

conspiracy, with special findings that each was guilty of murdering

Javier Ortiz as a part of the conspiracy. The jury also found

that Pérez-Vásquez had participated in the murder of Villanueva.

Pérez-Vásquez was convicted of conspiracy to possess with intent

to distribute more than five kilograms of cocaine, and conspiracy

to possess with intent to distribute marijuana. He was found not

guilty of the firearms charge.

C. Sentencing

The United States Probation Office calculated Pérez-

Vásquez's advisory guidelines sentence as life imprisonment based

on an offense level of 50 (revised downward to the maximum offense

level of 43) and a criminal history category of IV. Pérez-Vásquez

did not object. The district court sentenced Pérez-Vásquez to

- 16 - concurrent terms of life imprisonment on the RICO conspiracy and

cocaine conspiracy charges.3

The district court calculated Enamorado's guideline

offense level as 44 (revised downward to a maximum offense level

of 43) based on an underlying offense of first-degree murder and

determined that his criminal history was category II. The

guidelines recommendation was life imprisonment. Enamorado

challenged the calculation of the guidelines range, arguing that

because the jury had not specifically found that Enamorado was

guilty of first- rather than second-degree murder, his guidelines

base offense level should have been 38. He also argued that the

evidence did not support that he had committed first, rather than

second-degree murder, and that a criminal history category of II

was inappropriate given that his previous offenses were "fairly

minor." The district court rejected the first argument, stating

that the degree of murder was "a matter of guideline interpretation

for the Court, not something that the jury would find." It then

found that, given the evidence presented, it was appropriate to

apply the first-degree murder guideline. It did not address the

criminal history category. The district court sentenced Enamorado

to life imprisonment.

3 He was also sentenced to a concurrent term of five years for the marijuana charge and a five-year term of supervised release.

- 17 - The district court calculated that Solís-Vásquez's

guidelines offense level was 43 for the murder of Javier Ortiz.

It then increased the offense level to 45 based on Solís-Vásquez's

involvement in the Rivera shooting, two other assaults, and one

other murder. The offense level was then revised downward to the

maximum of 43.

Solís-Vásquez objected that there was insufficient

evidence to show that he had committed first-degree rather than

second-degree murder.4 The district court rejected this challenge,

explaining that "it's a fair inference from the evidence by a

preponderance standard that there was a joint venture here to

commit premeditated murder, that [Solís-Vásquez] knew exactly what

the purpose of this was, [and that it was] intended to further

that enterprise. The purpose was that 'Vida Loca' was going to

kill a [rival gang member]."

The district court sentenced Solís-Vásquez to 420

months' imprisonment and five years of supervised release. The

sentence was a below-guidelines sentence imposed after

consideration of the relevant factors under

(a).

4 Solís-Vásquez also challenged the portions of the guidelines calculation concerning the incidents other than the Ortiz murder.

- 18 - The district court also ordered Pérez-Vásquez and

Enamorado to pay $32,984.03 in restitution to Saul Rivera, and

Solís-Vásquez to pay $16,492.01.

III. Analysis

The defendants asserted a variety of claims as to their

trial and sentencing. We address each in turn.

A. Sufficiency of the Evidence

Enamorado and Solís-Vásquez each argue that the evidence

was insufficient to support their convictions. "[W]e 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.'" Leoner-Aguirre,

(quoting United States v. Hicks,

(1st Cir.

2009)).

1. Enamorado's Sufficiency Claim

To secure a conviction for committing the "pattern of

racketeering" RICO conspiracy charge at issue, the government was

required to prove beyond a reasonable doubt that Enamorado

knowingly joined the MS-13 conspiracy and "agreed that at least

two acts of racketeering would be committed in furtherance of the

conspiracy." Sandoval,

, at *2 (quoting Leoner-

Aguirre,

). Racketeering acts include "any act or

- 19 - threat involving murder . . . [or] dealing in a controlled

substance."

(1).

Enamorado argues that the evidence was insufficient to

support his RICO conspiracy conviction because (1) there was no

evidence he participated in, knew about, or agreed that others

would commit any predicate acts of racketeering other than the

murder of Javier Ortiz; (2) there was no evidence that the Chelsea

clique, to which Enamorado belonged, was part of the larger MS-13

conspiracy or that members of the Chelsea clique had agreed to

commit racketeering acts; and (3) there was insufficient evidence

that the shooting of Ortiz was done in furtherance of the MS-13

conspiracy.

Each of these arguments fails. As to Enamorado's first

two contentions, in addition to Trooper Estevez's testimony that

Enamorado had admitted during his post-arrest interview to being

a member of MS-13, the jury heard testimony from multiple witnesses

who testified that they had met Enamorado at MS-13 gatherings

before the Ortiz murder, that they understood him to be "from the

Chelsea Locos clique" or that he had identified himself as such,

and that he had also introduced himself as a homeboy. The jury

could thus conclude that Enamorado had agreed to join the

"Chelseas." So, too, could the jury conclude that the "Chelseas"

were part of MS-13, in light of the witnesses' testimony describing

that group as a "clique." The jury heard evidence that MS-13's

- 20 - mission is to kill rivals, and a jury could also conclude that an

individual who joined a gang with this mission therefore agreed

that a member of the group would commit racketeering acts. To the

extent Enamorado argues that joining the Chelsea clique would not

have established this agreement in light of the lack of evidence

as to activities of that clique and whether it was involved in a

broader MS-13 conspiracy, the jury was not required to believe him

on that score, particularly in light of evidence that Enamorado

was involved with members of other MS-13 cliques who clearly

understood Enamorado to have been part of an MS-13 clique.

As to Enamorado's third argument, there was sufficient

evidence that the Ortiz murder was done in furtherance of the MS-

13 conspiracy. Multiple MS-13 members identified Ortiz as an 18th

Street gang member, the murder was committed with MS-13 weapons

and help from two MS-13 members, and the murder fit in with the

conspiracy's purpose of killing rivals.

2. Solís-Vásquez's Sufficiency Claim

Solís-Vásquez does not challenge the sufficiency of the

evidence for his RICO conspiracy conviction, but he does argue

that the evidence was insufficient to support the jury's special

finding that he participated in the murder of Ortiz because there

was no evidence he had the requisite intent for second-degree

murder under Massachusetts law. To convict a defendant of second-

degree murder under Massachusetts law, the government must show

- 21 - that the defendant acted with "intent to kill; the intent to cause

grievous bodily harm; or the intent to commit an act that, in the

circumstances known to the defendant, created a plain and strong

likelihood of death." Commonwealth v. Tavares,

(Mass. 2015).

There was sufficient evidence for the jury to conclude

that Solís-Vásquez acted with the requisite intent for second-

degree murder. Solís-Vásquez brought a gun to Enamorado after

Enamorado said "he was going to kill" the 18th Street gang members

at the after-hours bar. Mauricio Sánchez, a/k/a "Tigre," also

testified that Solís-Vásquez said Enamorado "had gone inside to

murder the guy he had come for" and that Solís-Vásquez "was ready

for what he was going to do."

B. Suppression of Enamorado's December 16th, 2014 Statements to

Police

Enamorado renews his argument on appeal that his

December 16, 2014 statements to the police were inadmissible

because Enamorado did not validly waive his Miranda rights. See

Miranda v. Arizona,

(1966). He argues he was

intoxicated during his interview and that the officers sometimes

spoke to him in English, which is not his first language.5 "In

5 Enamorado also argues that the audio equipment's malfunction "supports suppression." But he does not explain why and "there is no federal constitutional right to have one's custodial interrogation recorded." United States v. Meadows, 571

- 22 - reviewing the denial of a motion to suppress, we review the

district court's findings of fact for clear error and conclusions

of law de novo." United States v. Mumme,

(1st

Cir. 2021).

A Miranda waiver must be both voluntary and "made with

a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it." Moran v.

Burbine,

(1986). The district court did not err

in concluding that Enamorado voluntarily and knowingly waived his

rights. Enamorado read and signed a waiver form in Spanish, and

the record supports the district court's conclusion that he was

not intoxicated at the time of arrest. See United States v. Mejia,

(1st Cir. 2010) (holding that waiver of Miranda

rights was knowing and voluntary where Spanish-speaking defendant

was given waiver form in Spanish).

C. The Admission of Coconspirator Statements

Pérez-Vásquez and Solís-Vásquez challenge the admission

of various coconspirator statements.6 Because they failed to renew

F.3d 131, 147 (1st Cir. 2009). 6 The defendants' arguments are waived with respect to any statements not identified in their briefs on appeal as wrongly admitted. United States v. Perez-Cubertier,

, 88 n.6 (1st Cir. 2020) (explaining that in challenging the admission of evidence, the "failure to identify relevant portions of the trial transcript" "hamstrings" appellate review and may result in waiver (quoting González-Ríos v. Hewlett Packard PR Co.,

(1st Cir. 2014))).

- 23 - their objections at the close of evidence, the challenge is

reviewed for plain error. See United States v. Ford,

,

106 & n.9 (1st Cir. 2016).

Statements made by a "coconspirator during and in

furtherance of the conspiracy" are nonhearsay. Fed. R. Evid.

801(d)(2)(E). "[A] coconspirator's statement is considered to be

in furtherance of the conspiracy as long as it tends to promote

one or more of the objects of the conspiracy." United States v.

Ciresi,

(1st Cir. 2012) (quoting United States v.

Piper,

(1st Cir. 2002)). Statements made to

"foster[] a relationship of trust" or keep coconspirators "abreast

of current developments and problems facing the group" may further

the conspiracy. United States v. Flemmi,

(1st

Cir. 2005) (quoting United States v. Jefferson,

, 824

(8th Cir. 2000)); see also United States v. Sepulveda,

(1st Cir. 1993) ("[T]he reporting of significant events

by one coconspirator to another advances the conspiracy."). It is

The defendants also argue that the admission of statements made in furtherance of the conspiracy by non-testifying coconspirators violated the Confrontation Clause. This argument fails because "'[s]tatements made during and in furtherance of a conspiracy are not testimonial' and are, therefore, not subject to Sixth Amendment concerns." United States v. Rivera-Donate,

, 132 n.11 (1st Cir. 2012) (quoting United States v. Malpica-García,

(1st Cir. 2007)).

- 24 - "immaterial" whether the statement was made to a government

informant posing as a coconspirator. See Ciresi,

.

Pérez-Vásquez and Solís-Vásquez argue that many of the

admitted statements were "idle chatter" or "gossip" not in

furtherance of the conspiracy. We address the coconspirator

statements mentioned in the defendants' briefs in turn.

Three of the challenged statements were not admitted as

coconspirator statements or for the truth of the matter asserted

but for other reasons.7 These challenges fail.

7 Trooper DeMeo's statements about what De Paz told him about the murder of Villanueva were admitted not for the truth of the matter asserted but as context to explain how Villanueva's statements affected his investigation. We have cautioned that the idea that "any statement by an informant to police which sets context for the police investigation" is admissible is "impossibly overbroad." United States v. Maher,

(1st Cir. 2006). In this case, however, the district court allowed the testimony because De Paz was the next witness and would testify as to the facts restated by Trooper DeMeo. Thus there was no significant risk of prejudice as required under the plain error standard. Similarly, Trooper Estevez testified that he had received a call from CW-1 advising that MS-13 members were attempting to move Enamorado out of state. But the government immediately after that testimony introduced a transcript of a call between Pérez-Vásquez and CW-1 in which Pérez-Vásquez offered to pay CW-1 to take an MS-13 member out of state, and the officers did in fact arrest Enamorado in CW-1's car. Enamorado was not prejudiced by Estevez's testimony. The statements of "La Diablita" in the jailhouse recording were also admitted not for their truth but for context as to what Terible told La Diablita. See United States v. Walter,

(1st Cir. 2016) (explaining that portions of discussion "were properly admitted as reciprocal and integrated utterance(s)" to make admissible statements "intelligible to the jury" (quoting United States v. McDowell,

(1st

- 25 - The challenge to Sánchez's statement that Pérez-Vásquez

told two other members of MS-13 to give him a ride to Lynn to buy

drugs also fails, as it was clearly in furtherance of the

conspiracy to purchase drugs for the gang's marijuana business.

And as to Pérez-Vásquez, his own statement is admissible against

him under Federal Rule of Evidence 801(d)(2)(A).

As to the admission of testimony from Sánchez, Jose

Hernandez-Miguel, a/k/a "Muerto," and another codefendant, Julio

Esau Avalos-Alvarado, describing conversations they had with other

gang members about the Ortiz and Villanueva killings, we see no

plain error in the district court's determination that these

statements were coconspirator statements because "gang members

informing each other after the fact about gang business further[s]

the interests of the gang, among other things, [by] keeping them

informed and advising them about enforcement of the rules and

general state of affairs." Nor was there plain error in the

district court's admitting the statements of "Inocente" to CW-5

because they served "to promote and encourage violence, to enforce

gang discipline, and to inform gang members of ongoing events."

Cir. 1990))). The admission of statements not admitted to prove the truth of the matter asserted also does not violate the Confrontation Clause. United States v. Occhiuto,

, 866 n.2 (1st Cir. 2015).

- 26 - Enamorado separately challenges the admission of all

coconspirator statements not discussing him or the Ortiz killing,

arguing that because he was not a member of the wider MS-13

conspiracy, such statements could not be admitted against him under

Federal Rule of Evidence 801(d)(2)(E). For the reasons explained

in the discussion of the sufficiency of the evidence, this argument

fails. He also argues that any statements made by coconspirators

after his arrest were inadmissible against him because he was no

longer a part of the conspiracy. As he made no showing that he

had actually withdrawn from the conspiracy, this argument is

foreclosed by Leoner-Aguirre,

("Imprisonment alone

does not satisfy a defendant's burden of proving withdrawal.").

D. The Admission of CW-1's Statements

Enamorado challenges the admission of all of CW-1's

statements made to law enforcement or in the recordings submitted

by the government.8 He argues that CW-1 was not a coconspirator

and thus that his statements are not nonhearsay under Federal Rule

8 Pérez-Vásquez adopted this argument. Pérez-Vásquez also adopted very similar arguments made by Erick Argueta Larios, a/k/a "Lobo." United States v. Larios, No. 18-2177. But Pérez-Vásquez does not explain how the specific statements by CW-1 challenged by Larios, many of which have little to do with Pérez-Vásquez's involvement with the conspiracy, prejudiced Pérez-Vásquez. The argument is waived. See United States v. Torres-Rosa,

(1st Cir. 2000) ("The party seeking to adopt an argument has a burden, at the very least, to ensure that it is squarely before the court and to explain how and why it applies in his case.").

- 27 - of Evidence 801(d)(2)(E), and that their admission violated the

Confrontation Clause. Because this argument was preserved, we

review the admission of alleged hearsay evidence for abuse of

discretion, United States v. Correa-Osorio,

(1st

Cir. 2015), and the Confrontation Clause claim de novo, United

States v. Veloz,

(1st Cir. 2020).9

Enamorado's brief focuses on Exhibit 214, the transcript

of a conversation a few hours after the Ortiz murder between CW-1,

Pérez-Vásquez, a woman named "Blanca," and another MS-13 member

known as "Smiley." CW-1's statements in this transcript were

mostly questions, exclamations, or statements not relevant to the

Ortiz murder.

Enamorado's argument misses the point. CW-1's

statements were admitted only to provide context for statements

made by other MS-13 co-conspirators in the conversation and make

them intelligible to the jury, not for their truth. And the

district court did not err in admitting CW-1's statements in

Exhibit 214 to provide context. See United States v. Walter,

(1st Cir. 2016) (holding that tape-recorded

statements by non-testifying informants may be admissible to

9 Enamorado challenges "all" of CW-1's statements, but his argument is waived as to any statements not identified in his brief. Perez-Cubertier,

n.6 (explaining that the "failure to identify relevant portions of the trial transcript" may result in waiver).

- 28 - provide context for statements made by defendants); see also

Sandoval,

, at *19 (holding that there was no plain

error in admitting cooperating witness's "reciprocal and

integrated utterance(s)" in conversations with conspiracy members

(quoting Walter,

)). The admission of such

statements also does not violate the Confrontation Clause. Walter,

("[S]tatements . . . offered not for the truth of

the matters asserted . . . do not implicate the Confrontation

Clause.").

Enamorado also specifically challenges CW-1's

"identification" of the speakers in Exhibit 214. It is unclear

what identification Enamorado is challenging. If Enamorado is

challenging the fact that CW-1 referred to various MS-13 members

by their names in the recordings, this challenge is rejected

because using someone's name in a conversation is not an assertion.

See United States v. Weeks,

(5th Cir. 1990). If

he is challenging the fact that CW-1 provided the identities of

the speakers for the transcripts, it was Hernandez-Miguel, a

coconspirator who testified at trial, not CW-1, who provided the

voice identification for the recordings and their transcripts.

Enamorado also challenges the admission of CW-1's

statements in Exhibit 240, a transcript of a recorded conversation

between CW-1 and Pérez-Vásquez on October 13, 2015, in which they

discussed the Ortiz murder. After reviewing the transcript we see

- 29 - no reversible error in admitting CW-1's statements to provide

context for Pérez-Vásquez's statements. Most of CW-1's statements

are mere interjections or "reciprocal and integrated

utterance(s)." Walter,

. And we are satisfied that

to the extent any statements could not be so understood, their

admission was harmless. See United States v. Benitez-Avila,

(1st Cir. 2009) (rejecting hearsay argument on appeal

because any error was harmless). For example, as to CW-1 saying

"Look at [Enamorado]. You see how fast they had him on the news?,"

there was no dispute as to whether Enamorado was quickly identified

as the shooter.

E. The Admission of Law Enforcement Testimony

1. Expert Testimony Founded on Hearsay

Pérez-Vásquez and Enamorado argue that elements of

Investigator Norris's, Agent Wood's, and Trooper Estevez's expert

testimony were improperly admitted and violated the Confrontation

Clause because they were merely relaying improper hearsay evidence

rather than providing expert analysis. This unpreserved challenge

to the admission of testimony is reviewed for plain error. United

States v. Laureano-Pérez,

(1st Cir. 2015).

As explained in United States v. Sandoval, "properly

qualified experts whose work is based on reliable principles and

methods may rely on inadmissible hearsay evidence in forming an

expert opinion" as long as they "relay[] that opinion, once formed,

- 30 - through their own testimony."

, at *12; see also

United States v. Rios,

(6th Cir. 2016) ("[I]t is

the process of amalgamating the potentially testimonial statements

. . . that separates an admissible [expert] opinion [on a criminal

organization] from an inadmissible transmission of testimonial

statements.").

As to Investigator Norris's testimony, he did not repeat

improper hearsay evidence and the defendants do not explain how

any of his statements were improper. Rather, based on his

experience and synthesis of various materials, he provided

evidence, helpful to the jury, about the structure and rules of

MS-13.

As to Agent Wood, in most of the portions challenged by

the defendants on this ground, Agent Wood is testifying as to what

he personally observed during the investigation, not as an expert.

And his testimony about the basic structure of MS-13 was based on

a synthesis of his many years of experience investigating MS-13.

See Sandoval,

, at *12-13.

As to Trooper Estevez, most of the challenged testimony

is a description of Trooper Estevez's personal involvement in the

investigation or Trooper Estevez reading aloud already admitted

transcripts of conversations between MS-13 members. As to the

transcripts, we have already rejected the defendants' challenges

to the statements in those transcripts. As to the statement

- 31 - specifically challenged by Enamorado, that it was "common in some

cliques" for members to try to hide the fact they were making money

from illegal activities from their clique, Estevez made that

statement on cross-examination by Pérez-Vásquez's lawyer to

explain an admitted recording in which an MS-13 member was

explaining that "[a]nother thing about [the drug protection

details] is not to tell everyone . . . [b]ecause they get jealous,

homie, and all that." The admission of Estevez's statement was

not an abuse of discretion, much less plain error, because it was

a permissible statement based on his experience investigating MS-

13. See United States v. Belanger,

(1st Cir. 2018)

(holding that agent's testimony commenting on meaning of recorded

calls was property admitted where agent was "intimately involved

in the investigation" and "well suited to contextualize individual

affairs like [the] phone call").10

10 Enamorado also argues that the court should not have admitted Estevez's statement that the Suffolk County District Attorney's Office had identified a suspect for the Ortiz killing because he did not have an opportunity to cross-examine someone from the District Attorney's Office. In fact, Trooper O'Connor, who was in the Suffolk County Detective Unit, had already testified that they had identified Enamorado as a suspect, and Enamorado had the opportunity to cross-examine him. Enamorado was not prejudiced by the admission of Estevez's statement and there was no plain error.

- 32 - 2. Overview Testimony

Pérez-Vásquez argues that much of the testimony by law

enforcement officers was improper "summary overview" evidence.11

Overview testimony refers to the use of a witness to "map out [the

government's] case and to describe the role played by individual

defendants." United States v. Flores-De-Jesús,

(1st Cir. 2009) (quoting United States v. Casas,

(1st Cir. 2004)). Such testimony is improper because it may

describe evidence that never materializes and, if the witness is

a government agent, may lend the imprimatur of government to a

later-testifying witness. Id. at 16-17. "Where an officer

testifies exclusively about his or her role in an investigation

and speaks only to information about which he or she has first-

hand knowledge, the testimony is generally . . . permissible."

United States v. Meléndez-González,

(1st Cir. 2018)

(alteration in original) (quoting United States v. Rose,

(1st Cir. 2015)). In describing his investigation, an

officer may not make "conclusory statements about the defendant's

11 Solís-Vásquez joined this argument. Pérez-Vásquez also hints at an argument that it was impermissible for law enforcement witnesses to testify both as expert witness and fact witnesses. The argument is waived for lack of developed argumentation, and in any event "there is no per se prohibition against a witness testifying in both capacities." Sandoval,

, at *12.

- 33 - culpability." United States v. Rodríguez-Adorno,

(1st Cir. 2012).

Because no objection was made in the district court, we

review this claim for plain error. United States v. Iwuala,

(1st Cir. 2015). We see no prejudicial overview

evidence in the record. Some of the testimony the defendants

identify as "overview" evidence is better described as expert

testimony.12 The remainder consists of Agent Wood's and Trooper

Estevez's description of their own roles in the investigation or

the reading of already admitted transcripts.13

3. Expert Methodology

Enamorado argues in one sentence that all of the experts'

methodologies were inadequate. Because he failed to develop the

argument, it is waived. United States v. Zannino,

(1st Cir. 1990).

12 For example, the defendants characterize as overview evidence the expert testimony about "the [MS-13] organization, rules, and practices of MS-13, [and] the nomenclature and leadership structure of MS-13." 13 The government concedes that Agent Wood's statement that he recognized the gang name "Crazy" as an MS-13 member from the Everett Loco Salvatrucha clique could be viewed as an improper conclusory statement about Pérez-Vásquez's guilt. But Pérez- Vásquez admitted his membership in MS-13, so any error in admitting this statement was harmless. See Flores-De-Jesús,

(rejecting argument about overview evidence on appeal because any error was harmless).

- 34 - Pérez-Vásquez also adopts, without elaboration, the

argument of Herzzon Sandoval, a codefendant who was part of a

different trial group, that Agent Wood's testimony was improperly

admitted because the government failed to show that the evidence

was based on a reliable methodology.14 But the testimony challenged

by Sandoval at his trial is entirely distinct from the testimony

given by Agent Wood at Pérez-Vásquez's trial, and to the extent

the circumstances are the same as in Sandoval, the Court rejected

the argument. See Sandoval,

, at *10. To the

extent they are different, Pérez-Vásquez has not explained how and

so has waived this argument. See United States v. Torres-Rosa,

(1st Cir. 2000).

F. Jencks Act

Enamorado argues that the government violated the Jencks

Act,

, by failing to disclose all of Investigator

Norris's prior testimonies as an expert witness. The Jencks Act

requires, on motion of the defendant, the government to turn over

any "statement" of a government witness "relating to the subject

matter of that witness's testimony" after the witness has been

called by the United States and has testified on direct

14 Pérez-Vásquez also adopts Sandoval's argument that cross-examination of Wood was improperly limited and that a "Threat Assessment" should have been turned over under the Jencks Act. It is unclear how these arguments are relevant or can be applied in this case.

- 35 - examination. United States v. Landrón-Class,

(1st Cir. 2012); see

(b). Enamorado's argument

fails because transcripts of a witness's prior testimony, which

are available in the public record, are not Jencks Act material.

See United States v. Hensel,

(1st Cir. 1983);

United States v. Chanthadara,

(10th Cir.

2000) (collecting cases).

G. Pérez-Vásquez's Closing Argument

Enamorado argues that Pérez-Vásquez's closing argument

unconstitutionally prejudiced Enamorado and thus that he was

entitled to a mistrial. Enamorado first argues that the closing

argument was effectively a confession made by Pérez-Vásquez's

attorney on behalf of Pérez-Vásquez and thus that it was allowed

in violation of Bruton v. United States,

(1968). He

then argues that Pérez-Vásquez's closing argument made clear that

Enamorado's defense was irreconcilable with Pérez-Vásquez's

defense, and thus that he was entitled to a mistrial and severance.

The denial of a mistrial is reviewed only for "manifest abuse of

discretion." United States v. Chisholm,

(1st

Cir. 2019). Bruton challenges are reviewed de novo. United States

v. Padilla-Galarza,

(1st Cir. 2021).

As to Enamorado's first contention, "[a] defendant is

deprived of his rights under the Confrontation Clause when his

nontestifying codefendant's confession naming him as a participant

- 36 - in the crime is introduced at their joint trial." Richardson v.

Marsh,

(1987); see also Bruton,

.

That is not what happened here. The challenged statements were

made to convince the jury that Pérez-Vásquez was not guilty for

lack of intent. We do not think a reasonable jury would have

concluded that this argument was actually a confession by Pérez-

Vásquez stating that a different defendant, Enamorado, was guilty

of RICO conspiracy. Enamorado did not ask for any curative

instruction, further evidencing that the jury did not need to be

cautioned. And the jury was instructed that "[l]awyers are not

witnesses. What they say in their . . . closing arguments . . .

is not evidence." See United States v. Quintero,

(3d Cir. 1994) (stating that Bruton "does not apply when an

attorney for a co-defendant implicates the defendant during

closing argument"); United States v. Sandini,

(3d Cir. 1989) ("Bruton is directed toward preserving a defendant's

right to cross-examination, and thus has nothing to do with

arguments of counsel," which "are simply not evidence.").

We also reject Enamorado's argument that the closing

statement rendered Enamorado and Pérez-Vásquez's defenses so

irreconcilable as to require a severance. "[T]o gain a severance

based on antagonistic defenses, the antagonism . . . must be such

that if the jury believes one defendant, it is compelled to convict

the other defendant." United States v. Floyd,

, 36

- 37 - (1st Cir. 2014) (second alteration in original) (quoting United

States v. Peña-Lora,

, 33 (1st Cir. 2000)). "Courts

measure the level of antagonism by the evidence actually introduced

at trial. And argument by counsel is not -- repeat, not --

evidence." Chisholm,

(cleaned up) (rejecting claim

that drug-trafficking defendant was entitled to severance where

codefendant's closing and opening statements repeatedly stated he

was a "large-scale, sophisticated heroin trafficker"). Because

closing arguments are not evidence, the district court did not

manifestly abuse its discretion in denying the motion for a

mistrial based on Pérez-Vásquez's closing argument.

H. The Government's Closing Argument

Enamorado argues that the government's statements during

its closing argument were improper and prejudicial.

We review Enamorado's unpreserved challenges to the

government's closing argument for plain error. United States v.

Belanger,

(1st Cir. 2018). We must determine

"whether the challenged comment [was] obviously improper," and, if

so, "whether the comment 'so poisoned the well that the trial's

outcome was likely affected.'" United States v. Walker-

Couvertier,

(1st Cir. 2017) (quoting United States

v. Mejia-Lozano,

(1st Cir. 1987)). In making

this determination, we consider "(1) the severity of the

prosecutor's misconduct, including whether it was deliberate or

- 38 - 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." Belanger,

(quoting United

States v. Wihbey,

(1st Cir. 1996)).

Enamorado first argues that the government falsely

stated that Enamorado called Pérez-Vásquez "to be backup" because

"[Enamorado] didn't have anyone from his clique available to do

it." Even if that statement were not well-supported by the record,

it was an "isolated and minor comment[] in the context of a much

larger web of evidence pointing to [the defendant's] guilt" and

does not cast doubt on the conviction. United States v. French,

(1st Cir. 2018).

Enamorado next argues that the government's statement

that Ortiz was an 18th Street gang member was improper because it

was inconsistent with testimony from FBI Special Agent Wood in a

codefendant's prior trial that he did not know whether Ortiz was

an 18th Street gang member. The importance of Ortiz's gang

affiliation is that it supports the contention that the Ortiz

murder was done in furtherance of MS-13's purposes. Because the

government provided substantial evidence that Enamorado believed

Ortiz was an 18th Street gang member, Ortiz's actual affiliation

was unimportant to the outcome and there was no plain error.

- 39 - Enamorado also argues that the government misstated the

law by telling the jury that it could convict Enamorado based

solely on his participation in the Ortiz murder. This argument

fails. The government did twice state during closing arguments

that the murder was enough to convict Enamorado. Those statements

were incorrect, but in the remainder of the prosecutor's closing

argument he properly stated that in order to be convicted for RICO

conspiracy, the Ortiz murder had to be done in connection with the

MS-13 enterprise. Further, the court properly instructed the jury

as to the applicable law. See United States v. Gonzalez-Gonzalez,

(1st Cir. 1998) ("No juror would mistake a prosecutor

for a judge.")

I. Enamorado's Challenge Under Federal Rule of Evidence 403

Enamorado argues for the first time on appeal that the

admission of evidence regarding the wider MS-13 organization and

crimes committed by members of other cliques of which Enamorado

had no personal knowledge was unduly prejudicial. Federal Rule of

Evidence 403 allows a court to "exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . .

unfair prejudice . . . or needlessly presenting cumulative

evidence." Unpreserved 403 challenges are reviewed for plain

error. United States v. Casanova,

(1st Cir. 2018).

In United States v. DeCologero, we stated that where a

defendant is engaged in a RICO conspiracy, evidence of crimes

- 40 - committed within the scope of that conspiracy are relevant "to

prove the existence and nature of the RICO enterprise and

conspiracy," even if the defendant had no personal involvement in

the crime.

, 54 (1st Cir. 2008). Further, it was "far

from clear that the potentially prejudicial impact of [such]

evidence would have rendered it inadmissible under Federal Rule of

Evidence 403." Id. There was no plain error in admitting evidence

against Enamorado of the crimes committed in furtherance of the

broader MS-13 conspiracy.

J. Jury Instructions

Enamorado challenges two aspects of the jury

instructions.15 Because Enamorado failed to object in the district

court, we review the instructions for plain error. United States

v. González-Vélez,

(1st Cir. 2006).

The district court instructed the jury that to prove a

RICO conspiracy the government must show that "the defendant or

another member of the conspiracy agreed to commit at least two

racketeering acts." (Emphasis added). It next stated that "[f]or

each defendant, the government . . . must prove that the defendant

agreed to participate in the conspiracy and that the conspiracy

involved, or would involve, the commission of at least two

racketeering acts." Enamorado argues that the first portion of

15 Pérez-Vásquez adopted this argument.

- 41 - these instructions improperly instructed the jury that it could

convict Enamorado whether or not Enamorado knew the conspiracy

would involve the commission of at least two racketeering acts.

The first portion of the instruction accurately conveyed

that if Enamorado agreed to join a conspiracy in which

coconspirators had agreed to do two or more acts, then Enamorado

himself need not have done those acts. Enamorado did not at any

time propose a more artful phrasing. Any risk of the jury

misunderstanding was eliminated by the very next sentence.

Instructions are not viewed piecemeal. United States v. Paz-

Alvarez,

(1st Cir. 2015). There was no plain

error.

Enamorado next argues that the district court's murder

instructions were error under Alleyne v. United States,

(2013).16 The district court told the jury "[i]n this case, the

distinction between first-degree and second-degree murder is not

relevant" and that it would "simply describe the elements of

murder" to the jury. But at the charge conference the district

court made clear that it would instruct the jury on second-degree

murder "without calling it second-degree murder" to streamline the

charge. And the instructions given to the jury clearly described

second-degree murder.

16 Pérez-Vásquez adopts this argument.

- 42 - It is not clear what argument Enamorado is making. If

he is arguing that the district court was required to instruct on

first-degree murder in addition to second-degree murder, that

argument fails because there was no prejudice to Enamorado.

Enamorado argues there was prejudice because if both instructions

had been given and the jury had only found him guilty of second-

degree murder, the district court would have calculated a lower

guidelines range. As explained in United States v. Gonzalez,

(1st Cir. 2020), a district court may use the first-degree

murder guideline if it finds by a preponderance of the evidence

that the defendant committed first-degree murder, even if the jury

only finds the defendant guilty of second-degree murder,

. And the district court said it thought the evidence was

"overwhelming . . . that the murder of Ortiz was premeditated."

K. Responses to Jury Questions

Enamorado challenges the district court's responses to

two jury questions asked during deliberations. The first question

was: "Is it required to prove that the defendant is a gang member

in order to be associated with MS-13? . . . [W]hat is the definition

of an associate of MS-13?" The district court replied: "The answer

to that question is no. The real issue is not whether a particular

defendant is a full member of a gang, rather, the focus should be

on the conspiracy and the agreement that is at the heart of the

- 43 - conspiracy to conduct the affairs of an enterprise through a

pattern of racketeering activity."

The second question was: "Does evidence of the

defendant's association with MS-13 have to predate the specific

racketeering acts charged in the indictment?" The district court

replied: "[N]o. Again, the focus should be on the conspiracy and

the agreement at the heart of the conspiracy. No specific

racketeering acts need be committed at all."

Both answers were crafted in response to and in the

presence of defense counsel. The district court read the final

version of the instructions and asked the defendants "Does that

work?" to which they replied "for the defendants, yes." This

approval waived any later objection. United States v. Corbett,

(1st Cir. 2017) (explaining that a defendant

waives any objection when says he has "no problem" with the

proposed answer to a jury question).17

L. Sentencing Entrapment

Pérez-Vásquez argues his sentence was inappropriately

enhanced due to sentencing factor manipulation. Because Pérez-

Vásquez failed to raise this issue in the district court, we review

17 Having rejected all of the defendants' claims of trial error, we reject their claim of cumulative error. Williams v. Drake,

(1st Cir. 1998) ("Absent any particularized error, there can be no cumulative error.").

- 44 - for plain error. United States v. Sánchez-Berríos,

(1st Cir. 2005).

"Sentencing factor manipulation occurs 'where government

agents have improperly enlarged the scope or scale of [a] crime'"

during a sting operation. United States v. Rivera-Ruperto,

(1st Cir. 2017) (alteration in original) (quoting United

States v. Lucena-Rivera,

(1st Cir. 2014)). In

such cases, the sentencing court may impose a sentence below the

mandatory minimum as an equitable remedy.

Because any sting

operation involves manipulation, relief is available only in "the

extreme and unusual case" such as in the case of "outrageous or

intolerable pressure [by the government] or illegitimate motive on

the part of the agents." Id. at 15 (alteration in original) (first

quoting Lucena-Rivera,

; and then quoting United

States v. Navedo-Ramirez,

(1st Cir. 2015)). The

burden is on the defendant to establish such manipulation by a

preponderance of the evidence.

Pérez-Vásquez argues that the drug protection detail in

which he was asked to move five kilograms of cocaine to New

Hampshire was improper because "the only purpose" for using five

kilograms of cocaine rather than a lesser amount was to enhance

the defendants' sentencing exposure. This argument fails, as the

mere fact that agents could have but did not use smaller quantities

of drugs in a sting operation "without more, does not establish

- 45 - that the agents engaged in the kind of 'extraordinary misconduct'

that is required of a successful sentencing manipulation claim."

(citation omitted) (quoting Sánchez-Berríos,

).

M. Procedural Reasonableness of the Defendants' Sentences

The defendants make various challenges to the procedural

reasonableness of their sentences.18 We review the procedural

reasonableness of a sentence under a "multifaceted" abuse of

discretion standard. United States v. Flores-Quiñones,

(1st Cir. 2021). We review factual findings for clear

error, the interpretation of the guidelines de novo, and judgment

calls for abuse of discretion.

All three defendants argue that the district court erred

by calculating the guidelines range based on a judicial finding by

the preponderance of the evidence that they were guilty of first-

degree murder. They argue that a jury was required to decide

whether the murder was first- or second-degree under Alleyne,

. This argument is foreclosed by our decision in Gonzalez,

.

Enamorado argues that his criminal history category was

miscalculated.19 We reject this challenge. Because his base

18 A heading in Enamorado's brief suggests he is challenging the substantive reasonableness of his sentence as well, but the argument was not developed and thus is waived. Zannino,

. 19 Enamorado also argues that there was insufficient evidence that his murder of Ortiz was premeditated or committed as

- 46 - offense level was 43, the criminal history category had no impact

on his guidelines range. See U.S.S.G. ch. 5, pt. A (sentencing

table); United States v. Magee,

(1st Cir. 2016)

(rejecting challenge to criminal history category determination

because any error was harmless). We also reject Enamorado's

argument that he was entitled to a downward adjustment to his

offense level for playing only a "minor" role in the conspiracy.

Not only did Enamorado kill Ortiz, but he was also identified by

several witnesses as a homeboy. MS-13 associates only become

homeboys after ongoing participation in the gang and its

activities. The district court's determination that Enamorado's

role was not minor was not clear error. See United States v.

Montes-Fosse,

(1st Cir. 2016).

Solís-Vásquez challenges the calculation of his

guidelines range on the grounds that there was insufficient

evidence to support the district court's conclusion by the

preponderance of the evidence that he was responsible for first-

degree rather than second-degree murder of Ortiz. For much the

reasons described in the discussion of the sufficiency of the

evidence, we see no clear error in the district court's conclusion

a part of the MS-13 conspiracy. We reject this argument for the same reasons we reject his sufficiency argument.

- 47 - that Solís-Vásquez understood that the group was going to kill

Ortiz and thus that the murder was premeditated.20

N. Effective Assistance of Counsel

Pérez-Vásquez argues that he was denied effective

assistance of counsel because his counsel conceded some elements

of the charged RICO conspiracy.

Ineffective assistance of counsel claims generally

"cannot make their debut on direct review of criminal convictions,

but, rather, must originally be presented to, and acted upon by,

the trial court." United States v. Tkhilaishvili,

(1st Cir. 2019) (quoting United States v. Mala,

(1st Cir. 1993)). Further, Pérez-Vásquez has not shown that the

record here was "sufficiently developed to allow reasoned

consideration" of the issue.

(quoting United States v.

Natanel,

(1st Cir. 1991)). We dismiss this claim

of error without prejudice. Pérez-Vásquez may file a motion for

post-conviction relief in the district court. See

.

20 Solís-Vásquez also challenges whether there was sufficient evidence to support increasing his base offense level based on various other assaults and murders. Because there was no clear error in determining that Solís-Vásquez's base offense level was 43, the maximum, his base offense level was not affected by the other conduct and any error was harmless. See United States v. Acevedo-Hernández,

(1st Cir. 2018).

- 48 - We have reviewed all additional claims made by the

defendants and determined that each of them is without merit.

IV. Conclusion

Affirmed.

- 49 -