United States Court of Appeals For the First Circuit

Nos. 20-1240, 20-1275, 20-1276, 20-1283, 20-1287, 21-1641

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS DANIEL RAMOS-BAEZ, a/k/a Danny Power; EDUARDO ROSARIO-ORANGEL, a/k/a Barba, a/k/a Cholon; AVELINO MILLÁN-MACHUCA, a/k/a El Fuerte, a/k/a Viejo, a/k/a Gordo; LUIS H. QUIÑONES-SANTIAGO, a/k/a Hiram; JUAN J. CLAUDIO-MORALES, t/n Juan Jose Claudio-La Viera, a/k/a Claudio Canales, a/k/a Claudio El Gordo; JOSÉ RAFAEL SANCHEZ-LAUREANO, a/k/a Veterano,

Defendants, Appellants.

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Barron, Chief Judge, Thompson, Circuit Judge, Burroughs, District Judge.*

Jose Luis Novas Debién, for appellant Luis Daniel Ramos-Baez. Javier A. Morales-Ramos, for appellant Luis H. Quiñones-Santiago. Alejandra Bird Lopez, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, were on brief, for appellant Avelino Millán-Machuca.

* Of the District of Massachusetts, sitting by designation. Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law Office LLC was on brief, for appellant Eduardo Rosario-Orangel. Anita Hill Adames, for appellant Juan J. Claudio-Morales. Tim Bower Rodriguez, with whom Tim Bower Rodriguez, P.A. was on brief, for appellant José Rafael Sanchez-Laureano. Alexander Louis Alum, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

November 3, 2023 BARRON, Chief Judge. These consolidated appeals are the

latest to come to us in connection with a federal investigation of

an organization -- referred to by the government as La Asociación

ÑETA ("ÑETA") -- that operated throughout Puerto Rico's prisons

and was allegedly involved in trafficking drugs and carrying out

murders-for-hire. In the wake of that investigation, each of the

six appellants was convicted in the United States District Court

for the District of Puerto Rico of conspiracy to violate the

Racketeer Influenced and Corrupt Organization ("RICO") Act, see

(d), and conspiracy to possess with intent to

distribute a controlled substance, see

. Each

appellant now challenges those convictions.

Given the number of appellants, there are a broad range

of challenges for us to address, although not all the appellants

bring all of them. The challenges target the sufficiency of the

underlying indictment, the sufficiency of the evidence at trial to

support the convictions, and a slew of claimed trial errors. Two

of the appellants also challenge the procedural reasonableness of

their sentences. But, although there is no shortage of challenges

for us to address, we conclude that there is merit only to one

challenge, which is brought by three of the appellants and takes

aim at an asserted trial error.

In that challenge, the three appellants contend that

hearsay statements by alleged coconspirators were admitted into

- 3 - evidence at trial in violation of United States v. Petrozziello,

(1st Cir. 1977). We conclude that this challenge

requires a remand to the District Court because no finding was

made below as to whether the statements at issue were made in

furtherance of the alleged conspiracy. Moreover, our ruling in

this regard leads us to reject the claim of cumulative error

brought by Avelino Millán-Machuca, who is among the three

appellants who advances the Petrozziello challenge, without

prejudice to his raising the cumulative error challenge again in

the wake of the ruling on the Petrozziello challenge on remand.

We otherwise affirm all the rulings that are before us in these

appeals.

I.

The charges underlying the convictions were set forth in

a sweeping indictment that named fifty defendants. The defendants

were charged with various federal crimes that related to their

alleged involvement with the entity that the indictment refers to

as "ÑETA."

The indictment described ÑETA as a "criminal

organization whose members and associates engaged in drug

distribution and acts of violence, including murder." According

to the indictment, the organization was originally founded by

prisoners "in order to collectively advocate for the rights of"

those in Puerto Rico prisons. But the indictment alleged that

- 4 - this entity "[i]n time . . .evolved . . . [into] a criminal

organization whose members numbered in the thousands."

Among the defendants named in the indictment are the six

appellants: Millán-Machuca, Juan J. Claudio-Morales, Luis Daniel

Ramos-Baez, Eduardo Rosario-Orangel, Luis H. Quiñones-Santiago,

and José Rafael Sanchez-Laureano. Each was charged with two

criminal counts.

The first count charged each of the appellants with RICO

conspiracy in violation of

(d). In doing so, the

count charged each appellant with conspiring to violate

(c), which makes it "unlawful for any person employed by or

associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity

. . . ."

(c).

Section 1961(5) of the RICO statute defines a "pattern

of racketeering activity . . . as two or more 'racketeering acts'

that were related, occur within ten years of one another, and pose

a threat of continued criminal activity." United States v.

Millán-Machuca,

, 18 (1st Cir. 2021); see

(5). Qualifying "racketeering activity" includes "dealing

in a controlled substance." See

(1). Two

instances of the same type of racketeering "act" may satisfy the

- 5 - definition of a pattern of racketeering activity. Millán-Machuca,

991 F.3d at 18 (citing United States v. Rodríguez-Torres,

, 29 (1st Cir. 2019)). As relevant to our analysis in these

appeals, the indictment alleged that each appellant conspired to

participate in the affairs of the entity described as ÑETA through

a pattern of racketeering activity involving the trafficking of

cocaine, heroin, and marijuana.

The second count charged each appellant under

with conspiracy to violate

(a)(1). Section

841(a)(1) makes it "unlawful for any person knowingly or

intentionally . . . to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a

controlled substance." This count alleged that the appellants

engaged in a conspiracy to traffic over one kilogram of heroin,

five kilograms of cocaine, and 100 kilograms of marijuana based on

the same factual allegations that undergird the count that charges

each of these appellants with RICO conspiracy.

Following a fourteen-day trial, the jury found each

appellant guilty on both the RICO conspiracy charge and the federal

drug-trafficking conspiracy charge. The District Court imposed

concurrent prison sentences of at least 10 years on each of the

- 6 - appellants for each of their convictions. These timely appeals

followed and were then consolidated.

II.

We start our analysis with the challenges that take aim

at the convictions based on an asserted problem with the

indictment. These challenges are brought solely by

Quiñones-Santiago and concern only his RICO conspiracy conviction.

Quiñones-Santiago first contends in this regard that, in

charging him with participating in the alleged RICO conspiracy,

the indictment failed to identify an entity that qualifies as an

"enterprise" within the meaning of

(4). His

argument proceeds as follows.

Section 1961(4) defines an "enterprise" to "include[]

any individual, partnership, corporation, association, or other

legal entity, and any union or group of individuals associated in

fact although not a legal entity." The indictment defines the

"enterprise" as: "La Asociación Pro Derechos y Rehabilitación del

Confinado, also known as La Asociación Pro Derechos de los

Confinados, and La Asociación ÑETA (hereinafter referred to as La

Asociación ÑETA or the 'enterprise'), including its leadership,

membership, and associates."

Quiñones-Santiago asserts that, by defining the

enterprise in this manner, the indictment defined it to be a

"mixture of a small portion of the Ñetas (those indicted which

- 7 - constitute a subset of the Ñetas), . . . the Ñetas (the 5,000 plus

membership)[,]" and two corporate entities, "the Asociación Pro

Derechos y Rehabilitación del Confinado, Inc., and the Asociación

Pro Derechos del Confinado, Inc." He contends that such an entity

cannot qualify as an "enterprise" because, as a matter of law, an

"enterprise" cannot be the product of such a mixture.

Quiñones-Santiago does not appear to have moved under

Federal Rule of Criminal Procedure 12(b)(3) to dismiss the

indictment on this basis. But, even if we were to treat the

challenge as preserved, it would fail on de novo review given the

limited nature of the arguments that Quiñones-Santiago makes.

The text of § 1961(4) is written in expansive terms, as

it provides that an "'enterprise' includes any individual,

partnership, corporation, association, or other legal entity, and

any union or group of individuals associated in fact although not

a legal entity."

(4) (emphasis added). Moreover,

the Supreme Court of the United States has explained that, because

§ 1961(4) "does not purport to set out an exhaustive definition of

the term 'enterprise,'" it "does not foreclose the possibility

that the term might include, in addition to the specifically

enumerated entities, others that fall within the ordinary meaning

of the term 'enterprise.'" Boyle v. United States,

,

944 n.2 (2009); see also United States v. Cianci,

(1st Cir. 2004) ("The term's flexibility is denoted by the use of

- 8 - the word 'includes' rather than 'means' or 'is limited to'; it

does not purport to be exhaustive."). And yet, Quiñones-Santiago

merely asserts in conclusory fashion that an organization that

represents the "mixture" at issue here cannot qualify as an

"enterprise." Accordingly, we conclude that the challenge is too

undeveloped to succeed. See United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").

Quiñones-Santiago also contends that the indictment does

not allege facts sufficient to allege the crime of RICO conspiracy

for a separate reason. Here he attributes the problem to what he

argues is the indictment's failure to allege, as the Supreme Court

has held is required for an indictment to allege the crime of RICO

conspiracy, "the existence of two distinct entities: (1) a

'person'; and (2) an 'enterprise' that is not simply the same

'person' referred to by a different name." See Cedric Kushner

Promotions, Ltd. v. King,

(2001). Rather, he

argues, the indictment "improperly mixes the 'enterprise' with the

'person.'"

To support this contention, Quiñones-Santiago points to

the section of the indictment, labeled "Background of the

Enterprise (La Asociación ÑETA)," that provides: "La Asociación

ÑETA introduced and distributed multi-kilograms of cocaine,

- 9 - marijuana, and heroin into the prison system of the [Puerto Rico

Department of Corrections and Rehabilitation ("PRDCR")] for

profit." He then contends that "[t]he way the [i]ndictment reads

. . . turns said 'enterprise' ipso facto into a defendant, into

the liable actor who was engaged in drug trafficking."

Once again, we may assume that the challenge is preserved

because we conclude that it, too, fails even on de novo review.

The indictment plainly alleges that the "persons" are the

individual natural persons who allegedly participated in the

charged conspiracy, see King,

, which is a group

that includes Quiñones-Santiago and the other appellants. By

contrast, the indictment plainly alleges that the "enterprise" is

the entity that the indictment refers to as "ÑETA," which is

alleged to be an "ongoing organization" whose members "associated

together for a common purpose of engaging in a course of conduct,"

United States v. Turkette,

(1981). Thus, here,

too, we conclude that there is no merit to the challenge, as the

indictment makes clear that each "person" charged with the RICO

conspiracy offense must be shown to have joined in the conspiracy

to conduct the affairs of the alleged enterprise, which is the

entity the indictment refers to as ÑETA.

III.

The next group of challenges that we address focuses on

the evidence at trial rather than the indictment and concerns

- 10 - whether that evidence suffices to support the convictions. The

government asserts that several of the specific sufficiency

challenges in this group of challenges were waived below. We may

assume otherwise because we conclude that, even on de novo review,

all the sufficiency-of-the-evidence challenges fail.

A.

In reviewing the sufficiency of the evidence de novo, we

ask whether a rational juror "could find that the government proved

all the elements of the offense beyond a reasonable doubt." United

States v. Fuentes-Lopez,

, 71 (1st Cir. 2021). "To

uphold a conviction, the court need not believe that no verdict

other than a guilty verdict could sensibly be reached but must

only satisfy itself that the guilty verdict finds support in a

plausible rendition of the record."

(quoting United States v.

Sabean,

(1st Cir. 2018)).

We must draw "all reasonable inferences from the

evidence in favor of the verdict," United States v. Oliver,

, 519 (1st Cir. 2021) (citing Fuentes-Lopez, 994 F.3d at

71), but reject "evidentiary interpretations and illations that

are unreasonable, insupportable, or overly speculative," United

States v. Rodríguez-Martinez,

(1st Cir. 2015)

(quoting United States v. Spinney,

(1st Cir.

1995)). We may uphold a conviction against a sufficiency challenge

on the basis of circumstantial evidence, though we "may not pursue

- 11 - a 'divide and conquer' strategy in considering whether the

circumstantial evidence [in the record] adds up . . . ." United

States v. Guzman-Ortiz,

, 55 (1st Cir. 2020). At the

same time, we may not "stack inference upon inference in order to

uphold the jury's verdict."

(quoting United States v. Valerio,

(1st Cir. 1995)).

B.

We begin with the challenges that concern whether the

evidence suffices to support the RICO conspiracy convictions.

After laying out the elements of the offense, we then consider the

individual challenges that pertain to these elements.

1.

"To prove a defendant's participation in a RICO

conspiracy, the government must prove that 'the defendant knew

about and agreed to facilitate' a substantive RICO offense . . . ."

Millán-Machuca, 991 F.3d at 18 (quoting United States v.

Leoner-Aguirre,

, 316 (1st Cir. 2019)). The

substantive RICO offense here is set forth in

(c),

which, as noted above, makes it "unlawful for any person employed

by or associated with any enterprise engaged in, or the activities

of which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity."

(c).

- 12 - The indictment alleged that the appellants were members

of the enterprise. It further alleged that they conspired to

conduct or participate in the enterprise's affairs through "a

pattern of racketeering activity consisting of," among other

things, "multiple offenses involving . . . [d]rug trafficking."1

To prove a defendant committed the offense of RICO

conspiracy, the government need not "prove that the defendant

himself committed or agreed to commit two or more racketeering

acts." Millán-Machuca, 991 F.3d at 18 (citing Salinas v. United

States,

(1997)). The government need prove only

that "the defendant agreed that at least two acts of racketeering

would be committed in furtherance of the conspiracy."

(citing

Leoner-Aguirre, 939 F.3d at 317).

2.

We start with Quiñones-Santiago's contention that the

evidence does not suffice to show that the charged conspiracy

involved a qualifying "enterprise." Building on the indictment-

focused challenge to his RICO conspiracy conviction that we

rejected above, Quiñones-Santiago contends that the evidence in

the record establishes that the entity that the indictment refers

1 The indictment also alleged that some members of ÑETA engaged in two other types of racketeering activity: murder and bribery. However, on appeal, the government does not defend the appellants' convictions based on evidence relevant to murder or bribery.

- 13 - to as "ÑETA" is a mixture of individuals, corporate entities, and

a non-corporate entity. He then contends that such an entity

cannot, as a matter of law, qualify as an "enterprise" under

§ 1961(4) for the same reasons that he contended that the

indictment was defective in describing the "enterprise" to be such

a mixture.

But, as we explained above, neither the text of § 1961(4)

nor the relevant precedent makes it evident that such a mixed

entity cannot qualify as an "enterprise." And yet, once again

Quiñones-Santiago merely asserts the contrary view in a conclusory

manner without developing any supporting argument. Thus, this

argument fails for lack of development just as we concluded his

related indictment-focused challenge did. See Zannino,

.

Quiñones-Santiago separately suggests that even if an

entity comprised of a mixture of individuals, corporate entities,

and a non-corporate entity could qualify as an "enterprise" under

the RICO statute in some circumstances, the government failed to

put forth sufficient evidence at trial to show that the entity to

which the indictment refers as ÑETA so qualifies. That is so, he

contends, because the evidence at trial does not suffice to show

that the named entity in fact operated as a single cohesive group.

The record contains testimony, however, from persons who

were supportably shown to be members of the alleged enterprise

- 14 - stating that it was hierarchically organized with members,

chapters, protocols, and a "maximum leadership" overseeing its

operations across Puerto Rico correctional facilities. Moreover,

while Quiñones-Santiago is correct that the evidence does not show

that every member of that entity was engaged in criminal activity,

"nothing in the statutory definition of enterprise requires that

the enterprise be defined solely by a criminal purpose." Millán-

Machuca, 991 F.3d at 20. Thus, because the evidence suffices to

show that the claimed enterprise constituted "a group of

individuals associated in fact although not a legal entity,"

(4), this aspect of Quiñones-Santiago's sufficiency

challenge also fails.

3.

We move on, then, to the other sufficiency challenges

that also concern the "enterprise" element of the underlying RICO

conspiracy offense. These challenges are brought by Ramos-Baez

and Sanchez-Laureano, and they concern the jurisdictional

component of the "enterprise" element, which requires the

government to prove that the alleged "enterprise" had at least a

"de minimis effect on interstate or foreign commerce." See Millán-

Machuca, 991 F.3d at 18 (citing Rodríguez-Torres, 939 F.3d at 16).

- 15 - Ramos-Baez and Sanchez-Laureano contend that the evidence does not

suffice to show such an effect.

Ramos-Baez and Sanchez-Laureano do not dispute that

"[t]he market for illegal drugs constitutes commerce over which

the United States ha[s] jurisdiction." See id. at 20 n.4. They

contend, however, that the sole support for finding the

jurisdictional element satisfied is the testimony from the

government's expert witness -- Puerto Rico Police Officer Eddie

Vidal-Gil -- regarding the origins of the drugs that members of

the enterprise trafficked on its behalf. Ramos-Baez and Sanchez-

Laureano argue that this testimony does not suffice to show that

those drugs originated outside of Puerto Rico because Officer

Vidal-Gil did not testify to having knowledge regarding the origin

of the specific drugs that were trafficked on behalf of the

enterprise. They point out, for example, that Officer Vidal-Gil

did not testify that he personally "examined the narcotics

distributed by [the enterprise] and [found] that they appeared to

have some distinguishing characteristic . . . he had observed

coming from other countries in past cases."

The problem with this challenge is that Officer

Vidal-Gil also testified, based on his more than thirty-one years

of experience investigating drug trafficking, that cocaine and

heroin were not produced in Puerto Rico at all and that marijuana

was locally produced only in limited quantities. Based on that

- 16 - testimony, a rational juror could conclude beyond a reasonable

doubt that at least some of the drugs trafficked on behalf of the

enterprise, given their quantities, came from outside Puerto Rico.

Thus, a rational juror reasonably could draw the inference that

the trafficking of those drugs had at least a de minimis impact on

interstate commerce, such that the enterprise itself did. See

Millán-Machuca, 991 F.3d at 20 n.4 (holding that substantially

identical testimony from Officer Vidal-Gil "that cocaine and

heroin are not produced in Puerto Rico . . . was enough to

establish the slight effect on interstate or foreign commerce that

is required for a RICO conviction"); Rodríguez-Torres, 939 F.3d at

27-28 (reaching the same conclusion based on similar testimony).

Accordingly, we reject this ground for reversing Ramos-Baez's and

Sanchez-Laureano's RICO conspiracy convictions.2

4.

Independent of the sufficiency challenges that focus on

the "enterprise" element, we also are presented with challenges to

2 We also reject Sanchez-Loreano's "alternative" argument that, under Federal Rule of Criminal Procedure 33, he is entitled to a new trial because "the weight of [Officer Vidal-Gil's] testimony preponderates against a finding that" ÑETA's drug trafficking had at least a de minimis impact on interstate commerce. In pressing this contention, Sanchez-Loreano emphasizes that Officer Vidal-Gil also testified that the topography of Puerto Rico was such that these controlled substances could not be produced there even though Officer Vidal-Gil acknowledged on cross-examination that he had no botanical training. But, as we have explained, Officer Vidal-Gil's testimony that two of the

- 17 - whether the evidence suffices to show the existence of the "unified

RICO conspiracy" involving the enterprise that the indictment

describes. Millán-Machuca and Ramos-Baez bring these challenges.

As we noted above, the indictment alleged a RICO

conspiracy to "conduct and participate, directly, and indirectly,

in the conduct of the affairs of" ÑETA "through a pattern of

racketeering activity consisting of multiple offenses involving

. . . [d]rug trafficking, including cocaine, heroin, and marijuana

in violation of . . .

and 846." Millán-Machuca

and Ramos-Baez contend, however, that the evidence does not suffice

to show that there was a "core" to the unitary conspiracy described

in the indictment. Instead, they contend that the evidence shows,

at most, that there were (as Millán-Machuca puts it) "innumerable

drug-trafficking conspiracies" across dozens of correctional

facilities whose "practices were long-standing and considered

controlled substances at issue here are not produced in Puerto Rico at all and one is produced only in limited qualities substantially supports the conclusion that at least some of the drugs ÑETA trafficked came from outside of Puerto Rico. Thus, even accepting that Officer Vidal-Gil's topographical testimony was, as Sanchez-Loreano contends, without foundation, we see no basis for concluding that the weight of the evidence preponderates so heavily against the jury's verdict that he is entitled to relief under Rule 33. See United States v. Simon,

, 56 (1st Cir. 2021) (explaining that "a new trial motion . . . based upon the weight of the evidence . . . should be granted sparingly and only when the evidence preponderates heavily against the jury's verdict or a miscarriage of justice otherwise looms").

- 18 - unchangeable" and whose proceeds "remained in the control of

chapter leaders."

"To determine if the evidence supports finding a single

conspiracy (that is to say, a single general agreement)[,]" we

look for "(1) a common goal, (2) interdependence among the

participants, and (3) overlap among the participants." United

States v. Portela,

(1st Cir. 1999). But, while

this analysis of "'common goals,' 'interdependence,' and 'overlap'

is useful for resolving challenges to the sufficiency of the

evidence on appeal," we also have looked "to 'the totality of the

evidence' in determining whether there is factual support for a

finding of a single conspiracy."

. In undertaking the

analysis of what the record shows regarding the scope of the

conspiracy, moreover, we must keep in mind both that "[t]he essence

of a conspiracy is an agreement" among all of the coconspirators

"to commit a crime" and that "[t]he law is clear that a tacit

agreement" to undertake activities that contribute to the success

of the overall criminal conspiracy "is sufficient."

(quotation omitted).

We conclude that the evidence does suffice to permit a

rational juror to find beyond a reasonable doubt that the unified

conspiracy described in the indictment existed. Testimony from

individuals supportably shown to be members of the entity that the

indictment referred to as ÑETA -- which is the "enterprise" whose

- 19 - operations the conspiracy is alleged to have facilitated --

suffices to permit a rational juror to find that, during the period

that the indictment specifies: (1) the entity was hierarchically

organized with a "maximum leadership" that oversaw its operations

across all of Puerto Rico's correctional facilities; (2) the

maximum leadership appointed people it "trusted" to serve as

chapter leaders for the entity at each facility; and (3) the

chapter leaders were responsible, along with the chapter leaders'

own associates, for conducting the affairs of the entity at the

direction of the maximum leadership. Thus, the evidence suffices

to show that the claimed enterprise was itself a cohesive

organization that was operating at the scale alleged in the

indictment.

The evidence further suffices to show that, during the

period in question, the maximum leadership and chapter leaders of

ÑETA engaged in trafficking drugs for profit to "[e]nrich the

members and associates of" the entity as well as the entity itself.

For example, the evidence supportably shows that the maximum

leadership of ÑETA (1) supplied to each correctional facility's

ÑETA chapter "fund drugs" or a "pot" of drugs to be sold by members

of ÑETA at the facility; and (2) distributed drugs that ÑETA's

maximum leadership purchased with their personal (non-ÑETA)

resources in a correctional facility while "clos[ing] the doors"

- 20 - to that facility so that no other drugs could be sold there until

the maximum leadership's drugs had been sold.

In addition, there was testimony from individuals

supportably shown to be members of the alleged enterprise that it

had a system for smuggling drugs into correctional facilities

through a network of affiliated "suppliers" outside of the prison

system. There was also testimony from such individuals that this

entity had established rules that governed the payment of

"incentives" not only for the use of cellphones provided by that

same entity but also for the privilege of introducing and selling

a ÑETA member's own drugs within a correctional institution in

Puerto Rico. And there was testimony from such individuals that

supportably shows that sanctions would be imposed by leaders of

the enterprise for breaking these rules.

Finally, individuals who were supportably shown to be

members of ÑETA testified that some of the money generated by the

drug trafficking just described would be allocated to chapter- and

enterprise-wide leaders. And, the testimony from such individuals

also supportably shows that these leaders of the enterprise would

then invest the money in acquiring more drugs to be similarly

trafficked and would also set aside a portion to pay for biannual

events that ÑETA would throw for its members and their relatives.

Thus, we conclude that, at least when considered as a

whole, the evidence suffices to show that the unified conspiracy

- 21 - alleged existed. To be sure, for the evidence to suffice to show

that Millán-Machuca and Ramos-Baez were guilty of the RICO

conspiracy offense charged, the evidence also must suffice to show

that they joined in that conspiracy. But, insofar as these

appellants are contending that the evidence does not suffice to

show that there was such a unified conspiracy for them to join, we

cannot agree, given the evidence in the record that we have just

described. See Portela,

; Cianci,

.

That is so, we add, notwithstanding Ramos-Baez's

contention that, for purposes of the RICO conspiracy charge, no

evidence suffices to show "interdependence or overlap." The

testimony from individuals that the evidence supportably shows

were members of ÑETA suffices to permit a rational juror to find

that the maximum leadership oversaw the operation of the enterprise

and received a share of the proceeds of the drug trafficking

undertaken with the assistance, and under the auspices, of the

enterprise. The testimony by individuals supportably shown to be

members of ÑETA also suffices to show that details regarding ÑETA's

drug-trafficking operations were routinely reported back to the

maximum leadership. Thus, we cannot agree that the evidence fails

to suffice to show the existence of interdependence and overlap

among the charged conspiracy's participants. See Portela,

("Establishing 'interdependence' among the

- 22 - participants requires determining 'whether the activities of one

aspect of the scheme are necessary or advantageous to the success

of another aspect of the scheme.' . . . The 'overlap' requirement

can be satisfied by the pervasive involvement of a single 'core

conspirator.'").

In concluding that the evidence suffices to show that

the unified conspiracy alleged did exist, we emphasize that the

government did not need to prove that "a given member knows all

his fellow coconspirators."

(citation omitted). Nor

does the "fact that every defendant did not participate in every

transaction necessary to fulfill the aim of their agreement . . .

transform a continuing plan into multiple conspiracies."

(citing United States. v. Drougas,

(1st Cir. 1984)).

For, "[w]henever a conspiracy involves successive transactions and

multiple players, it is usually possible to slice the enterprise

into discrete portions," as "[e]ven a single conspiracy is likely

to involve subsidiary agreements relating to different individuals

and transactions. And more often than not, none of the agreements

is explicit; agreement is inferred from conduct." United States

v. Twitty,

(1st Cir. 1995).

5.

The remaining sufficiency challenges to the RICO

conspiracy convictions are bought by Millán-Machuca,

Claudio-Morales, Ramos-Baez, and Rosario-Orangel. Each of these

- 23 - appellants contends that the evidence fails to show that he

personally engaged in conduct that would suffice to permit a jury

to find that he joined in the unified conspiracy charged, even

accepting that the evidence suffices to show that this unified

conspiracy existed. For the reasons that we will next explain, we

conclude that there is no merit to any of these challenges.

a.

We begin with Millán-Machuca's contention that his RICO

conspiracy conviction must be reversed because the evidence

suffices to show only that he "fail[ed] to stop an unstoppable

tidal wave of drug-trafficking that has long existed" and so fails

to suffice to show that he "agreed to the overall objective of the

RICO offense." He contends that the evidence, at most, shows that

he "was a figurehead who was not in control of the nefarious

activities of other members" and, in fact, demonstrates that he

engaged in "efforts to extend the legitimate influence of" ÑETA.

But testimony from individuals, who the evidence

suffices to show were members of the alleged enterprise,

supportably shows that Millán-Machuca served as its maximum leader

between 2012 and 2015. That testimony further supportably shows

that, from that position, he appointed chapter leaders at various

Puerto Rico prisons. Additional testimony supportably shows that

he supervised the enterprise's business practices, including by

reviewing reports regarding drug profits that chapter leaders

- 24 - prepared for that entity's leadership. Thus, a rational juror

could find that Millán-Machuca was guilty of the RICO conspiracy

offense charged. See Millán-Machuca, 991 F.3d at 18 (citing

Leoner-Aguirre, 939 F.3d at 317).

Millán-Machuca does counter that the evidence "did not

show that [he] was personally enriched by the alleged RICO

conspiracy whose alleged purpose was to enrich the maximum

leadership" or that he "actively participated in, or controlled,

the use of drug funds." But the government did not have to prove

either that each defendant committed or agreed to commit two or

more such racketeering acts himself or that each defendant directly

benefitted from these acts. See Leoner-Aguirre, 939 F.3d at 317

(citing Salinas,

). It was required to prove only

that each defendant "knew about and agreed to facilitate" the

conspiracy to conduct ÑETA's affairs through the commission of at

least two acts of racketeering. See id. at 316-17; Millán-Machuca,

991 F.3d at 18.

b.

In Claudio-Morales's version of this personal-conduct-

based sufficiency challenge, he contends that the evidence does

not suffice to show that he agreed "(1) to participate in the

conduct of the affairs of the enterprise[;] . . . (2) that he

committed at least two racketeering acts; and (3) that there was

a nexus between the enterprise and any alleged drug transaction to

- 25 - which Claudio-Morales could have agreed to be committed." And

that is so, he adds, because the evidence does not suffice to show

that he was a maximum leader, a chapter leader, or a member of the

enterprise's "structured hierarchy."

But an alleged coconspirator identified Claudio-Morales

at trial as an enforcer for the maximum leadership of the

enterprise. That witness also testified that Claudio-Morales

personally intervened on the maximum leadership's behalf to settle

disputes about debts between members of the enterprise and its

maximum leadership with respect to drug transactions and that, in

one instance, Claudio-Morales trafficked drugs on behalf of an

enterprise member to settle such a dispute. See Portela,

("That each defendant had an interest in furthering the

distribution of [controlled substances] is also sufficient

evidence that they shared a common goal with the other

participants."). The evidence further supportably shows that

Claudio-Morales instructed new members of the enterprise on how to

manage and keep tabs on drug profits in accounting books prepared

for the maximum leadership and that he collected the cellphone

incentive payments that members of the enterprise paid to ÑETA for

the use of the cellphones that had been smuggled into the prisons

to facilitate drug trafficking.

Taken as a whole, this collection of evidence suffices

to show that Claudio-Morales did agree to conspire to participate

- 26 - in the conduct of the enterprise's affairs through a pattern of

racketeering activity. And that is so notwithstanding the fact

that he did not have a formal leadership position in the alleged

enterprise.

c.

We next address Ramos-Baez's similar challenge, in which

he contends that the evidence does not suffice to show that he

agreed to participate in the conduct of the enterprise's affairs,

played a part in its management, or agreed that he or any other

member of the enterprise would commit at least two qualifying

racketeering acts. At trial, however, an alleged coconspirator

identified Ramos-Baez as a member of the enterprise who had served

in leadership roles for the enterprise. Those roles included being

a member of the "Dialogue Committee" and being a chapter leader,

a position from which he "had to report to the maximum leadership

as to the [controlled] substances." The evidence also supportably

shows that, in the latter role, Ramos-Baez helped to maintain a

relationship with prison staff on behalf of the enterprise,

including by obtaining the aid of "corrupt" guards to smuggle in

contraband. See Portela,

. Thus, the evidence

suffices to support a reasonable inference that Ramos-Baez agreed

that at least two acts of drug trafficking would be committed as

part of the conspiracy that he joined. See Millán-Machuca, 991

F.3d at 18 (citing Leoner-Aguirre, 939 F.3d at 317).

- 27 - d.

The final personal-conduct-based challenge is brought by

Rosario-Orangel. He contends that his RICO conspiracy conviction

must be reversed because the evidence does not suffice to show

that he agreed "(a) to participate in the conduct of the affairs

of the enterprise[;] and (b) that he or any other member of the

enterprise would commit at least two racketeering acts; and (c)

that there was a nexus between the enterprise and any alleged drug

transaction" in which the evidence shows he was engaged.

The record shows, however, that a coconspirator

identified Rosario-Orangel as a ÑETA member who served as "Leader

Two" at a Puerto Rico correctional facility. The testimony further

shows that Rosario-Orangel obtained drugs from a ÑETA prison "pot"

to sell within the prison on behalf of the organization's

leadership. And the record shows, finally, both that

Rosario-Orangel was in contact with Millán-Machuca's drug supplier

from outside of the Puerto Rico prison system and that Claudio-

Morales coordinated meetings with that supplier about making drug-

related transactions.

This body of evidence suffices to support a rational

juror's inference that Rosario-Orangel joined the conspiracy

- 28 - charged. See Millán-Machuca, 991 F.3d at 19-20. So, this

challenge, too, fails.

C.

We also have before us sufficiency challenges to the

drug-conspiracy convictions for violating

and

841(a)(1). These challenges are brought only by Millán-Machuca

and Ramos-Baez.

1.

The indictment alleged that the appellants conspired to

violate

(a)(1), which makes it unlawful "to . . .

possess with intent to . . . distribute . . . a controlled

substance," and specifically that the appellants conspired to

traffic more than one, five, and 100 kilograms of mixtures or

substances containing heroin, cocaine, and marijuana respectively.

Thus, to sustain the convictions on these charges, the government

was required "to prove (1) the existence of a conspiracy to possess

heroin, cocaine, and/or marijuana with the intent to distribute

it, and (2) that the defendant knowingly and willfully joined in

that conspiracy." See Millán-Machuca, 991 F.3d at 19.

2.

Millán-Machuca and Ramos-Baez first take aim at whether

the evidence suffices to support finding that the single

overarching drug-trafficking conspiracy charged in the indictment

existed. There is no merit to the challenge.

- 29 - Individuals supportably shown to be members of the

enterprise testified that the maximum leadership of the enterprise

sought, on behalf of the enterprise, to require members to pay

routine "incentive" fees to the chapter leadership to engage in

"personal" drug trafficking. As we explained above, the evidence

further shows that the maximum leadership and chapter leaders

worked, on behalf of the enterprise, to smuggle cellular phones

into correctional facilities for the purpose of conducting

drug-trafficking operations in a coordinated way and that the

leaders charged prisoners a monthly fee known as an "incentive"

for the use of those cellphones in furtherance of drug trafficking.

The evidence supportably shows, too, that chapter leaders across

the organization collected drug trafficking incentive fees and

reported on drug sales and incentive fees to the maximum leadership

on a monthly basis.

Millán-Machuca and Ramos-Baez do argue that "[n]othing

showed that 'personal drug' activities financially [benefited]"

the overall enterprise or the maximum leadership because the

chapters functioned autonomously, such that "those 'incentives'

remained with the chapter." But there is testimony in the record

from individuals supportably shown to be ÑETA members that flatly

contradicts this assertion and that states instead that some of

the proceeds of drug trafficking and some of the incentive payments

were sent back to the organization's maximum leadership. Thus, to

- 30 - the extent that Millán-Machuca and Ramos-Baez mean to argue that

the evidence suffices to show only "innumerable drug-trafficking

conspiracies" rather than a single one, we cannot agree. See

Twitty,

.3

3.

Millán-Machuca and Ramos-Baez separately contend that

the evidence does not suffice to prove beyond a reasonable doubt

that they agreed to join the drug-trafficking conspiracy alleged

in this count of the indictment, even if such a conspiracy

otherwise existed. We disagree.

With respect to Millán-Machuca, the same evidence that

we described in rejecting his challenge to the sufficiency of the

evidence for his RICO conspiracy conviction suffices to show that

he served as a maximum leader of ÑETA and oversaw activities

related to obtaining and using drug profits on ÑETA's behalf.

Thus, the evidence suffices to show that he committed the drug-

trafficking conspiracy offense charged. See Portela,

.

3Because we find that the evidence suffices to support both the RICO conspiracy charge and the drug-trafficking conspiracy charge as alleged in the indictment, we need not address Millán-Machuca's and Ramos-Baez's argument that there was a variance that was prejudicial. See United States v. Mangual-Santiago,

(1st Cir. 2009) (explaining that a variance occurs when "the evidence adduced at trial proves different facts than those alleged in the indictment" (quoting United States v. Yelaun,

(1st Cir. 2008))).

- 31 - With respect to Ramos-Baez, the evidence suffices to

show -- as he acknowledges -- that he obtained drugs from an

outside supplier and sold them throughout the Puerto Rico prison

system. He does contend, we recognize, that the evidence of his

drug dealing could merely show that he was trafficking his own

personal drugs and thus cannot suffice to show that he is guilty

of the alleged drug-trafficking conspiracy. But an alleged

coconspirator testified that Ramos-Baez paid incentives to the

leadership of the enterprise, which enabled Ramos-Baez to traffic

his personal drugs within the correctional facilities, and that

some of the profits from that drug dealing went to the enterprise.

That evidence supports a reasonable inference that Ramos-Baez

agreed to join the drug-trafficking conspiracy charged and not

that he merely trafficked drugs with others independent of the

trafficking conspiracy described in the indictment.

Millán-Machuca and Ramos-Baez do point out that not all

the testimony regarding their selling of drugs expressly linked

their personal drug sales to ÑETA. But substantial testimony

supportably shows that Millán-Machuca and Ramos-Baez helped to

coordinate and even lead ÑETA's activities, including with respect

to activities that supported ÑETA's drug-trafficking operations,

as we have described above. See Millán-Machuca, 991 F.3d at 19–

20 (testimony that defendant helped "in overseeing the

organization's drug trafficking operations" sufficed to support

- 32 - conviction under

). Thus, a rational juror could

find on this record that these appellants are guilty of

participating in the drug-trafficking conspiracy alleged in the

indictment.4

IV.

To this point, we have found no basis for deeming the

indictment defective or for reversing any of the convictions on

sufficiency-of-the-evidence grounds. What remains to be

considered are the appellants' various claims that their

convictions must be vacated due to trial errors.

Given the number of appellants and the number of distinct

challenges of this kind that are before us, there is considerable

ground to cover. We first address the challenges, brought by

Millán-Machuca and Rosario-Orangel, that are based on the

government's asserted failure, at times, to comply with its various

requirements to disclose evidence to the defense in advance of

trial. Then we take up Quiñones-Santiago's challenge to the

Millán-Machuca also contends that the testimony from a 4

cooperating witness, Orlando Ruiz-Acevedo, "connecting [Millán-Machuca] to a handful of specific drug-trafficking transactions" is insufficient support for his conviction of drug conspiracy in the quantities contained in the jury verdict. However, the quantities listed in that form pertain to the amount of heroin, cocaine, and marijuana that "the conspiracy involve[d]" (emphasis added). And Millán-Machuca develops no argument on appeal either that ÑETA collectively did not traffic those quantities of drugs or that, even if it did, it was not foreseeable to him that drugs would be trafficked in those quantities. C.f. United States v. Pizarro,

(1st Cir. 2014).

- 33 - government's assertedly improper statements during closing. After

that, we consider challenges by Millán-Machuca and Ramos-Baez to

the District Court's jury instructions. Finally, we address

various challenges to the District Court's evidentiary rulings

during trial.

As we will explain, we conclude that only one of these

challenges -- the one brought by Millán-Machuca, Rosario-Orangel,

and Quiñones-Santiago -- warrants a limited remand to the District

Court. That challenge concerns whether coconspirator statements

were admitted in violation of Petrozziello. Otherwise, we conclude

that the challenges are without merit, though we do also conclude

that our ruling on the Petrozziello issue precludes us from

definitively resolving at this juncture Millán-Machuca's claim of

cumulative error.

A.

Starting with the disclosure-based challenges, we first

consider the ones that concern asserted violations of the

government's obligations to disclose evidence to the defense in

advance of trial under the Jencks Act, Brady v. Maryland,

(1972), and Giglio v. United States,

(1972). These

challenges are brought by Millán-Machuca and Rosario-Orangel. We

will start with the challenges that Millán-Machuca brings. But,

before diving into the merits, we first provide the relevant legal

background.

- 34 - 1.

Brady and Giglio establish that "[a] defendant's right

to due process [under the Fifth Amendment to the U.S. Constitution]

is violated when the prosecution suppresses evidence that is both

favorable to the accused and material either to guilt or

innocence." United States v. Raymundí-Hernandez,

,

159 (1st Cir. 2020) (quoting Moreno-Morales v. United States,

(1st Cir. 2003)). To succeed on a Brady or Giglio

claim, the defendant must make three showings: First, that the

evidence at issue is favorable to him because it is exculpatory,

see Brady,

, or because it is impeaching of a

government witness, see Giglio,

; second, that the

government suppressed the evidence either willfully or

inadvertently, Raymundí-Hernández, 984 F.3d at 159-60; and,

finally, that prejudice ensued, id. The prejudice analysis reduces

to whether, in the absence of the suppressed evidence, the

defendant "received a fair trial, understood as a trial resulting

in a verdict worthy of confidence." Id. at 160 (quoting Kyles v.

Whitley,

(1995)).

The "impeachment evidence" that must be disclosed under

Giglio includes evidence of any prior statements by a witness that

are inconsistent with the testimony that the witness gives at

trial. See United States v. Meserve,

(1st Cir.

2001) (explaining that the credibility of a witness "may be

- 35 - impeached by asking him about prior inconsistent statements"

(citing Fed. R. Evid. 613(a) and United States v. Hudson,

, 953–54 (1st Cir. 1992))). A prior statement is "inconsistent"

if it is "irreconcilably at odds" with the one made at trial.

(quoting United States v. Winchenbach,

(1st Cir.

1999)). Thus, "[p]rior statements . . . that omit details included

in a witness's trial testimony are inconsistent if it would have

been 'natural' for the witness to include the details in the

earlier statement." Meserve, F.3d at 320-21 (quoting United States

v. Stock,

(D.C. Cir. 1991)).

Whether the non-disclosure of impeachment evidence was

prejudicial "turns on four factors . . . : Whether the impeachment

evidence (1) is strong, (2) impeaches on a collateral issue, (3)

is cumulative of other evidence on the record, and (4) the

impeachable witness's substantive testimony is corroborated by

other evidence in the record." United States v. Tucker,

, 207 (1st Cir. 2023). "The strength of impeachment evidence

and the effect of suppression are evaluated in the context of the

entire record to determine materiality." United States v. Paladin,

(1st Cir. 2014).

In addition to the government's due-process-based

disclosure requirements under Brady and Giglio, the government

also has a statutory disclosure obligation under the Jencks Act.

That statute requires a district court, on motion of the defendant,

- 36 - to order the government to produce "any statement" that "relates

to the subject matter as to which the witness has testified."

(b).

Under the Jencks Act, a "statement" includes "a written

statement made by said witness and signed or otherwise adopted or

approved by him" or "a substantially verbatim" contemporaneous

recording of his prior oral statement.

§ 3500(e). Any

substantially equivalent memorialization of a witness's statement

may be producible under § 3500(e)(1) if the statement was read

back to the witness and "adopted" by him. Campbell v. United

States,

(1963).

If the government fails to produce such a "Jencks

statement," the district court "shall strike" the witness's

testimony.

(d). But, like Brady and Giglio, the

Jencks Act does not provide grounds for relief on appeal "unless

the exclusion [of the materials from disclosure] or failure to

produce [them] prejudiced [the] defense." United States v.

Nelson-Rodriguez,

(1st Cir. 2003).

We review preserved claims of error in Brady, Giglio,

and Jencks Act "rulings for abuse of discretion, mindful that a

material error of law invariably constitutes an abuse of

discretion." United States v. Sepulveda-Hernandez,

(1st Cir. 2014) (internal citations omitted); see also Raymundí-

Hernández 984 F.3d at 159.

- 37 - 2.

With that background in place, we start with the

challenge under Giglio and the Jencks Act in which Millán-Machuca

contends that the District Court abused its discretion by denying

his motion to exclude testimony from a cooperating government

witness and alleged coconspirator, Orlando Ruiz-Acevedo. The

relevant facts and procedural history are as follows.

At trial, Millán-Machuca moved to exclude Ruiz-Acevedo's

testimony based on the fact that notes that the Federal Bureau of

Investigation (FBI) had taken during prior interviews of Ruiz-

Acevedo -- and that came to light during Ruiz-Acevedo's testimony

-- had not been disclosed. Millán-Machuca based his motion on the

ground that these notes should have been disclosed pursuant to the

Jencks Act. He also argued that any variance between Ruiz-

Acevedo's trial testimony and his statements as recorded in the

notes constituted impeachment material subject to disclosure under

Giglio.

The District Court reviewed the notes in camera and then

denied the objection to Ruiz-Acevedo's testimony on the following

grounds:

[W]hile the testimony adds inculpatory details . . . I know they are generally consistent with the criminal conduct, including the drug dealing set forth in the 302, so I decline to strike the testimony.

- 38 - . . . I agree with [counsel] that the remedy is the exclusion of the testimony, [but] I think that, under the circumstances of this case, that remedy exceeds the scope of the alleged . . . violations.

Following his convictions and sentence, Millán-Machuca

filed his notice of appeal. But after filing his opening brief,

though before the government filed its responsive brief, Millán-

Machuca moved in our Court to file, under seal, both the notes

from the interview with Ruiz-Acevedo and the transcript of the

translation of those notes from the District Court's in camera

review. We granted the motion.

Millán-Machuca argued in the motion, as he argues in his

reply brief on appeal, that the notes and transcript show that

there are significant differences between the testimony that

Ruiz-Acevedo gave at trial and what he said during his pre-trial

interview with law enforcement. He contends that these differences

include: (1) that during his pre-trial interview, Ruiz-Acevedo

described quantities of drugs trafficked by ÑETA that differed

significantly from the quantities to which he testified at trial;

and (2) that Ruiz-Acevedo spent time in "segregation" contrary to

his description of his incarceration at trial. Millán-Machuca

then goes on to argue that these differences reveal inconsistencies

between Ruiz-Acevedo's trial testimony and what he said during the

pre-trial interview with law enforcement, such that the government

was obligated to disclose the notes prior to trial not only under

- 39 - the Jencks Act but also as impeachment material under Giglio. See

Meserve,

.

To show prejudice, Millán-Machuca asserts that the

government's failure to disclose the notes "effectively hamstrung

the defense, precluding it from investigating the statements and

conducting a meaningful cross-examination" of Ruiz-Acevedo.5 He

then further contends that the testimony that Ruiz-Acevedo gave

was significant because Ruiz-Acevedo was the only witness to

Millán-Machuca's personal involvement in drug trafficking.

There is force to Millán-Machuca's contention that the

government was obliged, at least under Giglio, to disclose the

notes in question. But, even so, we conclude that this challenge

fails on prejudice grounds.

The differences that Millán-Machuca highlights between

what the notes indicate Ruiz-Acevedo said during his interview

with law enforcement and his testimony at trial concern only

whether the quantity of heroin that Ruiz-Acevedo said was

trafficked by ÑETA through one prison in a given year was roughly

5 Millán-Machuca argues in the alternative that we must at least remand for the District Court to conduct a further review of whether the evidence in question gave rise to disclosure obligations under the Jencks Act and Giglio. See, e.g., United States v. Colón-Díaz,

(1st Cir. 2008) ("When confronted with uncertainties of this type in the past, we have sometimes remanded the case to the district court to clarify the record."). We need not do so here because the record makes clear that Millán-Machuca was not prejudiced.

- 40 - three or five kilograms, and Ruiz-Acevedo's own prison

disciplinary history. Thus, the failure to disclose the notes

prior to trial did not prevent Millán-Machuca from exploring

inconsistencies that were central either to the substance of Ruiz-

Acevedo's testimony or to Ruiz-Acevedo's credibility. See Tucker,

61 F.4th at 207 (considering in a Giglio prejudice inquiry, among

other factors, the strength and centrality of undisclosed

impeachment evidence).

Moreover, independent of Ruiz-Acevedo's testimony, the

government put forth substantial evidence of Millán-Machuca's

guilt. That evidence took the form of recorded phone calls and

testimony by three other coconspirators that, at least in

combination, was more than sufficient to show that Millán-Machuca

coordinated and led ÑETA's activities, including by overseeing its

drug sales and profits, and that he supplied drugs for other ÑETA

members to sell in prison. C.f. Giglio,

(reversing where the improperly suppressed impeachment evidence

revealed a potential motive to provide false testimony for the one

witness on whom "the [g]overnment's case depended almost

entirely").

Finally, while Ruiz-Acevedo was the sole witness to

testify that Millán-Machuca personally trafficked drugs, as we

explained above, the government did not need to prove that Millán-

Machuca personally engaged in any drug transactions of his own.

- 41 - To establish the elements of the conspiracy offenses charged the

government needed to prove only that "the defendant agreed that at

least two acts of racketeering would be committed in furtherance

of the conspiracy." Millán-Machuca, 991 F.3d at 18 (citing

Leoner-Aguirre, 939 F.3d at 317).

Thus, Millán-Machuca has not shown that the claimed

Giglio or Jencks Act violations give rise to the requisite

prejudice. See Nelson-Rodriguez,

; see also United

States v. Duval,

(1st Cir. 2007) (noting that the

tests for prejudice under Jencks and Giglio are similar). For

that reason, we reject this challenge.

3.

Millán-Machuca also challenges his convictions based on

what he contends is a different Giglio violation. Here, he claims

that another key witness, Alex Miguel Cruz-Santos ("Cuquito"),

admitted to having misidentified one of Millán-Machuca's co-

defendants -- Claudio-Morales, who does not himself bring a similar

challenge -- in a certified transcript of a phone call.

Millán-Machuca contends, however, that the government failed to

meet its obligation to disclose that Cuquito had recanted his prior

identification of Claudio-Morales as one of the participants in

that call and that the recantation was impeachment material for

Giglio purposes. Millán-Machuca thus contends that the District

- 42 - Court abused its discretion under Giglio in denying his motion to

exclude Cuquito's testimony.

The relevant factual background as to this challenge is

as follows. In previous trials of other defendants named in the

underlying indictment, the government had submitted a certified

transcript of a phone call between four alleged members of the

conspiracy. The introductory section of that transcript listed

Claudio-Morales as one of the participants in the call. The

government admitted at Millán-Machuca's trial, however, that,

while preparing for this trial, Cuquito notified prosecutors that

his prior identification of Claudio-Morales as one of the

participants in the phone call was incorrect.

Millán-Machuca contends that, in response to the

recantation of the identification, the government deleted

Claudio-Morales's name from the introductory section of the

certified transcript of the call and produced a new, altered but

not recertified transcript in June 2019, which was then submitted

at Millán-Machuca's trial. The government, however, did not inform

Millán-Machuca of either the alteration or Cuquito's recantation

before trial. Rather, Millán-Machuca learned of the recantation

once trial was underway when his counsel compared the certified

- 43 - transcript used in prior trials to the version of the transcript

the government produced shortly before the trial began.

The government responds that Claudio-Morales was

"eliminated from the list of identified speakers" in the

introductory section of the transcript because the cooperating

witness clarified that Claudio-Morales was not the fourth speaker

in the phone conversation and that a certifying translator

"certifies the content" of the phone conversation rather than the

identity of the speakers. The government thus contends that,

because the transcript did not need to be recertified, it had no

obligation to disclose the change to the transcript or to inform

Millán-Machuca about the recantation of the identification.

Again, we may assume that Millán-Machuca can show that

the government failed to produce potential impeachment evidence,

as we conclude that his Giglio challenge fails on prejudice

grounds. Cuquito's previously having misidentified Claudio-

Morales's voice in a recording does not directly cast doubt on

Cuquito's testimony regarding Millán-Machuca or his credibility in

general. The impeachment value of Cuquito's erroneous

identification of Claudio-Morales's voice is primarily that it

provides a reason to doubt only his familiarity with, and therefore

his testimony about, a different co-defendant -- Claudio-Morales.

And, in fact, Millán-Machuca was able to cross-examine Cuquito

- 44 - regarding the misidentification.6 Moreover, as noted above, the

evidence against Millán-Machuca was quite strong and included

testimony from several witnesses other than Cuquito as well as

other recordings. See Tucker, 61 F.4th at 207.

Thus, we conclude that Millán-Machuca has not met his

burden to show prejudice. See Nelson-Rodriguez,

;

Raymundí-Hernández, 984 F.3d at 160. So, we reject this challenge

as well.

6 Millán-Machuca also claims he was prejudiced by the government's failure to disclose the misidentification before trial because this failure prevented him from effectively challenging the "suggestiveness" of the voice-identification procedure through a pre-trial in limine motion seeking the suppression of "some -- or all -- of the identifications." However, Millán-Machuca made exactly such a motion orally and then in writing to the District Court during trial once the misidentification came out. After hearing Millán-Machuca's arguments, the District Court denied the motion and allowed the jury to see a transcript that included Cuquito's voice identifications. On appeal Millán-Machuca does not explain why an earlier disclosure regarding the misidentification would have allowed him to present the issue of suggestiveness more effectively nor does he directly challenge the district court's denial of his motion to suppress the identifications. See United States v. Devin,

(1st Cir. 1990) ("A defendant who claims that his hand was prematurely forced by delayed disclosure cannot rely on wholly conclusory assertions but must bear the burden of producing, at the very least, a prima facie showing of a plausible strategic option which the delay foreclosed."). Further Millán- Machuca does not explain why, assuming he could have secured the suppression of Cuquito's other identifications, there is "a reasonable probability that . . . the result of the proceeding would have been different" had the jury not seen those identifications. Tucker, 61 F.4th at 207.

- 45 - 4.

The next disclosure-based challenge that we must address

is brought by Rosario-Orangel. He claims, on the basis of an

alleged Giglio violation, that the District Court abused its

discretion in denying his motion to strike the testimony of one of

the government's cooperating witnesses, Miguel Álvarez-Medina. We

disagree.

Álvarez-Medina was one of three witnesses who testified

that Rosario-Orangel was a ÑETA chapter leader at the Bayamón

prison. Rosario-Orangel contends that the government improperly

withheld the fact that Álvarez-Medina had admitted, prior to trial,

that he had misidentified Rosario-Orangel as another person who

shares one of Rosario-Orangel's nicknames ("Cholon") when Álvarez-

Medina was shown a picture of Rosario-Orangel during his grand

jury testimony. In his grand jury testimony, Álvarez-Medina

identified a man named "Cholon Caquias" when he was shown a picture

of Rosario-Orangel. But there is no dispute that, in fact, Cholon

Caquias was not housed at Bayamón prison, which is the prison at

which Rosario-Orangel was accused of holding a leadership role in

ÑETA.

A few weeks before trial, after previously refusing to

do so, the government produced for the defense both the photograph

and Álvarez-Medina's statement before the grand jury. Rosario-

Orangel contends that the government's production of this material

- 46 - failed to disclose either "the fact that the grand jury testimony

was not about Rosario but someone else" or the fact that Álvarez-

Medina "had recanted his grand jury testimony."

Rosario-Orangel appears to be arguing that the portion

of the grand jury testimony that was disclosed did not itself make

clear that the misidentification had occurred, because in the

disclosed portion of the testimony Álvarez-Medina only refers to

a "Cholon," who "was the leader . . . of Main Ponce," and that

reference on its face could have referred to Rosario-Orangel.

Thus, Rosario-Orangel maintains, he did not realize that the

misidentification had occurred or learn of the recantation of the

identification until trial.

In that regard, Rosario-Orangel contends that he came to

the realization that there had been a misidentification only when

Álvarez-Medina admitted during his direct examination by the

government that he had "made a mistake" in his grand jury testimony

when he "talked about Cholo[n] Caquias" after being shown a picture

of Rosario-Orangel. Rosario-Orangel goes on to argue that the

withholding of the information not only kept him from learning of

the misidentification in advance of trial but also mattered because

the withheld information was "highly impeaching" of

Álvarez-Medina's "uncorroborated" testimony, which

Rosario-Orangel asserts was "essential to [his] conviction." To

that last point, Rosario-Orangel argues that the delayed and

- 47 - incomplete disclosure of the information deprived him of the

opportunity to show that "Cholon Caquias" should have been charged

in Rosario-Orangel's place. Accordingly, he contends he was

prejudiced by the asserted Giglio violation.

Rosario-Orangel failed to raise this Giglio claim at

trial however, when, by his own account, the asserted violation

first came to light. He also did not raise it in a post-trial

Rule 29 or Rule 33 motion. We therefore review this claim only

for plain error, which means that Rosario-Orangel must show: "(1)

that an error occurred (2) which was clear or obvious and which

not only (3) affected [his] substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." United States v. Sanchez-Berrios,

(1st Cir. 2005). Rosario-Orangel has not met his

burden to show that his substantial rights or the fairness and

integrity of the trial were affected by the government's delayed

disclosure.

Rosario-Orangel emphasizes that his chief line of

defense was that he had been misidentified as the "Cholon" who

other cooperating witnesses testified was a chapter leader for

ÑETA. Thus, Rosario-Orangel contends, the claimed Giglio

violation was prejudicial because it prevented him from further

developing this theory of misidentification. But the record shows

that Rosario-Orangel was able to "extensively cross-examine[]"

- 48 - Álvarez-Medina about this misidentification and to "argue to the

jury" that Álvarez-Medina's testimony should be discounted.

United States v. Rodríguez-Rivera,

(1st Cir. 2007)

(finding defendant failed to carry burden to show prejudice in

such a situation).

Rosario-Orangel does assert that he might have

"redirected his defense investigation" into the background of

Cholon Caquias. Rosario-Orangel then goes on to claim that doing

so might have shown "that it was Cholon Caquias who should have

been charged, not Rosario." But "[a] defendant who claims that"

he was prejudiced "by delayed disclosure cannot rely on wholly

conclusory assertions but must bear the burden of producing, at

the very least, a prima facie showing of a plausible strategic

option which the delay foreclosed." Devin,

. And

Rosario-Orangel makes no argument as to why there is a reasonable

possibility that Cholon Caquias was actually the person who held

a leadership role at Bayamón prison rather than Rosario-Orangel.

We thus conclude that Rosario-Orangel has failed to carry his

burden on plain error.

B.

In addition to the Jencks Act, Giglio, and Brady

challenges that we have addressed so far, there is still one more

disclosure-based challenge to consider. Millán-Machuca asserts on

appeal that, given the requirements of Federal Rule of Criminal

- 49 - Procedure 16, the District Court abused its discretion by denying

his motion to compel the government to turn over certain documents

that had been created and maintained by the PRDCR and that he

alleges were in the government's possession at the time of the

pre-trial proceedings. Here, too, we are not persuaded.

The documents at issue include prior interviews of

cooperating witnesses in the federal investigation by officials in

the PRDCR and other unspecified documents. Before trial,

Millán-Machuca was granted an ex parte discovery order for such

documents that had been generated and maintained by the PRDCR.

The PRDCR responded to that order by claiming that it

could not produce the documents because the FBI had confiscated

the originals and that the PRDCR had no copies. Millán-Machuca

then requested the documents from the government. The government

asserted that it had already handed over all material in its

possession that fell within Millán-Machuca's request.

Under Rule 16, "the government must permit the defendant

to inspect [documents, photos, and other records] or copies or

portions of any of these items, if the item is within the

government's possession, custody, or control" and "the item is

material to preparing the [defendant's] defense." United States

v. Goris,

(1st Cir. 2017) (quoting Fed. R. Crim.

P. 16(a)(1)(E)). But, in "order to uphold [the] denial of a

request for additional discovery, we do not demand epistemological

- 50 - certainty that no discoverable information was withheld from the

defendant."

. And we review the denial of a motion to

compel discovery only for an abuse of discretion. United States

v. Chan,

, 62 (1st Cir. 2020) (citing United States v.

Flete-García,

(1st Cir. 2019)).

Millán-Machuca contends that the District Court erred in

taking the government at its word that it had disclosed all

material that fell within Millán-Machuca's discovery requests for

the PRDCR documents. But Millán-Machuca fails to specify on appeal

the documents that the government withheld. Nor does he

demonstrate (rather than merely speculate) that -- even assuming

the relevant interviews of cooperating witnesses and other

unspecified documents still existed at all -- the documents in

question were likely in the government's possession. We thus see

no basis for concluding that there was an abuse of discretion.

C.

Having resolved the disclosure-based challenges, we now

turn to the challenges that concern whether the District Court

erred by failing to cure or otherwise address two of the

government's arguments to the jury. Only Quiñones-Santiago brings

these challenges. Specifically, he takes issue with (1) the

government's statement in its closing argument about the role that

the "trafficking of cell phones" played in the alleged conspiracies

and (2) the government's statements in its closing argument that

- 51 - he asserts conflated the "enterprise" with the "liable person."

There is no merit to either challenge.

1.

It is well established that the government may not use

"improper methods calculated to produce a wrongful conviction" at

trial. United States v. Young,

(1985) (quoting

Berger v. United States,

(1935)). Thus, the

Supreme Court has explained that the government may neither

misstate the law nor mislead the jury in its arguments in a manner

that "infect[s] the trial with unfairness as to make the resulting

conviction a denial of due process." Sawyer v. Smith,

(1990).

To determine whether an "improper" or misleading

statement by the government in its argument to the jury was so

prejudicial as to warrant a new trial, we ask whether the statement

in the context of the trial "'so poisoned the well that the trial's

outcome was likely affected,'" considering "(1) the severity of

the misconduct, including whether it was isolated and/or

deliberate; (2) whether curative instructions were given; and (3)

the strength of the evidence against the defendant." United States

v. González-Pérez,

(1st Cir. 2015) (quoting United

States v. Rodríguez,

(1st Cir. 2012)); see, e.g.,

United States v. Freitas,

(1st Cir. 2018). When

a defendant timely objects to a comment made by the government

- 52 - during closing argument (and the government concedes that such is

the case here), we review a claim "that the contested comment was

improper" de novo. Freitas,

(citing Rodríguez,

).

2.

We begin with the challenge that pertains to the

government's statements to the jury regarding the appellants'

trafficking of cellphones into prisons. Quiñones-Santiago takes

aim at the statement by the government during closing arguments

that was made in response to the defense's argument that cellphone

trafficking "is not a predicate RICO act." The government argued

to the jury in the statement that, "if you engage in cellphone

trafficking, you aid and abet, and you conspire to engage in drug

trafficking." Quiñones-Santiago's counsel objected to the

statement, and the District Court immediately overruled the

objection.

Quiñones-Santiago contends, rightly, that trafficking

cellphones is not itself a predicate RICO crime or a federal crime

in its own right. He further contends that the statement is

especially concerning because of the emphasis that the government

placed on cellphone trafficking throughout his trial. But we

conclude that the statement at issue, when considered in context,

merely clarified that the evidence of the cellphone trafficking

showed the role that the trafficking of cellphones played within

- 53 - ÑETA's alleged drug trafficking operation. Thus, when the

government argued that cellphone trafficking and drug trafficking

went "hand-in-hand" and that defendants who "engage[d] in

cellphone trafficking . . . aid[ed] and abet[ted] . . . drug

trafficking," we do not understand the government to have been

incorrectly suggesting that cellphone trafficking is itself a

predicate racketeering activity or a federal crime in its own

right. Rather, read in context, the statement by the government

was simply contending that the jury could, in finding that the

appellants conspired to engage in drug trafficking, consider

evidence that they participated in the trafficking of cellphones

into the prisons given what the evidence supportably showed about

how the enterprise used the trafficked cell phones in its drug

trafficking activities. C.f. United States v. Ayala-Garcia,

(1st Cir. 2009) ("Our cases establish that some leeway

is appropriate when the government's challenged comments may

fairly be seen as a response to comparable remarks by defense

counsel.").

Moreover, there is little risk that the statement in

question might have led the jury to understand cellphone

trafficking to constitute a standalone "racketeering activity."

The District Court instructed the jury that "the definition of

racketeering acts is limited to a specific list of crimes set by

statute," that the racketeering acts charged in the indictment in

- 54 - this case were "drug trafficking" and "murder," and that "[i]n

order to be convicted of conspiracy to commit racketeering, the

[g]overnment must prove that the defendants agreed that one or

more members [of the] enterprise would commit crimes that qualify

as racketeering acts by law and that are specified in the

indictment" (emphasis added).

Nor is there any risk that a juror could have thought

that cellphone trafficking was, in and of itself, a crime under

and 841(a)(1). The instructions the jury received

made clear that, to return a guilty verdict on the drug trafficking

conspiracy charge, the jury had to find, for each appellant, that

he conspired to traffic specific quantities of specific controlled

substances.

Quiñones-Santiago does assert that the District Court's

instructions only made matters worse by expansively defining

related racketeering acts as follows: "Examples of related

racketeering acts are acts that benefit the enterprise, that are

authorized by the enterprise, or that further or promote the

purposes of the enterprise." But, in context, the District Court

was explaining that "acts" that otherwise constitute racketeering

acts -- ones that "qualify as racketeering acts by law and that

[were] specified in the indictment" -- qualify as racketeering

acts only when they are intended to "benefit the enterprise," are

"authorized by the enterprise," or are undertaken to "further or

- 55 - promote the purposes of the enterprise." Thus, we are not

persuaded that the government's statement, even if improper when

read in isolation, "infect[ed] the trial with unfairness as to

make the resulting conviction a denial of due process." Sawyer,

.

3.

Quiñones-Santiago separately contends that the

government's assertedly "misleading use" of the "'enterprise' as

the 'liable person'" during the government's closing argument

confused the jury. And, he contends, this portion of the

government's closing argument prejudiced him by permitting the

government to "obtain[] a guilty verdict" on the basis of his

association with ÑETA, rather than on the basis of what

Quiñones-Santiago himself did.

The statement that Quiñones-Santiago challenges,

however, was simply that "the evidence we presented to you

throughout this trial showed that La Asociación ÑETA distributed

multi-kilogram quantities of heroin, cocaine and marijuana." The

government did not suggest to the jury in that statement that the

government could prove the appellants' guilt simply on the basis

of their membership in ÑETA. And the District Court's jury

instructions named each appellant and explained that "the

[g]overnment must prove beyond a reasonable doubt" that "the

defendants knowingly and willfully agreed to participate in the

- 56 - conspiracy charged in the indictment," meaning that they agreed to

a conspiracy involving a pattern of racketeering activity. Thus,

this challenge is without merit.

D.

Next, we consider challenges to the jury

instructions -- or rather, to jury instructions that were requested

but not given. The first of these challenges is brought by

Millán-Machuca and Ramos-Baez, who contend that the District Court

erred by not giving a jury instruction that they had requested

concerning "multiple conspiracies." The second is brought only by

Millán-Machuca and pertains to an instruction that he requested

that would have stated that mere proximity to, or knowledge of,

illegal activities is not a basis for finding guilt. We are not

persuaded by either challenge given the instructions that the

District Court did provide.

1.

Millán-Machuca and Ramos-Baez argue that the District

Court erred by refusing to grant their request for an instruction

that the jury should consider whether there were narrower

conspiracies than the overarching conspiracies charged in the

indictment and that acquittal would have been required if the jury

found that these appellants had not joined the charged conspiracies

even if they had joined other conspiracies. Millán-Machuca and

Ramos-Baez contend that such an instruction would have been

- 57 - particularly appropriate in their cases because the evidence

supportably shows that there were only multiple conspiracies -- on

both the RICO and drug-trafficking conspiracy counts -- across

different prisons and different groups of inmates.

This Court typically applies a three-part test to

determine whether it was reversible error to deny a requested

instruction. That test requires a determination as to whether the

proposed instruction: "(1) [was] substantively correct [as a

matter of law]; (2) was not substantially covered in the charge

actually delivered to the jury; and (3) concern[ed] an important

point in the trial so that the failure to give it seriously

impaired the defendant's ability to effectively present a given

defense." González-Pérez,

(quoting United States

v. González-Soberal,

(1st Cir. 1997)). "Under the

third requirement, 'reversal is not required unless a defendant

suffers substantial prejudice.'"

(quoting United States v. De

La Cruz,

(1st Cir. 2008)).

The government does not dispute that the first and third

prongs of the three-part test were satisfied. But the government

argues with respect to the second prong of the test that the

instruction that the District Court gave substantially covered the

requested instruction. We agree.

The District Court instructed the jury as to both the

RICO conspiracy and drug-trafficking conspiracy charges that the

- 58 - government had the burden of proving beyond a reasonable doubt the

existence of the specific agreement charged in the indictment "and

not some other agreement." Then, as the government points out,

the District Court expressly instructed the jurors -- for each of

the conspiracy charges -- that:

If you find beyond a reasonable doubt that a conspiracy of some kind existed between the defendant and some other person, that, by itself, is not sufficient to find the defendant guilty.

. . . [T]he Government is required to prove, beyond a reasonable doubt, the existence of the conspiracy specified in the indictment.

We thus conclude that the District Court's instructions conveyed

the substance of the instruction that the appellants requested:

that the appellants must be acquitted if the jury found that they

were not members of the charged overarching conspiracies, even if

it found that they may have been members of some other conspiracy.

See, e.g., United States v. Belanger,

(1st Cir.

2018) (citing United States v. Walker-Couvertier,

(1st Cir. 2017)); see also, e.g., United States v. Si,

(9th Cir. 2003) (noting that a conspiracy instruction

that contains language similar to the language used by the district

court obviates the need for further instructions on multiple

conspiracies).

- 59 - 2.

Millán-Machuca also takes aim at the District Court's

refusal to give his requested instruction that the "mere presence

at the scene of a crime, or merely knowing that a crime is being

committed or is about to be committed, is not sufficient conduct

to find the defendant committed that crime." He contends that the

instruction would have clarified that, even if Millán-Machuca was

aware of drug-trafficking activities, such knowledge would not be

sufficient for conviction. Millán-Machuca argues that the

requested instruction was particularly warranted here because his

defense theory emphasized that his goals as a ÑETA leader "were

legitimate and that he made considerable efforts on legitimate

pursuits on behalf of inmates [and, thus, something] more than his

failure to stop others from engaging in drug-trafficking was

required to sustain his conviction."

But the challenge fails because this requested

instruction, too, was "substantially covered in the charge

actually delivered to the jury." González-Pérez,

.

The District Court instructed the jurors that they had to

"unanimously agree as to each defendant individually on which type

or types of racketeering activity that the defendant agreed the

enterprise would conduct" and that they had to find that each

defendant "intended to agree and shared a general understanding

about the crime." In addition, the District Court instructed the

- 60 - jurors that "[m]ere association with other persons, even persons

involved in criminal activity does not, by itself, establish the

existence of a conspiracy." Thus, the instructions made clear

that the government had to prove more than either a defendant's

mere presence at a place where criminal activity occurred or mere

awareness of that criminal activity.

E.

We turn, then, to the various evidentiary challenges

brought by several of the appellants. We conclude that all but

the last of these challenges are without merit.

1.

We first address Rosario-Orangel's challenges that

pertain to the assertedly erroneous admission of evidence

regarding what he refers to as "street point" drug sales. The

evidence consists of a transcript of a phone conversation involving

himself and a co-defendant, Cynthia González-Landrau

("González-Landrau"), who allegedly worked outside of the prison

system.

According to Rosario-Orangel, that evidence was not

relevant to any of the charges against him because those charges

concerned inside-the-prison drug trafficking. He goes on to

contend that the evidence, even if relevant, was unduly

prejudicial. Finally, he contends that, in any event, the

- 61 - admission of the evidence resulted in a constructive amendment to

the indictment. We are not persuaded.

a.

Under the Federal Rules of Evidence, "relevant" evidence

is any evidence that has a "tendency to make a fact" that is "of

consequence in determining the action . . . more or less probable

than it would be without the evidence." Fed. R. Evid. 401.

Relevant evidence, though generally "admissible," Fed. R. Evid.

402, must be excluded "if its probative value is substantially

outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issue, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence." Fed.

R. Evid. 403. Because the "duty of weighing the probative value

of the . . . evidence against its prejudicial effect rest[s]

squarely on the shoulders of the trial judge," United States v.

Shea,

(1st Cir. 1998), we will rarely reverse "a

district court's . . . judgment concerning the relative weighing

of probative value and unfair effect," United States v. Smith,

(1st Cir. 2002).

The phone conversation in question was between

Rosario-Orangel and González-Landrau. It centered on

González-Landrau's drug dealing in a nearby housing project. The

conversation did not expressly mention González-Landrau supplying

drugs to ÑETA or its members inside the prison. The conversation

- 62 - included a discussion, however, between Rosario-Orangel and

González-Landrau about the need to set up a meeting with other

people who were selling drugs. And that is significant because

other evidence at trial tended to show that González-Landrau was

known by witnesses to be serving at the time of the phone call as

a conduit between ÑETA and the sources from which that entity

obtained substances that its members then smuggled into the

prisons. We thus agree with the government that the evidence of

what was discussed on the phone call between Rosario-Orangel and

González-Landrau was relevant, as that evidence tended to show

that ÑETA members -- including Rosario-Orangel -- could arrange

for the trafficking of drugs even while imprisoned.

We also agree with the government that the District Court

did not abuse its discretion in determining that the evidence was

not unduly prejudicial. A district court "is not required to scrub

the trial clean of all evidence that may have an emotional impact."

United States v. Morales-Aldahondo,

(1st Cir.

2008). In addition, the District Court's instructions to the jury

emphasized that it could convict the appellants only if it found

that the government proved, beyond a reasonable doubt, that they

- 63 - participated in the conspiracies specifically charged in the

indictment.

b.

Rosario-Orangel separately contends that the admission

of the evidence of the "street point" drug sales -- in particular,

the evidence of the phone call between Rosario-Orangel and

González-Landrau -- resulted in a constructive amendment to the

indictment. Rosario-Orangel is right that he has a "Fifth

Amendment right to indictment by a grand jury" and a "Sixth

Amendment right to be informed of the crime charged." United

States v. McBride,

, 32 (1st Cir. 2020); see Sitrone v.

United States,

(1960). He is also right that

this constitutional guarantee precludes the government from

amending the charges that were brought against him (i.e., the

indictment) after the grand jury issued it against him by, for

example, introducing evidence of different crimes that is not

directly relevant to the offenses charged in the indictment.

United States v. Muñoz-Franco,

, 65 (1st Cir. 2007).

But, even reviewing de novo, see McBride, 962 F.3d at 31, we reject

this challenge because the indictment alleged that ÑETA smuggled

drugs into the prisons with the help of civilians inside and

- 64 - outside the prisons and the evidence at issue bore directly on

that charged offense.7 See Muñoz-Franco, 487 F.3d at 65.

2.

The next evidentiary challenge that we address concerns

whether the District Court erred by failing under Federal Rule of

Evidence 701 to strike the testimony of Álvarez-Medina, a

cooperating witness, about his opinion regarding the meaning of

certain terms used in a series of texts found on a phone associated

with ÑETA. This challenge is brought by Rosario-Orangel, who

objects specifically to the portion of Álvarez-Medina's testimony

in which that cooperating witness testified that he believed one

of the participants in the text thread, who was identified only as

"Barba," was Rosario-Orangel, who went by that nickname. Rosario-

Orangel also objects to the portion of Álvarez-Medina's testimony

in which Álvarez-Medina testified that he believed that "Barba"

was referring in that text exchange -- based on "Barba's" use of

the code word "ticket" -- to the proceeds of a drug transaction.

Álvarez-Medina further testified that the conversation therefore

7 The government does suggest that Rosario-Orangel's objection below was limited to his claim that the evidence relating to his phone call with González-Landrau was not relevant, unfairly prejudicial, or both and that his claim that the evidence resulted in a constructive amendment to the indictment is therefore subject only to plain error review. See United States v. Paredes-Rodríguez,

(1st Cir. 1998). But we need not address that contention because, even assuming de novo review applies, we are not persuaded that the evidence resulted in a constructive amendment to the indictment.

- 65 - indicated that "Barba" was owed money from the sale of drugs

"Barba" had provided.

The parties agree that the testimony by Álvarez-Medina

is "properly characterized as lay opinion testimony under Federal

Rule of Evidence 701." See United States v. Obiora,

(1st Cir. 2018) (explaining that the "testimony of a member of

a drug-trafficking ring interpreting recorded phone calls is lay

opinion testimony" (citing United States v. Valbrun,

(1st Cir. 2017))). The question, therefore, is whether the

testimony complied with Rule 701, which "allows lay opinion

testimony that is '(a) rationally based on the witness's

perception; (b) helpful to clearly understanding the witness's

testimony or to determining a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge within the

scope of Rule 702.'"

at 561-62 (quoting Fed. R. Evid. 701).

With respect to Álvarez-Medina's testimony regarding the

meaning of the term "ticket," Rosario-Orangel argues that this

testimony was inadmissible as it was not based on the witness's

own rational perceptions because Álvarez-Medina denied direct

involvement in any of ÑETA's criminal activities. We see no merit

to this argument, even assuming that -- contrary to the

government's position -- it is preserved.

Álvarez-Medina testified that he was member of ÑETA and

served on the Dialogue Committee, a position through which he had

- 66 - contact with leadership and worked alongside other members who

were involved in the drug-trafficking aspect of the enterprise.

He further testified to his personal knowledge of ÑETA's criminal

activities and internal customs and operations. We thus reject

Rosario-Orangel's contention that Álvarez-Medina's testimony about

the meaning of the word "ticket" in the context of the conversation

was not rationally based on his own perceptions as required by

Rule 701. See Obiora,

("A lay witness may testify

based on personal knowledge to the meaning of words used in a

conversation to which he was not a party.").

Rosario-Orangel does also contend that the District

Court reversibly erred by failing to strike Álvarez-Medina's

testimony identifying the "Barba" in the text conversation.

Rosario-Orangel argues that the District Court abused its

discretion in not striking this testimony because it was not

"helpful" to clearly understanding the witness's testimony.

As Rosario-Orangel points out, the District Court did

initially sustain an objection to the government's questioning of

Álvarez-Medina about to whom "Barba" referred but then refused to

strike Álvarez-Medina's response, which the jury appears to have

heard, that "Barba" referred to Rosario-Orangel. In arguing that

it was a prejudicial abuse of discretion for the District Court

not to strike the testimony and instruct the jury to disregard it,

Rosario-Orangel emphasizes that we have held that Rule 701

- 67 - "requires exclusion where the witness is no better suited than the

jury to make the judgment at issue,"

(emphasis added)

(quoting Valbrun,

). And, Rosario-Orangel argues,

Álvarez-Medina, who was not a party to the text conversation, was

no better suited than the jury to determine the identity of the

"Barba" in the text exchange, given that the jury already had heard

testimony that one of Rosario-Orangel's nicknames was "Barba."

"We will find non-constitutional evidentiary errors

harmless where it is 'highly probable that the errors did not

influence the verdict.'" United States v. Sanabria,

(1st Cir. 2011) (quoting United States v. Meises,

(1st Cir. 2011)). And, while the government bears the burden

of showing harmlessness, the requisite "case-specific inquiry"

into factors including "the centrality of the tainted evidence,

its uniqueness, its prejudicial impact, the use to which the

evidence was put, and the relative strengths of the parties'

cases[,]" United States v. Garcia-Morales,

(1st

Cir. 2004), leads us to conclude that any error here was harmless.

Prior to the testimony by Álvarez-Medina regarding the

text thread, he had testified that Rosario-Orangel went by the

name "Barba." Álvarez-Medina had also testified by that time,

without objection, that he was aware of no other person going by

the nickname "Barba" in the Bayamón prison where both he and

Rosario-Orangel were housed and where the cellphone containing the

- 68 - text conversation was found. Thus, there was a solid basis, apart

from the testimony that is the target of the challenge, on which

the jury could rely to infer that Rosario-Orangel was the "Barba"

in the text conversation. Indeed, as the District Court itself

stated when it initially sustained Rosario-Orangel's objection to

the identification, given the testimony that the jury had already

heard, "they know who Barba is . . . that speaks for itself."

Moreover, the case against Rosario-Orangel did not

depend centrally on the text conversation at issue. The evidence

against Rosario-Orangel also included a wiretapped phone

conversation between him and one of the enterprise's outside drug

suppliers and the testimony of three other cooperating witnesses

who testified about his participation in the enterprise. Thus, we

conclude that the government has carried its burden to show that

it is highly probable that the jury's verdict convicting Rosario-

Orangel was not influenced by any potential error in not striking

Álvarez-Medina's testimony that Rosario-Orangel was the "Barba" in

the text conversation. See Sanabria,

.

3.

We come, then, to the final evidentiary challenge. It

concerns whether the District Court complied with the requirements

of Petrozziello and is brought by Millán-Machuca, Rosario-Orangel,

and Quiñones-Santiago. These three appellants take aim at the

admission of certain statements at trial that were made by non-

- 69 - testifying alleged coconspirators on the ground that such

statements were inadmissible hearsay. For the reasons that we

will next explain, we conclude that this challenge requires a

limited remand to the District Court.

a.

The Federal Rules of Evidence define "hearsay" as an

out-of-court "statement" that "a party offers in evidence to prove

the truth of the matter asserted in the statement." Fed. R. Evid.

801(c). The admission of such statements into evidence is barred

unless "a federal statute," the Federal Rules of Evidence, or

"other rules prescribed by the Supreme Court" provide otherwise.

Fed. R. Evid. 802.

Under Rule 801(d)(2)(E), evidence of an out-of-court

statement that was "made by [a defendant]'s coconspirator during

and in furtherance of the conspiracy" does not qualify as

"hearsay." Such a statement thus does not fall within Rule 802's

bar on the admission of hearsay, see United States v. Ford,

(1st Cir. 2016) (citing Petrozziello,

), and so may be considered for the truth of the matter asserted

in that statement, see United States v. Colón-Díaz,

(1st Cir. 2008).

In this Circuit, a statement may be admitted for the

truth of the matter asserted under Rule 801(d)(2)(E) if it

satisfies the requirements set forth in Petrozziello. See United

- 70 - States v. Ciresi,

(1st Cir. 2012); United States

v. Sepulveda,

(1st Cir. 1993). Petrozziello

requires that the party seeking admission of a statement as a co-

conspirator statement must establish by a preponderance of the

evidence that the declarant and the defendant were members of the

same conspiracy at the time that the statement was made and that

the statement was made "in furtherance" of the conspiracy. That

showing may be made, moreover, only if there is corroboration in

the form of extrinsic evidence beyond the statement itself of the

declarant's involvement in the conspiracy. Ciresi,

.

To operationalize Petrozziello's requirements, we have

"constructed a model for the handling of evidence proffered under

Rule 801(d)(2)(E)." United States v. Bradshaw,

(1st Cir. 2002) (citing United States v. Ciampaglia,

(1st Cir. 1980)). Under that model, the trial court may

conditionally admit the alleged coconspirator statements at the

time that they are offered,

but then must, at the close of

all the evidence, "assess . . . whether the government has met its

burden for admitting statements under Rule 801(d)(2)(E)," United

States v. Avilés-Colón,

, 14 n.11 (1st Cir. 2008).

"If the court ultimately concludes that the

provisionally admitted evidence does not satisfy the applicable

standard" set forth above, "it must give a cautionary instruction

- 71 - to the jury, or, upon an appropriate motion, declare a mistrial if

the instruction will not suffice to cure any prejudice." Bradshaw,

(citation omitted). For a defendant properly to

preserve a challenge to the admission of evidence on Petrozziello

grounds, the defendant "must ordinarily object both when the

hearsay statements are provisionally admitted and again at the

close of all the evidence." Avilés-Colón,

(citation

omitted); see Ford,

.

b.

The path to the Petrozziello challenges at issue here

coming our way is a winding one. But it is critical to describe

that path in some detail in order to assess the merits of these

challenges.

Millán-Machuca, Rosario-Orangel, and Quiñones-Santiago

each lodged "hearsay" objections during trial to various

statements made by alleged coconspirators. In at least some of

those objections, the appellants expressly noted a "Petrozziello"

issue.

The District Court permitted the statements to be

admitted. But the District Court did not, at that time, rule on

whether any of the statements were admissible under Petrozziello

such that they could be considered by the jury. Accordingly, at

the close of evidence, the government reminded the District Court

- 72 - that it needed to make a Petrozziello ruling under Rule

801(d)(2)(E).

In response to the government's prompt, the District

Court asked if any party wanted "to be heard" on the matter.

Counsel for Quiñones-Santiago noted that he would be addressing

the issue in his Rule 29 motion, but the parties otherwise did not

respond to the question. The record shows that the District Court

then immediately began tending to a separate issue.

Quiñones-Santiago did point out in his motion for

acquittal pursuant to Federal Rule of Criminal Procedure 29 that

the District Court had yet to determine whether some hearsay

statements in the record were in fact made in furtherance of the

charged conspiracy and thus were for that reason admissible under

Petrozziello. The Rule 29 motion was denied without reference to

the issue. The Petrozziello issue does not appear to otherwise

have come back up again before the District Court.

c.

The parties agree that the District Court did not make

the required Petrozziello ruling with respect to statements that

were brought in under Rule 801(d)(2)(E). The government argues in

its brief, however, that the appellants cannot claim any

entitlement to relief now for that failure because they

affirmatively waived the Petrozziello-based challenge to the

admission of those statements by failing to respond to the District

- 73 - Court's invitation to be "heard" on the matter at the close of

evidence.

The government is right that the Petrozziello challenge

being advanced to us would have to be rejected if the appellants

affirmatively waived this challenge below. United States v.

Padilla-Galarza,

, 74 (1st Cir. 2021) (noting that

issues initially raised at trial can later be waived at trial);

United States v. Simon,

, 60 (1st Cir. 2021) (explaining

that the "defense's silence" may demonstrate waiver if the silence

is "reasonably understood only as signifying agreement that there

was nothing objectionable" (emphasis added) (citation omitted)).

But, in our view, especially because the government bears the

burden of showing that the hearsay in question is admissible, the

record is best read to show that there was no waiver.

As the appellants bringing the challenge contend, the

record most naturally suggests that they understood that they had

already been heard by making the relevant hearsay objections.

Thus, we agree with these appellants that the record supports their

contention that, because the request for the Petrozziello

determination had been made by one of the parties at the close of

the evidence, they did not understand that they needed to be heard

further to preserve their objection. Nor is there any indication

in the record that the District Court determined that it did not

need to make a Petrozziello finding because it understood the

- 74 - appellants to have waived or withdrawn their objections to the

testimony. Thus, we see no reason on this record to conclude that

the appellants affirmatively waived their right to challenge the

admissibility of the statements under Petrozziello by not

affirmatively asserting that challenge at the moment in question.

We note, too, that the government appears to acknowledge

in its post-argument Fed. R. App. P. 28(j) letter that we have

previously addressed situations in which a defendant's counsel

objected to "at least some of the [alleged] coconspirators'

statements" at trial but "did not request a final Petrozziello

determination." See United States v. Machor,

(1st Cir. 1989). In a passage from Machor that is worth quoting

at length here, we explained:

On the one hand we have stressed the importance of making a formal Petrozziello finding. This ensures that the court addresses the policy concerns inherent in considering the admissibility of extrajudicial statements. On the other hand, an "automatic reversal" rule would encourage litigants, in some cases where the evidence supports the admissibility of the extra- judicial statements, to strategically omit a specific Petrozziello request in order to get an "automatic" reversal. Thus, the responsibility to see that a Petrozziello determination is made should fall on both the government and the defense. In cases, such as this one, where a proper hearsay objection was made and a Petrozziello determination was neither requested by the parties nor made by the trial court, there will be no reversible error if an examination of the record reveals that the trial court acknowledged that a Fed.

- 75 - R. Evid. 801(d)(2)(E) problem existed and considered the issue, provided, of course, that the government has met its burden of proof under Petrozziello.

(citations omitted). We then continued: "If the

appeals court cannot determine whether the preponderance standard

has been met, or feels that the trial court did not properly

consider the issue, it may also remand to the trial court with

instructions to make a Petrozziello determination."

(explaining that such an "approach will ensure that the policies

inherent in making a Petrozziello determination are considered and

that judicial resources are conserved" (citing United States v.

Holloway,

(6th Cir. 1984))).

Here, the record is clear that the District Court

"acknowledged" that a Petrozziello "problem" existed. When the

issue first arose during trial as a result of Quiñones-Santiago's

objection, for example, the District Court responded by noting

that it expected the government to explain why the statement was

made during and in furtherance of the conspiracy. At another

point, as noted, the government conceded during a colloquy that it

was relying on Rule 801(d)(2)(E) to bring in "a lot" of its

evidence at trial. Then, at the close of the evidence, the

government itself reminded the District Court of its need to make

a Petrozziello ruling, and the District Court asked for further

- 76 - input from the parties. Yet, no determination was made. So,

Machor accords with our conclusion that there was no waiver.8

To be sure, under Machor, and in light of what transpired

below, we could deem the absence of any of the necessary

Petrozziello findings harmless if the record reveals that the

government did satisfy its burden of showing by a preponderance of

the evidence that the challenged statements were made during and

in furtherance of the conspiracy. See

. But the

government does not make any case on appeal that, based on the

extrinsic evidence on which it was relying, the objected-to hearsay

statements were made during and in furtherance of the conspiracy

and thus were in fact admissible. And, it is not apparent to us

from the record whether the government did satisfy its burden to

establish by a preponderance of the evidence that the statements

that were objected to at trial on hearsay grounds were made in

furtherance of the conspiracy. See

8 The government argued in a Fed. R. App. P. 28(j) letter, which was offered in response to questioning at oral argument, that -- even if we were to "disagree[] with [its] waiver argument" -- we should review the Petrozziello claim for "plain error." And, the government contends, we should affirm under plain error because there is "overwhelming evidence" in the trial record that the Rule 801(d)(2)(E) statements were made "during and in furtherance" of the same conspiracy of which the defendants were members. We reject this argument too, because the same portions of the record that lead us to conclude there was no affirmative waiver also lead us to conclude there was no forfeiture.

- 77 - For example, while one of the alleged coconspirators,

Cuquito, was permitted to testify as to what he was told by various

other ÑETA members about the history and structure of ÑETA and its

activities, it is unclear what collection of testimony or other

evidence was presented that bears on the preponderance analysis as

to whether the statements Cuquito testified about were made in

furtherance of the conspiracy. The same is true of testimony by

another alleged coconspirator, José González-Gerena ("Perpetua").

Perpetua testified that an inmate named "Jowy" told him that he

(Jowy) obtained the drugs that he sold from the maximum leadership,

including Millán-Machuca. But, here again, the record does not

reveal what evidence the government was relying on to show that

the statement by "Jowy" was made in furtherance of the charged

conspiracies. And, finally, Ruiz-Acevedo testified about what he

learned from various other ÑETA members about the quantities of

drugs sold at different Puerto Rico prison facilities. Yet, it is

again unclear from the record what evidence demonstrates that these

statements satisfy the Petrozziello rule.

In sum, we "cannot determine whether the preponderance

standard has been met" based on our own examination of the record

as it now stands. Machor,

. We therefore remand

the issue to the District Court to make, in the first instance,

Petrozziello determinations as to the hearsay evidence that

Millán-Machuca, Rosario-Orangel, and Quiñones-Santiago claim was

- 78 - inadmissible under our Petrozziello rule. See Holloway,

. We do not, however, opine on the merits of that

determination.

F.

There is one coda. We are aware that one of the

appellants who brings the Petrozziello challenge, Millán-Machuca,

also brings a cumulative-error challenge. See United States v.

Perez-Montanez,

(1st Cir. 2000).

Specifically, Millán-Machuca argues that even if he was not

prejudiced by any of the individual errors that he raises,

collectively these errors did substantially prejudice his defense

and so warrant reversal of his convictions. While we see no basis

for crediting this contention at this juncture, our conclusion on

this score is without prejudice to Millán-Machuca renewing this

cumulative-error argument following the resolution of his

Petrozziello claims on remand, given that we have resolved some of

his disclosure-based challenges solely on prejudice grounds.9

9 We note that Quiñones-Santiago, who also brings this Petrozziello challenge, asserts cumulative error in his own right in a one-sentence footnote in his opening brief. But, even assuming the claim is not waived for lack of development, we see no merit to it because we "find no error in the various [other] rulings" Quiñones-Santiago challenges, and thus, "there is no cumulative effect to consider," even assuming his Petrozziello claims fail only on prejudice grounds. Perez-Montanez,

.

- 79 - V.

There remains to be addressed only the appellants'

sentencing challenges. Two appellants -- Rosario-Orangel and

Quiñones-Santiago -- assert that the sentences that the District

Court imposed on them were procedurally unreasonable. Although we

remand on the Petrozziello issue, in the event Rosario-Orangel and

Quiñones-Santiago's convictions ultimately stand, it serves the

interests of judicial economy for us to address their sentencing

challenges here. For the reasons given below, we conclude that

the sentences the District Court imposed were not procedurally

unreasonable.

A.

First, Rosario-Orangel contends that his sentence was

procedurally unreasonable because the District Court failed to

give him credit for time that he had served for "relevant conduct."

We review a preserved challenge to the procedural reasonableness

of a sentence for abuse of discretion. United States v.

Rivera-Berríos,

, 133-134 (1st Cir. 2020). We see no

abuse here.

The United States Sentencing Guidelines provide that

when "a term of imprisonment resulted from another offense that is

relevant conduct . . . the court shall adjust the sentence for any

period of imprisonment already served on the undischarged term of

imprisonment." U.S.S.G. § 5G1.3(b)(1) (emphases added).

- 80 - Rosario-Orangel argues on appeal that he should have been credited

for time served on a 2010 conviction for possession of controlled

substances in violation of Puerto Rico law, which he asserts

relates to the federal convictions at issue here.

But the District Court did not err by failing to give

Rosario-Orangel credit based on § 5G1.3(b)(1) because Rosario-

Orangel had not yet served any time for the 2010 conviction. As

the government points out, he is currently serving his nearly

thirty-year prison sentence in a Puerto Rico prison for a 1999

conviction for second-degree murder and weapons charges.

Rosario-Orangel's later 2010 Puerto Rico drug conviction was

ordered to be served "consecutively" to his 1999 murder

convictions. Thus, because Rosario-Orangel will not begin serving

any part of his sentence for the assertedly "relevant" Puerto Rico

drug conviction until he finishes serving his sentence for his

1999 conviction, we see no reason why § 5G1.3(b)(1) would have any

applicability to the sentence imposed here.

B.

Next, Rosario-Orangel and Quiñones-Santiago assert that,

under

(b), the District Court "inten[ded]" to

credit against their federal sentences time they served in federal

custody prior to sentencing in this case. But, they contend, the

District Court erred by failing to include a "net sentence" in the

judgments that reflected that intention.

- 81 - The Supreme Court has held, however, that "§ 3585(b)

does not authorize a district court to compute the credit at

sentencing" and that "the Attorney General must . . . compute the

credit under § 3585(b)." United States v. Wilson,

(1992); see also Espinoza v. Sabol,

(1st

Cir. 2009) ("

(b) specifies that a defendant

convicted of a federal crime has a right to receive credit for

certain time spent in official detention before his sentence

begins. That credit is determined by the Attorney General, not by

a court."). We therefore see no procedural unreasonableness in

either Rosario-Orangel's or Quiñones-Santiago's sentences on the

grounds they advance.

VI.

We retain jurisdiction over docket numbers 20-1275, 20-

1276, and 20-1283 and we remand these cases for further proceedings

consistent with the foregoing opinion. We otherwise affirm.

- 82 -