United States Court of Appeals For the First Circuit

No. 22-1354

UNITED STATES,

Appellee,

v.

CARLOS RUBÉN BOYRIE-LABOY,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron, Chief Judge,

Montecalvo and Rikelman, Circuit Judges.

German A. Rieckehoff for appellant. Maarja T. Luhtaru, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

April 22, 2024 MONTECALVO, Circuit Judge. Carlos Rubén Boyrie-Laboy

appeals his convictions, after a jury trial, under

, 371, and 641. Boyrie-Laboy contends that there is

insufficient evidence to support the convictions. Boyrie-Laboy

did not move for a judgment of acquittal under Federal Rule of

Criminal Procedure 29 below; thus, his appeal can only be

successful if affirming the convictions would result in a clear

and gross injustice. Boyrie-Laboy does not meet this standard.

Therefore, we affirm for the reasons stated below.

I. Background

The following facts are drawn from the trial testimony.

Boyrie-Laboy was a Puerto Rico Police officer in the Humacao Drugs

Division. The division is responsible for searching for and

seizing illegal weapons, drugs, and money related to drug

trafficking, in addition to other contraband such as fireworks.

In May 2015, Officer Gabriel Maldonado-Martínez

transferred to the Humacao Drugs Division and began working with

Boyrie-Laboy. In July 2015, Maldonado-Martínez was part of a

police surveillance team, which investigated a drug operation and

subsequently arrested the individuals involved. As part of the

drug operation, individuals would hide drugs and cash in an empty

lot. When Maldonado-Martínez and another officer from the division

were searching the empty lot for hidden drugs and cash, they found

a purse and Maldonado-Martínez witnessed the other officer taking

- 2 - cash from the purse for himself. Maldonado-Martínez informed his

lieutenant, and the two contacted the Federal Bureau of

Investigation ("FBI"). Maldonado-Martínez subsequently began

working as an undercover FBI informant to identify Puerto Rico

Police officers who "were committing acts of corruption." While

Maldonado-Martínez was working undercover, Boyrie-Laboy frequently

said he did not trust Maldonado-Martínez because he believed

Maldonado-Martínez "was going to arrest him." To gain the trust

of his fellow officers, Maldonado-Martínez spent time with them

and participated in illegal activities.

While Maldonado-Martínez was working with members of the

Drugs Division, Boyrie-Laboy told Maldonado-Martínez that he

enjoyed stealing fireworks at Christmastime. On December 21 and

29, 2015, Maldonado-Martínez participated in two thefts of

fireworks with officers, including Boyrie-Laboy.

Maldonado-Martínez reported these thefts to the FBI. In response,

the FBI planned and executed two operations designed to catch the

Humacao Drugs Division officers engaged in similar acts of

corruption.

The first FBI operation was executed on December 29,

2016. For that operation, the FBI purchased fireworks that were

not manufactured in Puerto Rico. FBI agents placed the fireworks

and $7,895 in cash inside a house in Naguabo. Then

Maldonado-Martínez told the officers who had participated in the

- 3 - two prior firework thefts that he knew of a house containing

fireworks stolen from Wal-Mart shipping containers.

Maldonado-Martínez drove to the house in Naguabo with

Officers Boyrie-Laboy, Luis Rodríguez-García, and Miguel

Conde-Vellón -- each wearing civilian clothes but carrying their

police identification and firearms. At the house, the officers

found and took the fireworks and cash. Boyrie-Laboy loaded some

of the fireworks into the officers' car. While Boyrie-Laboy was

later dividing the fireworks into equal shares amongst the group,

he tested one by lighting it. He called the firework "a piece of

trash" and told the others that he did not want his share. He

then suggested going to another location to steal better quality

fireworks.

The second FBI operation took place on June 15, 2017, at

a house in Yabucoa. This time, the FBI bought electronics

manufactured outside of Puerto Rico, including TVs, drones,

tablets, and iPods, which they placed in the house along with

$9,345 in cash. Maldonado-Martínez told the other officers that

the electronics in the home "had been stolen from a specific

department store" and were being stored before they would

eventually be sold.

Maldonado-Martínez went to the house with Boyrie-Laboy

and Quermie Márquez-Rivera, another officer from the Humacao Drugs

Division. On the way to the house, the officers discussed what

- 4 - they needed to do "when [they] got there, . . . specifically

[Boyrie-Laboy] [said] that [they] needed to act like killers."

When they arrived at the house, Boyrie-Laboy became suspicious and

said something "didn't smell too good" when he noticed an

individual in the house who had also been at the previous FBI

operation in Naguabo. The officers took electronics and cash from

the Yabucoa house, keeping some of the electronics and over $5,000

in cash for themselves and turning over the remainder of the

electronics and cash as evidence. Boyrie-Laboy was not present

when the other officers divided the money and electronics amongst

the group. Boyrie-Laboy did not accept any money or electronics

from the Yabucoa house, again saying that the operation "didn't

smell good." Boyrie-Laboy continued to be suspicious of the

circumstances surrounding the second operation. His suspicion

prompted Boyrie-Laboy to say he did not trust Maldonado-Martínez

and ask Maldonado-Martínez if he was going to arrest the other

Humacao Drugs Division officers involved in the theft.

II. Procedural History

On August 27, 2020, the government indicted Boyrie-Laboy

and three other Humacao Drugs Division officers based on the

activities described above.1 Boyrie-Laboy was charged with six

1Boyrie-Laboy's co-defendants Luis Rodríguez-García, Miguel Conde-Vellón, and Quermie Márquez-Rivera each entered guilty pleas.

- 5 - counts: conspiracy to commit robbery under

(Counts

1 and 4), conspiracy to steal and convert government property under

(Counts 2 and 5), and theft and conversion of

government property under

(Counts 3 and 6).

Boyrie-Laboy proceeded to a five-day jury trial. The

jury heard testimony from Maldonado-Martínez and Boyrie-Laboy's

co-conspirator Márquez-Rivera,2 among other witnesses. During

Boyrie-Laboy's trial, the prosecution presented video surveillance

recordings and audio recordings Maldonado-Martínez created as part

of his undercover work.

On the last day of trial, the court stated that: "After

the government rests, we'll have the Rule 29 argument." When

defense counsel stated that the defense was "not going to file [a]

Rule 29 [motion] at th[at] moment," the court responded, explaining

that "[i]f [defense counsel] d[id not] want to file it . . .

[counsel would] have to [do] it later." Later that day when the

defense rested, the court asked counsel: "Will you file a Rule 29

motion now . . . ?" Counsel said he was not going to file a motion

"at th[at] time" either. In fact, at no point did Boyrie-Laboy's

counsel move for judgment of acquittal under Federal Rule of

Criminal Procedure 29.

2 Márquez-Rivera agreed to cooperate with the government and testify in Boyrie-Laboy's trial as part of his plea agreement.

- 6 - The jury found Boyrie-Laboy guilty on all counts. The

defense did not make any post-trial motions challenging the

verdict. After judgment entered, Boyrie-Laboy timely appealed the

convictions.

III. Discussion

Boyrie-Laboy now challenges the sufficiency of the

evidence as to all six counts. He advances four arguments: First,

he argues there was insufficient evidence to show that he conspired

to commit a robbery that would affect interstate commerce in

violation of § 1951. Second, he argues the prosecution failed to

show that, under § 641, the stolen goods belonged to the United

States. Third, he argues the evidence did not demonstrate that he

had the requisite intent to commit the crimes of conviction.

Fourth and finally, he argues that the video and audio recordings

the prosecution presented at trial were of such poor quality that

they had no evidentiary value.

Under Federal Rule of Criminal Procedure 29, a defendant

may move for "a judgment of acquittal of any offense for which the

evidence is insufficient to sustain a conviction" either after the

government closes its case-in-chief or after the close of all

evidence. Fed. R. Crim. P. 29(a). A defendant may also make a

motion within fourteen days after the jury enters a guilty verdict

or after the court discharges the jury, whichever is later. Fed.

R. Crim. P. 29(c). Boyrie-Laboy's counsel explicitly declined the

- 7 - opportunity to move for a judgment of acquittal twice: after the

prosecution rested its case and after he rested his own case.

Defense counsel also did not make a post-trial motion for judgment

of acquittal.

When a defendant fails to make a motion under Federal

Rule of Criminal Procedure 29, the defendant forfeits the customary

de novo standard of review for sufficiency-of-the-evidence

challenges. United States v. Vázquez-Rosario,

, 570

(1st Cir. 2022). In such a case, we may only act to prevent a

clear and gross injustice. United States v. Hernández-Román,

, 143 (1st Cir. 2020). We review the evidence in the light

most favorable to the verdict,

keeping in mind that "there

can be no 'clear and gross injustice' unless there has been such

an 'egregious misapplication of legal principles' that reversal is

required," United States v. Charriez-Rolón,

(1st

Cir. 2019) (quoting United States v. Greenleaf,

(1st Cir. 1982)).

Although he conceded that the clear and gross injustice

standard applied during oral argument, Boyrie-Laboy initially

argued that his claims were subject to de novo review. This

presents a problem: Boyrie-Laboy's briefing "does not mention the

clear and gross injustice standard, let alone develop any argument

to meet it." Id. at 52. The result of not briefing the standard

that applies here is the waiver of his sufficiency arguments. See

- 8 - id.; Vázquez-Rosario, 45 F.4th at 571. Even so, we consider

whether the convictions present a clear and gross injustice. We

conclude that they do not.

First, to challenge the convictions under § 1951 (the

"Hobbs Act"), Boyrie-Laboy argues there is insufficient evidence

to support a reasonable jury finding that his actions affected

interstate commerce. The Hobbs Act prohibits "affect[ing]

commerce . . . by robbery."

(a). The government

need only show "a 'realistic probability of a de minimis effect on

interstate commerce.'" United States v. Tkhilaishvili,

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

(1st Cir. 2007)). To meet this burden, the government

can rely on "potential future effects."

(citation omitted).

We have noted that when businesses purchase or sell goods

manufactured in another state, such acts establish a sufficient

interstate commerce nexus. See United States v. Rivera-Rivera,

(1st Cir. 2009) ("[W]e have held that a business

is engaged in interstate commerce where the business purchased

products from out-of-state."); United States v. Brennick,

(1st Cir. 2005) (concluding that there was sufficient

effect on interstate commerce where "store manager testified at

trial that if the stolen money had not been taken, it would have

been reinvested in the purchase of goods manufactured outside the

state of New Hampshire").

- 9 - Given the evidence here, upholding the jury's finding

that Boyrie-Laboy conspired to commit a robbery affecting

interstate commerce does not result in a clear and gross injustice.

The jury heard testimony that, by partaking in this conspiracy,

Boyrie-Laboy set out to retrieve purportedly stolen goods that

rightfully belonged to Wal-Mart and a department store as part of

their sale inventory. He understood that the goods were

manufactured outside of Puerto Rico and were brought to the island

in shipping containers. The objective of the conspiracy was to

keep the goods rather than returning them to their rightful owners

so they could be sold, thereby depleting the stores of assets that

would be used to engage in interstate commerce. See United States

v. Turner,

(1st Cir. 2007) ("All that matters is

that [defendant] entered a conspiracy whose objective was to steal

the assets of an entity in interstate commerce." (quoting United

States v. Nguyen,

(1st Cir. 2001))). Thus, the

evidence demonstrates the necessary de minimis impact on

interstate commerce, and affirming Boyrie-Laboy's conviction on

this ground does not result in a clear and gross injustice.

Second, Boyrie-Laboy challenges the convictions under

§ 641, which makes it illegal to "steal[], purloin[], or knowingly

convert[]" a "thing of value of the United States." He contends

that the government did not establish that the stolen goods

belonged to the United States government. However, the evidence

- 10 - supportably shows that the FBI purchased the fireworks and

electronics and advanced the cash that was taken from the two

houses, and there was testimony that the funds used for those ends

came from the FBI's central office. Thus, upholding the jury's

finding that the property belonged to the United States does not

result in a clear and gross injustice. Cf. United States v.

Herrera-Martinez,

, 64–65 (1st Cir. 2008) (noting

conversion of "government funds" falls under § 641).

Third, Boyrie-Laboy argues that the government did not

establish that he had the requisite intent to support the

convictions under §§ 1951, 371, and 641. He narrows his argument

to two points: First, he maintains that he did not keep any stolen

property or money. Second, he claims that he "had every reason to

believe" that he was engaged in a legitimate police operation to

retrieve stolen goods.

A conviction for conspiracy to violate the Hobbs Act

requires "an intent to agree and an intent to commit the

substantive offense." United States v. Valentini,

,

348-49 (1st Cir. 2019) (citation omitted). A conviction for

conspiracy to defraud the United States under § 371 requires "both

the intent to agree to commit a crime, and the intent that the

crime be completed." United States v. Sostre-Cintrón,

(1st Cir. 2018) (citation omitted). A conviction under

- 11 - § 641 requires "the specific intent to steal a thing of value from

the United States." Id. (citation omitted).

Boyrie-Laboy's argument that he did not keep stolen

property or money is unavailing as what he did with the property

does not negate his intent at the time of the crime. Furthermore,

even if we accepted that the evidence showing that Boyrie-Laboy

did not keep any stolen property or money served as circumstantial

evidence that he lacked the requisite intent, that alone does not

demonstrate that the jury's conclusion resulted in a clear and

gross injustice. The evidence sufficiently supports a conclusion

that Boyrie-Laboy had the requisite criminal intent to support the

convictions and only declined to take his share of the stolen

fireworks, electronics, and cash because he did not like the

quality of the goods and was suspicious of the undercover agent.

To his second argument, even if one could interpret the trial

testimony as indicating that Boyrie-Laboy believed the operation

was legal, we must view the evidence through the lens most

favorable to the verdict. See United States v. Clough,

(1st Cir. 2020) ("We will not 'weigh the evidence or make

credibility judgments; these tasks are solely within the jury's

province.'" (citation omitted)). Considering the witnesses'

testimony regarding Boyrie-Laboy's knowledge of and involvement in

the conspiracy and theft, this court affirming the jury's finding

- 12 - that he had the necessary intent to find him guilty of all six

conspiracy charges does not result in a clear and gross injustice.

Fourth, and finally, Boyrie-Laboy argues that the

evidence is insufficient because the quality of the prosecution's

recordings was so poor that the recordings should not have been

considered by the jury. However, he did not raise an objection to

the admissibility of the recordings based on their quality in his

motion in limine or during trial. Raising this argument for the

first time on appeal presents yet another waiver because

Boyrie-Laboy does not address the appropriate plain-error standard

of review. See United States v. Rivera-Rodríguez,

, 28

(1st Cir. 2023). We hold that this argument is waived and thus do

not consider it. See

IV. Conclusion

For the reasons stated above, the convictions do not

present a clear and gross injustice. Accordingly, we affirm.

- 13 -