United States v. Rivera-Carrasquillo

United States Court of Appeals
For the First Circuit

Nos. 14-1582
14-1631
14-1715
17-1317
17-1729

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS D. RIVERA-CARRASQUILLO, a/k/a Danny KX, a/k/a Danny Vorki;
EDWIN BERNARD ASTACIO-ESPINO, a/k/a Bernard, a/k/a Bernal;
RAMÓN LANZA-VÁZQUEZ, a/k/a Ramoncito,

Defendants, Appellants.

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

[Hon. José Antonio Fusté, U.S. District Judge]
[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Howard, Chief Judge,
Thompson and Barron, Circuit Judges.

Peter Goldberger for the consolidated appellants and on
brief, with Pamela A. Wilk, for appellant Luis D. Rivera-
Carrasquillo.
Inga L. Parsons for the consolidated appellants and on brief
for appellant Ramón Lanza-Vázquez.
 Mariem J. Paez on brief for appellant Edwin Bernard Astacio-
Espino.
Victor O. Acevedo-Hernández, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, 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.

August 2, 2019
 THOMPSON, Circuit Judge.

Overview

For many years, a vicious gang called "La ONU" committed

unspeakably brutal crimes in Puerto Rico, raking in millions of

dollars from drug sales and killing anyone (and we mean anyone) in

its way — police officers, defectors, rivals in the "La Rompe ONU"

gang, you name it.1 Law enforcement eventually took La ONU down,

however. And a federal grand jury criminally indicted scores of

its members, including appellants Astacio-Espino, Lanza-Vázquez,

and Rivera-Carasquillo (their full names and aliases appear in our

case caption).2 A bone-chilling read, the superseding indictment

(the operative indictment in this case) accused each of these three

gangbangers of doing some or all of the following:

 conspiring to violate the Racketeer Influenced and Corrupt

Organizations Act, see 18 U.S.C. 1961(d) — familiarly called

the RICO conspiracy statute;

 aiding and abetting violent crimes in aid of racketeering,

namely murder or attempted murder under Puerto Rico law, see

18 U.S.C. 1959(a) — commonly called the VICAR statute;

1For the backstory on how La ONU and La Rompe ONU came to
be, check out United States v. Ramírez-Rivera, 800 F.3d 1, 12-13
(1st Cir. 2015). And as we did there, from now on we will refer
to La Rompe ONU as "La Rompe."
2We will sometimes refer to them collectively as "our
appellants" or just "appellants."
- 3 -
  aiding and abetting the use and carrying of firearms during

VICAR murders, see 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1) and

(2);

 knowingly transferring a firearm for use during VICAR

murders, see 18 U.S.C. § 924(h);

 conspiring to engage in drug trafficking, see 18 U.S.C.

§§ 846, 860; and

 conspiring to possess firearms during drug-trafficking

crimes, see 18 U.S.C. § 924(o).

After Astacio-Espino moved unsuccessfully to suppress

material seized by the government, the case went to trial. And

the evidence there painted a damning picture of what the trio did

with La ONU, as a sampling makes clear.

A drug-point owner and enforcer (an enforcer hunts down

and kills "the enemy," by the way), Astacio-Espino helped murder

a police officer and a La Rompe member known as "Pekeke" (whose

real name was Christian Toledo-Sánchez).3 Lanza-Vázquez also was

a drug-point owner and enforcer. Along with other La ONU members,

he helped kill someone thought to be a "squeal[er]." Rivera-

Carasquillo was not just a drug-point owner and enforcer. He was

a leader too. He also participated in Pekeke's slaying. And he

3The nickname is variously spelled in the record. We adopt
the spelling employed in the parties' briefs.
- 4 -
helped murder someone accused of shooting at a La ONU leader as

the leader drove through a La Rompe-allied area. Rivera-

Carasquillo choked him while others from La ONU stomped on his

chest until he died. To send a message, apparently, Rivera-

Carasquillo (according to a cooperating witness) "went at" the

person "with [an] AK [rifle] and just removed his face" — i.e.,

Rivera-Carasquillo "[e]rased his face."

Taking everything in — testimony from cooperating

coconspirators, law-enforcement officials, and forensic-science

experts; autopsy and crime-scene photos; physical evidence in the

form of seized guns, ammo, and drugs, etc. — the jury found

Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo guilty as

charged. And the district judge imposed a number of sentences on

them, including life sentences (because they do not contest their

sentences, we need say no more about that subject).

Hoping to score a new trial, Astacio-Espino, Lanza-

Vázquez, and Rivera-Carasquillo later filed two post-trial motions

— one claiming that a partial closure of the courtroom during jury

selection constituted "plain, reversible error," and the other

alleging that a cooperating witness in a related case had given a

different account of Pekeke's murder. But they had no success.4

4So far as relevant here, two district judges had roles in
today's case: Judge José Antonio Fusté, now retired, handled
everything except the new-trial activity, which then-Chief Judge
- 5 -
 Now before us, Astacio-Espino, Lanza-Vázquez, and

Rivera-Carasquillo press a variety of claims. We tackle the claims

one by one below, highlighting only those facts needed to put

things in perspective. But for those who want our conclusion up

front: after slogging through the issues, we affirm the contested

convictions.5

Suppression Claim

Background

Astacio-Espino moved pretrial to suppress a cache of

guns and drugs seized during the warrantless search of a house

(and the SUV garaged there) belonging to Ismael E. Cruz-Ramos — a

person indicted with our appellants but whose trial was before a

different district judge: Judge William E. Smith (of the District

of Rhode Island, sitting by designation), rather than Judge Fusté.

Aida M. Delgado-Colón took care of after Judge Fusté left the
bench.
5 Appellants try to adopt each other's arguments — something
they can do if they "connect the arguments adopted with the
specific facts pertaining" to them. See United States v. Bennett,
75 F.3d 40, 49 (1st Cir. 1996) (discussing Fed. R. App. P. 28(i));
see also United States v. David, 940 F.2d 722, 737 (1st Cir. 1991)
(noting that arguments adopted by reference "must be readily
transferrable from the proponent's case to the adopter's case").
The government thinks none of them has sufficiently shown that he
is in the same factual or legal boat as the proponent of each
issue. But because the arguments raised are not winning ones, we
will assume without deciding that each appellant effectively
joined in the issues that relate to his situation. See Ramírez-
Rivera, 800 F.3d at 11 n.1 (taking a similar tack).
- 6 -
Cruz-Ramos had moved earlier to suppress the same evidence taken

during the same search. And Judge Smith gave him a split decision,

suppressing (for reasons not relevant here) some items (rifles)

but not others (handguns and drugs). Convinced that he had

"standing" to challenge the search as an "overnight guest" of Cruz-

Ramos, Astacio-Espino asked Judge Fusté to suppress everything.6

To back up his overnight-guest claim, Astacio-Espino relied

heavily on an untranslated Spanish-language declaration by Cruz-

Ramos. The next day, Judge Fusté entered an electronic order

stating that he was "respecting Judge Smith's ruling on these

issues" — though a day later he clarified that he would "not

extend[]" his colleague's edict "to parties without standing" and

that he would "decide the same in the context of trial." When

trial came, Judge Fusté ended up "respect[ing]" Judge Smith's

order. So Judge Fusté suppressed the rifles, but not the handguns

or the drugs — though without explaining why he thought Astacio-

Espino had standing, even though the government seemingly sought

one.

6
Lawyers and judges occasionally use the word "standing" in
search cases, not in the Article III sense but as a shorthand
reference in discussing whether a defendant claiming a Fourth
Amendment right has a personal interest that the search infringed
(more on the personal-interest stuff in a moment). See United
States v. Bain, 874 F.3d 1, 13 (1st Cir. 2017); United States v.
Kimball, 25 F.3d 1, 5 n.1 (1st Cir. 1994).
- 7 -
 Arguments and Analysis

Seeking to undo what Judge Fusté did, Astacio-Espino

pins his hopes on a straightforward theory. Fairly recently, he

notes, a panel of this court partially reversed Judge Smith's

suppression ruling in Cruz-Ramos's case. See Ramírez-Rivera, 800

F.3d at 27-33 (holding that the police lacked probable cause for

the search and that neither the good-faith exception to

exclusionary rule nor the harmless-error doctrine applied).

Proclaiming himself "an overnight guest at [Cruz-Ramos's]

residence," he insists we should reverse Judge Fusté's suppression

decision too, since Judge Fusté simply adopted Judge Smith's now-

discredited ruling. Not to be outmaneuvered, the government

identifies three supposed bases for affirming Judge Fusté's

ruling: Astacio-Espino's failure to argue in his opening brief

that he had a legitimate expectation of privacy sufficient to show

standing to contest the search; Astacio-Espino's reliance on the

untranslated Spanish-language document to establish his status as

an overnight guest at Cruz-Ramos's house; and the harmlessness of

any error (if error there was) on Judge Fusté's part, given the

overwhelming evidence of Astacio-Espino's guilt.

Reviewing the issue afresh ("de novo," in law-speak),

see United States v. Orth, 873 F.3d 349, 353 (1st Cir. 2017) —

knowing too that we can affirm on any basis supported by the

- 8 -
record, see United States v. Arnott, 758 F.3d 40, 43 (1st Cir.

2014) — we think the government has the better of the argument.

Fourth Amendment rights are personal ones. See, e.g.,

Rakas v. Illinois, 439 U.S. 128, 133 (1978). So a criminal

defendant wishing to challenge a search must prove that he had "a

legitimate expectation of privacy" in the searched area, id. at

143 — i.e., he must show that he "exhibited an actual, subjective,

expectation of privacy" and that this "subjective expectation is

one that society is prepared to recognize as objectively

reasonable," United States v. Rheault, 561 F.3d 55, 59 (1st Cir.

2009); see also United States v. Werra, 638 F.3d 326, 331 (1st

Cir. 2011). An overnight guest generally has a reasonable

expectation of privacy in his host's home. See, e.g., United

States v. Almonte-Báez, 857 F.3d 27, 32 n.4 (1st Cir. 2017) (citing

Minnesota v. Olson, 495 U.S. 91, 96-97 (1990)). The problem for

Astacio-Espino is that he supported his overnight-guest claim with

a Spanish-only declaration — a problem, because judges cannot

consider untranslated documents. See, e.g., United States v.

Quiñones-Otero, 869 F.3d 49, 53 (1st Cir. 2017) (citing the Jones

Act, 48 U.S.C. § 864; González-de-Blasini v. Family Dep't, 377

F.3d 81, 88 (1st Cir. 2004); and Dávila v. Corporación de Puerto

- 9 -
Rico Para La Difusión Pública, 498 F.3d 9, 13 (1st Cir. 2007)).7

And this evidentiary gap devastates his suppression argument,

because "a failure to present evidence" on the "reasonable privacy"

front "prevents a defendant from making a claim for suppression

under the Fourth Amendment." See United States v. Samboy, 433

F.3d 154, 161-62 (1st Cir. 2005).8

Anonymous-Jury Claim

Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo

criticize the judge for empaneling an anonymous jury. But they

concede that Ramírez-Rivera — a decision disposing of appeals

brought by some of their coindictees — forecloses their argument,

and they raise the point only to preserve the issue "for future

consideration." Enough said about that, then.

Partial-Courtroom-Closure Claim

Background

While their appeals were pending, Astacio-Espino, Lanza-

Vázquez, and Rivera-Carasquillo jointly moved the district judge

7 Astacio-Espino says in his reply brief that materials he
has not given us — FBI interview memos (known as "302" reports)
and the statement of facts in Cruz-Ramos's plea agreement — confirm
he stayed over Cruz-Ramos's house several times. This does not
help him, however, because an appellant waives any argument not
made in his "opening brief but raised only in [his] reply brief."
Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 25 (1st Cir.
2018).
8 We thus need not address the government's other arguments
for affirming the judge's suppression ruling.
- 10 -
to supplement the record on appeal, arguing that a post-trial

investigation by counsel revealed that "official personnel" had

kept some of appellants' friends and family from attending jury

selection. See Fed. R. App. P. 10(e)(2); see also United States

v. Pagán-Ferrer, 736 F.3d 573, 581-84 (1st Cir. 2013) (discussing

Fed. R. App. 10(e)). And they asked the judge to hold a hearing

and make findings of fact on the matter.

After some procedural wrangling not relevant here, the

judge decided to hold an evidentiary hearing. Pertinently for our

purposes, appellants called six witnesses: Astacio-Espino's

mother (Francisca Espino); Lanza-Vázquez's former girlfriend

(Betzaida Caballero-Ortiz); Rivera-Carrasquillo's father (Héctor

Rivera-Rosa), mother (Maribel Carrasquillo), and trial counsel

(José Aguayo); and Lanza-Vázquez's and Rivera-Carrasquillo's

friend (Juan Carlos Ramos-Piñeiro). The government, for its part,

called two witnesses: a former court security officer (Héctor

Villavicencio) and a courtroom deputy clerk (Ana Romero), both of

whom had been assigned to the courtroom for jury selection in

appellants' case.

Reduced to bare essence, appellants' witnesses testified

that when the courtroom opened around 9:00 a.m., a man stationed

at the door — thought by some to be a United States marshal — said

that only one family member per defendant could go in (Lanza-

- 11 -
Vázquez's ex-girlfriend testified that the man told her only

potential jurors could go in). No prospective jurors were in the

courtroom when this happened. And none of the witnesses could

give a good physical description of the man.

As for the government's witnesses, the court security

officer pertinently testified that he got to the courtroom at 9:00

a.m. on the day of jury selection, opened the doors, and did not

stop anyone from coming in. Asked whether he "at any time [told]

anyone that they could not come in," he replied "no." He added

that the judge handling jury selection (Judge Fusté) had always

instructed him to let the public in. He also noted that he only

left the door when he had to hand prospective jurors papers or a

microphone (potential jurors used the mic in responding to

questions asked during voir dire — a process that allows counsel

and the judge to see if there are grounds to challenge a possible

juror, for example). And the courtroom deputy relevantly testified

that once the judge excused a potential juror, the excused person

would leave through the courtroom's front door. She also said

that she saw members of the public sitting in benches reserved for

them. And asked whether "it ever appear[ed]" that the benches

were "so full that no one else could be there," she answered "no."

In a post-hearing rescript, the judge found that each of

the "family/friend witnesses had much to gain by alleging that

- 12 -
they were prevented from entering the courtroom," given how their

loved ones faced spending the rest of their lives behind bars.

Noting that two years had passed before the witnesses alleged a

man had restricted access to the courtroom and that none of them

could give a physical description of the man, the judge found it

"difficult to consider their testimony credible." But the judge

had no difficulty crediting the court security officer's testimony

about opening the courtroom around 9 a.m. and not stopping anyone

from entering. And "[h]aving been present during jury voir dire,"

which put him "in the best position to determine the credibility"

of the testifying witnesses, the judge found "that the courtroom

was not closed, neither partially nor fully and neither expressly

nor impliedly, during the jury voir dire" in this case.

Arguments and Analysis

Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo

believe the record shows that a partial courtroom closure occurred,

which, they continue, violated two constitutional provisions:

Article III, by delegating the closure decision to a non-judicial

officer; and the Sixth Amendment, by depriving them of their right

to a public trial. The government's principal response is that

the judge committed no clear error in finding no courtroom closure

here. We side with the government.

- 13 -
 Appellants and the government — who agree on little else

— agree that we must give clear-error review to the judge's no-

courtroom-closure finding and plain-error review to appellants'

unpreserved legal arguments. See United States v. Negrón-Sostre,

790 F.3d 295, 301 (1st Cir. 2015) (applying those standards in a

similar situation). We begin and end with the judge's no-

courtroom-closure finding, knowing that winning a clear-error

challenge is no easy thing because the challenger must show that

the contested finding stinks like "a 5 week old, unrefrigerated,

dead fish." See Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41,

46 (1st Cir. 2013) (quoting S Indus., Inc. v. Centra 2000, Inc.,

249 F.3d 625, 627 (7th Cir. 2001)). Put less colorfully, the

challenger must do more than show that the finding is "probably

wrong," for we can reverse on clear-error grounds only if — after

whole-record review — we have "a strong, unyielding belief" that

the judge stumbled. See id. (emphasis added) (quoting Islamic

Inv. Co. of the Gulf (Bah.) Ltd. v. Harper (In re Grand Jury

Investigation), 545 F.3d 21, 24 (1st Cir. 2008)).

Appellants' clear-error argument turns entirely on their

claim that the judge should have believed their witnesses over the

government's. As an example, they contend that the "demeanor" of

their witnesses "was thoughtful and unemotional." And they insist

that the testimony of the government's witnesses "did not refute

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the family members' consistent testimony" that a "courtroom

official" told them "that only one member of each defendant's

family could enter the courtroom for jury selection." By basically

focusing on the witnesses' credibility, they make their job

"particularly" challenging, because — unlike us — the judge heard

the witnesses from both sides and eyed their manner. See United

States v. Guzmán-Batista, 783 F.3d 930, 937 (1st Cir. 2015). If,

as here, a judge's finding is based on witness credibility, that

finding, "if not internally inconsistent, can virtually never be

clear error." See Anderson v. City of Bessemer, 470 U.S. 564, 575

(1985) (emphasis added). And we see nothing "[in]coherent and

facially [im]plausible" about the government witnesses' account.

See id.

Still trying to turn defeat into victory, appellants

protest that the testimony of the government's witnesses "left

open the distinct possibility that it was a [deputy United States

marshal] inside the courtroom and near the courtroom door who told

the defense witnesses exactly what they said they were told when

they tried to enter." Here is the problem with that theory. The

defense's witnesses testified that an official-looking man told

them about the one-family-member-per-defendant policy when the

courtroom doors opened at 9:00 a.m., when no prospective jurors

were there. During that key period — between the opening of the

- 15 -
doors and the seating of potential jurors — the only person manning

the door was the court security officer, who said he stopped no

one from going in. Or so the court security officer testified,

which the judge was entitled to credit. And under clear-error

review, "[a] finding that is 'plausible' in light of the full

record — even if another is equally or more so — must govern."

Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (emphasis added).

So we are in no position to disturb the judge's no-

courtroom-closure finding — a conclusion that defeats appellants'

challenge and makes it unnecessary to consider the parties'

remaining arguments on this front.

Berating-Counsel Claim

Echoing an unsuccessful mistrial motion filed below,

Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo complain

that the judge berated counsel in front of the jury, diminishing

the jury's respect for the defense's work. Lanza-Vázquez's and

Rivera-Carasquillo's immediate problem is that while Astacio-

Espino's counsel made the mistrial motion, their counsel

specifically chose not to join that motion — thus waiving appellate

consideration of their argument. See generally United States v.

Olano, 507 U.S. 725, 733 (1993) (noting that "waiver is the

intentional relinquishment or abandonment of a known right"

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))).

- 16 -
 And even if we were willing to overlook this waiver

(which we are not), they and Astacio-Espino spotlight no specific

instances where the judge dressed counsel down. As the government

notes, our appellants simply claim that the judge instructed the

jurors that "if you have noticed that I have become upset about

something with either side or somebody, do not [hold] it against

that person, lawyer or party." Context is everything, of course.

And because appellants do not say what the allegedly biased

comments were, we cannot assess whether he acted defensibly,

without judicial bias. See United States v. Rodríguez-Rivera, 473

F.3d 21, 28 (1st Cir. 2007) (discussing how we go about evaluating

a claim of judicial bias). Knowing that it is not our job to do

the parties' homework for them, we find the argument waived. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting

that "[i]t is not enough" for parties "merely to mention a possible

argument in the most skeletal way, leaving the court to do

counsel's work," and emphasizing "that issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived").

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 Intervening-with-Witnesses Claim

Background

Appellants also accuse the judge of improperly

questioning the witnesses. Here is what you need to know about

that claim.

Testifying about the erase-the-face episode (the one we

mentioned above), a cooperating witness said that the victim begged

his tormentors not to "remove" his face. "Erase his face," the

judge stated. "Erase his face," the witness said. The cooperating

witness also noted that before he and his cohorts stomped the

victim to death, one of them "removed the bullets" from a "magnum"

and "put the magnum to [the victim's] head." "Pulled the trigger,"

the judge said. "Pulled the trigger," the witness responded. "As

if he was going to kill him," the judge added. "I think I already

said that," the witness said, "[b]ut as if he was going to kill

him." Shifting to a different murder, the cooperating witness

explained how, after the victim got shot and fell to the ground,

one of the shooters "emptied his gun at [the victim]." "At his

face," said the judge. "At his face," said the witness.

A former homicide detective testified about seeing a

body at a crime scene that "no longer had a face." A couple of

questions later, the prosecutor asked, "And you mentioned that

this individual . . . did not have face?" — to which defense

- 18 -
counsel objected on asked-and-answered grounds. "Well," the judge

said, "I understood he had no head. But it's no face, no head?

Tell us." "It had no face of any kind," the witness replied.

Later still, an agent with the Bureau of Alcohol,

Tobacco, Firearms and Explosives (commonly referred to just as

"ATF") testified "as an interstate nexus specialist" (FYI, some

statutes have an interstate-nexus requirement, which gives rise to

federal jurisdiction under the Constitution). As the agent talked

about different firearms — Glock pistols, Smith and Wesson pistols,

a Bushmaster rifle, etc. — the prosecutor asked each time if any

were manufactured in Puerto Rico. The agent always said no, adding

one time that "[i]f they were possessed in Puerto Rico, they

traveled in or [a]ffect[ed] interstate commerce." Asked about "an

AR-15 type rifle," the agent testified that the rifle had no

manufacturer's mark and so he could not determine the rifle's

"place of origin." Speaking up, the judge questioned him about

whether "we manufacture any kind of gun in Puerto Rico." "No,

sir," said the agent. "So what does that mean in terms of nexus?"

the judge wondered. Because "this firearm was not manufactured in

Puerto Rico," the agent replied, "if it was possessed in Puerto

Rico, it traveled in or [a]ffect[ed] interstate commerce."

Early in the afternoon, after the agent testified,

Astacio-Espino's lawyer asked for a mistrial because the judge

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"ha[d] intervened with a great number of witnesses." Lanza-

Vázquez's and Rivera-Carasquillo's counsel joined the request.

But the judge denied the motion, simply saying that "you will have

to take" this issue "to the Court of Appeals."

Arguments and Analysis

Pointing to these incidents, Astacio-Espino, Lanza-

Vázquez, and Rivera-Carasquillo claim that the judge denied them

a fair trial by asking questions or making comments that emphasized

the brutality of the charged crimes and that helped the government

establish a nexus between the guns and interstate commerce.9 The

government argues that because the judge's interjections simply

clarified the record or kept the lengthy proceedings on track (the

trial involved nine days of testimony), his actions crossed no

line — and even if they did, any error was harmless, given the

considerable evidence of appellants' guilt. Because we agree with

the government's first point, we need not address its second.

We review the judge's denial of a mistrial motion for

abuse of discretion, which occurs if no reasonable person could

9 Appellants call the discussed interjections only a "partial
sample" of the "most egregious" ones. But by only mentioning those
interjections in their opening briefs, they waived any argument
that other interjections prejudiced them. See, e.g., Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).
- 20 -
agree with the ruling.10 See United States v. Munyenyezi, 781 F.3d

532, 541 (1st Cir. 2015). Deference is appropriate here because

the judge was best positioned to decide if what happened was

serious enough to justify declaring a mistrial — a "drastic

remed[y]" of last resort. See id. at 541-42.

Trial judges have considerable leeway over the

interrogation of witnesses and the order of proof — leeway they

must use to (among other things) elicit truth and avoid delay.

See, e.g., Morales Feliciano v. Rullán, 378 F.3d 42, 57 (1st Cir.

2004); Fed. R. Evid. 611(a). So, for example, judges can "question

witnesses"; "analyze, dissect, explain, summarize, and comment on

the evidence"; and otherwise extract facts to clarify

misunderstandings. Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.

1997); see also United States v. Ayala-Vazquez, 751 F.3d 1, 24

(1st Cir. 2014); United States v. Paz Uribe, 891 F.2d 396, 400

(1st Cir. 1989). And because protracted trials drain scarce

judicial resources (judge and jury time, to name just two), judges

must keep the proceedings moving — by, for instance, making sure

evidence presentation does not become rambling and repetitive (to

state the obvious, district courts have heavy caseloads and jurors

10The parties concur that appellants preserved the issue for
us. And we have no reason to doubt them.
- 21 -
have family and work obligations). See, e.g., Logue, 103 F.3d at

1045.

Make no mistake, however. While "[t]he ultimate

responsibility for the effective working of the adversary system

rests with . . . judge[s]," see Fed. R. Evid. 611(a) advisory

committee's note to 1972 proposed amendment, their powers are not

boundless — for they "cannot become . . . advocate[s] or otherwise

use [their] judicial powers to advantage or disadvantage a party

unfairly," see Logue, 103 F.3d at 1045 (1st Cir. 1997) (emphasis

added); see also Morales Feliciano, 378 F.3d at 57. But to prevail

on an inappropriate-judicial-intervention claim, the protesting

party must show both "improper" conduct and "serious prejudice."

See United States v. DeCologero, 530 F.3d 36, 56 (1st Cir. 2008).

Silhouetted against these rules, appellants' claim

cannot succeed. Take the face-related episodes (e.g., the "erase

the face," "at his face," and "pulled the trigger" interactions).

What appellants characterize as out-of-bounds questioning we see

as the fulfillment of the judge's "duty" to "elicit[] facts he

deem[ed] necessary" to clarify the record for the jury. See Paz

Uribe, 891 F.2d at 400 (quoting Llach v. United States, 739 F.2d

1322, 1329 (8th Cir. 1984)). Now consider the location-of-gun-

manufacturers questions. As the government notes (without

contradiction from appellants), "that the firearms were

- 22 -
manufactured outside of Puerto Rico was not a hotly contested

issue." And we see the incident as a permissible bid by the judge

to speed up the multiday trial's pace. See United States v. Henry,

136 F.3d 12, 19 (1st Cir. 1998) (discussing the "judge's right and

responsibility to manage the progress of the trial"). On top of

everything, the judge told the jurors "not [to] assume that I hold

any opinion on any matter that pertains to any question that I may

have asked." He also told them that they could "disregard all

questions that I made during the course of this trial." "You don't

have to go by my comments," he added. "I am not here to lead you."

And these instructions sufficed to alleviate any risk of prejudice.

See Logue, 103 F.3d at 1046-47.11

11 Two more matters and we are done with this issue. About
five months before our appellants' trial, the judge, in sentencing
a separately tried codefendant, mentioned the "Pep Boys" murder —
a murder that involved the death of a La Rompe boss, killed on the
orders of two La ONU leaders. See Ramírez-Rivera, 800 F.3d at 44
(discussing the "Pep Boys" murder). And the judge said how deeply
that crime had affected him. Appellants theorize that the judge's
"feelings" fueled his "improper questioning and interjecting" at
their later trial. They also cry foul that the judge questioned
the cooperating witness even though (emphases theirs) "he himself
took the witness'[s] guilty plea so the witness could cooperate in
the first place." But they did not raise either argument below.
And they give us no reason to conclude that any of the "narrowly
configured and sparingly dispensed" exceptions to the raise-or-
waive rule apply. See Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684,
688 (1st Cir. 1994). Nothing more need be said about these
arguments.
- 23 -
 The short of it is that we will reverse a mistrial denial

only in "extremely compelling circumstances." See, e.g.,

Munyenyezi, 781 F.3d at 542 (quoting United States v. Pierro, 32

F.3d 611, 617 (1st Cir. 1994)). But they have not shown that the

circumstances here meet that standard. So the judge's mistrial

denial stands.

Admission-of-Photos Claim

Repeating a losing argument made below, Astacio-Espino,

Lanza-Vázquez, and Rivera-Carasquillo fault the judge for

admitting 61 color autopsy and crime-scene photos (some showing

murder victims without a face or head, others showing blood or

brain matter splattered everywhere) and 43 color gun photos

(depicting firearms Rivera-Carasquillo had at the time of his

arrest), along with actual guns, gun parts, and ammo. As they see

it, the gruesomeness of the autopsy and crime-scene photos had to

have overwhelmed the jurors' emotions and led them to act

irrationally. So they believe the judge should have excluded those

photos under Evidence Rule 403, which says a judge may keep out

"relevant evidence" if its potential for unfair prejudice

"substantially outweigh[s]" its probative worth. See Fed. R. Evid.

403. Repeating another losing argument made below, they also

insist that law enforcement seized the at-issue guns after the

conspiracy had ended. And so they further believe the judge should

- 24 -
have excluded those photos — introduced, the theory goes, to

portray them as bad men, and hence guilty of the crimes charged —

under Evidence Rule 403 and Evidence Rule 404(b), which prohibits

evidence of a "crime, wrong, or other act" from being used "to

prove a person's character in order to show that on a particular

occasion the person acted in accordance with the character." See

Fed. R. Evid. 404(b).

The government, contrastingly, contends no error

occurred. Noting that we will reverse a judge's Rule 403 probative

value/unfair prejudice balancing only in extraordinarily

compelling situations, the government argues that the autopsy and

crime-scene photos did not unfairly prejudice appellants because,

for example, the photos "corroborated actions taken by La ONU

members, including [appellants]."12 And according to the

government, rather than being inadmissible as unduly prejudicial

under Rule 403 or as improper character evidence under Rule 404(b),

the gun evidence showed Rivera-Carasquillo's role as a gun-

supplier to La ONU and how he continued to store guns even after

the indictment came down. The government claims too that "La ONU's

activities were ongoing even after" the indictment's "issuance,"

12The government asserts, without contradiction, that its
"case-in-chief" covered "eight crime scenes involv[ing] twelve
murders."
- 25 -
at which time Rivera-Carasquillo was a fugitive without having

withdrawn from the conspiracy. As a fallback, the government

argues that whatever conceivable error might have occurred was

harmless.

Recognizing that "[t]he simplest way to decide [an

issue] is often the best," Stor/Gard, Inc. v. Strathmore Ins. Co.,

717 F.3d 242, 248 (1st Cir. 2013) (quoting Chambers v. Bowersox,

157 F.3d 560, 564 n.4 (8th Cir. 1998)), we assume without deciding

that errors occurred. But we deem them harmless nevertheless.

Nonconstitutional errors are harmless — and so do not

require a new trial (saving the public the costs and delays caused

by a retrial when the outcome would not change) — if we "can say

'with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole,'" that the errors

did not "'substantially sway[]'" the jury's verdict. United States

v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013) (quoting United States

v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)). The government bears

the burden of proving harmlessness. See, e.g., United States v.

Vázquez, 724 F.3d 15, 25 (1st Cir. 2013). Now recall how

cooperating witnesses pegged Astacio-Espino, Lanza-Vázquez, and

Rivera-Carasquillo as La ONU drug-point owners and enforcers —

each of whom, according to these witnesses, participated in the

gun murders of others, all in La ONU's name. True, the cooperators

- 26 -
had reasons to tailor their testimony to please the prosecution.

But defense counsel brought this out during cross-examination and

closing arguments. The judge also told the jury that it should

consider the cooperators' testimony "with particular caution" and

with an eye toward whether they "had a reason to make up stories

or to exaggerate what others did because they wanted to help

themselves." Anyway, the jury could believe what the cooperators

said. See, e.g., United States v. Rodríguez-Soler, 773 F.3d 289,

297 (1st Cir. 2014). And if the jury did, it could enter guilty

verdicts — as Astacio-Espino's counsel candidly acknowledged

during summation.13 So, bluntly stated, even if the judge gaffed

by admitting the crime-scene and gun evidence — and we whisper no

hint of suggestion about whether he did — appellants cannot prevail

because, given the contours of this case, we can fairly say that

13
A quick side note. When an error is of constitutional
magnitude, we cannot consider it harmless if the rest of the
government's case against the defendant (or defendants) rests
solely on cooperator testimony. See, e.g., United States v. Ofray-
Campos, 534 F.3d 1, 27 (1st Cir. 2008). Appellants do not claim
that the error they identify here is of the constitutional variety.
And they make no argument that the Ofray-Campos rule (for lack of
a better label) applies in a nonconstitutional-error situation
like theirs. Perhaps that is because Rodríguez-Soler is on the
books, a case where we held a nonconstitutional error harmless
based on "the cooperating witnesses' testimony," see 773 F.3d at
297 — though, to be fair, there's no indication in Rodríguez-Soler
that the defendant argued for the application of the Ofray-Campos
rule. Ultimately, by not pushing for application of the Ofray-
Campos rule here, appellants waived any argument on that front
that they might have had. See, e.g., Rodríguez, 659 F.3d at 175.
- 27 -
any error (if error there be) did not "substantially sway" the

jury's verdict.

Jury-Instruction Claim

Background

A necessary element for a RICO-conspiracy conviction is

that "the defendant agree[d] to commit or actually commit[ted] two

or more acts of racketeering activity." United States v. Shifman,

124 F.3d 31, 38 (1st Cir. 1997); see also id. at 35 (discussing

the other elements). "Racketeering activity" includes "any act or

threat involving" particular federal or state crimes like, for

example, drug trafficking, murder, extortion, robbery, and

kidnapping. See 18 U.S.C. § 1961(1)(A). "[T]he commission of

firearms offenses" appears nowhere on that list, however. See

United States v. Latorre-Cacho, 874 F.3d 299, 301 (1st Cir. 2017).

Instructing the jury on the racketeering-activity issue,

the judge in our case said "that as a matter of law, drug

trafficking and murder both qualify as racketeering activities."

So far, so good. A little later, though, the judge added (emphasis

ours) that "the types of racketeering activity alleged include

possession with intent to distribute narcotics, firearms[,] and

murder." Later still, the judge instructed (emphasis added) that

to convict the defendant of the RICO conspiracy offense,
your verdict must be unanimous as to which types of
predicate racketeering activities the defendant agreed
would be committed. For example, at least two acts of
- 28 -
 drug trafficking, murder, or any combination of both. I
would add two acts of drug trafficking, firearms,
murders[,] or a combination thereof.

The judge then noted that "[t]he [i]ndictment accuses the

defendants of two different types of racketeering activity,"

namely, "drug trafficking and murder." The judge returned to that

theme, saying "racketeering activity . . . includ[es] drug

trafficking, murder[,] or any combination thereof" and that "[t]he

indictment alleges that the enterprise, through its members and

associates, engaged in racketeering activities consisting of drug

trafficking and murder."

Arguments and Analysis

Astacio-Espino and Rivera-Carasquillo — the only

appellants charged with RICO conspiracy (Lanza-Vázquez was not so

charged) — assert that the judge plainly erred by twice telling

the jury that a firearms crime is a racketeering activity for RICO-

conspiracy purposes (plain error is the standard for all arguments,

like this one, debuted on appeal).14 Simplifying matters, the

14Most readers of our prior opinions know the plain-error
standard by heart, but a little refresher never hurts. A super
hard standard to establish, plain error has four prongs. See,
e.g., Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Shoup, 476 F.3d 38, 42-43 (1st Cir. 2007); United States
v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006). First,
complaining parties must identify an "error" that they have not
"intentionally relinquished or abandoned." Puckett, 556 U.S. at
135. Second, they must show that the error was "clear or obvious,
rather than subject to reasonable dispute." Id. Third, they must
prove that the error "affected" their "substantial rights" — i.e.,
- 29 -
government admits that, given Latorre-Cacho, the judge did err,

and clearly so — satisfying Astacio-Espino's and Rivera-

Carasquillo's burden under the first and second prongs of the

plain-error test. The real battle then is over whether Astacio-

Espino and Rivera-Carasquillo can meet the third and fourth prongs.

They say they can, making the dual argument that the misinstruction

prejudiced them, because it likely affected the case's outcome —

fulfilling their burden under prong three; and that the

misinstruction worked a miscarriage of justice, because the

government did not present overwhelming and essentially

uncontroverted evidence on the racketeering-activity element —

fulfilling their burden under prong four. The government's

response is dual too: the instructions as a whole were unlikely

to mislead the jury, seeing how the judge emphasized drug

trafficking and murder as cognizable predicates; and even if the

that "it likely affected" the case's outcome. United States v.
Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014). Fourth and
finally, if they satisfy these prongs they must show that the error
"seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings," which is also known as the miscarriage-
of-justice prong — then (and only then) will we exercise our
"discretion to remedy the error." See Puckett, 556 U.S. at 135
(internal quotation marks omitted); United States v. Saxena, 229
F.3d 1, 5 (1st Cir. 2000). And "[g]iven the rigors of this
standard, [our] power to set aside trial court decisions due to
plain error 'should be employed sparingly.'" United States v.
Bramley, 847 F.3d 1, 5 (1st Cir. 2017) (quoting United States v.
Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc)).
- 30 -
instructions likely misled the jury, there is no reasonable

probability that the flawed instructions led to flawed convictions

— so they cannot show either prejudice or a miscarriage of justice.

As for our views on the matter, we know "the plain error

hurdle, high in all events, nowhere looms larger than in the

context of alleged instructional errors." See United States v.

Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001). And ever

mindful of this demanding standard, we cannot help but reject

Astacio-Espino and Rivera-Carasquillo's claim.

The jury had no special verdict form on the RICO-

conspiracy count. But the jury found Astacio-Espino guilty of six

predicate RICO acts: drug trafficking, VICAR attempted murder,

and four VICAR murders. The jury also found Rivera-Carasquillo

guilty of four predicate RICO acts: drug trafficking and three

VICAR murders. And significantly for this case, Astacio-Espino

and Rivera-Carasquillo fail to adequately challenge the evidence

behind these convictions (through citation to trial testimony and

supporting legal authority, for example). So they have not met

their heavy burden of showing that the trial's outcome would likely

have changed had the judge not erred. After all, "[w]here" — as

here — "the effect of an alleged error is so uncertain, a [party]

cannot meet his burden of showing that the error actually affected

his substantial rights." See Jones v. United States, 527 U.S.

- 31 -
373, 394-95 (1999). And because Astacio-Espino and Rivera-

Carasquillo have not shown a likelihood that they were "worse off"

because of the judge's mistake, they "perforce" cannot show that

a miscarriage of justice will result if we do not correct the

mistake. See United States v. Turbides-Leonardo, 468 F.3d 34, 40

(1st Cir. 2006).

Latorre-Cacho does not help Astacio-Espino and Rivera-

Carasquillo's prejudice and miscarriage-of-justice positions,

despite what they say. A grand jury there indicted Jose Latorre-

Cacho for conspiracy to violate RICO, conspiracy to engage in drug

trafficking, and conspiracy to possess a firearm in furtherance of

a drug-trafficking crime. 874 F.3d at 301. At trial, the district

judge (the same judge who presided over our appellants' trial)

"twice incorrectly" told the jury that "'firearms' constitutes

'racketeering activity.'" Id. After the jury convicted him only

on the RICO-conspiracy charge, Latorre-Cacho appealed to us,

complaining (as relevant here) about the judge's faulty

instructions, id. — the theory being that the incorrect charge let

the jury find him guilty of RICO conspiracy "on a legally invalid

theory of what constitutes 'racketeering activity' by defining

'racketeering activity' to include 'firearms,'" id. at 302-03.

The government seemingly conceded that the judge erred and plainly

so, leaving us to decide whether Latorre-Cacho met the remaining

- 32 -
prongs of the plain-error standard. See id. at 303. In finding

that Latorre-Cacho satisfied prong three, we could not say that

the evidence of the proper predicates — drug trafficking, robbery,

and carjacking — was overwhelming and essentially uncontroverted.

Id. at 306, 311. Indeed, the jury actually acquitted him on the

drug-trafficking-conspiracy charge. Id. at 301, 311. And having

found that prong satisfied, we "[could] not see how" plain error's

"fourth prong" prevented him from "demonstrating plain error" —

especially since the government did not make any developed argument

that he failed to satisfy that prong. Id. at 311. All of this is

worlds apart from our case, however — most notably because the

jury convicted Astacio-Espino and Rivera-Carasquillo on related

drug-conspiracy and VICAR counts and because the government did

not waive its right to contest a plain-error finding.15

On to the next claim, then.

15 Noting that the VICAR statute also has a racketeering-
activity component, Astacio-Espino and Rivera-Carasquillo make a
one-sentence argument that we should vacate their VICAR
convictions because the judge's "instructions on this element of
VICAR, which followed his instructions on RICO conspiracy, were at
best confusing and allowed the jury to find that 'firearms'
offenses were the crimes that constituted the racketeering
activity." But they do not tie this unpreserved VICAR-centric
argument to the demanding plain-error standard and thus have waived
it. See United States v. Ponzo, 853 F.3d 558, 574 (1st Cir. 2017).
- 33 -
 New-Trial Claim

Background

During appellants' trial, the jury heard from three

cooperating coconspirators — ex-La ONU members Wesley Figueroa-

Cancel, José Gutiérrez-Santana, and Christian Figueroa-Viera —

about the roles appellants played in the killing of Pekeke, a La

Rompe leader gunned down (according to the cooperators) by La ONU

in its brutal war with La Rompe. And Figueroa-Cancel, Gutiérrez-

Santana, and Figueroa-Viera knew of which they spoke, since they

had a hand in Pekeke's death.

While here on appeal, appellants filed in the district

court what they styled a motion for new trial based on newly-

discovered evidence and government nondisclosure of evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963). See Fed. R.

Crim. P. 33(b)(1). They did not have the "newly discovered

evidence," however. Rather, their lawyers claimed that they

learned that codefendants convicted in a jury trial before Judge

Smith had moved for a new trial and that restricted-court filings

in that case supposedly showed that "a cooperating witness [gave]

a contradictory version of" Pekeke's murder "in grand jury

testimony, an FBI 302[,] and trial transcripts" — contradictory,

because the cooperator there had supposedly said that La Rompe

- 34 -
members (and them alone) had killed Pekeke.16 If the government

had "disclosed" that evidence before or during "their trial, there

is a reasonable probability" that the trial's outcome "would have

been different" — at least that is what our appellants' motion

contended, citing United States v. Flores-Rivera, 787 F.3d 1, 15-

16 (1st Cir. 2015) (noting that a successful Brady claim

"require[s] only that the defendant show a 'reasonable

probability' that had the government disclosed the evidence

[before] trial, the result of the proceeding would have been

different" (quoting United States v. González-González, 258 F.3d

16, 20 (1st Cir. 2001))). And based on all this, appellants

requested three things: (1) access to the restricted filings;

(2) an order directing the government to disclose any info

"indicat[ing] that any murder or other incident described by"

testifying witnesses "did not occur" as they had testified, "or

otherwise casting doubt on the credibility or reliability of any

of the witnesses and/or other evidence used against them"; and,

16Appellants' codefendants in the Judge Smith presided-over
trial were José Laureano-Salgado and Pedro Ramírez-Rivera.
Figueroa-Cancel, Gutiérrez-Santana, and Figueroa-Viera testified
for the prosecution in that case too. Readers can find more
details of what happened before Judge Smith in another opinion
issued today, United States v. Laureano-Salgado, ___ F.3d ___ (1st
Cir. 2019) [Nos. 17-1052, 1053] — where we affirmed the denial of
that motion. And going forward we will assume the readers'
familiarity with that opinion.
- 35 -
finally, (3) a new trial. They also contemporaneously moved the

judge for an "indicative ruling" that their new-trial motion "based

on newly discovered evidence of a potential Brady violation 'raises

a substantial issue.'" See Fed. R. Crim. P. 37.17

Opposing the motions, the government first argued that

it did not have the sought-after materials before or during

appellants' trial. The government next asserted that it gave

appellants the materials after they filed their motion, thus

mooting their request. And the government then contended that the

materials involved statements made by cooperating witnesses from

La Rompe, none of whom were present when Pekeke got killed.

Accusing the government of making an "incomplete"

disclosure, appellants blasted prosecutors in their reply memo for

17 As a leading treatise in the field explains:
If a party moves for relief in the district court that
the court has no power to grant because an appeal is
pending, Rule 37(a) provides the district court with
three options: it may (1) defer considering the motion;
(2) deny the motion; or (3) state either that it would
grant the motion if the court of appeals remands for
that purpose or that the motion raises a substantial
issue. If the district court takes approach (3) and
states that it would grant the motion or that the motion
raises a substantial issue, Rule 37(b) requires the
movant to notify the circuit clerk promptly. Then the
movant can ask the court of appeals to remand to allow
the district court to consider the motion.
3 Charles Alan Wright et al., Federal Practice and Procedure:
Criminal § 644.1 (4th ed. 2019) (footnotes, citations, and internal
quotation marks omitted).
- 36 -
violating "Brady" — an accusation the government denied in its

surreply memo. They later stated in an "informative motion" that

the government had disclosed additional documents containing

"sometimes inconsistent accounts by witness Luis Yanyoré-Pizarro"

concerning Pekeke's murder. Focusing on an FBI interview memo,

they wrote that Yanyoré-Pizarro's version "describe[d] — directly

contrary to the government's account at [their] trial — why" a La

Rompe leader had ordered Pekeke's murder, and how "this killing

was not part of the [La] ONU-[La] Rompe 'war.'"

The judge rejected appellants' Brady-based theory,

noting that nothing supports the notion that the government had

the material before or during their trial and so Brady does not

apply. And then the judge dashed their new-trial hopes. Quoting

Flores-Rivera, 787 F.3d at 15 — which quoted González-González,

258 F.3d at 20, which in turn quoted United States v. Wright, 625

F.2d 1017, 1019 (1st Cir. 1980) — the judge set out the standard

for granting a new-trial motion based on newly-discovered

evidence, which requires that

(1) the evidence was unknown or unavailable to the
defendant at the time of trial; (2) failure to learn of
the evidence was not due to lack of diligence by the
defendant; (3) the evidence is material, and not merely
cumulative or impeaching; and (4) it will probably
result in an acquittal upon retrial of the defendant.

This is known variously as the "Wright test" or the "Wright

standard." See United States v. Martínez-Mercado, 919 F.3d 91,
- 37 -
105 (1st Cir. 2019); United States v. Maldonado-Rivera, 489 F.3d

60, 66 (1st Cir. 2007). Anyhow, the judge noted that Judge Smith

had found Yanyoré-Pizarro's statements too unclear and seemingly

inconsistent to satisfy the Wright test. And she agreed with that

take. Yanyoré-Pizarro's "account of Pekeke's murder," she wrote,

"appears to have been as variable as the wind," blaming, "at

different points," different persons for Pekeke's murder. She

also thought that Yanyoré-Pizarro lacked personal knowledge of

many of the material facts surrounding Pekeke's death and was

merely "repeating the gossip he had heard about the different

people" supposedly "behind the death." So the judge ruled that

our appellants had not shown that Yanyoré-Pizarro's "testimony

. . . would probably result in their acquittal" in any "retrial."

Undaunted, appellants later asked the judge to

reconsider. As support, they argued that on the very day the judge

denied their motions, Yanyoré-Pizarro testified at a hearing for

separately-tried codefendant Cruz-Ramos and again gave an account

of Pekeke's murder that differed from the testimony presented by

the government at their trial — an account (as described by them)

indicating that a La Rompe leader ordered Pekeke killed to settle

"an internal dispute" among [La] Rompe members. "[I]f a jury were

to believe that version," they wrote, "it is more than reasonably

likely that none of [them] would have been convicted of the murder

- 38 -
of 'Pekeke.'" They thought this way because the government

prosecuted Pekeke's murder "on the basis of the VICAR statute" —

a statute that (to again quote from their motion) forbids "murder

. . . committed for the purpose of acquiring, maintaining or

increasing a position in . . . La ONU."18 And in their view, this

"newly discovered evidence" would sabotage the VICAR statute's

purpose element. They did not discuss — or even cite — Wright or

its offspring, however.

The government countered that Yanyoré-Pizarro had "no

personal knowledge" about Pekeke's murder and that his testimony

shed no light on what "motivat[ed]" our appellants "to participate"

in the murder. Arguing further, the government claimed that

Yanyoré-Pizarro's statements actually corroborated "facts proven

at trial," like his confirming that a guy named Joshua had shot

Pekeke.

Still convinced that our appellants had not fulfilled

their burden for obtaining a new trial, the judge denied their

reconsideration motion in a docket order.

18 See United States v. Brandao, 539 F.3d 44, 56 (1st Cir.
2008) (noting both that "the motive requirement in VICAR [is] a
general one, satisfied by proof either that the crime was committed
in furtherance of defendant's membership in the enterprise or
because it was expected of him by reason of his membership," and
that the government is not required to "prove this was sole
purpose").
- 39 -
 Arguments and Analysis19

Astacio-Espino, Lanza-Vázquez, and Rivera-Carasquillo

do not contest the judge's ruling that they had no right to post-

conviction discovery. They challenge only the judge's ruling that

they had no right to a new trial. And on that score, they argue

that they should get a new trial under the Wright test. To their

way of thinking, "[t]he after-discovered [Yanyoré-Pizarro]

evidence tends to support the conclusion that Pekeke's murder was

the result of cooperation between" La Rompe and La ONU, "not the

result of La ONU acting" on its own because the gangs "were at war

with each other." The evidence thus destroys "the required

'purpose' element of the VICAR statute," their argument runs — and

so if the jury had heard and believed Yanyoré-Pizarro's version,

"it is probable that none of them would have been convicted of the

murder of Pekeke." Disagreeing, the government asserts that

appellants waived their Wright-based argument by not making it

below. Waiver aside, the government believes that their claim

flops because the so-called "newly discovered evidence" is based

on inadmissible hearsay, meaning the evidence lacks materiality

19Earlier, the government questioned whether our appellants
filed timely notices of appeal. But the government now agrees
with them that they did. And we will assume without deciding that
they are right. See, e.g., United States v. Uribe-Londono, 177 F.
App'x 89, 89 n.2 (1st Cir. 2006) (taking the assuming-without-
deciding approach).
- 40 -
and would not probably produce a new result at a retrial. For our

part, we think the government is right about waiver — so we start

and stop there.

To succeed in a typical new-trial motion alleging newly-

discovered evidence, a defendant must satisfy all four elements of

the Wright test — i.e., and to repeat, he must show that the

evidence (1) was either unknown or unavailable at time of trial;

(2) could not have been discovered sooner with due diligence;

(3) is material, not merely cumulative or impeaching; and

(4) would probably lead to acquittal at a retrial — a heavy burden

for any defendant. See, e.g., United States v. Peake, 874 F.3d

65, 69 (1st Cir. 2017); Flores-Rivera, 787 F.3d at 15; Maldonado-

Rivera, 489 F.3d at 65-66.

If, on the other hand, the defendant bases his new-trial

motion on the delayed disclosure of Brady evidence — which consists

of exculpatory or impeaching evidence — a more defendant-friendly

standard applies: he must still meet elements one and two

(unavailability and due diligence), though caselaw swaps out

elements three and four (materiality and prejudice) for a

unitary requirement that the defendant . . . demonstrate
only a reasonable probability that, had the evidence
been disclosed to the defense in a timely manner, the
result of the proceeding would have been different.

Peake, 874 F.3d at 69 (emphasis added and internal quotation marks

omitted). What makes this standard more defendant-friendly (at
- 41 -
least for present purposes) is that rather than having to show

"'actual probability that the result would have differed,'" a

defendant need only show "something sufficient to 'undermine[]

confidence'" in the jury's verdict. See United States v. Mathur,

624 F.3d 498, 504 (1st Cir. 2010) (emphasis and alteration in

original) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995));

accord Flores-Rivera, 787 F.3d at 15-16; see also United States v.

Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993) (explaining that the

"somewhat delphic 'undermine confidence' formula suggests that

reversal might be warranted in some cases even if there is less

than an even chance that the evidence would produce an acquittal").

Ultimately, we review a judge's decision under either

standard only for abuse of discretion. See, e.g., United States

v. Connolly, 504 F.3d 206, 211-12 (1st Cir. 2007).

Back to our case. Appellants made Brady-based arguments

in their new-trial motion, using the "reasonable probability"

standard that governs new-trial requests tied to alleged Brady

violations. Indeed, in pressing their motion, they cited to

Flores-Rivera — a Brady-based case involving the modified

standard, not the Wright standard. See 787 F.3d at 8. They did

not mention, let alone apply, the Wright test. Which defeats their

attempt to do so here, because "legal theories not asserted in the

lower court cannot be broached for the first time on appeal." See

- 42 -
Goodwin v. C.N.J., Inc., 436 F.3d 44, 51 (1st Cir. 2006); see also

McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 n.7 (1st Cir. 1991)

(adding that "[c]ourts are entitled to expect represented parties

to incorporate all relevant arguments in the papers that directly

address a pending motion"). The raise-or-waive rule is "founded

upon important considerations of fairness, judicial economy, and

practical wisdom." Nat'l Ass'n of Soc. Workers v. Harwood, 69

F.3d 622, 627 (1st Cir. 1995). And appellants offer no reason not

to apply that rule in the circumstances of this case. So their

new-trial claim is a no-go.20 See Eldridge v. Gordon Bros. Grp.,

L.L.C., 863 F.3d 66, 85 (1st Cir. 2017).

We should add (as a quintessential belt-and-suspenders

maneuver) that even if we were willing to overlook appellants'

20 A subheading in Astacio-Espino's lead brief suggests that
the judge erred by denying the new-trial motion "Without a Hearing"
— a suggestion adopted by his coappellants. But their appellate
papers never explain how the no-hearing here amounts to reversible
error. Which means the argument is waived. See, e.g., Tutor
Perini Corp. v. Banc of Am. Sec. LLC, 842 F.3d 71, 96 (1st Cir.
2016).
Astacio-Espino writes in his reply brief that "[t]he matter
had not even reached the point [below] where the defendants might
in good faith have requested an evidentiary hearing, much less the
point where they might have filed a memorandum showing satisfaction
of the four Wright factors" — contentions shared by his
coappellants. But because they did not raise these arguments until
the reply brief, we consider them waived, see United States v.
Marino, 833 F.3d 1, 6 n.3 (1st Cir. 2016) — particularly since
they highlight no "extraordinary circumstances" justifying any
easing of this customary rule, see Lawless, 894 F.3d at 25.
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waiver of a Wright-centric argument — and we most certainly are

not — they would still lose. The judge, to repeat, agreed with

Judge Smith that Yanyoré-Pizarro indicated that various people had

various motives for offing Pekeke.21 The judge also agreed with

Judge Smith that given Yanyoré-Pizarro's changing narrative,

appellants cannot satisfy their hefty burden of showing that the

relied-on statements make it actually probable that a jury would

acquit them on retrial. Affirming Judge Smith's ruling, Laureano-

Salgado stressed that "[a]t any new trial the jury would weigh"

(a) "Yanyoré-Pizarro's shifting" account and his lack of personal

knowledge of certain details behind Pekeke's murder against

(b) the testimony of Figueroa-Cancel, Gutiérrez-Santana, and

21
Laureano-Salgado, ___ F.3d at ___ [Nos. 17-1052, 1053, slip
op. at 22] provides a detailed discussion of Yanyoré-Pizarro's
ever-shifting finger-pointing. We excerpt a key passage here,
however (we add the bracketed information for clarity):
[Yanyoré-Pizarro's] statements . . . show that [he]
basically suggested that different persons had different
motives for killing Pekeke: (a) La Rompe[] [leaders
known as] Trenza and Papito Mojica, apparently to take
over Pekeke's drug points; (b) La Rompe bosses at the
Alturas de Cupey housing project, supposedly because
Pekeke had refused their help request [regarding their
drug business]; (c) [a] La Rompe[] [member known as]
Frank, apparently because Frank and Pekeke could not
agree on who was "the boss" — in his last version of
this narrative, Yanyoré-Pizarro had Frank working with
La ONU to gun down Pekeke; and (d) gangbangers from the
Luis Llorén Torres housing project, supposedly because
Pekeke had orchestrated their leader's murder.
Id.
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Figueroa-Viera "implicating" the defendants there "in [the]

slaying" and showing that these witnesses helped take Pekeke down.

Laureano-Salgado, ___ F.3d at ___ [Nos. 17-1052, 1053, slip op. at

22-23]. So too here. Laureano-Salgado also concluded that the

"evidentiary comparison" showed that Yanyoré-Pizarro's varying

accounts "are not 'sufficiently compelling' as to generate a

realistic probability of an acquittal on the VICAR" charges. Id.

[slip op. at 23] (quoting United States v. Alicea, 205 F.3d 480,

487 (1st Cir. 2000)). And again, so too here. Which is why

appellants are out of luck here, waiver or not.

One last claim, and we are done.

Crime-of-Violence Claim

As we mentioned many pages ago, the jury found Astacio-

Espino, Lanza-Vázquez, and Rivera-Carasquillo guilty on various

counts of using and carrying a firearm during a "crime of violence"

— i.e., VICAR murder predicated on Puerto Rico's murder statute —

in violation of 18 U.S.C. § 924(c)(1)(A).22 A "crime of violence,"

you should know, is any felony offense that

22The pertinent Puerto Rico statute, P.R. Laws Ann. tit. 33,
§ 4734, provides that first-degree murder is
(a) Any murder committed by means of poison, stalking or
torture, or with premeditation.
(b) Any murder committed as a natural consequence of the
attempt or consummation of aggravated arson, sexual
assault, robbery, aggravated burglary, kidnapping, child
abduction, serious damage or destruction, poisoning of
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 (A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or

(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.

Courts sometimes call subparagraph (A) the "force clause" and

subparagraph (B) the "residual clause." See, e.g., United States

v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017).

Our appellants believe first-degree murder under Puerto

Rico law is not a crime of violence under either the force clause

or the residual clause. Because they (admittedly) did not raise

the crime-of-violence issue below, they must now run the gauntlet

of plain-error review — a very-difficult-to-meet standard,

remember (see footnote 14), that requires them to "show (1) error,

(2) plainness, (3) prejudice [to them], and (4) an outcome that is

a miscarriage of justice or akin to it." See United States v.

Edelkind, 467 F.3d 791, 797 (1st Cir. 2006); see also United States

v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016) (stressing that "[t]he

party asserting plain error bears the burden of persuasion"); see

bodies of water for public use, mayhem, escape, and
intentional abuse or abandonment of a minor.
(c) The murder of a law enforcement officer, school
police, municipal guard or police officer, marshal,
prosecutor, solicitor for minors' affairs, special
family solicitors for child abuse, judge or custody
officer in the performance of his duty, committed while
carrying out, attempting or concealing a felony.
- 46 -
generally Puckett, 556 U.S. at 135 (emphasizing that meeting all

four plain-error factors "is difficult, as it should be").

Helpfully for appellants, after the completion of

briefing here, the Supreme Court struck down the residual clause

as unconstitutionally vague. See United States v. Davis, 139 S.

Ct. 2319, 2336 (2019). And with the residual clause now out of

way, they must convince us that a violation of Puerto Rico's murder

statute cannot be a crime of violence under the force clause. They

say they can because, in their words, Puerto Rico's murder statute

"has no element requiring the intentional use, attempted use, or

threatened use of violent physical force" — "killing," they write,

"could encompass non-physical force." The government says they

cannot because, to quote its brief, "common sense" suggests that

there is probably no "more 'violent' crime than premeditated

murder."

Right off the bat, though, appellants have a problem.

Under a brief subheading titled "Defendants Meet the Plain Error

Standard," appellants explain why they should get plain-error

relief since a violation of Puerto Rico's murder statute cannot be

a crime of violence under the residual clause — a point well taken,

especially given the Supreme Court's hot-off-the-presses Davis

decision. But (and it's a very big but) they do not explain why

reliance on the force clause here is plain error — for example,

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they never say how any error (if error there was) is "plain," i.e.,

"an 'indisputable' error . . ., 'given controlling precedent.'"

See United States v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016)

(quoting United States v. Correa-Osorio, 784 F.3d 11, 22 (1st Cir.

2015)). Properly applying force-clause precedent is no picnic (an

understatement if ever there was one), seeing how the "'crime of

violence'" definition "is complex and unclear." See U.S.S.G.,

Supplement to Appendix C, Amend. 798 at 119 (2018). So the parties

must give us the help we need — again, it is for them, not us, to

"develop[] sustained argument out of . . . legal precedents." See

Town of Norwood v. Fed. Energy Reg. Comm'n, 202 F.3d 393, 404-05

(1st Cir. 2000). But what our appellants have done — making no

effort to satisfy every part of the plain-error test on the force-

clause question (despite having the burden of proving plain error)

— "is hardly a serious treatment of a complex issue." See Tayag

v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011).

Which dooms their crime-of-violence claim — for as legal

sophisticates know, a party's "failure to attempt to meet the four-

part burden under plain error review constitutes waiver." See

United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir. 2018)

(relying on Pabon, 819 F.3d at 33-34).

And that is that.

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 Wrap Up

Because appellants' challenges come to naught, we

affirm.

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