United States v. Rosario-Orangel
CourtCourt of Appeals for the First Circuit
Date FiledOctober 23, 2026
Docket20-1275
StatusPublished
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Full Opinion
United States Court of Appeals
For the First Circuit
Nos. 20-1275, 20-1276, 20-1283
UNITED STATES OF AMERICA,
Appellee,
v.
EDUARDO ROSARIO-ORANGEL, a/k/a Barba, a/k/a Cholon; AVELINO
MILLÁN-MACHUCA, a/k/a Papito Machuca, a/k/a El Fuerte, a/k/a
Viejo, a/k/a Gordo; LUIS H. QUIÑONES-SANTIAGO, a/k/a Hiram,
Defendants, Appellants.
APPEALS 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.*
Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law
Office LLC was on brief, for appellant Eduardo Rosario-Orangel.
Alejandra Bird López, with whom Eric Alexander Vos, Federal
Public Defender, Rachel Brill, Federal Public Defender, and Franco
L. Pérez-Redondo, Assistant Federal Public Defender, were on
brief, for appellant Avelino Millán-Machuca.
Javier A. Morales-Ramos, for appellant Luis H.
Quiñones-Santiago.
* Of the District of Massachusetts, sitting by designation.
Alexander L. Alum, Assistant United States Attorney, with
W. Stephen Muldrow, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Francisco A.
Besosa-Martínez, Assistant United States Attorney, Juan Carlos
Reyes-Ramos, Assistant United States Attorney, and Ricardo A.
Imbert-Fernández, Assistant United States Attorney, on brief, for
appellee.
October 23, 2026
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BARRON, Chief Judge. We once again address challenges
that Luis H. Quiñones-Santiago, Eduardo Rosario-Orangel, and
Avelino Millán-Machuca1 bring to their federal convictions based
on statements that they contend were wrongly admitted into evidence
at their joint trial in the United States District Court for the
District of Puerto Rico. The convictions are, with respect to
each of these defendants, for conspiracy to violate the Racketeer
Influenced and Corrupt Organizations ("RICO") Act, see 18 U.S.C.
§ 1962(d), and conspiracy to possess with intent to distribute a
controlled substance, see 21 U.S.C. § 846.
In an earlier opinion in these consolidated appeals, we
rejected these three defendants' other challenges to their
convictions. We explained at that time, however, that we could
not resolve their challenges based on alleged hearsay statements
because the District Court had not made key findings about their
admissibility. For the same reason, we also explained that we
could not resolve Millán's challenge based on cumulative error,
because we concluded that the findings, once made, might bear on
it. We therefore remanded for the District Court to make the
Consistent with the appellants' opening briefs and our
1
practice regarding "Spanish naming customs," we refer to the
appellants as "Quiñones," "Rosario," and "Millán," respectively.
United States v. Rosa-Borges, 101 F.4th 66, 68 n.1 (1st Cir. 2024);
see Caz v. Garland, 84 F.4th 22, 25 n.1 (1st Cir. 2023).
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appropriate findings, while retaining jurisdiction over the
appeals brought by Quiñones, Rosario, and Millán.
The District Court has now made the relevant findings
and concluded, based on them, that the statements at issue were
properly admitted into evidence. The parties have provided
supplemental briefing addressing those findings, and we have
carefully reviewed the parties' filings and the record. Our review
leads us to reject the challenges Quiñones, Rosario, and Millán
bring to their convictions based on the statements that each
contends were improperly admitted into evidence. That review also
leads us to reject Millán's challenge to his convictions based on
cumulative error. We therefore affirm these three defendants'
convictions.
I.
The convictions stem from a federal criminal
investigation into the activities of La Asociación Ñeta ("La
Ñeta"), an organization originally founded by prisoners to
advocate for their rights throughout Puerto Rico's prisons. Based
on that investigation, the U.S. government brought criminal
charges against fifty defendants in the District of Puerto Rico.
Quiñones, Rosario, and Millán were among them, and each of these
defendants was charged with two criminal counts.
The first count was for RICO conspiracy under 18 U.S.C.
§ 1962(d) for conspiring to violate 18 U.S.C. § 1962(c), which
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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." "[R]acketeering
activity" includes, as relevant here, "dealing in a controlled
substance," id. § 1961(1), and a "pattern of racketeering
activity" is defined as "at least two acts of racketeering," id.
§ 1961(5), that are "related, occur within ten years of one
another, and pose a threat of continued criminal activity," United
States v. Millán-Machuca, 991 F.3d 7, 18 (1st Cir. 2021).
The indictment alleged that the RICO enterprise was La
Ñeta. It alleged that entity had "evolved . . . [into] a criminal
organization" "whose members and associates engaged in drug
distribution and acts of violence, including murder." It further
alleged that Quiñones, Rosario, and Millán conspired to
participate directly or indirectly to facilitate La Ñeta's pattern
of racketeering activity involving drug trafficking in cocaine,
heroin, and marijuana.
The other count was for conspiracy to violate 21 U.S.C.
§ 841(a)(1), which makes it "unlawful for any person knowingly or
intentionally" "to manufacture, distribute, or dispense . . . a
controlled substance." Id.; see id. § 846 (criminalizing
conspiracy to violate § 841). The indictment alleged that
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Quiñones, Rosario, and Millán each had conspired to "knowingly and
intentionally possess with intent to distribute" more than one
"kilogram of a mixture or substance" containing heroin, more than
five "kilograms of a mixture or substance containing" cocaine, and
more than one hundred "kilograms of a mixture or substance
containing" marijuana.
After being jointly tried before a jury, Quiñones,
Rosario, and Millán were each convicted on both counts. They then
appealed, and we consolidated their appeals with the appeals that
three of their codefendants -- Luis Daniel Ramos-Baez, Juan J.
Claudio-Morales, and José Rafael Sanchez-Laureano -- had brought
to their convictions for the same two offenses. See United States
v. Ramos-Baez, 86 F.4th 28, 45-46 (1st Cir. 2023).
In our earlier opinion addressing these consolidated
appeals, we rejected the challenges brought by Ramos, Claudio, and
Sanchez to their convictions. We concluded, however, that we could
not resolve the challenges that Quiñones, Rosario, and Millán
brought based on certain statements that the government contended
were admissible at their trial pursuant to United States v.
Petrozziello, 548 F.2d 20 (1st Cir. 1977), but for which key
findings had not been made.
That case holds that, pursuant to Federal Rule of
Evidence 801(d)(2)(E), a statement that would otherwise be
inadmissible as hearsay is admissible if the district court finds
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that the party seeking its admission has shown by a preponderance
of the evidence that a coconspirator made the statement "during
and in furtherance of the conspiracy." Petrozziello, 548 F.2d at
22 (quoting Fed. R. Evid. 801(d)(2)(E)). Proof of the declarant's
membership in the conspiracy must be corroborated by "extrinsic
evidence beyond the statement itself." Ramos-Baez, 86 F.4th at
72. "The rationale" underlying this exception is that, because
"conspirators are partners in crime," they are
"deem[ed] . . . agents of one another." Anderson v. United
States, 417 U.S. 211, 218 n.6 (1974). "And just as the
declarations of an agent bind the principal only when the agent
acts within the scope of his authority, so the declaration of a
conspirator must be made in furtherance of the conspiracy charged
in order to be admissible against his partner." Id.
We explained that the District Court had not made
findings as to whether the alleged hearsay statements were in fact
made by a coconspirator during and in furtherance of the
conspiracy. We further concluded that we could not deem that
failure harmless because it was "not apparent" on the record before
us "whether the preponderance standard ha[d] been met" as to the
statements that Quiñones, Rosario, and Millán challenged under
Petrozziello. (Quoting United States v. Machor, 879 F.2d 945, 951
(1st Cir. 1989).)
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Accordingly, we remanded the three defendants' cases for
the District Court to make Petrozziello findings, while retaining
jurisdiction over their consolidated appeals. We also dismissed
without prejudice Millán's appeal insofar as it challenged his
convictions on the ground that the aggregate effect of errors at
his trial required vacating his conviction.2 We did so because we
concluded that a finding of Petrozziello error might support
Millán's cumulative error claim.
On remand, the District Court ordered Quiñones, Rosario,
and Millán to identify the statements for which Petrozziello
findings needed to be made. They collectively identified dozens
of such statements. The government, due to what it described as
"a calendar oversight," did not file a response. The District
Court then held a hearing and "f[ound] by a preponderance of the
evidence that with respect to the three defendants, the declarants
and the three defendants were members of the same conspiracy at
the time the statements were made," "the statements were made in
furtherance of the conspiracy," and "there was ample extrinsic
evidence beyond the statement[s themselves] of the defendants'
involvement in the conspiracy."
2 Quiñones also brought a cumulative error challenge, which
we rejected on the ground that "no error" had been found in the
"various [other] rulings" Quiñones challenged, leaving us with "no
cumulative effect to consider." (Quoting United States v.
Pérez-Montañez, 202 F.3d 434, 440-41 (1st Cir. 2000).)
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After the District Court's ruling on remand, we sought
supplemental briefing from the parties. The bulk of the statements
that Quiñones, Rosario, and Millán identify in their supplemental
briefing as having been admitted into evidence in violation of
Petrozziello were recounted in testimony at their trial by three
La Ñeta members, each of whom had pleaded guilty to the charged
RICO conspiracy. Those individuals are José González-Gerena, Alex
Miguel Cruz-Santos, and Orlando Ruiz-Acevedo.
Some of the other challenged statements were recounted
in the testimony that another La Ñeta member, Miguel
Álvarez-Medina, gave. He was not charged, however, in the
conspiracy, and he denied having ever participated in La Ñeta's
illicit activities, such as drug trafficking. The remaining
statements that we must address were entered into evidence through
transcripts and recordings of intercepted phone calls.
II.
The government contends that, in our prior opinion, we
"circumscribed" our review under Petrozziello to encompass only
those statements to which Quiñones, Rosario, and Millán
contemporaneously objected on Petrozziello grounds at their trial.
The government therefore argues that we must reject the vast
majority of the challenges under Petrozziello that Quiñones,
Rosario, and Millán advance in their supplemental briefing on the
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ground that none of these three defendants lodged any such
objection to the statements that underlie those challenges.
The government also argues that Quiñones, Rosario, and
Millán have waived their challenges to their convictions that rest
on any statements that were not specifically advanced in their
opening briefs in these appeals. So, the government contends, for
that reason, too, we must reject many of the challenges that
Quiñones, Rosario, and Millán now advance in their supplemental
briefs because, in their opening briefs to us, these three
defendants did not identify many of the statements that they now
contend were wrongly admitted under Petrozziello.
We need not address these threshold grounds for
rejecting the Petrozziello challenges before us, however, if those
challenges otherwise have no merit. Thus, we bypass the parties'
dispute about those threshold grounds because, for the reasons we
will explain, we conclude that their challenges to their
convictions under Petrozziello are unavailing once we account for
the deference that we owe the District Court's Petrozziello
findings and the substantial amount of unchallenged inculpatory
evidence that the record contains. See United States v. Ciresi,
697 F.3d 19, 26 (1st Cir. 2012) (noting that clear error review
applies to preserved Petrozziello challenges).
We emphasize upfront that the District Court did not
offer a statement-by-statement assessment under Petrozziello in
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rejecting the challenges that Quiñones, Rosario, and Millán bring
to their convictions under that precedent. Instead, the District
Court made a determination -- quoted above -- that none of the
challenges under Petrozziello had merit, given what the record
showed about the statements in question.
Quiñones, Rosario, and Millán make no argument to us
that the District Court, in so concluding, failed to make
Petrozziello findings as to any statements that they identified on
remand as being in need of such findings. They thus treat the
District Court as having made findings as to each of those
statements and simply challenge those findings on the ground that
the record does not suffice to support them. And, in pressing
their contentions that those findings do not hold up on this
record, they proceed by advancing statement-specific arguments in
their supplemental briefs.
In the analysis that follows, we directly address each
of those statement-specific challenges. In doing so, we do not
understand Quiñones, Rosario, or Millán to dispute that, if a
review of the record provides support for the District Court's
finding that each statement was made by a coconspirator during and
in furtherance of the conspiracy, then the District Court did not
err in admitting that statement under Petrozziello.
Moreover, we note that we may affirm the district court
on any ground manifest in the record. Segrain v. Duffy, 118 F.4th
- 11 -
45, 58 (1st Cir. 2024). Thus, to the extent the record makes clear
that any error under Petrozziello with respect to a specific
challenged statement would be harmless, we may reject the
Petrozziello-based challenge to that statement on that ground
alone. See United States v. Piper, 298 F.3d 47, 56-58 (1st Cir.
2002). And further, whenever there is some other basis manifest
in the record for rejecting a challenge to a statement that is
independent of the District Court's ground for doing so, we may
reject the challenge to that statement on that independent ground
as well. See, e.g., United States v. Barone, 114 F.3d 1284, 1296
(1st Cir. 1997) ("[W]e may affirm the district court's evidentiary
rulings on any ground apparent from the record on appeal.").
III.
We begin with Quiñones's Petrozziello challenges. They
concern statements that three distinct declarants made and that
were recounted in testimony that Ruiz and Cruz gave.
A.
Quiñones first takes aim at statements Ruiz recounted
that had been made by a La Ñeta member known as "Jowy" about
"differences and problems" between Jowy and Quiñones due to the
latter's failure to pass along certain drug "incentives" to La
Ñeta. The "incentives" were payments owed to La Ñeta in exchange
for that organization giving individual La Ñeta members permission
to sell drugs on their own behalf.
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Quiñones contends that these statements are not
admissible under Petrozziello because they merely described drug
dealing that advanced Quiñones's personal interests. As a result,
he contends they were not statements that a coconspirator made in
furtherance of a conspiracy involving him and Jowy.3
The record supportably shows, however, that González
(one of the cooperating witnesses for the government who pleaded
guilty to the charged conspiracy) separately testified that he had
personally "work[ed] . . . drugs with Jowy" on behalf of La Ñeta.
And the challenged statement by Jowy, on its face, conveyed
information regarding "differences and problems" between him and
Quiñones due to Quiñones's supposed failure to comply with La
Ñeta's requirements for paying drug "incentives" to that
organization. Thus, the District Court did not clearly err in
admitting this statement into evidence as a statement that a
coconspirator made during and in furtherance of the conspiracy to
facilitate La Ñeta's racketeering activities. See United States
v. Pérez-Vásquez, 6 F.4th 180, 195 (1st Cir. 2021) (concluding
statements were in furtherance of the conspiracy when made by one
conspirator to keep another "abreast of current developments and
3 Quiñones does not challenge the timing of the statements by
arguing that they were not made "during" the charged conspiracy.
In any event, the record shows that the statements were made within
the timeframe charged in the indictment.
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problems facing the group" (quoting United States v. Flemmi, 402
F.3d 79, 95 (1st Cir. 2005))).
B.
Quiñones also challenges statements, recounted in Cruz's
testimony, that older La Ñeta members made to new inmates to teach
them about the structure and history of the organization. Quiñones
refers to the individuals who made these statements as the
"Elders." This challenge also fails.
Quiñones argues that Petrozziello bars these statements
because the Elders were not members of the charged conspiracy and
that, in any event, the statements were not made during and in
furtherance of that conspiracy. That is so, he contends, in part
because the statements were made outside the timeframe of the
conspiracy alleged in the indictment in which Quiñones was alleged
to have been a participant.
The government responds that the record supportably
shows that the Elders "were La Ñeta members" and thus, for that
reason alone, participants in the charged conspiracy. It goes on
to contend that the statements were made in furtherance of that
conspiracy because they provided new La Ñeta members with
information necessary to "continu[ing] on in the operation of the
association," although the government does not address when the
statements were made.
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Even if the District Court erred under Petrozziello in
admitting these statements, the error was harmless. In arguing
otherwise, Quiñones contends only that the government failed to
offer any independent "proof of the 'structure' of the [RICO]
'enterprise,'" thereby rendering the statements in question
especially damaging to his case. (Citing Boyle v. United States,
556 U.S. 938, 945 (2009).) But the record shows that these
statements were "cumulative of" a wealth of other evidence, United
States v. Valdivia, 680 F.3d 33, 46 (1st Cir. 2012), as various
witnesses testified from personal experience regarding meetings
related to La Ñeta's illicit activities, the organization's
hierarchical structure, and its practice of punishing members who
did not follow the organization's "norms and rules." Thus, we
reject this challenge on harmless error grounds. See United States
v. Rodríguez-Torres, 939 F.3d 16, 25 (1st Cir. 2019) (concluding
that the evidence "far surpasse[d] what Boyle requires for a RICO
enterprise" where an organization had "meetings[] and rules," "a
loose hierarchical structure," and a "business-like" practice of
"reward[ing] good performance and loyalty").
C.
Quiñones's remaining Petrozziello-based challenge
concerns testimony that Cruz gave about an alleged drug transaction
between Quiñones and Millán. Quiñones argues that this testimony
must have been based on statements of an unnamed third-party
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declarant, given that Cruz was in a different prison than Quiñones
at the time that the alleged transaction took place. Quiñones
then contends that there is no basis for finding that these
statements were admissible under Petrozziello as coconspirator
statements made in furtherance of the conspiracy. (In making this
challenge, Quiñones does not raise any timing-based concern about
the statements.)
Quiñones did not challenge these statements in his
opening brief to our Court. He also did not identify them in his
motion responding to the District Court's order on remand to
"identify those statements requiring . . . consideration under
[Petrozziello]." As a result, insofar as the challenge is not
waived by virtue of having been first raised only in his
supplemental briefing, our review is only for plain error. See
United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992). But
because Quiñones's opening and supplemental briefs on appeal
"fail[ed] to even mention plain error" with respect to the
statements he now challenges, "let alone argue for its application
here," he has waived on appeal any argument for meeting that
demanding standard.4 United States v. Benjamin-Hernandez, 49 F.4th
580, 585 (1st Cir. 2022).
4 Because we assume error with respect to only one of the
statements that Quiñones challenges, we are again left with "no
cumulative effect to consider." United States v. Ramos-Baez, 86
F.4th 28, 75 n.9 (1st Cir. 2023) (quoting Pérez-Montañez, 202 F.3d
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IV.
We now take up Rosario's Petrozziello challenges, which
concern the District Court's decision to allow statements that
Ruiz and Álvarez recounted in their testimony to be admitted into
evidence. The declarants are "Boringo," Dianis Negrón, and
"Quintana."
Rosario argues that there is no evidence that
establishes that any of these declarants were participants in "any
conspiracy" with him. He further argues that the record provides
no basis for finding that the statements were made during and in
furtherance of any conspiracy because it is "unknown" under what
circumstances or "for what purposes" the statements were made.
Accordingly, he contends that the District Court clearly erred in
admitting this testimony under Petrozziello. We are not persuaded
that the District Court committed reversible error.
A.
We start with the challenge to Boringo's statement about
Rosario's alleged involvement in drug trafficking. Ruiz recounted
that statement while testifying that Boringo gave Ruiz drugs to
sell on behalf of La Ñeta and that Boringo would sometimes tell
at 441). Accordingly, we reject Quiñones's revived cumulative
error challenge.
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him, "[L]ook, these drugs are good. I gave some to [Rosario]. I
gave some to Tito, I gave some to different jails."
Rosario argues that there is "no evidence" that Boringo
was a member of "any conspiracy" in which Rosario participated.
Ruiz testified, however, that he personally sold drugs for Boringo
after the date on which the charged conspiracy began, and that
Boringo paid La Ñeta in connection with those drug sales. That
testimony constitutes evidence extrinsic to the challenged
statement by Boringo about his involvement in the conspiracy with
which Rosario was charged with being a participant -- namely, the
conspiracy to facilitate La Ñeta's racketeering activities.
Moreover, the record shows that Ruiz testified that
Boringo made that statement to him while they were engaged in their
drug trafficking activities. The record thus supportably shows
that the statement was made for the purpose of Boringo
"vouching" -- to use the government's description -- for the
quality of the drugs. Accordingly, the District Court did not
clearly err in finding that a coconspirator made the statement in
furtherance of the conspiracy in question. Cf. United States v.
Colón-Díaz, 521 F.3d 29, 37 (1st Cir. 2008) (statements that a
particular individual's drugs "were 'the best' sought directly to
promote the conspiracy's goal" of selling drugs by "engender[ing]
confidence" in the buyer regarding their quality).
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B.
We also reject Rosario's challenge to Ruiz's testimony
that, even before Ruiz personally met Rosario, he "knew of" him
from "talk[ing] . . . about" him with Dianis Negrón. Rosario
argues that this testimony was attributable to statements that
Negrón made to Ruiz and that it was clear error to find that,
despite having been based on statements made by a third-party
declarant, the testimony was admissible under Petrozziello. The
government responds that this testimony "is neither hearsay nor
based on hearsay," as "Ruiz simply stated he talked about Rosario
with Negrón."
Even assuming that this testimony is hearsay or based on
hearsay, we conclude that any error in admitting it into evidence
was harmless. Rosario argues otherwise on the ground that Ruiz's
testimony regarding Rosario "would have been eliminated entirely"
if the challenged portions of it had to be excluded as hearsay.
As we have already explained, however, the District
Court did not clearly err in permitting Ruiz to testify regarding
the statement made to him by Boringo concerning Rosario's
involvement in drug trafficking. Moreover, the record shows that
when Ruiz was asked at trial whether he "kn[e]w of" Rosario prior
to meeting him, Ruiz responded that he "knew of him . . . [t]hrough
different people," including not only by talking about him with
Negrón but also through Boringo and another La Ñeta member known
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as "Tito Grande." So, any error in admitting the challenged
statements in the Ruiz testimony that Rosario attributes to Negrón
fails on harmless error grounds because Rosario does not challenge
the materially similar statements by Boringo and Tito Grande
introduced in that testimony. See Valdivia, 680 F.3d at 46.
C.
Rosario's third and final Petrozziello-based challenge
concerns a statement about his alleged participation in drug
trafficking. Álvarez recounted the statement in question while
testifying that Quintana told him that Rosario supplied him
(Quintana) with drugs.
The government argues that the District Court properly
admitted this statement under Petrozziello. It also points out in
doing so that Álvarez testified that both Quintana and another La
Ñeta member known as "Chuito Carolina" told him about Rosario's
involvement in drug trafficking.5
That last point is significant. Rosario does not dispute
that the statement by Chuito was admissible, even though it is
5 Specifically, when Álvarez was asked whether Rosario
"was . . . involved in drug trafficking" in his role "as the number
two leader" of a particular prison, Álvarez responded, "Yes." When
asked how he knew that, Álvarez responded, "He was the supplier of
two friends of mine, Omar Quintana Moss, a/k/a Omar El Gordo.
Jesus Delgado Ortiz, a/k/a Chuito Carolina. Both are [La Ñeta]
members. . . . [H]e would supply substances for them to
sell . . . ."
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"cumulative of" the challenged statement by Quintana. Valdivia,
680 F.3d at 46. He also does not challenge González's testimony
that Rosario told him on more than one occasion that he (Rosario)
had "fund" drugs -- that is, drugs that are sold by La Ñeta members
on La Ñeta's behalf. In addition, as we have just explained, the
District Court did not clearly err in admitting into evidence
Boringo's statement that he and Rosario were involved in
trafficking drugs together. Thus, any error in admitting the
Quintana statement was harmless. See id. (deeming harmless
admission of "purported hearsay testimony . . . cumulative of
other evidence in the record"); see also United States v. Veloz,
948 F.3d 418, 434 (1st Cir. 2020) (deeming admission of purported
hearsay harmless where another coconspirator "had already appeared
at trial and testified to the same effect").
V.
We come, then, to Millán's Petrozziello challenges. In
all, they concern more than a dozen statements. Some were
recounted in testimony by González, Cruz, and Álvarez. The rest
were recounted in recordings of intercepted phone calls that the
government introduced into evidence. We see no basis for
overturning Millán's convictions based on these challenges.
A.
Notably, the government argued at trial that Millán was
La Ñeta's "maximum leader" -- its highest-ranking individual -- for
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years. Also of note, Millán does not dispute that he served in La
Ñeta leadership. He argues only that the challenged statements
were improperly admitted under Petrozziello and highly
prejudicial. That is so, he contends, because the other evidence
at most "showed . . . Millán's efforts to maintain [La] Ñeta's
original prisoner advocacy mission" and to further its "legitimate
aims." That other evidence, as he sees it, did not show his
agreement to participate in a pattern of drug trafficking on behalf
of the organization or to facilitate its racketeering activities.
He also contends that these statements painted a false picture of
the control that he exercised over La Ñeta's membership or drug
proceeds.
It is important to emphasize at the outset that there is
significant inculpatory evidence against Millán that he does not
challenge under Petrozziello. Indeed, as we will explain, the
government introduced unchallenged evidence that, in his role as
maximum leader, he required that monthly reports be made regarding
the status of each prison's drug trafficking and incentive-related
finances, and he called meetings, requested reports, and issued
directives regarding La Ñeta's membership and disciplinary issues.
Other witness testimony that Millán does not challenge under
Petrozziello establishes that Millán worked directly with several
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La Ñeta members, including Cruz and Ruiz, to traffic drugs and
manage drug-related finances.6
There is a case to be made, based on this unchallenged
inculpatory evidence, that each of Millán's Petrozziello
challenges fails on harmless error grounds alone. Nonetheless,
Millán also brings a cumulative error challenge. We therefore
think it prudent to address each of the statements that he
challenges under Petrozziello so that we may properly address that
challenge. After all, even though we reject many of Millán's
individual Petrozziello challenges on harmless error grounds, he
premises his claim of cumulative error on the asserted aggregate
effect of errors that he contends is greater than the effect of
any one of the asserted errors on its own. See United States v.
Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993) (explaining that
multiple errors may "in the aggregate have a more debilitating
effect" on the fairness of trial proceedings than the errors
considered in isolation). Thus, to properly evaluate that
contention, it is important to ensure that we have a firm grasp on
the universe of challenged statements, if any, that may have been
6 As we explain below, we previously rejected Millán's
challenges to Cruz and Ruiz's testimony under the Jencks Act, 18
U.S.C. § 3500; Brady v. Maryland, 373 U.S. 83 (1963); and Giglio
v. United States, 405 U.S. 150 (1972).
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admitted into evidence in violation of Petrozziello. Hence, the
need for the statement-by-statement analysis that follows.
B.
We start with Millán's challenge to Jowy's statement
that Millán sent drugs to him to sell on behalf of La Ñeta.
González recounted the statement while testifying that, when he
was "working the drug tables" with Jowy, Jowy told him, "[W]e have
to tally up this for [Millán], 200. There can't be any credit on
this. This has to be a ticket over another ticket."
Millán argues that the District Court clearly erred in
finding this statement admissible under Petrozziello because "the
record lacks extrinsic evidence establishing that Jowy and
[Millán] were [coconspirators]" and does not "demonstrate" that
the statement was made in furtherance of the conspiracy.7 As we
explained above, however, González's firsthand testimony about
"working the drug tables" with Jowy is record evidence, extrinsic
to the challenged statement, of Jowy's membership in the conspiracy
in which Millán was charged with being a participant. In addition,
given the context that González's testimony provides, the
statement Millán challenges about what Jowy said about him to
González is fairly understood to have been intended to communicate
7 Millán makes no argument disputing that the statement in
question was made during the charged conspiracy.
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information to González regarding La Ñeta's priorities for
processing the drugs in question. Thus, there was no clear error
under Petrozziello in admitting this statement into evidence as a
statement of a coconspirator made during and in furtherance of the
conspiracy. See United States v. Martinez-Medina, 279 F.3d 105,
117 (1st Cir. 2002) (concluding that statements were made in
furtherance where they "conveyed to other [coconspirators]
information about the operations of the drug conspiracy").
C.
We next consider Millán's challenge to the statement
that Millán appointed Claudio, one of Millán's codefendants, to
collect phone "incentives" -- that is, payments that members of La
Ñeta made to the organization for the privilege of using certain
contraband cell phones. González recounted this statement when he
testified that an individual known as "Sandwich" told him that
Millán assigned Claudio "to deal with the cell phone incentives"
because he was "upset" with him.8
Millán argues that the record lacks extrinsic evidence
either that the declarant -- whom Millán does not
identify -- conspired with Millán or that the declarant made the
8 Millán does not argue that this particular statement was
hearsay-within-hearsay.
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statements in furtherance of a conspiracy.9 The District Court
did not clearly err in finding that this statement satisfied
Petrozziello.
Contrary to Millán's assertion, the record provides
extrinsic evidence of Sandwich's membership in the conspiracy in
which Millán was charged with being a participant. Specifically,
one witness testified that Sandwich threatened to kill another La
Ñeta member for being a "snitch." See United States v. Rodríguez,
162 F.3d 135, 143 (1st Cir. 1998) (concluding that a defendant's
"violence against a suspected informant [wa]s relevant to prove
his membership in the conspiracy"). In addition, the statement
may supportably be found