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United States v. Latorre-Cacho

United States Court of Appeals, First Circuit

October 25, 2017

JOSE LATORRE-CACHO, Defendant, Appellant.


          Tina Schneider was on brief for appellant.

          Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

          Before Thompson, Selya, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         In 2014, a jury convicted Jose Latorre-Cacho ("Latorre") of one count of conspiracy in violation of 18 U.S.C. § 1962, which is a provision of the Racketeer Influenced and Corrupt Organization ("RICO") Act. He now appeals. Due to the portion of the jury instructions in which the District Court incorrectly described what constitutes "racketeering activity" under the Act, we vacate Latorre's conviction and remand for further proceedings.


         In 2014, a multi-count, multi-defendant federal indictment in the District of Puerto Rico charged Latorre with RICO conspiracy in violation of 18 U.S.C. § 1962(d); conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841, 846 and 860; and conspiracy to possess firearms in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(o). Latorre went to trial on all three counts. A jury convicted him only of RICO conspiracy, which was listed as Count I of the indictment. The District Court then sentenced Latorre to a term of 120 months, to be followed by five years' supervised release.

         18 U.S.C. § 1962(d) makes it a crime to conspire to commit a RICO Act violation. Id. 18 U.S.C. § 1962(c) provides that it is unlawful under the RICO Act "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 or collection of unlawful debt." Id.

         A separate provision of the statute defines what constitutes "racketeering activity" to include, among other conduct: "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical." Id. § 1961. That definition does not, however, include the commission of firearms offenses, or even the involvement with firearms, as "racketeering activity."

         This last fact about the RICO Act's definition of "racketeering activity" is a key component of one of Latorre's challenges to his conviction on appeal. In particular, that challenge takes aim at a portion of the extensive instructions that the District Court gave the jury about it what it had to find in order to convict Latorre of RICO conspiracy. In that portion of the instructions, the District Court, in the course of describing what constitutes "a pattern of racketeering activity, " twice incorrectly stated that "firearms" constitutes "racketeering activity." Specifically, the District Court stated:

          To establish a pattern of racketeering activity as alleged in Count I of the indictment, the government must prove three elements beyond a reasonable doubt.

First, that the defendant agreed that a conspirator, which could include the defendant himself, did or would intentionally commit or cause or aid and abet the commission of two or more of the racketeering acts of the types alleged in the indictment. Drug dealing, firearms, robberies, carjackings.
Later in these instructions, I will detail for you elements regarding each of these types of racketeering activities. But you know from the summary I have given you up to now that the types of racketeering activity are the ones I just mentioned a minute ago, narcotics distribution, robberies, and carjackings, and of course firearms. (Emphases added).

         On appeal, Latorre argues that his conviction must be overturned because of the mistaken instructions that "firearms" constitute "racketeering activity." He notes in this regard that the government put forth extensive evidence of both the enterprise's and Latorre's involvement with "firearms, " and that Latorre testified at trial that he had no sufficient connection to the enterprise's racketeering activity (through firearms or otherwise) to be found guilty of conspiring to commit a RICO Act violation.

         Latorre also presses three other challenges on appeal. He argues that certain special interrogatories concerning drug quantity set forth on the verdict form were unduly suggestive. He contends that it was error for the District Court, after the jury told the District Court that it had reached a verdict and was called back into the courtroom, to have directed the jury to "complete" the verdict form after informing the jury that "something is missing." Finally, he argues that the District Court erred in not including special interrogatories on the verdict form that would have required the jury to specify the "racketeering activity" that the jury found.

         Because we conclude that Latorre's challenge to the jury instructions has merit, we do not reach his other challenges. We thus both begin and end our analysis with the jury instructions issue.


         In a federal criminal trial, the Fifth Amendment's guarantee of due process of law requires the government to prove beyond a reasonable doubt every element of the offense for which the defendant is charged. Thus, jury instructions may violate a defendant's constitutional right to due process if they relieve the government of its obligation to meet that requirement. See Middleton v. McNeil, 541 U.S. 433, 437 (2004).

         At the same time, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is whether the ailing instruction so infected the entire trial that the resulting conviction violates due process." Id. (internal quotation and alteration omitted). A jury instruction thus violates the Constitution for failing to properly instruct the jury regarding the elements of an offense only when "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Id. (internal quotation omitted).

         In this case, Latorre contends that the jury instructions permitted the jury to return a verdict on the RICO conspiracy count on a legally invalid theory of what constitutes "racketeering activity" by defining "racketeering activity" to include "firearms." See Skilling v. United States, 561 U.S. 358, 414 (2010) (explaining that "constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory") (citing Yates v. United States, 354 U.S. 298 (1957)). The government agrees that "racketeering activity" does not include "firearms." Thus, our task is to determine whether, after taking account of the District Court's erroneous description of "racketeering activity, " the instructions in their "entirety -- and in the context of the evidence -- presented the relevant issues to the jury fairly and adequately." Sony BMG Entm't v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011).

         Latorre concedes, however, that he did not object at trial to the portion of the jury instructions that he now contends rendered the instructions invalid. Thus, in undertaking our inquiry into the import of the misstatements of law that the instructions contained regarding what constitutes "racketeering activity, " we review only for plain error. United States v. Prieto, 812 F.3d 6, 17 (1st Cir. 2016). Under this plain error standard, Latorre "faces the 'heavy burden of showing (1) that an error occurred; (2) that the error was clear or obvious; (3) that the error affected his substantial rights; and (4) that the error also seriously impaired the fairness, integrity, or public reputation of judicial proceedings.'" Id. (quoting United States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008)).

         In general, we have explained that "[t]his multi-factor analysis makes the road to success under the plain error standard rather steep; hence, reversal constitutes a remedy that is granted sparingly." United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014) (quoting United States v. Gelin, 712 F.3d 612, 620 (1st Cir. 2013). And, consistent with that caution, we have emphasized that, even when a district court makes a clear or obvious error in instructing the jury, the third prong of the plain error standard still requires the defendant to show that the "outcome of the case would likely have changed" had the erroneous instruction not been given, United States v. Colon, 744 F.3d 752, 758 (1st Cir. 2014), or, put otherwise, that it is reasonably probable that the clear and obvious error affected the result of the proceedings, see United States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). Nevertheless, we also have made clear that, to satisfy this third prong of the plain error standard, the defendant need not "prove by a preponderance of the evidence that but for [the] error things would have been different." United States v. Rodríguez, 735 F.3d 1, 11-12 (1st Cir. 2013) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 84 n.9 (2004) (insertion in the original)).

         Finally, the fourth prong of the plain error standard imposes a distinct potential obstacle to a defendant successfully making an unpreserved challenge to a jury instruction's erroneous description of an element of an offense. This prong requires a defendant to show that the instructional error threatened the fairness, integrity, or public reputation of the judicial proceedings. United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014). And, we have made clear, judicial proceedings are not so affected if the evidence of the defendant's guilt at trial is "overwhelming" and "essentially uncontroverted." United States v. Cotton, 535 U.S. 625, 633 (2002) (citing Johnson v. United States, 520 U.S. 461, 470 (1997)).


         Against this backdrop, the government seems to concede that, with respect to the first two prongs of the plain error standard, the District Court committed a clear and obvious error when it instructed the jury that "racketeering activity" includes "firearms." The government argues, however, that Latorre cannot show the kind of effect on his substantial rights that he must show in order to satisfy the third prong of the plain error standard. Rather, the government contends, the problematic references to "firearms" are best understood to be "isolated" and "fleeting mistakes, " and thus ones that cannot suffice to demonstrate that there is a reasonable probability that, absent these mistakes, the outcome at trial would have been different.[1]The government also contends, albeit cursorily, that Latorre cannot meet his burden under the fourth prong of the plain error test.

         In explaining why we do not agree with the government, we first describe why we conclude that the misstatements of law that the oral instructions contained regarding "firearms" constituting "racketeering activity" are quite serious. We then explain why we are not persuaded by the government's contention that the misstatements were adequately mitigated by other portions of the oral instructions that also referenced the types of conduct that constitute "racketeering activity." Next, we explain why our precedent does not support the government's contention that the written instructions ensured that the oral instructions, despite the misstatements that they contained, probably had no effect on the outcome of the trial. And, finally, we explain our reasons for concluding that, when considered in light of the evidence adduced at trial, the errors in the oral instructions were so likely to mislead the jury as to what conduct could constitute "a pattern of racketeering activity, " 18 U.S.C. § 1961, that it is reasonably probable that those misstatements impacted the outcome at trial and thus that Latorre has demonstrated plain error.


         Although the government characterizes the District Court's misstatements regarding "firearms" constituting "racketeering activity" as "isolated" and "fleeting, " it is hard to credit that description just based on a review of the part of the instructions that contains the misstatements. The District Court in this part of the instructions expressly described "firearms" as "racketeering activity" not once, but twice. And ...

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