FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
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
Thompson, Selya, and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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.
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
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
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
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,
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
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.
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.
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
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,
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
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).
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)).
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)).
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)).
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.The government
also contends, albeit cursorily, that Latorre cannot meet his
burden under the fourth prong of the plain error test.
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.
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