United States Court of Appeals

For the First Circuit

No. 22-1354

UNITED STATES,

Appellee,

v.

CARLOS RUBÉN BOYRIE-LABOY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Barron, Chief Judge,

Montecalvo and Rikelman, Circuit Judges.

German A. Rieckehoff for appellant. 

Maarja T. Luhtaru, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, were on brief,

for appellee. 

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

appeals his convictions, after a jury trial, under 18 U.S.C. 

§§ 1951, 371, and 641. Boyrie-Laboy contends that there is 

insufficient evidence to support the convictions. Boyrie-Laboy 

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

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

successful if affirming the convictions would result in a clear 

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

Therefore, we affirm for the reasons stated below.

I. Background

The following facts are drawn from the trial testimony. 

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

Division. The division is responsible for searching for and 

seizing illegal weapons, drugs, and money related to drug 

trafficking, in addition to other contraband such as fireworks. 

In May 2015, Officer Gabriel Maldonado-Martínez 

transferred to the Humacao Drugs Division and began working with 

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

police surveillance team, which investigated a drug operation and 

subsequently arrested the individuals involved. As part of the 

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

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

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

a purse and Maldonado-Martínez witnessed the other officer taking
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cash from the purse for himself. Maldonado-Martínez informed his 

lieutenant, and the two contacted the Federal Bureau of 

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

working as an undercover FBI informant to identify Puerto Rico 

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

Maldonado-Martínez was working undercover, Boyrie-Laboy frequently 

said he did not trust Maldonado-Martínez because he believed 

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

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

and participated in illegal activities. 

While Maldonado-Martínez was working with members of the 

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

enjoyed stealing fireworks at Christmastime. On December 21 and 

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

fireworks with officers, including Boyrie-Laboy. 

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

the FBI planned and executed two operations designed to catch the 

Humacao Drugs Division officers engaged in similar acts of 

corruption. 

The first FBI operation was executed on December 29, 

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

not manufactured in Puerto Rico. FBI agents placed the fireworks

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

Maldonado-Martínez told the officers who had participated in the 
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two prior firework thefts that he knew of a house containing

fireworks stolen from Wal-Mart shipping containers.

Maldonado-Martínez drove to the house in Naguabo with 

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

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

police identification and firearms. At the house, the officers 

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

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

later dividing the fireworks into equal shares amongst the group, 

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

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

then suggested going to another location to steal better quality 

fireworks. 

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

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

manufactured outside of Puerto Rico, including TVs, drones, 

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

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

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

department store" and were being stored before they would 

eventually be sold. 

Maldonado-Martínez went to the house with Boyrie-Laboy 

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

Division. On the way to the house, the officers discussed what 
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they needed to do "when [they] got there, . . . specifically 

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

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

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

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

operation in Naguabo. The officers took electronics and cash from 

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

in cash for themselves and turning over the remainder of the 

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

when the other officers divided the money and electronics amongst 

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

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

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

circumstances surrounding the second operation. His suspicion 

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

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

Humacao Drugs Division officers involved in the theft. 

II. Procedural History

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

and three other Humacao Drugs Division officers based on the 

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

1 Boyrie-Laboy's co-defendants Luis Rodríguez-García, 

Miguel Conde-Vellón, and Quermie Márquez-Rivera each entered 

guilty pleas. 
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counts: conspiracy to commit robbery under 18 U.S.C. § 1951 (Counts 

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

18 U.S.C. § 371 (Counts 2 and 5), and theft and conversion of 

government property under 18 U.S.C. § 641 (Counts 3 and 6). 

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

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

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

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

recordings and audio recordings Maldonado-Martínez created as part 

of his undercover work. 

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

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

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

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

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

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

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

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

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

counsel move for judgment of acquittal under Federal Rule of 

Criminal Procedure 29. 

2 Márquez-Rivera agreed to cooperate with the government 

and testify in Boyrie-Laboy's trial as part of his plea agreement. 
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The jury found Boyrie-Laboy guilty on all counts. The 

defense did not make any post-trial motions challenging the 

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

convictions. 

III. Discussion

Boyrie-Laboy now challenges the sufficiency of the 

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

he argues there was insufficient evidence to show that he conspired 

to commit a robbery that would affect interstate commerce in 

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

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

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

had the requisite intent to commit the crimes of conviction. 

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

the prosecution presented at trial were of such poor quality that 

they had no evidentiary value. 

Under Federal Rule of Criminal Procedure 29, a defendant 

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

evidence is insufficient to sustain a conviction" either after the 

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

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

motion within fourteen days after the jury enters a guilty verdict 

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

R. Crim. P. 29(c). Boyrie-Laboy's counsel explicitly declined the 
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opportunity to move for a judgment of acquittal twice: after the 

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

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

of acquittal. 

When a defendant fails to make a motion under Federal 

Rule of Criminal Procedure 29, the defendant forfeits the customary 

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

challenges. United States v. Vázquez-Rosario, 45 F.4th 565, 570 

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

clear and gross injustice. United States v. Hernández-Román, 981 

F.3d 138, 143 (1st Cir. 2020). We review the evidence in the light 

most favorable to the verdict, id., keeping in mind that "there 

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

an 'egregious misapplication of legal principles' that reversal is 

required," United States v. Charriez-Rolón, 923 F.3d 45, 51 (1st 

Cir. 2019) (quoting United States v. Greenleaf, 692 F.2d 182, 186 

(1st Cir. 1982)). 

Although he conceded that the clear and gross injustice 

standard applied during oral argument, Boyrie-Laboy initially 

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

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

clear and gross injustice standard, let alone develop any argument 

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

that applies here is the waiver of his sufficiency arguments. See
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id.; Vázquez-Rosario, 45 F.4th at 571. Even so, we consider 

whether the convictions present a clear and gross injustice. We 

conclude that they do not.

First, to challenge the convictions under § 1951 (the 

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

to support a reasonable jury finding that his actions affected 

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

commerce . . . by robbery." 18 U.S.C. § 1951(a). The government 

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

interstate commerce.'" United States v. Tkhilaishvili, 926 F.3d 

1, 11 (1st Cir. 2019) (quoting United States v. Capozzi, 486 F.3d 

711, 725-26 (1st Cir. 2007)). To meet this burden, the government 

can rely on "potential future effects." Id. (citation omitted). 

We have noted that when businesses purchase or sell goods 

manufactured in another state, such acts establish a sufficient 

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

555 F.3d 277, 286 (1st Cir. 2009) ("[W]e have held that a business 

is engaged in interstate commerce where the business purchased 

products from out-of-state."); United States v. Brennick, 405 F.3d 

96, 100 (1st Cir. 2005) (concluding that there was sufficient 

effect on interstate commerce where "store manager testified at 

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

been reinvested in the purchase of goods manufactured outside the 

state of New Hampshire").
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Given the evidence here, upholding the jury's finding 

that Boyrie-Laboy conspired to commit a robbery affecting 

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

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

Boyrie-Laboy set out to retrieve purportedly stolen goods that 

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

their sale inventory. He understood that the goods were 

manufactured outside of Puerto Rico and were brought to the island 

in shipping containers. The objective of the conspiracy was to

keep the goods rather than returning them to their rightful owners 

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

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

v. Turner, 501 F.3d 59, 70 (1st Cir. 2007) ("All that matters is 

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

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

States v. Nguyen, 246 F.3d 52, 54 (1st Cir. 2001))). Thus, the 

evidence demonstrates the necessary de minimis impact on 

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

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

Second, Boyrie-Laboy challenges the convictions under 

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

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

that the government did not establish that the stolen goods 

belonged to the United States government. However, the evidence 
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supportably shows that the FBI purchased the fireworks and 

electronics and advanced the cash that was taken from the two 

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

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

finding that the property belonged to the United States does not 

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

Herrera-Martinez, 525 F.3d 60, 64–65 (1st Cir. 2008) (noting 

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

Third, Boyrie-Laboy argues that the government did not 

establish that he had the requisite intent to support the

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

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

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

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

retrieve stolen goods. 

A conviction for conspiracy to violate the Hobbs Act

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

substantive offense." United States v. Valentini, 944 F.3d 343, 

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

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

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

crime be completed." United States v. Sostre-Cintrón, 911 F.3d 

54, 57 (1st Cir. 2018) (citation omitted). A conviction under 
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§ 641 requires "the specific intent to steal a thing of value from 

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

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

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

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

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

did not keep any stolen property or money served as circumstantial 

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

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

gross injustice. The evidence sufficiently supports a conclusion 

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

convictions and only declined to take his share of the stolen 

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

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

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

testimony as indicating that Boyrie-Laboy believed the operation 

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

favorable to the verdict. See United States v. Clough, 978 F.3d 

810, 816 (1st Cir. 2020) ("We will not 'weigh the evidence or make 

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

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

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

the conspiracy and theft, this court affirming the jury's finding 
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that he had the necessary intent to find him guilty of all six

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

Fourth, and finally, Boyrie-Laboy argues that the 

evidence is insufficient because the quality of the prosecution's 

recordings was so poor that the recordings should not have been 

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

the admissibility of the recordings based on their quality in his 

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

first time on appeal presents yet another waiver because 

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

of review. See United States v. Rivera-Rodríguez, 75 F.4th 1, 28 

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

not consider it. See id.

IV. Conclusion

For the reasons stated above, the convictions do not 

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