United States Court of Appeals

For the First Circuit

No. 18-1569

UNITED STATES OF AMERICA,

Appellee,

v.

ISMAEL E. CRUZ-RAMOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. William E. Smith, U.S. District Judge]

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

Before

Howard, Chief Judge,

Thompson and Kayatta, Circuit Judges.

Ruth M. Liebesman, for appellant.

Francisco A. Besosa-Martínez, Assistant United States 

Attorney, with whom W. Stephen Muldrow, United States Attorney, 

and Mariana E. Bauzá-Almonte, Assistant United States Attorney, 

Chief, Appellate Division, were on brief, for appellee.

January 27, 2021
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THOMPSON, Circuit Judge.

OVERVIEW

We deal again with fallout from a bloody war between two 

Puerto Rico-based gangs known to all involved as La ONU and La 

Rompe.1 Today's appeal — a sequel to Ramírez-Rivera — focuses on 

Ismael Cruz-Ramos, an accused La ONU leader indicted and convicted 

of committing (or aiding and abetting others in committing) the 

crimes of: RICO conspiracy, count 1; drug conspiracy, count 2; 

conspiracy to possess firearms in furtherance of the drug 

conspiracy, count 3; VICAR murder of a La Rompe boss nicknamed 

"Pekeke," count 29; and using and carrying a firearm in relation 

to Pekeke's murder, count 30.2 Last time around, we vacated his 

convictions because the police lacked probable cause to search his 

house — and so held that the evidence seized had to be suppressed. 

See 800 F.3d at 31-34. Back in the district court, Cruz-Ramos 

convinced the judge to suppress some incriminating statements as

well. But a jury again convicted him of the relevant charges. 

1 Interested readers can find some of our other writings on 

this subject at United States v. Rodríguez-Torres, 939 F.3d 16 

(1st Cir. 2019); United States v. Laureano-Salgado, 933 F.3d 20 

(1st Cir. 2019); United States v. Rivera-Carrasquillo, 933 F.3d 33 

(1st Cir. 2019); and United States v. Ramírez-Rivera, 800 F.3d 1 

(1st Cir. 2015).

2 For the uninitiated, RICO is the standard acronym for the 

Racketeering Influenced and Corrupt Organizations Act and VICAR is 

the accepted acronym for the Violent Crimes in Aid of Racketeering 

Act.
- 3 -

And after losing a motion for acquittal or new trial and getting 

sentenced to life plus 25 years, he filed the present appeal.3 

This time, however (after noting only what is necessary for 

resolving his current set of issues, ranging from claimed trial 

problems to supposed sentencing glitches), we leave him as we found 

him.4

ALLEGED TRIAL ERRORS

Cruz-Ramos mounts several arguments either for judgments 

of acquittal or for a new trial. 

Convinced that the judge erred in denying his acquittal 

motion, Cruz-Ramos claims that four out of the five convictions 

failed on evidentiary-insufficiency grounds: the RICO-conspiracy 

conviction (count 1), because the evidence supposedly did not show 

that La ONU ran as a continuous unit; the drug-conspiracy 

conviction (count 2), because the evidence allegedly did not prove 

that he belonged to a La ONU-owned drug point at a public-housing 

3 Judge William E. Smith (of the District of Rhode Island, 

sitting by designation) handled the trial. And Judge Aida M. 

Delgado-Colón (of the District of Puerto Rico) handled the 

sentencing.

4 A quick heads up: The standard of review varies with the 

issues and whether Cruz-Ramos preserved them in the district court. 

Helpfully, the parties agree on (or at least do not openly argue 

over) which claims he did and did not preserve below. And we see 

no reason to quarrel with them. See, e.g., United States v. 

Sabean, 885 F.3d 27, 44 (1st Cir. 2018) (taking a similar approach 

in a similar situation).
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project; the firearms-conspiracy conviction (count 3), because the 

evidence purportedly did not show that he possessed La ONU-owned 

guns; and the VICAR-murder conviction (count 29), because the 

evidence allegedly did not prove that he played a role in Pekeke's 

killing.5 

Shifting gears, Cruz-Ramos criticizes the judge for not 

giving the jurors a multiple-conspiracy instruction, seeing how he 

thinks the evidence did not connect the drug points to one another 

and so did not establish the single drug conspiracy alleged in the 

indictment. He also criticizes the judge for not telling the 

jurors that the government had to prove his "advance knowledge" 

that a partner would possess a real gun in furtherance of a drugtrafficking scheme, the advance-knowledge language coming from 

Rosemond v. United States, 572 U.S. 65 (2014).

Cruz-Ramos last argues that he at least deserves a new 

trial on all counts, because the judge wrongly admitted evidence 

concerning his harboring a fugitive. As he sees it, that evidence 

— involving both a plea agreement in which he pled guilty to 

5 Cruz-Ramos does not attack the evidentiary sufficiency of 

his conviction for using and carrying a firearm in relation to 

Pekeke's murder (count 30). So he has waived any argument he might 

have. See, e.g., Rodríguez v. Municipality of San Juan, 659 F.3d 

168, 175 (1st Cir. 2011). And to the extent he thinks his brief 

does make that attack, it is waived for lack of development. See

id. (noting that arguments mentioned but not developed are waived).
- 5 -

harboring a fugitive and the fugitive's offense conduct —

constituted "fruits" of searches held illegal in our earlier 

opinion, lacked relevance, and posed a high risk of undue 

prejudice. All of which means — in his mind anyway — that the 

judge should have granted his new-trial motion. 

Like the government, we find these arguments wanting.

Acquittal

We take a de novo look at Cruz-Ramos's preserved 

sufficiency claims, studying the record in the light most pleasing 

to the prosecution, giving the prosecution the benefit of all

sensible inferences and credibility choices as well — and rejecting 

his challenges if any rational jury could have convicted him when 

viewing all the evidence (direct and circumstantial) in this way. 

See, e.g., Rodríguez-Torres, 939 F.3d at 23; United States v. 

Manor, 633 F.3d 11, 13-14 (1st Cir. 2011). That he may have a 

reasonable theory of innocence will not move the needle, because 

the issue is not whether a rational jury could have acquitted but 

whether it rationally could have found guilt beyond a reasonable 

doubt. See, e.g., Manor, 633 F.3d at 14.

Rico Conspiracy

Getting a grip on RICO's intricacies is no easy matter. 

But generally, the statute criminalizes engaging in a pattern of 

racketeering activity as part of "an enterprise," or 
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"conspir[ing]" to do the same. See 18 U.S.C. § 1962(c), (d). An 

enterprise includes not only a legal entity like a "corporation" 

but also "any union or group of individuals associated in fact." 

United States v. Turkette, 452 U.S. 576, 579 n.2 (1981) (quoting 

18 U.S.C. § 1961(4)). And while "the very concept of an 

association in fact is expansive," such an entity must have "at 

least" these "structural features": a "purpose," "relationships 

among those associated with the enterprise," and "longevity 

sufficient to permit these associates to pursue the enterprise's 

purpose." Boyle v. United States, 556 U.S. 938, 944, 946 (2009). 

So an association-in-fact entity can be either "formal or 

informal," as long as the enterprise's "various associates 

function as a continuing unit." Turkette, 452 U.S. at 583. But 

that enterprise need not have a "hierarchical structure or a 'chain 

of command'" and no purpose beyond carrying out a pattern of 

racketeering acts. See Boyle, 556 U.S. at 946-48.

Cruz-Ramos's sole complaint is that prosecutors produced 

inadequate proof "of an organization that worked as an ongoing 

unit" (so framed, his argument eliminates any need to discuss 

RICO's other elements). But the claim is hopeless when one reads 

the record the right way — afresh, and in the light most agreeable 

to the government. 
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Cooperating witnesses fingered Cruz-Ramos as a La ONU 

leader, a firearms supplier, and a heroin drug-point owner at Las 

Gladiolas, a La ONU-dominated public-housing project. And they 

did much more than that. They also chronicled La ONU's roughly 

decade-long work as a union of various housing-project gangs, with 

the unifying goals being running more drug points and taking down 

common enemies like La Rompe — using deadly violence whenever 

needed. Identifiable by its name — the "ONU" in La ONU "stands 

for Organización de Narcotraficantes Unidos," which in English 

means "Organization of United Drug Traffickers," see RodríguezTorres, 939 F.3d at 25 (emphasis added) — this mega-gang used

special hand signals to differentiate its members from other 

members; made and enforced strict rules of conduct (e.g., no 

fraternizing with La Rompe gangbangers or cooperating with the 

police, on pain of death); and required associates at different La 

ONU-controlled drug points to share resources (guns, drugs, 

manpower, etc.) in its bid to be the biggest and baddest crime 

syndicate around. And while not necessary (courtesy of Boyle, 

which held that an association-in-fact enterprise need have no 

formal hierarchy or decision-making mechanism), La ONU had —

throughout its many years of operation — a main leader (though 

members close to him had a say in important gang matters, 

apparently), drug-point owners, enforcers, sellers, and lookouts. 
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That is ample evidence of La ONU's functioning as a continuous 

unit, despite what Cruz-Ramos says. See, e.g., Rodríguez-Torres, 

939 F.3d at 24-25 (finding similar evidence sufficient).

Drug Conspiracy

A series of statutes criminalize conspiring to 

distribute drugs within a 1,000 feet of a public-housing facility. 

See 21 U.S.C. §§ 841(a), 846, 860. With that in mind, we need not 

linger long over Cruz-Ramos's claim that no evidence showed that 

he "belonged [in a] group operating" in a La ONU-dominated publichousing project. After all, cooperators testified that he owned 

a heroin drug point at the La ONU-run Las Gladiolas public-housing 

facility. Calling the cooperators' statements too speculative, he 

implies that the jury should not have believed them. But his 

argument goes to credibility, something we cannot consider in 

reviewing this challenge.6 See, e.g., Manor, 633 F.3d at 14.

Firearms Conspiracy

Also unpersuasive is Cruz-Ramos's claim that the 

firearms-conspiracy conviction cannot stand, because no evidence 

proved that he "possessed weapons in furtherance of drug 

6 Cruz-Ramos also hints at an argument that prosecutors 

offered insufficient evidence about the existence or amount of 

"heroin that was sold." But that argument cannot win the day

either, given the testimony about his having run a heroin drug 

point.
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trafficking." The "in furtherance of" element here requires "[a] 

showing [of] a sufficient nexus between the firearm and the drug 

crime [or crime of violence] such that the firearm advances or 

promotes the drug crime [or crime of violence]." Ramírez-Rivera, 

800 F.3d at 23 (quoting United States v. Gurka, 605 F.3d 40, 44 

(1st Cir. 2010), and discussing 18 U.S.C. §§ 924(c)(1)(A), 924(o))

(alteration in original). And undercutting Cruz-Ramos's argument 

is evidence showing both that he "[a]lways" carried automatic 

weapons with him as he ran his drug point and that he gave his La 

ONU associates guns — all to protect and expand the gang's drug 

turf. 

Perhaps anticipating that we might reach this 

conclusion, Cruz-Ramos tries to downplay the evidence, labeling it 

nothing more than "a generic assertion" that he "was an enforcer." 

But a glance at the testimony of one cooperator is sufficient to 

refute the claim, for he not only identified Cruz-Ramos as an 

enforcer but specifically described how he and Cruz-Ramos — often 

with others, and always armed to the teeth with assault rifles and 

the like — went "to other housing projects" multiple times "to 

shoot them up."

In something of a last stand here, Cruz-Ramos faults 

prosecutors for not linking him to any of the guns presented at 

trial. But even if he did not own those guns, the jury heard 
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testimony that he carried guns and gave them to his La ONU allies 

— with the goal being to further the gang's drug interests. So 

this argument is not a difference-maker. See id. (rejecting a 

similar argument on similar grounds). 

VICAR Murder

As relevant to Cruz-Ramos's case, VICAR outlaws 

"attempting or conspiring to commit murder" for "the purpose of 

. . . maintaining or increasing position in an enterprise engaged 

in racketeering activity." See 18 U.S.C. § 1959(a)(5). CruzRamos contests his VICAR conviction for aiding and abetting 

Pekeke's murder (remember that Pekeke was a La Rompe leader), 

alleging that no evidence "connect[ed]" him to that crime. He is 

wrong. 

Viewing the record in the light most sympathetic to the 

government's case (as required), we see evidence of the following 

— all supporting the aiding-and-abetting theory behind this 

conviction. Cruz-Ramos attended a meeting where La ONU leaders 

kicked around ideas on how to off Pekeke. Ultimately, they agreed 

to pay a person named "Joshua" to gun Pekeke down at a La Rompedominated public-housing project and then send a rescue crew in to 

get Joshua out. Cruz-Ramos gave the crew a fake license plate and 

registration sticker to put on a rescue car (to hide the fact that 

the car was stolen). And after the shooting, rescuers went to 
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Joshua's aid — all armed, including Cruz-Ramos, who drove his own 

SUV.

An undaunted Cruz-Ramos notes that cooperator José 

Gutiérrez-Santana did not name him as a planning member attendee 

or as a rescuer. But cooperator Wesley Figueroa-Cancel did both. 

And the jurors could decide "which witness to credit," with us 

required to assume, "in the posture of a sufficiency-of-theevidence challenge, . . . that they credited those witnesses whose 

testimony lent support to the verdict." See United States v. Lara, 

181 F.3d 183, 204 (1st Cir. 1999). 

Cruz-Ramos also notes that cooperators never said that 

he knew why rescuers needed "a vehicle and plate." But the jurors 

could reasonably infer from his rescue-mission participation that 

he knew what those items were for. See Rodríguez-Torres, 939 F.3d 

at 23 (reminding us to make all natural inferences "in the 

government's favor" when considering a sufficiency-of-the-evidence 

claim).

Pulling out all the stops, Cruz-Ramos says that the 

"government's scientists contradicted" the cooperators. For 

example, he claims (with no record cites) that cooperators said 

"Joshua . . . was shot as he ran from the project, but no blood 

trail or trace was found"; that "[n]o police report or medical 

record suggests Joshua was shot"; and that an "investigator 
- 12 -

observed no evidence of the crime in front of the project or the 

road leading to it, contradicting the theory of a shooting in front 

of" the project. As touched on above, the usual rule is that 

"[s]ifting through conflicting testimony and determining where the 

truth lies is the sort of work that falls squarely within the 

jury's province," not ours. See United States v. Nascimento, 491 

F.3d 25, 46 (1st Cir. 2007). And Cruz-Ramos gives us no reason to 

vary from that rule (like showing that each cooperator's testimony 

was so implausible that we cannot trust it as a matter of law). 

So this line of argument is a dead end too.

With the sufficiency issues out of the way, we examine 

Cruz-Ramos's claims of instructional error.

Jury Instructions

Cruz-Ramos's preserved claim about the missing multipleconspiracies instruction gets abuse-of-discretion review, with us 

reversing only if he can show "he suffered substantial prejudice." 

See United States v. Camacho-Santiago, 851 F.3d 81, 85 (1st Cir. 

2017); see also United States v. Brandon, 17 F.3d 409, 450 (1st 

Cir. 1994) (elaborating that in the alleged multiple-conspiracies 

setting, "[t]he prejudice we must guard against" is the prejudicial 

spillover of evidence "resulting from trying defendants en masse

for distinct and separate offenses committed by others"). And his 

unpreserved claim about the missing advance-knowledge instruction 
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gets plain-error review, see United States v. Paniagua-Ramos, 251 

F.3d 242, 246 (1st Cir. 2001), with him having to make the 

difficult showing that the judge erred and clearly so, and that 

the error also affected his substantial rights — but even then we 

can still affirm if he does not show as well that the error 

seriously harmed the fairness, integrity, or public perception of 

his trial, see United States v. Takesian, 945 F.3d 553, 563 (1st 

Cir. 2019); see also United States v. Dominguez Benitez, 542 U.S. 

74, 83 n.9 (2004) (noting that satisfying each facet of the plainerror test is a daunting task, "as it should be"); Paniagua-Ramos, 

251 F.3d at 246 (stressing that "the plain error hurdle, high in 

all events, nowhere looms larger than in the context of alleged 

instructional errors").

Multiple Conspiracies

Sometimes the simplest approach is the best approach. 

See, e.g., United States v. Tsarnaev, 968 F.3d 24, 78 (1st Cir. 

2020) (explaining that "[o]ften '[t]he simplest way' to decide an 

issue is 'the best'" (first alteration added) (quoting Stor/Gard, 

Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st Cir. 2013)). 

So it is here. Even assuming — without granting — that the evidence 

justified a multiple-conspiracies instruction, its omission did 

not substantially prejudice Cruz-Ramos. And that is because, while 

Cruz-Ramos may not have gotten the exact instruction that he 
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wanted, the judge did tell the jurors that the government had to 

prove that he (Cruz-Ramos) was part of the charged drug conspiracy. 

"[Y]ou must be convinced," the judge said, "that the government 

has proven beyond a reasonable doubt" that the conspiratorial 

"agreement specified in the indictment, and not some other 

agreement or agreements, existed between at least two people to 

possess with the intent to distribute a controlled substance" and 

that Cruz-Ramos "willingly joined that agreement." And "[i]f . . . 

you [have] a reasonable doubt," the judge added, then "you must" 

acquit. Quite a number of our cases have found instructions of 

this sort sufficient to protect a defendant from prejudice in 

circumstances like Cruz-Ramos's. See United States v. Belanger, 

890 F.3d 13, 33 (1st Cir. 2018) (collecting authority); see also

Camacho-Santiago, 851 F.3d at 87. And Cruz-Ramos offers no 

plausible reason why those cases should not control here. 

Advance Knowledge

Citing Rosemond, Cruz-Ramos argues that the judge 

slipped by not telling the jurors that, to find him guilty of 

aiding and abetting possession of a gun in furtherance of a drug 

crime (what a mouthful), they had to find he had "advance 

knowledge" that a gun would be used. See 572 U.S. at 77-81. And, 

the theory goes, because of that lack of instruction, the jurors 

could have convicted him merely because he intended to help commit 
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the underlying drug-trafficking crime — without ever finding that 

he had prior knowledge that a compatriot would possess a gun. 

Rosemond addressed aiding-and-abetting liability for the 

"compound" offense of using or carrying a firearm while committing 

certain violent or drug-related crimes. See 572 U.S. at 67-68, 71 

(analyzing 18 U.S.C. § 924(c)(1)(A)). "[I]ntent must go to the 

specific and entire crime charged," Rosemond said, "the full scope 

(predicate crime plus gun use) of § 924(c)." Id. at 76. So an 

accused aider and abettor must have had "advance knowledge" that 

a cohort would "use or carry a gun during [its] commission," 

because he must have decided "to align himself with the illegal 

scheme in its entirety — including its use of a firearm." Id. at 

67; see generally United States v. Fernández-Jorge, 894 F.3d 36, 

52-55 (1st Cir. 2018) (finding Rosemond error in a nonplain-error 

case, because the aiding-and-abetting instruction let the jury 

convict even if the defendant intended only the general "endeavor" 

to succeed, rather than the firearm-specific crime). 

Cruz-Ramos concedes that he did not raise this Rosemond

issue at trial. Which means he must run the usually lethal 

gauntlet of plain-error review — i.e., (and to repeat) he must 

show not only error, but error that is obvious, affects his 

substantial rights, and seriously undermined the fairness, 

integrity, or public perception of the judicial process. See 
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generally United States v. Manso-Cepeda, 810 F.3d 846, 852 n.7 

(1st Cir. 2016) (stating that "the First Circuit already had an 

advance knowledge requirement for aiding and abetting convictions" 

before Rosemond and "has consistently used the 'consciously 

shared' formulation to describe our aiding and abetting law," 

making "an error in which the district court used a wellestablished formulation . . . unlikely to qualify as plain 

error"). But Cruz-Ramos makes no attempt to show how his Rosemondbased claim satisfies the demanding plain-error standard — his 

brief fails to even mention plain error, let alone argue for its 

application here. See generally Fed. R. App. P. 28(a)(8)(A)

(announcing that "[t]he appellant's brief must contain" the 

"appellant's contentions and the reasons for them, with citations 

to the authorities and parts of the record on which the appellant 

relies"). And knowing that it is not on us to construct a party's 

arguments for him, see United States v. Charriez-Rolón, 923 F.3d 

45, 52 (1st Cir. 2019), that failure waives this claim, see United 

States v. Velázquez-Aponte, 940 F.3d 785, 800 (1st Cir. 2019);

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

United States v. Pabon, 819 F.3d 26, 33-34 (1st Cir. 2016).7

7 One other jury-instruction claim requires brief attention. 

The government premised the VICAR-murder charge on an aiding-andabetting theory under Puerto Rico law. But Cruz-Ramos says that 

the judge gaffed the aiding-and-abetting instructions, arguing 

that Puerto Rico did not recognize aiding and abetting murder as 
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Enough said about these issues.

New Trial

We inspect Cruz-Ramos's problem with the judge's newtrial denial for abuse of discretion, knowing that an abuse of 

discretion exists "only when no reasonable person could agree with 

the judge's decision," see Laureano-Salgado, 933 F.3d at 29, that 

a material error of law is by definition an abuse of discretion, 

see United States v. Carpenter, 736 F.3d 619, 629 (1st Cir. 2013), 

and that we ordinarily overturn a new-trial denial only to prevent 

a crime "at the time of the offense." Looking to counter this 

claim, the government cites a decades-old opinion by Puerto Rico's 

highest court (issued well before his crimes went down) — an 

opinion stating that Puerto Rico's penal code "not only considers 

as principals or authors those who directly commit the punishable 

offense, but those as well who aid in the commission thereof." 

People v. Martés Olán, 3 P.R. Offic. Trans. 488, 492 (P.R. 1975) 

(quoting People v. Vélez, 36 P.R.R. 521, 523-24 (P.R. 1927)) 

(emphasis added). Our Ramírez-Rivera opinion read Puerto Rico law 

as punishing a person as a principal if he "'participates directly 

in the commission of a crime,' 'forces, provokes, abets or induces 

another person to commit a crime,' or 'cooperates before, 

simultaneously or after the commission of a crime, and without 

whose participation the crime could not have been perpetrated.'" 

800 F.3d at 22 n.16 (quoting P.R. Laws Ann. tit. 33, §§ 4671(a), 

(b), (d)) (emphasis added). And with Ramírez-Rivera on the books, 

Cruz-Ramos writes that he raises this issue simply to preserve his 

right to petition for en banc or Supreme Court review based on his 

belief that the quoted English translation misconstrues the word 

"instigar" in the original Spanish to include "abet." But see

University of Cambridge, Spanish-English Dictionary, 

http://dictionary.cambridge.org/dictionary/spanish-english, 

"instigar". So we need say no more on that subject.
- 18 -

a miscarriage of justice, see United States v. Ackerly, 981 F.3d 

70, 75 (1st Cir. 2020). 

To understand Cruz-Ramos's claim, we must provide some 

necessary context. 

According to the evidence admitted at trial, a La ONU 

member named "Bernard" shot down a police helicopter to help 

himself and other La ONU-ers avoid arrest. One of the pilots died. 

And Bernard fled to Cruz-Ramos's house. Acting on a tip, the 

police went there and searched the place without a warrant, seizing 

guns and drugs — a search we stamped unconstitutional in RamírezRivera. The police arrested Cruz-Ramos and Bernard. About three

months later, Cruz-Ramos pled guilty under a plea agreement to 

harboring a fugitive. In a document attached to the agreement, 

Cruz-Ramos admitted certain facts — including that the police 

wanted Bernard for the helicopter shooting. And over Cruz-Ramos's 

objections, the judge in our case allowed the plea agreement and 

accompanying statement of facts into evidence. 

With this backdrop in place, we now consider CruzRamos's arguments.

As for Cruz-Ramos's lead claim — that the judge should 

have excluded as fruit of an illegal search all evidence about his 

harboring-a-fugitive plea agreement, which included his 

concessions concerning Bernard's crime — the factors that go into 
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this issue are: (a) the voluntariness of his concessions, (b) the 

temporal proximity of the illegal conduct and the concessions, 

(c) the existence of intervening events, and (d) the flagrancy of 

the illegality. See, e.g., Brown v. Illinois, 422 U.S. 590, 603-

04 (1975); United States v. Stark, 499 F.3d 72, 76 (1st Cir. 2007) 

(discussing the Brown factors). No single factor is determinative, 

however. See Brown, 422 U.S. at 603.

Because no one doubts that Cruz-Ramos voluntarily signed 

the plea agreement (factor (a)), and the government concedes for 

present purposes that the police acted egregiously (factor (d)),8

the dispute here is really over factors (b) and (c). And so we 

turn to them.

Cruz-Ramos signed the plea agreement three months after 

the illegal search (factor (b)) — far more than the two days 

between an illegal search and a confession in another case that we 

said "counsel[ed] against suppression." See Stark, 499 F.3d at 

76. And during those intervening months, he had time to reflect 

on his situation and consult with a lawyer before signing the plea 

agreement (factor (c)) — an agreement, by the way, that he has 

never tried to invalidate as a product of the illegal search. 

8 We ourselves called the search an "egregious Fourth 

Amendment violation" and said "the officers' disregard of probable 

cause was certainly deliberate." See Ramírez-Rivera, 800 F.3d at 

32, 33.
- 20 -

Given these particulars — and mindful that evidence exclusion 

should be a "last resort" rather than a "first impulse," see Hudson

v. Michigan, 547 U.S. 586, 591 (2006) — we think that the causal 

link between the illegality and the plea agreement is so stretched 

that the illegality did not infect the plea agreement, see Brown, 

422 U.S. at 598 (emphasizing that a confession caused by unlawfully 

seized evidence need not be suppressed if "an intervening 

independent act of free will . . . purge[s] the primary taint" of 

the illegal search (quoting Wong Sun v. United States, 371 U.S. 

471, 486 (1963)); see generally United States v. Davis, 617 F.2d 

677, 687-89 (D.C. Cir. 1979) (refusing to suppress a defendant's 

grand-jury testimony (provided as part of his plea agreement) given 

weeks after an illegal arrest when he had "time to consult with 

counsel and to reflect on his decision to cooperate," because 

"[t]he taint of the . . . illegality had dissipated by the time 

[he] took the witness stand").9

9 Joining belt with suspenders, we add that as the party 

invoking the exclusionary rule — a judicially crafted remedy, aimed 

at curbing police misconduct by (broadly speaking) barring 

prosecutors from introducing at the defendant's trial evidence 

obtained through the misconduct — Cruz-Ramos must show not only 

causation, but also that the rule's benefits (deterrence) outweigh 

its costs (e.g., excluding relevant evidence and perhaps letting 

a guilty person go free). See Herring v. United States, 555 U.S. 

135, 140-41 (2009); Hudson, 547 U.S. at 591. Yet his brief 

contains no such weighing analysis, creating a gaping hole that 

also sinks this aspect of his new-trial claim. 
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We are likewise unmoved by Cruz-Ramos's next set of 

claims — that the judge should have excluded evidence about the 

helicopter downing and his fugitive harboring as irrelevant and 

unfairly prejudicial. And it will not take us long to explain 

why.

Relevancy is a very low threshold, requiring only that 

the evidence have "any tendency to make a fact more or less 

probable." See Fed. R. Evid. 401 (emphasis added); see also

Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010). 

And "the evidence need not definitively resolve a key issue in the 

case," but rather "need only move the inquiry forward to some 

degree," see Bielunas, 621 F.3d at 76 — think, for example, of 

evidence that is basically "background in nature," which "is 

universally offered and admitted as an aid to understanding," see

Fed. R. Evid. 401 advisory committee's notes. 

So it is no exaggeration to say that "[a] relevancybased argument is usually a tough sell." See Bielunas, 621 F.3d 

at 76. And Cruz-Ramos fails to make the sale here. 

The indictment charged the helicopter-shooting murder as 

an overt act in furtherance of the RICO conspiracy. And "when the 

scope of a RICO conspiracy includes murder as a tool to further 

the enterprise, a 'murder [is] still relevant to the RICO count[] 

as it tend[s] to prove the existence and nature of the RICO 
- 22 -

enterprise and conspiracy,'" even if the defendant on trial is 

"not charged for that particular killing." See Ramírez-Rivera, 

800 F.3d at 44 (second and third alterations added) (quoting United 

States v. DeCologero, 530 F.3d 36, 54 (1st Cir. 2008)). Attempting 

to elude Ramírez-Rivera's grasp, Cruz-Ramos writes that the 

Ramírez-Rivera panel "was addressing" a different murder — "the 

Pep Boys murder."10 But nothing in Ramírez-Rivera limits this 

principle only to the Pep Boys murder.

The indictment also listed several "means and methods by 

which" La ONU members "conducted and participated" in the 

enterprise's "affairs," including "provid[ing] shelter and 

protection to known fugitive members of La ONU in order to aid 

against their apprehension by law enforcement." And Cruz-Ramos's 

harboring-a-fugitive plea agreement helped bolster that charge, 

making the agreement relevant under our modest relevancy 

requirements. See Polanco, 634 F.3d at 44 (noting how relevancy 

is usually an easy hurdle to clear); see generally United States

v. Rodríguez-Soler, 773 F.3d 289, 293-94 (1st Cir. 2014) (stating 

that because convictions frequently "result from the cumulation of 

bits of proof which, taken singly, would not be enough in the mind 

10 The Pep Boys murder "involved the death of a La Rompe boss, 

killed on the orders of two La ONU leaders." Rivera-Carrasquillo, 

933 F.3d at 45 n.11 (citing Ramírez-Rivera, 800 F.3d at 44).
- 23 -

of a fair minded person," a key factor in a relevancy determination 

is whether "each bit [has] enough rational connection with the 

issue to be considered a factor contributing to an answer" (quoting 

United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945) (L. 

Hand, J.))).

A judge of course "may" exclude relevant evidence if 

(roughly speaking) it is "unfair[ly] prejudic[ial]" to the 

defendant or risks confusing the jury, among other things. See

Fed. R. Evid. 403. Seizing on this language, Cruz-Ramos argues 

that the challenged evidence packed too much of an emotional punch, 

prejudicing the jurors against him and causing them to act 

irrationally. The law bans not all prejudice, but unfair

prejudice. See, e.g., Rodríguez-Soler, 773 F.3d at 296. And it 

does not save a defendant from damaging evidence generally. See, 

e.g., id. Ultimately, "[g]iven the nature of this violenceinfested case, we see no reason why testimony about an additional 

murder would cause the jury an improper emotional reaction." See

Ramírez-Rivera, 800 F.3d at 44.

Cruz-Ramos makes a single-sentence suggestion that 

jurors "could have been confused by" his harboring "confession," 

without offering any authority or meaningful discussion of the 

issue. So he waived it by inadequately briefing it. See, e.g., 

Muñiz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004) (holding waived a 
- 24 -

perfunctory claim unaccompanied by "citation to any pertinent 

authority"); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 

1990) (declaring it "not enough to merely to mention a possible 

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

counsel's work"). 

Cruz-Ramos also implies that his plea agreement presents 

a hearsay problem. But during the trial he agreed with the judge 

that the rule against hearsay posed no obstacle to admission. That 

aside, his brief "provides neither the necessary caselaw nor 

reasoned analysis to show" that his hearsay intimation is correct. 

See Rodríguez, 659 F.3d at 176. And again, such cursory treatment 

is not enough to preserve an issue for review. See, e.g., id.

Making a last-ditch bid to save this claim, Cruz-Ramos 

writes that because "[t]he helicopter murder was excluded by the 

district court during the first trial," the judge should have done 

the same in the second. But he makes this argument only in his 

reply brief and so waived that one as well. See, e.g., Liberty 

Mut. Ins. Co. v. Nippon Sanso K.K., 331 F.3d 153, 162 (1st Cir. 

2003) (holding that an "argument . . . not made in the opening 

brief but only in the reply . . . is waived"). 

On to sentencing.
- 25 -

ALLEGED SENTENCING ERRORS

Cruz-Ramos claims that the judge made three procedural 

sentencing errors — first by imposing a 2-level enhancement for 

his having played a leadership role in the crimes, next by 

assessing 2 criminal history points against him for his prior 

conviction for harboring a fugitive, and finally by having a 25-

year sentence on the count of using and carrying a firearm in 

relation to Pekeke's murder run consecutively to the life sentences 

on the other counts.11 We review preserved challenges for abuse 

of discretion and unpreserved ones for plain error, see, e.g., 

United States v. Garay-Sierra, 832 F.3d 64, 67 (1st Cir. 2016) —

11 A quick crib sheet on how federal sentencing works: Using 

advisory sentencing guidelines, the judge figures out the 

defendant's 

base offense level — i.e., a point score for a specified 

offense or group of offenses. The [judge] then make[s] 

adjustments for any aggravating or mitigating factors in 

the defendant's case, thus arriving at a total offense 

level. The [judge] also assign[s] points based on the 

defendant's criminal history — points that get converted 

into various criminal history categories, designated by 

Roman numerals I through VI. Armed with this info, the 

judge turns to the guidelines's sentencing table. And 

by plotting the defendant's total offense level along 

the table's vertical axis and his criminal history 

category along the table's horizontal axis, the judge 

ends up with an advisory prison range. From there, the 

judge sees if any departures are called for, considers 

various sentencing factors, and determines what sentence 

(whether within, above, or below the suggested range) 

seems appropriate.

United States v. Martínez-Benítez, 914 F.3d 1, 2 n.2 (1st 

Cir. 2019) (citations omitted).
- 26 -

as a reminder, the hard-to-satisfy plain-error standard requires 

a defendant to show error; plainness; an adverse effect on his 

substantial rights; and a serious compromise of the fairness, 

integrity, or reputation of the trial, see, e.g., Takesian, 945 

F.3d at 563.

These arguments lack heft, as the government points out.

Enhancement

We can make relatively quick work of Cruz-Ramos's 

unpreserved complaint about the leadership enhancement — an 

enhancement justified only if the government proved each of the 

following by a preponderance of the evidence: that "the criminal 

enterprise involved at least two complicit participants (of whom 

[Cruz-Ramos] may be counted as one)"; and that "in committing the 

offense," Cruz-Ramos "exercised control over, managed, organized, 

or . . . otherwise . . . superintend[ed] the activities of . . . 

at least one of those other persons." See United States v. SotoPeguero, 978 F.3d 13, 23 (1st Cir. 2020) (quoting United States v. 

Cruz, 120 F.3d 1, 3 (1st Cir. 1997)). As part of this analysis, 

a judge looks to a variety of factors, including the nature and 

degree of the defendant's participation, planning, and control —

and whether he exercised decisionmaking authority, drafted 

collaborators, or claimed a bigger piece of the spoils. See USSG 
- 27 -

§ 3B1.1 cmt. 4; see also United States v. Ilarraza, 963 F.3d 1, 14 

(1st Cir. 2020).

We approach a judge's leadership assessment with 

"considerable deference," given the fact-intensive character of 

the inquiry. See Soto-Peguero, 978 F.3d at 23 (quoting Cruz, 120 

F.3d at 3). Add to this that Cruz-Ramos must show that the judge 

plainly erred, and his level of difficulty escalates 

exponentially. See, e.g., Tsarnaev, 968 F.3d at 80 (stressing how 

the plain-error rule places a formidable obstacle in an appellant's 

way).

Cruz-Ramos rests his hopes solely on the notion that 

"[n]o evidence" showed he controlled or managed a participant. 

But to reject this claim, all we need do is observe that a 

cooperator said that as a drug-point owner within the organization, 

Cruz-Ramos "order[ed] . . . other guys" around — something only La 

ONU "leaders" could do. See Soto-Peguero, 978 F.3d at 23 (noting 

that "[e]ven a single instance of managing the actions of others 

can substantiate the enhancement"). Cruz-Ramos implies that he 

cannot be a leader because "every drug point owner was a leader" 

and with so many "leader[s], no one is a leader" for sentencing 

purposes. But unfortunately for him, the law is that "more than 

one person" can "qualif[y] as a leader or organizer of a criminal 
- 28 -

association or conspiracy." See USSG § 3B1.1 cmt. 4. So what he 

offers is hardly the stuff of plain error. 

Criminal History

That takes us to Cruz-Ramos's preserved claim that the 

judge wrongly assigned criminal-history points for his harboringa-fugitive conviction. To hear him tell it, that conviction 

involved conduct relevant to the RICO conspiracy and so could not 

be factored into his criminal-history score. As support, he (at 

least implicitly) relies on a guideline rule saying that when 

tweaking a defendant's sentence for his prior criminal history, a 

judge may use as a "prior sentence" only a "sentence previously 

imposed . . . for conduct not part of the instant offense." See

USSG § 4A1.2(a)(1) (emphasis added); see also id. § 4A1.2 cmt. 1 

(excluding from the criminal-history calculation sentences for 

conduct qualifying as relevant conduct under USSG § 1B1.3).

But Cruz-Ramos overlooks a key guideline exception in 

the RICO context. Even if some convictions count as part of the 

underlying racketeering conduct, if the defendant got convicted of 

them before "the last overt act of the [RICO] offense," the judge 

can treat them as part of the defendant's criminal history. See

USSG § 2E1.1 cmt. 4. So while prosecutors used Cruz-Ramos's 

harboring-a-fugitive conviction to support the RICO-conspiracy 

charge, because that conviction came before the final overt act 
- 29 -

(as no one here disputes), it contributes points toward his 

criminal-history tally. 

Consecutive Sentences

We need not say much about Cruz-Ramos's last preserved 

claim either. He concedes that a firearm-in-furtherance sentence 

under 18 U.S.C. § 924(c) must run consecutively to any prison 

sentence on any other count (including the count covering the crime 

in which the firearm was used). See 18 U.S.C. § 924(c)(1)(D)(ii). 

But he insists that "[§] 924(j), not [§] 924(c), determined [his] 

sentence" — roughly speaking, § 924(j) makes it a crime to kill 

anyone when doing acts that infract § 924(c), but does not mention 

a consecutive-sentencing requirement.12 And citing an Eleventh 

12 § 924(c) pertinently provides that 

[a]ny person who, during and in relation to any crime of 

violence or during a drug trafficking crime . . . uses 

or carries a firearm, or who, in furtherance of any such 

crime, possesses a firearm, shall, in addition to the 

punishment provided for such crime of violence or drug 

trafficking crime,

receive a sentence of at least 5 years. See 18 U.S.C. 

§ 924(c)(1)(A)(i). § 924(c) ups that minimum if he brandishes or 

discharges the firearm or uses a certain type of firearm (e.g., a 

machine gun). See id. § 924(c)(1)(A)(ii)-(iii), (c)(1)(B)(i)-

(ii). And § 924(c) declares that the sentence cannot "run 

concurrently" with any other. See id. § 924(c)(1)(D)(ii). 

§ 924(j) then relevantly says that "a person who, in the 

course of a violation of subsection (c), causes the death of a 

person through the use of a firearm," shall "be punished by death 

or by imprisonment for any term of years or for life" if the 

killing constitutes "murder" under 18 U.S.C. § 1111 (essentially 
- 30 -

Circuit case, United States v. Julian, 633 F.3d 1250 (11th Cir. 

2011), he asserts that a § 924(j) sentence need not run 

consecutively to any other sentence. 

The problem for Cruz-Ramos, however, is that his twosentence argument lacks both record cites and supporting analysis 

— for what it is worth, the government disputes his account of the 

record, saying that he "was charged and convicted" under § 924(c) 

and that "the jury instructions and jury form pertained to 

§ 924(c), not § 924(j)"; and the government also notes that other 

circuits disagree with the Eleventh's interpretive view (the 

thinking of those courts being that § 924(j)'s reference to 

§ 924(c) incorporates § 924(c)'s consecutive-sentencing decree). 

See generally United States v. Dillon, 720 F. App'x 310, 311 (7th 

Cir. 2018) (listing circuits standing against Julian's reading of 

the relevant statutory schemes). And given this state of affairs, 

we second the government's suggestion that Cruz-Ramos waived this 

rather complex claim by the superficial treatment he gave it. See

Rodríguez, 659 F.3d at 175-76 (deeming waived arguments not 

seriously developed in a party's opening brief); Braintree

Lab'ys., Inc. v. Citigroup Glob. Mkts. Inc., 622 F.3d 36, 44 (1st 

Cir. 2010) (same).

defining murder as "the unlawful killing of a human being with 

malice aforethought").
- 31 -

WRAP UP

For the reasons recorded above, we affirm the district 

court across the board.