Assumed Coconspirator-Statement Errors Do Not Require Reversal Without Individual or Cumulative Prejudice

1. Introduction

This decision addresses the admission of alleged coconspirator statements in a prosecution involving La Asociación Ñeta, commonly known as La Ñeta. Founded to advocate for prisoners’ rights in Puerto Rico, the organization allegedly developed into an enterprise whose members engaged in drug distribution and violence. The appellants—Eduardo Rosario-Orangel, Avelino Millán-Machuca, and Luis H. Quiñones-Santiago—were each convicted of conspiracy under the Racketeer Influenced and Corrupt Organizations Act, or RICO, and conspiracy to possess controlled substances with intent to distribute.

The appeals returned to the First Circuit after a limited remand for findings concerning the admissibility of numerous out-of-court statements. The principal questions were whether the statements qualified as coconspirator statements under Federal Rule of Evidence 801(d)(2)(E), whether any erroneous admissions were harmless, and whether their combined effect required reversal of Millán’s convictions.

The court affirmed all three appellants’ convictions. Its central contribution is a careful application of existing doctrine rather than the creation of a new hearsay exception: some statements were properly admitted, others were not hearsay, and any remaining assumed errors lacked sufficient individual or cumulative prejudicial effect given the other evidence.

2. Background and Procedural History

The charges and trial

A federal investigation into La Ñeta resulted in charges against fifty defendants. Each appellant faced two conspiracy counts:

• RICO conspiracy: Under 18 U.S.C. § 1962(d), an agreement to facilitate participation in La Ñeta’s affairs through a pattern of racketeering activity, principally involving drug trafficking.
• Drug-distribution conspiracy: Under 21 U.S.C. § 846, an agreement to possess heroin, cocaine, and marijuana with intent to distribute, in the quantities alleged in the indictment.

The jury convicted each appellant on both counts. The challenged evidence included testimony recounting statements made by other La Ñeta members, along with recordings and transcripts of intercepted telephone conversations.

Three important government witnesses—José González-Gerena, Alex Miguel Cruz-Santos, and Orlando Ruiz-Acevedo—had pleaded guilty to the charged RICO conspiracy. Another witness, Miguel Álvarez-Medina, was a La Ñeta member but had not been charged and denied participating in its illicit activities. These distinctions matter because the person testifying in court and the person who originally made an out-of-court statement are not necessarily the same person.

The earlier appeal and limited remand

In United States v. Ramos-Baez, 86 F.4th 28 (1st Cir. 2023), the First Circuit rejected the appellants’ other challenges but could not resolve certain hearsay objections because the district court had not made the findings required by United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977). The appellate court retained jurisdiction and remanded for those findings. It also dismissed Millán’s cumulative-error challenge without prejudice because the unresolved evidentiary issues might affect that claim.

On remand, the appellants identified dozens of statements requiring consideration. Although the government failed to file a response because of a stated calendar oversight, the district court held a hearing and found, by a preponderance of the evidence, that the relevant declarants and defendants belonged to the same conspiracy when the statements were made, that the statements furthered the conspiracy, and that sufficient extrinsic evidence supported conspiracy participation.

Those findings were collective rather than statement-by-statement. Importantly, the appellants did not argue on the renewed appeal that findings were missing for any identified statement. They instead challenged the evidentiary support for the findings. The First Circuit therefore reviewed the record and addressed their statement-specific arguments.

3. Summary of the Opinion

The court’s conclusions fall into four categories:

1. Properly admitted coconspirator statements: Several statements communicated operational instructions, financial information, disciplinary developments, or other matters furthering the conspiracy. Evidence outside the statements supported the declarants’ participation.
2. Firsthand testimony rather than hearsay: Certain challenges incorrectly characterized witnesses’ descriptions of their own participation as statements derived from unidentified third parties.
3. Assumed but harmless errors: For numerous statements, the court did not decide admissibility because substantially similar or otherwise powerful evidence independently supported the convictions.
4. No cumulative prejudice requiring reversal: Even assuming error in all of Millán’s challenges resolved on harmlessness grounds, the combined effect did not undermine the verdicts in light of the remaining evidence.

The court did not affirmatively find a Petrozziello violation. Its repeated use of harmless-error analysis leaves the admissibility of some individual statements unresolved.

4. Legal Framework and Precedents Cited

A. Coconspirator statements: the foundational rule

United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), supplies the governing framework. Under Rule 801(d)(2)(E), a statement offered against a party qualifies as nonhearsay when the necessary conspiracy relationship exists and a coconspirator made the statement during and in furtherance of that conspiracy. The proponent must establish the necessary foundation by a preponderance of the evidence.

As explained in United States v. Ramos-Baez, proof of the declarant’s conspiracy membership must include “extrinsic evidence beyond the statement itself.” Thus, the challenged statement cannot alone establish the declarant’s eligibility to speak as a coconspirator.

Anderson v. United States, 417 U.S. 211 (1974), provides the rationale. Conspirators are treated as agents of one another, but only within the relevant scope of their joint undertaking. Accordingly, a statement must further the conspiracy, not merely be uttered by someone associated with it.

United States v. Machor, 879 F.2d 945 (1st Cir. 1989), explains why findings mattered procedurally. A missing finding cannot simply be disregarded where the existing record does not make satisfaction of the preponderance standard apparent. That principle supported the earlier remand.

B. Standards of appellate review and alternative grounds

United States v. Ciresi, 697 F.3d 19 (1st Cir. 2012), establishes clear-error review for preserved Petrozziello challenges. This deferential standard required the appellants to do more than propose a competing interpretation of the evidence.

The court also relied on three precedents permitting affirmance without endorsing every aspect of the district court’s reasoning:

• Segrain v. Duffy, 118 F.4th 45 (1st Cir. 2024), permits affirmance on a ground manifest in the record.
• United States v. Barone, 114 F.3d 1284 (1st Cir. 1997), applies that principle specifically to evidentiary rulings.
• United States v. Piper, 298 F.3d 47 (1st Cir. 2002), supports rejecting an evidentiary challenge on harmless-error grounds without resolving whether admission was erroneous.

These authorities explain the opinion’s varied treatment of the challenged statements: some survived under the district court’s coconspirator rationale, some because they involved firsthand knowledge, and others because any error could not justify reversal.

C. What it means to further a conspiracy

The opinion draws heavily on precedents recognizing that a conspiracy depends on communication, coordination, confidence, and discipline—not merely explicit instructions to commit crimes.

• United States v. Pérez-Vásquez, 6 F.4th 180 (1st Cir. 2021), and United States v. Flemmi, 402 F.3d 79 (1st Cir. 2005), recognize that statements keeping conspirators informed of current developments and problems can further the conspiracy. The latter draws on United States v. Jefferson, 215 F.3d 820 (8th Cir. 2000). These cases supported admission of communications about unpaid incentives, leadership difficulties, and collection efforts.
• United States v. Martinez-Medina, 279 F.3d 105 (1st Cir. 2002), supports admission of statements conveying information about a drug conspiracy’s operations. It was particularly relevant to instructions about processing drugs and distributing responsibilities.
• United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), recognizes the operational significance of statements identifying a conspirator’s role and activities.
• United States v. Colón-Díaz, 521 F.3d 29 (1st Cir. 2008), treats statements promoting drug quality as furthering sales by generating confidence. It supported the treatment of Boringo’s comments about drugs supplied to Rosario.
• United States v. Laureano-Pérez, 797 F.3d 45 (1st Cir. 2015), supports treating communications encouraging loyalty or compliance with organizational rules as furthering the conspiracy.
• United States v. Ciresi also recognizes that statements intended to prevent dissension may further a conspiracy.
• United States v. Avilés-Colón, 536 F.3d 1 (1st Cir. 2008), supports the treatment of operational updates concerning conspirators’ activities and, separately, the distinction between hearsay and testimony based on personal experience.

These decisions supplied a functional approach: the question was what the communication accomplished within the conspiracy, not simply whether it described criminal conduct.

D. Extrinsic evidence of conspiracy membership

United States v. Rodríguez, 162 F.3d 135 (1st Cir. 1998), recognizes that violence against a suspected informant can demonstrate conspiracy membership. Here, evidence that Sandwich threatened to kill a purported informant supported his participation independently of his challenged statement.

United States v. Mitchell, 596 F.3d 18 (1st Cir. 2010), and United States v. Ruiz, 999 F.3d 742 (1st Cir. 2021), clarify that extrinsic evidence need not consist solely of live eyewitness testimony. Properly admissible recorded statements, including statements classified as nonhearsay under the evidence rules, can supply corroboration outside the particular statement being challenged.

This distinction was important to Omi’s membership. Evidence supporting that membership came through another admissible coconspirator statement about his smuggling cell phones into prison. “Extrinsic” therefore means outside the challenged statement; it does not necessarily mean outside every out-of-court communication.

E. RICO structure and conspiracy participation

United States v. Millán-Machuca, 991 F.3d 7 (1st Cir. 2021), supplies the opinion’s explanation of a pattern of racketeering activity: at least two related acts, occurring within ten years of each other, that pose a threat of continued criminal activity.

Boyle v. United States, 556 U.S. 938 (2009), entered the analysis through Quiñones’s argument that the challenged historical testimony was essential to prove the RICO enterprise’s structure. The court rejected that premise because other evidence established the organization’s hierarchy, meetings, rules, and disciplinary practices.

United States v. Rodríguez-Torres, 939 F.3d 16 (1st Cir. 2019), reinforced that conclusion. Evidence of meetings, rules, a loose hierarchy, and business-like rewards for performance and loyalty can exceed what Boyle requires.

United States v. Ramos-Baez and United States v. Leoner-Aguirre, 939 F.3d 310 (1st Cir. 2019), informed the court’s focus on knowing agreement to facilitate the conspiracy. In addressing RICO conspiracy, the court emphasized agreement to facilitate the enterprise’s affairs through at least two racketeering acts. It also explained that personally selling drugs was not indispensable to either conspiracy conviction at issue.

Three additional precedents supported proof through conduct and circumstances:

• United States v. Acevedo-Hernández, 898 F.3d 150 (1st Cir. 2018): knowing and voluntary participation may be inferred from conduct furthering the conspiracy.
• United States v. Rodríguez-Reyes, 714 F.3d 1 (1st Cir. 2013): coordinated conduct protecting the group’s status and exclusivity can support an inference of agreement.
• United States v. Negrón-Sostre, 790 F.3d 295 (1st Cir. 2015): ongoing presence and interaction can provide strong circumstantial evidence of association with a criminal venture.

F. Harmless error, preservation, and cumulative prejudice

United States v. Valdivia, 680 F.3d 33 (1st Cir. 2012), is the opinion’s most frequently used harmless-error authority. Where challenged evidence merely duplicates other evidence, its admission may not affect the verdict. United States v. Veloz, 948 F.3d 418 (1st Cir. 2020), similarly supports harmlessness when another witness has already testified to the same effect.

United States v. Henderson, 911 F.3d 32 (1st Cir. 2018), supports the significance of an appellant’s failure to explain prejudice or rebut a harmlessness argument. The court applied that principle to several of Millán’s intercepted-call challenges.

United States v. Ortiz, 966 F.2d 707 (1st Cir. 1992), supplied plain-error review for an unpreserved challenge. Under United States v. Benjamin-Hernandez, 49 F.4th 580 (1st Cir. 2022), failing even to argue that demanding standard can waive the corresponding appellate argument.

For cumulative error, United States v. Sepulveda recognizes that multiple errors may collectively impair trial fairness even when each appears harmless alone. Conversely, United States v. Pérez-Montañez, 202 F.3d 434 (1st Cir. 2000), explains that without multiple errors there is no cumulative effect to assess.

United States v. Castellini, 392 F.3d 35 (1st Cir. 2004), supported the significance of overwhelming independent evidence in rejecting aggregate prejudice. Finally, United States v. Manon, 608 F.3d 126 (1st Cir. 2010), supplied the opinion’s concluding formulation: whether there was a reasonable probability that exclusion of the disputed statements would have changed the trial’s outcome.

G. Disclosure precedents and ancillary citations

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), appeared in connection with previously rejected disclosure challenges involving government witnesses. The court emphasized that materiality is an element of a Giglio violation. Its earlier findings of no prejudice therefore meant no violation had been established, rather than that an established violation was merely harmless. The present evidentiary arguments supplied no basis to reopen those conclusions.

The court also cited United States v. Rosa-Borges, 101 F.4th 66 (1st Cir. 2024), and Caz v. Garland, 84 F.4th 22 (1st Cir. 2023), solely concerning Spanish naming conventions. They explain the shortened references to the appellants, not the substantive evidentiary outcome.

5. Application to the Individual Appellants

A. Quiñones: operational disputes, historical testimony, and preservation

Jowy’s statements about unpaid incentives

Jowy reportedly discussed problems with Quiñones arising from the latter’s failure to pass along drug “incentives”—payments owed to La Ñeta for permission to sell drugs independently. Quiñones argued that the statements concerned private dealing rather than a shared conspiracy.

The court rejected that characterization. González’s firsthand testimony that he worked drugs with Jowy on La Ñeta’s behalf provided extrinsic evidence of Jowy’s participation. The statements concerned compliance with La Ñeta’s financial requirements and informed another participant of an operational problem. Their connection to Quiñones’s personal sales did not remove their significance to the enterprise.

The Elders’ descriptions of La Ñeta

Older members had described La Ñeta’s history and structure to new inmates. Quiñones disputed their conspiracy membership and the timing and purpose of their statements.

The court did not decide those foundational questions. Instead, it held that any error was harmless because other witnesses independently described the enterprise’s hierarchy, meetings, rules, and disciplinary practices.

This limitation is significant. The government argued that La Ñeta membership alone established participation in the charged conspiracy, but the court did not adopt that proposition. Its harmless-error resolution leaves the disputed membership and timing issues unresolved.

The alleged transaction involving Millán

Quiñones also argued that Cruz’s account of a drug transaction must have depended on an unidentified declarant because Cruz was housed elsewhere. But Quiñones had neither presented that challenge in his opening appellate brief nor identified it on remand. Assuming the issue was not otherwise waived, plain-error review applied. Because he did not argue plain error, the appellate argument failed.

His renewed cumulative-error claim also failed: the court had assumed error concerning only one challenged statement, leaving no multiple-error combination to evaluate.

B. Rosario: promotional statements and duplicative evidence

Boringo’s statements about drug quality

Ruiz testified that Boringo supplied him drugs and promoted their quality by identifying other recipients, including Rosario. Ruiz’s own dealings with Boringo, together with evidence that Boringo paid La Ñeta in connection with those sales, independently supported Boringo’s conspiracy membership.

The context supported a finding that Boringo was vouching for the drugs to encourage confidence in their distribution. The statement therefore furthered the conspiracy rather than merely recounting a past event.

Statements attributed to Dianis Negrón

Ruiz testified that he knew of Rosario before meeting him through conversations with several people, including Negrón. The government disputed whether that testimony was hearsay at all.

The court assumed the hearsay problem without resolving it. Any error was harmless because other statements supplied materially similar information, and the properly admitted Boringo testimony independently connected Rosario to drug activity.

Quintana’s statement identifying Rosario as a supplier

Álvarez recounted that Quintana identified Rosario as his drug supplier. Again, the court relied on harmlessness rather than deciding the disputed coconspirator foundation.

Another individual, Chuito Carolina, had supplied comparable information, and Rosario did not challenge that statement’s admissibility. González also testified, without challenge, that Rosario had told him he possessed “fund” drugs—drugs sold on La Ñeta’s behalf. Together with Boringo’s statement, this evidence made Quintana’s account cumulative.

C. Millán: leadership evidence tied to criminal operations

Millán acknowledged holding a leadership position but argued that the legitimate evidence showed only his commitment to prisoner advocacy. In his view, the disputed statements supplied the improper bridge between lawful leadership and criminal agreement.

The court found that premise inconsistent with the unchallenged evidence. Financial reporting, drug transactions, collection efforts, and disciplinary communications connected his leadership to the illicit operation independently of the statements whose admissibility remained uncertain.

Statements found properly admitted

• Jowy’s processing instructions: González’s firsthand work with Jowy established membership, while Jowy’s instructions about accounting for drugs associated with Millán conveyed operational priorities.
• Sandwich’s explanation of Claudio’s assignment: Independent evidence connected Sandwich to the conspiracy. His statement about Millán assigning Claudio to collect cell-phone incentives communicated responsibilities and internal dynamics.
• Omi’s account of incentive enforcement: Other admissible evidence connected Omi to the enterprise’s contraband operations. His statement about Millán correcting a member’s failure to remit an incentive promoted compliance and kept participants informed.
• Statements by La Cana and Mickey Motors: Independent evidence supported their participation. Their discussions addressed rule violations and organizational problems following an inmate’s murder.
• Jowy’s reports about incentive disputes and collection: These informed other participants of current financial problems and efforts to resolve them.
• Rolando Millán-Machuca’s demand for proof: Evidence independently connected Rolando to the conspiracy. His direction to document another member’s violations supported enforcement of La Ñeta’s drug-related rules.

Testimony based on personal experience

Cruz testified that he acted as a conduit moving heroin from Millán to Quiñones. The record did not support Millán’s assertion that Cruz merely repeated what Quiñones had told him. Cruz described his own participation, so the testimony did not depend on the coconspirator rule.

The same distinction applied, at least in part, to Cruz’s testimony about leadership appointments and reports. Cruz had himself been appointed to leadership and personally reported to Millán. A witness’s reference to things learned over time did not establish that every part of his testimony rested on inadmissible third-party statements.

Statements resolved on harmless-error grounds

The court assumed possible error regarding several other subjects: La Ñeta’s structure and history; statements by Joseph de Leon and Benji Loiza about Millán’s drug dealing; certain leadership appointments and reporting practices; the location and frequency of sales of Millán’s drugs; González’s assertion that Millán knew “everything”; and several intercepted-call remarks about instructions, operational restrictions, reports, and an unspecified item to be delivered to him.

These challenges failed individually because other evidence established the same propositions or otherwise strongly proved criminal agreement. The court also treated certain remarks by an unidentified caller as harmless because identified participants in the same conversation supplied equivalent information.

That analysis did not make lawful leadership criminal by itself. Rather, it distinguished general organizational status from evidence that Millán exercised authority over drug finances, sales, debts, and discipline.

6. Cumulative Error: Why Multiple Assumed Errors Still Did Not Require Reversal

The court expressly recognized that individual harmlessness does not automatically establish collective harmlessness. It therefore identified the statements whose admissibility it had bypassed and considered their combined effect, assuming that all had been admitted erroneously.

The remaining evidence was decisive in several respects:

1. The enterprise’s criminal activities were independently established. González described daily drug sales, drug-processing practices, quantities moving through prisons, organizational rules, sanctions, and a murder he committed under leadership direction.
2. Millán was connected to drug operations through direct dealings. González described processing drugs that Jowy identified as Millán’s, along with personal conversations with Millán about drugs sold on his behalf.
3. Millán’s response to the murder supported knowing participation. González testified that Millán reassured him about an order issued by Rolando, recognized Rolando’s authority within maximum leadership, and offered to address objections. The court treated that conduct as evidence of coordination and management within the criminal enterprise.
4. Recorded communications independently demonstrated criminal oversight. Millán discussed debts, sanctions, reporting obligations, drug finances, and the expectation that members would defer to his leadership.
5. Other witnesses added direct evidence. Cruz and Ruiz described working with Millán in drug trafficking, strengthening a case that the court considered overwhelming even apart from Ruiz’s testimony.

The court therefore rejected Millán’s suggestion that removing the disputed statements would leave Ruiz as the primary evidence against him. It concluded that there was no reasonable probability that excluding the assumed-error statements would have changed the outcome.

The disclosure claims were not added to the aggregate

Millán’s earlier disclosure challenges involved the Jencks Act, Brady v. Maryland, and Giglio v. United States. The court explained that the relevant Giglio claims had failed because prejudice, an element of the claimed violation, was absent.

The new evidentiary arguments did not justify reconsidering those rulings. Accordingly, those unsuccessful disclosure claims were not treated as established errors to be added to the cumulative-error calculation. This was a record-specific conclusion, not a declaration that disclosure issues can never interact with evidentiary errors.

7. Impact and Limits of the Decision

A. Conspiracy communications receive a practical, contextual assessment

The decision reinforces that financial updates, explanations of assignments, disciplinary discussions, and measures to preserve loyalty can further a conspiracy. Future courts may use the opinion to evaluate communications that appear administrative but sustain an illicit enterprise’s operations.

The limit remains essential: the government must establish the declarant’s participation and the statement’s relationship to the conspiracy. Membership in an organization, especially one with lawful functions, is not automatically equivalent to membership in its criminal conspiracy.

B. Extrinsic corroboration can include other admissible statements

The opinion clarifies the practical breadth of corroboration. Evidence outside the challenged statement may include another properly admissible recorded communication. That does not eliminate the foundation requirement or permit a statement to establish its own admissibility without corroboration.

C. Appellate arguments must distinguish admissibility from prejudice

An appellant must explain both why the evidentiary ruling was wrong and why it mattered. This decision repeatedly demonstrates that identifying a possible hearsay defect is insufficient when unchallenged evidence proves the same fact.

For a cumulative-error argument, counsel must assess the remaining record as a whole and explain how the combined errors undermine the verdict. Simply collecting individually unsuccessful objections does not establish aggregate prejudice.

D. Preservation remains consequential

The court bypassed many disputes about whether objections had been preserved or sufficiently presented in earlier briefing. It therefore did not broadly resolve the government’s proposed restrictions on the remand’s scope.

Nevertheless, Quiñones’s newly raised transaction challenge illustrates the risk of omitting an issue from both the opening brief and remand submissions, then failing to address plain-error review.

E. The treatment of collective findings is narrow

The opinion should not be read as categorically approving generalized findings in every complex conspiracy trial. The appellants accepted that findings covered their identified statements and disputed their support. Whether materially different objections would require more explicit findings remains outside the decision.

F. The opinion’s unresolved issues should remain unresolved

Harmless-error rulings do not establish that the disputed statements were admissible. Future litigants cannot fairly cite this opinion as categorical approval of historical instruction by older members, unidentified speakers’ assertions, or every layered statement in a recorded call. In several instances, the court deliberately left those questions open.

8. Complex Concepts Simplified

Hearsay

An out-of-court statement offered to prove what it asserts. A witness describing an event personally experienced is different from a witness repeating another person’s account.

Coconspirator statement

A qualifying statement by a participant, made during and to advance a shared conspiracy. The evidence rules classify it as nonhearsay when the required foundation is established.

Declarant

The person who originally made a statement. The declarant may be different from the witness recounting it at trial.

Preponderance of the evidence

Proof that a fact is more likely true than not. This governs the evidentiary foundation here, not the jury’s determination of guilt beyond a reasonable doubt.

Extrinsic evidence

Evidence outside the particular statement being evaluated. It supplies corroboration and may include other independently admissible statements.

In furtherance of the conspiracy

Serving the conspiracy’s objectives—for example, coordinating tasks, encouraging sales, enforcing rules, or addressing operational problems.

Clear error

A deferential standard for reviewing factual findings. An appellate court does not overturn a finding merely because another interpretation is possible.

Harmless error

A mistake that does not justify reversal because it did not sufficiently affect the outcome. Evidence duplicating properly admitted proof is often important to that assessment.

Cumulative error

The combined effect of multiple mistakes. Several individually harmless errors may together undermine a fair trial, so their interaction must be considered.

Conspiracy liability

Liability based on knowing agreement to advance a criminal undertaking. Personally performing every underlying criminal act is not required, but organizational association alone does not establish the necessary agreement.

9. Conclusion

United States v. Rosario-Orangel affirms the convictions while preserving the distinction between admissible coconspirator statements, firsthand testimony, and evidence whose admission may have been erroneous but harmless.

Its principal significance is methodological: courts must examine the foundation for challenged statements and, where necessary, assess both individual and aggregate prejudice against the remaining record. Here, substantial properly admitted or unchallenged evidence established the appellants’ criminal participation and defeated the claimed grounds for reversal.