Overwhelming Evidence Defeats Cumulative-Error Relief Even Assuming Multiple Petrozziello Misadmissions

Case: United States v. Rosario-Orangel (consolidated Nos. 20-1275, 20-1276, 20-1283)
Court: United States Court of Appeals for the First Circuit
Date: March 20, 2026
Panel: Barron, C.J., Thompson, J., Burroughs, D.J. (sitting by designation)

I. Introduction

This opinion resolves a second-round evidentiary dispute arising from the prosecution of members of “La Asociación Ñeta” (“La Ñeta”) in the District of Puerto Rico. Eduardo Rosario-Orangel (“Rosario”), Luis H. Quiñones-Santiago (“Quiñones”), and Avelino Millán-Machuca (“Millán”) were convicted after a joint jury trial of:

• RICO conspiracy, 18 U.S.C. § 1962(d), predicated on a conspiracy to violate § 1962(c) through a pattern of racketeering activity (principally drug trafficking); and
• Drug-trafficking conspiracy, 21 U.S.C. § 846 (conspiracy to violate § 841(a)(1)).

In an earlier decision in the consolidated appeals, the First Circuit rejected various other challenges but could not resolve these defendants’ hearsay objections because the district court had not made the necessary findings under United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977). The court remanded for the district court to make the missing admissibility findings while retaining appellate jurisdiction. The remand also left open Millán’s cumulative error claim because possible Petrozziello errors could affect that analysis.

On remand, the district court issued broad findings that the challenged statements were made by coconspirators, during and in furtherance of the conspiracy, supported by extrinsic evidence. The First Circuit now reviews those findings, rejects each defendant’s statement-specific challenges, rejects Millán’s cumulative error claim, and affirms all convictions.

II. Summary of the Opinion

Chief Judge Barron’s opinion proceeds in three moves:

1. Post-remand framework: The court notes the government’s arguments that many challenges were unpreserved and/or waived, but it declines to decide those threshold issues because the claims fail on the merits and/or harmless error given the deference owed to the district court’s findings and the weight of other evidence.
2. Statement-by-statement adjudication: The court evaluates each defendant’s specific attacked statements (largely from cooperating witnesses and intercepted calls), concluding either:
   • the district court did not clearly err under Petrozziello;
   • the evidence was not hearsay (personal knowledge);
   • any error was harmless because the evidence was cumulative or the record was otherwise strong; or
   • the claim was waived/forfeited (notably where defendants did not argue plain error).
3. Cumulative error (Millán): Even assuming arguendo that multiple statements were misadmitted under Petrozziello, the court holds that the properly admitted evidence of Millán’s knowing agreement to facilitate La Ñeta’s racketeering/drug-trafficking was “overwhelming,” defeating any reasonable probability of a different result.

III. Analysis

A. Precedents Cited (and How They Drive the Result)

1. The coconspirator-statement doctrine and the First Circuit’s gatekeeping rule

• United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977): The central precedent. It operationalizes Fed. R. Evid. 801(d)(2)(E) in the First Circuit: the proponent must show by a preponderance that the declarant and the defendant were in the conspiracy, and the statement was made during and in furtherance of it. The remand occurred precisely because the district court had not made “key findings” required by Petrozziello.
• Anderson v. United States, 417 U.S. 211, 218 n.6 (1974): Supplies the “agency” rationale—conspirators are “partners in crime” and treated as agents, but only for statements within the “scope” of the conspiracy’s aims (hence the “in furtherance” limitation). The opinion uses Anderson to explain why statements that merely narrate past events or serve purely personal ends may fall outside the rule.
• United States v. Machor, 879 F.2d 945, 951 (1st Cir. 1989): In the earlier appellate decision, the First Circuit cited Machor to justify remand when it is “not apparent” whether the preponderance standard is met. Here, after remand, the appellate court applies deference to the newly supplied findings.
• United States v. Ciresi, 697 F.3d 19, 26 (1st Cir. 2012): Establishes the standard of review—preserved Petrozziello rulings are reviewed for clear error. The court invokes Ciresi to frame its deferential posture toward the district court’s post-remand findings.
• United States v. Ramos-Baez, 86 F.4th 28 (1st Cir. 2023): The prior decision in the consolidated appeals. It supplies multiple controlling propositions used here:
  • corroboration: membership must be supported by “extrinsic evidence beyond the statement itself” (quoted at 72);
  • substantive RICO conspiracy requirements: the government must show the defendant “knew about and agreed to facilitate” the conspiracy to conduct the enterprise’s affairs through at least two racketeering acts (quoted at 53); and
  • cumulative error: no “cumulative effect” exists where no error is found (citing United States v. Pérez-Montañez, 202 F.3d 434, 440-41 (1st Cir. 2000)).

2. “In furtherance” is broad: updates, enforcement, coordination, and operational talk qualify

• United States v. Pérez-Vásquez, 6 F.4th 180, 195 (1st Cir. 2021) (quoting United States v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005)): The opinion repeatedly relies on the principle that statements made to keep conspirators “abreast of current developments and problems facing the group” are “in furtherance.”
• United States v. Martinez-Medina, 279 F.3d 105, 117 (1st Cir. 2002): Used to validate statements conveying information about “operations of the drug conspiracy.”
• United States v. Sepulveda, 15 F.3d 1161, 1181 (1st Cir. 1993): Supports admission of statements identifying a member’s “role and activities.”
• United States v. Laureano-Pérez, 797 F.3d 45, 66 (1st Cir. 2015) and United States v. Ciresi, 697 F.3d 19, 30 (1st Cir. 2012): Support the notion that statements intended to encourage loyalty, compliance, or forestall dissension can further the conspiracy.

3. Harmless error and affirmance on any ground

• Segrain v. Duffy, 118 F.4th 45, 58 (1st Cir. 2024): The court may affirm “on any ground manifest in the record.”
• United States v. Piper, 298 F.3d 47, 56-58 (1st Cir. 2002): Supports rejecting evidentiary claims on harmless error grounds.
• United States v. Barone, 114 F.3d 1284, 1296 (1st Cir. 1997): The court may affirm evidentiary rulings on any ground apparent from the record—used here to dispose of certain objections by classifying testimony as nonhearsay/personal knowledge.
• United States v. Valdivia, 680 F.3d 33, 46 (1st Cir. 2012) and United States v. Veloz, 948 F.3d 418, 434 (1st Cir. 2020): Harmlessness where challenged hearsay is cumulative of other evidence to the same effect.

4. Preservation, forfeiture, and “plain error” briefing obligations

• United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992): Unpreserved claims are reviewed for plain error.
• United States v. Benjamin-Hernandez, 49 F.4th 580, 585 (1st Cir. 2022): Failure to argue plain error in appellate briefing can waive the argument for applying that standard.
• United States v. Pena, 24 F.4th 46, 60-61 (1st Cir. 2022): Failure to preserve can trigger plain error review.
• United States v. Morales-Vélez, 100 F.4th 334, 345 (1st Cir. 2024) and United States v. Rodriguez-Monserrate, 22 F.4th 35, 40 (1st Cir. 2021): A party must actually develop the plain error argument; incorporation-by-reference from an earlier procedural posture is not enough once the legal landscape changes (here, once the district court made findings on remand).

5. RICO “enterprise” structure and sufficiency of proof

• Boyle v. United States, 556 U.S. 938, 945 (2009): Cited by Quiñones to argue the government needed proof of enterprise “structure.” The First Circuit answers via harmlessness: even if some “Elders” history/structure statements were problematic, other testimony provided more than enough to meet Boyle.
• United States v. Rodríguez-Torres, 939 F.3d 16, 25 (1st Cir. 2019): Used to show that evidence of meetings, rules, and a loose hierarchy “far surpass[es]” Boyle’s enterprise requirements.

6. Cumulative error standard

• United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993): Sets the cumulative-error framework—multiple errors may aggregate to a prejudicial effect greater than any single error.
• United States v. Castellini, 392 F.3d 35, 52 (1st Cir. 2004) and United States v. Manon, 608 F.3d 126, 139 (1st Cir. 2010): Anchor the court’s conclusion that overwhelming evidence defeats any “reasonable probability” that excluding assumed-error statements would change the outcome.

B. Legal Reasoning

1. The court strategically bypasses threshold waiver disputes

The government argued many challenged statements were outside the remand’s scope or waived because defendants did not object contemporaneously or did not list them in opening briefs. The First Circuit declines to resolve those threshold issues because it can affirm based on: (a) deference to the district court’s (now-supplied) findings under clear-error review; and (b) harmless error given significant unchallenged evidence. This is consistent with the court’s explicit reliance on Segrain v. Duffy and its harmless error authority (United States v. Piper).

2. “Extrinsic evidence” can be broad and may include other admissible out-of-court statements

A persistent factual question under Petrozziello is whether the record shows—beyond the challenged statement itself—that the declarant belonged to the conspiracy. The court repeatedly finds extrinsic corroboration in:

• cooperator testimony about firsthand participation (e.g., “working the drug tables”);
• evidence of rule enforcement, violence, and threats supporting conspiratorial membership (e.g., threats against “snitch[es]”); and
• intercepted-call content treated as admissible nonhearsay or coconspirator statements that can corroborate membership (citing United States v. Mitchell, 596 F.3d 18, 24 (1st Cir. 2010) and United States v. Ruiz, 999 F.3d 742, 749 (1st Cir. 2021)).

3. The “in furtherance” requirement is applied functionally

The opinion treats statements as “in furtherance” when they serve recognizable operational purposes:

• coordination and bookkeeping (tallying drug proceeds, processing “tickets,” incentive collection);
• enforcement and compliance (urging proof of rule violations; warning about consequences for debts; putting members “in [their] place”);
• information-sharing (updates about murders, disputes, violations, organizational problems); and
• promotion of the conspiracy’s objective (e.g., “vouching” for drug quality, analogous to United States v. Colón-Díaz, 521 F.3d 29, 37 (1st Cir. 2008)).

4. Nonhearsay escapes Petrozziello entirely

Several challenges fail because the court classifies the testimony as grounded in personal participation rather than repetition of a declarant’s statement. For example, Millán’s attempt to recast Cruz’s “middleman” drug-transaction account as hearsay is rejected: participation is personal knowledge, thus no Rule 801 problem. The court’s reliance on United States v. Avilés-Colón, 536 F.3d 1, 14-15 (1st Cir. 2008) and United States v. Barone highlights a frequent appellate move: a purported Petrozziello issue dissolves once the testimony is properly characterized.

5. Harmless error does the heavy lifting (especially for enterprise-structure and leader-control themes)

Where the court is willing to assume possible Petrozziello error, it often resolves the claim by showing the challenged statement is cumulative of:

• other witness testimony about La Ñeta’s hierarchy, rules, meetings, and discipline (answering the Boyle “enterprise” point);
• multiple sources identifying the defendant’s drug involvement (e.g., Rosario: statements from Boringo, Chuito Carolina, and González’s testimony); and
• intercepted calls in which Millán and others discuss debts, incentives, sanctions, and reporting structures.

6. The decision tightens appellate expectations for plain-error briefing post-remand

Millán tried to preserve challenges to certain intercepted-call statements after failing to include them in the remand list, urging that he had incorporated earlier plain-error arguments. The First Circuit rejects that maneuver: once the district court has supplied the missing Petrozziello findings, the appellant must explain why the new alleged error is plain under that new posture. The court treats failure to do so as waiver, consistent with United States v. Benjamin-Hernandez and United States v. Rodriguez-Monserrate.

C. Impact

1. Practical consequences for litigants in conspiracy trials

• Defense counsel must build a preservation record. This opinion validates the government’s preservation arguments as plausible—even though the court bypassed them—signaling that future panels may decide them when merits/harmlessness are closer.
• Post-remand advocacy must be tailored to the new record. Incorporation-by-reference of earlier plain-error discussions may not suffice when the dispositive circumstance (here, absence of findings) has been cured.
• Harmless error will often be decisive in complex racketeering trials. When the government presents overlapping testimony from multiple cooperators plus intercepted communications, a defendant must show not only technical inadmissibility but concrete prejudicial significance.

2. Institutional consequences for district courts

The case illustrates the value—and appellate acceptance—of making clear Petrozziello findings, even if not exhaustively statement-by-statement. But it also implicitly warns that failure to make findings in the first instance invites remand and delay.

3. Doctrinal consequences: cumulative error in evidence-dense prosecutions

The opinion is especially important for the proposition that, even when multiple evidentiary issues are in play, the cumulative-error inquiry can be resolved by the strength of the remaining evidence. The court explicitly holds it need not definitively decide whether each assumed-error statement was wrongly admitted under Petrozziello to deny cumulative-error relief where proof of agreement and facilitation of racketeering is otherwise “overwhelming.”

IV. Complex Concepts Simplified

• Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Generally inadmissible unless an exception/exclusion applies.
• Rule 801(d)(2)(E) / coconspirator statements: A statement is treated as “not hearsay” if made by a conspirator during and in furtherance of the conspiracy, and offered against another conspirator.
• Petrozziello finding: The district judge’s determination (by a preponderance) that the foundational requirements for Rule 801(d)(2)(E) are met, including corroboration (“extrinsic evidence”) of membership.
• “In furtherance”: Not limited to explicit commands; it includes updates, coordination, enforcement of rules, and efforts that maintain the conspiracy’s cohesion and operations.
• Harmless error: Even if the court made an evidentiary mistake, a conviction stands if the mistake likely did not affect the verdict—often because the same point was proven by other admissible evidence.
• Cumulative error: Multiple errors, each possibly insufficient alone, can collectively undermine a fair trial. But if the remaining evidence is overwhelming, cumulative error fails.
• Plain error: A demanding appellate standard for unpreserved issues; the appellant must argue and satisfy the elements of plain error. Failure to develop that argument can itself be treated as waiver.

V. Conclusion

United States v. Rosario-Orangel affirms three RICO and drug-conspiracy convictions after a targeted remand for Petrozziello findings. The First Circuit’s core contributions are pragmatic and case-shaping: it applies deferential clear-error review to post-remand admissibility determinations, relies heavily on harmlessness in an evidence-rich record, polices the requirement that appellants actually develop plain-error arguments, and—most notably—rejects cumulative-error relief even while assuming multiple possible Petrozziello misadmissions because the properly admitted evidence of conspiratorial agreement and facilitation is overwhelming.