US v. Jose Franco-Santiago

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Bruce M. Selya, Appellate Judge. Published. [10-2247]

Case: 10-2247

Document: 00116385861

Page: 1

Date Filed: 05/31/2012

Entry ID: 5645518

United States Court of Appeals
For the First Circuit

No. 10-2247
UNITED STATES,
Appellee,
v.
JOSÉ FRANCO-SANTIAGO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]

Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Irma R. Valldejuli for appellant.
José A. Contreras, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson PérezSosa, Assistant United States Attorney, and Julia M. Meconiates,
Assistant United States Attorney, were on brief, for appellee.

May 31, 2012

Case: 10-2247

Document: 00116385861

Page: 2

LYNCH, Chief Judge.

Date Filed: 05/31/2012

Entry ID: 5645518

José Franco-Santiago appeals from

his federal criminal conviction on April 16, 2010, for being a
member of an ongoing conspiracy which engaged in five robberies of
businesses in violation of the Hobbs Act from July 2002 through
September 2002.

He was a police officer with the Puerto Rico

police force from 1991 until September 2007, shortly after he was
indicted on August 22, 2007, on the conspiracy charge.
At his trial, the government put on evidence sufficient
to prove that Franco-Santiago participated in one of the robberies.
On August 7, 2002, he assisted in the robbery of a private security
firm's payroll by loaning the robbers his personal firearm and by
driving a getaway car.

For his part in this robbery, he received

$7,500.
Franco-Santiago makes several arguments on appeal, but
there is one central argument: he contends that even if there was
sufficient evidence to convict him of conspiring to commit the
payroll robbery of August 7, 2002, there was not legally sufficient
evidence to convict him of participating in the charged broader
multiple-robbery conspiracy, much less one that included the next
and final robbery of September 25, 2002.

As such, he argues, his

conviction for the August 7, 2002, robbery was barred by the fiveyear statute of limitations for non-capital federal crimes. See 18
U.S.C. § 3282(a).

In short, the government was two weeks too late

in indicting him on August 22, 2007, for an August 7, 2002,

-2-

Case: 10-2247

Document: 00116385861

robbery.

Page: 3

Date Filed: 05/31/2012

Entry ID: 5645518

We agree, reverse, and remand for entry of a judgment of

acquittal.
I.
On August 22, 2007, a federal grand jury returned an
indictment charging Franco-Santiago and seven co-defendants with
one count of conspiring to rob businesses engaged in interstate
commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a).1

The

grand jury returned the second superseding indictment under which
Franco-Santiago was tried on November 28, 2007.2
indictment

and

the

second

superseding

Both the original

indictment

charged

a

conspiracy "[f]rom on or about the [sic] July 2002 up to on or
about September 2002" and five overt acts: the robbery of a video
store on July 2, 2002; the robbery of a supermarket on July 9,
2002; the robbery of a beauty salon sometime in July 2002; the
robbery of a private security firm's payroll on August 7, 2002; and
the robbery of a restaurant on September 25, 2002.
Five of Franco-Santiago's co-defendants pled guilty, one
co-defendant's charge was dismissed with prejudice as time barred,
and the charges of two others were dismissed without prejudice
because they were fugitives. Franco-Santiago alone went to trial.

1

The indictment also contained a second count that did not
name Franco-Santiago.
2

The second superseding indictment added a ninth defendant.
-3-

Case: 10-2247

Document: 00116385861

Page: 4

Date Filed: 05/31/2012

Entry ID: 5645518

His eight-day jury trial lasted from April 5, 2010, through April
15, 2010.

On April 16, 2010, the jury returned a guilty verdict.
During his two-day sentencing hearing held in September

2010, the government conceded that there was no evidence presented
at trial that Franco-Santiago knew about the three robberies
committed in July 2002 and so he could not be held accountable for
those

robberies

sentencing range.

for

purposes

of

calculating

his

guidelines

However, on the first day of the hearing the

government argued that Franco-Santiago's sentencing calculation
should include the restaurant robbery of September 25, 2002.
Franco-Santiago strenuously opposed this on the ground that there
was no evidence presented at trial supporting an inference that he
knew about or foresaw this robbery.
On the second day of the sentencing hearing, counsel for
the government opened by telling the district court that he had
"found some evidence that helps [the] defense and supports his
argument that the defendant should not be held accountable for the
September 25th robbery. Actually, to be bluntly honest, it appears
that he should not be."

The court stated that it had reached the

same conclusion.
The court then based its sentencing calculation solely on
Franco-Santiago's involvement in the August 7 payroll robbery.

On

September 28, 2010, the district court sentenced Franco-Santiago to
ninety-six months in prison and three years of supervised release

-4-

Case: 10-2247

Document: 00116385861

Page: 5

Date Filed: 05/31/2012

Entry ID: 5645518

and imposed a restitution order of $46,000, to be paid jointly and
severally by the co-defendants who took part in the August 7
payroll robbery.

The court entered judgment the same day, and

Franco-Santiago timely appealed.
On appeal Franco-Santiago raises multiple arguments, of
which

one

is

dispositive:

that

the

government

presented

insufficient evidence that he was part of a single overarching
conspiracy to commit robberies from July 2002 through September
2002, and at most he could only have been convicted of conspiring
to commit the single payroll robbery of August 7, 2002, for which
the statute of limitations had expired when he was first indicted
on August 22, 2007.3
We hold that while there was sufficient evidence to
convict Franco-Santiago of conspiring to commit the August 7
payroll robbery, there was insufficient evidence to convict him of
agreeing to participate in a broader conspiracy spanning July 2002
through September 2002.

This has resulted in prejudice, not

because of a variance, but because of the expiration of the statute

3

Franco-Santiago's remaining arguments are: his right to a
public trial was violated when his wife was purportedly prevented
from being in the courtroom for jury selection; the district court
committed reversible error when during the course of the trial it
instructed the jury that a witness's Fifth Amendment right not to
testify about past crimes was the same right that the defendant had
not to testify in his own trial; the prosecutor impermissibly
vouched for a witness's credibility during the closing argument;
and the district court erred in determining that Franco-Santiago
was jointly and severally liable for the full $46,000 in
restitution. We have no need to reach any of those claims.
-5-

Case: 10-2247

of

Document: 00116385861

limitations.

We

find

Page: 6

there

Date Filed: 05/31/2012

is

plain

error,

Entry ID: 5645518

reverse

his

conviction, and remand for entry of a judgment of acquittal.
II.
Because Franco-Santiago questions the sufficiency of the
evidence supporting his conviction of the charged conspiracy, we
relate the facts in the light most favorable to the verdict.

See

United States v. De Jesús-Viera, 655 F.3d 52, 55 (1st Cir. 2011),
cert. denied, 132 S. Ct. 1045 (2012).
The second superseding indictment under which FrancoSantiago was tried charged nine defendants, including FrancoSantiago, who alone went to trial.

The government called eight

witnesses during Franco-Santiago's trial, among them the police
officer who investigated the August 7 robbery, a crime scene
technician, a fingerprint expert, a firearms expert, and victims of
three of the robberies charged as overt acts, including the victim
of the August 7 robbery.

The government's most important witness,

and the only one who could have tied Franco-Santiago to the other
robberies, was Rubén Hernández, an unindicted co-conspirator and
government cooperator.

The following account comes mostly from

Hernández's testimony.
When Hernández came to Puerto Rico from the Dominican
Republic in 2000 he held legitimate jobs at first, but he soon met

-6-

Case: 10-2247

Document: 00116385861

Page: 7

Date Filed: 05/31/2012

Entry ID: 5645518

a man known as Chicky,4 and the two went on to commit multiple
robberies.

Through Chicky, Hernández met Luis,5 and Luis, in turn,

introduced Hernández to appellant Franco-Santiago approximately
three months before the payroll robbery of August 7, 2002, in which
all three participated.

The exact date of the meeting is unclear,

but it was before the plot to do the August 7 payroll robbery was
hatched and before the broader charged conspiracy began in July
2002.

The three men met at a residence in Río Piedras, and Luis

introduced Franco-Santiago to Hernández as "the police officer" or
"the cop."

The prosecution solicited no testimony from Hernández

regarding what happened at this meeting or what, if anything, the
men discussed.

4

Chicky is co-defendant José Alberto Santana-Mejia (also
known and indicted as Pablo Rodríguez-Rafael). He pled guilty.
5

Luis is co-defendant Luis Mercedes Fernandez.
He pled
guilty. The indictment does not charge Luis with participating in
any robbery other than the payroll robbery of August 7, 2002, but
Hernández testified that he had committed multiple robberies and a
kidnapping with Luis before August 2002.
-7-

Case: 10-2247

Document: 00116385861

Page: 8

Date Filed: 05/31/2012

Entry ID: 5645518

On July 2, 2002, Chicky and Hernández, along with two
other persons named Alex6 and Raiza,7 robbed $6,000 from a video
store in Santurce. On July 9, 2002, Hernández robbed a supermarket
called Centro Ahorros with Chicky, Alex, and a man known as Arlin.8
And at some point in July 2002 Hernández also robbed a beauty salon
with Chicky, a man known as Wellington,9 and Frank Guerra.10

There

was no evidence that Franco-Santiago was involved in, knew about,
or assisted any of these three July 2002 robberies.
At some unknown point after Hernández, Luis, and FrancoSantiago met in Río Piedras, Luis approached Hernández about
potentially robbing a businessman: Ernesto Carrasquillo Matos, the

6

Alex is co-defendant Andrés Polanco. The charges against
Polanco were dismissed with prejudice as time barred. Polanco was
not charged in the original indictment of August 22, 2007, in which
Franco-Santiago and seven other defendants were charged. Rather,
Polanco was first charged in the second superseding indictment of
November 28, 2007, which was returned more than two months after
the statute of limitations ran on the charged conspiracy, which
allegedly ended in late September 2002. See 18 U.S.C. § 3282(a)
(general five-year statute of limitations for non-capital federal
crimes).
7

Raiza is co-defendant Raiza Sánchez, whom Hernández usually
referred to during his testimony as "the girl." She pled guilty.
8

Arlin

is

co-defendant

José

Capellan

García.

He

pled

guilty.
9

Wellington
conspirator.

is

Jairo

Del

10

Rosario,

an

unindicted

co-

Frank Guerra is co-defendant Francisco Guerra Hernández.
This is not the same "Frank" discussed below who planned the August
7 payroll robbery. Guerra jumped bail and the charges against him
were dismissed without prejudice because of his status as a
fugitive.
-8-

Case: 10-2247

Document: 00116385861

Page: 9

Date Filed: 05/31/2012

Entry ID: 5645518

owner of a private security firm called CM Express Service.

Luis,

in turn, had been given the information about the robbery by a man
known simply as "Frank," who was not charged in the indictment and
not otherwise identified.

Frank had private information about the

victim, and it was Frank who managed and directed the robbery.
There is no evidence that Frank was involved in any of the other
four robberies charged as overt acts in the indictment.

The plan

was to rob Carrasquillo of the cash he withdrew from a bank to pay
his company's payroll, which the robbers expected to amount to
somewhere between $40,000 and $80,000.
Hernández and Luis had several conversations about how to
commit the robbery.

Among other things, they discussed needing

cars and more guns to pull it off.

To solve this firearm shortage,

Luis suggested they turn to "a friend," the policeman to whom he
had introduced Hernández before: appellant Franco-Santiago.

Luis

told Hernández that Franco-Santiago would be willing to lend a
weapon to carry out the robbery.

They also planned to use Franco-

Santiago's van as a getaway car.
By the time of the robbery, a group of six had been
assembled: Hernández, Luis, Chicky, a man known as El Teniente11
("Lieutenant"), a man identified only as Pocho, and appellant

11

El Teniente is co-defendant Narciso Castillo Restituyo.
The charges against Castillo Restituyo were dismissed without
prejudice because he remained a fugitive. Apparently, he had been
erroneously deported.
-9-

Case: 10-2247

Document: 00116385861

Franco-Santiago.

Page: 10

Date Filed: 05/31/2012

Entry ID: 5645518

It is possible that the planner, Frank, was

present for the robbery as well.

There was no evidence that

Hernández, Luis, or Chicky had ever worked with Franco-Santiago, El
Teniente, or Pocho before this event.
On the morning of August 7, 2002, Franco-Santiago drove
his van to a rendezvous point: the parking lot of the Plaza
Carolina shopping center. By this time Franco-Santiago had already
lent the robbers his weapon, a 9 mm handgun. Meanwhile, Hernández,
Luis, El Teniente, Chicky, Pocho, and possibly Frank drove in two
cars to the Banco Santander branch in Carolina.
They

watched

Carrasquillo

enter

and

leave

the

bank

carrying a briefcase and accompanied by Félix de Motta, an armed CM
Express Service employee.

Hernández, Luis, and Chicky approached

Carrasquillo and de Motta as they left the bank and at gunpoint
took

Carrasquillo's

briefcase,

withdrawn, and de Motta's gun.

which

held

the

cash

he

had

All three robbers were armed, and

one was carrying Franco-Santiago's gun.
El Teniente then drove the group to the Plaza Carolina
parking lot where they abandoned El Teniente's car and got into
Franco-Santiago's waiting van.

From there Franco-Santiago drove

the group to a residence which Hernández believed was FrancoSantiago's house. At some point, either while on the ride from the
Plaza Carolina to the house or inside the house, Franco-Santiago's
gun was returned to him.

-10-

Case: 10-2247

Document: 00116385861

Page: 11

Date Filed: 05/31/2012

Entry ID: 5645518

At the house, the robbery proceeds contained in the
briefcase -- approximately $46,000 -- were divided up.

Hernández,

Chicky, Luis, El Teniente, and Franco-Santiago each received about
$7,500, as did Frank, who also received the gun that was taken from
de Motta; Pocho received about $2,000. The robbers left the house,
except for Franco-Santiago, who stayed behind.
Unbeknownst

to

the

robbers,

the

August

7

robbery,

getaway, and change of vehicles were all witnessed by an off-duty
Puerto Rico police officer named Concepción who called it in to the
command center of the Carolina police precinct.

The robbery was

investigated by Agent Julio Alicea of the Puerto Rico police, who
was given two license plate numbers by Concepción.

Both plate

numbers belonged to minivans: one a green minivan registered to a
woman, the other a blue minivan registered to a man.

As a result

of an interview with the man, Alicea went to a restaurant in Río
Piedras where Franco-Santiago held a second job as a security
guard, both to speak with him and to see the blue minivan.

Alicea

found the blue minivan there, and Franco-Santiago told him that it
was his vehicle.
Franco-Santiago was later asked into the Carolina police
precinct for questioning, but evidently the Puerto Rico police's
investigation into his role in the payroll robbery went no further.
As for the fifth and final robbery charged as an overt
act of the overarching conspiracy, some time in late September

-11-

Case: 10-2247

Document: 00116385861

Page: 12

Date Filed: 05/31/2012

Entry ID: 5645518

2002, a man known as Marquito12 approached Hernández about robbing
the Julius Restaurant in Puerto Nuevo.

Hernández, Marquito, El

Teniente, and perhaps one other person known as El Cano robbed the
restaurant on the night of September 25, 2002.

There is no

evidence that Franco-Santiago was involved in or knew about this
robbery.
Hernández was asked at trial, of all the robberies he had
committed with the individuals he had mentioned in his testimony
(including Chicky, Luis, El Teniente, Alex, Raiza, Arlin, Marquito,
and Franco-Santiago), "was it always understood that there would be
another robbery to do"?
thieves.

Hernández replied that "[w]e were already

Always something came up to do, I would say, yes."

Hernández also testified that it was never said before a robbery
that it would be the last one.
Not long after the September 25 restaurant robbery,
Hernández left Puerto Rico for New York where he continued to
commit robberies, now targeting drug dealers.

In November or

December of 2003, Hernández was arrested in New York.

He was

transferred to federal custody and soon after began cooperating
with federal agents.

12

Marquito is co-defendant Marcos de la Cruz.

guilty.
-12-

He pled

Case: 10-2247

Document: 00116385861

Page: 13

Date Filed: 05/31/2012

Entry ID: 5645518

III.
A.

Sufficiency of the Evidence that Franco-Santiago Joined
an Overarching Conspiracy to Commit a Series of Robberies
The topic of whether a defendant who is guilty of

participating in one smaller conspiracy proven at trial is also
guilty of participating in a larger overarching conspiracy charged
in the indictment is one which recurs in a variety of legal
contexts.

It often comes up when a defendant argues that he was

prejudiced by a variance between the indictment and the facts
proved at trial.

See, e.g., United States v. Dunbar, 553 F.3d 48,

60-61 (1st Cir. 2009); United States v. Perez-Ruiz, 353 F.3d 1, 7
(1st Cir. 2003).

The issue is also raised in cases where the

defendant argues that the government may have proven that the
defendant joined a smaller conspiracy that falls outside the
statute of limitations, but failed to prove a broader overarching
conspiracy that extended into the limitations period.

See, e.g.,

United States v. Mangual-Santiago, 562 F.3d 411, 421 (1st Cir.
2009); United States v. Rouleau, 894 F.2d 13, 14-15 (1st Cir.
1990).
In this case, Franco-Santiago's argument is not that
there were multiple conspiracies rather than a single overarching
conspiracy. Cf., e.g., United States v. Soto-Beníquez, 356 F.3d 1,
18 (1st Cir. 2003).

It is, instead, that even if there were

otherwise proof as to certain defendants that they participated in
a single overarching conspiracy, there was no proof that he agreed
-13-

Case: 10-2247

Document: 00116385861

Page: 14

Date Filed: 05/31/2012

Entry ID: 5645518

to participate in such an overarching conspiracy or even knew about
it,

much

less

conspiracy.

that

his

aim

was

to

further

or

assist

that

We examine the evidence to determine the proof as to

the scope of the conspiracy Franco-Santiago agreed to join.

See

Grunewald v. United States, 353 U.S. 391, 397 (1957) ("[T]he
crucial question in determining whether the statute of limitations
has run is the scope of the conspiratorial agreement, for it is
that

which

determines

.

.

.

the

duration

of

the

conspiracy

. . . .").
This case is more like United States v. García-Torres,
280 F.3d 1 (1st Cir. 2002), than the usual single-versus-multipleconspiracy cases.

In García-Torres we reversed a federal drug

conspiracy conviction of a defendant who was guilty of kidnapping
and murder, but where the evidence was insufficient to prove those
crimes were part of an agreement by the defendant to join the drug
distribution conspiracy. While the evidence there could support an
inference that he knew of the existence of the conspiracy, "it
remain[ed] a fatal flaw that virtually no evidence show[ed] that
[the defendant] knew, or even had reason to suppose, that the
kidnapping and murder were in aid of that conspiracy."

Id. at 6.

There were plenty of other reasons the defendant could have
committed his crimes.

Id.

Whether the evidence in this case shows that FrancoSantiago

joined

a

broader

conspiracy

-14-

to

commit

a

series

of

Case: 10-2247

Document: 00116385861

Page: 15

Date Filed: 05/31/2012

Entry ID: 5645518

robberies is a question of fact reviewed for sufficiency of the
evidence.
2009).

See United States v. Niemi, 579 F.3d 123, 127 (1st Cir.

He preserved the issue of the sufficiency of the evidence

to support a conviction for the charged Hobbs Act conspiracy, so we
review the challenge to the sufficiency of the evidence de novo,
"view[ing] the evidence, both direct and circumstantial -- and
including all plausible inferences drawn therefrom -- in the light
most favorable to the verdict."

United States v. Rivera Calderón,

578 F.3d 78, 88 (1st Cir. 2009).
In determining whether a jury could reasonably conclude
that

the

defendant

participated

in

the

single

overarching

conspiracy charged or only in a conspiracy encompassing the August
7 robbery, "we ultimately look at the totality of the evidence."
Id. at 89 (quoting Mangual-Santiago, 562 F.3d at 421) (internal
quotation marks omitted).

Factors helpful in evaluating the

evidence are the existence of a common purpose, the interdependence
of various elements in the overall plan, and the overlap among the
participants.

Id.

This court discussed the variety of problems which arise
in this context in United States v. Morrow, 39 F.3d 1228 (1st Cir.
1994).

We warned against the confusion that would ensue if there

were undue focus on the group rather than on what the agreement
was.

As we said in Morrow,
at a minimum, a conspirator must have
knowledge or foresight of the conspiracy's
-15-

Case: 10-2247

Document: 00116385861

Page: 16

Date Filed: 05/31/2012

Entry ID: 5645518

multiplicity
of
objectives
before
that
defendant is convicted of a multiple-crime
conspiracy.
Conviction
for
such
a
multiple-crime conspiracy remains possible
even if the conspiracy is open-ended (e.g., a
conspiracy to rob banks) and the specifics of
the future crimes (e.g., which banks) is
undetermined or at least unknown to the
defendant.
But if a defendant agrees with
others simply to commit a single crime (e.g.,
to rob one bank) and has no knowledge or
foresight of the conspiracy's broader scope,
that defendant is a member only of the
narrower, one-crime conspiracy.
Id. at 1234.
This requirement that at a minimum the defendant must
know or foresee the multiple-crime conspiracy's broader scope
follows from the rule that to prove the elements of conspiracy, the
government must prove that the defendant intended to agree13 with

13

In United States v. Morrow, 39 F.3d 1228 (1st Cir. 1994),
we stated that a "fundamental . . . cause of confusion" in the law
of conspiracy is
"the verbal ambiguity which leads courts
[sometimes] to deal with the crime of
conspiracy as though it were a group rather
of
agreement]."
than
an
act
[i.e.,
Developments in the Law: Criminal Conspiracy,
72 Harv. L. Rev. 920, 934 (1959).
To
emphasize "agreement," the core concept in
conspiracy, Iannelli v. United States, 420
U.S. 770, 777 (1975), implies that "scope" is
to be resolved by asking what the defendant
agreed to do, or at least knew to be likely.
By contrast, if the "group" character of the
crime is emphasized, "scope" may seem more to
be a function of how the enterprise conducted
itself rather than what any one individual had
in mind.
Id. at 1234 (alterations in original).
-16-

Case: 10-2247

Document: 00116385861

Page: 17

Date Filed: 05/31/2012

Entry ID: 5645518

his co-conspirators to commit the substantive offense and intended
to commit that offense.
39,

49

(1st

Cir.

United States v. Pérez-González, 445 F.3d

2006).

An

agreement,

of

course,

requires

knowledge of what is being agreed to: "No one can join a conspiracy
without knowledge of its existence -- the gravamen is an agreement
to commit an offense." United States v. García-Torres, 280 F.3d 1,
4 (1st Cir. 2002).

The government does not have to prove that the

defendant has "knowledge of every other participant, or of the
details of the conspiracy," Mangual-Santiago, 562 F.3d at 422, but
knowledge of the broader conspiracy's existence is "critical,"
García-Torres, 280 F.3d at 4; see also United States v. SánchezBadillo, 540 F.3d 24, 31 (1st Cir. 2008) ("[W]e find that the
totality of the government's evidence was sufficient to prove the
existence of a single conspiracy, and to prove appellants' knowing
participation in it." (emphasis added)).
As the recitation of the evidence shows, there was more
than

sufficient

evidence

to

convict

Franco-Santiago

of

participating in a conspiracy to commit the single payroll robbery
of August 7, 2002.

However, that is not the crime with which

Franco-Santiago

charged.

was

Instead,

he

was

charged

with

conspiring to commit a series of robberies from July 2002 through
September 2002, and there the government's case failed, even if we
consider only the August 7 and September 25, 2002, robberies.

-17-

Case: 10-2247

Document: 00116385861

Page: 18

Date Filed: 05/31/2012

Entry ID: 5645518

In Hernández's detailed testimony about the video store
robbery of July 2, 2002, and the restaurant robbery of September
25, 2002, he never testified that Franco-Santiago knew of these
crimes, much less that he in any way participated in them or that
Franco-Santiago agreed to join an ongoing robbery conspiracy with
multiple

targets.14

Nor

did

Hernández's

much

less

detailed

testimony regarding the July 2002 robberies of a supermarket and a
beauty salon even hint that Franco-Santiago participated in or knew
about those two robberies.

Indeed, Hernández did not mention

Franco-Santiago at all in connection with any of these four
robberies, before and after August 7, 2002. Notably, Hernández was
never

asked

by

the

prosecution

about

the

content

of

any

conversations he had with Franco-Santiago.
Apart from his testimony about the August 7 payroll
robbery, Hernández discussed Franco-Santiago in his testimony only
once.

Hernández testified that approximately three months before

14

Our conclusion in this case is not based on the fact that
there was no overt act as to Franco-Santiago within the statute of
limitations period. Evidence of an overt act is not required to
establish a Hobbs Act conspiracy, United States v. Palmer, 203 F.3d
55, 63 (1st Cir. 2000), and where a conspiracy does not require an
overt act, it "continues as long as its purposes have neither been
abandoned nor accomplished," United States v. Torres Lopez, 851
F.2d 520, 525 (1st Cir. 1988) (discussing RICO conspiracy, which
similarly does not require an overt act); see also United States v.
As discussed, we
Persico, 832 F.2d 705, 713 (2d Cir. 1987).
conclude that the evidence shows that Franco-Santiago agreed only
to commit the single payroll robbery with others. That particular
conspiracy ended when the payroll robbery was accomplished on
August 7, 2002.
-18-

Case: 10-2247

Document: 00116385861

Page: 19

Date Filed: 05/31/2012

Entry ID: 5645518

the payroll robbery, Luis introduced him to Franco-Santiago at a
meeting in a house in Río Piedras. However, the government did not
successfully elicit any admissible testimony from Hernández as to
what, if anything, the three men discussed: whether they discussed
a plan to commit a series of robberies, or a plan to commit the
single robbery of August 7, 2002, or merely something else.15
The

government

has

put

great

weight

on

Hernández's

testimony that it was always generally understood that there would
be another robbery to do as sufficient to tie Franco-Santiago to
the other robberies.

But this statement was not specific to

Franco-Santiago and is not enough.
Nor do we see a basis for rational inferences sufficient
to support the conviction of the conspiracy charged. The fact that
Franco-Santiago's gun was returned to him and he was paid his full
share after the payroll robbery weighs in favor of concluding that
his participation was completed rather than ongoing.

Further,

there was no evidence that his gun was used in any other robbery or
that he received any other payment.

15

The prosecutor initially attempted to question Hernández
about conversations he had with co-conspirators, and Hernández
began to testify about the planning for the August 7 robbery.
Defense counsel objected to the admission of those co-conspirator
statements on the basis that the government had not yet made out a
prima facie case of conspiracy, citing United States v.
Petrozziello, 548 F.2d 20 (1st Cir. 1977). The district court told
the prosecutor not to elicit any more co-conspirator statements
until he had satisfied the conditions for admitting such
statements.
The prosecutor moved on and never brought up the
matter again.
-19-

Case: 10-2247

Document: 00116385861

Page: 20

Date Filed: 05/31/2012

Entry ID: 5645518

In addition, the robbery in which Franco-Santiago did
participate

is

notably

different

from

the

other

robberies

encompassed by the charged overarching conspiracy, again providing
no basis for inferences supporting his conviction.

That August 7

payroll robbery was one of cash from a person, whereas the other
four robberies were all robberies of places of business.
the cast of characters identical.
charged

in

the

second

Nor is

Of the nine co-defendants

superseding

indictment,

only

four

participated in the August 7 payroll robbery: Chicky, Luis, El
Teniente, and Franco-Santiago.

Further, the very nature of this

conspiracy, unlike drug rings, does not permit easy inferences
based on some commonality of participants.

As we said in Morrow,

this was not "the type of conspiracy, such as a drug ring, where
knowledge that multiple crimes are intended may be rather easily
inferred based on common practice."16

39 F.3d at 1235.

The factors frequently used to establish agreement to
participate in a single overarching conspiracy -- common goal,
interdependence,

overlapping

participants

--

do

not

help

the

government close the gap between what the evidence showed and what

16

We have upheld convictions of defendants for participating
in a single overarching conspiracy to commit a series of robberies
of supermarkets. See United States v. LiCausi, 167 F.3d 36 (1st
Cir. 1999).
There the evidence was much stronger: there were
"meetings involving all of the defendants and relating to
supermarket robberies, shared equipment contributed by different
members of the group, common participants and similar logistical
arrangements, and close contact among members of the group during
the life of their association." Id. at 45.
-20-

Case: 10-2247

the

Document: 00116385861

government

had

to

Page: 21

prove

Date Filed: 05/31/2012

to

convict

Entry ID: 5645518

Franco-Santiago

of

participating in the broader conspiracy.
While the evidence showed that Hernández and some of
Franco-Santiago's co-defendants shared the common goal or purpose
of committing a series of robberies, there was no such evidence as
to Franco-Santiago.
As

to

See Morrow, 39 F.3d at 1234.

interdependence,

we

have

said

that

"[e]ach

individual must think the aspects of the venture interdependent,
and each defendant's state of mind, and not his mere participation
in some branch of the venture, is key." Mangual–Santiago, 562 F.3d
at 422 (quoting United States v. Portela, 167 F.3d 687, 695 (1st
Cir. 1999)) (internal quotation marks omitted).

Here, all the

evidence shows is Franco-Santiago's "mere participation in some
branch of the venture" charged, and no interdependency.

There was

no evidence that Franco-Santiago knew that his participation in the
August 7 payroll robbery was "necessary or advantageous to the
success of another aspect of the scheme" charged, as required to
show interdependence.

Rivera Calderón, 578 F.3d at 89 (quoting

Mangual–Santiago,

F.3d

562

at

422)

(internal

quotation

marks

omitted).
While our cases have held that "the overlap factor is
'satisfied

by

the

pervasive

involvement

of

a

single

core

conspirator, [or] hub character,'" Mangual–Santiago, 562 F.3d at
422 (alteration in original) (quoting Portela, 167 F.3d at 695)

-21-

Case: 10-2247

Document: 00116385861

Page: 22

Date Filed: 05/31/2012

Entry ID: 5645518

(internal quotation marks omitted), that does not assist the
government here. There was a hub character -- Hernández. However,
the mere fact that a central person (the "hub" of a wheel) is
involved in multiple conspiracies (the wheel's "spokes") does not
mean that a defendant such as Franco-Santiago who participated in
a

spoke

conspiracy

may

be

convicted

of

participating

overarching conspiracy encompassing the entire wheel.

in

an

There must

also be evidence from a which a jury could reasonably infer that
the spoke defendant knew about and agreed to join any larger
overarching conspiracy.

Cf. United States v. Huff, 609 F.3d 1240,

1244 (11th Cir. 2010) ("[W]here the 'spokes' of a conspiracy have
no knowledge of or connection with any other, dealing independently
with the hub conspirator, there is not a single conspiracy, but
rather as many conspiracies as there are spokes." (quoting United
States v. Chandler, 388 F.3d 796, 807 (11th Cir. 2004)) (internal
quotation marks omitted)).
This is implicit in our 2009 holding in Niemi, supra. In
that case we rejected the defendant Niemi's argument that there was
insufficient evidence that he participated in a single, overarching
drug-distribution
concluding

that

conspiracy
"the

as

evidence

charged

showed

a

in

the

classic

indictment,
hub-and-spoke

conspiracy with Mercier at the center and Niemi as an important
spoke."

579 F.3d at 127.

We held that "[t]he jury could have

reasonably concluded that Niemi knew of the existence and scope of

-22-

Case: 10-2247

Document: 00116385861

Page: 23

Date Filed: 05/31/2012

Entry ID: 5645518

Mercier's operations, and knew that his own ability to obtain and
sell drugs depended on the success of the conspiracy as a whole."
Id. (emphasis added).
In Niemi, as in Morrow, the defendant's knowledge of the
existence of an overarching conspiracy -- of which Mercier was the
hub -- was key.

Here, unlike in Niemi, there was no such evidence

that Franco-Santiago knew of the "existence and scope" of the
larger conspiracy of which Hernández was the hub.

Similarly, in

United States v. Swafford, 512 F.3d 833 (6th Cir. 2008), the Sixth
Circuit held that the government had failed to prove a single
overarching conspiracy to sell illegal drugs.

The court stated

that "the government's metaphorical argument that this was a 'wheel
conspiracy'

(or

'hub-and-spoke'

conspiracy)

--

wherein

the

defendant served as the hub connected to each of the customers via
a spoke . . . -- fails because no common goal or enterprise
existed."

Id. at 842 (emphasis added).
Our conclusion that the evidence of the overarching

conspiracy charged, including the September 25 restaurant robbery,
is insufficient is confirmed by the prosecutor's admissions at
Franco-Santiago's sentencing hearing. The government conceded that
for the purpose of calculating his guidelines sentencing range, the
three July 2002 robberies and the restaurant robbery of September
25, 2002, should not be attributed to Franco-Santiago because there

-23-

Case: 10-2247

Document: 00116385861

Page: 24

Date Filed: 05/31/2012

Entry ID: 5645518

had been no evidence that those events were either known or
foreseeable to him.
B.

The district court agreed.

Consequences of the Insufficiency Finding
This difference -- between the narrow conspiracy the

government proved at trial and the broader conspiracy it charged in
the indictment but did not prove -- matters.

It matters in this

case not because there was a variance between the proof and the
indictment,17 but because of the five-year federal statute of
limitations for non-capital crimes, 18 U.S.C. § 3282(a).

See

United States v. Bucci, 839 F.2d 825, 829 (1st Cir. 1988) (stating
that "the statute of limitations for a Hobbs Act violation is five
years"); see also United States v. Agne, 214 F.3d 47 (1st Cir.
2000) (vacating a wire fraud conviction because the indictment was
untimely under the five-year statute of limitations of 18 U.S.C.
§ 3282 and the government failed to prove that the defendant's
actions affected a financial institution so as to trigger the tenyear statute of limitations of 18 U.S.C. § 3293(2)); United States

17

A variance occurs when the crime charged in the indictment
remains unaltered, but the evidence adduced at trial proves facts
different from those alleged in the indictment. United States v.
While there was
Yelaun, 541 F.3d 415, 419 (1st Cir. 2008).
technically a variance here, it was not prejudicial. See id. The
second superseding indictment under which Franco-Santiago was tried
gave him ample notice of the events charged. See Morrow, 39 F.3d
at 1235 (holding that a variance between the multiple-crime
conspiracy charged in the indictment and the single-crime
conspiracy proved at trial was not prejudicial where "the
indictment gave appellants ample notice of the events charged").
Franco-Santiago would not be entitled to a reversal of his
conviction on the ground of variance alone.
-24-

Case: 10-2247

Document: 00116385861

Page: 25

Date Filed: 05/31/2012

Entry ID: 5645518

v. Doherty, 867 F.2d 47 (1st Cir. 1989) (reversing a mail fraud
conspiracy conviction for conspiring to obtain a promotion through
the use of a stolen police sergeant's exam because the ongoing
receipt of increased salary as a result of the conspiracy's success
was not an overt act within the statute of limitations); United
States v. Juodakis, 834 F.2d 1099 (1st Cir. 1987) (per curiam)
(reversing a conviction for manufacturing illegal drugs where the
government failed to prove "beyond a reasonable doubt the existence
of the particular conspiracy -- as determined by the defendant's
agreement -- within the limitations period").
We view the matter through a particular standard of
review. The statute of limitations is an affirmative defense which
a

criminal

defendant

has

the

responsibility

of

raising

preserving before or at trial if he seeks its benefit.

and

See United

States v. Thurston, 358 F.3d 51, 63 (1st Cir. 2004), vacated on
other grounds by 543 U.S. 1097 (2005). A defendant's failure to do
so results in forfeiture of the defense.18

18

Id.

This circuit is in the minority in holding that a statute
of limitations defense not raised and preserved before or at trial
is forfeited (and subject to plain error review) rather than waived
(and not subject to review at all).
The Second, Third, Fourth, Fifth, Ninth, Tenth, and Eleventh
Circuits apply waiver. See United States v. Walsh, 700 F.2d 846,
855-56 (2d Cir. 1983); United States v. Karlin, 785 F.2d 90, 92-93
(3d Cir. 1986); United States v. Williams, 684 F.2d 296, 299-300
(4th Cir. 1982); United States v. Arky, 938 F.2d 579, 582 (5th Cir.
1991) (per curiam); United States v. LeMaux, 994 F.2d 684, 689-90
(9th Cir. 1993); United States v. Gallup, 812 F.2d 1271, 1280 (10th
Cir. 1987); United States v. Siegelman, 561 F.3d 1215, 1232 (11th
Cir. 2009), vacated on other grounds by 130 S. Ct. 3542 (2010).
-25-

Case: 10-2247

Document: 00116385861

Page: 26

Date Filed: 05/31/2012

Entry ID: 5645518

Franco-Santiago did raise but did not adequately preserve
the statute of limitations as a defense before his trial.19

It is

undisputed that Franco-Santiago did not raise the statute of

The Seventh Circuit applies the forfeiture rule, see United States
v. Baldwin, 414 F.3d 791, 795 & n.2 (7th Cir. 2005), overruled on
other grounds by United States v. Parker, 508 F.3d 434 (7th Cir.
2007), and the Sixth Circuit has held that "absent an explicit
waiver, the statute of limitations presents a bar to prosecution
that may be raised for the first time on appeal," United States v.
Crossley, 224 F.3d 847, 858 (6th Cir. 2000). The Eighth and D.C.
Circuits apparently have not squarely addressed whether failure to
raise the statute of limitations as a defense before or at trial is
treated as waiver or forfeiture. See United States v. SorianoHernández, 310 F.3d 1099, 1103-04 (8th Cir. 2002) (holding that a
statute of limitations defense is waived by a guilty plea); United
States v. Wilson, 26 F.3d 142, 155-56 (D.C. Cir. 1994) (holding
that a statute of limitations defense may be waived knowingly,
intelligently, and voluntarily).
In this case the government has not argued that we should
treat Franco-Santiago's argument under the statute of limitations
as waived rather than forfeited.
We follow our precedent and
review for plain error. See United States v. Thurston, 358 F.3d
51, 63 (1st Cir. 2004), vacated on other grounds by 543 U.S. 1097
(2005); United States v. O'Bryant, 998 F.2d 21, 23 & n.1 (1st Cir.
1993).
19

There was one attempt to raise the issue.
On April 7,
2008, one of Franco-Santiago's co-defendants, Luis, moved to
dismiss the indictment on statute of limitations grounds based on,
among other arguments, the fact that the indictment did not name
him as a participant in the restaurant robbery of September 25,
2002. Two days later, Franco-Santiago moved to join Luis's motion
to dismiss. Before the court acted on Franco-Santiago's joinder
motion, a magistrate judge recommended on April 22, 2008, that the
court deny Luis's motion to dismiss because, among other things,
whether he was a member of an overarching conspiracy to commit a
series of robberies was a question of fact that could not be
resolved by a motion to dismiss. On May 29, 2008, the district
court "noted" Franco-Santiago's joinder motion. On March 12, 2010,
the court accepted the magistrate judge's recommendation, to which
Luis had untimely objected and Franco-Santiago had not objected at
all. The district court's order denying the motion to dismiss only
referenced Luis, not Franco-Santiago.
-26-

Case: 10-2247

Document: 00116385861

Page: 27

Date Filed: 05/31/2012

Entry ID: 5645518

limitations defense at trial, so he did not preserve the issue.
See United States v. Rogers, 118 F.3d 466, 474 (6th Cir. 1997)
(defendant

"never

argued

withdrawal

or

abandonment

at

trial;

therefore he failed to preserve the issue" of whether he withdrew
from or abandoned the conspiracy before the limitations period,
"despite having raised [the issue] in his pretrial motion to
dismiss"); United States v. Wilson, 26 F.3d 142, 159-60 (D.C. Cir.
1994) (ordinarily, when a trial court denies a motion to dismiss
the indictment because the motion raises questions of fact, the
defendant must renew his objection at trial).
Because he did not raise his statute of limitations
defense at trial, we review for plain error.

See United States v.

Olano, 507 U.S. 725, 731-32 (1993); Fed. R. Crim. P. 52(b).

Under

plain error review, Franco-Santiago must show "(1) there is an
error; (2) the error is plain or obvious; (3) the error 'affected
[his] substantial rights, which in the ordinary case means it
affected the outcome of the district court proceedings;' and (4)
'the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.'"

De Jesús-Viera, 655 F.3d at

57 (second alteration in original) (quoting United States v.
Gerhard, 615 F.3d 7, 22 (1st Cir. 2010)) (internal quotation marks
omitted).
We have held there was error; it was sufficiently clear
that the government acknowledged at sentencing that the only

-27-

Case: 10-2247

Document: 00116385861

Page: 28

Date Filed: 05/31/2012

Entry ID: 5645518

ongoing offense, the September 25 robbery, was not known or
foreseeable to Franco-Santiago.

The prejudice to him is obvious.

The fourth prong is closer.

The question is whether

allowing the time-barred conviction to stand "seriously affect[s]
the

fairness,

proceedings."

integrity

or

public

reputation

of

judicial

Olano, 507 U.S. at 736 (alteration in original)

(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))
(internal quotation marks omitted).

On the one hand, Franco-

Santiago did commit a very serious crime, one which easily could
have ended in death or injury.

He also was a police officer who

betrayed his badge and the public trust inherent in his position.
On the other hand, there are reasons not to let the
conviction stand.

The Supreme Court has said that

[t]he purpose of a statute of limitations is
to limit exposure to criminal prosecution to a
certain fixed period of time following the
occurrence of those acts the legislature has
decided to punish by criminal sanctions. Such
a
limitation
is
designed
to
protect
individuals from having to defend themselves
against charges when the basic facts may have
become obscured by the passage of time and to
minimize the danger of official punishment
because of acts in the far-distant past.
Toussie v. United States, 397 U.S. 112, 114-15 (1970).

And it is

in the interests of fairness and integrity that the prosecution be
held to the rules governing its own conduct, including in a
situation such as this. "'Every statute of limitations, of course,
may permit a rogue to escape,' but when a court concludes that the

-28-

Case: 10-2247

Document: 00116385861

Page: 29

Date Filed: 05/31/2012

Entry ID: 5645518

statute does bar a given prosecution, it must give effect to the
clear expression of congressional will that in such a case 'no
person shall be prosecuted, tried, or punished.'"

Id. at 123-24

(citation omitted) (quoting Pendergast v. United States, 317 U.S.
412, 418 (1943); 18 U.S.C. § 3282).
Here the government had the information it needed to
bring an indictment before the statute of limitations on the August
7 payroll robbery expired.

No good reason is evident from the

record for its failure to do so.
evidence

tying

Franco-Santiago

In addition, if Hernández had
to

the

larger

conspiracy,

the

government could easily have solicited it after following the
district

court's

foundation.

instruction

to

lay

a

proper

Petrozziello

See United States v. Petrozziello, 548 F.2d 20, 23

(1st Cir. 1977).

The government's own conduct has brought about

this result, calling into question the integrity and fairness of
the process.
Cir.

2000)

See United States v. Peña-Lora, 225 F.3d 17, 27 (1st
(reversing

a

firearms

conviction

for

insufficient

evidence on plain error review where inconsistent testimony made it
impossible for the jury to find the defendant guilty beyond a
reasonable doubt and "the government invited these testimonial
inconsistencies"); see also United States v. Vázquez-Rivera, 665
F.3d 351, 364 (1st Cir. 2011) (finding plain error where the
government excessively relied on improper testimony to convict the
defendant of possession of child pornography, and stating that the

-29-

Case: 10-2247

errors

Document: 00116385861

Page: 30

"unfairly

the

impaired

Date Filed: 05/31/2012

integrity

of

[the

Entry ID: 5645518

defendant's]

trial"); United States v. Carrasco, 540 F.3d 43, 54 (1st Cir. 2008)
(finding plain error where the trial court admitted the defendant's
confession

for

impeachment

after

having

ruled

that

it

was

inadmissible, and stating that "allowing such an error to go
uncorrected even though it may well have meant the difference
between conviction and acquittal would certainly erode public
confidence in the integrity of judicial proceedings"); United
States v. Fuchs, 218 F.3d 957, 963 (9th Cir. 2000) ("Allowing
defendants' convictions to stand, given the likelihood that the
jury may not have convicted had they been properly instructed,
would be a 'miscarriage of justice.'").
IV.
We reverse Franco-Santiago's conviction and remand the
matter for entry of a judgment of acquittal.

-30-