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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2417 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          ERICK TORRES, <br> <br>                      Defendant, Appellant. <br> <br>                         _______________ <br> <br>No. 97-2416 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                         MARK RODRIGUEZ, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>          [Hon. Michael  A. Ponsor, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>          Aldrich and Campbell, Senior Circuit Judges. <br>                                 <br>                                 <br> <br> <br>     Martin I. Flax, by appointment of the court, for appellant <br>Torres. <br>     David P. Shapiro, by appointment of the court, for appellant <br>Rodriguez. <br>     Louis M. Fischer, Attorney, Appellate Section, Criminal <br>Division, Department of Justice, with whom Donald K. Stern, United <br>States Attorney, and Andrew Levchuk and Ariane D. Vuono, Assistant <br>United States Attorneys, were on brief, for the United States. <br> <br> <br> <br> <br> <br>December 3, 1998 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  SELYA, Circuit Judge.  A jury convicted defendants- <br>appellants Erick Torres and Mark Rodriguez of a potpourri of <br>offenses, including conspiracy to commit violent crimes to maintain <br>or increase their positions in a racketeering enterprise; attempted <br>murder, maiming, and assault with a dangerous weapon for that <br>purpose; carrying firearms during and in relation to a violent <br>crime; and possession of an unregistered firearm.  See 18 U.S.C.  <br>1959(a), 924(c); 26 U.S.C.  5861(d).  In addition, the jury <br>convicted Torres of being a felon in possession of a firearm.  See18 U.S.C.  922(g)(1).  Following the imposition of lengthy prison <br>sentences, both defendants appealed. <br>  We recount the facts in the light most congenial to the <br>verdict, consistent with record support.  See United States v. <br>Houlihan, 92 F.3d 1271, 1277 (1st Cir. 1996).  Given the strength <br>of the government's case, a sketch suffices. <br>  A drive-by shooting occurred in Springfield, <br>Massachusetts, on February 21, 1995.  The shooters wounded two <br>juveniles (Stephenson Bellevue and Jesus Gambora).  The victims' <br>companion, William Scott, witnessed the incident but escaped <br>unscathed.  The police were alerted in a timely fashion and spotted <br>the shooters' car in nearby Holyoke.  They trailed the occupants to <br>an apartment building.  Once there, attention focused on a <br>particular apartment and the authorities sought access.  The <br>tenant, Rafael Rodriguez (father of Mark Rodriguez), allowed the <br>officers to enter the premises and conduct a consensual search. <br>  The principal searcher, state trooper John Spellacy, <br>found Mark Rodriguez in his bed, feigning sleep.  Spellacy then <br>discovered Torres and a third suspect, Francisco Hernndez, hiding <br>behind a dresser in the same bedroom.  The authorities took the <br>three youths into custody.  At that point, Rafael Rodriguez <br>withdrew his consent.  The officers honored his wish, secured the <br>premises and proceeded to obtain a warrant.  The ensuing search <br>unearthed sundry firearms, a receipt for the purchase of firearms, <br>Mark Rodriguez's firearms identification card, gang literature, and <br>other incriminating material. <br>  Investigation revealed that the appellants held positions <br>as "warlords" in a gang known as "La Familia."  The drive-by <br>shootings occurred after a key La Familia member was attacked and <br>the gang vowed to exact revenge.  The prosecution's theory, <br>apparently credited by the jury, was that the appellants shot two <br>innocent teenagers in the mistaken belief that they were members of <br>a rival gang. <br>  These appeals present no close questions.  The appellants <br>try; they raise a multitude of arguments, but all of them are <br>bootless.  We discuss briefly six prominently featured points.  The <br>appellants' other plaints require no comment, and we reject them <br>out of hand. <br>  1.  Sufficiency of the Evidence.  Torres contests the <br>sufficiency of the evidence on both the weapons offenses and the <br>RICO-related charges.  Faced with such a challenge, we assay the <br>evidence in the light most amiable to the government, draw all <br>reasonable inferences in its favor, and determine whether, so <br>viewed, a rational factfinder could conclude, beyond a reasonable <br>doubt, that the government proved the essential elements of each <br>offense.  See United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. <br>1998); United States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995).  <br>Measured against this benchmark,  Torres' insufficiency challenge <br>is patently frivolous insofar as it is addressed to the weapons <br>offenses.  See, e.g., Muscarello v. United States, 118 S. Ct. 1911, <br>1918 (1998); Bailey v. United States, 516 U.S. 137, 148 (1995); <br>United States v. Valle, 72 F.3d 210, 217 (1st Cir. 1995). <br>  As to the RICO-related charges, the challenge is only <br>marginally more robust.  To convict on the substantive RICO <br>offenses under the instructions presented to the jury, the <br>government had to prove that La Familia qualified as an enterprise <br>engaged in racketeering activity; that Torres held a position in <br>it; and that he committed (or aided and abetted the commission of) <br>the violent crimes described in the indictment in order to maintain <br>or increase his position in the enterprise.  See United States v. <br>Fiel, 35 F.3d 997, 1003 (4th Cir. 1994); United States v. Vasquez- <br>Velasco, 15 F.3d 833, 842 (9th Cir. 1994); see also 18 U.S.C.  <br>1959(a).  Torres' insufficiency challenge targets the last two <br>elements, namely, whether he committed the crimes of violence and <br>whether he did so to further his standing in the gang. <br>  Torres' protests are unavailing.  As to whether he <br>participated in the shootings, the testimony of Wanda Rodriguez, a <br>government witness, is little less than damning.  Apparently <br>recognizing this problem, Torres argues that her testimony was <br>incredible.  As a general rule, however, credibility determinations <br>are for the jury, not for an appellate court.  See United States v. <br>O'Brien, 14 F.3d 703, 707 (1st Cir. 1994).  That rule indubitably <br>applies to claims of evidentiary insufficiency.  See United Statesv. Woodward, 149 F.3d 46, 56 (1st Cir. 1998) (holding that, on such <br>a challenge, an appellate court will not weigh the credibility of <br>witnesses).  Its application here frustrates Torres' effort to <br>undermine the jury verdict.  Nor does Wanda Rodriguez's testimony <br>stand alone.  It was corroborated by, inter alia, Mark Rodriguez's <br>admission (in Torres' presence) to a fellow gang member, compelling <br>ballistics evidence, and abundant circumstantial proof. <br>  As to the final element of the offense, Torres' argument <br>founders on our recent decision in United States v. Tse, 135 F.3d <br>200 (1st Cir. 1998), in which we held that the government can <br>satisfy this element of a RICO conspiracy charge by showing merely <br>that the defendant committed the crime because it was expected of <br>him by virtue of his membership in the enterprise.  See id. at 206.  <br>The proof at trial comfortably cleared this hurdle. <br>  2.  The Pinkerton Instruction.  Torres claims that the <br>trial court erred in instructing the jury on the doctrine limned in <br>Pinkerton v. United States, 328 U.S. 640 (1946).  In general, a <br>Pinkerton instruction exposes a coconspirator to criminal liability <br>for substantive crimes committed in the course of the conspiracy, <br>regardless of whether he or some other coconspirator actually <br>perpetrated the crimes.  See United States v. Sanchez, 917 F.2d <br>607, 612 (1st Cir. 1990).  A Pinkerton instruction is appropriate <br>if the evidence is sufficient to prove the charged conspiracy and <br>to link the substantive offenses to it.  See Tse, 135 F.3d at 207.  <br>The evidence just summarized meets this benchmark.  Hence, it <br>defeats Torres' claim that the trial court lacked an evidentiary <br>basis for giving a Pinkerton instruction. <br>  3.  The Search.  The appellants argue in unison that the <br>district court should have suppressed the inculpatory evidence <br>seized from Rafael Rodriguez's apartment.  Despite their united <br>front, we treat their arguments separately. <br>  As to Torres, this claim is easily dispatched.  Torres <br>was nothing more than a casual visitor in the apartment, and, as <br>such, had no reasonable expectation of privacy there.  See Unitedv. Gale, 136 F.3d 192, 195 (D.C. Cir. 1998); Terry v. Martin, 120 <br>F.3d 661, 633 (7th Cir. 1997); United States v. Maddox, 944 F.2d <br>1223, 1234 (6th Cir. 1991); United States v. Grandstaff, 813 F.2d <br>1353, 1357 (9th Cir. 1987).  Since Fourth Amendment rights are <br>personal to each defendant and may not be asserted vicariously, seeUnited States v. Padilla, 508 U.S. 77, 81-82 (1993); Rakas v. <br>Illinois, 439 U.S. 128, 130 n.1, 133-34 (1978), Torres' failure to <br>demonstrate his own legitimate expectation of privacy in the <br>premises renders the exclusionary rule unavailable to him. <br>     Mark Rodriguez's claim rests on different footing.  <br>Because he resided in the apartment, the search implicated his <br>Fourth Amendment rights.  Be that as it may, Rodriguez is <br>endeavoring to change horses in midstream.  In the district court, <br>he argued unsuccessfully that the officers' coercive manner, in <br>combination with his father's second-grade education, limited <br>English language skills, and inebriated state, rendered the consent <br>involuntary.  In this venue, he scraps this theorem and maintains <br>instead that a parent does not have authority to consent to a <br>search of an adult child's bedroom within the family's domicile. <br>     We need not consider this asseveration on the merits.  A <br>litigant cannot jump from theory to theory like a bee buzzing from <br>flower to flower.  To the precise contrary, when a party fails to <br>raise a theory at the district court level, that theory is <br>generally regarded as forfeited and cannot be advanced on appeal.  <br>See United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is <br>a bedrock rule that when a party has not presented an argument to <br>the district court, she may not unveil it in the court of <br>appeals.").  So it is here. <br>     In this case, moreover, the forfeiture is double- <br>barreled.  Fed. R. Crim. P. 12(b)(3) requires a defendant to file <br>suppression motions prior to trial, and Fed. R. Crim. P. 12(f) <br>declares that failure to do so constitutes a waiver.  This waiver <br>provision applies not only when a defendant has failed altogether <br>to make a suppression motion but also when, having made one, he has <br>neglected to include the particular ground that he later seeks to <br>argue.  See United States v. Meraz-Peru, 24 F.3d 1197, 1198 (10th <br>Cir. 1994); United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th <br>Cir. 1987).  Because these twin forfeitures cannot be overlooked, <br>Mark Rodriguez's challenge to the search cannot succeed. <br>     4.  Ineffective Assistance of Counsel.  In a related <br>vein, Mark Rodriguez urges in his reply brief that these <br>forfeitures supply strong evidence of his trial counsel's <br>ineptitude.  On this basis, he asserts that his Sixth Amendment <br>right to effective counsel has been compromised.  See Strickland v. <br>Washington, 466 U.S. 668, 687 (1994); Scarpa v. Dubois, 38 F.3d 1, <br>8 (1st Cir. 1994).  This argument, too, is procedurally defaulted. <br>     For one thing, issues raised for the first time in an <br>appellant's reply brief are generally deemed waived.  See United <br>States v. Brennan, 994 F.2d 918, 922 n.7 (1st Cir. 1993) (remarking <br>the "well settled" rule that legal arguments made for the first <br>time in an appellant's reply brief are tardy and will not <br>ordinarily be considered); Sandstrom v. ChemLawn Corp., 904 F.2d <br>83, 86 (1st Cir. 1990) (similar).  We see no reason to relax this <br>salutary rule in the circumstances at hand. <br>     For another thing, ineffective assistance claims, by and <br>large, may not be raised on direct appeal if they have not <br>seasonably been advanced in the district court.  See United Statesv. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).  While this praxis <br>admits of an occasional exception, see, e.g., United States v. <br>Natanel, 938 F.2d 302, 309 (1st Cir. 1991), the case at bar entails <br>no exceptional circumstances, and, thus, falls comfortably within <br>the sweep of the general rule. <br>     5.  Variance.  The appellants asseverate that a material <br>variance existed between certain charges lodged in the indictment <br>and the government's proof at trial.  Specifically, they note that <br>the indictment named Bellevue and Scott as victims, but the <br>evidence showed that Bellevue and Gambora (not Scott) were wounded.  <br>"We afford plenary review to the question of whether an asserted <br>variance requires retrial."  United States v. Arcadipane, 41 F.3d <br>1, 6 (1st Cir. 1994). <br>     A variance occurs when the facts at trial diverge from <br>those alleged in the indictment.  See United States v. Marrero- <br>Ortiz, ___ F.3d ___, ___ (1st Cir. 1998) [No. 96-2187, slip op. at <br>5].  However, not every variance demands redress.  See id.  A <br>variance justifies relief only if the "disparity is material and <br>affects [the] defendant's substantial rights."  Id.; see alsoUnited States v. Tormos-Vega, 959 F.2d 1103, 1115 (1st Cir. 1992). <br>     Under this standard, the instant discrepancy between the <br>indictment and the proof does not warrant vacation of the judgment.  <br>Although the indictment identified Scott, rather than Gambora, as <br>the second shooting victim, that bevue in no way affected the <br>defendants' foreknowledge of the charges lodged against them or <br>their ability to prepare a defense.  Consequently, the variance did <br>not impair the defendants' substantial rights. <br>     6.  The Mistrial Motion.  During the trial, Jesus Gambora <br>testified that he had previously identified Torres in a photo <br>spread.  This testimony was erroneous.  Torres promptly objected <br>and moved for a mistrial.  The district court denied the motion, <br>but struck the comment and gave an immediate curative instruction.  <br>The appellants now argue that the lower court should have declared <br>a mistrial.  We think not. <br>     We review a district court's refusal to declare a <br>mistrial for manifest abuse of discretion and will uphold the <br>court's ruling unless the movant demonstrates a clear showing of <br>prejudice.  See United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st <br>Cir. 1995); United States v. Sepulveda, 15 F.3d 1161, 1184 (1st <br>Cir. 1993).  Where, as here, a curative instruction is promptly <br>given, a mistrial is warranted only in rare circumstances implying <br>extreme prejudice.  See United States v. Pierro, 32 F.3d 611, 617 <br>(1st Cir. 1994). <br>     In this instance, several factors point to upholding the <br>district court's ukase.  First, Torres does not suggest any way in <br>which the curative instruction could have been improved, and he did <br>not contemporaneously object to its content.  Second, in view of <br>the trial testimony, the witness's misstatement was not <br>particularly consequential.  Jurors are presumed to follow the <br>trial judge's instructions, see Sepulveda, 15 F.3d at 1185, and <br>that presumption has not been rebutted here. <br>     We need go no further.  Having reviewed the record with <br>care, we are fully satisfied that the defendants were fairly tried <br>and justly convicted. <br> <br>Affirmed.</pre>

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