June 28, 1996
United States Court of Appeals
For the First Circuit
No. 95-2186
UNITED STATES OF AMERICA,
Appellee,
v.
REYNALDO VAZQUEZ RIVERA,
Defendant, Appellant.
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on May 21, 1996, is
corrected as follows:
Page 2, second paragraph, lines 4-6, delete sentence that
begins: "We conclude, however, . . ." Replace it with the
following sentence:
We conclude, however, that the factual record has not
been sufficiently developed to support the sentence
enhancement, and therefore remand for the district
court to reconsider the sentencing options.
Page 13, delete footnote 9. Replace it with the following
footnote:
9 Although a rape of any type surely is a sufficiently
serious physical invasion to justify a sentencing
enhancement, the statute as written requires evidence
of the specific, objective types of harm set out there.
It may be that, in choosing the definition of serious
bodily injury contained in 1365, a statute that
penalizes the tampering of consumer products, see supra
at 10, Congress did not recognize the limitations of
its language.
Page 14, line 5, insert "evidentiary" between "some" and
"basis."
United States Court of Appeals
For the First Circuit
No. 95-2186
UNITED STATES OF AMERICA,
Appellee,
v.
REYNALDO VAZQUEZ RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Gustavo A. Gelpi, Assistant Federal Public Defender, with
whom Benicio Sanchez Rivera, Federal Public Defender, was on
brief for appellant.
Edwin O. Vazquez, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jose A. Quiles
Espinosa, Senior Litigation Counsel, were on brief for appellee.
May 21, 1996
COFFIN, Senior Circuit Judge. Defendant Reynaldo Vazquez
Rivera was convicted of carjacking in violation of 18 U.S.C.
2119. He claims that the district court committed two errors:
first, by allowing the jury to hear evidence that he raped the
carjacking victim and, second, by increasing his sentence based
on a finding that the rape constituted "serious bodily injury"
within the meaning of the statute's enhancement provision.1
The admissibility issue is close. We ultimately have been
persuaded, however, that the prejudicial impact of the rape
evidence did not substantially outweigh its probative value. We
therefore affirm the defendant's conviction. We conclude,
however, that the factual record has not been sufficiently
developed to support the sentence enhancement, and therefore
remand for the district court to reconsider the sentencing
options.
I. Background
1 At the time of the offense, section 2119, which has since
been amended, provided, in pertinent part:
Whoever, possessing a firearm as defined in section 921
of this title, takes a motor vehicle that has been
transported, shipped or received in interstate or
foreign commerce from the person or presence of another
by force and violence or by intimidation, or attempts
to do so, shall --
(1) be fined under this title or imprisoned not
more than 15 years, or both,
(2) if serious bodily injury (as defined in
section 1365 of this title) results, be fined under
this title or imprisoned not more than 25 years, or
both . . . .
-3-
Near midnight on June 24, 1994, just after Lydita Crespo-
Suarez had parked her car near the restaurant where she worked
and was retrieving some items from the back seat, defendant
Vazquez came up from behind and forced her back into the vehicle.
She testified that he had a weapon that she initially could not
see clearly, but later realized was a knife.
Defendant drove Crespo from the busy section of Isla Verde
where the incident began to a remote beach area in Naguabo,
ordered her to disrobe and get out of the car, and then raped
her. According to Crespo's testimony, defendant had a gun that
he put into his waist as he got out of the car, and which he
placed on the car roof before raping her. After the assault,
defendant let Crespo go and he drove off in her car. She walked
along the road until she encountered a police officer, who took
her to a police station where she gave an account of her ordeal.
A short time later, she was examined at a hospital and then sent
home.
Defendant was arrested about a month after the crime, and
was identified by Crespo in a lineup. He was charged with one
count of carjacking, the indictment stating that he had taken a
vehicle from Crespo "by force and violence, inflicting serious
bodily injury, that is: rape her."2
2 A second count charging that appellant used a firearm
during a crime of violence in violation of 18 U.S.C. 924(c) was
dismissed on double jeopardy grounds. Although the court later
reconsidered the dismissal, it chose to let the partial judgment
stand because the government had not sought review of the
dismissal.
-4-
In a motion in limine, Vazquez asked that the "serious
bodily injury/rape" language be deleted from the indictment
because it related only to the sentence enhancement portion of
2119 and not to the offense conduct itself.3 The district court
denied the motion. Defendant sought reconsideration, and,
because his defense would rest entirely on his claim that he did
not have a gun,4 he urged the court to compel the government to
accept his stipulation to the element of "force and violence" or
"intimidation" so as to make evidence of the rape irrelevant.
The court again denied the motion, stating that "the government
has a right to present all the facts that . . . show that there
was a revolver involved."
The testimony at the three-day trial revealed
inconsistencies in law enforcement reports of Crespo's statements
about what weapons she had seen and when she had seen them. The
police officer who first encountered her testified that she
reported being approached by an individual with a gun. In her
own cross-examination, Crespo denied saying that a gun was
involved in the original assault and stated that she first saw
3 As noted earlier, see note 1 supra, 2119(1) provides for
a 15-year maximum term, which is enhanced under subsection (2) to
a 25-year maximum if "serious bodily injury" results. Subsection
(3) provides that, if death results, the carjacker may be
imprisoned for life.
4 As indicated earlier, see note 1 supra, the carjacking
statute under which Vazquez was convicted included firearms
possession as one of its elements. Section 2119 has since been
amended to substitute the phrase "with the intent to cause death
or serious bodily harm" for the language requiring possession of
a firearm. See United States v. Rivera-Gomez, 67 F.3d 993, 996
n.1 (1st Cir. 1995).
-5-
the gun at Naguabo. Notes made by another officer who
interviewed her when she was brought to the Naguabo police
station referred only to a knife or similar sharp object. An FBI
agent testified that Crespo first mentioned seeing a knife near
the driver's seat of the car a few days before trial. The trial
transcript also contains at least ten references to the rape.
Vazquez was convicted, and subsequently was sentenced to the
statutory maximum term of twenty-five years' imprisonment based
on the court's finding that the rape constituted "serious bodily
injury." Vazquez unsuccessfully argued that the enhancement was
inapplicable because the record failed to show that Crespo had
suffered "extreme physical pain," and the district court likewise
rejected his contention that an evidentiary hearing was necessary
to resolve the factual issue of serious bodily injury.
This appeal followed.
Admission of Rape Evidence
Defendant asserts that prejudicial error was committed by
the court in admitting evidence of the victim's rape, since it
was unnecessary to prove any of the elements of carjacking. He
invokes Fed. R. Evid. 403, which compels the exclusion of even
relevant evidence "if its probative value is substantially
outweighed by the danger of unfair prejudice . . . ."
In reviewing this claim, we are mindful of several cautions.
The first is Rule 403 itself. The admitted evidence must not
only be prejudicial, but be unfairly prejudicial, and not only
outweigh relevance but substantially outweigh relevance. United
-6-
States v. Aguilar-Aranceta, 58 F.3d 796, 800 (1st Cir. 1995)
("must be a significant tipping of the scales") (quoting 22
Charles A. Wright & Kenneth A. Graham, Jr., Federal Practice and
Procedure, 5221 at 309-310 (1978)). Moreover, we must accord
the trial court "especially wide latitude" in Rule 403 balancing.
United States v. Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995).
And finally, where the reviewing court finds the balancing close,
Rule 403 tilts the balance in favor of admission. See United
States v. Clarke, 24 F.3d 257, 265-66 (D.C. Cir. 1994).
We begin by reporting the entire context of the objected to
evidence, next consider its relevance, and then confront the
extent to which its admission caused unfair prejudice.
The critical testimony was given by Crespo after she told of
being held up at 11:15 at night, forced to reenter her car to
take defendant "somewhere," and being driven first to an
automobile licensing station, then to the remote beach area,
Naguabo, while directed to recline in her seat. Crespo then
testified:
Q And what happened after you reached the
Naguabo area?
A He made me get out, first he made me take my
clothes off and then he made me get out of the car. He
put his gun in his pants. He came over to my side.
Q Did anything else happen?
A He told me to get on all fours, in a squat.
THE COURT: Get on all fours.
THE WITNESS: And he raped me.
EXAMINATION CONTINUED
BY MS. CARRENO:
Q You mentioned that he put a revolver in his
waist?
A Yes, but when he raped me, when he was about
to rape me he put it on top of the car.
-7-
Q Were you able to observe that revolver on top
of the car?
A I felt it or I heard when he put it on top of
the car.
Q Were you able to observe it at any moment?
A Yes, when he put it in the waist of his
pants.
Q Can you give the members of the jury a
description of that revolver?
A It was like a metal color with the handle
that was like a wooden handle.
Q After that, what, if anything else happened?
A I asked him if now he could let me go.
Q Did he in fact let you go?
A He told me that if I had my shoes on I could
get out.
Q Did you in fact get out?
A Yes.
Q Did you have your clothes on?
A Yes.
Q Did anything happen before you were allowed
to leave the car?
A He had turned the car around and at that
point was when I asked him if he could let me go.
Q What happened after you left the car?
A I went running along the beach shore to get
to the road.
Trial Transcript pp. 100-101.
The government asserts that the evidence of rape was
necessary to prove the "force and violence" element of the
carjacking statute.5 But, unlike the situation in Rivera-Gomez,
where we held that the act of killing a driver in the course of
an attempted carjacking was highly probative of the "force and
5 The defendant contends that his offer to stipulate that he
took Crespo's vehicle by "force and violence" forecloses the
government's contention. If, however, the government's need for
the rape evidence is not otherwise substantially outweighed by
the risk of unfair prejudice to the defendant, the district
court's rejection of such a stipulation would not constitute an
abuse of discretion. See United States v. Tavares, 21 F.3d 1, 3
(1st Cir. 1994) (en banc) (affirming "the government's `right to
"present to the jury a picture of the events relied upon,"'. . .
including proof of all elements of the crime for which the
defendant has been brought to trial") (citations omitted).
-8-
violence" element, here, defendant already had seized control of
the vehicle, wielding a weapon that Crespo later realized was a
knife. At best, therefore, testimony about the rape was
cumulative evidence of the use of force.
A weightier claim of relevance is that knowledge of the
sexual assault was important to the jury's ability to fully
evaluate Crespo's credibility. A jury reasonably might attribute
inconsistencies in her reports of the crime to her distress and
disorientation in the aftermath of the rape. The government, no
less than the defendant, is entitled to the benefit of such
reasonable inferences.
We therefore conclude that the evidence of rape was not
devoid of relevance. Were this all that could be mustered on the
side of admitting the evidence, we might have found the
concededly highly prejudicial evidence of rape to meet the Rule
403 standard of substantial disproportion. But we also must
consider the fact that the events at Naguabo related to a
critical element of the then crime of carjacking -- possession of
a firearm.
The defense was based solely on the theory that possession
of a firearm had not been proved beyond a reasonable doubt, a
plausible argument given the law enforcement reports of differing
statements from Crespo. The only direct evidence was the
testimony we have quoted.
Crespo's testimony of the conduct leading up to the rape --
particularly defendant's order that she get down on all fours --
-9-
provided an important explanation for her having heard but not
seen the gun being placed on the car roof. Without this
evidence, the prosecution would be significantly hampered in
providing the jury with the answers to a series of logical
questions: why didn't she see the gun? where was she looking?
what was shedoing? why wasthe weapon placed onthe roof ofthe car?
Simply preventing the witness from stating, "And he raped
me" would do nothing -- or very, very little -- to avoid
prejudice. The victim had been taken to a remote beach, ordered
to take her clothes off, get out of the car, and "get on all
fours." The jurors would draw the logical inference. To require
excision as well of all of the suggestive evidence not only would
have unrealistically telescoped the events at Naguabo, but also
would have stripped Crespo's testimony concerning the firearm of
much of its credit worthiness. As the Fifth Circuit stated in
United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979),
"Unless trials are to be conducted on scenarios, on unreal facts
tailored and sanitized for the occasion, the application of Rule
403 must be cautious and sparing." See United States v. Cruz-
Kuilan, 75 F.3d 59, 61 (1st Cir. 1996) (challenged forensic
evidence not only probative of "force and violence" element but
also corroborated government's theory of the case).
In sum, because Crespo's Naguabo testimony provided the sole
direct evidence of the firearm, it was a "crucial chapter" in the
narrative, Rivera-Gomez, 67 F.3d at 998. Although the rape
evidence unquestionably was prejudicial, we cannot say that its
-10-
high probative value was substantially outweighed by the risk of
unfair prejudice. The court did not abuse its discretion in
admitting it.6
III. "Serious Bodily Injury"
The district court sentenced the defendant under subsection
(2) of 2119, which increases the maximum term of imprisonment
from 15 years to 25 years "if serious bodily injury (as defined
in section 1365 of this title) results." Section 1365(g)(3),
contained within the Federal Anti-Tampering Act, provides as
follows:
the term "serious bodily injury" means bodily injury
which involves--
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a
bodily member, organ, or mental faculty . . . .
The district court applied the enhancement based on a
determination that the rape caused Crespo "extreme physical
pain." Defendant claims that there is no record support for such
a finding, and that the court's decision therefore was clearly
erroneous.
We are constrained to agree. Although we can understand the
court's desire to punish the defendant heavily, and agree with
its view that the crime was "degrading, heinous, cruel and
6 We recognize that the district court's relative weighing
of probativeness and prejudice focused on the rape evidence as
relevant to the issue of "force and violence." Because the
testimony is highly probative on the issue of firearm possession,
we are comfortable affirming its judgment on a somewhat different
basis.
-11-
brutal," there is no record evidence that Crespo suffered either
"extreme physical pain" or any of the other listed injuries. She
testified only that she was raped, without any specific
description of the assault. The presentence report states that
defendant raped Crespo for about five minutes, but also lacks any
elaboration. A medical report filed as part of the presentence
report indicates that, approximately two hours after the attack,
there was no evidence of any cuts or bruises in her vaginal area.
The government suggests that, notwithstanding the absence of
actual physical injury with pain, the court properly could apply
the enhancement based on "extreme physical pain" because
"Congress never intended rigid limiting definitions for the
`serious bodily injury' terminology". The cases it cites,
however, do not support this proposition. For the most part,
they involve construction of the somewhat different "serious
bodily injury" provision contained in the Sentencing
Guidelines,7 and many also feature evidence of painful injuries
suffered by the victim. See, e.g., United States v. Desormeaux,
4 F.3d 628, 630 (8th Cir. 1993) (victim described pain from knife
wound lacerating kidney as "a lot worse than giving birth to a
7 The guidelines define serious bodily injury as follows:
"Serious bodily injury" means injury involving extreme
physical pain or the impairment of a function of a
bodily member, organ, or mental faculty; or requiring
medical intervention such as surgery, hospitalization,
or physical rehabilitation. As used in the guidelines,
the definition of this term is somewhat different than
that used in various statutes.
U.S.S.G. 1B1.1, comment. (n.1(j)).
-12-
child"); United States v. Corbin, 972 F.2d 271, 272 (9th Cir.
1992) (victim was struck on head twice with a metal object
resembling a gun, causing a laceration that required a two-layer
closure using more than 25 sutures).8 The government cites no
case in which 2119(2) was applied based on "extreme physical
pain" without some evidence of actual pain.
Perhaps recognizing the weakness of its "extreme physical
pain" argument, the government argues that the enhancement
alternatively may be upheld because the victim also suffered
extreme mental trauma. This claim is flawed not only because the
district court did not make such a finding but also because there
is no evidence that Crespo suffered a "protracted loss or
impairment of the function of a . . . mental faculty," as
required by 1365. The presentence report states that Crespo
received no professional counseling or assistance in the
8 In two cases involving rapes, both decided under the
guidelines and one of them unpublished, the Sixth Circuit upheld
findings of "serious bodily injury" based on sections of the
guidelines other than the "extreme physical pain" provision. See
United States v. Tipton, 11 F.3d 602, 609-10 (6th Cir. 1993)
(impairment of mental faculty and medical intervention); United
States v. Newman, 931 F.2d 57, 1991 WL 63625 at *3 (6th Cir.
1991) (unpublished per curiam) (primarily relying on medical
intervention). In Newman, the court recognized that the
situation may not have satisfied a requirement of "extreme"
physical pain.
In another guidelines case involving rape, the Eighth
Circuit concluded that the definition of serious bodily injury
covers "any immediate serious physical trauma resulting from a
rape," but that the pain and suffering connected to a rape-
induced pregnancy is not encompassed by the definition. The
court held, however, that the pregnancy and its related tragic
consequences properly could serve as the factual predicate for an
upward departure. United States v. Yankton, 986 F.2d 1225, 1229-
30 (8th Cir. 1993).
-13-
aftermath of the crime, relying instead on the support of her
family and boyfriend. Although she told the probation officer
that the ordeal "has had a devastating effect on her life,
family, and consensual relationship," such generalities must fall
short of proof measuring up to "protracted . . . impairment of .
.. mentalfaculty"sufficienttojustifyanadditionalten-yearsentence.
To be sure, even a rape that causes no physical pain is a
unique and reprehensible physical and psychic invasion. The
effort of the district court and government to reflect the
severity of that crime through a flexible interpretation of the
"serious bodily injury" requirement is therefore understandable.
The statute by its terms, however, limits its application to
specific types of injury, and the government cites no legislative
history, nor has our own research uncovered any, suggesting that
the subsections were meant to be less than all-inclusive.9
To say that any rape, regardless of the circumstances, is
equivalent to these specified harms would broaden measurably the
limited category of injuries that Congress designated as
justifying a substantial increase in punishment for carjacking.
It would be, in effect, to add punishment for rape to the
carjacking scheme, which already represents somewhat unusual
9 Although a rape of any type surely is a sufficiently
serious physical invasion to justify a sentencing
enhancement, the statute as written requires evidence
of the specific, objective types of harm set out there.
It may be that, in choosing the definition of serious
bodily injury contained in 1365, a statute that
penalizes the tampering of consumer products, see supra
at 10, Congress did not recognize the limitations of
its language.
-14-
federal intervention into a typically state-law realm. We
decline to stretch the language Congress wrote without some
indication that it meant the provision to be elastic. See, e.g.,
United States v. Boots, 80 F.3d 580, 588 (1st Cir. 1996)(the rule
of lenity holds that "the harsher of two possible readings of a
criminal statute will be enforced only when Congress has spoken
clearly").10
The defendant's sentence thus must be vacated. If the
government continues to seek the 2119(2) enhancement, it must
provide some basis upon which the court may conclude that one or
more of the statutory conditions of harm occurred. Contrary to
defendant's assertion, an evidentiary hearing is not necessary.
Rule 32 of the Federal Rules of Criminal Procedure requires that
counsel for the defendant and the government be given an
opportunity to comment at the sentencing hearing on matters
relating to the appropriate sentence, but the decision whether to
conduct an evidentiary hearing is within the court's discretion.
Fed. R. Crim. P. 32(c)(1).11 The court, however, must resolve
10 Indeed, we think there is some question whether the rape
is at all relevant to defendant's punishment under 2119 since
it was not the "force and violence" by which he gained control of
the vehicle. Arguably, the conduct punishable under 2119
occurred at the Isla Verde Marginal Road when Vazquez forcibly
took control of Crespo's car, and the subsequent abduction and
rape were separate violations of state law. We need not consider
the scope of a carjacking here, however, because defendant does
not raise such a claim. He argues only that the court could not
apply the enhancement in the absence of proof of "extreme
physical pain" or some other listed harm.
11 The case relied on by defendant, Specht v. Patterson, 386
U.S. 605 (1967), is inapposite. In that case, the Court ruled
that due process required notice and a hearing before the
-15-
objections to the presentence report, and make findings on any
controverted matter taken into account in sentencing. Id.12
For the foregoing reasons, we affirm defendant's conviction,
but vacate the sentence and remand for resentencing consistent
with the principles expressed in this opinion.
defendant, who had been convicted for indecent liberties under
one Colorado statute, could be sentenced under the separate
Colorado Sex Offenders Act, which contained more severe
penalties. Here, the enhancement at issue is part of the statute
under which the defendant was charged and convicted.
12 We note that the government partially defended admission
of the rape evidence based on an assertion that 2119 required a
jury finding beyond a reasonable doubt on "serious bodily
injury," and further claimed that the jury's verdict reflects
such a determination. The government's position is flawed in two
respects. First, the verdict does not support such a
determination because the jury made no specific findings on the
defendant's conduct. Second, we have held that the alternative
penalty provisions of 2119 are sentence enhancers whose
applicability is a matter for the judge, not the jury. See
Rivera-Gomez, 67 F.3d at 1000. Accord United States v. Oliver,
60 F.3d 547, 552-53 (9th Cir. 1995); United States v. Williams,
51 F.3d 1004, 1009 (11th Cir. 1995).
-16-