UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1267
UNITED STATES,
Appellee,
v.
REYNALDO VAZQUEZ-RIVERA,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Edgardo Rodr guez-Quilichini, Assistant Federal Public
Defender, with whom Joseph C. Laws, Jr., Federal Public Defender,
was on brief for appellant.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, and Nelson P rez-
Sosa, Assistant United States Attorney, were on brief for
appellee.
February 2, 1998
TORRUELLA, Chief Judge. This case is before us for the
TORRUELLA, Chief Judge.
second time. See United States v. V zquez-Rivera, 83 F.3d 542
(1st Cir. 1996). In the first appeal, we affirmed Appellant's
conviction for carjacking in violation of 18 U.S.C. 2119, but
concluded that the sentence was flawed because the factual record
had not been sufficiently developed to support the sentencing
enhancement imposed. We thus remanded the case to allow the
district court to reconsider sentencing options. Id. at 543.
The version of the carjacking statute in force at the time the
crime occurred, June 24, 1994, provided for an enhancement of the
imprisonment option available to the sentencing judge of up to 10
additional years -- to a maximum of 25 years -- if "serious
bodily injury" resulted from the commission of the crime. 18
U.S.C. 2119(2).1 That provision refers to 18 U.S.C. 1365 for
the definition of what constitutes "serious bodily injury" under
the carjacking statute. Section 1365(g)(3), which codifies part
1 Before its amendment in 1996, section 2119 read, 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 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 . . . .
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of the Federal Anti-Tampering Act, Pub. L. No. 98-127, 2, 97
Stat. 831 (1983), provides that:
[T]he term "serious bodily injury" means 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 concluded, and we agreed, V zquez-
Rivera, 83 F.3d at 546-47, that the prosecution proved that the
carjacking victim was raped by Appellant during the commission of
the charged offense. The trial court went on to rule, however,
that the 10 year imprisonment enhancement was warranted, based on
a determination that the rape caused the victim "extreme physical
pain." Although we concurred with the district court's views
that this crime was "degrading, heinous, cruel, and brutal," id.
at 547, we reluctantly vacated the sentence because we found the
record devoid of any evidence that would support the district
court's finding of "extreme physical pain," as that term was
defined in the aforementioned legislation. The record did not
contain any description of the assault other than that it took
place while the victim was in a debasing physical position, and
that the rape lasted approximately five minutes. A medical
account introduced as part of the presentence report reflected
that her physical condition only two hours after the rape
presented no signs of any cuts or bruises in her vaginal area.
It was otherwise silent regarding any other physical
manifestations of this crime.
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On this first appeal the Government made a belated
attempt to salvage the sentencing enhancement by arguing the
fourth prong of Section 1365(g)(3), to the effect that the victim
had also suffered extreme mental trauma. Unfortunately, with the
meagerness of the record before us, we were unable to meet the
statutory standard which required that "protracted loss or
impairment of the function of a . . . mental faculty" exist.
This language, we ruled, mandated "evidence of the specific,
objective types of harm set out in the statute," id. at 548 n.9,
the phraseology of which was designed by Congress to deal with
the tampering of consumer goods, not rape. Id.
The only evidence available to us regarding the
victim's mental condition was contained in the presentence
report, which indicated that the victim had received no
professional counseling or assistance, but had relied on the
support of her family and boyfriend. It also had her statement
to the probation officer that the ordeal "had a devastating
effect on her life, family, and consensual relationship." Id.,
at 548. Although we recognized that "even a rape that causes no
physical pain is a unique and reprehensible physical and psychic
invasion," id., the statute in question, by its terms, limited
our hand to specific types of injury. This prevented us from
concluding "that any rape, regardless of the circumstances, [was
the] equivalent [of] the[] specified harms" necessary for a
triggering of the enhancement. The interpretation proposed by
the government, we believed, "would broaden measurably the
-4-
limited category of injuries that Congress designated as
justifying a substantial increase in punishment for carjacking."
Id. (emphasis supplied). Without further indication from that
body, we felt unauthorized to take the expanded view of Section
1365 proposed by the Government and adopted by the district
court. Thus we remanded to allow the Government to "provide some
evidentiary basis upon which the court may conclude that one or
more of the statutory conditions of harm occurred." Id.
After remand, but before resentencing of appellant by
the district court, Congress's attention was momentarily focused
on this court's decision. See H.R. Rep. No. 104-787, at 2-3, 142
Cong. Rec. 3409, 3410-11 (1996). This scrutiny resulted in the
enactment of the so-called Carjacking Correction Act of 1996,
Pub. L. No. 104-217, 110 Stat. 3020, which became effective on
October 1, 1996, the intended purpose of which was to rectify
this court's interpretation of the term "serious bodily injury"
as defined in Section 1365 of Title 18. See 142 Cong. Rec. at
3410-11; Statement on signing the Carjacking Correction Act of
1996 (Pres. Bill Clinton), 1996 WL 13336081 (October 1, 1996).
Pursuant to this new statute, Section 2119(2) of Title
18 was amended to redefine the term "serious bodily injury"
contained in Section 1365 of that Title to include any conduct
constituting "sexual abuse," as that term is defined in Sections
2241 and 2242 of Title 18.2 The application of this legislation
2 Section 2 of Pub. L. No. 104-217 provides:
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to appellant is one of the issues we must decide in the present,
and latest, review of his sentence.
The Present Appeal
The Present Appeal
The case was called for re-sentencing on January 17,
1997. Prior thereto the government filed a motion announcing its
intention to seek an enhanced sentence pursuant to 18 U.S.C.
2119(2), by introducing evidence during the sentencing hearing
that the victim suffered "serious bodily injury," arguing, inter
alia, that the amendment to that section contained in the
Carjacking Correction Act of 1996, supra, was applicable to
appellant upon resentencing. Appellant opposed the government's
proposal, countering that the application of that provision to
him for the crime for which he had previously been convicted
violated the Ex-Post Facto Clause of the Constitution.3
Appellant further contended that any "serious bodily injury"
suffered by his victim resulted from the rape itself and not from
Section 2119(2) of title 18, United States
Code, is amended by inserting, "including any
conduct that, if the conduct occurred in the
special maritime and territorial jurisdiction
of the United States, would violate section
2241 or 2242 of this title" after "(defined
as in section 1365 of this title."
18 U.S.C. 2241 and 2242 establish the crimes of aggravated
sexual abuse (by the use of force or threats of death, serious
bodily injury, or kidnapping) and sexual abuse, respectively,
within the special maritime and territorial jurisdiction of the
United States.
3 U.S. Const. art. I, 9, cl. 3:
No . . . ex post facto Law shall be passed.
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the carjacking, and therefore that such injury could not serve as
the basis for enhancing his sentence under thecarjacking statute.
At the outset of the sentencing hearing, the district
judge made reference to our opinion, supra, at 544, stating that
the purpose of the proceeding was "to reconsider sentencing
options" (emphasis supplied) in view of the fact that a prior
panel of this court had concluded "that the factual record ha[d]
not been sufficiently developed to support the sentence
enhancement." Id. The district court then ruled that the 1996
amendment to the carjacking statute was a "mere clarification" of
the original legislation, and thus was applicable to appellant's
remanded sentencing. The court stated, in the alternative, that
it "presume[d] that the government would present sufficient
factual instances now so that the Court can support its finding .
. . even under the law as it was before the clarification . .
. ." Finally, the court held that appellant's action of "taking"
the vehicle in question, an element of the carjacking crime for
which he was convicted, 18 U.S.C. 2119(2), was not consummated
until after he drove away, having abandoned the victim of the
rape on a lonely beach. Thus, the court rejected appellant's
contention that any serious bodily injury suffered from the rape
was not the result of the carjacking itself.
The government proceeded to present evidence regarding
the victim's injuries. This consisted of the testimony of former
Assistant U.S. Attorney Sylvia Carre o-Coll and of Mercedes
Rodr guez-L pez, a social psychologist. A letter dated
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September 30, 1995, from the victim to the sentencing judge, was
also made part of the sentencing record.
Carre o-Coll testified that as the Assistant U.S.
Attorney in charge of prosecuting this case she visited the scene
of the rape prior to the trial, accompanied by the victim.
During the course of this viewing and the related conversations
with the victim, the victim told her "how helpless she felt, how
threatened, the terror that she felt that night," that as they
approached the scene of the crime the victim became "increasingly
nervous and visibly upset," and "became dizzy . . . started
crying and basically . . . had to be carried back to the car
because she couldn't stand." On the return trip to San Juan --
the rape took place in a remote beach about 40 miles distant --
"she cried all the way back . . .[,] was extremely quiet and . .
. had to [be] take[n] . . . to her house." Carre o-Coll also
testified that during other pretrial interviews with the victim,
when they "got to the part of the rape, . . . she would become
very upset, very nervous." At the district court's prompting she
also testified that the victim told her "that she feared for her
life throughout the ordeal," "felt deeply humiliated," "felt pain
. . . and deeply violated while the rape was taking place," and
"felt dirty and in pain throughout the event."
Mercedes Rodr guez-L pez testified that she was a
licensed social psychologist with experience in the health
environment of victims who survived crime, particularly victims
of violence or rape. She was a counselor and director of the
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Rape Victims Health Center and stated that she had approximately
twenty years of experience dealing with rape victims. Rodr guez-
L pez indicated that she held two personal interviews with the
victim, the second one a week before the hearing, as well as six
or seven telephone conversations, for a total of about twelve to
fifteen hours of interviews. In addition the victim filled out a
questionnaire forwarded to her by Rodr guez-L pez dealing with
the subject of the sentencing hearing. Rodr guez-L pez also
filed a written report which was generally repetitious of her
testimony.
Rodr guez-L pez indicated that the victim "has not been
able to survive the effects of this rape[;] she is confronting
some acute reactions which . . . are chronic due to the prolonged
period she has been through them and the least I can say about
the process that [the victim] has gone [through] is these are the
most devastating ones that I have ever seen about someone who has
gone through a rape process." Rodr guez testified that the
victim suffered non-resolved rape trauma and post-traumatic
stress syndrome, which manifested itself as "fear, the sense of
distrust, physical discomfort, loss of energy, a loss of faith in
life and the sensation that would it [sic] have been better off
to die than continue living are [sic] three years now after the
rape as if the rape were virtual in this moment now." She
concluded her testimony by saying that she "had no doubt
whatsoever that the [victim's] physical pain was extreme at the
time [of the rape], days after this rape and even now on a daily
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basis that pain is rekindled and in the emotional and mental
level I have no doubt whatsoever that we are facing severe
damage, extreme, critical of the emotional condition and which
effect [sic] her function, individual, social, family level."
Rodr guez-L pez's report dated December 12, 1996, which
is also part of the record, substantially supports her testimony
at the hearing. It also documents that the victim has been
unable to finish her college education, of which she has
completed two and one half years, because of the emotional
condition that she was suffering "as a consequence of the
robbery, kidnapping and rape she suffered in 1994."
The government also introduced into evidence a letter
dated September 30, 1995, directed by the victim to the trial
judge, which the judge indicated was read by him prior to the
original sentencing but not placed into the record because he
felt that the presence of the press at that hearing would further
stigmatize the victim. In her letter the victim indicates how
the violation "was only the beginning of a long nightmare [in]
which she do[es] not even dare go to the corner of the street
without having someone accompanying" her. She is "afraid of
anyone who stands near" her, and her "distrust in everything that
surrounds [her] controls [her] life."
At the conclusion of the hearing the district judge
reiterated his ruling that the 1996 amendment was applicable to
appellant, and concluded that "the factual record is replete with
evidence to support the finding that the victim did suffer
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extreme physical pain and that she is presently suffering from .
. . post traumatic stress syndrome [or rape trauma syndrome and
because of] the presence of the disorder . . ., her mental
faculties have been affected in [sic] a large extent."
The Ex Post Facto Issue
The Ex Post Facto Issue
It is an elementary principle of our form of
government, one ingrained in the history of our Nation, that ex
post facto criminal laws are not to be tolerated. Thus the
Constitution prohibits the retrospective application of criminal
laws to the prejudice of a defendant. U.S. Const. art. I, 9,
cl. 3. In order to trigger this provision, (1) the law must be
criminal in nature, Collins v. Youngblood, 497 U.S. 37, 41
(1990); (2) it must be applied retrospectively, Miller v.
Florida, 482 U.S. 423, 430 (1987), that is, it must apply to
events occurring before its enactment, Lynce v. Mathis, 117 S.
Ct. 891, 895 (1997); and (3) the application of the law must
disadvantage the offender affected by it, Weaver v. Graham, 450
U.S. 24, 29 (1981), by altering the definition of criminal
conduct or increasing the punishment for the crime, Lynce, 117 S.
Ct. at 895.
Measured against these criteria, there should be little
doubt that the application of the provisions of the Carjacking
Correction Act to appellant for the crime for which he was
convicted violates the ex post facto clause of the Constitution.
There is no question about the criminal nature of this statute;
it was enacted in 1996 to be applied to a crime committed in
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1994, thus its retroactive enforcement is patent; and it allows
appellant to be punished more stringently than was permitted by
this court's decision prior to the passage of the enactment.
Painting black lines on the sides of a horse and
calling it a zebra does not make it one. Similarly, labeling the
1996 amendment a "clarification" of Congress's intent in the
original law is legally irrelevant. In the first appeal of this
case, this court decided what Congress's intention was when it
enacted the original statute. V zquez-Rivera, supra, 83 F.3d. at
548. "Having achieved finality, . . . a judicial decision
becomes the last word of the judicial department with regard to a
particular case or controversy, and Congress may not declare by
retroactive legislation that the law applicable to that very case
was something other than what the courts said it was." Plaut v.
Spendthrift Farms, Inc., 514 U.S. 211, 227 (1995). Thus, post
hoc statements regarding the original legislative intent do not
affect this court's previous, and final, finding as to what that
intent was. Furthermore, as can be seen by the changes reflected
in the new statute, in which the critical term, "serious bodily
injury" is redefined from within the context of a statute
designed to prevent tampering with consumer goods, to one
concerned with sexual abuse, it is obvious that the
"clarification" is more than merely cosmetic.
We are therefore required to consider the new factual
record in the light of our interpretation of Section 2119(2),
before it was amended in 1996.
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The new factual record
The new factual record
The new record is devoid of any valid evidence that
will support a finding of extreme physical pain, as that term was
interpreted by us in the first appeal. V zquez-Rivera, supra, at
547. We are thus unable to approve the district court's findings
in this respect.
There is, nevertheless, sufficient evidence to support
the conclusion that the victim has suffered a "protracted . . .
impairment of . . . mental facult[ies]." 18 U.S.C.
1365(g)(3)(D). Without unduly repeating what has previously
been stated in this opinion, ante at 4-5, the evidence
establishes that as a direct consequence of the rape, the victim
is very much emotionally disturbed, and suffers a chronic mental
condition, which persists even though several years have elapsed
since her grievous incident. She is afraid to be around
strangers or to leave her house unaccompanied, is morose, has
crying spells, feelings of physical discomfort, despondency, and
fear, and has a loss of physical energy. Her malady, diagnosed
as rape trauma or post-traumatic stress disorder, has not only
prevented her from leading a normal life, it has truncated the
completion of the remaining one and one-half years of her college
education because she is unable to concentrate in academic
endeavors, cannot engage in social discourse and is not tolerant
of the company of others. We believe this evidence sufficiently
fills the lacuna left open in the government's first request for
the enhancement provided by 18 U.S.C. 2119(2) for cases in
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which a carjacking results in "serious bodily injury" by leading
to the "protracted impairment of . . . [the victim's] mental
facult[ies]." 18 U.S.C. 1365(g)(3)(D).
One last argument remains unaddressed, appellant's
contention that even if the rape constitutes "serious bodily
injury," it did not result from the carjacking itself, and is
therefore outside the coverage of the statute. By its terms, the
carjacking statute seeks to punish the use of force, violence, or
intimidation to "take" a vehicle, and it further provides an
enhancement of the punishment when the taking of the vehicle
results in serious bodily injury. Appellant contends that when a
carjacking victim suffers an injury unrelated to the taking of
the vehicle, the harm, however severe, falls outside the ambit of
the carjacking statute. He therefore argues that in this case,
the rape was not the "result" of the carjacking because it was
not intended to assist in the taking of the vehicle.
Appellant's argument, which we noted but did not
resolve in the first appeal, see Rivera-V zquez, 83 F.3d at 548
n.10, raises the not insubstantial problem of delineating the
precise temporal limits of the crime of carjacking.
Nevertheless, although we need not provide a comprehensive answer
to this problem, we find appellant's proposed construction of the
carjacking statute to be unconvincing. We begin by noting that
there is no textual basis for asserting that the injury must be
"necessary to" or "intended to effectuate" the taking of the
vehicle itself. To the contrary, the choice of the word
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"results" in the statutory phrase "if serious bodily injury . . .
results" suggests that Congress intended to cover a fairly broad
range of consequences flowing from a carjacking. Moreover, the
legislative history characterized the provision as imposing the
enhancement when the carjacking "involves bodily injury," see
Anti Car Theft Act, Pub. L. No. 102-519, reprinted in 1992
U.S.C.A.A.N. 2847, at 2865 (emphasis added), which supports the
view that the injuries covered are not limited to those resulting
from the "taking" of a vehicle, but also include those caused by
the carjacker at any point during his or her retention of the
vehicle. Cf. United States v. Cruz, 106 F.3d 1134, 1137 (3d Cir.
1997) (holding that a young woman raped during a carjacking was a
"victim" of the carjacking for sentencing purposes and that the
court could "look at all the conduct underlying the offense of
the conviction"). Furthermore, this view accords with our
interpretation of sentencing enhancement regimes generally. See
United States v. Rivera-G mez, 67 F.3d 993, 1001 (1st Cir. 1995)
(noting that the sentencing regime in 18 U.S.C. 2119
"represents a congressional judgment that the punishment for
committing the crime of carjacking should be harsher if the
crime, as actually perpetrated, includes conduct that produces
the demise of the victim."). This interpretation is also
consistent with the tenor of our prior holding regarding the
admissibility of the evidence of the rape to prove an element of
the crime, the use of a firearm, which was first seen by the
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victim when appellant placed the weapon on top of the car to
intimidate her immediately prior to raping her.
We thus conclude that, under the circumstances of this
case, the carjacking resulted in serious bodily injury, namely,
the impairment of the victim's mental faculties. Therefore, the
district court did not abuse its discretion in imposing the
sentencing enhancement provided by Section 2119(2).4
For the reasons stated in this opinion, the decision of
the district court is AFFIRMED.
AFFIRMED
4 We also find that the rule of lenity does not prevent the
application of the section 2119(2) enhancement to appellant.
"The rule of lenity applies only if, after seizing everything
from which aid can be derived, [a court] can make no more than a
guess as to what Congress intended." Reno v. Koray, 515 U.S. 50,
, 115 S. Ct. 2021, 2029 (1995). A prior panel of this court
has thus noted that, "[p]ut bluntly, the rule of lenity cannot be
used to create ambiguity when the meaning of a law, even if not
readily apparent, is, upon inquiry, reasonably clear." United
States v. Nippon Paper Ind. Co., Ltd., 109 F.3d 1, 8 (1st Cir.
1997). As our discussion above demonstrates, we do not find
section 2119(2) to be ambiguous - only somewhat complicated.
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