United States v. Mendez Otero

United States Court of Appeals
For the First Circuit

No. 99-1805

UNITED STATES OF AMERICA,

Appellee,

v.

HANSON WILSON MILLAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvator E. Casellas, U.S. District Judge]

Before

Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.

Rafael F. Castro Lang, by Appointment of the Court, for
appellant.
Antonio R. Bazan, Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant U.S. Attorney, and Camille Velez-Rive, Assistant U.S.
Attorney, were on brief for the appellee.

October 27, 2000
 COFFIN, Senior Circuit Judge. Defendant-appellant

Hanson Wilson Millan appeals from convictions for carjacking

that resulted in death, in violation of 18 U.S.C. § 2119(3), and

for using a firearm during the commission of the offense, in

violation of 18 U.S.C. § 924(c). Appellant claims error in

several evidentiary rulings at trial and contends that the

prosecutor made improper remarks during his closing argument.

We affirm.

I. BACKGROUND

The facts as the jury could have found them are as

follows. In the wee hours of April 5, 1996, appellant was

riding in a red Mitsubishi driven by Jose Otero Mendez in

Carolina, Puerto Rico. Also along for the ride were Javier

Betancourt, his girlfriend, Jomary Aleman Gonzalez, and Geovani

Castro Ayala. When a white Nissan with alloy wheels passed by,

Otero followed it, intending to swipe the coveted wheels. The

Nissan was driven by Juan Manuel Gonzalez Encarnacion

("Gonzalez"), an off-duty police officer who was on his way to

his girlfriend's house.

As Gonzalez parked on the street in front of the house,

Otero pulled up alongside. Appellant and Betancourt, each armed

with handguns, got out and approached Gonzalez' car. Shots were

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fired. Both Gonzalez and Betancourt were hit and died as a

result of their injuries.

At trial it was unclear who fired first. There was

testimony of an initial exchange of bullets between Betancourt

and Gonzalez through the driver's side window of Gonzalez' car.

Appellant testified that upon hearing gunshots, he fired through

the rear window at Gonzalez, who, according to autopsy reports,

died instantly.

Betancourt, who had been shot in the abdomen, was

assisted into Otero's car and dropped off at the Carolina

hospital along with Aleman and Castro. At the hospital, Aleman

and Castro, both juveniles, lied to authorities about how

Betancourt was shot, in an attempt to cover up the crime. After

Betancourt died, Aleman and Castro told police what actually

happened, and both subsequently pleaded guilty to their

accessory roles in the offense and agreed to cooperate and

testify. Appellant and Otero were indicted together, but their

cases were severed before trial. Appellant was found guilty and

sentenced to imprisonment for life. Pertinent portions of

appellant's trial will be recounted in context as part of our

analysis of his arguments on appeal.

Appellant asserts three claims of error. First, he

argues that the court erred in refusing to admit a portion of

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the government's written version of facts that was attached to

Aleman's plea agreement, which, he contends, would have shown

that Gonzalez fired first. Second, appellant claims that the

court erred in refusing to permit hearsay testimony about

illegal firearms dealing involving Gonzalez, which would have

helped refute the government's theory that the shooting occurred

during a carjacking. Third, appellant takes exception to the

prosecutor's remarks during closing argument. We address each

of these arguments in turn.

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II. ANALYSIS

A. Refusal to Admit Excerpt from Version of Facts

Appended to Aleman's plea agreement was a three-page

statement of facts drafted by the government and signed by the

prosecutor and Aleman. During Aleman's direct testimony at

trial, the government sought to introduce the plea agreement

along with the version of facts, but defense counsel objected.

At a bench conference, counsel stated that he had no objection

to the plea agreement, only to the version of facts. The

prosecutor agreed to excise the version of facts and the plea

agreement was admitted by itself.

At the close of the defendant's case, his attorney

attempted to reintroduce a portion of the version of facts he

had successfully barred earlier. He argued that this part of

the version of facts clarified who fired first, an issue

disputed at trial. After a lengthy sidebar conference, the

court was persuaded to allow counsel to introduce the version of

facts notwithstanding his earlier objection, but ruled that the

whole version had to come in, not just the excerpt favorable to

his position. In its consideration of the issue, the district

court apparently viewed the government's four-paragraph

narrative as an integrated whole, the piecemeal introduction of

which would have unfairly distorted the government's version of

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events. Counsel declined the invitation to admit the entire

version and now claims error in that ruling.

Under the doctrine of completeness codified in Federal

Rule of Evidence 1061, a party wishing to introduce only a

portion of a recorded statement may be precluded from doing so

where partial disclosure out of context would result in

unfairness to the other party. See United States v. Awon, 135

F.3d 96, 101 (1st Cir. 1998) ("The doctrine of completeness . .

. operates to ensure fairness where a misunderstanding or

distortion created by the other party can only be averted by the

introduction of the full text of the out-of-court statement.").

The rule permits "a party against whom a fragmentary statement

is introduced [to] demand that the rest of the statement (or so

much thereof as is appropriate) be admitted into evidence in

order to place the excerpt in context." United States v.

Houlihan, 92 F.3d 1271, 1283 (1st Cir. 1996). We review Rule

106 completeness determinations for abuse of discretion. See

United States v. Thuna, 786 F.2d 437, 441 n.7 (1st Cir. 1986)

("application of rule 106 is left to the sound discretion of the

district court"); United States v. Conley, 186 F.3d 7, 22 (1st

1 "When a writing or recorded statement or part thereof
is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing
or recorded statement which ought in fairness to be considered
contemporaneously with it." Fed. R. Evid. 106.

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Cir. 1999) ("In making determinations as to the completeness of

proffered statements, the district court's judgment is entitled

to great respect."); accord Houlihan, 92 F.3d at 1283.

After reviewing the version of facts, we find no abuse

of discretion in the court's refusal to admit less than the

whole document. "[T]he threshold question under Rule 106 is

always one of defining the entirety: that is, if Rule 106

applies, what is it that must be complete?" United States v.

Boylan, 898 F.2d 230, 256 (1st Cir. 1990). Here, the entirety

is easily defined as the government's version of facts. That

document bore its own caption and was signed and dated

separately from the plea agreement to which it was appended.

Early on in the trial, the parties implicitly agreed that the

version stood on its own when it was excised from the plea

agreement introduced into evidence by the government.

Having determined the version of facts document to be

"a reasonable unit of wholeness," we next consider whether the

excerpt would "neglect[] some revealing context of the whole."

Id. at 257. Although appellant did not indicate on the record

which portion he wanted admitted, he points us in his brief to

three sentences that, he argues, would have been helpful to his

case:

As Javier Betancourt approached the driver's
side of the automobile that they intended to

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 carjack, its driver, Juan M. Gonzalez
Encarnacion, an off duty state policeman,
fired his revolver at him. Betancourt was
hit in the stomach area but still managed to
fire several shots that hit Gonzalez
Encarnacion. Meanwhile, Hanson Wilson
Millan fired several shots at Gonzalez
through the rear window of the car.

This excerpt, plucked mid-paragraph, tells only part of the

story portrayed in the government's version of facts. That

document also describes, in the government's voice, events

leading up to the shooting, including a passage just prior to

the excerpt stating that appellant and Betancourt "dismounted

the car with firearms in their hands." That appellant

approached Gonzalez' car with revolver at the ready bears on the

possibility that appellant fired his shots before, or at the

same time as, Gonzalez did. Shorn from the context of the

entire narrative, the excerpt may have distorted the jury's

perception of the government's written version of events.

Requiring admission of the entire document was therefore within

the district court's discretion.

Furthermore, any error in refusing to admit the excerpt

was harmless. Even if the excerpt had been admitted, it would

not have been particularly helpful to appellant's case.

Contrary to appellant's assertion, the excerpt does not

unequivocally settle the issue of who shot first. Though the

narrative order of the quoted language may suggest that Gonzalez

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fired first, the statement, "[m]eanwhile, [appellant] fired

several shots at Gonzalez," could mean that appellant was the

first to fire.

The excerpt was also cumulative of appellant's trial

testimony. On the stand, appellant admitted to firing several

times into the back of Gonzalez' car after seeing Betancourt get

hit. He testified that he did not start shooting until after

Betancourt had started and that Betancourt returned fire only

after being shot. Although the selected excerpt may have on

balance corroborated appellant's testimony, excluding it did not

preclude appellant from presenting his theory of the case.

Nevertheless, even if the jury had been permitted to

consider the excerpt from the government's version of facts and,

in combination with appellant's testimony, drew the inference

that appellant did not initiate gunfire, it is unclear how that

fact might have tended to exonerate him. Establishing that

Gonzalez fired first, or even that appellant did not fire first,

would have done little to undermine the mens rea element of the

offense. The carjacking statute attaches criminal liability to

anyone who, with the intent to cause death or serious bodily

harm, attempts to take a motor vehicle by force or intimidation.

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18 U.S.C. § 2119 (1994).2 Violations of the carjacking statute

do not turn on who initiated the altercation. See Holloway v.

United States, 526 U.S. 1, 11-12 (1999) (holding that mens rea

element of § 2119 is satisfied by conditional intent to cause

death or serious bodily harm if necessary to hijack the car);

see also United States v. Gandia-Maysonet, No. 98-1144, 2000 WL

1273845, at *3 (1st Cir. Sept. 13, 2000).

The district court determined that fairness to the

government required the admission of the whole version of facts.

On this record, we are not prepared to hold that determination

a harmful abuse of discretion.

B. Refusal to Admit Testimony of Illegal Firearms Dealing

Appellant's second claim of error is that the court

wrongfully refused to admit testimony of illegal firearms

dealing involving Betancourt and Gonzalez. At trial, appellant

attempted to show that the shooting did not occur during a

carjacking, but was motivated by a dispute over money owed by

2 Section 2119 states, in pertinent part:
Whoever, with the intent to cause death or serious
bodily harm [,] 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 . . .
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or
both, or sentenced to death.

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Gonzalez to Betancourt as part of their gun dealing.

Appellant's attempts to present this alternate theory to the

jury were thwarted by two of the court's evidentiary rulings.

The first occurred when, during the defendant's direct

testimony, a hearsay objection was sustained that prevented

appellant from testifying to the substance of a conversation he

heard between Betancourt and Gonzalez about trading illicit

firearms. The second ruling barred Otero from testifying that

he fled from police because he feared reprisal for knowing that

Gonzalez -- a police officer -- was engaged in illicit activity.

We review these evidentiary rulings for abuse of discretion.

See United States v. Mojica-Baez, Nos. 98-2349 to 2353, 2000 WL

1211013, at *5 (1st Cir. Aug. 30, 2000).

1. Appellant's Proffered Testimony Was

Inadmissible.

Appellant testified on direct examination that he first

met Gonzalez in mid-March 1996 when he was driving with

Betancourt and they pulled up next to Gonzalez' car in the

parking lot of a Burger King. As appellant began to relate what

was said between Betancourt and Gonzalez, the government

objected strenuously, arguing that the admission of the hearsay

statements would be particularly unfair because both declarants

were dead.

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 At sidebar, counsel proffered that the conversation was

about weapons, but that he was not offering it for the truth of

the matter asserted. The testimony was admissible, he argued,

to show defendant's awareness of firearms dealing. He

apparently wanted to bolster appellant's later testimony that

his understanding of the purpose of the fatal confrontation with

Gonzalez was to collect a debt. However, there was no proffer

that the excluded conversation shed any light on the financial

dealings of Betancourt and Gonzalez.

At the conclusion of the colloquy on this point, the

court gave counsel the opportunity to identify another basis for

admission, which we discuss below. Assuming the earlier non-

hearsay argument was preserved, we have no difficulty in holding

harmless any error in refusing to admit the conversation.

Appellant was permitted to testify later as to his state of

mind, and the proffered conversation lacking specifics would not

have added significantly to appellant's case.

Once it became clear that appellant was not going to

prevail on his non-hearsay argument, defense counsel proposed to

have the firearms statements admitted under Federal Rule of

Evidence 804(b)(3)3, which permits the introduction of hearsay

3 The rule defines "statement against interest" in part
as "[a] statement which . . . at the time of its making . . . so
far tended to subject the declarant to civil or criminal

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testimony where a declarant unavailable to testify had exposed

himself to criminal liability in the out-of-court statement.

See Williamson v. United States, 512 U.S. 594, 599 (1994) ("Rule

804(b)(3) is founded on the commonsense notion that reasonable

people, even reasonable people who are not especially honest,

tend not to make self-inculpatory statements unless they believe

them to be true."). Whenever offered to exculpate the accused,

such statements must be corroborated to "clearly indicate

the[ir] trustworthiness." Fed. R. Evid. 804(b)(3); see also

United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997) ("the

requirement for corroboration is not unrealistically severe but

does go beyond minimal corroboration") (internal quotation marks

omitted). District courts have "'a substantial degree of

discretion'" in determining whether a hearsay statement against

penal interest offered to acquit the accused has been

sufficiently corroborated to be admissible. Mackey, 117 F.3d at

29 (quoting United States v. Barrett, 539 F.2d 244, 253 (1st

Cir. 1976)).

liability . . . that a reasonable person in the declarant's
position would not have made the statement unless believing it
to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement." Fed. R. Evid. 804(b)(3).

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 The district court apparently assumed without deciding

that the statements of Betancourt and Gonzalez were against

their respective penal interests, but ruled appellant's

testimony about the conversation inadmissible because its

trustworthiness had not been sufficiently corroborated. We find

no error with this ruling.

The only corroborative evidence offered was the

testimony of appellant's cousins, Margarita and Jessica

Esquilin, who reported an occasion, prior to the carjacking,

when they observed appellant and Betancourt follow a white car

after being paged and then return irked because they had been

shortchanged money. Appellant argues that the court should have

inferred that it was Gonzalez who paged them, that the white car

was Gonzalez' and that their vexation over the money had to do

with illegal firearms. We agree with the district court that

these inferences were too remote to corroborate Gonzalez'

hearsay statement. The Esquilins' testimony lacks sufficient

detail to lend much assistance to the reliability of the

Gonzalez-Betancourt conversation. Because appellant sought to

testify to the substance of that conversation and because that

substance could not be adequately corroborated, appellant's

proffered testimony about illegal firearms dealing was properly

excluded as inadmissible hearsay.

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 2. Otero's Testimony Was Also Inadmissible

Hearsay.

Before appellant took the stand, his attorney tried to

elicit the same information about Gonzalez' involvement in

firearms dealing from Otero, the co-defendant whose case was

severed before trial. On redirect examination, Otero testified

that, after driving the wounded Betancourt to the hospital and

dropping off the other passengers, he proceeded to a friend's

house, where the police caught up with him. Observing the

officers checking out his vehicle, Otero fled on foot. Counsel

asked Otero whether, at the time the police were looking at his

car, he knew Gonzalez was involved in anything illegal. The

government objected, claiming the question was beyond the scope

of its cross examination. The court sustained the objection.4

At sidebar, counsel argued for admitting the statement

to show Otero's state of mind: he fled fearing retribution from

the police because he was aware Gonzalez was a crooked cop.

4 The Rules of Evidence do not explicitly address the
scope of redirect, but state only that cross examination should
be limited to the scope of direct. See Fed. R. Evid. 611(b).
We have recognized the Eighth Circuit's rule granting trial
courts discretion to limit redirect examination to the scope of
cross. See United States v. Catano, 65 F.3d 219, 226 (1st Cir.
1995) (citing United States v. Braidlow, 806 F.2d 781, 783 (8th
Cir. 1986)). We need not further address that issue today,
however, because the district court ruled in the alternative
that the proffered statement was hearsay, and we deem this
alternative ruling correct.

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Otero had testified earlier that he knew of Gonzalez from

Betancourt prior to the carjacking, but had no personal

knowledge of a debt owed by Gonzalez purportedly due to dealings

in illegal firearms. The court sustained the objection, ruling

that the question called for inadmissible hearsay. This ruling

seems entirely proper. The fact of any illicit activity on the

part of Gonzalez could not be proven through the back door, so

to speak, by the state of Otero's mind, which was irrelevant to

appellant's case.

C. Prosecutor's Closing

Appellant's third claim of error is that, during his

closing argument, the prosecutor improperly vouched for the

credibility of a government witness and made derogatory remarks

about defense witnesses. Because none of the offensive

statements were objected to, our review is for plain error.

Fed. R. Crim. P. 52(b); United States v. Verrecchia, 196 F.3d

294, 302 (1st Cir. 1999).5

During his closing argument, the prosecutor referred

to Aleman's plea agreement, in which she had pledged to testify

honestly, suggesting that Aleman had no incentive to lie and had

5 The one comment to which an objection was made -- "the
penalties at the federal level are a lot stiffer than at the
local level" -- was ameliorated by a limiting instruction, which
rendered any error harmless. See Fed. R. Crim. P. 52(a).

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indeed testified truthfully.6 Because the verdict in this case

turned, in part, on Aleman's credibility, appellant argues that

the prosecution's assurance about her testimony was plain error.

Although a "prosecutor may not place the prestige of

the government behind a witness by making personal assurances

about the witness's credibility," United States v. Bey, 188 F.3d

1, 7 (1st Cir. 1999), "an argument that does no more than assert

reasons why a witness ought to be accepted as truthful by the

jury is not improper witness vouching." United States v.

Rodriguez, 215 F.3d 110, 123 (1st Cir. 2000). Here, the

prosecutor simply pointed out a fact in evidence -- that

Aleman's plea agreement required her to testify candidly -- and

asserted that she had upheld her end of the bargain by doing so.

This was not error. See Bey, 188 F.3d at 7 ("[A] prosecutor

properly may admit a witness's plea agreement into evidence,

discuss the details of the plea during closing arguments, and

comment upon a witness's incentive to testify truthfully.")

(citing United States v. Dockray, 943 F.2d 152, 156 (1st Cir.

1991)).

6 The specific passage to which appellant takes exception
reads: "I submit to you she is testifying, she has a plea
agreement, she has kept that plea agreement. . . . She has a
plea agreement to testify truthfully. . . . I submit to you,
ladies and gentlemen of the jury, you can consider the fact,
consider the fact that she has indeed testified truthfully."

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 Appellant enumerates several derogatory comments as

improperly discrediting himself and other defense witnesses.

These remarks generally suggest that appellant concocted the

story about Gonzalez' involvement in selling illegal weapons to

paint the shooting as precipitated by a dispute over a debt, not

a carjacking. For example, in reference to appellant's

testimony, the prosecutor told the jury: "you do not have to

believe that which nobody else will believe"; "[y]ou have a

right not to have anyone insult your intelligence"; "you cannot

cover the sky with your hands . . . . [Appellant] has had

approximately two and a half years [in pretrial detention] to

come up with this story." Referring to Gonzalez and Betancourt,

the prosecutor remarked, "Dead men don't come to testify in

court. So now it's very easy to try to put words in the mouths

of dead people and build a story around these two individuals."

And in reference to appellant's cousins, he said, "the testimony

of both of the Esquilin sisters are [sic] part of a

fabrication." We have considered each of these remarks and find

no one particularly egregious; nor do they rise to the level of

plain error in the aggregate because they did not "affect[] the

outcome of the proceedings." United States v. Hughes, 211 F.3d

676, 684 (1st Cir. 2000) (citing United States v. Olano, 507

U.S. 725, 734 (1993)).

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For the foregoing reasons, the conviction is affirmed.

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