United States Court of Appeals
For the First Circuit
No. 01-1650
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR LEBRÓN-CEPEDA,
Defendant, Appellant
No. 00-2293
UNITED STATES OF AMERICA,
Appellee
v.
JOSE R. CARABALLO-GONZALEZ,
Defendant, Appellant
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch and Howard, Circuit Judges,
and Shadur,* Senior District Judge.
Marlene Aponte Cabrera, for appellant Victor Lebrón Cepeda.
Rachel Brill, for appellant Jose Ramon Caraballo-Gonzalez.
Thomas F. Klumper, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, Criminal Division, and Daniel
Vaccaro, Assistant United States Attorney, were on brief for
appellee.
March 31, 2003
*Of the Northern District of Illinois, sitting by designation.
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Per Curiam. At the conclusion of a twelve-day trial, a
jury convicted defendants-appellants José Ramón Caraballo-Gonzalez
and Victor Lebrón-Cepeda of committing and aiding and abetting each
other and others in the commission of a carjacking resulting in a
death, see 18 U.S.C. §§ 2119(3) and 2, and of using and carrying,
and aiding and abetting each other and others in the use and
carriage of, a firearm during and in relation to the carjacking,
see 18 U.S.C. §§ 924(c)(1)(3) and 2. The district court
subsequently sentenced each defendant to life imprisonment for his
carjacking conviction and to a statutorily mandated five-year
consecutive term of imprisonment for his firearm conviction.
Defendants appeal these judgments on a number of grounds. We
affirm.
I. Background
We start with an account of the facts of the crimes as
the jury could have found them, e.g., United States v. Diaz, 285
F.3d 92, 94 (1st Cir. 2002), but defer providing certain additional
information until we discuss the issues to which the information is
relevant.
At about 11:40 p.m. on March 23, 1996, Iván Fontánez-
Bruno, a Puerto Rico Police Department cadet, drove his 1994
Hyundai automobile into a parking lot in a park adjoining a beach
in Figwort, Puerto Rico. Daisy Torres-Muñoz, a fellow cadet whom
Fontánez was dating, was seated next to him in the front passenger
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seat. Fontánez and Torres had their police-issued firearms with
them. Torres was carrying her weapon, but Fontánez had placed his
in a black bag between the seats and next to the emergency brake.
As the automobile entered the lot, Torres noticed
appellant Caraballo, co-defendant Harold Evans-Garcia (who was
tried separately, see United States v. Evans-Garcia, No. 01-2617,
(1st Cir. March 19, 2003), and a third man she never was able to
identify (but whom other evidence showed to be appellant Lebrón)
sitting on some nearby rocks. The three earlier had split from a
larger group of individuals (all of whom were named as co-
defendants) with the shared intention of committing a carjacking.
All three knew that, just prior to the carjacking, Caraballo was
armed with a nickel-plated .38 caliber revolver that would be used
to facilitate the contemplated carjacking.
Fontánez parked his car next to a light pole along the
beach front and turned it off. The car's windows were down.
Fontánez and Torres began to talk about the driver's licenses they
would need in order to drive patrol cars for the police force. As
they were talking, Torres opened her purse and, after placing her
gun between her legs, set her purse down on top of it in order to
retrieve her driver's license. Periodically, Torres looked out the
Hyundai's rear window at the individuals on the rocks because the
way they were studying the cars in the lot aroused her suspicion.
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Eventually, Torres mentioned her concern about the
individuals to Fontánez and suggested that they leave. Fontánez
turned to start the ignition and drive off, but was unable to do so
because the three men had surrounded the car. Caraballo and Lebrón
approached on the driver's side window, while Evans-Garcia
approached on the passenger's side. Caraballo thrust the revolver
through the window and placed it against Fontánez's head. Fontánez
removed his gun from his bag, but Caraballo warned Fontánez against
using it, stating that his revolver was cocked. Fontánez dropped
the gun.
Caraballo, Evans-Garcia, and Lebrón pulled open the car
doors and ordered Fontánez and Torres, who was concealing her gun
beneath her purse, to move into the car's backseat. Fontánez and
Torres complied and took seats facing each other, with Fontánez in
the middle and Torres on the driver's side. Caraballo handed his
revolver to Lebrón and took the wheel; Evans-Garcia picked up
Fontánez's weapon and sat in the front passenger seat; Lebrón
seated himself in the rear on the passenger's side and placed the
revolver against Fontánez's head. After warning Lebrón to be
careful because the revolver was cocked, Caraballo drove away.
At some point, Evans-Garcia accused Fontánez of being a
police officer because only an officer would have a weapon like the
one Fontánez had dropped. Fontánez denied being a police officer
and claimed that he worked for Wells Fargo. Fontánez and Torres
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begged to be released and offered to give the three assailants
money and to drop them off wherever they wanted. One or more of
the assailants replied to the effect that Fontánez and Torres would
not be released and should know that they were "on [their] way to
the cemetery."1 The three also robbed Fontánez and Torres of money
and jewelry but were dissatisfied with what they found. Lebrón
returned Torres's jewelry to her.
Shortly thereafter, under the guise of putting on her
sandals, Torres placed her gun under the seat in front of her in a
place where she could grab it should the need arise and the
opportunity present itself. After she sat back up, Torres placed
one of her feet on top of the gun. But almost immediately,
Caraballo drove the car into something that caused one of its
bumpers to become detached and to be dragged along the ground. The
impact caused Torres to inadvertently kick the gun to a spot beyond
her reach. Moments later, apparently after discovering something
that identified Fontánez as a police officer, Evans-Garcia yelled,
"I told you. I told you that this son of a bitch was a cop."
1
In her direct testimony, Torres testified that Caraballo and
Lebrón made this remark. But on cross-examination, Torres testified
that Evans-Garcia made the statement. The government has taken the
position that Evans-Garcia made the statement but has neither
acknowledged the inconsistency nor explained why we should adopt its
reading of the record. Compare Evans-Garcia, No. 01-2617, slip op. at
3 (recounting that, at Evans-Garcia's trial, the evidence suggested that
Evans-Garcia had made the "cemetery" comment).
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Lebrón immediately shot Fontánez once in the head, and Evans-Garcia
turned around and shot him seven more times.
Following the shooting, Caraballo made a U-turn and
stopped the car. He and Lebrón exited and pulled the rear bumper
completely free from the chassis, removed Fontánez's body, and
dumped it on the road next to the car. Evans-Garcia pulled Torres
from the car by her hair and, after a brief argument among the
carjackers about whether to kill her as well, Lebrón told her to
run. Torres jumped over a barrier next to the road and watched as
the car drove off. Torres then ran to a nearby business and
persuaded a patron to call the police. A patrol car arrived almost
immediately. Torres gave one of the responding officers a
description of the Hyundai and a brief description of its
occupants. She also made the officer aware of the direction in
which the car had departed. The officer communicated this
information to other police officers via his police radio.
At about 12:15 a.m. on March 24, 1996, Carlos Martinez-
Rivera, a marshal in the Puerto Rico court system, observed a red
car with a missing bumper come to an abrupt stop in front of him.
He saw Caraballo, Evans-Garcia, and a third man whom he was not
able to identify (but whom other evidence showed to be Lebrón) exit
the vehicle and walk quickly in the direction of a nearby housing
project. Regarding what he had seen as suspicious, Martinez went
to his nearby residence and called the police. He learned about
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the carjacking and murder. Martinez returned to the red car and
gave a police officer who arrived at the scene a description of its
occupants. He also pointed out the housing project towards which
they had been headed. The officer passed the information along to
other officers. A short time later, the police arrested Caraballo
and Evans-Garcia at the housing project. Lebrón escaped arrest
that night and fled to New York, where he was apprehended on April
13, 1997.
II. Discussion
Caraballo and Lebrón together challenge the sufficiency
of the evidence underlying their carjacking convictions and, by
extension, the sufficiency of the evidence underlying their
firearms convictions. Caraballo alternatively argues that his
convictions were tainted by the district court's erroneous
admission of out-of-court and in-court identifications of him by
witnesses Torres and Martinez; by the court's plainly erroneous
admission under Fed. R. Evid. 801(d)(2)(A) of certain out-of-court
statements of Lebrón which tended to inculpate Caraballo; and by
the court's denial of his motion for a mistrial when a witness
testified that Lebrón had told him that Caraballo shot Fontánez.
Lebrón alternatively contends that the court erred in applying the
first degree murder cross reference specified in U.S.S.G. §
2B3.1(c)(1); in declining to award him a role-in-the-offense
downward adjustment; in computing his criminal history category;
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and in declining to order that his court-appointed trial counsel be
reimbursed for expenses incurred in flying a court-authorized
defense witness from Washington, D.C. to Puerto Rico in order to
testify at trial. We address each of these arguments in turn.
A. Sufficiency Arguments
Caraballo and Lebrón together assert that the evidence
was insufficient to support the jury's determination that they had
the mens rea required by 18 U.S.C. § 2119.2 Relying upon a portion
of the penultimate sentence of Holloway v. United States, 526 U.S.
1, 12 (1999) ("The intent requirement of § 2119 is satisfied when
the Government proves that at the moment the defendant demanded or
took control over the driver's automobile the defendant possessed
the intent to seriously harm or kill the driver . . . .") (emphasis
2
The federal carjacking statute states:
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 --
(1) be fined under this title or imprisoned
not more than 15 years, or both,
(2) if serious bodily injury [defined in a
different statute] results, be fined under this
title or imprisoned not more than 25 years, or
both, and
(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.
18 U.S.C. § 2119.
-8-
supplied), they say that the evidence was inadequate to ground a
finding that they were prepared to seriously harm or kill Fontánez
prior to learning that he was a police officer -- which happened
only after they had taken control of his automobile. The
government's response is built from the remainder of the sentence
appellants quote, which says that a conditional intent to seriously
harm or kill the driver "if necessary to steal the car" is
sufficient to satisfy the statute. Id. In the government's view,
the evidence was adequate to support a determination that
appellants were prepared to seriously harm or kill Fontánez in the
beach parking lot had he resisted their initial demand for his car.
The evidence that Caraballo placed a loaded and cocked
revolver against Fontánez's head at the inception of the carjacking
and verbally threatened him permitted the jury to infer that
Caraballo would have shot Fontánez had Fontánez failed to comply
with Caraballo's demand that he turn over the car. See Evans-
Garcia, slip op. at 8; cf., e.g., United States v. Adams, 265 F.3d
420, 424 (6th Cir. 2001) (evidence sufficient to support intent
finding where the defendant threatened and then physically touched
the victims with his gun); United States v. Lake, 150 F.3d 269, 272
(3d Cir. 1998) (evidence sufficient to support intent finding where
defendant placed a gun near the head of the victim and asked for
her keys). Moreover, the evidence that Lebrón willfully and
knowingly participated in the initiation of the carjacking while
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fully cognizant of how Caraballo intended to (and did in fact) use
the revolver permitted the jury to draw the same inference as to
him. See Evans-Garcia, slip op. at 8. Because the evidence was
sufficient to permit the jury to draw these inferences, it was
adequate to ground its determination that appellants took the
vehicle with the required mens rea. See id.; see also Holloway,
526 U.S. at 12.3
In his brief, Lebrón makes an additional sufficiency
argument. Lebrón starts by asserting that the evidence pertaining
to his role in the offense derived solely from out-of-court, post-
offense confessions he made to a number of third parties, which the
third parties recounted to the jury (and which were admissible
against Lebrón as admissions under Fed. R. Evid. 801(d)(2)).
Building from this base, Lebrón contends that the accounts of his
various confessions that the jury heard so conflicted with one
another that we should treat them as inadequate to sustain his
3
Caraballo makes related arguments that, in instructing the jury,
the district court erred in failing (1) to emphasize the need for a
nexus between the taking and the intended harm at the precise moment the
vehicle was relinquished, and (2) to specify that a conditional intent
to seriously harm or kill is sufficient to satisfy the statute's mens
rea requirement. Caraballo's first argument fails because the
instructions simply tracked the language of 18 U.S.C. § 2119, which is
itself adequate to put the jury on notice of the required nexus. See
id. (stating that the unlawful taking or attempted taking must be
committed "with" the specified intent). His second challenge fails
because he did not object to the absence of a conditional intent
instruction, and because he has not explained how the absence of such
an instruction might have affected his substantial rights. See United
States v. Olano, 517 U.S. 725, 735 (1993).
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conviction. In pressing this claim, Lebrón invokes "[t]he general
rule that a jury cannot rely on an extrajudicial, post-offense
confession, even when voluntary, in the absence of 'substantial
independent evidence which would tend to establish the
trustworthiness of the statement.'" United States v. Singleterry,
29 F.3d 733, 737 (1st Cir. 1994) (brackets omitted) (quoting
Opper v. United States, 348 U.S. 84, 93 (1954)). The argument
fails for several reasons.
First, if Lebrón understands the trustworthiness
requirement to apply where the issue is the credibility of
witnesses' testimony about an accused's confession -- and not the
credibility of the confession itself -- he is mistaken. The
trustworthiness requirement is imposed out of concern that people
sometimes fabricate stories about their involvement in a crime, and
accordingly requires the government to introduce evidence other
than the confession which tends to prove that the confession was
not such a fabrication. See id. at 736-37 & n.3. But to the
extent that the in-court testimony about an extra-judicial
confession may be unreliable, that is a matter for cross
examination. Second, this circuit has not decided whether the
trustworthiness requirement constitutes grounds for launching a
sufficiency challenge (as Lebrón has done) or acts merely as a rule
governing the admissibility of evidence. See id. at 737-39 & nn.4-
6. Finally, and perhaps most importantly, Lebrón is wrong in
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stating that there was no evidence against him except that derived
from what he told third parties about his role in the crime. Among
other things, Torres's testimony about the tragic events that
transpired in Fontánez's Hyundai constituted independent proof of
the commission of the charged offense and was more than sufficient
to establish the trustworthiness of Lebrón's confessions within the
meaning of the rule he cites. See id. at 737 & n.2.
B. Caraballo's Alternative Arguments
1. Identification Evidence
Martinez arrived at the scene of Caraballo's arrest
within minutes of its occurrence and, without a request from the
arresting officers, identified him as one of the three men about
whom he had telephoned the police. Torres identified Caraballo in
a photo spread of six photographs held on April 4, 1996, one and
one-half weeks after the carjacking. Prior to trial, Caraballo
moved both to suppress these out-of-court identifications (usually
admissible under Fed. R. Evid. 801(d)(1)(C)) and to prohibit Torres
and Martinez from identifying him in court. Caraballo argued that
the procedures by which the identifications were procured were
impermissibly suggestive, and that the suggestiveness was such that
there was a very substantial likelihood of irreparable
misidentification. See United States v. Simmons, 390 U.S. 377, 384
(1968) (setting forth the two-part standard under which the
appropriateness of suppression is to be judged). In support of his
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motion, Caraballo pointed out that Martinez saw Caraballo
handcuffed and sitting in a police cruiser prior to identifying
him. Caraballo also introduced evidence tending to show that
Torres saw Caraballo in a holding cell when she was brought to the
same police station at which he was being detained a few hours
after the carjacking (a sighting which Torres denied).
Following a five-day hearing, the district court issued
a written order denying Caraballo's motion. Applying the inquiry
mandated by Simmons, the court first held that the procedures that
the police employed were not impermissibly suggestive. With
respect to Martinez, the court found that the police did not use
suggestive procedures "because [Martinez's identification of
Caraballo] was contemporaneous with the events that the witness had
seen only a few minutes before and because it was precisely the
information that he provided to the police that led to
[Caraballo's] arrest." As to Torres, the court implicitly credited
Torres's testimony and found that she did not see Caraballo in a
holding cell prior to identifying him in the photo spread.
On appeal, Caraballo asserts that "there can be no
question" that the district court erred in concluding that the
circumstances under which Martinez identified Caraballo were unduly
suggestive. But this ipse dixit is neither elaborated nor
bolstered by citation to applicable authority. Mindful that a
court is to withhold identification evidence from the jury only in
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"extraordinary circumstances," United States v. de Jesus-Rios, 990
F.2d 672, 677 (1st Cir. 1993) (citation and internal quotation
marks omitted); see also United States v. Maguire, 918 F.2d 254,
263-64 (1st Cir. 1990) (emphasizing that the suggestiveness of an
identification procedure is a proper subject of cross examination
and that the jury is usually competent to weigh intelligently
questionable identification testimony) (citing Manson v.
Brathwaite, 432 U.S. 98, 116 (1977)), this assertion is inadequate
to put the court's conclusion into issue, see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). At any rate, our independent
review of the matter satisfies us that the court permissibly
allowed the jury to hear about Martinez's identification of
Caraballo.
With respect to Torres, Caraballo essentially contends
that the evidence that Torres saw Caraballo in a holding cell a few
hours after the carjacking was so powerful that the district court
erred in crediting the accuracy of Torres's contrary testimony. We
uphold a denial of a motion to suppress if any reasonable view of
the evidence supports the denial. See United States v. Watson, 76
F.3d 4, 6 (1st Cir. 1996). As an appellate court, we lack the
competence and authority to second-guess the court's decision to
credit Torres. See, e.g., United States v. Laine, 270 F.3d 71, 75
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(1st Cir. 2001). And in any event, as with Martinez, our
independent review of the issue leads us to conclude that the court
reasonably allowed Torres's identification of Caraballo to go the
jury.
2. Prejudicial Spillover from the Case against Lebrón
As set forth above, the jury heard several witnesses
recount the details of admissions Lebrón made to them about his
role in the carjacking. Caraballo did not seek a severance of his
trial or a limiting instruction informing the jury that these
admissions were not to be considered against him. Caraballo now
contends that the admissions described facts so similar to those
for which he was on trial that the district court's failure to
sever his trial from Lebrón's or to give the jury a limiting
instruction amounted to plain error within the meaning of Fed. R.
Crim. P. 52(b). Caraballo analogizes his plight to that of the
accused in United States v. Sauza-Martinez, 217 F.3d 754 (9th Cir.
2000), which found plain error in a trial court's failure to give
a limiting instruction at the time it admitted evidence regarding
an extra-judicial statement by the accused's co-defendant that
directly implicated both the co-defendant and the accused.
See id. at 759-61. Caraballo also complains that the court erred
in denying his motion for a mistrial when one of these witnesses
testified that Lebrón told him that Caraballo (and not Lebrón) had
shot Fontánez.
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While it would be most unusual for us to find that a
district court erred in failing to give a limiting instruction that
was never requested, we shall assume solely for the sake of
argument that the court should have instructed the jury sua
sponte that Lebrón's admissions were not to be considered against
Caraballo. Even so, the hurdle set by Fed. R. Crim. P. 52(b) is
high. See Olano, 507 U.S. at 732-37. And here, Caraballo has
fallen far short of demonstrating that any error was of a type
subject to correction under Rule 52(b).
There never was any doubt that three men participated in
the carjacking and killing at the heart of this case. The case
against Caraballo thus did not turn on what happened; it largely
turned on whether the government had proved beyond a reasonable
doubt that Caraballo was one of the three men who committed these
crimes. In the end, the jury almost certainly credited Torres's
testimony that Caraballo was one of the three men, and Martinez's
testimony that Caraballo was one of the three men whom he saw exit
Fontánez's Hyundai shortly after the carjacking. Lebrón's
admissions -- which with the exception discussed below never
identified Caraballo as one of Lebrón's co-perpetrators (which
distinguishes Caraballo's situation from that of the defendant in
Sauza-Martinez, see 217 F.3d at 761) -- almost certainly had no
bearing on the jury's decision to credit this testimony. The
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absence of a limiting instruction thus did not affect Caraballo's
substantial rights. See Olano, 507 U.S. at 735.
By contrast, the testimony that spurred Caraballo's
motion for a mistrial did identify Caraballo as one of Lebrón's co-
perpetrators. But as we have recently explained: "When a witness
strays into forbidden territory, the usual remedy is to strike the
wayward remark and instruct the jury to disregard it. . . . In all
but the rare case, that remedy, if properly executed, will suffice
to safeguard the aggrieved party's rights." United States v. Lee,
317 F.3d 26, 35 (1st Cir. 2003). Here, as in Lee, the district
court promptly struck the testimony and instructed the jury to
ignore it. And here, as in Lee, the court's refusal to order a
mistrial was within its discretion. See id. Factors similar to
those mentioned by the Lee panel in support of its ruling guide our
analysis.
First, the witness's reference to Caraballo was largely
cumulative of Torres's far more direct and damning testimony that
Caraballo was one of the carjackers and Martinez's testimony that
Caraballo was one of the men who exited Fontánez's Hyundai. See
id. True, Torres did not identify Caraballo as a shooter, as did
the witness. But from the jury's perspective, the identities of
the shooters were immaterial to whether they were guilty of the
carjacking and weapons charges for which they were indicted.
Second, the remark appears to have been entirely accidental and was
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in no way invited by improper government questioning. See id.
Third, the district court quickly struck the remark and told the
jury to disregard it in language with which Caraballo has never
taken issue. See id. Finally, the record provides no reason for
us to disregard the presumption that jurors follow their
instructions. See id. In sum, here (as in Lee), the errant
comment, while unfortunate, was not a difference maker.
C. Lebrón's Alternative Arguments
Lebrón's alternative arguments do not require extended
discussion. His first argument is that the district court erred in
applying the first degree murder cross reference set forth at
U.S.S.G. § 2B3.1(c). This guideline directs the sentencing judge
to apply the guideline for first degree murder, U.S.S.G. § 2A1.1
(setting a base offense level of 43, which requires a life sentence
irrespective of defendant's criminal history), "[i]f a victim was
killed under circumstances that would constitute murder under 18
U.S.C. § 1111 had such killing taken place within the territorial
or maritime jurisdiction of the United States . . . ." Section
1111, in turn, defines murder to include, inter alia, any "unlawful
killing of a human being with malice aforethought . . . committed
in the perpetration of . . . [a] robbery."
At page 9 of his supplemental brief, Lebrón concedes that
the success of his challenge to the application of the first degree
murder cross reference depends on our finding that the killing of
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Fontánez did not occur during the carjacking. But the law of this
circuit is that "the commission of a carjacking continues at least
while the carjacker maintains control over the victim and [his or]
her car." Ramirez Burgos v. United States, 313 F.3d 23, 30 n.9
(1st Cir. 2002). Obviously, the killing of Fontánez took place
prior to the completion of the carjacking under this rule.
Accordingly, we reject Lebrón's assignment of error and affirm the
district court's application of the first degree murder cross
reference.
Lebrón also contends that the district court clearly
erred, see United States v. Ortiz-Santiago, 211 F.3d 146, 148-49
(1st Cir. 2000), in declining to award him a two-level reduction in
his base offense level for playing a minor role in the offenses for
which he was convicted, see U.S.S.G. § 3B1.2(b). In pressing this
claim, Lebrón points to evidence that he refused Evans-Garcia's
directive that he kill Torres, returned Torres's jewelry to her,
and told her to run. Lebrón also contends that he was not the one
giving orders or driving the car.
Our review of a district court's decision not to award a
role-in-the-offense reduction is deferential because the decision
is extremely fact-sensitive. See Ortiz-Santiago, 211 F.3d at 148.
Consequently, "absent a mistake of law, battles over a defendant's
status will almost always be won or lost in the district court."
Id. Here, we see no mistake of law or clear error in the district
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court's judgment that, with respect to the offenses of conviction,
Lebrón was not a minor participant. There was evidence that Lebrón
was the one who proposed the carjacking, secured the revolver used
to take the car, held the revolver to Fontánez's head after
possession of the car was wrested from Fontánez, shot Fontánez in
the head at point-blank range, and ultimately decided that Torres
would be spared. In view of these facts, Lebrón's assertion of
clear error borders on the specious.
Lebrón next asserts, with neither meaningful elaboration
nor citation to authority, that the district court erred in
counting certain juvenile offenses in his criminal record while
calculating his criminal history category (which was determined to
be III). In so doing, Lebrón posits a conflict between U.S.S.G. §
4A1.2(c)(2) (which excepts from the criminal history calculation,
inter alia, sentences for juvenile status offenses and truancy) and
§ 4A1.2(d) (which specifies how certain offenses committed prior to
the age of eighteen are to be counted under the guideline for
computing the defendant's criminal history category, U.S.S.G. §
4A1.1). He says that under the rule of lenity, the conflict should
be resolved against counting his offenses. This dubious argument
is so skeletally sketched that we regard it as waived. See
Zannino, 895 F.2d at 17. In any event, because we have affirmed
the court's application of the cross reference for first degree
murder and its concomitant establishment of a base offense level of
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43, and because we have rejected Lebrón's only claim of sentencing
error that might have reduced his base offense level, Lebrón still
would be subject to a life sentence even if his criminal history
category were I. Thus, any error in the computation of his
criminal history category was harmless. See Williams v. United
States, 503 U.S. 201, 203 (1992) (making clear that erroneous
sentencing determinations not having an effect on the sentence are
harmless errors within the meaning of Fed. R. Crim. P. 52(a)).
Finally, Lebrón challenges the district court's rejection
of his motion for reimbursement of court-authorized expert witness
expenses in the amount of $388.80 advanced to a defense witness by
his trial counsel. The motion was brought under the Criminal
Justice Act, 18 U.S.C. § 3006A. The government, citing extra-
circuit authority, responds that we lack jurisdiction to review a
court's decision to reject a motion of this sort. Lebrón has not
replied to the government's jurisdictional argument.
We do not address the merits of this dispute. Lebrón's
notice of appeal neither specified the order rejecting his motion
for reimbursement nor manifested an intention to challenge it.
Accordingly, he may not now contest the propriety of that ruling.
E.g., Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999);
Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 395 (1st Cir.
1999); cf. Chamorro v. Puerto Rico Cars, Inc., 304 F.3d 1, 3-4 (1st
Cir. 2002) (permitting an appeal of a judgment even though the
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notice of appeal specified only the order denying reconsideration
of the judgment because the notice manifested appellant's intention
to challenge the underlying judgment). That said, the record
reflects that this dispute may be more a matter of miscommunication
than substantive disagreement about Lebrón's counsel's entitlement
to the amount she seeks. If so, we urge the responsible parties to
resolve this matter expeditiously.
III. Conclusion
For the reasons set forth above, we affirm the
convictions and sentences of José Ramón Caraballo-Gonzalez and
Victor Lebrón-Cepeda.
(Concurring opinion follows.)
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HOWARD, Circuit Judge, concurring. I join the panel's
per curiam opinion in its entirety but write separately to share
some additional thoughts about appellants' primary sufficiency
argument, see ante at 8-9, which raises what I perceive to be a
recurring issue. I first summarize my analysis of the issue and
then explain why I believe it warrants this separate opinion.
I.
Appellants argue that they did not violate the federal
carjacking statute, 18 U.S.C. § 2119, because they did not form an
intent to seriously harm or kill Fontánez (if they formed such an
intent at all) until after they and the separately tried Evans-
Garcia had initiated their crime. In presenting this argument,
appellants rely on statements in Holloway v. United States, 526
U.S. 1 (1999), suggesting that one accused of carjacking must have
had the statutorily prescribed mens rea at "the moment" he demanded
or took control of the driver's vehicle, id. at 12; see also id. at
6-7, 8 (using language to similar effect); see generally ante at 8-
10 (framing and then resolving this argument). In response, the
government cites Holloway's holding, that the mens rea requirement
of § 2119 is met if the defendant acted with a conditional intent
to seriously harm or kill the victim when he commandeered the
victim's vehicle. See id. at 12.
In so framing its response, the government does not
contest the premise of appellants' argument: that Holloway calls
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for an assessment of their mens rea at the inception of the
carjacking. But I do not accept appellants' premise. I do not
believe that Holloway should be read to limit the jury's focus to
the commencement of the carjacking in cases like this one which,
under settled circuit precedent, involve "tak[ings]" that occur
over some period of time, see Ramirez Burgos v. United States, 313
F.3d 23, 30 n.9 (1st Cir. 2002) (declining to specify "the temporal
limits of a carjacking under § 2119" but "reaffirm[ing] that the
commission of a carjacking continues at least while the carjacker
maintains control over the victim and her car"). I backtrack a bit
to explain.
As set forth ante at 8 n.2, the federal carjacking
statute states:
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 --
(1) be fined under this
title or imprisoned not more
than 15 years, or both,
(2) if serious bodily
injury [defined in a different
statute] results, be fined under
this title or imprisoned not
more than 25 years, or both, and
(3) if death results, be
fined under this title, or
imprisoned for any number of
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years up to life, or both, or
sentenced to death.
18 U.S.C. § 2119. The Supreme Court has held that the statute
describes three offenses with different statutory elements: (1) a
carjacking (or attempted carjacking) simpliciter, § 2119(1); (2) a
carjacking (or attempted carjacking) resulting in a serious bodily
injury, § 2119(2); and (3) a carjacking (or attempted carjacking)
resulting in a death, § 2119(3). See Jones v. United States, 526
U.S. 227, 232-52 (1999). The carjackings under review in Holloway
did not result in a serious bodily injury or a death, and thus were
the kind described in § 2119(1). See 526 U.S. at 4. The
carjacking underlying these appeals was, by contrast, the kind
described in § 2119(3).
Many of the attempted carjackings and carjackings
outlawed by § 2119(1) are entirely committed in the usually brief
and frequently instantaneous period of time that it takes to
initiate and complete the actus reus: the demand (in the case of
an attempted carjacking) or the taking (in the case of a successful
carjacking) of the subject vehicle. They are, in other words,
crimes in which the typical actus reus is aptly thought to occur at
a "moment" in time and not over a period of time. Certainly, the
carjackings at issue in Holloway were of this kind. See 526 U.S.
at 4. Thus, it is not surprising that the Holloway majority
opinion would use the phrase "the moment the defendant demanded or
took control over the driver's automobile" to describe the point in
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time at which the factfinder should assess the mens rea of
defendants who have committed this kind of carjacking. After all,
the defendant's mens rea is to be measured when he commits the
actus reus. See 18 U.S.C. § 2119 (stating that the proscribed
taking or attempted taking must be committed "with" the specified
intent); see also Holloway, 526 U.S. at 8 ("The statute's mens rea
component . . . modifies the act of 'tak[ing]' the motor vehicle.")
(alteration in original).
But I do not find anything in Holloway to suggest that
the majority in that case intended the phrase also to have
prescriptive significance in those carjacking cases where the
defendant kidnaps the vehicle's occupants and thus commits the
actus reus not in a "moment" but rather over an extended period of
time. See Ramirez-Burgos, 313 F.3d at 30 n.9 (citing United States
v. Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998));4 see also
United States v. Hicks, 103 F.3d 837, 843-44 & nn.4 & 5 (9th Cir.
1996) (similar); cf. Wayne R. LaFave, Criminal Law, § 8.5, at 817-
18 (West 2000) (discussing the doctrine of "continuing trespass"
within the law of larceny); Joshua Dressler, Understanding Criminal
Law, § 32.07[B] (2d ed. Matthew Bender 1995) (similar). The only
4
Vazquez-Rivera did not explicitly state that a carjacking
involving a kidnaping continues at least so long as the carjacker
maintains control over the victim and her car, but it implied as much
when it held that a serious bodily injury sustained by a carjacking
victim during a sexual assault that followed both the initial seizure
of her vehicle and her kidnaping "result[ed]" from the carjacking within
the meaning of 18 U.S.C. § 2119(2). See 135 F.3d at 178.
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question presented in Holloway, as described by that case's
majority, was "whether a person who points a gun at a driver,
having decided to pull the trigger if the driver does not comply
with a demand for the car keys, possesses the intent, at that
moment, to seriously harm the driver." 526 U.S. at 6. There was
no issue as to when the assailant's intent is properly measured
because only one possibility presented itself under the case facts:
the "moment" at which the vehicle was commandeered (which was the
moment at which the actus reus was concluded). Nor did the case
address matters pertaining to what we have called "the temporal
limits" of a carjacking. See Ramirez Burgos, 313 F.3d at 30 n.9.
Nor, finally, does the language of the carjacking statute suggest
that, in circumstances such as these, the defendant's mens rea must
be measured at the moment that the taking is initiated. Cf.
Vazquez Rivera, 135 F.3d at 178 ("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."). There is thus no reason to suppose that, in those cases
where the carjacking occurs over a period of time,
Holloway circumscribes the factfinder's entitlement to assess
appellants' mens rea at any point during the commission of the
actus reus.
Of course, this reading of Holloway does not render it
irrelevant to a case of this sort. Holloway clarifies that we may
-27-
sustain appellants' convictions if the jury rationally could have
found beyond a reasonable doubt, e.g., United States v. Marrero-
Ortíz, 160 F.3d 768, 772 (1st Cir. 1998), that appellants intended
(even conditionally) to seriously harm or kill at the moment they
first took control over the Hyundai, see 526 U.S. at 12. Indeed,
I think the most persuasive reason for affirming appellant
Caraballo's conviction is the "conditional intent" thesis we have
identified in our opinion: The evidence that Caraballo initiated
the carjacking by placing a loaded gun against Fontánez's head
permitted the jury to conclude that Caraballo would have shot
Fontánez had Fontánez failed to comply with Caraballo's demand that
he turn over the car. See ante at 9.
But my reading of Holloway also permits us to sustain
appellants' convictions if the jury rationally could have found
that, at some point in time, they engaged in conduct constituting
part of the actus reus proscribed by 18 U.S.C. § 2119 (or aided and
abetted each other or others in doing so) with the specified mens
rea, and if Fontánez's death resulted from their conduct. See §
2119(3). Cf. LaFave, supra, at 817-18 (explaining that, under the
continuing trespass doctrine, formation of the requisite mens rea
at any time during a continuing, blameworthy trespass is sufficient
to make the trespass a larceny because, at that moment, the taking
and the required intent coincide); Dressler, supra, § 32.07[B][2]
(same). This straightforward ground for affirming Lebrón's
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conviction doe not require asking whether the jury could have found
that he had a conditional intent to seriously harm or kill Fontánez
at the moment the carjackers demanded the car. In my view, we
could have affirmed Lebrón's conviction simply because he
intentionally shot Fontánez in the head at close range during the
actus reus, thus manifesting an intention to seriously harm or kill
him.
II.
Ordinarily, I would not write separately to point out a
different, and less settled, route to a result with which I concur
-- especially where the route that the panel opinion travels is
both entirely correct and based on established law. But there are
situations where the potential costs of leaving matters unresolved
exceed the costs that can be generated by attempting to resolve an
open question. See Cass R. Sunstein, Foreword: Leaving Things
Undecided, 110 Harv. L. Rev. 4, 15-20 (1995). I regard
interpretation of the carjacking statute's mens rea requirement as
such a situation, involving the possible inadvertent foreclosure of
an important issue.
Defendants charged with a carjacking involving a
kidnaping that results in serious bodily injury or death face
extremely stiff penal sanctions. See 18 U.S.C. § 2119(2), (3).
Unless and until we weigh in on whether Holloway has the meaning
appellants have attached to it, such defendants will have a strong
-29-
incentive to argue that the government has failed to prove beyond
a reasonable doubt that they had a conditional intent to harm or
kill -- an elusive concept that is, by its very nature, difficult
to prove -- at the moment they first commandeered the vehicle.
District courts will thus be left to make difficult decisions
whether to permit an argument of this sort, grant a Fed. R. Crim.
P. 29 motion on this basis, and/or instruct the jury without
authoritative circuit guidance.
If appellants' construction of Holloway is permitted to
carry the day, it is not difficult to imagine a scenario where a
carjacking defendant who has kidnaped and harmed (or killed) his
victim escapes punishment under 18 U.S.C. § 2119. Imagine a
carjacking in which the defendant approaches a woman as she is
getting into her vehicle in a crowded parking lot, points an
unloaded gun at her, tells her that he is going to commandeer her
vehicle but that she will be fine if she does as she is told,
drives her to some remote location, and sexually assaults her.
Suppose further that, at his trial for violating § 2119(2),
defendant truthfully testifies that he would have abandoned the
carjacking and run off had the victim resisted, and that he only
decided to assault her when the opportunity presented itself after
he had taken control of her vehicle. Under appellants' reading of
Holloway, an acquittal (not subject to appellate review) would be
mandated in such a situation, despite the fact that the statutory
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language of § 2119(2) easily supports a conviction (under what I
believe to be this circuit's definition of the statutory term
"takes a motor vehicle," see Ramirez Burgos, 313 F.3d at 30 n.9),
and the fact that, as I believe, Congress would intend the statute
to reach this set of facts.
It is a very small but logical step from Ramirez Burgos
to the construction of 18 U.S.C. § 2119(2) and (3) that I have
described. In my view, it is a step that we should take. Doing so
would help to ensure against erroneous acquittals, provide
clarification of the law, and facilitate guilty pleas by carjackers
who kidnap and then harm their victims and who otherwise might roll
the dice on trials designed to raise reasonable doubt as to whether
they had the conditional intent to harm their victims at the
instant they initiated their crimes.
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