United States v. Lugo Guerrero

United States Court of Appeals
For the First Circuit
____________________
No. 06-2745

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE R. LUGO GUERRERO,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
____________________

Before

Boudin, Chief Judge,
Lynch, Circuit Judge,
and Keenan, District Judge.*
____________________

Ludwig Ortiz Belaval for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, was on the
brief for appellee.

____________________

April 16, 2008
____________________

*
Of the Southern District of New York, sitting by designation.
 KEENAN, District Judge. Defendant-appellant Jose R. Lugo

Guerrero (“Lugo”) was convicted after a jury trial of aiding and

abetting an armed bank robbery and the use and carrying of firearms

in relation to that offense. On appeal, Lugo claims that his post-

arrest statements were obtained in violation of his Miranda rights,

that the evidence was insufficient for conviction, and that

evidence of his two prior bank robberies should have been excluded.

For the reasons that follow, we affirm his conviction.

Background

On February 11, 2005, Lugo and two co-defendants,

Alexander Guzman Del-Valle (“Guzman”) and Oscar Sosa-Delgado

(“Sosa”), were arrested while fleeing from the armed robbery of the

Banco Popular de Puerto Rico bank in Aguas Buenas, Puerto Rico

(“Banco Popular”), in possession of guns and the bank’s money. A

few hours after his arrest, Lugo confessed to the crime and to two

prior bank robberies. The three men were charged in a two-count

indictment with aiding and abetting the Banco Popular robbery and

endangering the lives of others by using a firearm, in violation of

18 U.S.C. §§ 2 and 2113(a), (d) (“Count One”); and aiding and

abetting the use and carrying of firearms in relation to that

offense, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii)

(“Count Two”). Co-defendants Guzman and Sosa pleaded guilty, and

Lugo went to trial.

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A. Pre-trial Proceedings

On June 13, 2005, Lugo filed a pre-trial motion to

suppress the incriminating statements that he made while in

custody. The district court rejected the motion as untimely under

a previously-issued scheduling order that required pre-trial

motions to be filed by March 28, 2005. Lugo then filed a motion

asking the court to reconsider its decision and entertain the

suppression motion, which the court denied.

Subsequently, the government gave notice that it intended

to present Lugo’s confession to the two prior bank robberies as

evidence at trial under Federal Rule of Evidence 404(b). Lugo

moved in limine to exclude this evidence. He argued that his

statements about these other robberies were obtained in violation

of his Miranda rights and that their admission at trial would

result in undue delay and unfair prejudice. The district court

referred the motion to a magistrate judge and an evidentiary

hearing was held.

Testimony at the hearing established the following facts.

About an hour after the Banco Popular robbery, Puerto Rico police

officers interviewed Lugo at the Caguas police station, where Lugo

was initially detained after his arrest. The interview lasted two

or three minutes. Lugo confirmed that he could read and write and

was not under the influence of drugs or alcohol. Officers read

Lugo his rights in Spanish from a police form and gave the form to

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him. Lugo reviewed the form and asked officers to explain it,

which they did. He then signed the upper portion of form, a

section titled Acknowledgment of Rights, confirming that he was

advised of his rights and understood them. He declined, however,

to make a statement to officers or sign the bottom portion of the

form, a section titled Waiver of Rights. At that point, Lugo was

asked no further questions and the interview concluded. According

to a police officer who testified at the hearing, Lugo did not ask

for an attorney at any point during the interview.

Later on, Lugo was transferred to federal offices in

Guaynabo because an FBI-Puerto Rico Police joint task force had

taken over the investigation. A little before 3:00 p.m., he was

brought to an interrogation room and interviewed by Luis Enrique

Sosa Rivera (“Agent Sosa”), a member of the task force. Agent Sosa

had not been present at Lugo’s initial interview. Lugo sat with

one arm handcuffed to his chair during the interview. He was

offered a meal, consumed chips and a soda, and was given permission

to use the restroom if needed.

Agent Sosa identified himself and the other agents in the

room to Lugo as law enforcement officials in charge of the

investigation. After determining that Lugo was in good health and

acting rationally, Agent Sosa read Lugo his rights in Spanish from

a police form. Lugo read the form, initialed each line, and told

the agents that he understood his rights. Lugo then signed the

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form after agents explained that, by doing so, he was agreeing to

waive his rights.

Agent Sosa then asked him what had happened earlier that

day. Lugo had tears in his eyes and appeared remorseful as he

spoke of failing his family. He confessed to robbing the Banco

Popular with his two co-defendants. Lugo then provided details

about his participation in two prior bank robberies that occurred

within the past fifteen months. Agent Sosa testified that Lugo was

twice advised of his right to an attorney, and that Lugo never

requested one or asked for the interview to stop.

The third and final witness at the evidentiary hearing

was Lugo. Lugo admitted that he had been advised of his rights

during both interviews and that he had fully understood those

rights. He contended, however, that he had asked for an attorney

during each interview and that, at the second interview, agents

responded that they were his attorneys. Lugo testified that he had

felt intimidated by one agent who kept demanding that he confess.

He also asserted that he confessed because agents had told him that

there was a lot of evidence against him and that, if he did not

confess, he would serve more time in prison.

After the hearing, the magistrate judge issued a written

report recommending that Lugo’s motion in limine be denied. The

magistrate judge rejected Lugo’s claim that his confession to the

two prior robberies was obtained in violation of his Miranda

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rights. In particular, she found that Lugo’s claim to have

requested an attorney was not credible. She also found that Lugo

was not pressured to confess but did so voluntarily out of remorse

for what he had done to his family and a realization of the

overwhelming evidence against him. The magistrate further

concluded that the evidence of the two prior bank robberies could

be admitted under Rule 404(b) and would not result in unfair

prejudice. Included at the end of the magistrate’s report was a

notice that the failure to file specific objections to the report

constituted a waiver of the right to review by the district court.

Lugo objected solely to the magistrate’s conclusion that

agents did not violate his Miranda rights in obtaining his

confession to the prior robberies. Lugo accepted “a substantial

portion of the Magistrate’s factual finding as correct,” but argued

that authorities were precluded from re-interviewing him because he

had invoked his rights to remain silent and to counsel during the

first interview. Lugo did not object to the magistrate’s findings

regarding the admissibility of the evidence under Rule 404(b).

The district court adopted the magistrate judge’s

recommendation in its entirety, including her finding that Lugo did

not request counsel at any time during either interview. The

district court supplemented the magistrate’s Miranda analysis with

a determination that, under Michigan v. Mosley, 423 U.S. 96, 102-03

(1975), Lugo’s right to remain silent was “scrupulously honored”

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even though the authorities resumed the interrogation after his

initial decision to remain silent. Turning to the Rule 404(b)

issue, the district court concurred with the magistrate’s

conclusion that Lugo’s confession to the two prior robberies

constituted admissible Rule 404(b) evidence and that its probative

value would not be substantially outweighed by its prejudicial

effect, and noted that Lugo had failed to object to this part of

the magistrate’s report.

B. The Trial

The trial commenced on March 1, 2006. Witnesses to the

bank robbery and law enforcement officers involved in the case

testified to the following. Around 10:00 a.m. on February 11,

2005, two men entered the Banco Popular, where seven bank employees

and seven or eight customers were present. One of the men, alleged

at trial to be Lugo, wore sunglasses and a cap and stood near the

bank’s front entrance. He displayed a pistol, announced that a

robbery was in progress, and ordered the people in the bank to lie

on the floor. The second man, later determined to be Sosa, jumped

over the counter and forced the bank teller, Rebecca Claudio

Arroyo, to lie down on the floor. The man emptied Claudio’s teller

drawer while holding a black backpack in his hand. After seizing

the cash, about $8,176 in total, the two perpetrators fled the bank

and jumped into a getaway car driven by a third man, who was

subsequently determined to be Guzman.

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 A Banco Popular videotape depicting the robbery, along

with stills from the videotape, were offered into evidence. In the

videotape, the man wearing sunglasses and a cap could be seen

standing by the entrance and holding a pistol. However, Lugo was

not identified from the tape at trial. In addition, the two bank

tellers who testified at trial did not identify Lugo as a

perpetrator.

The entire robbery lasted only a few minutes, but reports

of it left the bank even before the robbers did. Soon after the

man in a cap and sunglasses announced the holdup, one of the

tellers furtively answered a telephone call from a colleague at

another branch and informed him of what was unfolding. In

addition, when the man carrying the black backpack pulled the cash

from the drawer, he activated a tracking device hidden within a

stack of bills, which issued an alert signal to the alarm company.

A police officer on patrol in Agua Buenas overheard a

report of the holdup on his police radio and drove to the scene,

arriving within two to three minutes. A passer-by informed him

that the perpetrators had left in a small, burgundy-colored car

with license plate number CBD 938. This vehicle information was

relayed to the Caguas police command center. Police ascertained

that the license plate number was associated with a Nissan Sentra.

Minutes after this vehicle information was broadcast, motorcycle

police officers spotted the Nissan heading along Highway 156 toward

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Caguas, carrying three occupants. A highspeed chase ensued.

One of the officers caught up with the Nissan and ordered

it to pull over. He observed the person in the rear seat, who was

subsequently determined to be Sosa, point a pistol at him and

responded by firing several shots at the Nissan. At this point,

the driver, who was subsequently determined to be Guzman, pulled

the car over and brought it to a stop. Police approached the car

and arrested Guzman, Sosa, and Lugo, who had been seated in the

front passenger seat. Police searched Lugo as he lay on the ground

outside of the vehicle and recovered from his right pocket a

magazine clip that contained twelve .40 caliber rounds.

After the arrests were made, a police technician from the

Bank Robbery Division arrived at the scene and searched the Nissan.

The technician seized evidence relevant to the bank robbery,

including loaded Glock .40 caliber and Taurus .45 caliber pistols;

sunglasses and baseball caps; and the black backpack containing

$8,176 in bills that were bound together and marked with a stamp

identifying Banco Popular and the teller, Ms. Claudio. One of the

two firearms, six .40 caliber rounds, sunglasses and the black

backpack containing the cash were on the floor of the front

passenger seat, where Lugo had been sitting.

At trial, the jury also learned, through Agent Sosa’s

testimony, that Lugo confessed to the crime on the day of his

arrest. Agent Sosa described how Lugo confessed to meeting Sosa

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and Guzman on the morning in question and that, as planned, Guzman

brought the firearms. Once gathered, the three entered a burgundy-

colored Nissan Sentra owned by Lugo’s brother. They headed toward

Caguas, looking for a place to carry out the robbery. They then

headed in the direction of Aguas Buenas. Upon reaching the Aguas

Buenas town plaza, they spotted the Banco Popular and decided to

rob it. Guzman parked the car and Lugo and Sosa entered the bank.

Armed with a pistol, Lugo, who was in charge of the floor area

where the customers were, announced the robbery. After Sosa

grabbed the money, the two left the bank, got in the Nissan, and

drove off in the direction of Caguas, with Guzman at the wheel,

Sosa in the rear seat, and Lugo in the front passenger seat. Agent

Sosa also testified, over defense objection, that Lugo confessed to

previously committing the two other bank robberies.

After the government rested, and again after the defense

rested, Lugo made Rule 29 motions for acquittal as to Count Two but

not as to Count One. These motions were denied, and the jury found

Lugo guilty on both counts.

On appeal, Lugo argues that (i) his confession to the

Banco Popular robbery was obtained in violation of his Miranda

rights; (ii) the evidence established only his presence in the

vehicle and was insufficient to prove that he aided and abetted the

charged offenses; and (iii) the evidence of his confession to the

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two other robberies should have been excluded under Federal Rules

of Evidence 404(b) and 403.

Discussion

A. The Miranda Claim

Lugo has waived his Miranda claim because he moved to

suppress his confession to the Banco Popular robbery more than two-

and-a half months after the deadline for pre-trial motions imposed

by the district court’s scheduling order. When a district court

sets a deadline for pre-trial motions pursuant to Federal Rule of

Criminal Procedure 12(c), a party’s failure to make certain

motions, including suppression motions, by that deadline

constitutes a waiver, although the court may grant relief from the

waiver for good cause. Fed. R. Crim. P. 12(e). In this case, the

district court rejected the suppression motion as untimely. It

also denied Lugo’s request for re-consideration, refusing to grant

relief from the waiver. Moreover, Lugo has not argued on appeal

that good cause existed to justify relief. That the district court

later considered Lugo’s Miranda argument in the context of his

motion in limine to preclude the Rule 404(b) evidence of his prior

robberies is beside the point. We enforce Rule 12(e) waivers

where, as here, the appellant fails to show cause for not complying

with the district court’s deadlines. See United States v. Bashorun,

225 F.3d 9, 14 (1st Cir. 2000) (stating that a Rule 12 waiver will

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be enforced absent a showing of cause even if the district court

ultimately addressed the merits of the waived claim).

Assuming that we may review the claim for plain error

despite the Rule 12(e) waiver, see United States v. Perez-Gonzalez,

445 F.3d 39, 44 (1st Cir. 2006) (noting that this remains an open

question in this circuit), it is clear from the record that no

Miranda violation occurred. The district court found that Lugo

did not ask for an attorney during either interview.1 Therefore,

FBI task force agents were not “automatically forbidden” from later

resuming the interrogation just because Lugo had earlier declined

to make a statement to Puerto Rico police. United States v.

Andrade, 135 F.3d 104, 107 (1st Cir. 1998). The question then

becomes whether Lugo’s right to cut off questioning, invoked by his

decision to remain silent during the first interview, was

“scrupulously honored” notwithstanding the fact that he was later

re-interviewed. See Michigan v. Mosely, 423 U.S. 96, 103 (1975).

The Supreme Court in Mosely identified four factors relevant to

this analysis: (1) whether a significant amount of time lapsed

between the suspect’s invocation of the right to remain silent and

further questioning; (2) whether the same officer conducts the

interrogation where the suspect invokes the right and the

subsequent interrogation; (3) whether the suspect is given a fresh

1
We accept the district court’s factual findings, which Lugo has
not challenged on appeal, because they are free from clear error.
See United States v. Marshall, 348 F.3d 281, 284 (1st Cir. 2003).

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set of Miranda warnings before the subsequent interrogation; and

(4) whether the subsequent interrogation concerns the same crime as

the interrogation previously cut off by the suspect. See id. at

104-06. Courts must look to the totality of the circumstances, and

“[t]he key inquiry remains whether defendant ‘was in charge of the

decision whether and to whom he would speak.’” United States v.

Thongsophaporn, 503 F.3d 51, 57 (1st Cir. 2007) (quoting Andrade,

135 F.3d at 107).

We agree with the district court’s conclusion that Lugo’s

right to cut off questioning was scrupulously honored. Before the

first interview, which lasted two or three minutes, Lugo was read

his rights and acknowledged, both orally and in writing, that he

understood them. When he declined to sign a waiver of those rights

or to make a statement, Puerto Rico police officers asked him no

further questions and the interview immediately ended.

The second interview began nearly four hours later at

another location after Lugo was transferred to FBI custody. See

Mosely, 423 U.S. at 106 (finding two hours to be a “significant”

time lapse). Lugo was treated well at all times, and at no point

did he ask for the interview to stop. Agent Sosa, who was not

present at the first interview, began the interview by issuing a

fresh set of Miranda warnings from a printed form. Lugo reviewed

this form and placed his initials next to each line, indicating

once again that he understood his rights. Lugo then signed the

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form, knowingly and voluntarily waiving his rights and reversing

his initial decision to remain silent. Although this second

interrogation concerned the same crime as the first, it is clear

that Lugo was in control of the decision to provide a statement.

Agent Sosa did not aggressively question Lugo about the Banco

Popular robbery or make any “efforts to wear down his resistance

and make him change his mind.” United States v. Barone, 968 F.2d

1378, 1386 (1st Cir. 1992) (quoting Mosley, 423 U.S. at 105-06).

Agent Sosa simply asked Lugo what happened earlier that day. Lugo

expressed remorse and, without any inappropriate pressure or

promises from agents, confessed to the robbery. Under these

circumstances, Lugo has not come close to showing that the

admission of his post-arrest statements constituted plain error.

B. The Insufficiency Claim

Lugo also claims that the evidence against him was

insufficient. He contends that the evidence showed only that he

was caught “at the wrong place at the wrong time”— an unlucky

passenger in a car with individuals who, minutes ago, happened to

rob a bank. Appellant’s Br. at 19. Lugo also points to the absence

of any eyewitness identification of him.

The evidence is sufficient if a rational trier of fact

could conclude that Lugo aided and abetted the armed robbery (Count

One) and the use and carrying of a firearm in relation to that

crime (Count Two). To prove aiding and abetting, the government

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had to show that Lugo associated himself with the venture, that he

participated in it as something that he wished to bring about, and

that he sought by his actions to make the venture succeed. Nye &

Nissen v. United States, 336 U.S. 613, 619 (1949). In reviewing a

sufficiency challenge, we look at the evidence in a light most

favorable to the prosecution and draw all inferences in favor of

the verdict. See, e.g., United States v. Maraj, 947 F.2d 520, 523

(1st Cir. 1991). The prosecution is entitled to rely, even

exclusively, on circumstantial evidence to prove its case, and the

proof “‘need not exclude every reasonable hypothesis of innocence,

provided the record as a whole supports a conclusion of guilt

beyond a reasonable doubt.’” Id. (quoting United States v.

Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir. 1990). In addition,

because Lugo’s Rule 29 motion before the district court challenged

the sufficiency of the evidence only as to Count Two, we review his

challenge on appeal as to Count One merely for “clear and gross

injustice.” See, e.g., United States v. Cruzado-Laureano, 404 F.3d

470, 480 (1st Cir. 2005).

The evidence was more than sufficient for the jury to

find Lugo guilty of both offenses charged. Lugo and his two co-

defendants were apprehended in the getaway vehicle identified at

the scene, after a police chase that commenced within mere minutes

of the robbery. When arrested, the three were in possession of the

bank’s money, along with guns, sunglasses, caps and a black

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backpack full of cash—all matching the descriptions provided by

eyewitnesses at trial. One of the two firearms, ammunition,

sunglasses and the black backpack laid at Lugo’s feet and a clip of

ammunition was in his pocket. This was powerful evidence from

which the jury rationally could infer Lugo’s participation in the

armed robbery, even if such evidence did not exclude the

possibility that Lugo was “merely present” in the car. “[T]he

government need not disprove every hypothesis of innocence.” United

States v. Escobar-de Jesús, 187 F.3d 148, 172 (1st Cir. 1999).

The evidence of Lugo’s confession was the second pillar

of the government’s case and further supported the verdict. Lugo’s

confessed version of events—that he stood near the bank’s front

area with a pistol in hand and announced the robbery while co-

defendant Sosa grabbed the money—was corroborated by the eyewitness

testimony and bank surveillance video presented at trial. Lugo

argues that we should discount his confession because Agent Sosa’s

testimony about it was not reliable. This credibility issue was a

matter for cross-examination, see United States v. Lebron Cepeda,

324 F.3d 52, 58 (1st Cir. 2003), and on sufficiency review we must

assume that the jury resolved it in the government’s favor. United

States v. Edelkind, 467 F.3d 791, 793 (1st Cir. 2006). Overall,

the evidence of Lugo’s participation in the armed robbery,

consisting of very strong circumstantial evidence and a valid

confession, was more than sufficient for the jury reasonably to

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find him guilty of both counts.

C. The Evidence of Other Bank Robberies

Finally, Lugo claims that evidence of his participation

in two prior bank robberies was not introduced for any permissible

purpose under Rule 404(b). Further, he contends that the prior

robberies were too remote in time to be probative and that the

admission of this evidence was unfairly prejudicial, especially

because the trial court issued no limiting instruction.

Lugo has waived his right to raise this issue on appeal

because he failed to object to the recommendation of the

magistrate’s report relating to the admissibility of the Rule

404(b) evidence. See United States v. Valencia-Copete, 792 F.2d 4,

6 (1st Cir. 1986) (after proper notice, failure to file a specific

objection to magistrate’s report will waive the right to appeal).

The magistrate’s report contained a warning that failure to make

specific objections would result in waiver. Lugo objected only to

the portion of the report dealing with his Miranda claim. Although

Lugo did make a contemporaneous objection to the evidence of his

confession to the prior robberies at trial, this later objection

was untimely.

In any event, Lugo’s arguments are without merit. Review

of a trial court’s admission of evidence under Rule 404(b), or Rule

403, is for abuse of discretion. United States v. Gilbert, 181

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F.3d 152 (1st Cir. 1999). Rule 404(b) excludes evidence of “other

acts” when it is offered merely to prove the defendant’s character.

However, such evidence may be admitted if it has special relevance

to an issue in the case such as “preparation, plan, knowledge,

identity, or absence of mistake or accident.” Fed. R. Evid. 404(b).

Even if evidence of other acts is admissible under Rule 404(b), it

must be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice. See Fed. R. Evid. 403.

The trial court correctly admitted the evidence of Lugo’s

two prior robberies under Rule 404(b). The robberies were

especially relevant to prove that, contrary to Lugo’s defense

theory, he was not innocently present in the getaway car with two

bank robbers, caught in the wrong place at the wrong time, but that

he was in fact one of the participants in the robbery. That Lugo

committed two prior armed bank robberies makes it unlikely that his

presence in the vehicle was a mere coincidence. See United States

v. Tse, 375 F.3d 148, 155-56 (1st Cir. 2004) (evidence of

subsequent drug transaction between defendant and government

witness was admissible to refute defendant’s claim that his meeting

with the government witness at the charged drug transaction was

innocent).

We also find no abuse of discretion in the district

court’s Rule 403 balancing. The prior bank robberies were not that

distant in time: they occurred within fifteen months of the Banco

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Popular robbery. Also, Lugo can point to no unfair prejudice in

this case. The evidence of past bank robberies was not likely to

inflame the passions of the jurors. Further, given Lugo’s

confession to the charged robbery, there is little concern that the

jury might have convicted on the basis of his confession to

uncharged robberies. Finally, Lugo may not complain about the

absence of a limiting instruction because he never requested one.

See Huddleston v. United States, 485 U.S. 681, 691-92 (1988)

(noting that Federal Rule of Evidence 105 provides protection from

unfair prejudice by requiring the trial court, upon request, to

instruct the jury that the evidence of other acts is to be

considered only for the proper purpose for which it was admitted).

The trial court did not err by failing to issue, sua sponte, the

limiting instruction that Lugo now claims was essential. See

United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir.

1995) (refusing to impose obligation on court to give, sua sponte,

a limiting instruction because this decision is “within the ken of

counsel and part of litigation strategy and judgment”).

In sum, the admission of the evidence of other robberies

was not an abuse of discretion.

Conclusion

For the foregoing reasons, Defendant-Appellant Lugo’s

conviction is affirmed.

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