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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