United States v. Rodriguez-Berrios

United States Court of Appeals
For the First Circuit

No. 07-1854

UNITED STATES OF AMERICA,

Appellee,

v.

EDDIE S. RODRÍGUEZ-BERRÍOS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.

G. Richard Strafer for appellant.
Vijay Shanker, Attorney, United States Department of Justice,
with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.

July 23, 2009
 LIPEZ, Circuit Judge. After a jury trial, appellant

Eddie Samir Rodríguez-Berríos was found guilty of committing a

carjacking that resulted in the death of his ex-wife. He now

challenges that conviction, arguing that the evidence against him

was insufficient to support the jury's verdict that he had the

requisite intent to commit a carjacking. He also claims that the

trial judge made several erroneous evidentiary rulings, erred in

excluding the testimony of a proffered expert witness on the flaws

in eyewitness identification, and erred in denying his motion for

a mistrial after a government agent referred in his testimony to a

polygraph examination that appellant had been summoned to take.

For the reasons set forth below, we affirm the conviction.

I.

Appellant was a police officer for the Commonwealth of

Puerto Rico in Guayama. In 1995, he married the victim, Yesenia

Ortiz-Acosta ("Ortiz"). They had one daughter together and were

then divorced in February 1999. Ortiz disappeared approximately

two months later, on April 15th, 1999, while driving her car in

Guayama. About two weeks after her disappearance, her burned-out

car was found in an area where smoke had been seen on the night she

had disappeared. The car had been intentionally burned with an

accelerant, such as gasoline, and the victim's body was never

found. Appellant quickly became a suspect in the investigation of

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his ex-wife's disappearance. During the following month, he made

several incriminating admissions linking him to her murder.

On April 14, 2004, a grand jury indicted appellant and

two co-defendants for conspiracy to commit a carjacking (count

one), carjacking resulting in death (count two), and using fire to

commit the felonies of conspiracy and carjacking (count three).

The government later dismissed all charges against the two co-

defendants and counts one and three against appellant. Appellant

then faced one charge for committing a carjacking resulting in

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

The jury trial began on September 7, 2006. During its

case-in-chief, the government sought to describe a pattern of abuse

and stalking of the victim by appellant in the months leading up to

the victim's disappearance. Often over appellant's objections,

several prosecution witnesses recounted their own observations of

his abuse, stalking, and threats as well as statements made by the

victim describing the same.

In his defense, appellant presented alibi witnesses,

including his brother, who claimed that he spent the early evening

of April 15th fishing with appellant. Appellant's ex-girlfriend

then testified that she went to get ice cream with him when he

returned from fishing. Appellant also testified, denying

involvement in the victim's death and denying making the

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incriminating statements. He also denied several of the incidents

of abuse and stalking described by prosecution witnesses.

At the close of evidence, appellant moved for a judgment

of acquittal pursuant to Rule 29 of the Federal Rules of Criminal

Procedure. The court denied the motion. On September 13, 2006,

the jury found appellant guilty of carjacking resulting in death.

The district court sentenced him to life imprisonment followed by

five years of supervised release.1 This appeal followed.

II.

Although appellant challenges the sufficiency of the

evidence supporting the intent element of the carjacking

conviction, he also claims that the district court erred in the

admission of certain evidence. Because our resolution of those

evidentiary challenges affects the body of evidence we may consider

in assessing the sufficiency of the evidence, we will assess the

evidentiary challenges first. See United States v. Avilés-Colón,

536 F.3d 1, 13 (1st Cir. 2008). We review a trial court's decision

1
Although appellant's life sentence means that he will never
serve the term of supervised release, the Sentencing Guidelines
instruct courts to impose a term of supervised release whenever
imposing a sentence of imprisonment of one year or more. U.S.S.G.
§ 5D1.1. For Class A felonies, the sentence should be least three
years but not more than five years. U.S.S.G. § 5D1.2. Terms of
supervised release following life sentences are, therefore, not
uncommon. See, e.g., United States v. Mitchell, No. 08-10027, 2009
WL 1758746 at *1 (9th Cir. June 23, 2009); United States v. Reyes-
Echevarria, 345 F.3d 1, 2 (1st Cir. 2003); United States v. Nelson-
Rodriguez, 319 F.3d 12, 27 (1st Cir. 2003).

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to admit or exclude evidence for abuse of discretion. United

States v. Gilbert, 181 F.3d 152, 160 (1st Cir. 1999).

A. Hearsay Challenges

1. The Statements

Appellant contends that Rosa Ramos-Rodríguez ("Ramos"),

a coworker and friend of the victim, was improperly allowed to

testify about hearsay statements made by the victim. Hearsay is "a

statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the

matter asserted." Fed. R. Evid. 801(c). Under the Federal Rules

of Evidence, hearsay statements may not be admitted unless they

fall within an exception or exclusion to the hearsay rules. Fed.

R. Evid. 802.

Appellant challenges Ramos's testimony that the victim

told her that bruises on her arm were caused by appellant and that

"she was afraid, afraid of him," and that she observed appellant

pass the victim in a hallway and nudge her with his elbow, a

seemingly minor incident that nonetheless caused the victim to

become upset and to "los[e] control." Over defendant's hearsay

objections, the court ruled that this evidence was admissible under

Rule 803(2), which excepts excited utterances, or Rule 803(3),

which excepts statements about "then existing mental, emotional, or

physical condition[s]" (also known as the state of mind exception).

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 The government correctly concedes that the victim's

statements to Ramos about past abuse by appellant were neither

excited utterances nor admissible expressions of the victim's state

of mind. Excited utterances are statements related to a startling

event made while the declarant is "under the stress of excitement

caused by the event or condition." Fed. R. Evid. 803(2). There is

no evidence of a startling event occurring anytime near the

victim's identification of her bruises or her statement that she

feared appellant. We also agree that the statement identifying the

cause of the victim's bruises was not admissible as a statement of

"then existing mental, emotional, or physical condition," Fed. R.

Evid. 803(3). As for her statement that she was afraid of

appellant, while it did describe an emotional condition, the

government acknowledges that Ortiz's state of mind was not relevant

to any issue in this case.2

The defendant also attacks statements recounted by the

victim's mother, Maria Cristina Acosta-Sanchez. In particular,

appellant claims that the district court erred by admitting

Acosta's testimony that, after being "confronted with her

adultery,"3 the victim accused appellant of following her

2
However, appellant is mistaken that Ramos's testimony that
the victim lost control and started crying after appellant elbowed
her in the hallway was a hearsay statement. There is no statement
involved in this testimony.
3
We note that appellant's brief, in making this argument,
mischaracterizes Acosta's testimony. Acosta did not say that the

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everywhere and said that she could not "have lunch in peace"

because of his stalking. Appellant also claims that Acosta was

erroneously allowed to testify that the victim called the defendant

"an abuser" and said that he "would drop the baby at her from far

away, that she was afraid the baby might drop." The government

concedes that these hearsay statements were not admissible under

the state of mind or excited utterance exceptions. We agree.4

2. The Protective Order

Appellant also challenges the district court's admission

of evidence that the victim obtained a protective order against him

in February 1999. He argues that the admission of evidence of the

victim made these accusations after being "confronted with her
adultery." Rather, Acosta said that the victim made the
allegations after being told that the defendant had surreptitiously
recorded her in her car.
4
Appellant also challenges the admission of the hearsay
statements on the ground that their admission violated his rights
under the Sixth Amendment's Confrontation Clause. Appellant
concedes that the hearsay statements admitted through the testimony
of Ramos and Acosta were not "testimonial" for purposes of the
Confrontation Clause analysis set forth by the Supreme Court in
Crawford v. Washington, 541 U.S. 36, 68 (2004). Nonetheless, he
argues that we should apply the older rule of Ohio v. Roberts, 448
U.S. 56 (1980), to the non-testimonial hearsay and find it to be in
violation of the Confrontation Clause because it was not introduced
through a "firmly rooted" hearsay exception and did not bear
"particularized guarantees of trustworthiness." Ohio v. Roberts,
448 U.S. at 66 . However, post-Crawford, the Supreme Court held in
Davis v. Washington, 547 U.S. 813, 823-24 (2004), "that the
Confrontation Clause applies only to testimonial hearsay." United
States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007). We therefore
reject appellant's argument that the non-testimonial hearsay
admitted through Acosta and Ramos violated his rights under the
Confrontation Clause.

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protective order constructively amounted to admission of indirect

testimonial hearsay in the form of the statements of the victim

required to obtain the protective order, even though no such

underlying statements were actually admitted into evidence. As

such, according to appellant, the evidence about the protective

order violated his rights under the Confrontation Clause.

We do not reach the merits of appellant's novel hearsay

argument because we find that appellant has waived the right to

make this argument on appeal. United States v. Rodriguez, 311 F.3d

435, 437 (1st Cir. 2002) ("A party waives a right when he

intentionally relinquishes or abandons it . . . . [A] waived issue

ordinarily cannot be resurrected on appeal."). Evidence about the

existence of the protective order was first admitted during the

direct examination of the victim's mother, Acosta, when the

government inquired about the protective order. The defendant made

no objection to her testimony about the order, which included the

following interchange:

Acosta: Yesenia said that she would obtain a
court protective order. And I would tell her,
no, not to do it, because I got scared,
because -- I was scared, and I thought that
would make him even angrier, and that he could
hurt her or worse.

Prosecutor: Do you know if Yesenia, in fact,
requested a protective order?

Acosta: Yes. She went and she filed it anyway.

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 Prosecutor: After that day, what
conversations, if any, did you have with the
defendant concerning the protective order?

Acosta: He went home and told me Yesenia had
obtained a court protective order. And he
told me he knew what he would do before they
disarmed him.

During cross-examination of Acosta, appellant's counsel asked

questions about the protective order.5 Later, however, appellant

objected when the government sought to enter the actual protective

order into evidence or, alternatively, to have the court take

judicial notice of the dates the order was issued and later

dismissed at the victim's request. The government stated that the

purpose of entering one of these two pieces of evidence was only

"to establish the date it was filed and later retracted."

Appellant then argued for the first time that "the order itself

picks up on her statements. The statements are testimonial for

Crawford purposes."

In response to appellant's objection, the court suggested

taking judicial notice that, "She requested, and a Protective Order

was issued February 4, and she requested that it be dropped, and it

5
Counsel for appellant pursued a line of questioning about
the timing of the protective order, suggesting that Ortiz had
obtained the order only after her family learned that she was
having an affair with another man. Appellant apparently sought to
minimize the effect of the protective order by suggesting that the
victim accused appellant of domestic violence and filed the
protective order as a means to excuse her extra-marital affair.
After a few questions on the matter, the district court sustained
the government's objection to this line of questioning.

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was dropped on the 9th." The Court pointed out, accurately, that

there was already evidence about the existence of a protective

order in the record. The following interchange occurred:

The Court: Counsel, you have all the testimony
in the record; that he didn't know she had
requested a Protective Order, and when he
found out, he got all upset. Come on, let's
don't -- and there's testimony here that she
requested the Protective Order.

Counsel for Appellant: I know it is true.

The Court: There's testimony here that she
requested the Protective Order and that the
father insisted, and she withdrew it after the
father insisted. What's all the fuss? I don't
understand it.

Counsel for Appellant: So what would the Court
state to the jury?

The Court: The Court will not state anything.6
Do you have any objection that I take judicial
notice of the Protective Order, which is what
is before the Court?

Counsel for Appellant: Judicial notice as to
the dates only, not as to the contents.

The Court: Of course

Counsel for Appellant: Okay.

[....]

The Court: Do you have any objection that I
take judicial notice of it?

6
"In a criminal case, the court shall instruct the jury that
it may, but is not required to, accept as conclusive any fact
judicially noticed." Fed. R. Evid. 201(g). It is therefore not
clear why the judge stated that he would "not state anything" about
the judicially-noticed fact to the jury.

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 Counsel: I don't, Your Honor.

The Court: Let's do it that way then.7

While appellant's initial failure to object to the

introduction of testimony about the existence of a protective order

may have led only to forfeiture of his objection, allowing us to

review the challenge for plain error, Rodriguez, 311 F.3d at 437;

United States v. Olano, 507 U.S. 725, 733 (1993), the subsequent

compromise about judicial notice of the protective order indicates

a conscious relinquishment of his objection that amounted to waiver

of the right to object to the substance of the compromise. "A

party who identifies an issue, and then explicitly withdraws it,

has waived the issue." Rodriguez, 311 F.3d at 437. We therefore

do not reach appellant's claims that the protective order relied on

hearsay statements and that in so doing it violated his rights

under the Confrontation Clause. The order may be considered as

part of the body of evidence underlying appellant's conviction.

B. Rule 404(b) Challenge

Appellant also argues that the district court committed

error under Federal Rule of Evidence 404(b) in admitting evidence

about his prior abuse and stalking of the victim. Appellant moved

in limine for a determination of the admissibility of this evidence

7
In the end, however, the judge's silence on the significance
of judicial notice did not matter. The evidence of the dates of
the protective order resulting from the court's "judicial notice"
was never given to the jury.

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before trial. Acknowledging the necessity of "balancing the

prejudicial effect of the evidence against the probative value of

the prior conduct or bad acts," the district court determined that

it was better to reserve its ruling on the motion, declaring that

"[t]he Court will consider Rodríguez-Berríos'[s] objections to the

government's 404(b) evidence if and when they arise during trial."

As it turned out, that opportunity never arose because appellant

never again raised his objections. We therefore review his claims

for plain error.

The Federal Rules of Evidence prohibit the introduction

of evidence of a person's prior acts "in order to show action in

conformity therewith." Fed. R. Evid. 404(b). Therefore, evidence

of prior acts may not be used for the sole purpose of proving that

a defendant had a propensity to commit a crime. United States v.

Jimenez, 507 F.3d 13, 17 (1st Cir. 2007). Such "prior act"

evidence is admissible, however, for other relevant purposes, such

as to prove motive, intent, preparation, or plan. Fed. R. Evid.

404(b).

We have previously adopted a two-part test for evaluating

the admissibility of evidence challenged under Rule 404(b). See

United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir.

1995). First, a court must determine whether the proffered

evidence has "special relevance" -- in other words, whether it is

relevant to any purpose other than to prove that a defendant has a

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propensity to commit a crime. Id. If the court finds a special

relevance for the evidence, it must then evaluate it under Federal

Rule of Evidence 403 to determine whether the probative value of

the evidence is substantially outweighed by its danger of unfair

prejudice. Id.

We first note that appellant's brief does not make clear

which items of evidence he claims were erroneously admitted in

violation of Rule 404(b). Nonetheless, even giving him the benefit

of the doubt by assuming that he objects on Rule 404(b) grounds to

all of the evidence of his stalking and abuse of the victim, we

find no plain error. In pretrial motions, the government set forth

how it planned to use the evidence. Citing supporting case law

from other circuits, it claimed that the evidence was not excluded

by Rule 404(b) because it was "inextricably intertwined" with the

crime charged and was necessary to provide coherence to its case.

That rationale was apt.

As we note in our sufficiency of the evidence discussion,

see infra part III, the government has the particular burden in

carjacking cases to prove that a defendant acted with intent to

cause death or serious bodily harm to the victim at the moment of

the carjacking. See 18 U.S.C. § 2119. This is true here despite

appellant's argument that his principle defense “was that Colon

misidentified him as the man she saw struggling with Yesenia and

that he was elsewhere at the time of her disappearance –- not that

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he did the acts alleged but did them with innocent intent.” See

United States v. Lynn, 856 F.2d 430, 436 n.15 (1st Cir. 1988)

("This circuit has maintained that intent is in issue when it is an

element of the crime charged, regardless of the defense

presented.").

The evidence of appellant's intentional physical harm of

the victim in the past had "special relevance," Aguilar-Aranceta,

58 F.3d at 798, because it was probative of his intent to cause her

harm at the time he seized her car. As we note in discussing other

issues in this case, appellant was seen inside the victim's car,

striking her, immediately before her disappearance. Although this

evidence alone might arguably suffice to establish the defendant's

intent to cause the death of the victim at the time of the

carjacking, we see no reason why the government should have been

precluded from introducing some evidence of the defendant's prior

abuse of the victim for the purpose of further illuminating his

intent to cause her death or serious bodily harm at the time of the

carjacking. Indeed, at closing argument, the defendant argued to

the jury that the government had not proven the elements of the

crime, including the intent element, and appellant now challenges

on appeal the sufficiency of the evidence on the intent element

specifically.

Furthermore, the evidence of appellant's stalking had

special relevance because it demonstrated appellant's motive to

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commit the crime -- his intense jealousy. Given appellant's claim

that he was innocent of causing the victim's disappearance and

death, the government was entitled to establish that motive to

commit the crime. Evidence of appellant's stalking revealed that

he was obsessed with the victim's whereabouts and activities. At

one point, he placed a tape recorder in her car without her

knowledge. Listening to her private conversations, he became

convinced she was having an affair. According to the government's

theory, the jealousy aroused by that knowledge led appellant to

kill the victim. Indeed, he had previously stated to one of her

friends that he was capable of killing her if he believed she were

with another man.

Finally, the government used the evidence of stalking to

argue that appellant was able to intercept the victim's car on a

deserted road on April 15, 1999, because his constant surveillance

allowed him to easily locate her. Therefore, the evidence of

stalking also had the special relevance of demonstrating

appellant's means to commit the crime.

Given the special relevance of appellant's physical abuse

of the victim to his intent to cause her serious bodily harm or

death at the time of the carjacking, and given the special

relevance of the stalking to the appellant's motive and means to

commit the crime, there was no error in the admission of the prior

act evidence. Moreover, even if there was such an error, we must

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remember that we are dealing here with a claim of plain error,

which requires us to find both prejudice and serious impairment of

"the fairness, integrity, or public reputation of the judicial

proceedings" to warrant reversal. United States v. Ziskind, 491

F.3d 10, 14 (1st Cir. 2007). In that regard, we note all of the

evidence relating to appellant's threats to do physical harm to the

victim, which included: his statement to the victim's friend that

he was capable of killing the victim if he believed she was with

another man, his statement to the victim that "I am macho, and you

have to respect me," made while choking the victim and overheard by

her mother, and his statement to her mother that "I know what I

will do before they disarm me," made upon learning about the

protective order. In our view, those threats are not evidence of

prior bad acts. They are more appropriately viewed as admissions

by the defendant that he intended to do harm to the victim. In

light of this evidence, we are confident that there was no plain

error in the admission of evidence of prior abuse and stalking.

III.

Having determined which of the challenged evidence may be

considered in evaluating appellant's sufficiency of the evidence

challenge, we now reach the merits of that challenge. In so doing,

we will ignore the statements we have deemed to have been

erroneously admitted.

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 Appellant claims that the district court erred in denying

his Rule 29 motion for judgment of acquittal and claims that the

evidence was insufficient to support his conviction. "[C]hallenges

to the sufficiency of the evidence and to the denial of a the

motion for judgment[] of acquittal raise a single issue," United

States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998) (quotation marks

and citation omitted), which we review de novo. United States v.

Thompson, 449 F.3d 267, 275 (1st Cir. 2006). We inquire whether,

taking the evidence in the light most favorable to the jury

verdict, a reasonable factfinder could have found the defendant

guilty beyond a reasonable doubt. Thompson, 449 F.3d at 275. In

other words, this court "must only satisfy itself that the guilty

verdict finds support in a plausible rendition of the record."

United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) (quotation

marks and citation omitted). A sufficiency claim therefore

presents "daunting hurdles" for a defendant to overcome. Id.

(quotation marks and citation omitted).

Appellant claims that his conviction must be overturned

because the government failed to prove that he acted with intent to

cause death or serious bodily harm to the victim at the moment of

the carjacking. The carjacking statute under which he was

convicted, 18 U.S.C. § 2119, reads:

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

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 person or presence of another by force and
violence or by intimidation, or attempts to do
so, shall . . . (3) if death results, be fined
under this title or imprisoned for any number
of years up to life, or both, or sentenced to
death.

We said in United States v. García-Álvarez, 541 F.3d 8, 16 (1st

Cir. 2008), that "the element of intent must be established at the

time the defendant takes control of the motor vehicle." The judge

instructed the jury to apply the standard of García-Álvarez,8

telling them to find appellant guilty only if the government met

its burden to prove, inter alia, that "the defendant intended to

cause the death of Yesenia when he took the motor vehicle." Given

this instruction, the question for us is whether the evidence

8
The court's instruction on the elements of the charged crime
was:

Now in order for the defendant to be found guilty of that
offense, which I just read to you, the government has to
prove each of the following elements beyond a reasonable
doubt:

First, that the defendant took a motor vehicle from the
person of Yesenia. Second, that the defendant did so by
force and violence. Third, that the motor vehicle
previously had been transported, shipped, or received in
interstate commerce. [Fourth,] [t]hat the defendant
intended to cause the death of Yesenia when he took the
motor vehicle. And last, that as a result -- that death
resulted from the commission of the offense.

In closing argument, the government argued to the jury that it
should find the defendant guilty if it found, inter alia, that "the
defendant had the intent to murder Yesenia when he took the car."

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permitted a reasonable jury to find the requisite intent beyond a

reasonable doubt.

The evidence easily supports that conclusion. First,

eyewitness Diana Colón-Laboy ("Colón") recounted seeing appellant

sitting in the passenger seat of the victim's car shortly before

her disappearance. The car was pulled to the side of the road and

the passenger door was open. Colón observed appellant striking the

victim, and heard the victim say "leave me alone." One of the

passengers in Colón's car, Sidia Lebrón-Gonzales ("Lebrón")

testified that she heard Colón identify the victim and appellant,

both of whom Colón knew personally, as they drove by. This

episode, in which appellant was seen inside the victim's car,

striking her, was the last time the victim was seen. Hours later,

her car was intentionally set ablaze in an abandoned field.

In addition to this eyewitness evidence, there was also

the copious evidence of appellant's prior threats and physical

assaults against the victim, from which a reasonable jury could

conclude that appellant had the intent to seriously harm or kill

Ortiz when he took control of her vehicle. For example, witnesses

testified about appellant's claims that he was capable of killing

Ortiz if he believed she was with another man, and the evidence

showed that at the time of her disappearance he believed that she

was dating another man. There was also evidence that appellant had

choked the victim while yelling "I am macho, and you have to

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respect me," and that he had once hit her so forcefully that she

fell backward into a parked car. Furthermore, the victim's mother

testified that appellant threatened that "he knew what he would do

before they disarmed him" after the victim received the protective

order. Finally, the evidence also showed that appellant stalked

the victim up until the night of her disappearance and was obsessed

with her location and activities. For example, after the couple's

separation, appellant constantly phoned the victim's parents' home

to ask where she was, often speaking in an angry and demanding

manner. Appellant also followed the victim and her friends during

their lunch hour, and, at one point, secretly placed a tape

recorder under the seat of her car so that he could record her

conversations.

And then there are appellant's damning admissions after

the victim's disappearance that linked him to her murder. On April

21, 1999, appellant admitted to colleagues in the Puerto Rico

police that he had been "upset and angry" with the victim and a man

with whom he believed she was having an affair. On April 24th,

appearing nervous and worried, he asked Sergeant Digno Cartagena-

Colón what would happen if the victim were found wearing his

sweater. On June 16th, when Sergeant Daniel Colón-Díaz, a longtime

friend and colleague of appellant's father, told appellant that

there was enough evidence to file charges against him and also

against his younger brother, appellant responded that he had acted

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alone and that his brother had not been involved. When Colón-Díaz

promised not to involve the press if appellant would tell the

police what had happened to the victim and take them to her body,

appellant responded by promising to tell him "everything related to

Yesenia's case" the next day. After that conversation, former

Puerto Rico Police Commander Jovito Miró-Alvarado also spoke with

appellant and encouraged him to confess immediately. Appellant

refused, saying that he wanted his family to learn what had

happened first because he lived in a small town and it would create

a scandal, but promised to take them to the body after speaking to

his family. When Miró asked appellant whether he was sorry "for

what he had done to Yesenia," appellant responded that he was

sorry. Miró then told appellant that there was a helicopter

waiting to take them to the body, but appellant responded that a

helicopter would not be necessary to reach it.9

From this evidence, a reasonable jury could conclude that

appellant had the intent to kill or seriously harm the victim when

he took control of her car on the night of April 15, 1999. We

therefore reject his challenges to the district court's denial of

his Rule 29 motion for acquittal and to the sufficiency of the

evidence proving that he had the requisite intent to commit a

carjacking.

9
After this conversation, appellant spoke to his father and
aunt alone. Appellant's aunt called a lawyer, who also arrived and
spoke with appellant. After speaking with his family and his
lawyer, appellant made no more incriminating statements.

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 IV.

We now address various challenges brought by appellant

that would, if successful, result in a new trial.

A. Restrictions on Impeachment

Appellant argues that the district court erred by

restricting the introduction of evidence that he claims would have

impeached the victim's statements about his stalking and abuse.

1. The Recorded Conversations

Appellant argues that the district court erred in

excluding from evidence tape recordings of the victim talking to

passengers in her vehicle and on her cellular telephone while she

was driving. The recordings were made by appellant months before

her disappearance, by surreptitiously placing a tape recorder under

the driver's seat of the victim's car. During direct examination

of appellant, his counsel sought to play the recordings to the jury

for the purpose of impeaching the hearsay statements of the victim,

entered through government witnesses, that described appellant's

abuse. This is the hearsay testimony that the government has

acknowledged was wrongly admitted.

When a hearsay statement has been admitted under Rule

802, Rule 806 allows a party to attack the credibility of the

hearsay statement "by any evidence which would be admissible for

those purposes if [the] declarant had testified as a witness."

Fed. R. Evid. 806. Appellant theorizes that the tapes impeached

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the victim's accusations of abuse not because of what she actually

said on the tapes, but because of how she said it. According to

him, her tone and attitude as reflected on the tapes "corroborated

the fact that she was having an affair and was not, in fact, afraid

of Berríos."10 At trial, counsel for appellant argued:

Yesenia in those tapes is very calm. She's
very cool. She is joking, she is laughing.
She says that, well, he might kill me; go
ahead. She doesn't sound afraid at all. She
never says that I have been hit, abused. In
fact, it says that when that mother fucker, if
he knew . . . who the ties were for,11 he would
kill me -- but she's laughing.

The district court prohibited appellant from entering the

tapes, but based its rejection of the evidence on a misreading of

the Rules of Evidence. The court first ruled that the tapes could

not be used under Rule 806 to impeach the victim's allegations

because she was not a "declarant," stating that "[t]he definition

of declarant under the rules of evidence specifically 801, is a

person who takes the witness stand." In fact, the Rules of

Evidence define "declarant" as "a person who makes a statement."

Fed. R. Evid. 801(b). The court later stated that the evidence was

inadmissible to impeach the victim under Rule 806 because the

10
We fail to see how the victim's alleged "affair" during this
time would impeach her statements about appellant's abuse.
11
Evidence at trial showed that appellant searched Ortiz's car
while it was parked at her office in February 1999 and was upset to
find men's ties, which he believed were a gift for another man.

-23-
statements appellant sought to impeach were not hearsay but rather

"exceptions to hearsay." This was also mistaken; the admitted

statements were hearsay even if, as the court ruled, the statements

were excepted under Rule 803 from Rule 802's prohibition against

hearsay. They thus were appropriate subjects for impeachment under

Rule 806.

However, despite the mistaken logic for excluding the

tapes, there was no error in their exclusion, and we are "'not

wedded to the lower court's rationale, but, rather, may affirm its

order on any independent ground made manifest by the record.'"

United States v. Shinderman, 515 F.3d 5, 12 (1st Cir. 2008)

(quoting InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.

2003)). Here, the tapes were inadmissible as impeachment evidence

because their contents did not contradict the statements appellant

sought to impeach. See United States v. Hale, 422 U.S. 171, 176

(1975) ("A basic rule of evidence provides that prior inconsistent

statements may be used to impeach the credibility of a witness. As

a preliminary matter, however, the court must be persuaded that the

statements are indeed inconsistent."); United States v. Zaccaria,

240 F.3d 75, 79 (1st Cir. 2001); see also United States v. Finley,

934 F.2d 837, 839 (7th Cir. 1991) ("Rule 806 extends the privilege

of impeaching the declarant of a hearsay statement but does not

obliterate the rules of evidence that govern how impeachment is to

proceed.").

-24-
 The tapes, which were transcribed by the FBI shortly

before trial, recorded the victim discussing appellant's abuse and

stalking. For example, she discussed on the tapes how appellant

had searched her car at least two times while it was parked and how

he often followed her car. The following exchange between the

victim and her sister Yessica, who was riding in the victim's car,

was recorded on the tapes:

Yesenia Ortiz-Acosta (YOA): Everybody feels
sorry for Sammy, but nobody feels sorry for me
. . . what bothers me the most is that he
wants to appear as the victim.

Jessica Ortiz-Acosta (JOA): But, Yesenia, what
I'm saying is . . . What we are afraid of, too
is that he'll try to do something to you.

YOA: Well, Jessica, let him do it. Let him do it.

JOA: Or the baby girl.

YOA: He's not going to do anything to the baby girl.

JOA: Yes, but, to you?

YOA: And, let him do it. What am I going to do?

JOA: And if he kills you or something?

YOA: Let him kill me. . . .

JOA: But do you think he is capable of that?

YOA: Oh, Jessica . . . Well, I don't know
Jessica, I don't know.

This is just one of the interchanges caught on tape that

corroborate the government's case against appellant. Far from

impeaching the victim's alleged statements of abuse, the tapes tell

-25-
the story of a young woman plagued by a possessive, stalking

husband. Although we have only read the transcripts of the tapes

and acknowledge that appellant's argument relies on the declarant's

tone of voice, appellant cannot avoid the fact that the contents of

the tapes, rather than contradicting Ortiz's allegations of abuse,

strongly corroborate those allegations. Rather than proving, as

appellant asserts, that the victim "was not, in fact, afraid of

Berríos," the tapes record the victim stating that "deep inside, I

am a little scared of [Berríos]." In sum, we agree with the

government that "Ortiz-Acosta's hearsay statements indicated that

Rodríguez-Berríos had abused and stalked her; Ortiz-Acosta said

nothing on the tapes even suggesting that Rodríguez-Berríos did not

do so." Because the recordings do not contradict the victim's

hearsay allegations of abuse, there was no error in the district

court's exclusion of the tapes.12

2. Ortiz's Relationship with a District Attorney

Appellant also argues that the district court abused its

discretion in sustaining government objections to questions asked

on cross-examination of the victim's mother and her co-worker about

12
The government argues that there are other reasons for
excluding the tapes, citing the rule against impeachment on a
collateral matter through extrinsic evidence and, in light of the
fact that there is no question that the recordings were made
illegally, the federal statute prohibiting use of illegally made
recordings in legal proceedings. See 18 U.S.C. §§ 2511, 2515.
Because we have determined that the tapes did not contain prior
inconsistent statements, however, we need not address these
alternative grounds for exclusion.

-26-
the victim's alleged affair with a district attorney. Appellant

argues that he should have been allowed to introduce evidence that

"Yesenia's affair was with Serrano in particular to impeach the

inference sought by the government from the fact that a domestic

violence complaint had been filed against him, i.e., to infer that

the complaint was only filed because of Serrano's influence in the

District Attorney's Office." This inference is so insubstantial

that the district court was well justified in excluding the

evidence. Moreover, appellant's desired in-depth inquiry into the

victim's alleged affair with a district attorney would not meet the

strictures of Rule 403 because of its high potential for prejudice

compared to its low probative value. We therefore find no abuse of

discretion in the district court's refusal to allow this inquiry,

which could reasonably be seen as merely an attempt to impugn the

character of the victim.

B. Exclusion of an Expert Witness on Eyewitness Identification

Appellant argues that the district court erred in

refusing to allow him to present testimony from an expert witness

regarding the reliability of eyewitness identification. We review

a decision to exclude expert testimony for abuse of discretion,

United States v. Diaz, 300 F.3d 66, 74 (1st Cir. 2002); we are

deferential toward a district court's decision, United States v.

Corey, 207 F.3d 84, 88 (1st Cir. 2000).

-27-
 Appellant sought to introduce expert testimony on the

factors influencing the perception and memory of the government's

eyewitnesses, Colón and Lebrón. Colón testified that she had seen

appellant sitting in the victim's car, striking the victim, shortly

before the victim's disappearance. At around 7:45 p.m. on April

15, 1999, Colón was driving with two friends from Guayama's town

center toward a restaurant in Guayama's Branderi Ward. As she

approached Branderi, Colón was forced to stop her car because two

vehicles blocked the road. On the right side of the road, blocking

her way, was a green Hyundai, similar to appellant's car, and on

the left was a champagne-colored Toyota, similar to the victim's

car. Colón flashed her high beams and the green Hyundai sped away.

Colón then moved forward slowly. As she passed the champagne

Toyota, she saw that its passenger door was open and the interior

light was on. She saw the victim sitting in the driver's seat of

the vehicle and appellant in the passenger seat. Colón knew the

victim because her husband worked with the victim's father, Ánibal

Ortiz-Rodríguez, and she knew appellant because of his marriage to

the victim. As they passed the car, Lebrón, who was a passenger in

the car, heard Colón say, "Those are Ánibal's daughter and son-in-

law." Colón testified that as she drove by the Toyota she heard

the victim say, "leave me alone, leave me alone," and saw appellant

striking her. As Colón continued to pass the car, appellant

stopped hitting the victim and made eye contact with her. Colón

-28-
testified that she did not stop driving because it was dark. As

they approached the restaurant and the area grew lighter and more

populated, one of Colón's passengers called 911. Apparently, the

passenger got a busy signal and did not retry.13

In a pretrial motion, appellant sought the court's

permission to retain Dr. Geoffrey R. Loftus, a professor of

psychology and a specialist in perception and memory, as an expert

witness.14 Appellant proffered that Dr. Loftus would testify about

the factors influencing Colón and Lebrón's perceptions and memories

of the night of April 15, 1999. In a written opinion, the district

court denied the motion to retain Dr. Loftus and ruled his

testimony inadmissible. United States v. Rodríguez-Berríos, 445

F.Supp.2d 190 (D.P.R. 2006).

Although appellant urges us to adopt a rule that would

categorically allow expert testimony on the flaws inherent in

eyewitness identification,15 we have consistently maintained that

13
Lebrón gave testimony about the incident that was consistent
with Colón's testimony. However, although she saw a man and woman
in the car and heard "loud voices," she said did not hear what they
were saying or see what was happening in the car.
14
Appellant was represented by court-appointed counsel
pursuant to the Criminal Justice Act. See 18 U.S.C. § 3006A. The
request was for the court to pay for the services of the expert
witness, also pursuant to that act. 18 U.S.C. § 3006A(e).
15
Appellant cites an increasing body of academic literature
concerning the reliability of eyewitness testimony. See, e.g.,
Richard A. Wise, Kirsten A. Dauphinais & Martin A. Safer, A
Tripartite Solution to Eyewitness Error, 97 J. Crim. L. &
Criminology 807 (2007); Jennifer L. Devenport, Steven D. Penrod &
Brian L. Cutler, Eyewitness Identification Evidence, 3 Psychol.

-29-
the admission of such testimony is a matter of case-by-case

discretion and have refused to adopt such a blanket rule for its

admission or exclusion. United States v. Stokes, 388 F.3d 21, 27

(1st Cir. 2004), vacated on other grounds 544 U.S. 917 (2005)

(summarily vacating in light of United States v. Booker, 543 U.S.

220 (2005)); United States v. Brien, 59 F.3d 274, 277 (1st Cir.

1995). We adhere to that position. While such testimony will

sometimes comply with the strictures of Federal Rule of Evidence

702 (the rule that governs expert testimony) because it "will

assist the trier of fact to understand the evidence or to determine

a fact in issue," Fed. R. Evid. 702, other times it will not. See

Brien, 59 F.3d at 276-77. In order to assist district courts faced

with deciding whether to admit such expert testimony, we have

suggested factors that influence its usefulness under Rule 702,

such as "the reliability and helpfulness of the proposed expert

testimony, the importance and the quality of the eyewitness

evidence it addresses, and any threat of confusion, misleading of

the jury, or unnecessary delay." Id. at 277.

The district court in this case carefully considered the

factors that we have set forth as relevant to the issue of whether

to admit expert witnesses on eyewitness identification. Rodríguez-

Berríos, 445 F.Supp.2d at 192-95. It first examined the importance

of the eyewitness evidence that Dr. Loftus sought to address. Id.

Pub. Pol'y, & Law 338, 338 (1997).

-30-
at 193. While it acknowledged that the eyewitness account was an

important part of the government's case, the government did not

rely solely on that testimony. Other important evidence included

the defendant's incriminating statements before and after the

disappearance, and the evidence of his stalking, threats, and

physical abuse of the victim.

Quoting the Advisory Committee note accompanying Rule

702, the district court noted that:

There is no more certain test for determining
when experts may be used than the common sense
inquiry whether the untrained layman would be
qualified to determine intelligently and to
the best possible degree the particular issue
without enlightenment from those having
specialized understanding of the subject
involved in the dispute.

Id. at 192 (quoting Fed. R. Evid. 702 advisory committee's notes).

The district court explained that Dr. Loftus had identified three

perception-memory issues relevant to the case: 1) the accuracy of

Colón's original perception of the two people in the vehicle, 2)

the accuracy of Colón's memory of having verbally identified the

vehicle's occupants, and 3) the accuracy of Lebrón's memory that

Colón identified the individuals in the car. Id. at 193.

According to the proffered report, Dr. Loftus would analyze these

three issues in relation to factors such as "general lighting

conditions, the consequences of illumination from a car's interior

light, the eyewitness' possible lack of attention, and post-event

-31-
information," and testify that any confidence displayed by Colón

and Lebrón "should not, contrary to common sense, be construed as

a reflection of the accuracy of their memories." Id. (quoting

report of Dr. Loftus).

The district court observed that these factors --

lighting, lack of attention, and post-event information -- are

particularly susceptible to exposure through cross-examination

without the benefit of expert testimony. It therefore found that

an expert witness on eyewitness testimony would be less helpful in

this case, unlike a situation in which "an identification was made

after a long delay or under conditions of extreme stress," id. at

194 (citing United States v. Harris, 995 F.2d 532, 535 (4th Cir.

1993)), or when the witness's faculties were impaired at the time

of the event, id. (citing State v. Whaley, 406 S.E.2d 369 (S.C.

1991)). The court concluded that Dr. Loftus's testimony was not

relevant "'in the incremental sense that . . . , if admitted, [it]

likely would assist the trier of fact to understand or determine a

fact in issue.'" Id. (quoting Ruiz-Troche v. Pepsi-Cola of P.R.

Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998)). Instead, "Dr.

Loftus' testimony in this case would involve little more than 'a

credibility determination within the ken of the ordinary judge and

juror -- unlike, say, DNA identification.'" Id. (quoting Brien, 59

F.3d at 276).

-32-
 Finally, the district court concluded that Dr. Loftus's

proffered testimony had the potential to be seriously misleading in

light of jurors' possible tendency to give undue weight to expert

testimony. The court wrote:

While often invaluable to the search for
truth, these experts' testimony carr[ies] a
great deal of inherent reliability, which
jurors can often confuse for infallibility.
In cases such as this one, where vigorous and
competent cross-examination can adequately
flesh out the possible effect of factors such
as lighting, lack of attention, and post-event
information on the eyewitness[es']
identifications without exposing the jury to
this type of prejudice, expert testimony can,
and should, be excluded.

Id. at 194. After this careful assessment of the relevant

considerations, the district court concluded that the proffered

expert testimony should be excluded. This ruling was not an abuse

of discretion.16

C. Denial of Appellant's Motion for a Mistrial

Appellant argues that he should have been granted a

mistrial after a government witness inappropriately testified that

appellant had been summoned to San Juan to take a polygraph test

during the course of the investigation into the victim's

16
Although appellant also alludes to an argument that the
district court's ruling on Dr. Loftus violated his Sixth Amendment
right to present a defense, he does not develop any argument that
is distinct from his argument that the district court abused its
discretion in refusing to authorize funds for the retention of an
expert witness. Therefore, our abuse of discretion analysis
resolves this undeveloped claim as well.

-33-
disappearance. Defense counsel immediately objected to the

testimony, requested a sidebar, and moved for a mistrial. The

district court denied the motion for a mistrial. After sidebar,

however, in the presence of the jury, the court granted appellant's

request to strike the witness's reference to the polygraph test and

admonished the witness, saying:

[Y]ou are to testify only what you're asked.
I believe you had received some instructions
from the assistant U.S. Attorney that you were
not to go into certain matters -- and you were
about to go into those -- and not to volunteer
any information. If you do, I'm going to
strike your whole testimony.

Also in the presence of the jury, the court admonished the

government by stating, "I'm going to allow you again to talk to the

witness, advise him properly as to what are the areas that you are

asking him. If he volunteers any information, the government is

going to be in trouble."

After these warnings, the court adjourned for the

evening. In the morning it offered a curative instruction to the

jury, reiterating its instruction at the beginning of the trial

that the jurors were to disregard any testimony which had been

ordered stricken. It then continued:

You should totally disregard the testimony
provided yesterday . . . about a polygraph
test allegedly offered to the
defendant . . . . This means that you cannot
consider it in any way or fashion during your
deliberations in this case . . .

-34-
 To be sure, it is troubling that a polygraph test was

mentioned in the presence of the jury. The defendant's concern

about the potentially prejudicial effect of the mention of the

polygraph is understandable. Polygraph results are rarely

admissible at trial. See, e.g., deVries v. St. Paul Fire and

Marine Ins. Co., 716 F.2d 939, 944-45 (1st Cir. 1983) (reserving

the question "whether a per se prohibition against the use of lie

detector tests is appropriate," but noting that "polygraph evidence

has long been considered of dubious scientific value and hence has

been deemed irrelevant by the federal courts.") (quotation marks

and citation omitted); see also United States v. Johnson, 446 F.3d

272, 278 (2nd Cir. 2006); United States v. Dotson, 324 F.3d 256,

261 (4th Cir. 2003).

Nonetheless, we disagree that the brief mention of the

possibility of a polygraph examination warranted a mistrial.

First, although the government witness mentioned that the defendant

was "summoned" to take a polygraph examination, he did not say

whether appellant actually took the test or describe its results.

Furthermore, the witness was immediately reprimanded in front of

the jury and the testimony stricken. The next day, the jurors were

given a lengthy curative instruction that reminded them of their

duty to follow the judge's instructions to disregard the testimony.

"Swiftness in judicial response is an important element in

alleviating prejudice once the jury has been exposed to improper

-35-
testimony," and "appellate courts inquiring into the effectiveness

of a trial judge's curative instructions should start with a

presumption that jurors will follow a direct instruction to

disregard matters improvidently brought before them." United

States v. Sepulveda, 15 F.3d 1161, 1185 (1st. Cir 1993).

Given all of these considerations, we find no abuse of

discretion in the district court's refusal to grant appellant's

motion for a mistrial.

D. Harmlessness of Other Evidentiary Errors

As discussed earlier, we have concluded that the district

court erroneously admitted certain statements entered through the

testimony of the victim's friend, Ramos, and her mother, Acosta.

Specifically, we concluded that the following statements were

inadmissible: the victim's identification of her bruises as having

been caused by appellant; her statement that she was afraid of

appellant; her statement that appellant was an "abuser"; her

statement that appellant would throw their baby at her; and her

statement that she could not "have lunch in peace." Because these

statements should not have been admitted, we did not consider them

as part of the body of evidence supporting appellant's conviction.

Nevertheless, we must now consider whether the erroneous admission

of the statements was harmless. If not -- i.e., if appellant was

-36-
prejudiced by the errors -- appellant must be granted a new trial.17

"'The essential inquiry in harmless error review is

whether the improperly admitted evidence likely affected the

outcome of the trial.'" United States v. Dunbar, 553 F.3d 48, 59

(1st Cir. 2009) (quoting United States v. Tom, 330 F.3d 83, 95 (1st

Cir. 2003)). This inquiry is case-specific and includes

"consideration of such factors as the 'centrality of the tainted

evidence, its uniqueness, its prejudicial impact, the use to which

evidence was put, and the relative strengths of the parties'

cases.'" United States v. Isler, 429 F.3d 19, 26 (1st Cir. 2005)

(quoting United States v. Garcia-Morales, 382 F.3d 12, 17 (1st Cir.

2004)).

The erroneously-admitted accusations were repetitious of

other evidence of appellant's stalking, violent threats, and

violence, and were, therefore, neither "unique" nor "central[]" to

the government's proof of appellant's stalking and abuse. This

other evidence included Acosta's eyewitness account of an incident

in which appellant choked the victim in the hallway of her home

while saying "I am macho, and you have to respect me," as well as

testimony from appellant's former neighbor that months before the

17
The government accurately points out that appellant failed
to object at trial to some of this evidence, such as the victim's
statement that appellant was an "abuser" and sometimes threw their
baby at her. While we normally review unpreserved objections under
the plain error standard, United States v. Matos-Quiñones, 456 F.3d
14, 20-21 (1st Cir. 2006), for simplicity we will review all of the
evidentiary errors under the more stringent (from the perspective
of the government) harmless error standard. In this case, the
outcome is the same.

-37-
separation she saw appellant hit the victim so hard that the victim

fell backwards into a parked car. Furthermore, evidence of

appellant's stalking came in through the testimony of the victim's

friends who regularly ate lunch with her and observed that

appellant constantly monitored her, even up to the day of her

disappearance, when he appeared during their lunch hour. There was

also evidence that appellant would constantly telephone the

victim's parents after the separation and inquire in a menacing

manner about the victim's whereabouts; his admissions on these

phone calls revealed he was tracking the victim closely. One time,

he told the victim's mother, "I'm going to give her a little time

for her to return back with me. And if she doesn't come back with

me, I know what I'm going to do."

Finally, the government's case included the admissions

made by appellant in the months following the victim's

disappearance, and the eyewitness testimony placing him in the

victim's car, abusing her, moments before her disappearance. In

light of their lack of centrality to the government's case, their

redundancy, and the relative strength of the government's case

against appellant, we find that the erroneously-admitted statements

were harmless.18

Affirmed.

18
Appellant refers briefly, without any development, to a
cumulative error argument. We deem this perfunctory argument
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

-38-