United States v. Catalan-Roman

United States Court of Appeals
For the First Circuit

Nos. 06-1182, 06-1183

UNITED STATES OF AMERICA,

Appellee,

v.

LORENZO CATALÁN-ROMAN

and HERNALDO MEDINA-VILLEGAS,

Defendants-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before
Boudin, Stahl, and Lipez, Circuit Judges.

Steven M. Potolsky for appellant Catalán-Roman.
David Abraham Silva for appellant Medina-Villegas.
Maria A. Dominguez-Victoriano and Thomas Klumper, Assistant
United States Attorneys, with whom Rosa Emilia Rodriguez-Velez,
United States Attorney, and Nelson Pérez-Sosa, Assistant United
States Attorney, were on brief, for appellee.

October 23, 2009
 LIPEZ, Circuit Judge. Appellants Lorenzo Catalán-Roman

("Catalán") and Hernaldo Medina-Villegas ("Medina") were convicted

after a jury trial of several counts relating to a conspiracy to

rob armored vehicles and the shooting death of an armored vehicle

guard, Gilberto Rodríguez-Cabrera ("Rodríguez"), which occurred

during a robbery committed in furtherance of the conspiracy.

This appeal requires us to consider Catalán's claim that

his constitutional rights were violated when the district court

prevented him from introducing extrinsic evidence to impeach a key

government witness. In addition, Catalán challenges: 1) the

court's denial of his request to sever his trial from that of

Medina, 2) restrictions on cross-examination, and 3) its decision

to quash a subpoena for the tax records of the victimized armored

car company and its owner. He also challenges his convictions on

counts two, eight, and nine on double jeopardy grounds.

Medina challenges: 1) the sufficiency of the evidence

supporting the convictions on counts five and six (the carjacking

charges) and eight (the murder charge), 2) the court's failure to

allow him the opportunity for allocution before sentencing him to

life imprisonment on the murder charge, and 3) the court's

calculation of the guideline sentencing range on the murder charge.

The government concedes that the convictions on counts

eight and nine violated double jeopardy. It also concedes that

Medina must be re-sentenced on count eight because he was not

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allowed the opportunity to allocute for that count. After careful

consideration, we reject appellants' other claims.

I.

We recount the pertinent facts in the light most

favorable to the jury's verdict. United States v. Cruz-Diaz, 550

F.3d 169, 171 (1st Cir. 2008).

A. The November 30 Armed Robbery

On November 30, 2001, James Cruz-Matias ("Cruz"), an

armored truck guard working for Ranger American Armored Services

("Ranger"), was robbed at gunpoint while making a delivery of cash

for his employer to the Saulo D. Rodriguez Credit Union in Gurabo,

Puerto Rico. That day, Cruz worked as the messenger in a two-man

team. As such, he had to carry the cash from the truck to the

bank. His co-worker, Eluber Torres-Alejandro ("Torres"), was the

driver and remained inside the truck during the delivery. As Cruz

carried a bag containing $180,000 toward the door of the credit

union, a man who had been waiting by the credit union's ATM

approached him, pointed a gun at his face, and demanded the money.

Two other assailants then appeared, also pointing guns toward

Cruz's head. Cruz gave them the money. Before leaving, one of the

assailants took Cruz's pistol from its holster, cocked it, and

pointed it at Cruz's face. Instead of pulling the trigger, the

assailants left with the gun and the $180,000, fleeing the parking

lot in a gray or blue Jeep Cherokee Laredo. Soon after the

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robbery, Gurabo municipal police recovered nearby a burned-out blue

Cherokee Laredo that had been carjacked from its owner two days

before the robbery. Six fingerprints matching Medina's were

retrieved from a newspaper left near the ATM, where the first

assailant had been waiting just before the robbery. At trial, Cruz

identified Medina as the first assailant.

B. The March 6 Attempted Armed Robbery

On March 6, 2002, several men attempted to rob two Ranger

guards. Torres was again working that day, acting this time as the

messenger while his partner, Rodríguez, drove the truck. As Torres

carried a bag containing $300,000 from the armored truck to the

door of the Valenciano Credit Union in Juncos, Puerto Rico, a man

appeared and walked towards him in the parking lot. The man made

a gesture toward his waist, revealing a firearm tucked in his

waistband. Torres and Rodríguez both pulled out their own weapons

and pointed them towards the man, who had pulled out the pistol and

managed to point it at Torres. Apparently realizing that he was

outnumbered, the man turned and ran away. Torres saw a two-toned

motorcycle and a blue Chevrolet Lumina depart from the parking

lot.1 At trial, Torres identified Catalán as the man who had

walked toward him in the parking lot and flashed a weapon before

fleeing.

1
David Morales-Machuca ("Morales"), an indicted co-
conspirator, drove a blue Chevy Lumina, and Medina drove a two-
toned motorcycle.

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C. The March 26 Carjacking

On March 26, 2002, while parked in his green Ford

Explorer outside his daughter's house and talking with her, Armando

Julía-Diaz ("Julía") was approached by two assailants, one of whom

pointed a nickel-plated pistol at him and demanded he turn over the

vehicle.2 The two assailants stole the Explorer, along with a

black, 9mm Glock pistol that Julía had kept in the glove

compartment.

D. The March 27 Armed Robbery and Murder

The next day, on March 27, 2002, Ranger guards Torres and

Rodríguez were assigned to deliver $100,000 to the Saulo D.

Rodríguez credit union in Gurabo. Torres, the driver, remained in

the truck while Rodríguez, the messenger, exited with the money and

walked towards the credit union. As Rodríguez approached the

entrance, an assailant appeared and pointed a black, 9mm Glock

pistol at his face and chest. A second assailant then appeared

carrying a Beretta semi-automatic firearm. At trial, Torres

identified the first assailant as Medina and the second as Catalán.

Rodríguez raised his hands above his head in an act of surrender.

As Catalán attempted to remove Rodríguez's firearm from its

holster, Medina fired two shots at Rodríguez. Torres then opened

the door of the armored truck and began firing at Catalán, who was

2
According to Morales's ex-girlfriend, who testified at
trial, Morales always carried a nickel-plated pistol.

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hit and fell to the ground. Torres was shot in the left hand by a

fourth indicted co-conspirator, Quester Sterling-Suarez

("Sterling"). Torres fell back into the truck and closed its

doors.

Medina took the money and fled the scene in a green Ford

Explorer, leaving the injured Catalán behind. Rodríguez was still

alive at this point. According to Torres, Rodríguez pleaded for

his life just before Catalán, seated on the ground nearby, picked

up his Beretta firearm and fired it several times into him.

Sterling then arrived and tried to help Catalán, but fled the scene

alone when police arrived.3 Catalán was apprehended at the scene,

seriously wounded and still holding the Beretta. Rodríguez died

soon thereafter, having received a total of eight gunshot wounds,

three of which would have proven fatal even independent of the

other wounds. One of the fatal wounds came from Medina's 9mm Glock

(the gun that had been stolen from Julía the day before), while the

other two came from Catalán's Beretta. At the scene, the FBI

obtained shell casings, bullet fragments, and bullets that matched

Catalán's Beretta and Medina's Glock. Not far from the credit

union, police recovered Julía's stolen green Ford Explorer with its

doors open, the engine running, and a small tank of gasoline

nearby. Inside the vehicle, they recovered the stolen Glock 9mm

pistol used by Medina during the robbery.

3
Sterling was quickly apprehended.

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 Shortly after the robbery, Morales picked up his

girlfriend, Jocelyn Serrano-Castro ("Serrano"), in his blue

Chevrolet Lumina. She spent the day with him, during which time he

switched the car he was driving, retrieved a pistol hidden behind

a highway mile marker, and conversed with a fifth co-conspirator,

Pablo Sanchez-Rodríguez ("Sanchez"), about "getting rid" of the

blue Lumina. At six o'clock that evening, Serrano observed Morales

retrieve a sack of cash from Sanchez and buy new cell phones with

some of the cash. Several days after the robbery, she went with

Morales to visit appellant Medina at his home. Medina and his wife

had bought all new furniture. Medina told Serrano that he had

"scored a robbery and that they had to take everything out and

bring in everything new."

The FBI arrested Medina on April 2, 2002. The vehicle

Medina was driving at the time of his arrest had three newspaper

articles about the March 27 robbery in the glove compartment.

After his arrest, he was housed in the same prison cell as Miguel

Alamo-Castro ("Alamo"). At trial, Alamo testified that while they

were cellmates Medina had revealed several incriminating details

about the conspiracy to rob Ranger vehicles. For example, Medina

told Alamo that he had carjacked a green Ford Explorer from a man

and his daughter the night before the March 27 robbery, stealing a

9 mm Glock in the process. He said that he had participated in the

shootout during the March 27 robbery and that the FBI had recovered

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the gun he had used from the seat of the stolen Explorer after the

robbery. Medina also told Alamo that he was going to use the

robbery money to buy furniture and remodel his home, among other

things.

E. The Indictment and Trial

Approximately one year later, on March 14, 2003, a grand

jury returned a ten-count second superseding indictment charging

Catalán, Medina, Morales, Sterling, and Sanchez with conspiracy to

rob armored vehicles and a number of substantive offenses related

to the conspiracy. Specifically, both Catalán and Medina were

charged with: conspiracy to commit robbery of an armored vehicle,

in violation of 18 U.S.C. § 1951(b)(3) (count one), aiding and

abetting the use of a firearm in relation to the conspiracy in

count one, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii) (count

two),4 aiding and abetting the March 27 robbery of an armored

vehicle, in violation of 18 U.S.C. §§ 2, 1951(a) (count seven),

aiding and abetting the use of a firearm to commit a crime of

violence (the March 27 robbery) that resulted in the unlawful

killing of Rodríguez, in violation of 18 U.S.C. §§ 2, 924(j) and 18

U.S.C. §§ 2, 1111 (count eight), and aiding and abetting the use of

a firearm to commit a crime of violence (the March 27 robbery), in

violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii) (count nine). In

4
18 U.S.C. § 2, included in all of the aiding and abetting
charges, makes it illegal to aid and abet the commission of a
federal offense.

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addition, Medina was also charged with aiding and abetting the

November 30, 2001 robbery of an armored vehicle in violation of 18

U.S.C. §§ 2, 1951(a) (count three), aiding and abetting the use of

a firearm to commit the November 30 robbery, in violation of 18

U.S.C. §§ 2, 924(c)(3) (count four), aiding and abetting the March

26, 2002 carjacking, in violation of 18 U.S.C. §§ 2, 2119(1) (count

five), and aiding and abetting the use of a firearm to commit the

March 26 carjacking, in violation of 18 U.S.C. §§ 2, 924(c)(3)

(count six). There were no charges based on the attempted robbery

of March 6, 2002, nor was that attempted robbery cited as an overt

act in furtherance of the conspiracy.

Jury selection began on January 25, 2005 and lasted

thirteen days. Three days before trial, Catalán moved to exclude

evidence that he was involved in the March 6, 2002 attempted

robbery or, alternatively, for the severance of his trial from

Medina's. He claimed that if the trials were severed, Medina would

testify that Catalán had not been involved in the March 6 attempt.

After an in camera conference with Medina's lawyer during which the

lawyer made a proffer of his client's expected testimony, the court

denied the motion.

Trial began on March 7, 2005. At the conclusion of the

government's case, both appellants moved for judgment of acquittal

pursuant to Federal Rule of Criminal Procedure 29. The district

court denied their motions. At the start of appellants' case, the

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government moved to exclude the testimony of several witnesses whom

the defendants intended to call to impeach the testimony of

Torres, the armored car guard who was shot in the hand during the

March 27 robbery. After hearing argument on the matter, the court

granted the government's motion in part, excluding the impeachment

testimony of five law enforcement officers.

On March 16, government witness Juan Bravo-Hernandez

("Bravo") moved to quash a subpoena for tax records that had been

issued at the request of defendants. Bravo, the president and

owner of Ranger American Armored Services, had been subpoenaed to

produce Ranger's corporate tax returns as well as his personal tax

returns. The trial court granted the motion to quash, determining

that the tax documents could not be relevant to the interstate

nexus inquiry,5 which had already been established through Bravo's

testimony and could not possibly be affected by any information

contained in either the company's or Bravo's own tax returns.

After completing their evidence, appellants again moved

for a judgment of acquittal, and the trial court again denied their

motions. The jury found each appellant guilty of every count

charged against him. Because the defendants had been previously

certified as eligible for the death penalty, the trial then

5
18 U.S.C. § 1951, under which appellants were charged,
criminalizes only those robberies which "obstruct[], delay[], or
affect[]" interstate commerce. 18 U.S.C. § 1951(b)(3). See infra
Part II(B).

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proceeded to the death penalty phase, which lasted fifteen days.

The same jury that decided appellants' guilt decided whether to

impose the death penalty. At the conclusion of the penalty phase

evidence, the jury did not agree to impose the death penalty upon

either defendant. 18 U.S.C.A. § 3593(e)(3). In special verdict

forms, it asked the court to impose a sentence of life imprisonment

without parole for Catalán and indicated that it could not agree to

instruct the court to impose a life sentence for Medina.6 Instead,

the jury left Medina's sentence to the judge but indicated that it

understood that the judge would impose a sentence of life

imprisonment without parole. For count eight, the murder charge,

the district court imposed on each defendant a sentence of life

imprisonment without possibility of parole; it later also imposed

sentences for each of the other convictions.

II.

We first confront Catalán's challenges to his convictions

and sentence. Again, he challenges 1) the trial court's denial of

his request to sever his trial from that of Medina, 2) the trial

court's rulings restricting impeachment of Torres, including the

6
Under the Federal Death Penalty Act of 1994, 18 U.S.C.
§ 3591 et seq., "[u]pon a recommendation under section 3593(e) that
the defendant should be sentenced to death or life imprisonment
without possibility of release, the court shall sentence the
defendant accordingly. Otherwise, the court shall impose any
lesser sentence that is authorized by law." 18 U.S.C. § 3594; see
also Jones v. United States, 527 U.S. 373, 377-79 (1999)
(describing jury's role in imposing death penalty pursuant to the
Federal Death Penalty Act).

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court's decision to exclude extrinsic evidence that would allegedly

impeach Torres's testimony, 3) the trial court's decision to quash

the subpoena for tax records, and 4) the convictions on counts two,

eight, and nine on double jeopardy grounds.

A. Severance

During jury selection, the defendants learned for the

first time that the government planned to introduce testimony from

Torres identifying Catalán as having been involved in the March 6

attempted robbery. Two-and-a-half weeks later, and four days

before trial was to commence, Catalán moved to exclude the

evidence, or alternatively, to sever his trial from that of Medina.

He argued that if severance were granted, Medina would testify that

Catalán had not been involved in the March 6 attempt. However, if

severance were not granted it would be unfair for the government to

present Torres's testimony about Catalán's involvement, as Catalán

would not be able to rebut that account through Medina's testimony.

In a hearing on the motion, Medina's lawyer confirmed that his

client would testify for Catalán if the trials were severed.

Following the hearing, the judge held an in camera conference with

Medina's lawyer, who made a proffer of his client's expected

testimony. The court then denied the motion to exclude the

evidence and the alternative motion for severance. Catalán now

challenges the denial of his motion for severance.

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 We review the court's denial of a motion for severance

for manifest abuse of discretion, United States v. DeCologero, 530

F.3d 36, 52 (1st Cir. 2008), and affirm the lower court's decision

unless the defendant makes a strong and convincing showing that

prejudice resulted from the denial of severance, United States v.

Richardson, 515 F.3d 74, 81 (1st Cir. 2008). Defendants

challenging the denial of severance must meet this high barrier on

appeal because, as we have explained, in the normal course of

events "[p]ersons who are indicted together should be tried

together, since this practice helps both to prevent inconsistent

verdicts and to conserve resources (judicial and prosecutorial)."

United States v. Peña-Lora, 225 F.3d 17, 33 (1st Cir. 2000)

(quotation omitted).

In deciding the motion for severance based on the alleged

need for the testimony of a co-defendant, district courts are to

employ the two-tiered analysis set forth in United States v.

Drougas, 748 F.2d 8, 19 (1st Cir. 1984). To meet the first tier of

that test, a defendant must demonstrate: "(1) a bona fide need for

the testimony; (2) the substance of the testimony; (3) its

exculpatory nature and effect; and (4) that the co-defendant will

in fact testify if the cases are severed." United States v. Smith,

46 F.3d 1223, 1231 (1st Cir. 1995). If the defendant can make that

showing, the court should move on to the second tier of the Drougas

analysis and "(1) examine the significance of the testimony in

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relation to the defendant's theory of defense; (2) consider whether

the testimony would be subject to substantial, damaging

impeachment; (3) assess the counter arguments of judicial economy;

and (4) give weight to the timeliness of the motion." Smith, 46

F.2d at 1231.

Focusing on a first tier factor, the district court

emphasized that Catalán had "failed to make a detailed proffer for

this court to evaluate the exculpatory nature of [Medina's]

testimony." Given that Catalán was not charged with the March 6

attempted robbery, a proffer about the evidence's "exculpatory

nature" would have been especially important to the district

court's analysis. This is particularly so because the focus of the

government's case against Catalán, naturally, was on the overt act

charged against him in the indictment: the March 27 robbery and

murder of Rodríguez. The government's strong evidence of Catalán's

involvement in that robbery and the general conspiracy to rob

armored truck guards included damning physical evidence and

testimony linking Catalán to the scene of Rodríguez's murder, where

Catalán had assisted the robbery and was apprehended holding the

murder weapon.7 Without a detailed proffer of the exculpatory

7
Beyond asserting that Torres's testimony about the March 6
incident was "highly beneficial to the government on the issues of
premeditation and participation in the conspiracy," Catalán does
not develop an argument that, if the jury were to disbelieve Torres
that Catalán was involved in the March 6 attempt, the substantial
evidence of his participation in the March 27 robbery would have
been insufficient to convict him of the conspiracy (count one) or

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nature of testimony about the March 6 attempted robbery, the

district court was well within its discretion to conclude that

Catalán had not shown a "bona fide need for the testimony." Smith,

46 F.3d at 1231.

Although it concluded that Catalán had not met the first

tier of the Drougas analysis, the district court nonetheless

proceeded to explain that he had also not met the second tier. In

particular, the court emphasized the untimeliness of the motion,

the highly impeachable nature of the testimony, and Catalán's lack

of an explanation of the testimony's significance to his defense.

Id.; see also, Smith, 46 F.3d 1231 ("Judicial economy is obviously

not dispositive, but it is important in a lengthy conspiracy

trial."). There was no manifest abuse of discretion in the

district court's denial of the motion.

B. Order to Quash the Subpoena for Tax Returns

Catalán objects to the district court's grant of Bravo's

motion to quash a subpoena for his personal tax records and the tax

records of his company, Ranger American Armored Security. A trial

court may quash an "unreasonable or oppressive" subpoena, and we

review the trial court's decision to quash for abuse of discretion.

United States v. Henry, 482 F.3d 27, 30 (1st. Cir. 2007).

aiding and abetting the use of a firearm in furtherance of the
conspiracy (count two). Because this argument is not developed
"beyond a cursory mention," Cao v. Puerto Rico, 525 F.3d 112, 114
n.2 (1st Cir. 2008), we deem it to be waived.

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 The defendants were indicted under the Hobbs Act, 18

U.S.C. § 1951(a), which criminalizes robberies that have an effect

on interstate commerce. United States v. Jiménez-Torres, 435 F.3d

3, 7 (1st Cir. 2006). At trial, Bravo testified at length about

the products his business regularly purchases from the mainland

United States (such as specially equipped armored vehicles,

weapons, and high-tech carrier's money bags). He also testified

that the company was forced to pay high deductibles after each

robbery, totaling $75,000, and explained that its insurer raised

both its premium and deductible as a result of the robberies.

The defendants sought the personal and corporate tax

records of Bravo and his company to challenge the government's

assertion that the robberies affected interstate commerce. The

trial court granted Bravo's motion to quash, determining that the

tax records could not be relevant to the question whether the

robbery sufficiently affected interstate commerce. In granting the

motion, the court relied on this circuit's settled case law that a

robbery need only have "a realistic probability of a de minimus

effect on interstate commerce" to bring it within the reach of the

Hobbs Act. United States v. Capozzi, 347 F.3d 327, 335 (1st Cir.

2003) (quoting United States v. Butt, 955 F.2d 77, 80 n.2 (1st Cir.

1992)). "One common method for the government to establish the

required 'de minimis' effect on interstate commerce is to show that

the defendant's activity 'minimally depletes the assets of an

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entity doing business in interstate commerce.'" Capozzi, 347 F.3d

at 337 (quoting United States v. Nguyen, 246 F.3d 52, 54 (1st. Cir.

2001)).

We agree that Bravo's testimony about his company's

participation in interstate commerce (including its regular

purchases of carrier money bags, weapons, and vehicles from the

United States), combined with his testimony about the financial

effects of the robberies, was sufficient to establish a de minimus

effect on interstate commerce so as to bring the robberies within

the reach of the Hobbs Act. We also agree that nothing in Bravo's

personal or corporate tax returns could have negated the interstate

nexus proven through Bravo's testimony, even if the company's

bottom line was unchanged from -- or, for that matter, even if it

improved over -- that of years past. See, e.g., Capozzi, 347 F.3d

at 337 (de minimis effect established when defendant had threatened

to extort $4,000 from a car dealer who participated in interstate

commerce and a jury could have reasonably concluded that if the

defendant had been successful the business's assets and purchasing

power would have been at least temporarily depleted by $4,000).

Therefore, there was no abuse of discretion in the district court's

exercise of its power to quash unreasonable subpoenas.8

8
Catalán also complains that the district court's order
quashing the Bravo subpoena denied him his Sixth Amendment right
"to have compulsory process for obtaining witnesses in his favor."
U.S. Const. Amend. VI. This constitutional claim was not raised at
trial, and we therefore review it for plain error. United States

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C. Restrictions on Impeachment9

1. Background

Catalán claims that his Sixth Amendment right to confront

the witnesses against him and his Due Process rights were

unconstitutionally impeded by the trial court's refusal to allow

him to introduce extrinsic evidence that would have contradicted

the testimony of the government's key eyewitness, Torres.

Specifically, he argues that he should have been permitted to

introduce the testimony of several FBI agents who would have

impeached Torres's trial account of the robberies and the murder.

Catalán claims that the agents' excluded testimony was "crucial to

the defense theory" because he "wished to argue . . . that Torres

Alejandro was unworthy of belief because (among other reasons) he

dramatically changed his version of events very shortly before

trial, adding new and highly aggravating details."

Catalán names five FBI agents whom he should have been

allowed to call at trial. Agents Angel Marrero and María Cruz

interviewed Torres shortly after the March 27 robbery, while he was

in the hospital. Marrero and Cruz took notes of their interview in

v. Rodríguez-Lozada, 558 F.3d 29, 38 (1st. Cir. 2009). Given our
view about the minimal relevance of the tax records to the
interstate commerce element of the Hobbs Act charges, there was no
denial of Catalán's constitutional right to have compulsory process
for obtaining witnesses in his favor.
9
The discussion from section C.1 through section C.5 reflects
the views of the writing judge only. My colleagues express their
separate views in the concurrence that follows this opinion.

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an official FBI FD-302 Form ("302"), a form for reporting and

summarizing such an interview. United States v. Gonzalez-Melendez,

570 F.3d 1, 3 (1st Cir. 2009) (per curiam). The 302 of their

interview, which purports to record Torres's account of the

robbery, does not mention certain details which Torres gave in his

trial testimony and which Catalán claims "were directly relevant to

the government's theory of premeditation and death penalty." For

example, the 302 does not mention that Rodríguez pleaded for his

life and held up his arms to shield himself before Catalán shot him

several times at "point blank range," or that Catalán glanced

defiantly at Torres before taking that action.10 Catalán argued

below and argues again on appeal that the agents' testimony about

the March 27 incident would have undermined Torres's credibility

through impeachment by omission, because Torres would not have left

out such important details in his first interview if they were

10
In his brief, Catalán also claims that Agents Marrero and
Cruz would have been able to impeach Torres's trial account of the
March 6 attempted robbery. As far as can be discerned from the
record (appellant gives us no citations other than an unidentified
quotation, and the agents' report is not included in the record),
this is a misleading statement of the evidence. At no time during
the extensive discussions and arguments over this matter during
trial -- not even when the defendants made a proffer about Agent
Cruz's testimony -- was it suggested that Marrero or Cruz had ever
discussed the March 6 attempt with Torres. The record does
indicate, however, that FBI agent José Rios Calzada conducted an
interview of Torres after the March 6 attempt and that Torres's
account of the attempt was different during that interview than it
was at trial. Nonetheless, the defendants were permitted to call
him to the stand and, for purposes of impeachment, they entered the
302 report of the interview into evidence. See discussion infra.

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true. See, e.g., Jenkins v. Anderson, 447 U.S. 231, 239 (1980)

("Common law traditionally has allowed witnesses to be impeached by

their previous failure to state a fact in circumstances in which

that fact naturally would have been asserted.").

Catalán also wished to call FBI Agents Francisco Ng and

Félix Alvarado, who interviewed Torres after the November 30

robbery and also filed a 302 report. He argues that their

testimony would have impeached Torres's trial account of the

November 30 robbery. Whereas Torres testified at trial that he

had not observed the November 30 robbery, Alvarado and Ng's report

of their interview recounts that Torres had seen the robbery but

had "frozen" and was unable to call for help. Contrary to his

trial testimony, the report states that Torres did see the

assailants, although it also states that he said he could not

provide a good description of them.

Finally, Catalán claims that he should have been able to

call Agent Carlos Marchand, the FBI's case agent, to impeach

Torres's account of the March 27 robbery. Catalán claims that

Agent Marchand would have testified that he had never heard certain

details in Torres's trial account, such as that Rodríguez pleaded

for his life before Catalán unloaded his pistol into him, until

Torres testified at trial.

The trial court excluded the testimony of all five

agents, ruling that it constituted impeachment by prior

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inconsistent statement through extrinsic evidence of a collateral

matter and that the prior statements offered through agents Cruz

and Marrero were not in fact inconsistent with Torres's trial

testimony. However, Catalán was permitted to impeach Torres's

credibility by extrinsic evidence of inconsistent statements

through two other witnesses. He was permitted to call Carlos

Bonilla-Rivera, a security investigator for Ranger American who

recorded a statement from Torres after the November 30 robbery that

was signed by Torres. In that statement, contrary to his trial

testimony, Torres said that he saw, and was able to describe, one

of the assailants. The defendants also called Agent Ríos-Calzada,

who interviewed Torres after the March 6 robbery and took a written

statement from him that was inconsistent with his trial testimony.

The written statement was entered into evidence. The court

provided no explanation for why these witnesses could be called for

impeachment and not the others, except that Torres had signed the

statements he made to the two witnesses and therefore he had

"adopted" the statements.11

11
That distinction has no basis in the rules of evidence or
the common law of impeachment. "Any form of statement is
acceptable" for impeachment by prior inconsistent statement. 1
McCormick on Evidence § 34 at n.5 (6th ed. 2006). Federal Rule of
Evidence 613(b) only requires that the impeached witness be
"afforded an opportunity to explain or deny the [prior statement]
and the opposite party [be] afforded the opportunity to interrogate
the witness thereon," and has no requirement that the witness have
adopted the prior statement.

-21-
 On appeal, Catalán contests the court's decision to

exclude the testimony of Agents Ng, Alvaredo, Cruz, Marrero, and

Marchand.12

2. Catalán's Constitutional Claims

The Confrontation Clause of the Sixth Amendment protects

a criminal defendant's right "to be confronted with the witnesses

against him." U.S. Const. Amend. VI. Although the ability to

pursue an impeaching line of inquiry with the introduction of

extrinsic evidence supporting that inquiry might be viewed as part

and parcel of the right to cross-examination, this circuit has yet

to decide whether the Confrontation Clause provides defendants a

right to impeach witnesses through extrinsic evidence. In White v.

Coplan, 399 F.3d 18, 26 (1st Cir. 2005), for example, a criminal

defendant was found to have the right under the Confrontation

Clause to cross-examine his accusers about false allegations they

had made in the past, but the panel did not reach the question

whether he had a right to introduce extrinsic evidence about those

allegations. It was specifically noted that "cross-examination and

extrinsic proof are two different issues." Id. at 25. The panel

wrote that "we are not endorsing any open-ended constitutional

12
The government argues that two of the five witnesses "would
have possibly presented cumulative testimony." Cruz and Marrero
would presumably have given similar testimony, as would Ng and
Alvarado. See Fed. R. Evid. 403 (relevant evidence may be
excluded, among other reasons, if it constitutes "needless
presentation of cumulative evidence."). For reasons discussed
below, it is not crucial that this contention be resolved.

-22-
right to offer extrinsic evidence [for impeachment purposes]. Such

an excursion requires more witnesses and documents, and so greater

risk of confusion and delay . . . ." Id. at 26; see also Farley v.

Lafler, 193 Fed. Appx. 543, 547 (6th Cir. 2006) (unpublished) ("The

Supreme Court has not recognized the sweep of the Confrontation

Clause to extend beyond guaranteeing the criminal defendant's

right[] to physically confront and cross-examine adverse witnesses

to encompass the right to impeach an adverse witness by putting on

a third-party witness.") (quotation marks and citation omitted).

Appellant makes no attempt to address White or otherwise explain

specifically why the Confrontation Clause requires the introduction

of the extrinsic evidence for impeachment purposes, and has

therefore waived his conclusory Confrontation Clause argument.

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

However, as appellant points out, and the government

acknowledges, "[w]hether rooted directly in the Due Process Clause

of the Fourteenth Amendment, or in the Compulsory Process or

Confrontation clauses of the Sixth Amendment, the Constitution

guarantees criminal defendants 'a meaningful opportunity to present

a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986).

In Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (also cited by

appellant in his brief), the Supreme Court recognized the

constitutional dimension of a defendant's right to present

witnesses in his defense, noting that "[f]ew rights are more

-23-
fundamental." In Chambers, the excluded witnesses could have

implicated a person other than the defendant, and their testimony

would have impeached that other person's denial of involvement in

the crime. Id. at 292. The exclusion of those witnesses infringed

the defendant's due process right to "present witnesses in his own

defense" and contributed to the denial of a constitutionally fair

trial. Id. at 302-03

Because appellant has cited Chambers and other Due

Process cases, he has not waived that constitutional claim, and his

complaint must be examined under the Due Process rubric. In that

analysis, "[a] defendant's right to present relevant evidence is

not unlimited, but rather is subject to reasonable restrictions."

United States v. Scheffer, 523 U.S. 303, 308 (1998);13 see also

Taylor v. Illinois, 484 U.S. 400, 410 (1988) ("The accused does not

13
In Scheffer, the Court wrote that:

A defendant's right to present relevant evidence is not
unlimited, but rather is subject to reasonable
restrictions. A defendant's interest in presenting such
evidence may thus bow to accommodate other legitimate
interests in the criminal trial process. As a result,
state and federal rulemakers have broad latitude under
the Constitution to establish rules excluding evidence
from criminal trials. Such rules do not abridge an
accused's right to present a defense so long as they are
not arbitrary or disproportionate to the purposes they
are designed to serve. Moreover, we have found the
exclusion of relevant evidence to be unconstitutionally
arbitrary or disproportionate only where it has infringed
upon a weighty interest of the accused.

Id. (quotation marks and citations omitted).

-24-
have an unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of

evidence."). Constitutional errors are reviewed for harmlessness

beyond a reasonable doubt. Bembury v. Butler, 968 F.2d 1399, 1400

(1st Cir. 1992).14

3. The Trial Court's Ruling on Inconsistency

The court ruled that the statement made by Torres at the

hospital following the March 27 murder of Rodríguez, recorded in a

302 by agents Marerro and Cruz, was not inconsistent with Torres's

trial testimony.15 The court concluded that in light of Torres's

14
The government argues that "[s]ince the defendant failed
to raise some of [the] specific claims or arguments at trial or
below, the Court reviews the claims for plain error." The
government's only specific contention in this regard is that
Catalán did not raise the argument that the impeachment would
expose Torres's bias or motive to testify, which, in the words of
Catalán, was to "fix[] up all holes in the government's case,
maximizing the chances in securing Puerto Rico's first death
penalty verdict in modern times.” However, appellant argued below:

The defense gets to say to the jury . . . are these
details things that would be left out . . . if they
really happened? Or are these details that are being
added on later to make it a better death penalty case?
That's our right to argue . . . .

Although the issue is close, appellant's bias and motive argument
is treated as having been properly raised. In addition to arguing
that it would expose bias and motive, appellant unquestionably made
the argument below that the impeachment would call into doubt
Torres's credibility generally in the sense that, for whatever
reason, he testified at trial to inflammatory details about the
robberies and murder that he had not mentioned during prior
interviews.
15
The court offered this ruling as a supplemental basis for
exclusion of the impeachment, after making its ruling on the

-25-
injured condition at the time of the interview, the fact that he

had taken pain medication, the short duration of the interview, and

the fact that "we don't know what type of questions the agents

asked," it would not have been "natural" for Torres to include the

aggravating details. See United States v. Meserve, 271 F.3d 314,

320-21 (1st Cir. 2001) ("Prior statements . . . that omit details

included in a witness's trial testimony are inconsistent if it

would have been 'natural' for the witness to include the details in

the earlier statement."). The substance of defendants' proffer

specifically stated, however, that Agent Cruz would testify that in

her estimation Torres was an appropriate subject for an interview.

Defense counsel proffered that Agent Cruz would testify as follows:

She would say that she recognized that he was
in pain, that he had been shot, I think it was
in the left hand, that she, in accordance with
procedure and policy, took notes during the
interview, that she recorded all of the
important things that he said about the event,
that the notes were effectively transcribed
into a written report which . . . she
reviewed, initialed, as did Mr. Marrero, for
accuracy . . . . She said that while he was
in pain, in her opinion he was a subject for
an interview. She did not feel that he was
incapacitated or incapable of being
interviewed and providing information. That
during the interview itself, as he described
the events that took place on March 27th, at
no time during that interview did he indicate
Mr. Rodríguez has his arms raised in a
submissive mode prior to being shot. He did

collateral fact issue. See infra Part II(c)(4). This issue is
discussed first, however, because it is the logical antecedent of
the ruling that the impeachment was collateral.

-26-
 not at any time indicate that, prior to Mr.
Rodríguez being shot, in the position with his
arms raised, did he hear him say, please, no,
please, no, please, no, and he did not
indicate in any way that prior to that, in the
mode with his hands raised, that the
assailant, who he later identified in court as
Mr. Hernaldo Medina Villegas, approached him
from the front and shot him twice in the
chest.16

Defense counsel also proffered that Agent Cruz had stated that she

did not remember whether the interview was conducted in a question

and answer format, or whether she had simply recorded Torres's

narrative.

Unlike Meserve, on which the district court relied for

its ruling that the omitted details were not inconsistent with

Torres's trial testimony, the details omitted in Torres's earlier

statement were not "peripheral" but went directly to the important

element of premeditation as well as the possible imposition of the

death penalty. Cf. Meserve, 271 F.3d at 321 (where "nuances [were]

peripheral," district court did not abuse its discretion in

excluding impeachment by omission through extrinsic evidence). As

described in the discussion of the sufficiency of the evidence

supporting Medina's conviction on the murder charge, see infra Part

III(A), the indictment charged that the defendants had acted "with

16
Although it is not included in the proffer, later
discussions among the parties make clear that the 302 also recorded
that Torres described a second shooter who, while wounded on the
ground, fired several shots at the victim. However, this account
of the second shooter, presumably Catalán, did not include the
details of concern to appellant.

-27-
premeditation" in killing Rodríguez. With respect to

premeditation, "it is the fact of deliberation, of second

thought[,] that is important." United States v. Frappier, 807 F.2d

257, 261 (1st Cir. 1986) (citing Fisher v. United States, 328 U.S.

463, 469 n.3 (1946)). The victim crying out for his life before he

was shot by the defendant was some of the government's most

persuasive evidence that Catalán had acted with premeditation in

shooting Rodríguez.17

Second, the impeachment was inconsistent in an important

sense because the details that were essential to the government's

death penalty case were left out of Torres's first interview. The

same jury that decided the guilt phase was later asked to determine

whether the death penalty was appropriate, and in doing so was

specifically instructed that it could "consider any evidence that

was presented during the guilt phase of the trial." In the penalty

17
The government could have secured a first degree murder
conviction without specifically charging premeditation, see 18
U.S.C. § 1111(a), but it nonetheless included premeditation in the
charge on count eight as an element of the charged offense. The
judge instructed the jury that it must find both malice
aforethought as well as premeditation in order to convict the
defendants. Although the defendants were charged with "aiding and
abetting" the commission of the murder in count eight, that charge
did not lessen the mental state required to convict appellant of
the murder charge. Even under the aiding and abetting theory of
liability, the government was required to prove that Catalán
"consciously shared" the principal's intent. United States v.
Mangual-Corchado, 139 F.3d 34, 44 (1st Cir. 1998) (an aiding and
abetting murder conviction "required proof beyond a reasonable
doubt that Cirilo, before the murder occurred, consciously shared
[the principal's] intention to kill Meijas and sought to ensure the
success of the criminal enterprise . . . .").

-28-
phase, the jury was asked to consider whether certain "statutory

aggravating factors" applied to the crime. See 18 U.S.C. §§ 3591,

3592. These included whether the crime was committed in a

"heinous, cruel or depraved manner," and whether the victim was

vulnerable.

In the final analysis, the jury had to decide whether the

murder of Rodríguez was a cold-blooded execution, or something

else. Torres added several details at trial that went to that

core issue and formed a central aspect of his narrative of the

events of March 27, but which he had not mentioned in his earlier

account. There was uncertainty about Torres's mental and physical

condition at the time of the interview in the hospital, and the way

in which the interview was conducted. Under these circumstances,

it was an abuse of discretion for the court to determine that the

crucial omissions in Marrero and Cruz's 302 report of their

interview with Torres were "natural" and not inconsistent with his

trial testimony. The significance of the omissions was a jury

issue.18

18
See 1 McCormick on Evidence § 34 (6th ed. 2006):

[W]hat degree of inconsistency between the witness's
testimony and his previous statement is required? . . .
The test ought to be: Could the jury reasonably find that
a witness who believed the truth of the facts testified
to would be unlikely to make a prior statement of this
tenor? . . . Instead of restricting the use of prior
statements by a mechanical test of inconsistency, in case
of doubt the courts should lean toward receiving such
statements to aid in evaluating the testimony. After

-29-
4. The Trial Court's Collateral Fact Rulings

Under the common law of evidence and the law of this

circuit, impeachment by extrinsic evidence is normally restricted

to impeachment on matters that are not collateral. United States

v. Cruz-Rodriguez, 541 F.3d 19, 30 (1st Cir. 2008) ("'It is well

established that a party may not present extrinsic evidence to

impeach a witness by contradiction on a collateral matter.'")

(quoting United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir.

1993)).19 A matter is considered collateral if "'the matter itself

is not relevant in the litigation to establish a fact of

consequence, i.e., not relevant for a purpose other than mere

contradiction of the in-court testimony of the witness.'"

Beauchamp, 986 F.2d at 4 (quoting 1 McCormick on Evidence § 45 (4th

ed. 1992)).

all, the pretrial statements were made when memory was
fresher and when there was less time for the play of
bias. Thus, they are often more trustworthy than the
testimony.
19
But see 1 McCormick on Evidence § 49 (6th ed. 2006)
("Given Rule 402 [which provides that "all relevant evidence is
admissible"], there is a powerful argument that the collateral fact
rule was impliedly repealed by enactment of the Federal Rules.
Under this reading of the Federal Rules, there is no rigid
prohibition on introducing extrinsic evidence to impeach a witness
on a collateral matter; rather, under Rule 403, the judge would
make a practical judgment as to whether the importance of the
witness's testimony and the impeachment warrants the expenditure of
the additional trial time. However, the collateral fact rule was
so ingrained at common law that many federal opinions continue to
mention 'collateral' evidence."). This circuit continues to apply
the collateral fact rule. See, e.g., Cruz-Rodriguez, 541 F.3d at
30; United States v. Marino, 277 F.3d 11, 24 (1st Cir. 2002).

-30-
 The rule restricting impeachment to non-collateral

matters is analogous to Rule 403's relevancy balancing test, which

calls for relevant evidence to be excluded when its "probative

value is substantially outweighed by . . . considerations of undue

delay, [or] waste of time . . . ." Fed. R. Evid. 403; see also

Beauchamp, 986 F.2d at 4. Although any demonstrated inconsistency

in a witness's statement may impeach a witness's credibility, other

concerns (such as wasting time and misleading the jury) become more

important when the inconsistency at issue involves a statement

relating to a matter that "'is not relevant in the litigation to

establish a fact of consequence.'" Beauchamp, 986 F.2d at 4

(quoting 1 McCormick on Evidence § 45, 169 (4th ed. 1992)). On the

other hand, when a statement that would be the subject of

impeachment "is logically relevant to the merits of the case as

well as the witness's credibility, it is worth the additional court

time entailed in hearing extrinsic evidence." 1 McCormick on

Evidence § 49 (6th ed. 2006).

Over defendants' protestations to the contrary, the trial

court repeatedly ruled that evidence of Torres's prior inconsistent

statements about the robberies was not admissible because it was

"collateral." For example, in response to defendants' request to

impeach Torres's claim that Rodríguez had pleaded for his life

before being shot, the court said, "it's collateral source,

collateral impeachment by extrinsic evidence because whether he

-31-
said, no, no, or -- yes, yes . . . that all doesn't go directly to

the issues of guilt or innocence of the two defendants."

It is true that this circuit has said that "[i]n light of

the collateral issue rule, in order to be admissible, . . .

testimony must not only contradict a statement . . . but also be

material to [the defendant's] guilt or innocence." United States

v. Mulinelli-Navas, 111 F.3d 983, 988 (1st Cir. 1997) (citing

United States v. Payne, 102 F.3d 289, 295 (7th Cir. 1996)).

However, it appears that the district court may have interpreted

that statement -- or one like it -- to mean that in order to be

material here, the extrinsic evidence at issue must relate to

whether the defendant did or did not shoot Rodríguez, or whether he

stole the money, and not how the shooting or robbery were carried

out.

This is too narrow a view. As has been noted, some of

the details Catalán sought to impeach -- such as the defendants'

and victim's behavior during the shooting -- plainly helped the

government establish the premeditation that was charged as an

aspect of the murder in count eight. Furthermore, several of the

details were certainly relevant to the jury's consideration of the

death penalty if the defendants were convicted.20 See Kines v.

20
Because it is not necessary to this decision, the
significance, if any, of the fact that Agents Ng and Alvarado would
have testified about a robbery for which appellant was not charged
(the November 30 robbery) is not addressed.

-32-
Butterworth, 669 F.2d at 6, 12 (1st Cir. 1981). Torres was the

only eyewitness to the March 27 murder of his partner, and was also

a witness to and victim of the November 30 robbery. He had

testified that the crimes were committed in a certain way, and the

defendants sought to impeach him by introducing evidence through

his prior inconsistent statements that the crimes were not

committed that way. His accounts of the robberies and murder were

unquestionably material to the government's case against Catalán,

including its request for the death penalty, even if the

impeachment of Torres on details of those accounts may not have

exculpated Catalán from involvement in the crime.

Furthermore, Catalán argued below and argues on appeal

that the trial court should have permitted the impeachment because

it went to matters brought out on direct examination by the

government, not through cross-examination by the defendant. That

distinction is significant. The government's own belief that

Torres's account of the details of the robberies and the murder

were important supports the non-collateral nature of the

inconsistencies identified by Catalán.21 Cf. United States v.

21
However, this is not to suggest that testimony elicited on
direct is always or automatically impeachable. See, e.g., Charles
Alan Wright & Victor James Gold, 27 Fed. Prac. & Proc. Evid. § 6096
(2d ed. 2005) ("Some older authority suggests that the collateral
matter doctrine applies only when the testimony to be contradicted
was elicited on cross-examination. Under this approach, when a
witness testifies to facts during direct examination she may be
impeached by extrinsic evidence even if those facts are collateral.
More recent authority and commentary rejects this approach,

-33-
Sotomayor-Vázquez, 249 F.3d 1, 12 (1st Cir. 2001) (despite the

prohibitions of Rule 404(b), "[w]hen a defendant has, on direct

examination, made a general denial of engaging in conduct material

to the case, the prosecution may impeach that testimony by proving

that the defendant did engage in that conduct on a prior

occasion"). Finally, Catalán argues that exposure of the

inconsistencies would have revealed Torres's motive to testify

falsely: "fixing up all holes in the government's case, maximizing

the chances in securing Puerto Rico's first death penalty verdict

in modern times." This circuit has said that "a witness's . . .

motive to testify falsely is generally considered to be a non-

collateral issue." Beauchamp, 986 F.2d at 4.

For all of these reasons, the district court erred in

excluding the testimony of the agents because of its view that

their testimony dealt with a collateral matter.

5. Harmless Error

Both of the district court's rationales for excluding the

impeachment testimony of the five government agents -- that some of

the statements were not inconsistent and that all of the proffered

testimony was collateral -- were erroneous applications of the

rules of evidence. However, "[v]iolation of a rule of evidence

does not itself amount to a constitutional violation." Evans v.

reasoning that contradiction as to a trivial matter wastes time and
confuses the issues no matter whether the contradiction occurs on
direct or cross examination.").

-34-
Verdini, 466 F.3d 141, 145 (1st Cir. 2006). It is not necessary to

decide whether the exclusion of the extrinsic evidence was an error

of constitutional dimension. Under the circumstances of this case,

even if there was a constitutional error, the error was harmless

beyond a reasonable doubt. The evidence against Catalán was

overwhelming: he was found wounded at the scene of the March 27

robbery and murder, holding one of the two murder weapons, and he

was later identified in court as the perpetrator. That inculpatory

evidence would not have been impeached by the evidence that he

sought to introduce through any of the agents. Furthermore,

Catalán was permitted to impeach Torres's credibility by extrinsic

evidence of inconsistent statements through Bonilla and Ríos, whose

interviews with Torres following the November 30 and March 6

incidents differed from Torres's accounts at trial.

Of course, if Catalán had been sentenced to death, it

might be necessary to decide whether the exclusion of the extrinsic

evidence about the March 27 incident22 was an error of

constitutional dimension, because the harmless error analysis might

well be different. As noted, in the penalty phase of the trial,

the same jury that had decided appellants' guilt was asked to

determine whether to impose the death penalty, and was expressly

instructed that it could consider the evidence it heard in the

22
The desired impeachment through agents Ng and Alvarado was
not relevant to the March 27 murder.

-35-
guilt phase. Defense counsel expressed this concern at trial,

arguing that if Torres's testimony went unimpeached, the

defendants' lawyers would not later be able to "unring the bell"

about the reprehensible details when it came time for the jury to

deliberate about whether to impose the death penalty. That

argument was apt, but, in the final analysis, the jury apparently

did unring the bell.23

6. The Trial Court's Sua Sponte Comments

Catalán points to several portions in the trial

transcript where the judge interrupted defense counsel, restricting

or directing the course of defense counsel's examination. Catalán

claims that these interruptions violated his Confrontation Clause

right to cross-examine witnesses against him. After reading the

excerpted portions of the transcript in context, it is clear that

appellant's objections are groundless. In many places, the

district court directed counsel on the proper way to conduct the

examination; in others, the court reprimanded trial counsel for

ignoring its earlier rulings. The court also interrupted the

government's lawyers on occasion, and frequently sided with the

23
Strangely, Catalán apparently did not seek to have any of
the agents testify about Torres's out-of-court account of the March
27 robbery and murder during the penalty phase of the trial, even
though the court clearly took a different view of the relevance of
the evidence in that phase of the trial. For example, it allowed
co-defendant Medina to present previously excluded impeachment by
extrinsic evidence through Agent Marchand during Medina's penalty-
phase case. (Catalán's penalty-phase case preceded Medina's.)

-36-
defendants on objections. "It is well-established that a judge is

not a mere umpire; he is the governor of the trial for the purpose

of assuring its proper conduct, and has a perfect right -- albeit

a right that should be exercised with care -- to participate

actively in the trial proper." Logue v. Dore, 103 F.3d 1040, 1045

(1st Cir. 1997) (quotation omitted). After careful consideration

of the trial transcript, it is clear that the trial court

overstepped no boundaries.

D. Double Jeopardy

Catalán claims that some of his convictions violated the

Double Jeopardy Clause of the Fifth Amendment, which forbids

punishing a person twice for the same offense. U.S. Const. amend.

V. In Blockburger v. United States, 284 U.S. 299, 304 (1932), the

Supreme Court set forth the following test for determining whether

multiple punishments for related offenses violate the Double

Jeopardy Clause: "where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other

does not."

The government has sensibly conceded that the convictions

for the offenses in counts eight and nine violated the Double

Jeopardy Clause. Count nine set forth a violation of 18 U.S.C. §

924(c)(1)(A)(iii) for carrying a firearm in furtherance of the

-37-
March 27 robbery. Count eight set forth a violation of 18 U.S.C.

924(j) for use of firearm during the March 27th robbery, which

resulted in the death of Rodríguez. Count nine was a lesser

included offense of count eight, as it did not require proof of any

fact not required for conviction on count eight. See United States

v. Jiménez-Torres, 435 F.3d 3, 10 (1st Cir. 2006) (a § 924(c)(1)

offense can be a lesser included offense of a § 924(j) offense).24

On the other hand, we reject Catalán's contention that

his convictions on counts two and eight constitute a violation of

double jeopardy. Because he did not raise this claim below, we

review it for plain error. United States v. Winter, 70 F.3d. 655,

659 (1st Cir. 1995). Thus, Catalán must show that: 1) there was an

error, 2) it was plain, 3) it affected a substantial right, and 4)

it "seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings." United States v. Olano, 507

U.S. 725, 732 (1993). The firearm conviction on count two is for

the use of a firearm in connection with the overall conspiracy to

rob armored vehicles (the count one conspiracy), whereas the

firearm conviction on count eight is for use of a firearm in

24
Oddly, counsel for Medina has not also argued that Medina's
convictions on counts eight and nine violate double jeopardy.
Although in exceptional circumstances we may address arguments not
raised by counsel, see United States v. Atkinson, 297 U.S. 157, 160
(1936), those circumstances are very rare and not present here.
Other than a $100 special assessment imposed for count nine,
Medina's conviction on count nine does not and cannot affect his
sentence, which is life imprisonment.

-38-
connection with the substantive robbery committed on March 27 (the

count seven robbery). Therefore, counts two and nine each

"require[] proof of a fact which the other does not." Blockburger,

284 U.S. at 304; cf. Marino, 277 F.3d at 39 ("[A] substantive RICO

violation and a RICO conspiracy are not the same offense for double

jeopardy purposes."). We therefore find no error, let alone plain

error, in Catalán's conviction on count two.

III.

Appellant Medina challenges: 1) the sufficiency of the

evidence supporting the conviction of count eight (the murder

count), 2) the sufficiency of the evidence supporting the

conviction of counts five and six (the carjacking counts), 3) the

district court's failure to allow him the opportunity for

allocution before being sentenced to life imprisonment on count

eight, and 4) the district court's calculation of the guideline

sentencing range on count eight.25

25
In his pro se supplemental brief, Medina also argues that
his "conviction[s] and sentences on all counts must be vacated as
the evidence was legally insufficient." However, while he presents
detailed arguments about the insufficiency of the evidence for
counts five, six, and eight, he does not even mention the other
counts, let alone explain why the evidence was insufficient. Even
affording him a more lenient standard because he is pro se on these
claims, see, e.g., Johnson v. Rodriguez, 943 F.2d 104, 107 (1st
Cir. 1991), this argumentation is insufficient to bring the
sufficiency of the evidence for claims one through four and seven
before us. Zannino, 895 F.2d at 17.

-39-
A. Sufficiency of the Evidence

Before discussing Medina's specific challenges to the

sufficiency of the evidence against him on counts five, six, and

eight, we discuss a more general challenge that he apparently

intends to make for all of the counts that charge him with "aiding

and abetting" in the perpetration of a crime. He contends that he

could not have been convicted of aiding and abetting because no

"principal" was charged with and convicted of the crimes.

Appellant's claim is based on a mistaken understanding of

our law. "One who aids and abets a crime is punishable as a

principal," United States v. Carlos Cruz, 352 F.3d 499, 507 (1st

Cir. 2003); see also 18 U.S.C. § 2, and "an aider and abettor in

the commission of a federal offense may be convicted, although the

principal had been acquitted of the offense charged." United

States v. Cyr, 712 F.2d 729, 732 (1st Cir. 1983) (citing Standefer

v. United States, 447 U.S. 10, 20 (1980)). While "[i]t is

axiomatic that an aiding and abetting conviction requires proof

that the substantive crime has been committed," Cyr, 712 F.2d at

732, there was overwhelming proof that the underlying crimes --

essentially robbery, use of firearms, carjacking, and murder --

were committed. Among other evidence, there was testimony from

Cruz, Torres, and Bravo which, taken together, detailed how armed

assailants, pointing weapons, stole significant sums of cash from

Ranger's guards on November 30, 2001 and March 27, 2002.

-40-
Furthermore, Julía testified that his Ford Explorer was stolen from

him by men pointing firearms at him, and the same Ford Explorer was

later found abandoned with the engine running near the scene of the

March 27 robbery. Julía's Glock, stolen along with the Explorer,

was found inside the vehicle and had been fired several times

during the robbery. Finally, and tragically, it is unquestionable

that Rodríguez was gunned down on March 27 while performing his

duties as a Ranger guard. The testimony of Torres, law enforcement

officers who arrived at the scene, and forensics experts who

examined the ballistics from the scene all consistently explain how

Rodríguez was murdered in the course of the robbery. Simply put,

there is nothing to appellant's claim that the evidence that any

principal had actually committed these crimes was too thin for him

to be convicted as an aider and abettor in the crimes.

More specifically, Medina also challenges the sufficiency

of the evidence undergirding his convictions for carjacking (count

five), use of a firearm during carjacking (count six), and the

murder of Rodríguez (count eight). We review sufficiency of the

evidence challenges de novo, "evaluating whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." United States v. Meléndez-

Torres, 420 F.3d 45, 48-49 (1st Cir. 2005) (internal quotation

marks omitted).

-41-
 Conviction for carjacking under 18 U.S.C. § 2119 requires

the government to prove beyond a reasonable doubt that a defendant:

1) took or attempted to take from the person or presence of

another, 2) a motor vehicle that had been "transported shipped, or

received in interstate or foreign commerce," 3) with "force and

violence or by intimidation", 4) with "intent to cause death or

serious bodily harm." 18 U.S.C. § 2119; United States v. García-

Alvarez, 541 F.3d 8, 16 (1st. Cir. 2008). A rational jury could

have found each of those elements beyond a reasonable doubt. Julía

testified that his green Ford Explorer was taken from him by two

men on the night of March 26, 2002 and that one of the men pointed

a nickel-plated pistol at Julía's face while demanding he exit the

car. Co-conspirator Morales always carried a nickel-plated pistol.

The same Ford Explorer, which the parties stipulated had traveled

through interstate commerce, was found the next day near the scene

of the robbery. Julía's Glock firearm, which had been in the glove

compartment of the Ford Explorer when it was stolen, had been used

during the robbery to shoot and kill Rodríguez. Torres identified

Medina as the person who had used the Glock during the shootout.

A government witness, Castro, testified that while he was a

cellmate of Medina, Medina recounted his involvement in the

carjacking as well as other crimes in the conspiracy.

There was also sufficient evidence to convict Medina on

count six, the related offense of aiding and abetting the use of a

-42-
firearm in conjunction with the carjacking. Again, Julía testified

that the men who had stolen the car had pointed a nickel-plated

pistol at his face.

Finally, there was sufficient evidence from which a

rational jury could conclude that Medina was guilty of count eight,

which charged that he aided and abetted the use of a firearm during

a violent crime that unlawfully killed Rodríguez, with malice

aforethought (as defined in 18 U.S.C. § 1111) "and with

premeditation." "18 U.S.C. § 1111 'was intended to adopt the

felony murder rule, and for a stated felony the 'malice' element is

satisfied by the intent to commit the unlawful felony.'" United

States v. Morales-Machuca, 546 F.3d 13, 22 (1st Cir. 2008) (quoting

United States v. Shea, 211 F.3d 658, 674 (1st Cir. 2000)).

Therefore, murder that results from robbery is first degree murder.

See 18 U.S.C. § 1111(a) ("Every murder . . . committed in the

perpetration of . . . robbery . . . is murder in the first

degree."). Nonetheless, the indictment also charged that

defendants acted with premeditation. "Premeditation" contemplates

a temporal dimension, which need only be an "appreciable" amount of

time; "it is the fact of deliberation, of second thought[,] that is

important." Frappier, 807 F.2d at 261 (citing Fisher, 328 U.S. at

469 n.3). The judge instructed the jury that:

[P]remeditation is typically associated with
killing in cold blood and require[s] the
period of time in which the accused
deliberates or thinks the matter over before

-43-
 acting. The law does not specify or require
any exact period of time that must pass
between the formation of the intent to kill
and the killing itself. But it must be long
enough for the killer after forming the intent
to kill to be fully consc[ious] of that
intent.

A reasonable jury could have found all of the elements of

count eight beyond a reasonable doubt. First, Torres identified

Medina as having fired the first of several shots at Rodríguez,

while Rodríguez was on the ground with his arms raised and was not

holding a weapon. Medina bragged to his prison cellmate, Alamo,

that he had obtained a Glock with a laser from a carjacking which

he later used in the March 27 shootout. Government experts

explained that the Glock had been fired several times at the scene,

and that at least one of its bullets hit Rodríguez and would have

proven fatal even if Rodríguez had not also been wounded by

Catalán's Berretta. Finally, Medina was in possession of several

newspaper articles about the March 27 robbery at the time of his

arrest. There was sufficient evidence not only that Medina "aided

and abetted" the violent felony that brought about the death of

Rodríguez, but that he also shared with Catalán the primary

responsibility for that death.

Based on this evidence, a rational jury could conclude

that Medina is guilty of count eight as well as counts five and

six. Therefore, we affirm all of the convictions against Medina.

-44-
B. Sentencing Challenges

Medina challenges the district court's failure to allow

him the opportunity to allocute before sentencing him on count

eight, the felony murder charge. Federal Rule of Criminal

Procedure 32(i)(4)(A) requires that before imposing sentence a

judge "address the defendant personally and ask the defendant if

the defendant wishes to make a statement in the defendant's own

behalf and to present any information in mitigation of punishment."

Medina was not afforded that opportunity before being sentenced on

count eight.

The government correctly concedes that Medina should be

re-sentenced at a proceeding where he is present and afforded the

opportunity to address the court. See United States v. Burgos-

Andújar, 275 F.3d 23, 28 (1st Cir. 2001) (due to the importance of

Rule 32(i)(4)(A), which "reflects our long tradition of giving all

defendants the right to directly address the court and plead for

mercy," "if a sentencing court fails to provide a defendant with

the chance to address the court, the reviewing court must remand

the case for resentencing, generally without needing to inquire

into prejudice."). Therefore, we vacate Medina's sentence on count

eight and remand to the district court for re-sentencing. Because

we remand for resentencing, we need not reach Medina's alternative

-45-
argument that the district court failed to comply with the

requirements of 18 U.S.C. § 3553(c).26

IV.

For the reasons set forth above, we vacate the conviction

and sentence of appellant Catalán on count nine and further direct

that the special assessment on that count be removed. We further

vacate Medina's sentence on count eight and remand for

resentencing. All other convictions and sentences are affirmed.

So ordered.

- Concurring Opinion Follows -

26
18 U.S.C. § 3553(c) requires a sentencing court to "state
in open court the reasons for its imposition of the particular
sentence . . . ."

-46-
 BOUDIN and STAHL, Circuit Judges, concurring. Although

we concur in the result and in most of what our colleague has

written, our reasons differ from his in rejecting one of the

principal claims of error. Among other claims raised on appeal,

Lorenzo Catalán-Roman ("Catalán") challenges the district court's

exclusion of testimony from FBI agents that he contends would have

impeached Eluber Torres-Alejandro's ("Torres") testimony, most

importantly, Torres' testimony about the robbery and murder on

March 27, 2002. Our colleague believes there was error but that it

was harmless; in our view no error was committed by the district

judge.

Torres testified that Gilberto Rodríguez-Cabrera

("Rodríguez") had his hands in the air before any shots were fired,

and that after Torres heard the first shot, Rodríguez fell

backward, leaning against the front window of the credit union at

which the robbery occurred; with his hands still raised, Rodríguez

then pleaded for his life before being shot by co-defendant

Hernaldo Medina-Villegas ("Medina"); Rodríguez then fell to the

ground wounded, after which Catalán shot him multiple times.27 The

allegedly inconsistent testimony that Catalán wanted to introduce

was expected testimony from FBI agents, who interviewed Torres in

27
There is some discrepancy between the testimony, both as we
read it and in the description of it given in the briefs, as to
just when the hand raising occurred; we have chosen the version
that seems to be best supported, but the differences are not
material to the outcome.

-47-
the hospital, that Torres did not mention Rodríguez' raising of

hands and pleading for his life.

The district judge said that the omissions were not

inconsistent with Torres' court testimony (the court testimony

added details but did not contradict the hospital statements) and,

in addition, the hand raising and pleading (if they occurred) were

merely "collateral" to the issues on trial and therefore not proper

subjects for impeachment by extrinsic evidence. Under applicable

evidence law, either ruling--if correct--would justify excluding

the testimony, 1 K. Broun, McCormick on Evidence §§ 34, 36, at 152,

156 (6th ed. 2006), but Catalán disputes both rulings, contending

that his constitutional right to present a fair defense was

impaired by mistaken evidentiary rulings.

Although Catalán cites constitutional precedent, such as

Chambers v. Mississippi, 410 U.S. 284 (1973), he does not develop

any constitutional claim independent of his assertion that the

court misapplied familiar federal common-law doctrine on

impeachment by inconsistency and the collateral issue rule. Even

if we assumed arguendo that errors in applying those rules were

themselves constitutional error--hardly like to be so in all cases-

-it would affect only the harmless error standard to be applied,

Chapman v. California, 386 U.S. 18, 22-24 (1967), and in this case

we think there was no error by the district judge in finding the

omissions not inconsistent with Torres' testimony.

-48-
 Starting with the issue of inconsistency, the ordinary

rule is that earlier omissions in reciting the same story--although

not literally contradictions of later testimony--can be used to

impeach a witness for inconsistency (on cross examination of the

witness but not necessarily by extrinsic evidence) if the omitted

information was not stated earlier "in circumstances in which that

fact naturally would have been asserted." Jenkins v. Anderson, 447

U.S. 231, 239 (1980); United States v. Meserve, 271 F.3d 314, 320-

21 (1st Cir. 2001). Ordinarily, one might think that lurid details

of the kind supplied in Torres' trial testimony might well have

been supplied in the prior FBI interview; so, if they were not,

this would allow, although it would not compel, an inference of

inconsistency and so make the omissions relevant.

But the circumstances here were not ordinary. Torres was

interviewed in the hospital, in pain and under medication; and

while he was a critical witness, he was interviewed for only 15 to

20 minutes. Defense counsel asserted to the district court that

one agent would testify that although Torres "was in pain," in her

opinion he was not "incapacitated or incapable of being interviewed

and providing information," but this does not mean that he was in

the same condition as an ordinary witness or likely to be subject

to the same degree or duration of questioning. Another agent

testified (during co-defendant Medina's penalty phase) that such an

-49-
interview usually lasts several hours and that Torres' interview

was "[o]bviously not" conducted under ideal circumstances.

In addition, the agents' main job was to find out who

were the robbers and who had done the shooting. That Torres would

likely have volunteered from his hospital bed details about raised

hands and pleading is far from obvious, and so the supposed

inference of inconsistency is of very doubtful force. There was no

proffer by Catalán, and no reason to believe, that any agent was

prepared to testify that Torres had been asked about raised hands,

pleading or anything else focusing on these details and had denied

such happenings. Absent inconsistency, the failure to mention the

details had no impeachment value.

Although some trial judges might have left the matter to

the jury, the district judge is entitled to make the threshold

judgment as to inconsistency as an admissibility ruling, and such

a call (like most other threshold admissibility rulings), is

reviewed under an abuse of discretion standard. Meserve, 271 F.3d

at 321. The trial judge found that in the circumstances it would

not have been natural for Torres to add the details in question;

and, given that admissibility depends not on any literal

inconsistency but entirely on an inference about what a witness

would likely have volunteered in these circumstances, we are not

prepared to find an abuse of discretion here.

-50-
 Likely the district judge would not have prevented

Catalán from cross-examining Torres himself as to whether and why

he had previously omitted details, and Catalán's counsel did ask

Torres some questions about the March 27 interview with the FBI

agents (although Torres largely testified only that he did not

remember what happened in the interview). Typically, latitude is

allowed in cross-examining the witness already on the stand whose

reactions may be grist for the jury even without inconsistency.

But before having other witnesses called, and trial time spent as

well on exploring another dimension of Torres' medical condition,

the district judge was entitled to insist on inconsistency and

reasonably concluded that the omissions here did not qualify.

Although it does not affect the outcome as to the

omissions in this case, a further limitation exists on the right to

call a separate witness to testify to inconsistent statements: the

traditional rule is that extrinsic evidence of prior inconsistent

statements by the witness can be offered only if the earlier

statements also were relevant to the substance of the case (in

jargon, were "not collateral"). United States v. Cruz-Rodriguez,

541 F.3d 19, 30 (1st Cir. 2008), cert. denied, 129 S. Ct. 1017

(2009); United States v. Beauchamp, 986 F.2d 1, 3-4 (1st Cir.

1993). If so, the excursion required by extrinsic evidence is

deemed worthwhile; otherwise, not.

-51-
 Here, the indictment charged premeditation--although it

could have relied on felony murder instead, 18 U.S.C. § 1111(a)

(2006)28--and one might think that the supposed hand raising and

pleading could bear on premeditation. But forensic evidence

established that Catalán shot Rodríguez after the latter had

already been wounded by Medina, and Torres' testimony, unimpeached

in this regard, merely confirmed this sequence of events. Shooting

an already wounded man ordinarily meets the requirements of

premeditation--no particular interval is required, United States v.

Brown, 518 F.2d 821, 826 (7th Cir.), cert. denied, 423 U.S. 917

(1975)--so as to guilt it scarcely mattered whether Rodríguez had

raised his hands and pleaded.

The lurid details about hand raising and pleading were

relevant--that is, not collateral--to the jury's further choice in

the second phase of the trial as to whether to recommend death or

life imprisonment. Thus, if the hospital-bed omissions were deemed

inconsistent, extrinsic evidence of them would have to be allowed

at that second stage. It is hard to imagine that at any penalty

stage a judge would have excluded testimony bearing on the

28
Count eight of the second superseding indictment charged
Catalán under 18 U.S.C. §§ 2, 924(j) with aiding and abetting the
use of a firearm to cause the death of a person in the course of a
crime of violence, specifically, a robbery. Section 924(j)(1)
cross-references 18 U.S.C. § 1111 and provides that if the killing
is "murder (as defined in section 1111)," the perpetrator shall "be
punished by death or by imprisonment for any term of years or for
life." 18 U.S.C. § 924(j)(1). The indictment also explicitly
cross-referenced the definition of murder in section 1111.

-52-
circumstances of the killing even if it consisted merely of Torres'

failure to mention any details in an earlier interview.29 In the

event, the jury did not recommend the death penalty and the judge

made clear his own default position was life imprisonment.

A more direct contradiction, about which Catalán also

complains, concerns Torres' testimony about the earlier robbery on

November 30, 2001. At trial, Torres testified that he did not

observe the November 30 robbery or the assailants; earlier, it

appears, two other FBI agents had interviewed him about the robbery

and he told the FBI agents (according to their notes) that he saw

the robbery but "froze" and could not call for help and that he saw

the assailants but could not describe them. At trial Catalán

sought to have the agents testify to the inconsistency, but the

trial judge ruled it a collateral issue.

If Torres did make the earlier statements, they were

certainly inconsistent and so went to his credibility, but (as

already noted) this permits impeachment only through cross

examination and not by extrinsic evidence unless the contradiction

is material to the merits of the case. Here, it is hard to see how

the contradiction is of any assistance to Catalán on the merits.

He was not charged with participation in the November 30 robbery,

29
There is no indication that Catalán sought to introduce the
supposed omissions at the penalty phase, and the judge permitted
co-defendant Medina to introduce in the penalty phase testimony
from Agent Carlos Marchand on the omissions in Torres' prior
statements about March 27.

-53-
and neither version of Torres' testimony--the one offered at trial

or the one given earlier to the agents--implicated Catalán in that

robbery. Nor does Catalán offer in his brief any explanation

beyond saying that the two versions contradict one another--which

goes only to credibility and not to the subject matter of the case.

Catalán also claims that, beyond impeaching the specific

facts in Torres' testimony, the excluded FBI agent testimony in

both instances also would have demonstrated Torres' bias and

improper motive in testifying, and so was not collateral. But this

is not so and the claim is not persuasively explained; the excluded

testimony did not establish what Torres' bias and improper motive

were, it merely contradicted certain details in Torres' version of

events. Nor did Catalán make this bias or motive argument in the

district court: he argued only that Torres' testimony was

inconsistent and Torres therefore not credible; the new ground is

not only unsupported but forfeit. Fed. R. Evid. 103(a); United

States v. Olano, 507 U.S. 725, 731 (1993).

Accordingly, we conclude that with respect to the claimed

evidentiary errors, the district judge permissibly excluded the

extrinsic evidence in question. Harmless error doctrine happens to

produce the same result in this case, but it is important to future

cases that governing evidence law be reaffirmed. Trials are full

of such evidentiary rulings, often made under pressure, and those

made here were within the province of the trial judge.

-54-