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.
-8-
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
-17-
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
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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
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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 . . . ."
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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
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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.
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