United States v. Rodriguez

08-2805-cr(L)
U.S. v. Rodriguez, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2009

Heard: October 19, 2009 Decided: November 30, 2009

Docket Nos. 08-2805-cr (L), -2880-cr (CON)

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UNITED STATES OF AMERICA,
Appellee,

v.

DOMINGO RODRIGUEZ and JORGE GARCIA-
REYNOSO,
Defendants-Appellants.
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Before: NEWMAN, CALABRESI, and KATZMANN, Circuit Judges.

Appeals from the June 2 and 3, 2008, judgments conviction of the

United States District Court for the Eastern District of New York

(Sandra J. Feuerstein, District Judge), sentencing the defendants,

after a jury trial, for violating the Hostage Taking Act, 18 U.S.C.

§ 1203, and the Alien Transportation Act. 8 U.S.C.

§ 1324(a)(1)(A)(ii).

Convictions for violating the Hostage Taking Act reversed,

convictions for violating the Alien Transportation Act affirmed, and

cases remanded for resentencing.

Beverly Van Ness, New York, N.Y., for
Defendant-Appellant Rodriguez.
 Edward V. Sapone, New York, N.Y., for
Defendant-Appellant Garcia-Reynoso.

Nicole Boeckmann, Asst. U.S. Atty.,
Brooklyn, N.Y. (Benton J. Campbell,
U.S. Atty., David C. James, Asst.
U.S. Atty., Brooklyn, N.Y., on the
brief), for Appellee.

JON O. NEWMAN, Circuit Judge.

In 1984 Congress enacted the Hostage Taking Act, Pub. L. No. 98-

473, Title II, § 2002(a), Oct. 12, 1984, 98 Stat. 2186 (1984) (“the

Hostage Act” or “the Act”), to implement the International Convention

Against the Taking of Hostages, Dec. 18, 1979, T.I.A.S. No. 11,081

(“Hostage Convention”). See United States v. Wang Kun Lue, 134 F.3d

79, 81 (2d Cir. 1998). The Convention binds the signatories “to adopt

‘effective measures for the prevention, prosecution and punishment of

all acts of taking hostages as manifestations of international

terrorism.’” Id. (quoting Hostage Convention). The principal issue on

this appeal is whether the Hostage Act has been validly applied to

defendants who perpetrated an extortion scheme that used brief

confinement of a taxi passenger to obtain a somewhat above average

taxi fare. Jorge Garcia-Reynoso and Domingo Rodriguez appeal from the

judgments of the District Court for the Eastern District of New York

(Sandra J. Feuerstein, District Judge), entered June 2 and 3, 2008,

respectively, sentencing them primarily to 240 months’ imprisonment

after a jury found them guilty of violating the Hostage Act and

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transporting an illegal alien for financial gain, in violation of 8

U.S.C. § 1324(a)(1)(A)(ii), (v)(I), (v)(II).

We conclude that the Hostage Act does not apply to the

Appellants’ offense conduct on the facts of this case. We therefore

reverse Reynoso’s and Rodriguez’s convictions on the Hostage Act,

affirm their convictions on the alien transportation counts, and

remand their cases for resentencing.

Background

On January 21, 2005, Azucena Gonzalez-Mendez (“Mendez”), a

Mexican citizen, was smuggled across the border from Mexico into

Arizona by a “coyote”1 who had been hired by her husband, Julio Gabriel

Lopez-Perez (“Perez”). Mendez had unsuccessfully attempted to enter

the United States on two separate occasions earlier that same week.

After being driven to Las Vegas on her third attempt, she flew to

MacArthur Airport on Long Island, where she expected to meet her

husband who was planning to come from his home in Asbury Park, New

Jersey. She arrived at the airport in dirty clothes, muddy shoes, and

with no luggage. Mendez does not speak English. When Mendez arrived

at the airport, she could not find Perez. While waiting for him,

defendant Rodriguez approached her and told her, in Spanish, that she

1
In the taxonomy of alien smuggling, “coyote” is the term for
those who facilitate unlawful entry from Mexico. Cf. “snakehead,” the
term for those who assist unlawful entry from China, see United States
v. Si Lu Tian, 339 F.3d 143, 147 (2d Cir. 2003).

-3-
should go inside because it was cold. Inside, Rodriguez told Mendez

that it was unsafe for her to wait outside for Perez because the

police parked in front of the terminal were from immigration.

Rodriguez told her that if the police noticed her, she would be

arrested.

Mendez tried to explain to Rodriguez that she was waiting for her

husband to pick her up. Rodriguez reiterated his warning about

immigration officers. Mendez was frightened, as she had been caught

twice before by immigration officials and returned to Mexico.

Rodriguez then asked Mendez if she had the phone number for the person

who was supposed to meet her, and told her to give him the number so

that he could call the person for her. Mendez wanted to call Perez

herself, but Rodriguez insisted that he would do it. Mendez gave

Rodriguez the number, and he purported to make a call from his cell

phone. He claimed that nobody answered. Rodriguez then offered to

give Mendez a ride, reiterating again that if she waited in the

airport for too long, she would be arrested. Mendez believed

Rodriguez’s warning, and she agreed to go with him.

Rodriguez escorted Mendez to a van, being driven as a gypsy cab

by defendant Reynoso. Rodriguez told her to get in, which she did.

Rodriguez then said that he was going back to the terminal to see if

the person Mendez was waiting for had arrived. After sitting in the

van for about fifteen minutes, Mendez saw Perez in front of the

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terminal. Mendez told Reynoso that she saw her husband and that she

wanted to get out of the van to meet him. Reynoso told her “no, no,

no, because immigration is following us.” Mendez was frightened by

Reynoso’s warning, so she remained in the van but asked Reynoso to

call Rodriguez so that Rodriguez could tell Perez where she was.

Reynoso agreed, but when he supposedly dialed Rodriguez’s number,

there was no answer. Even though Mendez could see her husband, she

did not try to leave the van because she was afraid that she would get

caught by immigration officials. Reynoso told Mendez that he would

take her home, and she agreed. As she explained, “This was the first

time I was in the U.S. [Reynoso] scared me, telling me that

immigration was following us. So I had no other alternative but to

say yes.” Reynoso and Mendez left the airport without Rodriguez.

Reynoso and Mendez drove for a while and at some point stopped at

a convenience store where Rodriguez joined them. Mendez did not try

to leave the van. She explained that she was too afraid to get out,

had no money, did not speak English, and did not know where she was.

Previously, Rodriguez had called the number that Mendez had given

him and spoke with Alejandra Luna, whose family lived with Perez in

Asbury Park. Rodriguez offered to take Mendez home, but Luna said

that Perez was on his way to pick her up at the airport. Rodriguez

insisted that he would bring Mendez home, but Luna repeatedly told him

“no.” Luna then called Perez and reached him while he was being

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driven to MacArthur Airport. She gave Perez the number that had shown

up on her caller ID when Rodriguez called her. The cell phone number

where Luna reached Perez belonged to Edgar Carreon-Mancilla

(“Mancilla”), whom Perez had hired to drive him to MacArthur Airport

and then back to New Jersey. While driving to the airport, Perez

tried to call the number Luna had given him, and after four attempts,

Rodriguez finally answered the phone. Perez told Rodriguez who he was

and asked about Mendez. Rodriguez claimed he was a Customs Service

employee, and told Perez that he had seen Mendez and had directed her

to a car because she could not wait around the airport for a long

time.

Perez called Rodriguez again, explaining that he was desperate

and nervous, but Rodriguez claimed that he did not know the person who

Mendez left with. When Perez arrived at the airport, he looked for

his wife but could not find her and left the airport after looking for

about twenty minutes. Ten minutes from the airport, he called

Rodriguez again. This time, Rodriguez told Perez that Mendez had left

with a Mexican man who was driving her to New Brunswick, New Jersey.

Rodriguez then called Perez back, and arranged to meet him on the

Long Island Expressway. Perez and Mancilla waited on the shoulder of

the expressway for Rodriguez. Rodriguez arrived, shook hands with

Perez, and said, “I want to take care of this.” [GA 53] Rodriguez told

Perez that he would try to get in contact with the person who was

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driving Mendez. Rodriguez then advised Perez that he should “come to

an arrangement” with the person driving Mendez to pay for her trip,

and another man accompanying Rodriguez told Perez he was “sure [the

driver] will take her to where you live.” Rodriguez told Perez to

call him after 7:00 p.m. to get the number for the man who was driving

his wife.

After Rodriguez left, Perez repeatedly called Rodriguez, and when

he finally got through, Rodriguez told Perez that he was with Mendez.

Rodriguez briefly spoke to Perez and then gave the phone to Mendez.

Mendez started crying when she heard her husband’s voice, and, in her

testimony, said that she was “terrified.” Perez told Mendez that he

would come get her, and Rodriguez then took the phone and told Perez

to meet him at a gas station in the Monmouth Service Area on the

Garden State Parkway in New Jersey.

Rodriguez, Reynoso, and Mendez arrived at the service area before

Perez and Mancilla. Reynoso parked in an empty employee parking lot

about 100 yards away from the gas station. Perez and Mancilla arrived

at the gas station shortly after 9 p.m., and when they did not see

appellants, they called them on a cell phone. Rodriguez directed

Mancilla to drive towards the parking lot, and when he and Perez got

close to the van, Rodriguez directed them to turn off the car lights.

Mancilla parked his car in front of the van. Perez approached the

van, in which he could see his wife and the two defendants.

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 When Mendez saw her husband, she got up to leave the van, but

Rodriguez, in an angry and annoyed voice, shook his finger at her and

told her “no, no, no, ma’am, wait. You cannot get out until the

driver speaks with your husband.” Mendez complied because she was

frightened and did not leave the van.

Perez attempted to open the rear door to the van, but Rodriguez

locked the door. Perez then demanded that Rodriguez let Mendez out,

but Rodriguez refused and told Perez that he “had to come to an

arrangement with the driver.” Reynoso then got out of the van and

told Perez, “[Y]ou have to pay me $475.”2 Perez told Reynoso that he

was not going to pay anything. From inside the van, Rodriguez

responded that if Perez did not pay, he would call the police. Perez

again told appellants that he would not pay and that he would call the

police himself. Rodriguez responded, “Okay, call. We’ll see who will

be the loser.”

Perez went back to the car and told Mancilla what happened.

Mancilla immediately called 911 and explained the situation. The 911

operator received the call at 9:17 p.m. Ten minutes later, three

officers arrived on the scene from the New Jersey State Police. As

soon as they arrived, they spoke briefly with Perez and Mancilla and

then approached the van. One officer opened the passenger door where

2
Perez was not sure whether the demand was $475 or $485.

-8-
Rodriguez was sitting, saw Mendez in the back seat, opened the rear

door, and let her out of the van. The police arrested both Reynoso

and Rodriguez.

The interval from the time Rodriguez told Perez that Mendez would

be released only if he paid $475 until the police secured her release

was no more than fifteen minutes, as the Government acknowledges, and

during most of that interval, the defendants, Mendez, and Perez were

waiting for the police to arrive.

Indictment and trial. A superceding indictment charged Rodriguez

and Reynoso with conspiracy to commit hostage taking, see 18 U.S.C.

§ 1203 (Count One), the substantive offense of hostage taking, see id.

(Count Two), kidnapping, see id. § 1201(a)(1) (Count Three),

conspiracy to transport an illegal alien for commercial advantage, see

8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count Four), and the substantive

offense of transporting an illegal alien, see id. § 1324(a)(1)(A)(ii)

(Count Five).

Prior to trial, the Government obtained the District Court’s

permission, pursuant to Fed. R. Evid. 404(b), to admit, solely against

Rodriguez, evidence that in 1993, while driving a cab, he had helped

to kidnap Marvin Portillo, a sixteen-year-old illegal alien at JFK

airport. Portillo had arrived on a flight from Arizona after

illegally entering the United States. Rodriguez drove Portillo to the

home of Portillo’s brother and demanded a sum of money far in excess

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of what the cab fare should have been. For that offense, Rodriguez

pled guilty to attempted petit larceny and was sentenced to probation.

Following the District Court’s ruling, Reynoso unsuccessfully moved

for severance, arguing that he would be prejudiced by Rodriguez’s

prior criminal history. At trial, the District Court gave a limiting

instruction that Rodriguez’s 1993 offense was admissible only against

Rodriguez and was admitted only on the issue of intent.

After a jury trial, the defendants were acquitted of conspiracy

to violate the Hostage Act (Count One) and of kidnapping (Count

Three), convicted of the substantive Hostage Act offense (Count Two),

and convicted of the transportation of an illegal alien offenses

(Counts Four and Five).

Sentencing. The Presentence Report (“PSR”) started the

Guidelines calculation for both defendants with a base offense level

of 32, see U.S.S.G. § 2A4.1 (“Kidnapping, Abduction, Unlawful

Restraint”), added 6 levels for a ransom demand, see id. 2A4.1(b)(1),

added 2 levels for a vulnerable victim, see id. § 3A1.1(b)(1), and 2

levels for obstruction of justice, see id. § 3C1.1. The adjusted

offense level of 42 in Criminal History Category I yielded a

sentencing range of 360 months to life. The District Court accepted

the PSR’s Guidelines calculation, but elected to impose a non-

Guidelines sentence and sentenced each defendant to 240 months’

imprisonment on Count Two (hostage taking) and concurrent sentences of

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120 months’ imprisonment on Courts Four and Five (conspiracy to

transport and transporting an illegal alien for financial gain). The

sentences also included five years of supervised release and a $300

special assessment.

Discussion

The Appellants raise nine issues on appeal: (1) improper venue in

the Eastern District of New York for the hostage taking conviction,

(2) admission of Rodriguez’s prior act evidence, (3) denial of

Reynoso’s motion to sever, (4) denial of Rodriguez’s motion for

mistrial based on a juror’s apprehension, (5) denial of Rodriguez’s

motion for a mistrial based on evidence of Reynoso’s incarceration,(6)

insufficiency of the evidence for the hostage taking conviction, (7)

impermissible vouching by the Government, (8) error in the charge on

the elements of the transporting-an-alien counts, and (9) procedural

and substantive sentencing errors. It will be convenient to consider

first the challenge to the sufficiency of the evidence for the hostage

taking conviction.

I. Sufficiency of the Evidence to Violate the Hostage Act

Before considering, under the applicable standard, see Jackson v.

Virginia, 443 U.S. 307 (1979), whether the evidence permitted the jury

to find beyond a reasonable doubt that the Defendants violated the

Hostage Act, we face the threshold issue of the applicability of the

Hostage Act to the Defendants’ conduct. The Defendants contend that

-11-
the Act may not be applied to what they characterize as essentially a

taxi fare dispute. In considering this issue, we note that the

Defendants make no claim that the evidence was insufficient to support

their substantive and conspiracy convictions for unlawful

transportation of an alien.

Initially, it might be questioned whether the Hostage Act may be

validly applied to any conduct that is not related to international

terrorism. The Conference Report on the Act makes clear that it

“implements the International Convention Against the Taking of

Hostages.” See H.R. Conf. Rep. 98-1159, at 418, 1984 U.S.C.C.A.N.

3710, 3714. The preamble to the Convention states that the Convention

binds its signatories to adopt “effective measures for the prevention,

prosecution and punishment of all acts of taking of hostages as

manifestations of international terrorism.” Convention, preamble,

T.I.A.S. No. 11,081 (emphasis added). President Reagan sent to

Congress draft legislation that was the predecessor of the Hostage Act

“[t]o demonstrate to other governments and international forums that

the United States is serious about its efforts to deal with

international terrorism.” See Message from the President of the

United States Transmitting Four Drafts of Proposed Legislation to

Attack the Pressing and Urgent Problem of International Terrorism,

H.R. Doc. No. 98-211, 98th Cong., 2d Sess, at 3 (April 26, 1984). As

the Department of Justice has acknowledged, the offense created by the

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Hostage Act “is defined in substantially the same manner as under the

Convention.” U.S. Department of Justice, Handbook on the

Comprehensive Crime Control Act of 1984 and Other Criminal Statutes

Enacted by the 98th Congress 199 (December 1984) (“Handbook”).

Indeed, the Hostage Act did not become effective until the Convention

came into force and the United States became a party to it. See 18

U.S.C.A. § 1203, Historical and Statutory Notes, Effective and

Applicability Provisions; Handbook 200.

Furthermore, when this Court considered a constitutional

challenge to the Hostage Act on the ground that the Convention itself

was beyond the treaty power of Article II of the Constitution, we

emphasized that “the Convention addresses a matter of grave concern to

the international community: hostage taking as a vehicle for

terrorism.” Wang Kun Lue, 134 F.3d at 83. And we upheld the Hostage

Act because it “plainly bears a rational relationship to the

Convention.” Id. at 84.

A scheme to detain a person in order to extort a taxi fare, even

an excessive taxi fare, is not a “manifestation of international

terrorism.”

However, although the first case involving the Hostage Act arose

out of a terrorist hijacking of an international flight, see United

States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991), the case law that has

developed under the Act has not limited it to conduct related to

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international terrorism, and has applied it to several instances of

confining illegal aliens and demanding payment for their release. See

United States v. Tchibassa, 452 F.3d 918 (D.C. Cir. 2006); United

States v. Si Lu Tian, 339 F.3d 143 (2d Cir. 2003); United States v.

Ferreira, 275 F.3d 1020 (11th Cir. 2001); United States v. Fei Lin,

139 F.3d 1303, supplemented by United States v. Fei, 141 F.3d 1180

(9th Cir. 1988) (table); Wang Kun Lue, 134 F.3d at 81; United States

v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995); United States v.

Carrion-Caliz, 944 F.2d 220 (5th Cir. 1991); see also United States v.

Montenegro, 231 F.3d 389 (7th Cir. 2000) (confinement of aliens to

demand payment for narcotics); United States v. Santos-Riviera, 183

F.3d 367 (5th Cir. 1999) (confinement of United States citizen infant

to demand ransom for her release); United States v. Hung Shun Lin, 101

F.3d 760 (D.C. Cir. 1996) (confinement of aliens to demand payment of

telephone bills).

Even though the case law has now established that a Hostage Act

violation does not require a link to international terrorism, the

original purpose of the statute serves as a frame of reference to

caution against stretching the coverage of the Act. In the pending

case, for example, the defendants’ conduct undoubtedly violated the

statute punishing the unlawful transportation of an alien, 8 U.S.C.

§ 1324(a)(1)(A)(ii), and perhaps other federal and state statutes.

Whether their conduct violated the Hostage Act, however, requires

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precise consideration of what the Government proved, measured against

the elements of that offense.

To prove a violation of the Hostage Act, the Government must show

that a defendant “(1) seized or detained another person, and (2)

threatened to kill, injure, or continue to detain that person, (3)

with the purpose of compelling a third person or governmental

organization to act in some way, or to refrain from acting in some

way.” Si Lu Tian, 339 F.3d at 150 (citations omitted). If the offense

occurred inside the United States, the Act applies only if one

defendant or the victim is an alien (unless the entity sought to be

compelled is the United States). See Santos-Riviera, 183 F.3d at 370

(alien status of offender or victim is affirmative defense). As

applied to the pending case, these elements required the Government to

prove that the defendant “detained” Mendez and continued to detain her

for the purpose of compelling her husband to pay the taxi fare of

$475. The jury was entitled to find that Mendez was detained in

Garcia-Reynoso’s taxi at the MacArthur Airport. After seeing her

husband, she said that she wanted to leave the taxi, but Rodriguez

persuaded her not to leave by warning her of the risk of being picked

up my immigration officers. Although, as an undocumented alien who

had just been smuggled into the United States, she feared that

possibility before she entered the taxi, the defendants preyed on that

fear, and “fear . . . can be sufficient to restrain a person against

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her will.” Carrion-Caliz, 944 F.2d at 225. The jury could also find

that the defendants continued to detain Mendez at the service area for

the purpose of compelling her husband to pay $475.

However, the case law interpreting the Hostage Act has required

that a defendant confine a victim “‘for an appreciable period of

time.’” Si Lu Tian, 339 F.3d at 152 (quoting Carrion-Caliz, 944 F.2d

at 225). This requirement derives from the Supreme Court’s

construction of the Federal Kidnaping Act, 18 U.S.C. § 1201. See

Chatwin v. United States, 326 U.S. 455, 460 (1946) (construing

predecessor statute, 18 U.S.C. § 408a (1940) (“The act of holding a

kidnapped person for a proscribed purpose [i.e., held for ransom or

reward or otherwise] necessarily implies an unlawful physical or

mental restraint for an appreciable period against the person’s will

and with a willful intent so to confine the victim.”)).

Whether Mendez was held, in violation of the Hostage Act, for an

appreciable period of time requires identification of the relevant

time period. The Government contends that the confinement of Mendez

began at the MacArthur Airport, and the evidence clearly entitled to

jury to so find. The approximately three-hour journey from the

MacArthur Airport to the service area in New Jersey would qualify as

an appreciable period of time, but although the start of that journey

suffices to begin the conspiracy and substantive offenses of

transporting an alien in violation of section 1324, it does not begin

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the hostage taking offense. That offense requires detaining and

continuing to detain a person to compel a third person to do an act

“as an explicit or implicit condition for the release of the person

detained.” 18 U.S.C. § 1203(a).3 The defendants did not try to compel

Perez to pay money to obtain the release of his wife until he arrived

at the Monmouth service area. The confinement following the demand

for payment lasted at most fifteen minutes.

At the earlier encounter between Rodriguez and Perez alongside

the Long Island Expressway, Rodriguez urged Perez to “make an

arrangement” with Reynoso, but, crediting Perez’s account and drawing

all reasonable inferences from his version of the conversation, the

jury could not reasonably find that Perez was being urged to make an

arrangement with Reynoso for Mendez’s release. Rodriguez neither said

nor implied anything to suggest that paying for the taxi ride was a

condition for her release. Indeed, Perez had no reason to think that

his wife was then detained and never claimed that he then thought so.

Detaining Mendez for the purpose of compelling a third person to do an

act as a condition for her release did not occur until the demand for

3
Had the defendants told Mendez when they arrived at the service
area that the fare was $475 and that she could not leave the van until
she paid, and after an appreciable period of time she had handed them
the money and left the taxi, there would not have been a violation of
the Hostage Act in the absence of a demand upon a third person. See
United States v. Hung Shun Lin, 101 F.3d 760, 767 (D.C. Cir. 1996)
(demand for money from confined victims did not become violation of
Act until demand made upon third person).

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payment was made at the service area.4 It might have been contended

that even if the substantive offense did not occur until that point,

the defendants earlier conspired to induce Mendez to enter the van by

preying on her fear and did so with the ultimate intention of getting

someone to pay them as a condition of her later release. We need not

consider whether, on that theory, the evidence would have supported a

conspiracy conviction because the jury acquitted on the hostage taking

conspiracy count.

Thus, the Hostage Act applies to the Defendants’ conduct only if

the interval from the time a demand was made upon Mendez’s husband at

the service area to secure his wife’s release until Mendez got out of

the taxi constitutes an “appreciable period of time.” In Si Lu Tian,

the aliens were confined for twenty days. See 339 F.3d at 154. In

Carrion-Caliz, the confinement lasted eight days. See 944 F.2d at 221.

In Hung Shun Lin, the aliens were confined during a day and were

beaten. See 101 F.3d at 764-65; In Santos-Riviera, the abduction of an

infant lasted a few hours. See 183 F.3d at 368. Even if the threshold

for “appreciable period of time” should be somewhat diminished if the

victim is injured or threatened with injury, or, like the infant in

Santos-Riviera, is especially vulnerable to injury during confinement,

4
The Government makes no claim that at the encounter on the Long
Island Expressway, Rodriguez made a demand that Perez do an act as a
condition of his wife’s release.

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the fifteen minutes that Mendez was confined in the taxi at the

service area, without any injury or threat of injury, is not

sufficient to establish a Hostage Act violation, especially in view of

the fact that during most of that interval the defendants, Mendez, and

her husband were waiting for the arrival of the police whom they all

knew had been called. Although ransom demanded to satisfy a

legitimate debt can violate the Hostage Act, see Hung Shun Lin, 101

F.3d at 766, during that brief interval, there was confinement

incident to a taxi fare dispute, which may have constituted an act of

extortion,5 but not the confinement of a hostage proscribed by the

Hostage Act.

The convictions on Count 2 must be reversed.

II. Venue

Reynoso challenges venue in the Eastern District of New York only

with respect to his conviction for violating the Hostage Act. With

the reversal of his conviction on Count 2, the venue objection becomes

moot. Venue was plainly proper for the alien transportation counts,

since the transportation of Mendez began at the MacArthur Airport.

III. Admission of Rodriguez’s Prior Act

Reversal of the Hostage Act convictions does not moot Rodriguez’s

5
The parties stipulated that a legitimate taxi fare from MacArthur
Airport to Asbury Park was about $350, and the defendants’ expert
testified, without contradiction, that the average gypsy cab fare for
the journey would be between $400 and $500.

-19-
challenge to the admission of his prior act, but it alters the

analysis of his claim. We need not elaborate our conclusion that the

admission of the 1993 episode was within the District Court’s

discretion, see United States v. Garcia, 291 F.3d 127, 136 (2d Cir.

2002); United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000),

because, even if the admission was error, it was harmless with respect

to the alien transportation convictions. Indeed, Rodriguez makes no

challenge to the validity of those convictions, the evidence for which

was more than sufficient.

IV. Reynoso’s Severance Claim

Had the conviction on the Hostage Act claim been upheld, we would

have had serious concern about the risk of “substantial prejudice,”

see United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980), to

Reynoso because of evidence about Rodriguez’s 1993 episode, despite

the District Court’s limiting instruction. But the strength of the

evidence on the remaining counts of transporting an alien render

harmless any error that might have occurred with respect to denying

Reynoso a severance. Like Rodriguez, Reynoso makes no challenge to

the alien transportation convictions.

V. Failure to Order a Mistrial Based on Juror Apprehension

Rodriguez contends that the District Court exceeded its

discretion in denying a motion for a mistrial based on reports that

some jurors believed that Rodriguez was staring at them in a

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threatening manner. Early in the trial, the District Court informed

the parties that some of the jurors felt that Rodriguez was “staring

at them in what they perceive to be a threatening manner.” Some of

them, the Court reported, felt “most uncomfortable.” Both Defendants

immediately moved for a mistrial. The District Court questioned

Juror No. 4 who had brought the issue to the attention of the Court.

The juror indicated that some of the jurors had noticed Rodriguez

staring at the prosecutor and at them, and some felt uncomfortable.

Juror No. 4 identified those jurors by seat number. The Court noted

that the jurors identified by Juror No. 4 “are in the direct line

with the prosecutor. That’s probably why they feel the way they do.”

The District Court individually questioned the three regular

jurors and two alternates who were identified as having observed

Rodriguez staring at them. All of them stated without qualification

that the episode would not affect their ability to decide the case

fairly. Neither defendant disputed the credibility of the jurors’

assurances or suggested that the jurors should be dismissed.

A district court has broad discretion in handling claims of

jurors’ partiality and taint that arise during trial. See United

States v. Rosario, 111 F.3d 293, 299 (2d Cir. 1997). A district

court’s denial of motion for mistrial is reviewed for abuse of

discretion. See United States v. Smith, 426 F.3d 567, 571 (2d Cir.

2005).

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 Rodriguez contends that the District Court should have questioned

all of the jurors, but there is no evidence that any of the other

jurors witnessed any untoward conduct of Rodriguez or that they even

knew about it. The District Court sufficiently considered the

defendants’ concerns, questioned the jurors who may have witnessed

Rodriguez’s staring, and determined that they could continue to be

entirely impartial. The District Court acted well within its

discretion in handling the incident and denying the motion for a

mistrial.

VI. Denial of Rodriguez’s Motion for a Mistrial Based on Evidence of

Reynoso’s Incarceration

Rodriguez contends that the District Court exceeded its

discretion by denying his motion for a mistrial because Reynoso

mentioned in his testimony that he was incarcerated. The Government

asked Reynoso, “And you drive currently a gypsy cab for a living. Is

that right?” Reynoso replied, “I used to. I’m in jail now.”

Rodriguez then moved for a mistrial, claiming that Reynoso’s testimony

that he was in jail would lead the jury to infer that both defendants

were incarcerated, thereby prejudicing him. The District Court

responded that “I don’t see how you could in any way fault” the

Government. The Government suggested that the District Court give a

limiting instruction, but Rodriguez’s counsel rejected this

suggestion.

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 The mistrial motion was properly denied. There was no reason to

anticipate that the prosecutor’s question would prompt Reynoso to

volunteer that he was in jail, and the risk of prejudice even to

Reynoso, much less Rodriguez, was virtually non-existent.

VII. Claim of Vouching During Prosecutor’s Summation

Rodriguez has submitted a pro se brief, contending that the

Government improperly vouched for its witnesses in its rebuttal

summation. In the absence of objection at trial, the claim is

reviewed for plain error, see United States v. Zichettello, 208 F.3d

72, 103 (2d Cir. 2000) (”flagrant abuse” must be shown).

Throughout his summation, Reynoso’s counsel repeatedly accused

Government witnesses of lying. In rebuttal, the prosecutor responded

with mild sarcasm:

Three people that didn’t know each other got their
stories together and they came in here and they told a lie
to all of you to punish these two men that none of them had
ever met before, for what?
What does Trooper Powell get a gold star on his uniform
for coming in here? The man came in here.

The prosecutor did not express a personal opinion about the

credibility of the witnesses. She merely invited the jury to consider

the implausibility of Reynoso’s claim that the witnesses were all

committing perjury. See United States v. Resto, 824 F.2d 210, 212 (2d

Cir. 1987) (finding “that the remarks were permissible responses to

contentions made by defense counsel in her summation”).

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VIII. Instruction on the Alien Transportation Offenses

Rodriguez contends, in a brief submitted pro se, that the

District Court’s charge on transporting an illegal alien in violation

of 8 U.S.C. § 1324(a)(1)(A)(ii) omitted an element of the offense.

Specifically, Rodriguez claims that the district court failed to

instruct the jury that the defendant must act “in furtherance of such

violation of law.” Id. This is simply not the case. The District

Court’s charge included the following:

The fourth element of the offense which the government
must prove beyond a reasonable doubt is that a defendant
acted willfully in furtherance of the alien’s violation of
the law. In order to establish this element, the government
must prove that a defendant knowingly and intentionally
transported the alien in furtherance of the alien’s unlawful
presence in the United States, In other words, the evidence
must show a direct and substantial relationship between the
transportation and furthering the alien’s unlawful presence
in the United States.

Transportation of illegal aliens is not, by itself, a
violation of the statute if it is merely incidental to the
alien’s presence in the United States. The law pr[o]scribes
such conduct only when it is furthering an alien’s illegal
presence in this country.

X. Sentencing Issues

The reversal of the defendants’ convictions on the hostage taking

count requires a remand for resentencing, see United States v. Rigas,

583 F.3d 108, 116 (2d Cir. 2009); United States v. Quintieri, 306 F.3d

1217, 1228 n.6 (2d Cir. 2002), and may well have some effect on their

specific challenges to the Guidelines calculation. Even though the

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District Court imposed non-Guidelines sentences, and may well do so

again, we have indicated that a correct Guidelines calculation must

normally precede the decision to impose a non-Guidelines sentence. See

United States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006); United

States v. Crosby, 397 F.3d 103, 111 (2d Cir. 2005). For example, the

District Court’s enhancement for a vulnerable victim, i.e., Mendez’s

status as an unlawful alien, which might well have been proper in

calculating the guideline for the hostage taking violation, might not

be appropriate for the alien transportation counts, which already

require that the victim be an unlawful alien.

We think it appropriate to remand for resentencing because of the

reversal of the hostage taking convictions, and, in the event of an

appeal after resentencing, defer until then consideration of any

challenges to the new sentences.

Conclusion

The convictions of both defendants on Count 2 (hostage taking)

are reversed, their convictions on Counts 4 and 5 (alien

transportation) are affirmed, and their cases are remanded for

resentencing.

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