United States Court of Appeals
For the First Circuit
Nos. 10-1518,
10-1534,
10-1701,
10-1708
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS PAGÁN-FERRER,
JUAN MORALES-ROSADO,
JOSÉ PACHECO-CRUZ,
AARON VIDAL-MALDONADO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez and Thompson,
Circuit Judges.
Paul M. Glickman, with whom Glickman Turley LLP, was on brief
for appellant Pagán-Ferrer.
Lydia Lizarríbar-Masini, for appellant Morales-Rosado.
Juan A. Pedrosa-Trápaga, with whom Juan A. Pedrosa Law Office,
PSC, was on brief for appellant Pacheco-Cruz.
James L. Sultan, with whom Jonathan P. Harwell and Rankin &
Sultan, was on brief for appellant Vidal-Maldonado.
Sharon M. McGowan, Attorney, U.S. Department of Justice, Civil
Rights Division, Appellate Section, with whom Jessica Dunsay
Silver, Attorney, and Thomas E. Pérez, Assistant Attorney General,
was on brief for appellee.
November 22, 2013
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TORRUELLA, Circuit Judge. A jury convicted four former
San Juan Municipal Police Department officers of charges stemming
from the excessive use of force against a citizen who was violently
beaten to death while in police custody. Appellants, now seeking
to challenge their respective convictions and sentences, raise a
number of issues on appeal, including one which requires us to
examine the relationship between the Ex Post Facto Clause of the
Constitution and the "one book" rule of the U.S. Sentencing
Guidelines. We ultimately find none of the Appellants' arguments
meritorious and thus affirm. We begin with the facts.
I. Background
In the early morning hours of July 20, 2003, José Antonio
Rivera-Robles ("Rivera") was running down the street, yelling that
he was being followed and that "they" were trying to kill him. It
was later discovered that he was under the influence of cocaine.
Two San Juan Municipal Police Department ("SJMPD") officers who
were patrolling the area spotted Rivera and got out of their patrol
car to investigate. Rivera pushed past them and stole their patrol
car, injuring the arm of the officer who tried to hold onto the car
door as Rivera sped away. The officers radioed for help and a
search for both Rivera and the patrol car began.
Rivera, meanwhile, had abandoned the car and entered a
Citgo gas station's convenience store, appearing frightened but
uninjured to those in the store. Rivera hid behind the store
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counter, scaring away the store clerk, who ran outside to look for
help. Several officers who were searching for Rivera drove by the
gas station at that time, and the store clerk was able to flag them
down. When Rivera ran outside, he was confronted by Officers Ángel
González-Almeida ("González"), Marieli Torres-Rivera ("Torres"),
and Wilbert Salas-López ("Salas"), all with guns drawn. As the
officers approached, Rivera ran to and began pulling on a gas pump,
stopped, and then walked back towards the officers. González
pushed Rivera to the ground, face down, and Salas straddled him.
At this point, Sergeant Aarón Vidal-Maldonado ("Vidal"), the
highest ranking officer present and one of the four Appellants in
this case, arrived at the gas station. Vidal helped Salas handcuff
Rivera. At this point, however, instead of transporting the now-
restrained suspect to the station house, several officers began
assaulting Rivera.
Officer Elías Perocier-Morales ("Perocier") kicked Rivera
in the head and left shoulder area with such force that it nearly
knocked Salas, who was still on top of Rivera, over. Next,
Officers Carlos Pagán-Ferrer ("Pagán"), Juan Morales-Rosado
("Morales"), and José Pacheco-Cruz ("Pacheco"), the three remaining
Appellants in this case, arrived in the SJMPD's Impact Unit van.
The Impact Unit officers formed a circle around Rivera and began
kicking him with booted feet in the head and upper body while Vidal
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and Salas restrained him. Some of the officers, including Pagán,
punched Rivera in the face.
Vidal eventually ordered that Rivera be taken to the
Impact Unit station house, announcing "[t]his one's mine, this
one's mine." When he arrived and exited the police car, Rivera was
barely conscious and fell to the ground. Officer Juan Monserrate
("Monserrate") kicked the still-handcuffed Rivera in the face while
Vidal looked on silently. Rivera was then carried into the
station, dropped on the floor, and had his handcuffs removed. By
this time, his breathing was labored and his face was "practically
disfigured." Someone called emergency medical services.
When the emergency responders arrived, they were told
that Rivera had been lying on the floor, unconscious, for ten
minutes. They were unable to revive Rivera, and he was declared
dead at the scene. An autopsy later indicated that Rivera had
suffered trauma injuries to approximately thirty places on his body
and had died from brain hemorrhaging. The report also stated that
cocaine was found in his system and may have contributed to the
cause of death, but the coroner later revised her report to
indicate that blunt force trauma was the cause of death. A
forensic expert agreed. A second forensic pathologist corroborated
that the victim's injuries were consistent with kicks, punches, and
blunt force trauma. In this second pathologist's opinion, the
cause of death was not cocaine. He also testified that Rivera's
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facial injuries were not from a fall. A third pathologist,
however, testified for the defense that it was "a medically
reasonable probability" that the victim died because of cocaine use
and that he did not find any fatal injuries on Rivera's body.
Puerto Rico Police Department officials began an
investigation, and Vidal admitted to being at the Citgo station
that night, but he said that no one had assaulted Rivera. Pagán,
Morales, and Pacheco all claimed that they had not been at the
Citgo station at all that night. They also denied knowing how
Rivera sustained his injuries. Several years later, in 2008, the
FBI began investigating the incident. Vidal continued to claim
that no one had assaulted Rivera, and Pagán, Morales, and Pacheco
continued to claim that they were not present at the Citgo station
that night. They also denied having punched, kicked, or otherwise
assaulted Rivera. Morales denied hearing that any officers had
gone to the Citgo that night. He later repeated that statement to
a federal grand jury.
On July 8, 2008, a federal grand jury indicted Vidal,
Morales, Pacheco and Pagán (collectively, the "defendants") along
with two other SJMPD officers, Perocier and Officer Eliezer Rivera-
González, in a 17-count indictment. The latter two pled guilty and
became cooperating witnesses. Vidal, Morales, Pacheco, and Pagán
were indicted for depriving Rivera of his constitutional rights by
using excessive force resulting in bodily injury or death while
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acting under color of state law, in violation of 18 U.S.C. § 242.
They were also indicted for making false statements, in violation
of 18 U.S.C. § 1001, and for obstructing justice, in violation of
18 U.S.C. § 1512(b)(3).
On August 13, 2009, after twenty-six days of trial, a
jury found all four defendants guilty of making false statements
and obstructing justice. Morales was convicted of perjury before
the grand jury, in violation of 18 U.S.C. § 1503(a). As to the
civil rights charges, the jury found Morales and Pagán guilty of
depriving Rivera of his rights and causing bodily injury. Vidal
was found guilty of causing Rivera's death by failing to intervene
and failing to keep Rivera from harm by officers under his
supervision, in violation of 18 U.S.C. § 242. Vidal was also
charged with kicking Rivera at the Impact Unit station house, in
violation of 18 U.S.C. § 242, but he was found not guilty as to
that count. Pacheco was found not guilty of using excessive force
resulting in injury or death.
Vidal was sentenced to 360 months of imprisonment,
Morales and Pagán to 120 months of imprisonment, and Pacheco to 57
months of imprisonment.
On appeal, defendants collectively have presented a total
of eight issues which they believe warrant vacating their
respective convictions or sentences: 1) the denial of a motion to
supplement the record; 2) the denial of a motion to declare a
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mistrial; 3) the denial of a motion to suppress an identification;
4) the insufficiency of the evidence; 5) the improper wording of a
jury instruction; 6) the existence of a material variance; 7) the
wrongful application of a revised Sentencing Guidelines manual; and
8) the denial of a downward departure at sentencing. Not every
defendant asserts every claim. For the sake of clarity, we
elaborate on the facts relating to each issue on appeal separately,
and we take each issue in turn.
II. Discussion
A. Denial of Rule 10(e) motion to supplement the record
Defendants Pagán and Vidal argue that the district court
erred in denying their joint motion to supplement the record on
appeal pursuant to Federal Rule of Appellate Procedure 10(e) ("Rule
10(e)"). We begin with a review of the factual and procedural
background related to this claim.
1. Background
On August 2, 2011, while this appeal was pending, Pagán
and Vidal filed with the district court a joint motion seeking to
supplement the record on appeal pursuant to Rule 10(e). Pagán and
Vidal argued that at least some portion of the jury selection
proceedings were closed to the public and that the record did not
clearly reflect that fact. Accordingly, they sought to conform the
record to reflect what truly occurred below or, alternatively, to
supplement the record to correct a material omission regarding the
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closure. They also claimed that an evidentiary hearing was
required.
As record evidence of possible closure, Pagán and Vidal
cited statements by the district court judge during a portion of
the jury selection proceedings:
The Court is celebrating this hearing here in
the jury room, since the Court is aware that
we cannot ask the questions in the courtroom
because an answer by a person, a petit juror,
a potential petit juror, could potentially
contaminate the entire panel and consequently
the parties have all agreed to hold this phase
of the jury selection here in the jury room.
. . . .
They also provided affidavits from Pagán, Pagán's trial attorney,
Vidal, and family members of both men stating that the public had
been excluded from jury selection proceedings and that, at various
times, officers of the court or the defense attorneys instructed
family members that they could not attend portions of the jury
selection proceedings. Critically, the affidavits also reveal that
counsel for both Pagán and Vidal were aware of the alleged closure
at the time it occurred, discussed the closure issue with their
clients, and elected not to object to the closure.1 Pagán and
Vidal concluded by requesting that the district court hold a
hearing on the question of whether the jury selection proceedings
1
The affidavits also assert that neither Pagán nor Vidal were
informed by counsel of their constitutional right to a public
trial, but no ineffective assistance of counsel claims have been
brought forth by either defendant in this direct appeal.
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were open or closed, and that it correct the record to accurately
reflect the nature of the proceedings.
The district court, in an order by the same judge who had
presided over the jury selection proceedings in question, denied
the joint motion without holding a hearing. After noting that Rule
10(e) allows a trial court to consider a dispute as to the record
even while an appeal is pending, it explained that the request in
this case was "untimely."2 Specifically, the district court viewed
the defendants' request as an impermissible attempt to add new
information to the record, and it expressed concern that granting
the motion would allow defendants to sandbag the courts with issues
that should have been raised during trial while the trial judge had
an "opportunity to rectify the alleged wrong."
2. Applicable Law and Analysis
Federal Rule of Appellate Procedure 10(e)(1) states, in
pertinent part, "[i]f any difference arises about whether the
record truly discloses what occurred in the district court, the
difference must be submitted to and settled by that court and the
2
Although the district court characterized the Appellants' Rule
10(e) request as "untimely," the court clearly explained that
"Appellate Rule 10(e) authorizes the trial court to correct or
modify the record on appeal when a dispute arises regarding that
record. The trial court may consider the dispute even after the
record has been transmitted to the appellate court." Order at 2,
Aug. 26, 2011, ECF No. 557 (internal quotation marks omitted)
(quoting In Re Food Fair, Inc., 15 B.R. 569, 571 (Bankr. S.D.N.Y.
1981)). In other words, the court clearly recognized that if the
Rule 10(e) motion had been proper, it would have been timely filed
even though Appellants had already filed a notice of appeal.
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record conformed accordingly." Fed. R. App. P. 10(e)(1).
Significantly, the rule requires that the district court settle the
matter, not that it hold an evidentiary hearing. United States v.
Brika, 416 F.3d 514, 530 (6th Cir. 2005). Federal Rule of
Appellate Procedure 10(e)(2) adds that "[i]f anything material to
either party is omitted from or misstated in the record by error or
accident, the omission or misstatement may be corrected and a
supplemental record may be certified and forwarded." Fed. R. App.
P. 10(e)(2).
We review the district court's denial of a Rule 10(e)
motion for abuse of discretion. Brika, 416 F.3d at 529; see also
United States v. Kelly, 535 F.3d 1229, 1242 (10th Cir. 2008);
United States v. Franklin, 250 F.3d 653, 663 (8th Cir. 2001).
"When a dispute concerning whether the record truly discloses what
occurred in the district court has been submitted to the district
court, the court's determination is conclusive absent a showing of
intentional falsification or plain unreasonableness." United
States v. Serrano, 870 F.2d 1, 12 (1st Cir. 1989) (internal
citations and quotation marks omitted); see also Brika, 416 F.3d at
529.
According to Pagán and Vidal, the district court abused
its discretion when it denied their Rule 10(e) motion without an
evidentiary hearing because the record suggests, but does not
unequivocally show, that the jury selection was at least partially
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closed to the public. They argue further that the denial of their
10(e) motion prevents them from having a complete record to be able
to brief this court on the closure issue. We disagree.
As the district court correctly observed, Rule 10(e) is
a mechanism by which the court can "correct omissions from or
misstatements in the record for appeal." Order at 2, Aug. 26,
2011, ECF No. 557 (citing S & E Shipping Corp. v. Chesapeake & O.
Ry. Co., 678 F.2d 636, 641 (6th Cir. 1982)). The Rule does not,
however, "allow the court to add to the record on appeal matters
that might have been but were not placed before it in the course of
the proceedings . . . ." United States v. Hillsberg, 812 F.2d 328,
336 (7th Cir. 1986); see also Anthony v. United States, 667 F.2d
870, 875 (10th Cir. 1980) (holding that 10(e) motion to supplement
the record must be denied where appellant knew of but failed to
introduce the relevant evidence at trial because Rule 10(e) "does
not grant a license to build a new record"). In this case, the
district court denied the Rule 10(e) motion because it "saw no
need" to supplement the record with what it characterized as
untimely or new information not within the purview of Rule 10(e).
A review of the record supports the reasonableness of the
district court's finding that neither a hearing nor supplementation
to clarify the record was necessary in this case. Despite Pagán
and Vidal's assertions that the record is unclear on the status of
the jury selection proceedings, the transcripts clearly delineate
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the events below. On June 10, 2009, after polling potential
jurors, the district court was alerted to the fact that multiple
jurors had prior knowledge of the case at hand. The court then
elected to question each juror individually on the issue, and it
discovered that some jurors had read or discussed a recent
newspaper article describing the guilty plea of a co-defendant in
the case. Concerned about possible contamination, the judge --
with the assistance of defense counsel -- sought to discover what
each juror had heard and from whom the juror had heard it.
The court held these individual juror interviews in the
jury room, not the courtroom, in the presence of defense counsel
and their clients. The transcripts explicitly mark when the
proceedings shifted to the jury room with an "Examination in the
jury room" notation, Tr. of Trial Voir Dire 51, June 10, 2009, and
they also mark when the proceedings returned to open court, with a
parenthetical notation that "[t]he following proceedings were had
in open court," id. at 145. Counsel for Pagán did request a
sidebar with the judge immediately prior to the jury room voir
dire, but it was not to object to the closure of jury selection
proceedings; rather, he requested only that the court ask more
explicit questions regarding contamination of the entire pool
before moving to the jury room for individual examinations. The
court readily obliged. In fact, the judge commented that trial
counsel for Pagán had "taken the lead on this" and that it had no
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objection if defense counsel wished to "continue suggesting to the
Court questions relating to the potential contamination of these
three jurors by outside information," during the jury room
proceedings. Id. at 51. The judge also provided time for counsel
to speak with him about the jury selection procedures before the
individual jurors were sent to the jury room for questioning.
Again, no one objected to conducting the questioning in the jury
room.
The following day, on June 11, the transcript also
clearly states that individual jurors were being questioned about
possible contamination within the confines of the jury room. The
district court judge, immediately after asking the clerk to call
the case, stated the following:
The Defendants are present here in the jury
room since this procedure, it is best to hold
it.
And the Defendants are assisted by the
official translator of the Court. The Court
is celebrating this hearing here in the jury
room, since the Court is aware that we cannot
ask the questions in the courtroom because an
answer by a person, a petit juror, a potential
petit juror, could potentially contaminate the
entire panel and consequently the parties have
all agreed to hold this phase of the jury
selection here in the jury room, the
defendants being present.
Tr. of Trial Voir Dire 2, June 11, 2009 (emphasis added). Once
again, the record shows that the defendants did not object to
holding the contamination-related jury selection proceedings in the
jury room; in fact, they "all agreed" to it.
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The affidavits offered in support of the Rule 10(e)
motion also reflect the parties' contemporaneous knowledge of
closure and their decision to agree to it. Pagán's trial counsel
stated that Pagán's family members, who he alleges were kept out of
jury selection proceedings, repeatedly asked him if they could
enter during jury selection, and that Pagán told him several times
that he wanted his family members in the courtroom during jury
selection. Pagán's counsel, however, told them that family members
could not observe the proceedings and decided not to raise the
issue with the court because he believed such an objection to the
closure would be "counterproductive and futile." Vidal's affidavit
similarly reveals that he discussed with his lawyer -- on the first
day of jury selection -- his concern about the closure of jury
proceedings, but his lawyer elected not to object to the closure.
In other words, Pagán and Vidal admit that both they and their
trial counsel were fully aware of closure concerns, but counsel
consciously and purposefully chose to remain silent on the issue of
closure and to acquiesce to the proceedings.
Now, Pagán and Vidal seek to capitalize on that same
silence, suggesting that the resulting record lacks clarity on the
issue of closure and that an evidentiary hearing is required. Rule
10(e), however, authorizes the modification of the record only to
the extent it is necessary to "truly disclose[ ] what occurred in
the district court." United States v. Kennedy, 225 F.3d 1187, 1191
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(10th Cir. 2000). Rule 10(e) is not a vehicle for parties to raise
a belated challenge to the course of proceedings below. See
O'Connor v. Pierson, 426 F.3d 187, 195 n.1 (2d Cir. 2005) ("What
the [party] sought was in fact a remand for the opportunity to
raise the claim-preclusion defense for the first time in the
district court. This [party's] failure to raise the defense is not
the sort of 'error or accident' contemplated by Federal Rule of
Appellate Procedure 10(e)(2). . . ."). Nor is Rule 10(e) an
appropriate means for a party to "put[] additional evidence, no
matter how relevant, before the court of appeals that was not
before the district court." United States v. Rivera-Rosario, 300
F.3d 1, 9 (1st Cir. 2002).
Here, like the appellant in Rivera-Rosario, Pagán and
Vidal seek to push Rule 10(e) beyond its bounds. Despite their
claim of confusion, the record clearly documents the jury selection
proceedings below, both when they were moved to the jury room and
when they returned to open court. Additionally, the proffered
complaints that family members were being kept from proceedings
were not "omitted from . . . the record by error or accident," see
Fed. R. App. P. 10(e)(2), but rather were kept from the trial court
by choice of counsel. Accordingly, though we would have preferred
a more comprehensive discussion of the Rule 10(e) motion's
shortcomings from the district court in this case, we cannot find
that the district court abused its discretion when it denied the
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motion on the grounds that there was "no need to supplement the
record" with such new material not permitted by Rule 10(e).
We therefore affirm the district court's denial of the
joint Rule 10(e) motion. This holding, of course, does not prevent
Pagán or Vidal from seeking post-conviction relief from the
district court as to any potential constitutional claims underlying
their Rule 10(e) motion.3
B. Denial of motions for a mistrial
Morales, Pagán, and Vidal each argue that the district
court erred in denying their motion for a mistrial. We begin once
again with a review of the relevant facts.
1. Background
At trial on July 1, 2009, Torres testified as a witness
for the government. She spoke in Spanish and her testimony was
simultaneously translated into English. When asked on direct
examination why, after previously withholding information about her
colleagues' conduct at the gas station, she was now testifying
against her fellow officers, Torres replied: "Because this time I
already knew that the truth would come out because the civil trial
3
Pagán and Vidal have not requested that we rule on the merits of
their underlying Sixth Amendment claim of improper closure. In
fact, they have asserted that they were not able to fully present
the constitutional claim on appeal due to uncertainty in the
record. While we are unpersuaded by Appellants' arguments as to
the clarity of the record, we decline to press on to an analysis of
the merits of a constitutional claim that is not squarely before
us.
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was over . . . ." Counsel for Pagán immediately objected,
interrupting the translation of the remainder of Torres's sentence,
which in Spanish had concluded "and that they had won the suit
against the Municipality of San Juan." Counsel for Pagán moved for
a mistrial, and the court excused the jury to hear argument on the
issue. After some discussion, the district court requested
briefing on the subject. The court recessed for the day fifty
minutes early, and it reminded the jury that they would reconvene
on July 13 after a previously scheduled and previously announced
recess.
When trial resumed on July 14,4 the district court
announced in court and in a subsequently issued written order that
it was denying the defendants' request for a mistrial and granting
the government's motion for a curative instruction. The court
stated that it was operating under the assumption that the jury had
understood the entirety, including the untranslated portion, of
Torres's testimony. It nevertheless determined that this was not
a case of "extreme prejudice," and that the jury could be counted
on to follow the court's instructions. After soliciting and
incorporating feedback from defense counsel on the court's proposed
curative instruction, it instructed the jury, in relevant part, as
follows:
4
The resumption of trial was delayed an additional day, until
July 14, to allow for jury selection in an unrelated case.
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[Y]ou may have heard the current witness on
the stand, Sergeant Marieli Torres Rivera,
reference a prior civil trial and the result
thereof.
You should not, however, concern yourself with
anything relating to that civil trial. . . .
The prior civil trial mentioned by Sergeant
Torres Rivera . . . involved different
Defendants and different parties, different
legal issues and a different burden of proof
for the Plaintiffs.
. . . . The standard of proof in a civil case
is merely the preponderance of the evidence as
opposed to the Government requiring to prove
all the elements of the counts of the
indictment beyond a reasonable doubt.
Further, Defendants were not represented by
counsel, as they were not a party and, hence,
did not cross-examine or have the opportunity
to present any evidence, if they so chose, in
the civil case.
Finally, the Court reminds you that at the
beginning of the case you were ordered that,
and I quote, 'testimony that the Court has
excluded and told you to disregard is not
evidence and must not be considered,' end of
quote.
The Court strikes testimony of Sergeant Torres
Rivera's reason for changing her testimony,
and the existence and result of a civil case,
and you are strictly ordered not to consider
under any circumstances said testimony about
the case.
. . . .
[I]t would be entirely improper and in
violation of your oath for you to consider the
existence and the outcome of the civil trial
wherein Defendants were not parties in your
deliberations.
This instruction was delivered to the jurors immediately upon their
return on the first day of trial after the recess.
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2. Applicable Law and Analysis
In the event that the jury has been exposed to improper
evidence, the trial court must strike the evidence and provide an
appropriate curative instruction unless the evidence was so
"seriously prejudicial" that "a curative instruction will be an
insufficient antidote." United States v. Sepúlveda, 15 F.3d 1161,
1184 (1st Cir. 1993). "Declaring a mistrial is a last resort, only
to be implemented if the taint is ineradicable . . . ." Id. When
reviewing the denial of a motion for a mistrial, "we consider the
totality of the circumstances to determine whether the defendant
has demonstrated the kind of 'clear' prejudice that would render
the court's denial of his motion for a mistrial a 'manifest abuse
of discretion.'" United States v. Dunbar, 553 F.3d 48, 58 (1st
Cir. 2009) (quoting United States v. Freeman, 208 F.3d 332, 339
(1st Cir. 2000)). Essential to this determination are the
following three factors: 1) whether an appropriate curative
instruction was issued, 2) whether the judicial response was
timely, and 3) whether appellants successfully rebutted the
presumption that the jury followed the judge's instructions. See
Sepúlveda, 15 F.3d at 1185.
We begin by considering whether the court issued an
appropriate curative instruction. Appellants contend that the
court's instruction magnified rather than remedied the risk of
prejudice because it reinforced or vouched for Torres's testimony,
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at least in so far as it confirmed the existence of a related civil
case. Appellants reason that as a result, the jurors could have
inferred that the successful "suit against the Municipality of San
Juan" was in fact a jury verdict against the police force premised
on the same facts as the criminal case at hand.
Although we recognize the potential for a prejudicial
inference, even if a juror made the inferences Appellants suggest,
however, the court's forceful curative instruction expressly dealt
with precisely these concerns. In the instruction, which neither
repeated the improper testimony nor reminded the jury of the civil
trial's outcome, the court repeatedly stated that the defendants
were not involved in the civil trial that Torres had mentioned.
Additionally, the court emphasized that "[t]he [civil] case
involved . . . different legal issues and a different burden of
proof for the Plaintiffs," and it repeated three times that the
jurors must not consider any testimony about the civil trial in
their deliberations. We therefore find that the curative
instruction that the court gave was worded appropriately to remedy
any prejudicial effect of Torres's testimony.
Turning next to the issue of timeliness, Appellants argue
that even if the instruction was appropriate, its issuance was too
delayed to remedy the prejudicial effect of Torres's statement.
Appellants note that thirteen days passed between Torres's
testimony on July 1 and the court's curative instruction on
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July 14. Certainly, "[s]wiftness in judicial response is an
important element in alleviating prejudice once the jury has been
exposed to improper testimony," id., and "court[s] should proceed
with the trial after instructing the jury to disregard the
evidence," id. at 1184 (emphasis added). However, we have not
held that an instantaneous instruction is necessary in all
instances. See United States v. Genteles, 619 F.3d 74, 82 (1st
Cir. 2010) (affirming denial of motion for mistrial where court
"did not give a curative instruction immediately following the
[improper] remark" but did so during its final instruction to the
jury); United States v. Maccini, 721 F.2d 840, 847 (1st Cir. 1983)
("Waiting until the next day to give these instructions did not
prejudice the defendant. If anything, the lapse of time aided in
allowing the jury to forget what, in the context of a six-day
trial, is a de minimis incident.").
In this case, the court elected to recess fifty minutes
early on July 1 so that the parties could provide briefing on the
mistrial issue before the court proceeded with trial. The court
then reviewed the briefs, determined a curative instruction was
appropriate, and delivered that instruction immediately upon the
resumption of trial, which happened to follow a pre-scheduled
recess of thirteen days. The court had previously informed the
jury of the recess, and it reminded the jury of the reason for the
delay in trial immediately after delivering the curative
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instruction. In these particular circumstances, we find that the
judicial response to the improper testimony was sufficiently
timely.
Finally, Appellants argue that the presumption that the
jury follows the judge's instructions cannot apply here, and that
no curative instruction could have remedied the extreme prejudice
caused by Torres's testimony. Appellants assert that Torres's
testimony was likely considered authoritative because she was a law
enforcement officer and it went to the central issue at trial by
suggesting that the police department had been found responsible
for Rivera's death. As such, they contend, no juror could have
ignored the testimony as instructed.
Although Appellants' argument on this point is not wholly
without merit, on these facts, it fails for a number of reasons.
First, Torres's passing reference to a civil case did not identify
the claims at issue in the civil trial. Nor did Torres state that
any of the Appellants had been found liable for any injury to
Rivera. In fact, Torres did not identify any of the Appellants as
parties to the civil suit. Appellants' assertion that the jury
likely inferred that the Appellants were guilty because a civil
trial had been decided against different defendants on different
issues is thus not persuasive. Cf. United States v. Rullán-Rivera,
60 F.3d 16, 19-20 (1st Cir. 1995) (affirming denial of motion for
mistrial that "rests exclusively on the conclusory assertion that
-23-
the jury could have inferred that [appellant] was guilty because
his codefendant absconded" during trial, where court gave
appropriate instruction)(emphasis omitted). Second, Appellants
ignore the fact that "within wide margins, the potential for
prejudice stemming from improper testimony or comments can be
satisfactorily dispelled by appropriate curative instructions."
Sepúlveda, 15 F.3d at 1184.
Third, to overcome the presumption that jurors follow the
court's instructions, Appellants were required to show a
probability that "responsible jurors will be unable to disregard
the testimony," and "the testimony likely will have a seriously
prejudicial effect." United States v. Bradshaw, 281 F.3d 278, 285
(1st Cir. 2002). "Whether or not a jury can be expected, under
proper instructions, to disregard particular evidence is a judgment
call, and one as to which appellate courts typically cede a high
degree of deference to the trial court." Id. at 284. Here, the
district court found no reason to depart from the presumption that
the jurors would follow its strong curative instruction, and
neither do we. As the district court properly noted, Appellants
were unable to show that the testimony was likely to have a
seriously prejudicial effect. Torres was the eleventh witness for
the government and the fifth to describe the events at the gas
station. Her passing reference to a civil trial against different
defendants constituted a single sentence of testimony delivered
-24-
near the mid-point of a twenty-six-day trial spanning roughly two
months. Considering the sufficient record evidence to support
Appellants' convictions, discussed at further length below, it is
difficult to attribute any prejudicial effect to Torres's
testimony. In fact, the jury acquitted Pacheco on the charge of
using excessive force resulting in injury or death, and it
acquitted Vidal on the count of assaulting Rivera at the police
station.
We therefore find that the district court did not abuse
its discretion when it denied the motion for a mistrial and instead
issued an appropriate curative instruction.
C. Denial of motion to suppress identification
Pagán contends that the district court erred in denying
his motion to suppress an in-court identification. A brief sketch
of the relevant facts follows.
1. Background
On June 23, 2009, the government informed the court that
it had met recently with Salas to review his testimony in
preparation for trial. At that meeting, Salas volunteered that he
could identify the man whom he had observed hitting Rivera at the
gas station on July 20. Salas explained that he had seen Pagán
entering the courthouse a few days earlier, and he recognized him
as the same man who had beaten Rivera. Defense counsel objected to
any in-court identification by Salas, arguing primarily that it was
-25-
impermissibly suggestive because no lineup had been conducted prior
to trial.
On June 25, first during an evidentiary hearing and then
again in front of the jury, Salas testified that he was 100 percent
certain that Pagán was the man he saw punching a handcuffed Rivera
in the face while at the gas station on July 20, 2003. He
explained that although he did not know his name, he had seen Pagán
at work four or five times prior to that night, he had seen him
five or six times subsequently, and he recognized him yet again
when he was entering the courthouse. Salas also stated that in
their prior encounters, the two men had, on occasion, greeted each
other briefly, exchanging "hellos" and handshakes.
Salas admitted that the sworn statement he composed
shortly after the incident did not include a description of Pagán
or his actions that night. He did not mention Pagán to
investigators until his second interview with the FBI in March
2008, at which point he described him as a man around six feet one
inch tall, white, husky, with a military-style haircut and wearing
an Impact Unit uniform. Salas stated that he saw this tall, husky
man at the gas station twice that night: first for a few seconds
after Salas finished handcuffing Rivera, and again for a few
seconds while the man was punching Rivera in the face. When
testifying before a grand jury, Salas noted that he believed he
could pick the man he had seen out of a photo lineup. However, the
-26-
government never asked Salas to attempt such a pre-trial
identification.
The district court evaluated Salas's testimony and
concluded that even if the identification was impermissibly
suggestive, it was sufficiently reliable as a matter of law so that
it could be presented to the jury for evaluation of its weight and
credibility. Pagán's motion to suppress was denied.
2. Applicable law and analysis
Our review of the denial of a motion to suppress an
identification is plenary, but we review the district court's
factual findings for clear error. United States v. Rivera-Rivera,
555 F.3d 277, 283 (1st Cir. 2009); United States v. Brennick, 405
F.3d 96, 99 (1st Cir. 2005). We note at the outset that
identifying evidence may only be suppressed "in extraordinary
circumstances," and we "will affirm a district court's denial of a
suppression motion if any reasonable view of the evidence supports
it." Rivera-Rivera, 555 F.3d at 282.
To determine if extraordinary circumstances require
suppression of an identification, we follow a two-step approach.
First, we must consider whether the method of identification was
impermissibly suggestive, and if so, we must determine if the
identification was nevertheless sufficiently reliable. Id. Here,
the district court assumed for the sake of argument that the
-27-
identification was impermissibly suggestive, and it proceeded to
the reliability analysis. We shall do the same.
Five factors bear on the reliability of an identification
for purposes of admissibility: 1) the witness's opportunity to
view the suspect; (2) the witness's degree of attention; (3) the
accuracy of the witness's description prior to the identification;
(4) the witness's level of certainty; and (5) the length of time
between the sighting and the identification. Rivera-Rivera, 555
F.3d at 284. As the district court noted, Salas observed Pagán on
two occasions at the gas station on July 20, 2003. While each
viewing was brief, lasting only several seconds, the two men were
in close proximity. Cf. United States v. De León-Quiñones, 588
F.3d 748, 754-56 (1st Cir. 2009) (finding sufficient reliability
where witness "looked at [the defendant] for three seconds before
he told her to look away"). Moreover, this was neither the first
nor the last time that Salas saw Pagán. The men had seen each
other four or five times prior to the incident while at work, and
Salas encountered him afterwards another five or six times, each
time recognizing him as the tall, husky officer from July 20. Cf.
United States v. Recendiz, 557 F.3d 511, 526 (7th Cir. 2009)
(finding in-court identification sufficiently reliable in part due
to witness's familiarity and repeated encounters with defendant
prior to trial). In these circumstances, Salas had sufficient
opportunity to view Pagán.
-28-
Salas did not testify specifically as to his degree of
attention on July 20, but his description of Pagán was accurate.5
Moreover, Salas testified that he was "100 percent certain" that
Pagán was the man he saw at the gas station on July 20, despite the
fact that Pagán had gotten "somewhat fatter" and was now wearing
glasses. Finally, we note that over five years passed between the
events on July 20 and Salas's in-court identification of Pagán.
However, we have previously upheld the admission of an
identification with an even longer, nearly seven-year span between
sighting and identification where other reliability criteria were
sufficiently persuasive. United States v. Flores-Rivera, 56 F.3d
319, 331 (1st Cir. 1995). Here, where Salas had a number of
opportunities to view Pagán before, during, and after the incident,
provided an accurate description, and testified that he was 100
percent certain about his identification, we cannot find that the
district court erred in admitting the identification.
5
Pagán contests the accuracy of Salas's description in a single
sentence, arguing that it was too general to be accurate as
compared to a description in Neil v. Biggers, 409 U.S. 188, 200
(1972). Biggers does not help Pagán, however, as the Court there
noted that the witness's description in that case was "more than
ordinarily thorough," not the benchmark by which all other
descriptions must be measured. Id. In Manson v. Braithwaite, 432
U.S. 98, 115 (1977), the Court deemed reliable a description with
a similar degree of generality as the one Salas provided.
-29-
D. Sufficiency of the evidence
Morales, Pacheco, and Vidal each challenge the district
court's denial of their motions for judgment of acquittal due to
insufficient evidence. We review the denial of a Federal Rule of
Criminal Procedure 29 ("Rule 29") motion for judgment of acquittal
de novo. United States v. Cruzado-Laureano, 404 F.3d 470, 480 (1st
Cir. 2005). In so doing, we examine the evidence in the light most
favorable to the government, taking all reasonable inferences in
its favor, and we ask whether a rational factfinder could have
found the defendant guilty beyond a reasonable doubt. United
States v. Angulo-Hernández, 565 F.3d 2, 7 (1st Cir. 2009).
Accordingly, "[d]efendants challenging convictions for
insufficiency of evidence face an uphill battle on appeal." United
States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008) (internal
quotations and citations omitted).
We address each Appellant's arguments in turn.
1. Morales
Morales argues on appeal that the evidence was
insufficient to support a guilty verdict as to Count One, the civil
rights charge. Count One of the indictment charged Morales and
other officers with, while acting under color of law, kicking,
punching, and otherwise assaulting Rivera, thereby willfully
depriving him of the right to be free from the use of unreasonable
-30-
force in violation of 18 U.S.C. §§ 242 and 2.6 Section 242
provides for an enhanced sentence if the civil rights violation
results in bodily injury or death. In Morales's case, the jury
found him guilty of causing bodily injury but not guilty of causing
Rivera's death.
Morales contends that the government failed to prove
beyond a reasonable doubt that he deprived Rivera of the right to
be free from the unreasonable use of force or that he aided and
abetted others in doing so. He suggests that the only evidence of
his guilt came from the testimony of a single cooperating
defendant, González. He correctly notes that neither Salas nor
Torres testified that they saw Morales at the gas station. Morales
further argues that González's uncorroborated testimony that he saw
Morales kick Rivera two or three times at the gas station could not
be credited because he failed to mention Morales in his first
interview with the FBI.
Morales's argument lacks merit. In short, he asks us to
find that no reasonable juror could have credited González's
testimony that he saw Morales kicking Rivera. We have long held,
however, that "[i]n passing upon challenges to the sufficiency of
the evidence, we are bound to refrain from making independent
judgments as to the credibility of witnesses." United States v.
6
18 U.S.C. § 2 provides liability as a principal for one who aids
and abets the commission of an offense against the United States.
-31-
Ortiz de Jesús, 230 F.3d 1, 6 (1st Cir. 2000) (unpublished). We
have no basis for disturbing the jury's credibility judgments in
this case. A reasonable juror could well have credited González's
testimony over that of a friend of Morales who claimed he did not
see him, and much of González's testimony was consistent with that
of Salas and Torres who similarly observed Impact Unit officers
kicking Rivera. Accordingly, the evidence at trial, viewed in the
light most favorable to the government, sufficed to support
Morales's conviction on Count One.
2. Pacheco
Pacheco challenges his convictions under Counts Seven and
Twelve, which charged him with making a material false statement to
a federal agent, in violation of 18 U.S.C. § 1001, and obstructing
justice, in violation of 18 U.S.C. § 1512(b)(3), respectively. The
jury acquitted Pacheco of Count One, the civil rights charge, which
Pacheco suggests is evidence that the jury believed his claim that
he was not at the gas station during the incident on July 20. If
the jury believed Pacheco's alibi, he argues, it could not have
convicted him on Counts Seven and Twelve, since his alleged false
statements were that he was not at the gas station and that he had
no knowledge about the incident.7
7
Puzzlingly, Pacheco dedicates a substantial portion of his brief
to argue that the evidence at trial was insufficient to convict him
of a § 242 civil rights violation, an offense for which Pacheco was
not, in fact, convicted. To the extent that Pacheco may be
suggesting that a conviction on the civil rights count was a
-32-
A review of the evidence quickly reveals that Pacheco's
argument does not hold water. At trial, the government offered
evidence that Pacheco, himself a police officer, told Puerto Rico
police investigator Rufino Dávila Pérez and FBI Agent Luis Rivero
that he had been with Morales and Pagán in the Impact Unit van,
searching for the stolen police vehicle, on July 20. He claimed
that he never went to or stopped by the gas station during the
incident, that he remained at the site of the recovered patrol car,
and that he had no idea how Rivera came to be injured. Salas,
however, testified that he was "100 percent sure" that he saw
Pacheco -- with whom Salas was personally familiar -- at the gas
station during the incident on July 20, in direct contradiction of
Pacheco's statements. Additionally, multiple witnesses placed the
Impact Unit van -- in which Pacheco claimed to be riding -- at the
gas station along with Pagán and Morales, whom Pacheco had claimed
were with him searching for a police vehicle elsewhere at the time.
From this evidence, a reasonable juror could easily
conclude that Pacheco lied to investigators about his alibi,
actions, and knowledge of the events of July 20. In sum, the
evidence was clearly sufficient to support Pacheco's convictions on
the obstruction of justice and hindering a federal investigation
charges.
prerequisite to convicting him on the obstruction and false
statement offenses, this line of argument finds no support in the
law and is swiftly rejected.
-33-
Pacheco protests, arguing that the convictions are
inconsistent with his acquittal on Count One and thus must be
reversed. Although "[c]onsistency in the verdict is not
necessary," Dunn v. United States, 284 U.S. 390, 393 (1932), there
is no inconsistency here. The elements of the § 242 violation, of
which Pacheco was acquitted, are distinct from those of Counts
Seven and Twelve.8 Accordingly, the jury could well have found
insufficient evidence to convict Pacheco on the civil rights charge
while still finding beyond a reasonable doubt that Pacheco lied to
investigators about where he was and what he knew regarding the
assault on Rivera.
Pacheco's final argument is that even if the jury had
evidence that he lied about his location or knowledge, the
government still failed to show that he had the requisite intent to
8
Count Seven required that the government prove Pacheco knowingly
and willfully made a statement that was false, material, and made
in a matter within the jurisdiction of a federal agency. United
States v. Notarantonio, 758 F.2d 777, 785 (1st Cir. 1985). Count
Twelve required proof that Pacheco knowingly engaged in "misleading
conduct toward another person, with intent to . . . hinder, delay,
or prevent the communication to a law enforcement officer . . . of
information relating to the commission or possible commission of a
Federal offense." 18 U.S.C. § 1512(b). In contrast, Count One
required that the government prove that Pacheco: 1) acted under
color of law, 2) deprived Rivera of a constitutional right, 3)
acted willfully, and as a result, 4) Rivera suffered bodily injury.
See 18 U.S.C. § 242. Thus, the jury could have determined that
there was insufficient evidence to prove beyond a reasonable doubt
that Pacheco kicked Rivera and thus violated or aided and abetted
the violation of Rivera's civil rights while still finding beyond
a reasonable doubt that he obstructed justice and made false
statements.
-34-
obstruct justice or hinder a federal investigation. The record,
however, clearly contradicts Pacheco's claim. There was ample
evidence, as described above, for a reasonable juror to conclude
that Pacheco provided material false statements to federal agents
investigating Rivera's death, and that he did so knowingly,
willfully, and with the intent to prevent investigators from
discovering that he and his fellow officers were present at the
crime scene and were either witnesses to or participants in the
assault of Rivera. We therefore find that the evidence was
sufficient to support Pacheco's convictions on Counts Seven and
Twelve.
3. Vidal
Like Morales, Vidal argues that the evidence was
insufficient to prove his guilt beyond a reasonable doubt as to
Count One, the civil rights charge. Additionally, Vidal contends
that there was insufficient evidence to establish his guilt as to
Count Four, which charged Vidal with violating Rivera's
constitutional rights by intentionally failing to intervene to
protect Rivera from harm at the hands of the officers in Vidal's
presence and under his supervision, all in violation of 18 U.S.C.
§ 242.
Beginning with Count One, Vidal argues the evidence at
trial showed only that he was present during Rivera's arrest and
that he failed to take action. Missing, he claims, is any evidence
-35-
that he willfully participated in the assault as something he
wished to bring about, such that the government failed to prove he
had the requisite intent to aid and abet the commission of a civil
rights violation. The evidence at trial, however, was not limited
to establishing Vidal's presence at the scene on July 20. Multiple
witnesses testified that Vidal helped hold Rivera down on the
ground while the officers under his supervision encircled and
repeatedly kicked Rivera. In addition, Torres testified that he
heard Vidal say "[t]his one's mine, this one's mine," as Vidal
transported the badly injured Rivera to the station house. Once at
the station house, Vidal stood by and watched as Rivera was
assaulted further. From these facts, a reasonable juror could have
concluded that Vidal willfully associated himself with the
violation of Rivera's civil rights and participated in this
violation as something he wished to bring about, in violation of 18
U.S.C. §§ 242 and 2.
Turning to Count Four, Vidal repeats that the evidence
showed only that he failed to intervene while other officers beat
Rivera. He suggests that mere inaction is insufficient to merit
supervisory liability for a violation of § 242, and that it was not
apparent that he was acting unlawfully by failing to intervene.
See United States v. Lanier, 520 U.S. 259, 265 (1997) (holding that
criminal liability for deprivation of a constitutional right under
§ 242 requires that the unlawfulness be apparent under pre-existing
-36-
law). He further argues that his failure to intervene as a
supervisor is insufficient to support a conviction, particularly
because it occurred at the gas station, where events unfolded
quickly and the scene was chaotic.
Vidal's argument as to Count Four also fails. The jury
heard evidence that Vidal was a trained SJMPD officer, and that as
a result, he would have known that kicking and punching a
restrained suspect who posed no threat to others went well beyond
the acceptable use of force. In other words, Vidal cannot
plausibly suggest that allowing his subordinates to repeatedly and
violently assault a handcuffed suspect constituted anything other
than an act of apparent unlawfulness and a clear violation of
Rivera's civil rights. See United States v. Serrata, 425 F.3d 886,
896 (10th Cir. 2005) (finding sufficient evidence to uphold a § 242
conviction where a prison guard stood by and watched an unjustified
assault on a person in his custody despite being in a position to
intervene); see also DeShaney v. Winnebago Cnty. Dep't of Soc.
Servs., 489 U.S. 189, 199–200 (1989) ("[W]hen the State takes a
person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety. . . . [An] affirmative duty to
protect arises . . . .").
As we stated in Wilson v. Town of Mendon, 294 F.3d 1 (1st
Cir. 2002), a supervisor can be held liable for his failure to
-37-
intervene to protect an arrestee from his subordinates' excessive
use of force when his "action or inaction [is] affirmative[ly]
link[ed] . . . to that behavior in the sense that it could be
characterized as supervisory encouragement, condonation or
acquiescence or gross negligence amounting to deliberate
indifference." Id. at 6 (internal quotations and citation
omitted). In this case, the jury heard that Vidal held Rivera on
the ground while officers kicked him, permitted an officer to punch
the handcuffed Rivera in the face without comment, told his
officers "this one's mine" as he transported a severely injured
Rivera to the station house rather than a hospital, and again
watched without intervening as Rivera was further assaulted at the
station house. Vidal's supervisory "acquiescence or gross
negligence amounting to deliberate indifference" as to the repeated
assaulting of Rivera by his subordinates was thus well-documented.
In these circumstances, we have no doubt that the "evidence,
including all plausible inferences drawn therefrom, would allow a
rational factfinder to conclude beyond a reasonable doubt that the
defendant committed the charged crime." United States v. Troy, 583
F.3d 20, 24 (1st Cir. 2009) (internal quotations and citations
omitted).
E. Jury Instruction
For the first time on appeal, Morales argues that the
district court erred when it instructed the jury that it could
-38-
infer consciousness of guilt from the defendants' statements and
actions. Morales concedes that he failed to preserve this claim as
he did not object to the instruction below, and accordingly, we
review for plain error only. See United States v. Combs, 555 F.3d
60, 63 (1st Cir. 2009). Morales thus bears the burden of showing
that: "an error occurred, which was clear or obvious, and which not
only affected the defendant's substantial rights, but also
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." Id. (internal quotations and citations
omitted).
Morales takes issue with the following language from the
court's instruction:
When a defendant voluntarily . . . makes a
statement tending to establish his innocence,
and such . . . statement is later shown to be
proven beyond a reasonable doubt knowingly
false in whole or in part, the jury may
consider whether this circumstantial evidence
points to a consciousness of guilt as to the
civil rights violation. No one can be
convicted of a crime on the basis of
consciousness of guilt alone.
In short, Morales argues that this language improperly relieved the
government of its burden of proof as to the element of intent for
Count One. He theorizes that the instruction told the jury that
Morales's statements had already been proven false, thus improperly
establishing consciousness of guilt, a prejudicial misstep
necessitating a new trial.
-39-
Morales's argument is, at best, ill conceived. We have
long recognized that trial courts have "broad discretion in
deciding how best to communicate complicated legal rules to a lay
jury," United States v. Newell, 658 F.3d 1, 19 (1st Cir. 2011),
and here the record shows that the district court acted well within
its discretion. Morales's argument to the contrary ignores the
conditional language that the court used to preface its instruction
and transforms language about potential findings into an assertion
of proven fact. In short, Morales's reading of the instruction is
simply not supported by the record.
In reality, the court properly instructed the jury that
the government bore the burden of proving "each of the elements of
the crimes charged beyond a reasonable doubt," and the
consciousness of guilt instruction did not contradict this
requirement. Morales has thus failed to demonstrate any error in
the court's consciousness of guilt instruction, let alone plain
error.9
9
Morales also notes, without developed argumentation, that the
court later instructed that "intent is a statement of mind and can
be proven by circumstantial evidence. Indeed, it can rarely be
established by any other means." Although it is not clear whether
Morales seeks to challenge this instruction, we note that this
language is clearly not erroneous and does not lower the
government's burden of proof, but rather instructs the jury as to
the types of evidence it may consider.
-40-
F. Variance
Morales also argues that there was a material variance
regarding Count Sixteen of the indictment, which charged him with
making false statements to a federal grand jury, in violation of 18
U.S.C. § 1623. "A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment." United States v.
Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011) (quoting United
States v. Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009))
(internal quotation marks omitted). Morales failed to raise this
objection below, and thus we review only for plain error. Combs,
555 F.3d at 63.
The indictment alleged that Morales made six false
statements to the grand jury. These statements included assertions
that Morales did not go to the gas station, that he did not see
Rivera at the gas station, that he did not know how Rivera was
injured, and that he did not participate in any way in the arrest
of Rivera. Morales now argues that no evidence was offered to show
that he participated in Rivera's arrest. This, he claims,
demonstrates a material variance as to Count Sixteen that affected
his substantial rights. He suggests that he was unfairly
prejudiced by spillover evidence regarding his codefendants'
participation in the arrest, and that reversal is thus required.
-41-
Significantly, however, Morales concedes that the
government's evidence placed him at the gas station and kicking
Rivera at the time of the arrest, although he claims it was not
specified whether the kicks happened before or after Rivera was
handcuffed. In either case, a reasonable juror could have easily
concluded that kicking Rivera at the gas station as officers were
bringing him into custody constituted some form of participation in
the arrest. In sum, the evidence at trial proved precisely the
facts alleged in the indictment.
Moreover, even if there was a variance as to Morales's
participation in Rivera's arrest, Morales has made no showing of
materiality or prejudice. See United States v. Twitty, 72 F.3d
228, 231 (1st Cir. 1995) ("[T]he jury can convict even if the facts
found are somewhat different that those charged -- so long as the
difference does not cause unfair prejudice."). As we have
previously explained, "[a] jury need not believe that the defendant
did everything that the indictment charges; it may convict if it
believes he did some of the things the indictment charges," so long
as "those things, by themselves, amount to a violation of the
statute, [and] the indictment enables the accused to know the
nature and cause of the accusation against him." United States v.
Mueffelman, 470 F.3d 33, 38-39 (1st Cir. 2006) (internal quotation
marks and brackets omitted). Here, Morales's statement that he did
not participate in Rivera's arrest was but one of six false
-42-
statements set out in the indictment to support a conviction under
18 U.S.C. § 1623. Morales does not and cannot refute the fact that
the jury heard evidence directly contradicting each of his other
statements to the grand jury as described in Count Sixteen of the
indictment. Thus, Morales has failed to show a material variance
between the allegations in Count Sixteen and the evidence at trial
that affected his substantial rights.
G. Vidal's Sentence
Vidal's final claim on appeal is that the district court
erred in sentencing him on Counts One and Four when it used the
wrong Sentencing Guidelines manual to calculate his base offense
level. By applying the less favorable Guidelines in effect on the
date of sentencing rather than the Guidelines manual in effect at
time of the offense, Vidal argues, the court violated the Ex Post
Facto Clause of the Constitution. See U.S. Const. art. I, § 9, cl.
3.
1. Background
On August 13, 2009, Vidal was convicted on Counts One and
Four of violating Rivera's civil rights and causing his death, in
violation of 18 U.S.C. § 242. Vidal was also convicted on Counts
Nine and Fifteen, for making false statements in violation of 18
U.S.C. § 1001 and obstructing justice in violation of 18 U.S.C.
§ 1512(b)(3), respectively. The offense conduct pertaining to
Counts One and Four took place in July 2003, while the offense
-43-
conduct pertaining to Counts Nine and Fifteen occurred in March
2008.
At sentencing, the district court adopted the Guidelines
calculations set forth in the Presentence Report ("PSR"). Using
the November 2009 edition of the Guidelines manual, to which Vidal
did not object, the court grouped Vidal's four offenses of
conviction pursuant to U.S.S.G. § 3D1.2(b) and (c).10 The court
then calculated Vidal's total offense level to be 39, which
produced a Guidelines sentence range of 262 to 327 months. After
considering the relevant sentencing factors, the district court
announced a below-Guidelines sentence of 200 months of imprisonment
as to Counts One and Four, and 57 months of imprisonment as to
Counts Nine and Fifteen, all to be served concurrently.
10
U.S.S.G. § 3D1.2 instructs that "[a]ll counts involving
substantially the same harm shall be grouped together into a single
Group." This provision applies "[w]hen counts involve the same
victim and two or more acts . . . connected by a common criminal
objective or constituting part of a common scheme or plan,"
§ 3D1.2(b), and "[w]hen one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the counts,"
§ 3D1.2(c). The application notes to these instruction add that
"when conduct that represents a separate count, e.g., . . .
obstruction of justice, is also a specific offense characteristic
in or other adjustment to another count, the count represented by
that conduct is to be grouped with the count to which it
constitutes an aggravating factor." U.S.S.G. § 3D1.2(c)
application n.5.
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2. Applicable law and analysis
Vidal now argues that because his offenses under Counts
One and Four were completed on July 20, 2003, the court should have
used the Guidelines manual in effect on that date -- the November
2002 manual -- to calculate his offense level. He notes that the
November 2002 manual provided a base offense level of 25 as to
Counts One and Four, but that the subsequent amendment of the
Guidelines in 2004 resulted in a four-level increase in the
applicable base offense level. As a result, his total offense
level was increased from 34, with a Guidelines range of 168 to 210
months, to 39, with a corresponding range of 262 to 327 months.
This significant increase in the applicable Guidelines range, Vidal
argues, evidences an ex post facto violation that necessitates
resentencing. Because Vidal failed to raise his ex post facto
arguments below, we review his claim only for plain error. United
States v. Rodríguez, 630 F.3d 39, 41 (1st Cir. 2010).
The Ex Post Facto Clause "forbids the application of any
law or rule that increases punishment for pre-existing conduct."
United States v. Regan, 989 F.2d 44, 48 (1st Cir. 1993).
Accordingly, the Sentencing Guidelines have long instructed
district courts to apply the Guidelines in force at the time of
sentencing unless doing so would raise ex post facto concerns, in
which case the sentencing court should apply the Guidelines in
effect at the time of the offense of conviction. U.S.S.G. § 1B1.11
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(b)(1) (policy statement). We have commended this practice, noting
that "avoiding even the slightest suggestion of an ex post facto
problem . . . makes eminently good sense regardless of whether the
practice stems from a constitutional imperative." Rodríguez, 630
F.3d at 42.
The issue is often complicated, however, when defendants
like Vidal are sentenced for multiple convictions arising from
offenses committed over a period of time that spans multiple
versions of the frequently-revised Guidelines. In this situation,
the Sentencing Guidelines provide additional instruction. The
Guidelines' one book rule specifies that a single version of the
Guidelines should be applied for all convictions at sentencing.
See id. § 1B1.11(b)(2). The Guidelines also provide instruction as
to the multiple-offense scenario, so that "[i]f the defendant is
convicted of two offenses, the first committed before, and the
second after, a revised edition of the Guidelines Manual became
effective, the revised edition of the Guidelines Manual is to be
applied to both offenses." Id. § 1B1.11(b)(3).
These sentencing practices are firmly rooted in the case
law of this circuit. See, e.g., United States v. Silva, 554 F.3d
13, 22 (1st Cir. 2009); Cruzado-Laureano, 404 F.3d at 488. In
Cruzado-Laureano, the defendant was convicted on eleven counts of
money laundering, extortion and embezzlement, all of which involved
offense conduct completed prior to the effective date of a new
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Guidelines manual. 404 F.3d at 488. However, because Cruzado-
Laureano's conviction on a twelfth count -- witness tampering --
was based in part on an act that took place a month after the new
manual went into effect, we found that the district court erred in
using an earlier Guidelines manual at sentencing rather than the
manual in effect at the time that the last offense of conviction
was completed. Id. We reaffirmed this holding in United States v.
Gilman, 478 F.3d 440, 449-50 (1st Cir. 2007) (finding no ex post
facto violation where newly revised manual was applied to all
counts of conviction because a single wire transfer was executed
after the revised manual's effective date), and again in Silva, 554
F.3d at 22 (finding no ex post facto violation where revised manual
governed sentencing for multiple convictions stemming from offenses
variously committed over a span of approximately five years).
Vidal's last offense of conviction took place in March
2008, when he lied to investigators and obstructed justice in an
effort to conceal his participation in having caused Rivera's
death. Thus, according to the Guidelines' instructions and our
case law, the November 2007 manual that was in effect in March
2008, not the pre-amendment November 2002 manual that Vidal favors,
should have applied at Vidal's sentencing.11 Vidal protests,
11
The district court at sentencing actually applied the Guidelines
in effect on the date of sentencing, the November 2009 Guidelines,
rather than the November 2007 Guidelines. However, both manuals
post-dated the 2004 amendment and thus both produced the same four-
level increase in Vidal's base offense level and the same
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arguing that the one book rule cannot determine the outcome of this
issue as the rule itself violates the Ex Post Facto Clause of the
Constitution as applied to his case. Specifically, he argues that
the obstruction convictions are "relatively minor 'cover-up'
offenses" that should not be permitted to increase the Guidelines
range of his prior, more serious offenses without fair notice.
We have not yet squarely addressed the constitutionality
of the one book rule, preferring to avoid answering unnecessary
constitutional questions. See United States v. Goergen, 683 F.3d
1, 4 (1st Cir. 2012) ("Goergen's brief -- although opaque on this
issue -- may be arguing that the guidelines instructions themselves
(particularly the one book and multiple offense rules) violate the
Ex Post Facto Clause . . . . [A]ssuming such an argument . . .
could be considered . . . in the teeth of contrary circuit
precedent, any such mistake would be harmless.") (internal
citations omitted). In this case, however, there can be no denying
that the use of the amended Guidelines manual negatively and
seriously impacted Vidal's Guidelines range as calculated by the
district court. Moreover, the government's argument that the Ex
Guidelines range for Vidal's total offense level. Accordingly, to
the extent that the court erred by applying the 2009 rather than
the 2007 Guidelines -- a point which Vidal does not argue -- we
find that such error was harmless. Cf. Silva, 554 F.3d at 22 ("the
correct comparison is between the 2006 Guidelines, which the
district court employed, and the 2004 Guidelines, in effect on the
date that Silva's last offense of conviction was completed. . . .
Our analysis of the 2004 and 2006 Guidelines reveals no relevant
differences that would affect Silva's sentence.").
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Post Facto Clause does not apply to the now-advisory Guidelines has
been foreclosed by the Supreme Court's recent holding to the
contrary in Peugh v. United States, 133 S. Ct. 2072, 2079 (2013).
Thus, the question of the one book rule's constitutionality is now
squarely before us.
We find that the one book rule does not violate the Ex
Post Facto Clause as applied to a series of grouped offenses like
Vidal's. In so holding, we make explicit what has long been
implicit in the case law of this circuit. See Goergen, 683 F.3d at
4; Silva, 554 F.3d at 22; Gilman, 478 F.3d at 449-50; Cruzado-
Laureano, 404 F.3d at 488. This decision is also consistent with
the findings of an overwhelming majority of our sister circuits.
United States v. Kumar, 617 F.3d 612, 626-28 (2d Cir. 2010) ("We
conclude that the one-book rule set forth in § 1B1.11(b)(3) does
not violate the Ex Post Facto clause when applied to the sentencing
of offenses committed both before and after the publication of a
revised version of the Guidelines.") (emphasis omitted); United
States v. Duane, 533 F.3d 441, 449 (6th Cir. 2008) ("[W]here, as
here, offenses grouped together for sentencing purposes were
committed before and after an amended version of the Guidelines
went into effect, the use of the amended version of the Guidelines
does not violate the Ex Post Facto Clause."); United States v.
Sullivan, 255 F.3d 1256, 1262-63 (10th Cir. 2001) (same); United
States v. Vivit, 214 F.3d 908, 918-19 (7th Cir. 2000) ("[W]e
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believe that the enactment of the grouping rules provides fair
notice such that the application of §§ 1B1.11(b)(3) and 3D1.2 does
not violate the Ex Post Facto Clause."); United States v. Lewis,
235 F.3d 215, 218 (4th Cir. 2000) ("[I]t was not § 1B1.11(b)(3)
that disadvantaged Lewis, but rather her decision to commit further
acts of tax evasion after the effective date of the 1993
guidelines."); United States v. Kimler, 167 F.3d 889, 893-95 (5th
Cir. 1999) ("[A] defendant has notice that the version of the
sentencing guidelines in effect at the time he committed the last
of a series of grouped offenses will apply to the entire group.");
United States v. Bailey, 123 F.3d 1381, 1404-07 (11th Cir. 1997)
(same); United States v. Cooper, 35 F.3d 1248, 1250-53 (8th Cir.
1994), vacated, 514 U.S. 1094 (1995), reinstated, 63 F.3d 761, 762
(8th Cir. 1995) (per curiam) (same). But see United States v.
Ortland, 109 F.3d 539, 546-47 (9th Cir. 1997) (finding ex post
facto violation where district court applied revised Guidelines to
all five mail fraud counts, only one of which involved conduct
committed after the amendment).12
12
The Third Circuit, in 1994, found that the application of the
one book rule to grouped conduct committed before and after a
Guidelines revision violated the Ex Post Facto clause. United
States v. Bertoli, 40 F.3d 1384, 1404 (3d Cir. 1994) ("The fact
that various counts of an indictment are grouped cannot override ex
post facto concerns. . . ."). More recently, however, the court
distinguished Bertoli as having involved "discrete, unconnected"
acts that were grouped improperly, and it found no ex post facto
violation because "grouping provisions, combined with the one-book
rule, place a defendant on notice that a court will sentence him or
her under the Guidelines Manual in effect during the commission of
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Vidal argues that we cannot uphold the application of the
one book rule to his case because he lacked proper notice as
required by the Ex Post Facto Clause. He concedes that, had he
consulted the Guidelines in 2003, he "could have suspected . . .
that any punishment for his § 242 offenses could be enhanced (under
the one-book rule) were there to be a subsequent amendment and were
he to commit another federal offense after that amendment took
effect." He concludes that this notice, however, was insufficient,
citing Miller for the proposition that Ex Post Facto violations
"cannot be avoided merely by adding to a law notice that it might
be changed." Miller, 482 U.S. at 431.
Vidal is correct insofar as he argues that the issue of
notice is central to our Ex Post Facto analysis. "Critical to
relief under the Ex Post Facto Clause is not an individual's right
to less punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond what was
prescribed when the crime was consummated." Weaver v. Graham, 450
U.S. 24, 30 (1981). In this case, however, Vidal had far more than
mere notice that the Guidelines "might be changed." The Sentencing
Guidelines' one book and grouping rules placed Vidal on notice that
if he committed a closely related offense in the future, his
sentence for both offenses would be calculated pursuant to the
his or her last offense in a series of continuous, related
offenses." United States v. Siddons, 660 F.3d 699, 706-07 (3d Cir.
2011).
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Guidelines in effect at the time of that later, related offense
conduct. The Guidelines' grouping provisions became effective in
1987, and the one book and multiple offense rules, U.S.S.G.
§ 1B1.11(b), became effective in 1993. In other words, both
Guidelines instructions were enacted well before Vidal's offense
conduct occurred, and he nevertheless elected to proceed with the
commission of obstruction offenses that would trigger the
application of the revised Guidelines. Accordingly, the change in
Vidal's offense level is properly viewed not as a consequence of an
ex post facto violation, but as the direct result of his decision
to engage in closely related offense conduct in 2008. See Kumar,
617 F.3d at 629 ("Here, the defendants' [later] obstruction offense
is the 'actual crime' triggering the application of the one-book
rule, the defendants had prior notice of the consequences of that
crime, and therefore the application of the one-book rule is
proper."). Therefore, the Supreme Court's holding in Peugh, 133 S.
Ct. at 2078, that sentencing a defendant under current Guidelines
providing a higher sentencing range than Guidelines in effect at
the time of the offense is a violation of the Ex Post Facto Clause,
is inapplicable here because Peugh did not involve the application
of the one book rule to a series of grouped offenses like Vidal's.
Notably, we do not suggest that all applications of the
one book rule will in all cases satisfy the Ex Post Facto Clause's
requirements. We do not, for example, condone the retroactive
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application of Guidelines made more severe after the last offense
of conviction occurred. In this case, however, the application of
the amended Guidelines to Vidal's grouped convictions, pursuant to
the one book rule, did not constitute a violation of the Ex Post
Facto Clause.
H. Morales's Sentence
Morales's final claim is that he was a minor participant
in the assault on Rivera and that the district court erred in not
granting him a downward departure pursuant to U.S.S.G. § 3B1.2(b).
We recognize the sentencing court's broad discretion to determine
the appropriateness of a downward departure, and "we will reverse
only if the evidence overwhelmingly demonstrates that the defendant
played a part that makes him substantially less culpable than the
average participant such that the court's decision was clearly
erroneous." United States v. Brandon, 17 F.3d 409, 460 (1st Cir.
1994); see also United States v. García-Ortiz, 657 F.3d 25, 29 (1st
Cir. 2011). The burden of producing such overwhelming evidence
falls on Morales, as "[a] defendant who seeks a downward
role-in-the-offense adjustment must prove her entitlement to it."
United States v. Teeter, 257 F.3d 14, 30 (1st Cir. 2001). Faced
with this uphill battle, Morales's claim of error falls flat.
At sentencing, Morales sought a sentence lower than those
imposed on his co-defendants who cooperated, arguing among other
things that he did not participate in the continued assault on
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Rivera at the police station and that the jury did not find that
his actions caused Rivera's death. The district court concluded
that although Rivera may have had a relatively "lesser role" as
compared to certain defendants, it could not ignore the fact that
Morales had kicked Rivera with his booted foot, nor could Morales
prove that his kicks had caused less injury to Rivera than the
kicks of others at the gas station. Moreover, the court reasoned
that the sentences imposed on the cooperating defendants were not
an appropriate point of comparison as, unlike Morales, they had
accepted responsibility in a timely manner and provided valuable
cooperation to the government. After calculating the Guidelines
range at 135 to 168 months of imprisonment, the court noted that
Morales was a first-time offender with an otherwise unblemished
record as a police officer, and it ordered a below-Guidelines
sentence of 120 months.
The court properly rejected Morales's claim that he
merited a downward departure because he "only" kicked Rivera two or
three times at the gas station and did not continue the assault at
the station house. It also clearly explained why Morales's
sentence should not be compared to those of cooperating co-
defendants who accepted responsibility. Thus, the district court
did not err, let alone clearly err, in denying the minor
participant departure when sentencing Morales to a term of 120
months of imprisonment.
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III. Conclusion
For the above-stated reasons, we affirm.
Affirmed.
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