Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1617
UNITED STATES OF AMERICA
Appellee,
v.
CARLOS L. AYALA-LOPEZ,
a/k/a Macro,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge
Souter, Associate Justice,*
and Lipez, Circuit Judge.
Rachel Brill was on brief for appellant.
Luke V. Cass, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief, for
appellee.
August 6, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Carlos Ayala-Lopez (“Ayala”)
was convicted of murdering a police officer with the United States
Department of Veterans Affairs, as well as committing several other
crimes while acting in a conspiracy to distribute drugs. He claims
a number of reversible errors: in the district court’s failure to
sever his trial from that of a co-defendant; in trial by a death-
qualified jury; in the jury’s acceptance of the evidence as
sufficient to prove first degree murder; in the court’s refusal to
instruct on manslaughter; and in its failure to grant relief from
two mistakes in the indictment, one being multiple counts of using
various guns in the course of the conspiracy (exposing him to
double jeopardy), the other combining more than one gun offense in
a single count. As the Government concedes, Ayala cannot be
punished separately for each gun that he possessed in the course of
a single predicate conspiracy, and we accordingly vacate two of his
gun possession convictions. On all other matters, we affirm.
Ayala came to the notice of federal agents responding to
reports of violence and drug activity at a public housing project
in Puerto Rico. FBI Special Agent William Ortiz observed Ayala
holding a firearm in a drug distribution area; Ayala was seen near
individuals engaging in drug transactions; and he was videotaped
handing a pistol to Luis Llorens, the leader of a gang that sold
the drugs. Local police officers repeatedly saw him at the drug
sales point, often holding a gun, and the officers seized firearms
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from him several times. A number of cooperating witnesses at
Ayala’s trial testified to their recollections of his involvement
with the drug gang and his use of guns in robberies and disputes
with a rival criminal organization.
On April 24, 2002, Llorens ordered the gang members to
steal some firearms to replenish their diminished stock of weapons,
and according to a confidential informant, Ayala, Llorens, Angel
Obregón-Fontánez, and Eusebio Llanos-Crespo set out to do their
part by driving to a Veterans Affairs hospital to grab a handgun
from a police officer. Llorens stayed in the car and Obregón-
Fontánez hid in a nearby phone booth while Ayala and Llanos-Crespo
approached the officer. When he resisted, Ayala shot him twice in
the ensuing struggle. Ayala was later recorded describing how it
was that, after the officer “made a move” and scratched him, he
“took him down” by shooting him. He said that, at that point,
Llanos-Crespo began to fire at the officer as well. A bullet
recovered from the victim’s body matched a .38 caliber pistol
linked to Ayala.
I
The initial indictment accused Ayala and eight others of
drug conspiracy and unlawful possession of firearms in the course
of it, on top of charging Ayala with the murder. After the murder
count was certified as capital, both Ayala and several non-capital
co-defendants moved to sever their trials, and Judge Salvador E.
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Casellas, then assigned to the case, ordered the severance. United
States v. Ayala-Lopez, 319 F. Supp. 2d 236 (D.P.R. 2004). The
ruling, however, had no immediate effect on the prosecution of
defendant Llanos-Crespo, who was then in juvenile proceedings, but
the judge wrote in a footnote that “[i]n the event that [Llanos-
Crespo] joins this case, he will be tried with Co-defendant Ayala.”
After Judge Casellas had taken senior status, and the case had been
transferred to Judge Jay A. García-Gregory, Llanos-Crespo was
certified to be tried for the murder as an adult, and it was Judge
García who issued a summary order denying Ayala’s motion to sever
his trial from Llanos-Crespo’s.
Ayala argues that the latter ruling was an error of law,
as being inconsistent with the earlier one in the same case, see
Ellis v. United States, 313 F.3d 636, 646-48 (1st Cir. 2002)
(“[W]hen a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same
case.”), and he says that denying the motion was an abuse of
discretion in any event. As to the first point, law of the case
doctrine would help Ayala in his second motion to sever only if the
first ruling had ordered severance of his trial from Llanos-
Crespo’s or had established a category of cases for mandatory
severance that unquestionably covered Llanos-Crespo’s. But Judge
Casellas’s order did neither of those things, covering nothing more
than Ayala’s trial and those of the defendants then before him who
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were not charged with the murder. If anything, the doctrine cuts
against Ayala, since Judge Casellas expressly contemplated that
Ayala and Llanos-Crespo would be tried together if Llanos-Crespo
was tried as an adult. See Ayala-Lopez, 319 F. Supp. 2d at 240
n.3.
Nor did Judge García abuse his discretion in denying
Ayala’s second motion to sever. As a formal matter, Ayala suggests
it was an abuse to rule without giving reasons for denying the
motion, and he points to cases holding that the Board of
Immigration Appeals abused its discretion when it failed to give
any reasons for denying motions to reopen proceedings. See, e.g.,
Zhao v. U.S. Dep’t. of Justice, 265 F.3d 83, 93 (2d Cir. 2001).
But these cases arose in administrative adjudications on a subject
of administrative speciality, and Ayala cites no authority
requiring a district court to provide written findings when denying
a severance motion based on law routinely administered by the trial
courts in the first instance. Even a summary denial of a motion to
sever is to be “treated with a considerable amount of deference,”
and overturned only on a showing of “manifest abuse of discretion.”
See United States v. DeCologero, 530 F.3d 36, 52 (1st Cir. 2008).
Accordingly, although we do not have the district court’s reasoning
before us, we can review the merits of the decision to deny, and we
find nothing unreasonable about it.
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There is a strong preference in the federal system for
holding joint trials of defendants charged with related crimes,
Zafiro v. United States, 506 U.S. 534, 537 (1993), “the general
rule [being] that those indicted together are tried together to
prevent inconsistent verdicts and to conserve judicial and
prosecutorial resources,” DeCologero, 530 F.3d at 52. Separate
trials are not warranted unless “there is a serious risk that a
joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.” Zafiro, 506 U.S. at 539.
Ayala says that he was prejudiced in his joint trial with
Llanos-Crespo because he alone was designated as a capital
defendant, suggesting to the jury that he was more blameworthy than
Llanos-Crespo, whom the jury ultimately acquitted. And he
complains of a further unfair handicap in subjecting him to Llanos-
Crespo’s defense strategy. Llanos-Crespo argued that he himself
was not involved in the shooting, but did not directly argue that
Ayala was. Nonetheless, Ayala says that the implication of Llanos-
Crespo’s argument was that Ayala and Obregón-Fontánez were the ones
responsible.
Neither argument calls for relief. His claim that his
status as the only capital defendant created a disadvantageous
contrast with Llanos-Crespo is purely speculative. As to
conflicting defenses, Ayala has hardly “demonstrate[d] that the
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defenses are so irreconcilable as to involve fundamental
disagreement over core and basic facts.” United States v. Peña-
Lora, 225 F.3d 17, 34 (1st Cir. 2000) (quoting United States v.
Paradis, 802 F.2d 553, 561 (1st Cir. 1986) (internal quotation mark
omitted)). The sort of conflict that stands in the way of joint
trials is a function of conflicting evidence, of which there was
none here; indeed, Llanos-Crespo presented no evidence at all. See
United States v. Rose, 104 F.3d 1408, 1416 (1st Cir. 1997) (“[T]he
level of antagonism in defenses is measured by the evidence
actually introduced at trial; argument by counsel is not
evidence.”). Nor is it even likely that the two defendants’
overall strategies conflicted in any material way; Ayala does not
contend that he had no part in the shooting (given the powerful
inculpatory evidence), and Llanos-Crespo’s argumentative suggestion
that Ayala was involved was consequently unlikely to be harmful.
In any case, it was nothing more than finger pointing, which is not
enough to taint a trial. See id. Finally, the district court
instructed the jury that the evidence presented should be
considered “separately and individually as to each defendant,” and
made it clear that the verdict was not an either-or tradeoff. See
United States v. Rodriguez-Marrero, 390 F.3d 1, 27 (1st Cir. 2004);
United States v. Capelton, 350 F.3d 231, 239 (1st Cir. 2003).
Denying the motion to sever was not an abuse of discretion.
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II
Ayala was convicted of a capital crime by a death-
qualified jury, that is, one comprising jurors who had been found
to be able to fulfill their oaths to follow the law by considering
imposition of the death penalty if they found the defendant guilty.
See Wainright v. Witt, 469 U.S. 412, 424 (1985). Although the jury
opted against death here, Ayala presses his objection to trial by
a jury thus qualified, arguing that it was more prone to convict
than a jury would have been if selected without concern for the
possibility of a death sentence.
It is hard to see the sense of his point, since he was
being tried for a capital offense subject to the Government’s
request for death, all of which shows that his real complaint is
about subjecting him to the possibility of imposing the capital
penalty itself, to which he did in fact object. Prior to trial,
Ayala filed several motions attacking the (potential) application
of the penalty, all of which were summarily denied by the trial
judge. He reiterates his objections on appeal, now claiming that
the trial court committed reversible error by trying him before a
death-qualified jury when a sentence of execution should have been
precluded as a matter of law.
Ayala cites his prior motions in complaining that he was
charged in two separate counts for a single murder, and in alleging
(without evidence) that the Second Superseding Indictment was
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obtained from a grand jury unaware that Ayala might be subject to
the death penalty; but these motions were aimed at earlier versions
of the indictment than the one on which he was actually tried. As
for his broader attack on the penalty statute, this court has
previously rejected claims that the Federal Death Penalty Act
(FDPA), 18 U.S.C. §§ 3591-3598, is unconstitutionally arbitrary,
United States v. Sampson, 486 F.3d 13, 23-25 (1st Cir. 2007), as
well as claims that the FDPA cannot apply in Puerto Rico, United
States v. Acosta-Martinez, 252 F.3d 13 (1st Cir. 2001). In
deciding Ayala’s first appeal, we have already upheld the validity
of the death penalty notices he received, see United States v.
Ayala-Lopez, 457 F.3d 107 (1st Cir. 2006), and we have rejected
constitutional challenges to the FDPA based upon Ring v. Arizona,
536 U.S. 584 (2002) (holding jury must determine the presence or
absence of aggravating factors in death penalty sentencing), see
Sampson, 486 F.3d at 20-23. In sum, Ayala was charged with a
capital crime and has failed to adduce any reason that a death
sentence would not have been constitutional in his case. His jury
was properly death-qualified, and we accordingly have no reason to
consider any consequence of a death-qualified jury in a case in
which the death penalty for some reason could not be
constitutionally imposed. See Washington v. State, 737 So. 2d 1208
(Fla. Dist. Ct. App. 1999).
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III
Ayala was convicted of first-degree murder under 18
U.S.C. § 1111, the charge being that he murdered a federal officer
“with premeditation” and “malice aforethought.” In arguing that
the evidence was insufficient to prove premeditation beyond a
reasonable doubt, he adverts to the trial testimony showing that he
and the others went to the Veterans Affairs hospital to steal a gun
from the officer, not to kill him, and the situation became chaotic
rapidly: the officer grappled with Ayala and scratched his arm
immediately before Ayala shot him. There was, Ayala says, no
direct evidence of deliberation before the shots were fired, and
the first degree murder charges should have been withdrawn from the
jury under Federal Rule of Criminal Procedure 29(a).
But the murder conviction is not vulnerable on our de
novo review, given the reasonable evidentiary inferences that may
be drawn in support of the verdict. See United States v. Rosado-
Pérez, 605 F.3d 48, 52 (1st Cir. 2010). “Premeditation
contemplates a temporal dimension, which need only be an
appreciable amount of time.” United States v. Catalán-Roman, 585
F.3d 453, 474 (1st Cir. 2009) (internal quotation marks omitted).
This time “varies with each case” and the key element is the “fact
of deliberation, of second thought.” United States v. Frappier,
807 F.2d 257, 261 (1st Cir. 1986). As a general rule, second
thought is sufficiently shown when a defendant inflicts deadly
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force on a victim already wounded, Catalán-Roman, 585 F.3d at 478,
as was the case here. Ayala shot the officer and then shot him
again, first in the head, and then through the heart, and his own
description of the sequence confirms that he thought before making
a conscious decision to shoot. According to the testimony of one
of Ayala’s confreres, he said that he that he “took [the officer]
down” because he “got mad” after being scratched.
Ayala does no better on his complementary argument that
he was entitled to an instruction on manslaughter, see 18 U.S.C.
§ 1112, as a lesser offense included in the crime of murder. This
would require him to show that his factual objection going to the
element of premeditation could rationally have been resolved in his
favor by a conviction for manslaughter. See United States v.
Ferreira, 625 F.2d 1030, 1031 (1st Cir. 1980).
As it was, the district court did instruct the jury on
second-degree murder as a lesser included offense, that is, murder
without premeditation but with malice aforethought, but Ayala says
that this did not go far enough: “the struggle, the scratches, the
suddenness, the chaos” and his “consumption of narcotics and
alcohol” all combined to create a legitimate factual dispute over
whether Ayala killed the officer without malice “upon a sudden
quarrel or heat of passion,” thereby committing voluntary
manslaughter.
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This issue, too, gets de novo review, United States v.
Boidi, 568 F.3d 24, 27 (1st Cir. 2009), which reveals no error in
the district court’s refusal to give the requested instruction.
The evidence is unequivocal that he shot the officer twice in the
course of robbing him, while the officer’s own weapon remained in
its holster, and no jury could rationally find in his favor on a
claim that he acted on provocation sufficient to incite a
reasonable person to kill another in a fit of passion. See, e.g.,
United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982). The
evidence shows only that while carrying out a planned armed robbery
of a firearm, Ayala intentionally shot his victim after being
scratched on his hand or arm.
IV
Lastly, Ayala claims there were errors in the indictment,
starting with his contention that his convictions for firearms
possession offenses are duplicative, in violation of the Double
Jeopardy Clause. Count two of the indictment used at trial charged
possession of a .45 caliber Colt pistol in furtherance of a drug
trafficking crime, violating 18 U.S.C. § 924(c)(1)(A)(ii); count
three charged similar possession of a .357 caliber Ruger revolver;
count four named a .38 caliber Smith & Wesson revolver in violation
of 18 U.S.C. § 924(c)(1)(A)(iii); and count six charged possession,
carrying, brandishing, using, and discharging firearms during and
in relation to a crime of violence, when he used a firearm to kill
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a person with malice aforethought, contrary to 18 U.S.C. § 924(c)
and (j). He argues that the firearm convictions under counts two,
three, and four, on which he received multiple, consecutive prison
sentences, subjected him to double jeopardy because they relate to
a single drug conspiracy. The prosecution agrees with him.
Since “the imposition of multiple consecutive sentences
under subsection 924(c) for using multiple weapons during a single
predicate crime . . . impinge[s] upon fundamental double jeopardy
principles,” United States v. Rodriguez, 525 F.3d 85, 111 (1st Cir.
2008) (internal quotation marks omitted), the Government concedes
that only one of the firearm convictions may stand, and proposes
that we vacate the convictions, sentences, and special assessments
as to counts two and four.1 We do so, and because Ayala was
sentenced to life imprisonment on counts one, five, and six, this
remedy “requires only a mechanical adjustment on remand.” United
States v. King, 554 F.3d 177, 181 (1st Cir. 2009).
Ayala contends that his conviction under count three
should be vacated as well, because the Government that charged him
with duplicative counts should not now be favored with the choice
of which conviction of the three will remain standing. But such a
penalty for charging error has no precedent or support; courts can
correct these sorts of mistakes on a defendant’s motion, just as
1
Ayala was sentenced to seven years on count two and twenty-
five years on count four, as well as a $600 special assessment.
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the Government concedes we do now, and there is no need for in
terrorem deterrence beyond the typical remedy we order here. See
id.; Rodriguez, 525 F.3d at 112. This disposition also answers
Ayala’s claim that count four was duplicative of count six.
As his final assignment of error, Ayala claims that count
six erroneously described the offense conduct necessary for
conviction under 18 U.S.C. § 924(c)(1)(A), putting him at risk of
conviction for innocent acts, or, in the alternative, he says that
count six described two separate violations of § 924(c)(1)(A), a
duplication requiring vacatur. We think he is mistaken.
Section 924(c)(1)(A) applies to “any person who, during
and in relation to any crime of violence . . . uses or carries a
firearm, or who, in furtherance of any such crime, possesses a
firearm.” Thus the statute arguably describes two distinct,
culpable acts, see United States v. Arreola, 467 F.3d 1153 (9th
Cir. 2006): (1) using or carrying during and in relation to, and
(2) possessing in furtherance. Ayala argues that the indictment
here confused the two types of conduct by charging that he
“knowingly possessed, carried, brandished, used and discharged
firearms . . . during and in relation to a crime of violence”
(emphasis added). Thus, he contends, it allowed a conviction for
possession under the lower standard of “during and in relation to,”
rather than “in furtherance of,” a crime of violence. If the
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indictment were simply for violating (c), he would have a colorable
argument.2
Count six, however, charged Ayala with violating 18
U.S.C. § 924(j), which provides that “[a] person who, in the course
of a violation of subsection (c), causes the death of a person
through the use of a firearm, shall . . . if the killing is a
murder . . . be punished by death or by imprisonment for any term
of years or for life.” Hence, to find a violation of § 924(j) by
causing death through the use of a firearm as well a violation of
(c), a jury must find death by “use” and “during and in relation
to” as (c) uses those terms. As a consequence, the charge of
possession “during and in relation to” was rendered surplusage, and
because the jury was instructed to convict on count six only if
they found a (j) violation beyond a reasonable doubt, the
indictment’s singular reference to possession did him no harm.
This is confirmed by the verdict form showing that the
jury unanimously convicted Ayala of violating (j) by “causing the
death of [the victim] with a firearm, unlawfully,” the fair reading
of which presupposes finding beyond a reasonable doubt that the
defendant used a firearm during and in relation to a crime of
2
We need not decide whether the relation and furtherance
elements differ in any material way, and we express no opinion on
the matter. Nor is it necessary here to determine whether
§ 924(c)(1)(A) creates two separate offenses or merely specifies
two separate means of committing a single offense. Compare United
States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004), with Arreola,
467 F.3d at 1157-58.
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violence under § 924(c)(1)(A). Thus, any error by including the
term “possession” in the indictment was harmless owing to its
irrelevance, which apparently did not in any way affect the jury’s
conviction of Ayala under § 924(j).3 See Arreola, 467 F.3d at 1162
(duplicative error in jury verdict form was harmless because it
likely did not affect the jury’s decision to convict).
We remand to the district court to vacate the
convictions, sentences, and special assessments on counts two and
four. We affirm in all other respects.
So ordered.
3
Ayala argues that, even if the indictment properly charged
two separate offenses of possession and use, it was “duplicitous”
for charging two offenses in one count, thereby allowing the jury
to convict even if the jurors did not reach a unanimous verdict on
any one offense. We reject this alternative for the same reason we
cannot accept Ayala’s primary argument: it is clear that the jury
unanimously found Ayala guilty of using a firearm unlawfully to
kill another person, in violation of 18 U.S.C. § 924(j) as well as
(c).
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