United States v. Rodriguez-Adorno

United States Court of Appeals
For the First Circuit

No. 11-1050

UNITED STATES,

Appellee,

v.

AUGUSTÍN RODRÍGUEZ-ADORNO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

Lydia J. Lizarribar-Masini for appellant.
Vernon Benet Miles, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa and Julia M. Meconiates, Assistant United States
Attorneys, were on brief, for appellee.

September 17, 2012
 LIPEZ, Circuit Judge. Appellant Augustín Rodríguez-

Adorno appeals his conviction in the United States District Court

for the District of Puerto Rico of conspiracy to commit a

carjacking and aiding and abetting an attempted carjacking

resulting in a death. He raises three challenges to his

conviction: (1) the government presented inappropriate and

prejudicial overview testimony from a Federal Bureau of

Investigation ("FBI") agent at the outset of its case, (2) the

government engaged in improper vouching in its closing argument,

and (3) the court erred in denying his Federal Rule of Criminal

Procedure 29 motion for a judgment of acquittal. He also claims

that the court erred in applying the United States Sentencing

Guidelines Manual ("USSG") § 2B3.1(c) "murder cross reference" in

determining the guidelines range for his sentence. Finding

appellant's arguments meritless, we affirm.

I.

As we are called upon to assess the sufficiency of the

evidence supporting appellant's conviction, we present the facts in

the light most favorable to the verdict, while also describing

briefly appellant's version of the events. See United States v.

Díaz, 670 F.3d 332, 337 (1st Cir. 2012). At the outset, we provide

only a summary of the relevant facts, reserving for our analysis a

more detailed discussion of the facts relevant to each issue.

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 On May 12, 2007, appellant and two co-defendants

approached a car leaving the parking lot of a Subway restaurant in

the Río Piedras district of San Juan, Puerto Rico. The two co-

defendants walked behind the car, while appellant, who was

following them closely, struck the passenger's window and told the

two occupants "[t]his is the car we are going to take." Appellant

then tried to open the passenger-side door of the car, but, finding

it locked, ran around to the driver's side. The driver's door was

unlocked and appellant began to fight with the driver, who was

unwilling to give up the car. When the two co-defendants moved to

join the fight, the passenger got out of the car to aid the driver.

After a brief altercation, the driver yelled to the passenger to

get back in the car. Immediately after the victims re-entered the

car, one of appellant's two co-defendants shouted to the other to

shoot the driver "because he was a tough one." The other co-

defendant then pulled out a pistol and fired five or six times

toward the driver of the car, killing him.

Appellant and his two co-defendants were indicted on four

counts: (1) conspiring to commit a carjacking with intent to cause

death or serious bodily harm, in violation of 18 U.S.C. §§ 371,

2119; (2) aiding and abetting in a carjacking that resulted in a

death, in violation of 18 U.S.C. § 2119(3); (3) aiding and abetting

in the use, carriage, and discharge of a firearm in furtherance of,

during, and in relation to the commission of a crime of violence,

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in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and (4) aiding and

abetting each other in causing the death of another person through

the use of a firearm, in violation of 18 U.S.C. § 924(j).

Appellant was tried alone, after one co-defendant agreed

to plead guilty and charges against the other were dropped. At

trial, the government presented extensive evidence against

appellant, including testimony from the passenger of the car and

two Subway employees who witnessed the event and identified

appellant. The government also introduced surveillance video

footage from a local business showing appellant and his co-

defendants walking toward the scene of the shooting shortly before

the incident, as well as from a surveillance camera at the Subway

restaurant showing a portion of the fight. Additionally, the

parties stipulated that DNA samples taken from a hat and pieces of

a gold chain found at the scene were consistent with DNA samples

provided by appellant.

Appellant testified at trial. Although he did not

dispute the fact of the altercation, he provided a different

version of events. According to appellant, the incident began when

the car driven by the victim brushed his knee as he and his friends

were walking along the side of the road. He testified that he hit

the window of the car in anger after the car hit him, and that the

driver exited the car in a belligerent fashion. Appellant stated

that the driver punched one of his co-defendants and then attacked

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him, forcing him to the ground. He testified that as he was

getting up he heard gun shots, but had previously had no idea that

one of his co-defendants was armed.

The jury found appellant guilty of counts one and two of

the indictment -- conspiring to commit a carjacking with intent to

cause death or serious bodily harm, and aiding and abetting in a

carjacking that resulted in a death. Because the victim was killed

in the course of the attempted robbery, the court applied a "murder

cross reference," USSG § 2B3.1(c), in determining the guidelines

range applicable to appellant. This application raised the base

level for the offense conduct to 43, and called for a sentence of

life in prison. However, considering appellant's young age (26

years), lack of any criminal history, and the fact that he was

neither the shooter nor the one who urged the shooter to kill the

victim, the court found that a life sentence "is not conscionable

in this case." Instead, it imposed a 180-month sentence to be

followed by three years' supervised release. This appeal followed.

II.

A. Overview Testimony

As we have now said many times, overview testimony is

problematic when it "consists of declarations by a witness --

commonly a law enforcement officer involved in the investigation at

issue -- presented early during trial to describe the government's

general theory of the case." United States v. Vázquez-Rivera, 665

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F.3d 351, 356 (1st Cir. 2011). Such testimony commonly "relie[s]

heavily on information told to [the witness] by others -- i.e., on

inadmissible hearsay -- rather than on . . . personal knowledge,"

United States v. Meises, 645 F.3d 5, 14 (1st Cir. 2011), and often

"preview[s] the testimony of other witnesses," id. at 14 n.13. In

addition to the hearsay problem, overview testimony of this sort is

"especially problematic because juries may place greater weight on

evidence perceived to have the imprimatur of the government."

United States v. Flores-de-Jesús, 569 F.3d 8, 17 (1st Cir. 2009)

(quoting United States v. Casas, 356 F.3d 104, 120 (1st Cir. 2004))

(internal quotation marks omitted).

The prejudicial effect of this kind of testimony is

heightened when an overview witness is permitted to testify to the

ultimate issue in a criminal trial -- the defendant's culpability.

See Meises, 645 F.3d at 18 (noting that it is "patently unfair" for

a case agent to testify to defendant's culpability). Furthermore,

testimony regarding culpability is a form of lay opinion that will

rarely, if ever, meet the requirements of Federal Rule of Evidence

701. See Fed. R. Evid. 701(b); Vázquez-Rivera, 665 F.3d at 358.

However, testimony from a law enforcement officer who

"played a hands-on role in nearly every aspect of the

investigation" is usually permissible where it "consist[s] of

describing the sequence of events that he had seen and heard."

Meises, 645 F.3d at 15. As we have explained, "[t]here may be

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value in having a case agent describe the course of his

investigation in order to set the stage for the testimony to come

about the nature of the conspiracy and the defendants involved."

Flores-de-Jesús, 569 F.3d at 19. But this testimony must be

limited to a description of the investigation, and may not shade

into a statement of the government's theory of the case or

conclusory statements about the defendant's culpability. See id.

B. Agent Gilbert's Testimony

We review preserved evidentiary objections, including

those challenging overview testimony, for abuse of discretion. See

United States v. Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008). Of

course, even if we find error, we will not overturn a conviction if

we deem it harmless, meaning that "it is highly probable that the

error did not influence the verdict." Id. (quoting United States

v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005)) (internal quotation

marks omitted). Where an objection was not raised before the

district court, we review admission of the challenged testimony for

plain error. Id. This requires us to determine whether "(1) an

error occurred (2) which was clear or obvious and which not only

(3) affected [] substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." Vázquez-Rivera, 665 F.3d at 357 (quoting Flemmi, 402

F.3d at 16) (alteration in original). We have noted that "[t]his

inquiry is substantially similar to the standard we follow in

-7-
harmless error analysis, with the added wrinkle that the

petitioner, not the government, bears the burden of persuasion with

respect to prejudice." Id. at 363 (quoting Ramírez-Burgos v.

United States, 313 F.3d 23, 29 (1st Cir. 2002)) (internal quotation

marks omitted).

The government's first witness at trial was FBI agent

Richard Gilbert, who was the agent in charge of the investigation.

Among other things, his testimony described the course of the

investigation. Appellant argues that portions of Gilbert's

testimony were impermissible overview testimony. In particular, he

points to Gilbert's characterization of the events of May 12, 2007,

as a "carjacking" and "murder." He also challenges the

admissibility of Gilbert's testimony identifying individuals

appearing on the surveillance videos that were shown to the jury,

as well as Gilbert's testimony about who was involved in the

altercation that morning. Finally, appellant notes that Gilbert

also summarized the statements of others by testifying that seven

or eight witnesses identified appellant as being involved in the

altercation. In sum, appellant argues that much of Gilbert's

testimony was inadmissible hearsay and that Gilbert offered

prejudicial testimony concerning appellant's culpability that

usurped the jury's fact-finding function.

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 1. Preserved Claim of Error

Stating that Gilbert's characterization of the event as

a "carjacking" was based on hearsay, the government acknowledges

that it was admitted in error. This acknowledgment was apt, not

only because the statement may have been based on hearsay (the

government does not elaborate on its concession), but also because

it was inadmissible lay opinion testimony as to the ultimate issue

of appellant's culpability. See Fed. R. Evid. 701(b) (stating that

opinion testimony of lay witness must be "helpful to clearly

understanding the witness's testimony or to determining a fact in

issue"); Vázquez-Rivera, 665 F.3d at 358 ("[L]ay opinions going to

the ultimate issue will rarely meet th[e] requirement [of Rule

701(b)], 'since the jury's opinion is as good as the witness's.'"

(quoting United States v. Sanabria, 645 F.3d 505, 516 (1st Cir.

2011))). Appellant preserved his objection to this testimony. The

government argues that admission of this testimony was harmless.

After appellant's objection, the government corrected

itself and referred to the incident as an "alleged carjacking."

The incident was referred to as a "carjacking" only three other

times during Gilbert's examination, once by the government,

properly labeling it "alleged," but twice by Gilbert, who omitted

the qualifier. However, these two statements were passing

references on the first day of trial and the government did not

refer to Gilbert's characterization of the event as a "carjacking"

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in its closing argument. In the context of all of the evidence

offered at trial -- including testimony from the passenger in the

car and multiple other witnesses -- these comments were

insignificant. Accordingly, we may safely conclude that "it is

highly probable that the error did not influence the verdict," and

was thus harmless. Rodriguez, 525 F.3d at 95.

2. Unpreserved Claims of Error

Appellant challenges two additional portions of Gilbert's

testimony. First, he takes issue with Gilbert's testimony

identifying the individuals captured on the two surveillance tapes

shown to the jury, as well as testimony identifying the individuals

involved in the altercation. Second, he challenges Gilbert's

testimony that seven or eight witnesses identified appellant as

being involved in the incident. Since he did not raise objections

to any of this testimony at trial, we review only for plain error

and appellant bears the burden of establishing prejudice. See

Rodriguez, 525 F.3d at 95.

Gilbert's testimony that seven or eight witnesses

identified appellant as being involved in the incident, which was

offered to prove that involvement, was based on inadmissible

hearsay. See Fed. R. Evid. 801. This is precisely the kind of

inadmissible hearsay testimony, often present in overview

testimony, that we have repeatedly condemned. See Flores-de-Jesús,

569 F.3d at 19-20. Understandably, the government makes no effort

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to defend this statement, conceding that it was admitted

erroneously.

Gilbert's testimony identifying the individuals captured

on the two surveillance tapes shown to the jury, as well as

testimony identifying the individuals involved in the altercation

on the basis of those tapes, present a closer question. Testimony

by a law enforcement officer identifying a defendant as the person

depicted in a video or photograph may be admissible where "the

witness possesses sufficiently relevant familiarity with the

defendant that the jury cannot also possess, and when the [images]

are not either so unmistakably clear or so hopelessly obscure that

the witness is no better-suited than the jury to make the

identification." United States v. Jackman, 48 F.3d 1, 4-5 (1st

Cir. 1995). However, where the witness is in no better position

than the jury to make an identification, such testimony does not

meet the requirements of Federal Rule of Evidence 701 and is

inadmissible. See United States v. Jadlowe, 628 F.3d 1, 24 (1st

Cir. 2010) (finding testimony of police officers inadmissible where

jurors are equally capable of identifying defendant as person seen

in video surveillance). Here, it is unclear whether Gilbert had

any special familiarity with the individuals involved that would

make him better suited to make the identifications than the jurors.

Accordingly, we will assume, without deciding, that his testimony

was admitted in error.

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 However, appellant cannot demonstrate the prejudice

required by plain error review. Gilbert's identification of

appellant and his co-defendants from the tapes was clearly

innocuous in light of the fact that appellant acknowledged that he

was present and took part in the fight. For the same reason,

Gilbert's testimony that seven or eight witnesses identified

appellant as being involved in the incident cannot have been

prejudicial. Both forms of testimony simply assert a fact that

appellant acknowledged was true. Thus, appellant does not come

close to "surmount[ing] the high hurdle of plain error review [by]

show[ing] that the improper remarks affected the outcome of the

trial." Vázquez-Rivera, 665 F.3d at 363 (internal quotation marks

omitted).

III.

Appellant claims that the government engaged in improper

vouching in its closing argument. In particular, appellant sees

improper vouching in: (1) the government's statement, referring to

the car passenger's testimony, that "[n]o one has ever said that

[the passenger] testified other than honestly"; (2) the

government's rhetorical questions, "Was [the passenger] credible?

Was he honest? Of course, he was"; (3) the statement that

verification of one aspect of the passenger's testimony "reflect[s]

upon [his] ability to testify truthfully and honestly"; and (4) the

statement that, "[t]he evidence shows that the more credible

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witnesses here are those who have no interest in this case." The

first of these statements was made in the government's initial

closing argument and the final three in its rebuttal to appellant's

argument. Since appellant did not object to these statements at

trial, we review them for plain error. See United States v.

Figueroa-Encarnacion, 343 F.3d 23, 27 (1st Cir. 2003).

Improper vouching occurs when a prosecutor or government

witness "impart[s] her personal belief in a witness's veracity or

impl[ies] that the jury should credit the prosecution's evidence

simply because the government can be trusted." United States v.

Valdivia, 680 F.3d 33, 49 (1st Cir. 2012) (quoting United States v.

Pérez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003)) (internal quotation

marks omitted). The first, third and fourth statements identified

above provide fair commentary on the evidence. The first is simply

an argument, somewhat inartfully formed, that the passenger was

never effectively impeached. The third statement points out that

there was corroboration for a portion of the passenger's testimony,

justifying the inference that he has generally testified

truthfully. The fourth statement is a suggestion that witnesses

who have no stake in the outcome of the case can be viewed by

jurors as more credible. However, the second statement is

unmistakably the personal opinion of the prosecutor as to the

honesty of a witness and constitutes improper vouching.

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 We have explained that vouching is more likely to be

harmful "where the prosecutor flaunts the government's skills and

purity of motive or where the context or the prosecutor's words

imply private knowledge of the defendant's guilt that unfortunately

cannot be shared with the jury." United States v. Gomes, 642 F.3d

43, 47 (1st Cir. 2011). Neither of these problematic behaviors

occurred here. Even though the prosecutor provided his own opinion

of the passenger's credibility, the jury had ample opportunity to

draw its own conclusions about the witness's veracity, given that

it saw and heard the passenger testify for several hours. The

prosecutor's comment, prefaced by the introductory phrase "of

course," implied no special knowledge or purity of motive, and

cannot have made a significant difference in the jury's perception

of this testimony. See id. Because appellant has failed to show

the requisite prejudice, this error does not justify a new trial

under the plain error rubric. See Figueroa-Encarnacion, 343 F.3d

at 28-29.

IV.

Federal Rule of Criminal Procedure 29 entitles a

defendant to a judgment of acquittal if, at the close of all

evidence or the conclusion of the government's case, "the evidence

is insufficient to sustain a conviction." We review a district

court's denial of a Rule 29 motion de novo, "taking the evidence in

the light most favorable to the government and making all

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reasonable inferences in its favor." United States v. Giambro, 544

F.3d 26, 29 (1st Cir. 2008). Such an analysis requires us to

"assess whether a reasonable factfinder could have concluded that

the defendant was guilty beyond a reasonable doubt." United States

v. Fernández-Hernández, 652 F.3d 56, 67 (1st Cir. 2011). Thus, we

ask only whether "the guilty verdict finds support in a plausible

rendition of the record." United States v. Hatch, 434 F.3d 1, 4

(1st Cir. 2006) (quoting United States v. Cruzado-Laureano, 404

F.3d 470, 480 (1st Cir. 2005)) (internal quotation marks omitted).

Although his briefing is not clear, appellant appears to

challenge his convictions of both conspiracy and aiding and

abetting a carjacking resulting in death. He argues that there was

insufficient evidence to allow the jury to find that he possessed

the requisite intent to commit a carjacking. This challenge is

meritless.

"To support a conviction under a conspiracy charge, the

government must show that a defendant had both the intent to agree

to commit a crime, and the intent that the crime be completed."

United States v. Castro-Davis, 612 F.3d 53, 60 (1st Cir. 2010). We

have noted that "[t]he prosecution need only show knowledge of the

basic agreement, with an intent to commit the underlying

substantive offense. The requisite knowledge and intent can be

proven through circumstantial evidence, including inferences from

acts committed by the defendant that furthered the conspiracy's

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purposes." Id. (quoting United States v. García-Pastrana, 584 F.3d

351, 377 (1st Cir. 2009)) (internal quotation marks omitted).

In turn,

[t]he elements of a carjacking resulting in
death are (1) taking or attempted taking from
the person or presence of another; (2) a motor
vehicle transported, shipped, or received in
interstate or foreign commerce; (3) through
the use of force, violence, or by
intimidation; (4) with the intent to cause
death or serious bodily harm; (5) that results
in death.

Id. at 61. In Holloway v. United States, 526 U.S. 1 (1999), the

Supreme Court clarified the intent element of the statute,

explaining that

[t]he intent requirement of § 2119 is
satisfied when the Government proves that at
the moment the defendant demanded or took
control over the driver's automobile the
defendant possessed the intent to seriously
harm or kill the driver if necessary to steal
the car (or, alternatively, if unnecessary to
steal the car).

Id. at 12. Finally, to establish aiding and abetting liability,

the government has to prove that: 1) the substantive offense was

actually committed, 2) "th[e] defendant assisted in the commission

of that crime or caused it to be committed," and 3) "the defendant

intended to assist in the commission of that crime or to cause it

to be committed." United States v. Gonzalez, 570 F.3d 16, 27-29

(1st Cir. 2009) (quoting jury instructions).

In making his sufficiency argument, appellant focuses on

the intent element of the carjacking statute. However, there was

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ample evidence indicating that appellant had the requisite intent

to "seriously harm or kill the driver if necessary to steal the car

(or, alternatively, if unnecessary to steal the car)." Holloway,

526 U.S. at 12.1 Most importantly, the passenger in the car

offered extensive testimony about the events of May 12, 2007,

including testimony that appellant instigated the entire chain of

events by striking his window and telling him and the driver, "This

is the car we are going to take." This testimony was powerful

evidence that appellant and his co-defendants were acting in

concert and that they approached the car with the intent to commit

a carjacking. In addition to this testimony, there was more

evidence in the form of eyewitness testimony describing the

altercation between appellant and his co-defendants and the

victims, as well as physical evidence linking appellant to the

scene.

Appellant argues that there was no evidence that he was

aware that one of his co-defendants had a gun and, thus, that there

was insufficient evidence to permit the jury to find that he had an

1
Appellant's sufficiency argument relies in large measure on
his overview testimony and vouching arguments. However, the latter
is irrelevant to the sufficiency analysis. It is a trial fairness
issue and we have dealt with it as such. Furthermore, we do not
include the contested overview testimony in our sufficiency
analysis because we have either concluded that it was admitted in
error or assumed so. Thus, it would be inappropriate to rely on it
in assessing the sufficiency of the evidence supporting appellant's
conviction. Instead we focus on the other ample evidence
indicating the appellant's intent.

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intent to kill or seriously harm the victim in carrying out the

carjacking. However, as the government points out, the evidence

showed that appellant and his co-defendants used violence from the

very beginning of the incident, suggesting a willingness to harm

the victim. In addition to the testimony that appellant struck a

window of the car and announced his intent to take the vehicle,

there was testimony from several witnesses that appellant and his

co-defendants began to fight with the victims when they refused to

acquiesce in the carjacking. Furthermore, there was extensive

evidence that appellant and his co-defendants acted in concert,

rendering it unlikely that appellant was unaware that his co-

defendant was armed. Finally, although the fact of the killing

does not alone satisfy the intent element of § 2119, "[c]ommon

sense . . . dictates that the final act, at the very least,

evidences the intent." Castro-Davis, 612 F.3d at 63 n.13. In

aggregate, this evidence is sufficient to permit the jury to

conclude that appellant "possessed the intent to seriously harm or

kill the driver if necessary to steal the car." Holloway, 526 U.S.

at 12.

Accordingly, "taking the evidence in the light most

favorable to the government and making all reasonable inferences in

its favor," Giambro, 544 F.3d at 29, there is no question that the

government presented sufficient evidence to support appellant's

convictions.

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 V.

USSG § 2B3.1 establishes sentencing guidelines for the

crime of robbery, and provision (c)(1) of that section instructs

that "[i]f a victim was killed under circumstances that would

constitute murder under 18 U.S.C. § 1111 . . . , apply § 2A1.1,"

which calls for a base offense level of 43 and a sentence of life.

In turn, 18 U.S.C. § 1111 defines murder as "the unlawful killing

of a human being with malice aforethought." As with all appeals

concerning the interpretation and application of the sentencing

guidelines, a court's decision to apply § 2B3.1(c)(1) is reviewed

de novo and its factual findings for clear error. United States v.

Aguasvivas-Castillo, 668 F.3d 7, 13 (1st Cir. 2012).

Appellant raises several challenges to application of the

murder cross reference, USSG § 2B3.1(c)(1). As best we can make

out, he argues first that there was insufficient evidence to

establish the intent required to convict him of a carjacking under

18 U.S.C. § 2119. This argument is simply a restatement of his

argument in support of his Rule 29 motion, and it fails for the

reasons described above. Appellant also argues that because he was

acquitted of counts three (aiding and abetting in the use,

carriage, and discharge of a firearm in furtherance of, during, and

in relation to the commission of a crime of violence) and four

(aiding and abetting the killing of another person through the use

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of a firearm), it was error for the court to apply the murder cross

reference.

Without suggesting that there is any validity to

appellant's argument about the relationship between the application

of the murder cross reference and the acquittal on counts three and

four, we conclude that, on the facts of this case, the convictions

on counts one and two justify the application of the murder cross

reference. As required by the guidelines, the circumstances of the

victim's killing would constitute murder under 18 U.S.C. § 1111.

Here, the victim was shot and killed by appellant's co-conspirator

in the course of the carjacking. That is enough to apply the

murder cross reference to appellant. See United States v. García-

Ortiz, 528 F.3d 74, 81-82 (1st Cir. 2008) (noting that a "killing

[during a] robbery [is] first-degree murder by those who

perpetrated the robbery, regardless of who pulled the trigger or

any individual intent" (internal quotation mark omitted)); United

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

finding application of USSG § 2B3.1(c)(1) appropriate).

VI.

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.

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