United States v. Colon-Osorio

United States Court of Appeals
For the First Circuit

No. 02-2722

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS COLÓN OSORIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Lynch and Howard,
Circuit Judges.

Linda Backiel for appellant.
Guillermo Villarmarzo, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Sonia I. Torres-
Pabón, Assistant United States Attorney, were on brief, for
appellee.

March 3, 2004
 HOWARD, Circuit Judge. On June 28, 2000, defendant-

appellant Luis Colón Osorio was arrested after Puerto Rico police

officers investigating a drug purchase by a passenger in Colón's

vehicle discovered that Colón was armed and carrying, inter alia,

an explosive device. In due course, a jury convicted Colón of

being a felon in possession of a firearm, see 18 U.S.C. §

922(g)(1), with an obliterated serial number, see 18 U.S.C. §

922(k), and carrying an explosive during his felonious possession

offenses, see 18 U.S.C. §§ 844(h)(2), (j), and 232(5). The

convictions resulted in concurrent 24-month sentences on the two

possession counts and a consecutive 120-month sentence on the

carrying charge.

Colón presents six arguments in favor of reversal or,

alternatively, vacatur of his convictions. Colón first contends

that the district court abused its discretion, see United States v.

DeJesus, 211 F.3d 153, 155-56 (1st Cir. 2000), in denying as

"untimely" his motion for funds (Colón is indigent) to secure an

expert's assistance in investigating whether he was carrying an

"explosive." The relevant facts are as follows.

A federal grand jury indicted Colón on the charges of

which he was convicted on August 23, 2001. Between the date of the

indictment and April 1, 2002, the only issues actively litigated

were Colón's competency and entitlement to bail, although the

government did file the curriculum vitae of explosives expert

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Richard J. Campbell on October 24, 2001. Ultimately, Colón was

ordered detained and found, by order dated April 1, competent to

stand trial. On April 3, Colón moved to continue the trial, which

was then scheduled to begin on April 11. The district court

granted the motion, setting a new trial date of May 16.

On April 24, Colón filed his motion for funds to hire an

expert. Two days later, before the government responded, the

district court denied it as "untimely" by margin order. The record

reveals no pretrial order or rule specifically requiring that the

motion be filed prior to April 24. When the matter was raised at

trial, the court clarified that it had denied the motion because it

"would obviously [have been] followed by a request for a

continuance" to obtain an expert report. The court might have

added, but did not, that the government's intention of relying on

an expert to prove that the device was an explosive should have

been known no later than October 24, 2001, when the government made

its submission regarding its explosives expert.

While Colón's motion was filed later than it might have

been, we are troubled that it was denied solely on the ground that

a contrary ruling would necessitate a second continuance of the

trial. After all, a 10-year mandatory prison sentence was at

stake, see 18 U.S.C. § 844(h)(2); Colón was in prison awaiting

trial and thus posed no threat to the public; the motion was filed

more than three weeks prior to the day trial was scheduled to

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begin; and the record contains no evidence from which to infer that

the government would have been prejudiced by any continuance that

would have followed the granting of the motion. Under the

circumstances, the rationale provided for the denial of the motion

strikes us as being close to, if not beyond, the limits of the

court's discretion.

Nonetheless, despite our misgivings about the slender

rationale for denying the motion, we will not vacate the judgment

of conviction on the carrying charge because our independent review

of the record convinces us that any error was harmless. See Fed.

R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.");

United States v. Meserve, 271 F.3d 314, 327 (1st Cir. 2001) (noting

appellate court's power to affirm challenged judgments on any

ground apparent in the record). Colón's defense theory was that

law enforcement agents planted the firearm and the explosive device

that led to the charges against him because they were out to get

him for ulterior motives. He did not make any effort to contradict

the evidence about the contents of the device. And the

uncontradicted evidence about those contents compels the conclusion

that the device constituted an "explosive" within the meaning of 18

U.S.C. § 844(h)(2).

The device consisted of two cylinders containing 5.95 and

5.7 grams of a gray powder. The cylinders were bound together,

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encrusted with 3/4-inch metal nails, and fitted with an ignitable

fuse. Laboratory tests showed the gray powder to be a mixture of

potassium perchlorate (an oxidizing agent) and aluminum (a fuel).

This mixture is commonly known as "flash powder." Flash powder is

an "explosive" subject to commercial regulation by the Bureau of

Alcohol, Tobacco, and Firearms. See 27 C.F.R. § 555.11 (2003)

(defining "flash powder" as "[a]n explosive material intended to

produce an audible report and a flash of light when ignited which

includes but is not limited to oxidizers such as potassium chlorate

or potassium perchlorate, and fuels such as sulfur or aluminum

powder").

The trial evidence thus established that the device Colón

was carrying contained both an "explosive" powder and the means for

igniting it. Colón did not seek expert assistance (from a chemist,

for example) to attack these foundational facts; he sought

assistance so that his attorney might better understand whether and

how the device might operate. But the government was not required

to prove the device's operational capacity to a certainty; some

possibility of explosion is sufficient under the statute. See 18

U.S.C. § 844(j) ("For the purposes of subsection[] . . . (h), . .

. 'explosive' means . . . any chemical compounds, mechanical

mixture, or device that contains any oxidizing and combustible

units, or other ingredients, in such proportions, quantities, or

packing that ignition by fire, by friction, by concussion, by

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percussion, or by detonation of the compound, mixture, or device or

any part thereof may cause an explosion.") (emphasis supplied). We

therefore see no likelihood that Colón was harmed by the denial of

his motion.

Colón next argues that there was insufficient evidence

for the jury to have made the elemental determination that he was

a convicted felon on the day he was arrested with the firearm and

explosive device. Colón derives this argument from the fact that,

at trial, the government only introduced evidence (in the form of

a certified judgment) that he had been convicted in 1993 in the

District of Connecticut for failing to appear for a criminal trial,

in violation of 18 U.S.C. § 3146(a)(1). Colón points out,

correctly, that § 3146(a)(1) contains both felony and misdemeanor

provisions, and argues that one cannot tell from the face of the

judgment whether his prior conviction was a felony or misdemeanor.

The government responds that one can tell that Colón's prior

conviction was a felony because the judgment shows that Colón was

sentenced to three years of supervised release, a term that may be

imposed only in connection with a felony conviction. See 18 U.S.C.

§ 3583(b).

The government is surely correct when it says that the

certified judgment was sufficient to support an inference that

Colón was a convicted felon on the day of his arrest. But that is

not really the problem about which Colón is complaining. While a

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jury could have drawn the inference if it had been informed that a

three-year supervised release term may be imposed only in

connection with a felony conviction, Colón's jury was not so

informed. This is the thrust of Colón's somewhat misframed

"sufficiency" argument. And it is a point to which the government

has made no response.

Nevertheless, as with the previous issue, we believe that

the record adequately supports the judgments of conviction against

this attack. See Meserve, 271 F.3d at 327. For the reasons we

have just stated, Colón's argument is better understood not as a

sufficiency challenge, but as an argument that the instructions

(which merely directed the jury to determine whether Colón was a

felon based on the trial evidence) did not adequately explain to

the jury how it might infer from the trial evidence that Colón was

a felon on the day he was apprehended with the firearm and

explosive device. Where, as here, there was no relevant objection

to the jury instructions, an argument of this sort can prevail only

when it meets the demanding "plain error" test of Fed. R. Crim. P.

52(b) -- that the error be "clear" or "obvious," that it affect

substantial rights, and that it seriously affect the fairness,

integrity or public reputation of judicial proceedings. See United

States v. Olano, 507 U.S. 725, 732 (1993). In this case, the plain

error standard clearly is not met because Colón has failed to

present us with a plausible argument that his 1993 conviction under

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18 U.S.C. § 3126(a)(1) was for anything other than a felony. We

will not notice an instructional error under Rule 52(b) where there

is overwhelming evidence that the jury still would have convicted

absent the error. See Johnson v. United States, 520 U.S. 461, 469-

70 (1997).

Colón also complains that the district court abused its

discretion in denying as "untimely" a "supplemental" motion to

suppress that he filed on April 24, 2002, the same day Colón filed

his motion for funds to hire an expert. Colón's motion was

"supplemental" because he had earlier filed a suppression motion

that was denied on the ground that Colón claimed no possessory

interest in the firearm and explosive device. (Recall that his

defense theory was that the weapons had been planted by law

enforcement agents out to get him for ulterior motives.) Colón's

"supplemental" motion, which was not accompanied by a supporting

affidavit, failed to address the district court's conclusion that

suppression was inappropriate in light of Colón's defense theory.

So too does his appellate argument. We therefore will leave the

court's ruling undisturbed. That said, we here again must note our

doubts that the court acted within its discretion in denying the

motion on timeliness grounds. As with the motion for expert funds,

the supplemental suppression motion was filed more than three weeks

prior to the day trial was to begin and was not beyond the date

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established by any scheduling order or procedural rule. The court

should have addressed its merits.

Colón next complains that the government was permitted to

present "expert" testimony from Rafael Uribe that the firearm had

moved in interstate commerce and was originally black in color

(apparently, at trial, most of the black paint had been removed and

the gun looked metallic) even though Uribe was not noticed as a

government expert in accordance with Fed. R. Crim. P. 16(a)(1)(G).

The line between expert testimony under Fed. R. Evid. 702 (which is

subject to the disclosure requirements of Rule 16(a)(1)(G)) and lay

opinion testimony under Fed. R. Evid. 701 (which is not subject to

Rule 16(a)(1)(G)) is not easy to draw and is not a matter on which

we wish to elaborate without more substantial briefing. Suffice it

to say that the only truly germane opinion that Uribe stated --

that the firearm was manufactured outside of Puerto Rico and thus

must have moved in interstate commerce -- was properly regarded as

lay opinion testimony because it was based on information gleaned

from Uribe's personal experience (Uribe had personally visited the

Massachusetts plant at which the gun was manufactured) and was

arrived at "from a process of reasoning familiar in everyday life."

Fed. R. Evid. 701 advisory committee's notes on the 2000 amendments

(citation and internal quotation marks omitted). And in any event,

even if it were not, Colón has not demonstrated that he was

prejudiced by the admission of this testimony.

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 Colón's remaining two arguments require no more than a

few words in response. Colón contends that, after United States v.

Lopez, 514 U.S. 549 (1995), mere evidence that the firearm crossed

state lines prior to the alleged offense conduct is insufficient to

meet 18 U.S.C. § 922(g)(1)'s "in or affecting commerce"

requirement. A prior panel has rejected this argument, see United

States v. Joost, 133 F.3d 125, 131 (1st Cir. 1998), so we are not

free to revisit the issue, see United States v. Mayes, 332 F.3d 34,

36 (1st Cir. 2003). Colón also challenges the district court's

decision to admit testimony that Colón was in possession of drugs

at the time of his arrest and that Colón had a history of drug use.

But much of this evidence was admitted without objection and, in

any event, strikes us as extremely unlikely to have affected the

jury's rejection of Colón's defense theory -- that the firearm and

explosive device were planted on him. Thus, even if we thought

that the district court erred in admitting some or all of this

evidence, we would not vacate the judgments of conviction on this

basis. See Fed. R. Crim. P. 52(a).

Affirmed.

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