United States Court of Appeals
For the First Circuit
No. 94-2217
No. 95-1390
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE R. CRUZ-KUILAN,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Boudin, and Lynch, Circuit Judges.
Miriam Ramos Grateroles for appellant.
Miguel A. Pereira, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, was on brief, for the United
States.
February 5, 1996
LYNCH, Circuit Judge. This is an appeal from a
LYNCH, Circuit Judge.
conviction for a carjacking which resulted in the owner of
the car being shot to death in front of his wife and son in
the carport of their home in Puerto Rico. Jose Cruz-Kuilan,
age 20 at the time of the crime, was convicted of violating
18 U.S.C. 2119(3), the carjacking statute, and 18 U.S.C.
2, aiding and abetting in the same, and sentenced to life
imprisonment. The primary argument on appeal -- that it was
error to allow expert testimony from a forensic pathologist
and to admit photographs of the victim's wounds -- is based
on a theory this court recently rejected in United States v.
Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995). Because the other
arguments presented are without merit, we affirm.
The crime was cold-blooded and brutal. Cruz-Kuilan
and two companions, Marrero Santiago and Rangel Pizzini,
decided to steal a car, settled on a Buick Le Sabre they saw,
and followed it in their own car. Theodore Edward Fuhs, a
businessman, and his wife Luz Martinez Fuhs were driving to
their home in Levittown, Puerto Rico, in the Le Sabre,
unaware of being followed. Their son Carl was outside when
his parents pulled into the "marquesina," the carport.
Marrero and Cruz-Kuilan walked up to the car before Mr. and
Mrs. Fuhs could get out. Pizzini remained in the assailants'
car. In Spanish, Marrero ordered Mr. Fuhs out of the car.
Mr. Fuhs, a continental American citizen, did not appear to
understand. As Mr. Fuhs got out of the car, Marrero, angry
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at how slowly Fuhs was moving, pistol whipped him twice on
the head. Mr. Fuhs lunged for Marrero and the two men
toppled. Cruz-Kuilan moved to within two feet of Mr. Fuhs
and fired point blank at his back. Mr. Fuhs was mortally
wounded. One of the bullets passed through him to injure
Marrero, underneath. Cruz-Kuilan and Marrero got into the Le
Sabre and fled. Realizing Marrero was in need of medical
care and would be questioned, they torched the Le Sabre and
prepared a story. When Marrero sought medical care, he was
indeed questioned. His story began to unravel and the
arrests followed in the next several months.
At trial, both Marrero and Pizzini turned
government witnesses in exchange for leniency. They
identified Cruz-Kuilan. While Mrs. Fuhs and her son provided
important corroborating testimony, neither could identify
Cruz-Kuilan as one of the assailants. It took the jury two
and one-half hours to convict.
On appeal Cruz-Kuilan makes these arguments: (i)
that the district court erred in admitting evidence relating
to Mr. Fuhs' death; (ii) that the evidence was insufficient
for a guilty verdict; (iii) that the prosecutor in his
closing argument improperly vouched for the credibility of
the government's witnesses; and (iv) that the district court
erred in denying a new trial motion based on after-acquired
evidence of a government witness' prior bad acts.
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I. Admissibility of Evidence of Death
Cruz-Kuilan's main argument is that he was charged
with carjacking,1 not with murder, and so it was error for
the trial court to admit evidence of Mr. Fuhs' death. In
particular, he complains about the testimony of a forensic
pathologist who traced the path of the bullets through Mr.
Fuhs' body and of the admission of photographs of Mr. Fuhs'
wounds. Such evidence, he says, was not relevant and was
unduly prejudicial. The statute itself, though, requires not
just theft of a car while possessing a firearm, but the
taking of a car from another "by force and violence or by
intimidation, or attempts to do so." 18 U.S.C. 2119.
The global challenge to the admissibility of
evidence of death in a carjacking case was soundly rejected
1. The carjacking statute provides:
Whoever, possessing a firearm . . . takes
a motor vehicle that has been
transported, shipped, or received in
interstate or foreign commerce from the
person or presence of another by force
and violence or by intimidation, or
attempts to do so, shall --
(1) be fined under this title or
imprisoned not more than 15 years, or
both,
(2) if serious bodily injury . . .
results, be fined under this title or
imprisoned not more than 25 years, or
both, and
(3) if death results, be fined under this
title or imprisoned for any number of
years up to life, or both.
18 U.S.C. 2119 (Supp. V 1993).
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in United States v. Rivera-Gomez, 67 F.3d 993, 996-98 (1st
Cir. 1995) ("It is difficult to conceive of a situation in
which the death of a victim will not be relevant to the use
of force and violence during the commission of an attempted
carjacking.") (citing United States v. Rodriguez, 871 F.
Supp. 545, 549 (D.P.R. 1994) (admitting evidence of victim's
death and means by which it was accomplished as relevant and
"highly persuasive" of "force and violence" in a carjacking
prosecution)). The death in this case was a central part of
the carjacking and its "force and violence" component. As
such it was relevant.
Cruz-Kuilan argues that even if relevant, the
evidence was "unfairly prejudicial" under Rule 403. See Fed.
R. Evid. 403. But here, as in Rivera-Gomez, the "evidence at
issue [was] so tightly linked to guilt as defined by the
elements of the offense, [that] it would be surpassingly
difficult to justify a finding of unfair prejudice stemming
from its introduction." 67 F.3d at 997. The photographs and
testimony by a forensics expert went to more than the
determination of the "force and violence" element. They also
went to corroborating the government's theory of the case.
The evidence showed lacerations on Mr. Fuhs' head and the
entry and exit points of the bullets that passed through his
body. The lacerations on Mr. Fuhs' head corroborated
Marrero's story that he had struck Mr. Fuhs twice on the
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head. Similarly, the paths of the bullets corroborated the
government's theory that one of the bullets shot by Cruz-
Kuilan passed through Mr. Fuhs and proceeded to hit Marrero
while he was under Mr. Fuhs.
Our standard of review on questions of evidentiary
relevance balanced against prejudicial effect is for abuse of
discretion. Id. at 997. "A decision by the district court
on a Rule 403 determination must stand absent a demonstration
of 'extraordinarily compelling circumstances.'" United
States v. Lombard, F.3d , , No. 94-2000, slip op. at 50
(1st Cir. Dec. 15, 1995) (quoting United States v. Lewis, 40
F.3d 1325, 1339 (1st Cir. 1994)). Defendant has shown no
such circumstances, and there was no abuse.
II. Sufficiency of Evidence
Cruz-Kuilan argues that there was insufficient
evidence for the jury to have found him guilty, and so the
district court erred in not granting his motion for acquittal
under Fed. R. Crim. Proc. 29. In reviewing a sufficiency of
the evidence claim we look at the evidence in the light most
favorable to the verdict. See United States v. Cotto-Aponte,
30 F.3d 4, 5 (1st Cir. 1994).
The argument fails. That the jury chose to believe
the testimony of Cruz-Kuilan's fellow carjackers -- despite
his pungent cross examination of their characters and motives
-- and to disbelieve the alibi offered by Cruz-Kuilan's
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estranged wife and mother, was well within its province.
Credibility determinations are uniquely within the jury's
province, and we defer to the jury's verdict if the evidence
can support varying inferences. See United States v. Rivera-
Sola, 713 F.2d 866, 869 (1st Cir. 1983); United States v.
Winter, 663 F.2d 1120, 1127 (1st Cir. 1981), cert. denied,
460 U.S. 1011 (1983).
III. Closing Argument
Cruz-Kuilan makes a misplaced attack on the
prosecution's closing argument. Pulling together numerous
statements made by the prosecution in its closing, Cruz-
Kuilan asserts that the prosecution improperly vouched for
the credibility of its witnesses. Since no objection was
made at the time, our review is for plain error. See United
States v. Diaz-Martinez, 71 F.3d 946, 950 (1st Cir. 1995).
In essence, defendant objects to statements in
closing by the prosecution that the jury should come to
believe on the evidence that the events occurred the way the
government's witnesses said they did. That is not vouching.
Improper vouching occurs where the prosecution
places the "prestige of the government behind a witness by
making personal assurances about the witness' credibility."
United States v. Neal, 36 F.3d 1190, 1207 (1st Cir. 1994).
Arguing that a witness is speaking the truth because he has
reason to do so is not "making personal assurances." See
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United States v. Dockray, 943 F.2d 152, 156 (1st Cir. 1991)
(informing the jury of the effect of a plea agreement on a
witness' incentives to testify truthfully is not improper
vouching).
As well, the prosecution's argument was an
appropriate response to Cruz-Kuilan's own arguments that
Marrero and Pizzini were less worthy of belief as a result of
their plea bargains. See United States v. Mejia-Lozano, 829
F.2d 268, 274 (1st Cir. 1987) (prosecution has greater leeway
in responding to attack on, and attempting to rehabilitate,
its witnesses).
IV. New Trial Motion
Cruz-Kuilan's final effort is to claim error in the
denial of his request for a new trial. That request was
based in turn on a claim that the prosecution had failed to
provide the defense with information about certain "prior bad
acts" committed by Pizzini. Cruz-Kuilan asserts that shortly
before trial in this case, the Commonwealth's courts found
probable cause for murder, weapons possession, and possession
of a stolen vehicle against Pizzini.2 We review the
2. Defense counsel has represented to us that Pizzini later
pleaded guilty in the Commonwealth's courts to second degree
murder, to violating the weapons laws and to having a stolen
vehicle. But that plea was not entered until close to a year
after the federal trial here. Furthermore, this was not a
case where defendant claimed that Pizzini, not he, fired the
weapon. Such a claim would be of no moment given the aiding
and abetting charge and that the substantive charge was not
murder, but carjacking. In any event, Cruz-Kuilan's defense
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district court's determination for an abuse of discretion.
See United States v. Pettiford, 962 F.2d 74, 77 (1st Cir.
1992).
Pizzini was hardly of sterling character and
admitted to a prior robbery conviction and three prior
robbery charges. Indeed, the prosecution itself had
described Pizzini as a frequent participant in carjackings
and a convicted robber. Pizzini's testimony was that he,
Marrero, and Cruz-Kuilan planned to steal a car, that he
drove everyone to Levittown where they spotted a car and
followed it and that he dropped Marrero and Cruz-Kuilan at
the carport and left. He did not see Mr. Fuhs being held at
gun point or being shot.
We assume arguendo, as did the district court, that
the prosecution knew or should have known of the additional
asserted "prior bad acts" evidence, without in any way
impugning the government here. The question for the district
court as to the new evidence is whether "it is 'material,'
[and] it is 'material' only if there is 'a reasonable
probability' that the evidence would have changed the result,
and a 'reasonable probability' is 'a probability sufficient
to undermine confidence in the outcome.'" United States v.
Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)), cert. denied,
was that he was not there at all.
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114 S. Ct. 2714 (1994). Given Pizzini's admittedly extensive
criminal past, it was not an abuse of discretion for the
district court to find that the lack of additional cross-
examination on the same well developed theme did not
undermine confidence in the jury verdict of guilt. Cf.
Sepulveda, 15 F.3d at 1219 (no abuse of discretion in denial
of new trial request where the newly disclosed information at
issue would have at most impeached further a witness of
already "dubious" credibility). In light of all the other
evidence, it is highly improbable that the "newly discovered"
evidence would have mattered a whit. There was no abuse of
discretion by the district court.
Affirmed.
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