United States Court of Appeals
For the First Circuit
No. 03-1625
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID VEGA MOLINA,
Defendant, Appellant.
No. 03-1649
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR MANUEL VILLEGA-ANGULO, A/K/A GUIRIO,
Defendant, Appellant.
_______________________
No. 03-1650
UNITED STATES OF AMERICA,
Appellee,
v.
MICHELLE RODRÍGUEZ-MATOS,
Defendant, Appellant.
________________________
No. 03-1947
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN ZUÑIGA-BRUNO,
Defendant, Appellant.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Linda Backiel for appellant Vega Molina.
Elaine Mittleman for appellant Villega-Angulo.
José C. Romo Matienzo for appellant Rodríguez-Matos.
Joseph S. Berman, with whom Berman & Dowell was on brief, for
appellant Zuñiga-Bruno.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney (Senior Appellate Attorney), were
on brief, for the United States.
May 19, 2005
SELYA, Circuit Judge. These appeals devolve from a
violent robbery and hostage taking, which resulted in two murders
and serious injury to a third victim. After a protracted trial, a
jury convicted the four jointly tried defendants on all counts.
Each of them received at least one life sentence.
On appeal, the defendants, ably represented, serve up a
salmagundi of constitutional, statutory, and evidentiary arguments.
Although we reject most of this asseverational array, we conclude
that one defendant should be retried because of a prejudicial
deprivation of his rights under the Sixth Amendment. Moreover, we
find that the prosecution of count 4 violated the Ex Post Facto
Clause. That violation requires us to vacate the remaining
defendants' sentences on the count in question and to remand for
resentencing on that count.
I. BACKGROUND
We rehearse the facts in the light most favorable to the
verdicts, consistent with record support. United States v. Fenton,
367 F.3d 14, 17 (1st Cir. 2004).
Fernándes Editores (FE), a Mexican company, publishes
coloring books and other materials for children. The company
maintains a warehouse and branch office in Puerto Rico. Defendant-
appellant Michelle Rodríguez-Matos (Rodríguez-Matos) is the cousin
of a former FE employee. While her cousin worked there, Rodríguez-
Matos occasionally would visit the premises. During these trips,
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Rodríguez-Matos became familiar with FE's operations and with the
layout of its premises.
Defendant-appellant Juan Zuñiga-Bruno (Zuñiga) and his
wife, defendant-appellant Evelyn Rodríguez-Santiago (Rodríguez-
Santiago), were acquaintances of Rodríguez-Matos. The couple
needed money and Rodríguez-Matos mistakenly believed that there
would be large sums of cash at FE's offices from time to time.
When she suggested that they rob FE, Zuñiga, Rodríguez-Santiago,
and a fourth individual, Lolo Falau (who died before trial)
embraced the suggestion. The quartet planned such a robbery.
On January 31, 1995, Zuñiga, the two women, and
defendant-appellant Victor Villega-Angulo (Villega) proceeded in
two cars to FE's premises. When they arrived, Zuñiga and Villega
entered the building. Once inside, they encountered three FE
employees, namely, Alberto Morales, Benjamin Ocasio Duran, and
Guillermo Muñoz. Brandishing firearms, they ordered the men to lie
face down on the floor. When Zuñiga and Villega were unable to
find any money, they called Rodríguez-Matos, who provided
suggestions about where to look.
Zuñiga and Villega were unable to locate any company
funds. They helped themselves to the cash that the three employees
had on their persons and shot Morales and Ocasio Duran (the shots
killed the former and seriously wounded the latter). They then
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kidnaped the branch manager(Muñoz); placed him in the trunk of his
own car; and drove the automobile from the scene.
The four miscreants rendezvoused at the house that Zuñiga
and Rodríguez-Santiago shared with their children and Rodríguez-
Santiago's sister, Jessica Rivera Santiago (Rivera). Once there,
they placed Muñoz in an empty bedroom and held him hostage for
approximately one week. During that interval, Rodríguez-Matos
stayed at the house to assist in guarding Muñoz. The defendants
also recruited Falau and defendant-appellant David Vega Molina
(Vega) to aid in that effort.
As part of the new plan, Zuñiga contacted FE and demanded
a ransom. Contrary to Zuñiga's instructions, FE contacted the
Federal Bureau of Investigation (FBI). An undercover FBI agent
posed as an FE executive and began to negotiate the conditions of
Muñoz's return. At some point, he provided the kidnapers with a
telephone number that they could call to firm up the arrangements
for delivery of the ransom. Rodríguez-Matos's stepmother worked
for the telephone company and Zuñiga asked Rodríguez-Matos to
contact her in order to match a subscriber's name to the telephone
number. When the kidnapers learned that the number belonged to the
FBI, the men decided that Muñoz would have to be assassinated (the
two women, Rodríguez-Santiago and Rodríguez-Matos, dissented from
this decision). On February 5, 1995, Muñoz was driven to a remote
location and murdered.
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II. TRAVEL OF THE CASE
The investigation into the robbery, hostage taking, and
murders took several years. It was not until September 8, 1999
that a federal grand jury returned a five-count indictment. Count
1 charged three of the appellants — Rodríguez-Matos, Zuñiga, and
Villega — with conspiracy to interfere with interstate commerce by
robbery, in violation of 18 U.S.C. § 1951 (the Hobbs Act). Count
2 charged Zuñiga and Villega with the use of firearms in the
commission of that offense resulting in Morales's death, in
violation of 18 U.S.C. § 924(j). Count 3 asserted that the same
two defendants had engaged in carjacking, in violation of 18 U.S.C.
§ 2119. Count 4 charged all four appellants with conspiring to
take a hostage, in violation of 18 U.S.C. § 1203(a). Count 5
charged that Zuñiga, Villega, and Vega had killed Muñoz as
retaliation against FE for having reported Muñoz's kidnaping to the
FBI, in violation of 18 U.S.C. § 1513(a)(1)(B).
The indictment named Rodríguez-Santiago only in count 1.
She eventually entered a plea of guilty to that count and appeared
at the trial as a government witness. She was later sentenced to
a term of eighteen months in accordance with her plea agreement.
She is not a party to these appeals.
A trial took place in the summer of 2002 and consumed
nearly four weeks. Twenty-two witnesses testified. These included
Rodríguez-Santiago, Rivera, and FBI special agent Edwin López.
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Among the defense witnesses, the most interesting testimony came
from Vilmarie Rodríguez, who swore that she, not her sister
(Michelle Rodríguez-Matos), was the person who had participated in
the criminal activity. After hearing all the testimony, the jury
found the appellants guilty as charged.
The district court held a series of sentencing hearings
in the spring of 2003. The court imposed the following sentences
(all concurrent):
1. Rodríguez-Matos — twenty years on count 1;
life imprisonment on count 4.
2. Zuñiga — twenty years on count 1; fifteen
years on count 3; and life imprisonment on
each of counts 2, 4, and 5.
3. Villega — twenty years on count 1; fifteen
years on count 3; and life imprisonment on
each of counts 2, 4, and 5.
4. Vega — life imprisonment on each of counts
4 and 5.
Vega, Villega, Rodríguez-Matos, and Zuñiga have filed timely
notices of appeal. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).
III. DISCUSSION
Mindful of the number and variety of the issues
articulated by the appellants, we divide our discussion into five
segments: First, we address the Confrontation Clause issues
advanced by Zuñiga and Vega. Second, we consider a claim under the
Ex Post Facto Clause pressed by all the appellants. Third, we
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review the sufficiency of the evidence supporting the various
convictions. Fourth, we consider myriad assignments of trial
error. Fifth, we turn to the district court's sentencing
determinations.
A. Confrontation Clause Claims.
The Confrontation Clause of the Sixth Amendment
guarantees a criminal defendant the right "to be confronted with
the witnesses against him." The right to confrontation embodies
the right to cross-examination. Pointer v. Texas, 380 U.S. 400,
404 (1965). For that reason, out-of-court statements may be
admitted against criminal defendants only in certain limited
circumstances. See Crawford v. Washington, 124 S. Ct. 1354, 1374
(2004).
Against this backdrop, Zuñiga and Vega asseverate that
the admission against them of Agent López's testimony about the
contents of Villega's out-of-court confession transgressed the
Confrontation Clause. See Bruton v. United States, 391 U.S. 123,
136-37 (1968) (restricting the circumstances in which a defendant's
out-of-court confession may be admitted in a joint trial).
Additionally, Vega asserts that the district court unfairly
curtailed his cross-examination of Rodríguez-Santiago and, thus,
further abridged his Sixth Amendment rights. At first, we treat
these claims separately.
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1. Villega's Confession. Villega did not testify at
trial. Agent López, however, was allowed to testify about the
contents of Villega's earlier confession. It is well-established
that the out-of-court statements of a non-testifying defendant,
even if admissible against the declarant, may not be used against
a jointly tried codefendant unless otherwise independently
admissible against that codefendant. See Lilly v. Virginia, 527
U.S. 116, 124 (1999); Bruton, 391 U.S. at 128; see also Crawford,
124 S. Ct. at 1374 (displacing prior case law and holding that the
Confrontation Clause categorically bars the introduction of
testimonial hearsay unless the accused previously has had the
opportunity to cross-examine the declarant). Withal, a defendant's
out-of-court statements sometimes may be introduced at a joint
trial, provided that (i) the district court instructs the jury not
to consider the statements against any defendant other than the
declarant and (ii) the statements are not so powerfully inculpating
of the other defendants that there would be substantial doubt as to
whether the jury could abide by a limiting instruction. Bruton,
391 U.S. at 135-37. Under this paradigm, a defendant's out-of-
court confession generally will be admitted if it is redacted to
delete the codefendant's name and any reference, direct or
indirect, to his or her existence. Richardson v. Marsh, 481 U.S.
200, 211 (1987).
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In this case, the prosecution called Agent López to
testify to the contents of a confession that he had taken from
Villega, who had knowingly and intelligently waived his Fifth
Amendment right against self-incrimination. In that statement,
Villega described the charged crimes in graphic detail and
acknowledged his participation in them. There can be no question
but that, as a party admission, Villega's confession was admissible
against him. See Fed. R. Evid. 801(d)(2); see also Bruton, 391
U.S. at 125. It is equally as clear that the confession was not
admissible against any of the codefendants. See Crawford, 124 S.
Ct. at 1364-65, 1374.1
To combat this potential problem, the government redacted
Villega's statement by replacing all mention of his codefendants
with neutral references, using terms such as "other individuals" or
"another person." Those alterations satisfied the district court,
which allowed the government to use the redacted confession against
Villega. Zuñiga and Vega argue that the introduction of the
redacted confession at their joint trial transgressed the Bruton
rule.
1
Crawford was not decided until after Zuñiga and Vega had
filed their opening briefs in this court. Vega seized upon the
Crawford decision in his reply brief and Zuñiga did the same at
oral argument. When reference to a previously uncited decision is
made solely to support an argument advanced in a party's opening
brief, that party does not forfeit the ability to rely on the
decision. See Air Line Pilots Ass'n, Int'l v. Guilford Transp.
Indus., Inc., 399 F.3d 89, 100 n.7 (1st Cir. 2005).
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Normally, appellate review of a trial court's application
of Bruton would be de novo. See United States v. Sarracino, 340
F.3d 1148, 1158-59 (10th Cir. 2003); see also Blake v. Pellegrino,
329 F.3d 43, 46 (1st Cir. 2003) (explaining that questions of law
associated with evidentiary rulings are reviewed de novo). The
government points out, however, that neither Zuñiga nor Vega
objected when the government proffered Agent López's testimony at
trial.
Ordinarily, the absence of a contemporaneous objection
would result in a forfeiture and, thus, in a more formidable burden
for the appellants: plain-error review. See United States v.
Griffin, 818 F.2d 97, 99-100 (1st Cir. 1987). Here, however, there
is a mitigating circumstance. On the day preceding the
introduction of the redacted confession, the district court denied
the appellants' motion to sever their trial from Villega's on the
basis of Bruton. In the course of that ruling, the district court
categorically rejected their claim that the redacted statement was
powerfully incriminating. We think that this was adequate to
preserve the Bruton point. Cf. United States v. Holmquist, 36 F.3d
154, 166 n.12 (1st Cir. 1994) (noting that a contemporaneous
objection is not required when the trial court has definitively
excluded evidence in ruling on a pretrial motion in limine).
In reaching this conclusion, we have carefully considered
the Fifth Circuit's opinion in United States v. Jobe, 101 F.3d 1046
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(5th Cir. 1996). That court found a Bruton challenge forfeited for
want of a contemporaneous objection, notwithstanding the fact that
the trial court earlier had denied the defendant's motion for a
severance. Id. at 1068. However, it is not clear from the Fifth
Circuit's opinion whether the trial court had denied the severance
motion definitively or provisionally. Id. at 1066-67 & n.27. In
all events, to the extent, if at all, that Jobe is at odds with the
conclusion reached here concerning preservation of the error, we
decline to follow it. Accordingly, we undertake de novo review.
Bruton proscribes the introduction of statements that are
"powerfully incriminating" vis-à-vis a jointly tried codefendant.
391 U.S. at 135. A statement is powerfully incriminating only when
it is inculpatory on its face. Richardson, 481 U.S. at 207. The
confession in Bruton fit that description because it identified
both the declarant and his codefendant by name as the perpetrators
of the crime. Bruton, 391 U.S. at 124. Statements that are
incriminating only when linked to other evidence in the case do not
trigger application of Bruton's preclusionary rule. Richardson,
481 U.S. at 208. This criterion is easier to state than to apply;
for example, it does not allow a prosecutor merely to delete a
codefendant's name. See, e.g., Gray v. Maryland, 523 U.S. 185, 192
(1998) (holding that simply replacing a codefendant's name with a
symbol or a blacked-out space is insufficient to wrest an
inculpatory statement from Bruton's precedential orbit).
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In this case, Zuñiga and Vega challenge portions of
Villega's confession that, as redacted, refer to "other
individuals" and "another person." The appellants say that these
alterations are analogous to the redactions that the Gray Court
found wanting. The government demurs: it urges that there is no
way, from the face of the redacted confession, that a jury could
ascertain who the other individuals were.
The application of Bruton, Richardson, and Gray to
redacted statements that employ phraseology such as "other
individuals" or "another person" requires careful attention to both
text and context, that is, to the text of the statement itself and
to the context in which it is proffered. The mere fact that the
other defendants were on trial for the same crimes to which the
declarant confessed is insufficient, in and of itself, to render
the use of neutral pronouns an impermissible means of redaction.
A particular case may involve numerous events and actors, such that
no direct inference plausibly can be made that a neutral phrase
like "another person" refers to a specific codefendant. See, e.g.,
United States v. Sutton, 337 F.3d 792, 799-800 (7th Cir. 2003). A
different case may involve so few defendants that the statement
leaves little doubt in the listener's mind about the identity of
"another person." See, e.g., United States v. Vejar-Urias, 165
F.3d 337, 340 (5th Cir. 1999). In short, each case must be
subjected to individualized scrutiny.
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After examining the record with care, we conclude that
the admission of Villega's confession, through Agent López's
testimony, did not violate Bruton. Taken in context, Agent López's
testimony failed to convey a compelling inference that the "other
individuals" to whom Villega referred were Zuñiga and Vega.
Moreover, the fact that the statement pointed explicitly to a
deceased coconspirator (Falau) raised the distinct possibility that
people besides those who were on trial may have been involved in
the commission of the crimes. Because the statement itself did not
suggest Zuñiga's or Vega's guilt, it was not so powerfully
incriminating as to bring the Bruton proscription to bear. See
Richardson, 481 U.S. at 208-09 (finding that where a defendant's
name is replaced with a neutral pronoun and the redacted statement
is inculpatory only by reference to other evidence, its admission
does not offend Bruton).
As a fallback position, Zuñiga and Vega argue for a new
trial on the ground that the district court failed to instruct the
jury that Villega's statement could not be used against them. Such
an instruction would have been proper and should have been given.
See Richardson, 481 U.S. at 206; Bruton, 391 U.S. at 135-36. Here,
however, the appellants not only failed to request such an
instruction but also failed to object to its omission. See Fed. R.
Crim. P. 30. The claimed error was, therefore, unpreserved and
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appellate review is restricted to plain error. United States v.
Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).
"The plain error hurdle is high." United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Vaulting it requires
a criminal defendant to make four showings: "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). The appellants must carry the devoir of persuasion on all
four facets of this test. Id. at 61-62.
Zuñiga and Vega have satisfied the first two prongs.
Supreme Court case law makes clear that the trial court ordinarily
should instruct the jury that one defendant's out-of-court
confession may not be used against his codefendants in a joint
trial. See Gray, 523 U.S. at 192; Richardson, 481 U.S. at 206;
Bruton, 391 U.S. at 137. Thus, the omission of such an instruction
in this case, where the confession was not independently admissible
against the appellants, constituted error. Given the state of the
law, that error was obvious.
Zuñiga does not fare as well on the third prong. The
jury had no particular reason to infer that the neutral pronouns in
Villega's redacted statement referred to Zuñiga and, therefore, the
statement was at most weakly inculpatory as to him. That fact,
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combined with the mass of other evidence against Zuñiga and the
overall strength of the government's case against him, leaves us
confident that the absence of a Bruton instruction did not affect
his substantial rights. Consequently, Zuñiga cannot prevail on
plain error review. See Duarte, 246 F.3d at 61-62.
Vega presents a more compelling case. The totality of
evidence against Vega was noticeably thinner than that against
Zuñiga. More importantly, the prosecution relied heavily on
Villega's statement in a misguided effort to prove Vega's guilt.
It is to that statement that we now turn.
The prosecutor's closing argument, over Vega's
contemporaneous objection, specifically mentioned Villega's
confession and implored the jury to infer that the "another person"
reference in the redacted confession was, in fact, a reference to
Vega. Vega assigns error to this tactic — which was not employed
against Zuñiga — and our review of this claim of error is de novo.
See United States v. Peterson, 140 F.3d 819, 820-21 (9th Cir.
1998).
The impropriety of the prosecutor's argument is readily
apparent. It has long been established that hearsay statements
admissible against one defendant may not be used against a
codefendant unless there is some independent ground for their
admission against the latter defendant. See Crawford, 124 S. Ct.
at 1359-63 (collecting cases). That Bruton and its progeny do not
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absolutely preclude the introduction of a confession against the
declarant-defendant at a joint trial in no way dilutes this
principle, nor does it suggest condonation of the use of the
declarant's out-of-court confession against the other defendants.
Indeed, the case law unambiguously requires the trial court to
instruct the jury that an out-of-court confession may not be
considered as evidence against the declarant's codefendants. See,
e.g., Richardson, 481 U.S. at 211.
Richardson is persuasive on this point. In that case,
the prosecutor attempted to undermine the trial court's
instructions by urging the jury to apply the declarant-defendant's
out-of-court confession to another defendant. Id. at 205.
Although the Court did not have an opportunity to consider whether
the prosecutor's statement necessitated a new trial, Justice Scalia
did suggest that if the defendant had interposed a timely
objection, the prosecutor's stratagem would have been an
appropriate basis for a writ of habeas corpus. Id. at 211. In
this case, Vega properly preserved the objection. We hold,
therefore, that the prosecutor's improper argument constitutes
error and that, in light of this error, the omitted instruction
affected Vega's substantial rights. That cinches the plain error
inquiry, as the government does not argue that we should refuse to
recognize the error on the basis of the fourth prong of the plain
error test.
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2. Cross-Examination of Evelyn Rodríguez-Santiago. In
all events, a separate but related error, duly preserved, combined
with the instructional error and the misguided closing argument to
create a particularly pernicious effect. We refer here to yet
another Sixth Amendment infringement: the district court's overly
severe circumscription of Vega's cross-examination of Rodríguez-
Santiago. As is true of most evidentiary rulings, we review these
restrictions for abuse of discretion. United States v. Perez-Ruiz,
353 F.3d 1, 11 (1st Cir. 2003). Within that rubric, however, we
consider de novo whether the strictures of the Confrontation Clause
have been met. Id.
Vega contends that the limitations, imposed by the trial
court primarily to prevent the introduction of evidence of Zuñiga's
prior bad acts, prevented him from adequately presenting his
defense. As we have said, the Confrontation Clause guarantees
criminal defendants the right to cross-examine those who testify
against them. Davis v. Alaska, 415 U.S. 308, 315 (1974); Pointer,
380 U.S. at 404. That right includes the right to conduct such
cross-examination as is reasonably necessary to delineate and
present the defendant's theory of defense. United States v.
Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997). It also
includes the right to cross-examine a testifying codefendant with
respect to her motive for cooperating with the authorities,
including any agreement she may have negotiated and any
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unprosecuted crimes she may have committed. United States v.
Barrett, 766 F.2d 609, 614 (1st Cir. 1985).
In the last analysis, however, the right to cross-
examination is not unbridled. So long as the trial court affords
the defendant a fair opportunity for effective cross-examination,
it may impose reasonable restrictions based on concerns such as
undue prejudice, confusion of the issues, witness badgering,
redundancy, or questioning that appears to be of marginal
relevance. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The
trial court's latitude in shaping such restrictions is "wide." Id.
In the case at hand, Vega sought to cross-examine
Rodríguez-Santiago, a coconspirator who had turned state's
evidence, with respect to (i) her own prior criminality
(specifically, her participation with Zuñiga in the kidnaping of a
baby in order to secure funds to pay a drug debt); (ii) her motive
for joining the conspiracy to rob FE; (iii) Zuñiga's prior acts of
violence against her; and (iv) statements made by Zuñiga to the
effect that he and Rodríguez-Santiago had collogued to frame Vega.
The district court allowed Rodríguez-Santiago to testify
that she had participated in kidnaping the baby but refused to
permit any exploration of the facts surrounding that crime. The
court also refused to permit cross-questioning as to Rodríguez-
Santiago's motive for enlisting in the robbery scheme, Zuñiga's
acts of violence against her, or Zuñiga's statements that he and
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Rodríguez-Santiago had falsely inculpated Vega in the crimes at
issue.
We are troubled by the district court's decision to
preclude Vega from cross-examining Rodríguez-Santiago with respect
to subjects that would tend to show that she had a motive to
prevaricate, such as her role in the baby kidnaping and her
exposure to brutal treatment at Zuñiga's hands. Properly
exploited, these subjects had the potential to cast serious doubt
on Rodríguez-Santiago's trustworthiness.2 See generally Burr v.
Sullivan, 618 F.2d 583, 586-87 (9th Cir. 1980) (Kennedy, J.)
(granting a writ of habeas corpus where the trial court had refused
to allow cross-examination into a witnesses' prior bad acts and
motives for testifying); Wheeler v. United States, 351 F.2d 946,
948 (1st Cir. 1965) (reversing conviction because the trial court
limited cross-examination as to a witness's financial motive for
testifying).
More serious, however, is the district court's refusal to
allow Vega, despite a threshold showing that Zuñiga had changed his
tune, to cross-examine Rodríguez-Santiago about the possibility
that she and Zuñiga had conspired to frame him. This ruling
2
We cite two examples. First, Rodríguez-Santiago was the
beneficiary of a plea agreement in the baby kidnaping case and
received a lesser sentence there partially in return for her
cooperation with the prosecution in this case. The prospect of
reducing that sentence may have shaped her testimony. Second,
Zuñiga's prior acts of violence against Rodríguez-Santiago gave her
a motive to make sure that he went to prison for a long time.
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prevented Vega from presenting his main theory of defense and thus
abridged his Sixth Amendment rights. See Mulinelli-Navas, 111 F.3d
at 992; United States v. Blum, 62 F.3d 63, 67 (2d Cir. 1995).
The facts are these. During its initial investigation,
the government obtained statements from Zuñiga and Rodríguez-
Santiago in which they incriminated Vega. The government used
these statements to secure Vega's indictment. Zuñiga later told a
private investigator, retained by Vega, that he and Rodríguez-
Santiago had falsely accused Vega because they believed
(mistakenly, as matters turned out) that he had blown the whistle
on them in regard to the kidnaping of the baby. The district court
refused to allow Vega to cross-question Rodríguez-Santiago about
the alleged frame-up, fearing that such an examination might touch
upon Zuñiga's prior bad acts. That ruling, in effect, prevented
Vega from developing his principal defense: that Rodríguez-
Santiago (the primary witness against him) had concocted a fairy
tale. In other words, the court's action completely excluded a
potentially viable line of defense. That action compromised Vega's
Sixth Amendment rights. See, e.g., Mulinelli-Navas, 111 F.3d at
992; see also Blum, 62 F.3d at 67 ("Whether rooted in the Due
Process Clause of the Fifth Amendment or in the Compulsory Process
Clause of the Sixth Amendment, the Constitution guarantees criminal
defendants the right to present a defense.").
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3. Harmlessness. We already have concluded that the
instructional error, combined with the prosecutor's improper
closing argument, affected Vega's substantial rights. See supra
Part III(A)(1). It would have been possible for the government to
argue that these errors tainted the verdict against Vega only on
count 5, not on count 4, but the government essays no such
argument. It does not contend that the errors, in combination,
were harmless as to either count. Under the circumstances of this
case, we choose not to do the government's homework. See United
States v. Rodríguez-Marrero, 390 F.3d 1, 18 (1st Cir. 2004) (noting
that the court of appeals may deem any harmless error argument
waived if not briefed by the government); see also United States v.
Rodríguez-Cortes, 949 F.2d 532, 542-43 (1st Cir. 1991) (holding
that the government's failure to argue harmless error results in a
waiver of the argument).
At any rate, the evidence against Vega was not
particularly impressive. Only two witnesses (Rodríguez-Santiago
and Rivera) implicated Vega. Rivera's testimony, standing alone,
did little more than place Vega at the house when Muñoz was there.
That leaves Rodríguez-Santiago. Had the court given an appropriate
Bruton instruction, had the prosecution refrained from unfair use
of Villega's out-of-court confession, and had Vega been permitted
to cross-examine Rodríguez-Santiago fully as to his "framing"
defense, we think that the jury might well have discredited her
-22-
testimony. See White v. Coplan, 399 F.3d 18, 24-25 (1st Cir.
2005). Should that have occurred, there is every reason to doubt
whether the outcome on either count 4 or count 5 would have been
the same. Accordingly, Vega's conviction and sentence cannot
stand.
B. The Ex Post Facto Claim.
The appellants3 argue that their convictions on count 4
for conspiracy to take a foreign national hostage transgress the Ex
Post Facto Clause. See U.S. Const. art. I, § 9, cl. 3. The
offense charged in count 4 took place early in 1995. The
appellants are correct that the statute of conviction, 18 U.S.C. §
1203(a), did not then contain a conspiracy provision. Such a
provision was not added to the statute until 1996. See Anti-
Terrorism and Effective Death Penalty Act, Pub. L. 104-132, § 723,
110 Stat. 1214, 1300 (1996).4 Thus, there is obvious force to the
claim that the Ex Post Facto Clause pretermits the convictions on
3
Since we already have held that Vega is entitled to a new
trial on the only two counts with which he was charged, see supra
Part III(A), references from this point forward to "the appellants"
encompass, whenever the context permits, only Zuñiga, Villega, and
Rodríguez-Matos.
4
Prior to April 24, 1996, 18 U.S.C. § 1203(a), with exceptions
not relevant here, exposed to criminal liability "whoever, whether
inside or outside the United States, seizes or detains and
threatens to kill, to injure, or to continue to detain another
person in order to compel a third person or a governmental
organization to do or abstain from doing any act as an explicit or
implicit condition for the release of the person detained, or
attempts to do so . . . ." The 1996 amendment inserted the words
"or conspires" immediately after the word "attempts."
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count 4. See Libby v. Magnusson, 177 F.3d 43, 46 (1st Cir. 1999)
(defining an ex post facto law as, inter alia, "one that punishes,
as a crime, an act which was innocent when committed").
Nevertheless, there is a wrinkle: the appellants neglected to make
a motion to dismiss or otherwise to mount an ex post facto
challenge in the district court. Hence, our review is limited to
plain error. Duarte, 246 F.3d at 60.
The appellants easily satisfy the first three prongs of
the plain error test. The retroactive application of the
conspiracy provision was blatantly incorrect; the ex post facto
violation is transparently clear; and the error unarguably affected
the appellants' substantial rights in that it led to the imposition
of life sentences all around.
There remains the fourth prong of the plain error test.
That prong asks, in effect, whether allowing this error to go
uncorrected would call into doubt the integrity and reputation of
judicial proceedings. We believe that it would.
The prohibition against retrospective imposition of
criminal liability is one of the most hallowed of our
constitutional protections. See Calder v. Bull, 3 U.S. (3 Dall.)
386, 390-91 (1798) (opinion of Chase, J.). That prohibition,
embodied in the Ex Post Facto Clause, comprises an essential
component of our concept of fairness. It ensures that, before any
criminal liability can attach, a person must be put on notice of
-24-
both the criminal proscription and the potential punishment
therefor. Given the centrality of this concept to our system of
justice and the flagrant nature of the breach that transpired in
this case, we conclude that allowing the appellants' sentences on
count 4 to stand would cast too dark a pall over the entire
proceeding.
That conclusion does not end our journey. The government
suggests that, on the singular facts of this case, a question of
remedy remains. In the government's view, we should uphold the
convictions as permissible under the general conspiracy statute, 18
U.S.C. § 371, but reduce the appellants' sentences to the five-year
maximum available under that statute.5
We agree with the government's argument. It is apodictic
that erroneous statutory citations in an indictment do not
constitute grounds for reversing a conviction, as long as the
defendant was on fair notice of the charges against him. See,
e.g., United States v. Stein, 233 F.3d 6, 23-24 (1st Cir. 2000);
United States v. Van West, 455 F.2d 958, 959 (1st Cir. 1972). We
5
The statute provides in pertinent part:
If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act
to effect the object of the conspiracy, each shall be
fined under this title or imprisoned not more than five
years, or both.
18 U.S.C. § 371.
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perceive no substantive difference between charging a defendant
with a section 371 conspiracy to violate section 1203 and charging
a defendant under the nascent conspiracy provision of section 1203,
as amended. This congruence is solid proof that the appellants
were in no way prejudiced in their ability to mount a defense by
the government's erroneous citation to the amended (and
inapplicable) version of section 1203. See, e.g., United States v.
Eirby, 262 F.3d 31, 38 (1st Cir. 2001) (holding that miscitation or
omission of a statutory provision is not a basis for reversal
unless the defendant demonstrates prejudice); see also Fed. R.
Crim. P. 7(c)(3).
The short of it is that, in practical effect, the
amendment adding the language "or conspires" to section 1203, see
supra note 4, did not create a new offense; it merely increased the
potential penalty for a preexisting crime. Thus, leaving the
conviction intact but trimming back the penalty comports with the
core purpose of the Ex Post Facto Clause. After all, there is
ample case law to support the proposition that when a defendant is
sentenced under a penalty provision that did not exist at the time
of the offense, the proper remedy is not to reverse the conviction,
but, rather, to remand for resentencing under the preexisting
penalty provision. See Miller v. Florida, 482 U.S. 423, 435-36
(1987); United States v. Vazquez-Rivera, 135 F.3d 172, 177 (1st
Cir. 1998). We find this parallel persuasive and, thus, decline
-26-
the appellants' invitation to throw out the baby with the bath
water.
In reaching this decision, we are mindful of the fact
that none of the appellants raised the ex post facto issue in the
trial court. Had they done so, the government could have moved to
amend the indictment either to charge a section 371 conspiracy or
to charge a direct violation of section 1203. The appellants'
inattentiveness should not redound to their benefit. United States
v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995) (observing that "the
law ministers to the vigilant, not to those who sleep upon
perceptible rights").
To sum up, we reject the appellants' ex post facto
challenge to their convictions on count 4, with the proviso that
their sentences on that count must be refashioned to reflect the
five-year statutory maximum contained in 18 U.S.C. § 371.
C. Sufficiency of the Evidence.
The appellants also raise a gallimaufry of challenges to
the sufficiency of the government's proof. We consider these
claims de novo, surveying the evidence in the light most flattering
to the verdict. United States v. Sebaggala, 256 F.3d 59, 63 (1st
Cir. 2001). "The test is whether the evidence, construed favorably
to the government, permitted rational jurors to conclude, beyond a
reasonable doubt, that [a particular] defendant was guilty as
charged." Id.
-27-
1. Counts 1 and 2. Zuñiga argues that his conviction on
count 1 for violating the Hobbs Act and, by extension, his
conviction on count 2 for using a firearm in connection with the
Hobbs Act violation, must be set aside because the government
failed to prove the necessary link to commerce. The Hobbs Act
provides in pertinent part:
Whoever in any way or degree obstructs,
delays, or affects commerce or the movement of
any article or commodity in commerce, by
robbery or extortion or attempts or conspires
so to do, or commits or threatens physical
violence to any person or property in
furtherance of a plan or purpose to do
anything in violation of this section shall be
[punished as provided].
18 U.S.C. § 1951. We long have held that this statute does not
require a substantial interference with commerce; a de minimis
interference will suffice. See, e.g., United States v. Rivera
Rangel, 396 F.3d 476, 482-83 (1st Cir. 2005); United States v.
Hathaway, 534 F.2d 386, 396 (1st Cir. 1976). That interference
must, of course, be with interstate or international commerce. See
18 U.S.C. § 1951(b)(3).
Although Zuñiga acknowledges that FE operated in
interstate (indeed, international) commerce, he claims that the
government failed to prove any effect on commerce because the
perpetrators only took money from FE's employees, not from the
business itself. This argument in specious. It conveniently
overlooks the profound effect that the robbery, murders, and
-28-
kidnaping had on FE's business. The commission of a violent crime
in the workplace inevitably will constitute a wrenching, if
unquantifiable, blow to morale and productivity. Here, moreover,
the robbery and events associated with it caused the company to
close its offices the following day. Those sequelae were more than
adequate to demonstrate at least a de minimis effect on commerce.
Cf. United States v. Amato, 495 F.2d 545, 548 (5th Cir. 1974)
(sustaining a Hobbs Act conviction when the evidence showed that
the defendants' actions caused a business operating in interstate
commerce to shut down temporarily).
Zuñiga also argues that his conviction must be reversed
because the indictment failed to allege that the crimes had an
adverse impact on commerce. That allegation is meritless. Count
1 of the indictment charged in the plainest of terms that the
appellants conspired "to unlawfully interfere with interstate
commerce by robbery." That was enough to put the appellants on
fair notice of the interstate commerce element of the crimes
charged in counts 1 and 2. See Hamling v. United States, 418 U.S.
87, 117 (1974) (holding that "[i]t is generally sufficient that an
indictment set forth the offense in the words of the statute
itself"); United States v. Cianci, 378 F.3d 71, 81 (1st Cir. 2004)
(same).
Zuñiga next faults the district court for instructing the
jury that the government must prove that the appellants' actions
-29-
"affected commerce," without mentioning that the commerce must be
interstate or international. See 18 U.S.C. § 1951(b)(3). Zuñiga
complains that this instruction allowed the jury to convict if they
found that the robbery affected any commerce "in any way or
degree." Because Zuñiga interposed no contemporaneous objection to
the instruction that he challenges on appeal, our review is
restricted to plain error. See United States v. Moran, 393 F.3d 1,
13 (1st Cir. 2004).
There was no error in the jury instructions, plain or
otherwise. Whether or not it may have been preferable for the
lower court to have specified up front that the appellants' actions
had to affect interstate or international commerce, the definition
of commerce provided later in the charge — the court instructed
that "[t]he term commerce means commerce between any point in a
state and any point outside the state" — adequately informed the
jurors of the proper test. Consequently, this argument furnishes
no basis for reversal.
2. Count 3. Zuñiga argues that the evidence was too
skimpy to support his conviction for carjacking on count 3. This
argument rests on the premise that the assault and kidnaping of
Muñoz were not done in connection with the theft of Muñoz's car.
As a legal matter, that premise is incorrect.
Application of the federal carjacking statute requires,
inter alia, that a vehicle be taken from the victim's "person or
-30-
presence." 18 U.S.C. § 2119. This does not mean, however, that
the vehicle must be within the victim's physical reach when the
initial assault occurs. Our decision in United States v. Savarese,
385 F.3d 15 (1st Cir. 2004), illustrates this point. There, we
affirmed a carjacking conviction where the perpetrator, while
inside the victim's house, forced the victim to turn over the keys
to a vehicle parked outside. Id. at 20. Similarly, in United
States v. Boucha, 236 F.3d 768 (6th Cir. 2001), the court upheld a
sentencing enhancement for carjacking where a bank robber forced a
teller to hand over the keys to a car parked in a nearby lot. Id.
at 770, 775. These cases stand for the proposition that physical
proximity and ability either to control or to obtain access to the
space in which the vehicle is located are sufficient to establish
"presence" within the meaning of the federal carjacking statute.
The facts of this case are reminiscent of Savarese and
Boucha. Although the perpetrators assaulted Muñoz and took his
keys while inside the office, his car was parked in the company
lot, sufficiently close by so that, if not overcome by his
assailants, Muñoz could have retained possession of it.
Accordingly, we find the evidence adequate to sustain Zuñiga's
conviction on count 3.
3. Count 4. Zuñiga insists that his conviction on count
4 must be set aside because the evidence was insufficient to show
that he knew Muñoz was a Mexican citizen and that, therefore, he
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intended to create what he describes as "an international hostage
incident." The short answer to this proposition is that the
statute of conviction does not require the government to prove such
an intent.
18 U.S.C. § 1203(a), quoted supra note 4, makes it a
federal offense for any person to take a hostage "in order to
compel a third person or a governmental organization to do or
abstain from doing any act." The statute does not apply to
offenses committed within the United States unless one of three
conditions has been met: (i) either the victim or the perpetrator
was a foreign national; (ii) the perpetrator is found outside the
United States; or (iii) the perpetrator sought, through commission
of the kidnaping, to compel the United States to do or abstain from
doing some act. Id. § 1203(b)(2).
Here, Muñoz was a foreign national, so section 1203(b)(2)
is satisfied and the statute therefore applies. There is no
requirement that the perpetrator know the victim's nationality or
intend to commit an offense against a foreign national. See United
States v. Santos-Riviera, 183 F.3d 367, 370-71 (5th Cir. 1999).
The only intent requirement is the intent to take a hostage "in
order to compel a third person or a governmental organization to do
or abstain from doing any act." 18 U.S.C. § 1203(a).
Put another way, the proviso making the statute
applicable to the kidnaping of foreign nationals inside the United
-32-
States is simply a jurisdictional hook and, by its own terms, does
not demand that the defendant have actual knowledge of the victim's
citizenship or nationality. Courts routinely have held that the
government need not prove intent with respect to similar
jurisdictional requirements in other criminal statutes. See, e.g.,
United States v. Scarborough, 813 F.2d 1244, 1246 (D.C. Cir. 1987)
(holding that the government need not prove that interstate
transport was foreseeable in order to obtain a conviction under 18
U.S.C. § 2314, which prohibits the interstate transportation of
stolen goods); United States v. Napier, 518 F.2d 316, 319 (9th Cir.
1975) (holding that the defendant did not need to know he was
crossing state lines in order to violate 18 U.S.C. § 1201, which
applies to the transportation of kidnaped persons across state
lines). We see no reason why the same rationale should not obtain
in this case.
Zuñiga also makes a feeble challenge to the lower court's
jury instructions on count 4. He argues that, by referencing the
conspiracy instruction on count 1 rather than restating it in its
entirety, the court confused the jury. He adds that the court made
a bad situation worse by failing to refer explicitly to its earlier
instruction on specific intent. Because these assignments of error
are advanced for the first time on appeal, our review is for plain
error. Moran, 393 F.3d at 13.
-33-
The jury instructions on count 4 were free of any
substantive error, and reasonably attentive jurors would have no
difficulty either in understanding or in applying them.
Accordingly, there is no basis for reversal under the plain error
standard.
Rodríguez-Matos also challenges the sufficiency of the
evidence supporting her conviction on this count. That challenge
is unavailing. The indictment charged that Rodríguez-Matos
participated in the hostage taking by helping to obtain information
about the persons who had subscribed to the telephone number that
the FBI was using in the ransom negotiations. At trial, both
Rodríguez-Santiago and her sister, Rivera, testified to this
participation. When added to the ample circumstantial evidence of
Rodríguez-Matos's acquiescence in the conspiracy, that testimony
was enough to ground a finding of guilt. See, e.g., United States
v. Sanchez, 917 F.2d 607, 610 (1st Cir. 1990).
The appellant endeavors to parry this thrust by pointing
out that her sister, Vilmarie Rodríguez, testified that it was she,
and not Michelle Rodríguez-Matos, who obtained the crucial
information about the telephone number. That is not enough to tip
the balance. Where, as here, there is conflicting testimony, the
jury's choice to believe one witness rather than another is not
reversible error. United States v. Ortiz, 966 F.2d 707, 711, 713
(1st Cir. 1992).
-34-
4. Count 5. 18 U.S.C. § 1513 prohibits the killing of
any person "with the intent to retaliate" against a person for
cooperating with the government. Seizing on this intent
requirement, Zuñiga challenges the sufficiency of the evidence on
count 5. He asserts that there is no evidence to support a finding
that Muñoz was slain with the intent to retaliate against FE for
its cooperation with the FBI. In his view, Muñoz was killed
because the conspirators were concerned that he could identify
them, not because they wished to get even with his employer.
Admittedly, the evidence can be interpreted in a way that
is consistent with Zuñiga's theory. There was a good deal of
testimony indicating that the appellants were concerned that Muñoz
might be able to identify some or all of them. But the record,
viewed in the light most hospitable to the verdict, also supports
the government's theory that the murder was in retaliation for FE's
defiant cooperation with the FBI. After all, the decision to slay
Muñoz was not made until the appellants learned of the FBI's
involvement. What is more, the appellants reasonably could have
believed that killing Muñoz would harm FE; indeed, the whole idea
of holding an individual for ransom depends on the belief that the
putative payor values the hostage's life. Putting Muñoz to death
would thus destroy a life valued by the company.
Last — but far from least — there is nothing in section
1513 that requires retaliation to be the sole motive for a murder.
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As long as there is sufficient evidence from which the jury can
infer that retaliation was a substantial motivating factor behind
the killing, it does not matter that the defendants may have had
other motives. Because there was such evidence in this case, the
appellants' argument founders.
D. Other Trial Issues.
The appellants have amassed an array of other trial-
related challenges. We address the most salient of these
challenges. The rest are not worthy of discussion and we reject
them out of hand.
1. The Photographs. Zuñiga protests the district
court's admission of photographs of him and certain of his
codefendants in a Connecticut hotel room. These photographs were
taken approximately one month after the occurrence of the crimes of
conviction. Zuñiga argues that the photographs were introduced to
show flight and, as such, constitute unreliable "consciousness of
guilt" evidence. Relatedly, he labors to convince us that the
district court's failure to instruct the jury on the significance
and use of consciousness of guilt evidence compounded the original
error. Because these issues were not aired below, our review is
for plain error.
Close perscrutation reveals no indication in the record
that the photographs were in fact admitted to show consciousness of
-36-
guilt.6 Rather, the photographs were admitted to show that the
appellants had an intimate relationship with one another. We have
held before, and today reaffirm, that "the existence of a close
relationship between a defendant and others involved in criminal
activity can, as a part of a larger package of proof, assist in
supporting an inference of involvement in illicit activity."
Ortiz, 966 F.2d at 713. Thus, we discern no plain error in the
admission of the photographs.
This holding undermines Zuñiga's claim of instructional
error. Consciousness of guilt evidence is generally admissible in
a criminal case. See, e.g., United States v. Gilbert, 229 F.3d 15,
26 (1st Cir. 2000); United States v. Ingraham, 832 F.2d 229, 239
(1st Cir. 1987). In some such cases, it may be appropriate to
instruct the jury that while evidence of flight may tend to show
consciousness of guilt, such evidence does not create a presumption
of guilt. See, e.g., United States v. Otero-Mendez, 273 F.3d 46,
54 n.3 (1st Cir. 2001). Here, however, such an instruction was
neither obligatory nor proper; there was no consciousness of guilt
evidence about which to instruct. Hence, the omission of the
suggested instruction was not error, plain or otherwise.
2. Ineffective Assistance of Counsel. Villega
asseverates that his convictions should be vacated because he
6
Indeed, the district court prohibited the witness through
whom the photographs were introduced from testifying to the fact
that they were taken in Connecticut.
-37-
received ineffective assistance of counsel; he accuses his trial
attorney of failing to finalize a beneficial plea agreement
supposedly tendered to him by the government. We regard this
asseveration as premature and decline to consider it.
This court repeatedly has held that fact-specific claims
of ineffective assistance of counsel, not raised below, cannot
ordinarily be advanced for the first time on direct appeal. See
United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)
(collecting cases). While there is a narrow exception for cases in
which "the critical facts are not genuinely in dispute and the
record is sufficiently developed to allow reasoned consideration of
an ineffective assistance claim," United States v. Natanel, 938
F.2d 302, 309 (1st Cir. 1991), that exception has no bearing here.
The record is undeveloped, for example, as to why the plea
agreement was not concluded, what trial counsel's advice was
regarding the agreement, or what Villega's attitude may have been
toward changing his plea. Without such facts, it is impractical to
attempt to judge the adequacy of counsel's performance on the
meager record available to us.
Villega's appellate counsel nonetheless suggests that we
remand to the district court for an evidentiary hearing, rather
than relegating his claim to a petition for post-conviction relief.
Courts of appeals have that authority. See, e.g., United States v.
Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003). In our view,
-38-
however, it should be exercised only in special circumstances.
See, e.g., United States v. Colon-Torres, 382 F.3d 76, 85 (1st Cir.
2004) (remanding when the record on appeal contained substantial
indicia of ineffectiveness, but needed some further factual
development). Because no such special circumstances are extant
here, we decline to depart from our usual praxis. Accordingly, we
reject Villega's ineffective assistance of counsel claim, without
prejudice to his right, if he so elects, to assert that claim by
means of a timely application for post-conviction relief under 28
U.S.C. § 2255.
3. Severance. Rodríguez-Matos maintains that she was
prejudiced by being tried with Zuñiga because, she claims, the two
had antagonistic defenses. Rodríguez-Matos's main defense was one
of mistaken identity: that it was not she, but her sister,
Vilmarie Rodríguez, who actually participated in the criminal
enterprise. She complains that her ability to present this defense
was hampered because of the trial court's rulings limiting evidence
of Zuñiga's prior bad acts (which frustrated her attempt to develop
fully her sister's past relationship with Zuñiga).
We review the district court's denial of a severance
motion for abuse of discretion. United States v. Boylan, 898 F.2d
230, 246 (1st Cir. 1990). The default rule is that defendants who
are indicted together should be tried together. United States v.
Peña-Lora, 225 F.3d 17, 33 (1st Cir. 2000); United States v.
-39-
Pierro, 32 F.3d 611, 615 (1st Cir. 1994). This rule is subject to
exceptions, but the burden is on the party who challenges the
refusal to sever to make a convincing showing of prejudice as a
prerequisite to gaining a new trial. Boylan, 898 F.2d at 246.
Although Rodríguez-Matos styles her claim as one of
antagonistic defenses, that is a misleading label. At bottom, she
challenges only the limits placed on her ability to introduce
evidence of Zuñiga's prior bad acts. The rule, however, is that
the mere existence of such limits, unless unduly prejudicial to a
defendant's ability to muster a defense, is not a sufficient reason
to require severance. See United States v. Perkins, 926 F.2d 1271,
1280-81 (1st Cir. 1991).
In this case, any claim of prejudice was weak at best.
Our earlier discussion of Vega's plight presents a useful contrast
to Rodríguez-Matos's situation. With respect to Vega, we held that
his Sixth Amendment rights were violated because he was completely
precluded from presenting his theory of the case. See supra Part
III(A)(2). In contradistinction, Rodríguez-Matos was given ample
opportunity to present her defense: she was allowed to call
Vilmarie as a witness, and Vilmarie testified at length that it was
she, not Rodríguez-Matos, who took part in the crimes.
While it is true that the district court limited
Vilmarie's testimony and the testimony of other witnesses to
prevent the introduction of evidence that would have been unfairly
-40-
prejudicial to Zuñiga, the excluded evidence was at the periphery
of Rodríguez-Matos's defense. That limitation may have caused some
dismay in Rodríguez-Matos's camp, but it fell far short of the
strong prejudice required to warrant reversal. See Boylan, 898
F.2d at 246 ("There is always some prejudice in any trial where
more than one offense or offender are tried together — but such
'garden variety' prejudice, in and of itself, will not suffice.").
4. Alleged Speedy Trial Violations. Rodríguez-Matos
also challenges the district court's denial of her repeated motions
to dismiss the indictment on the basis of ostensible Speedy Trial
Act violations. Her principal plaint is that the delay of
approximately eighteen months occasioned by the unavailability of
Zuñiga's trial counsel should not have been excluded from the
speedy trial calculation.
The Speedy Trial Act, 18 U.S.C. § 3161, provides that,
upon motion, an indictment must be dismissed if the defendant's
trial has not begun within seventy days after the latter of the
return of the indictment or the defendant's first appearance before
a judicial officer. Id. § 3161(c)(1). The Speedy Trial Act does
not deal in absolutes, but, rather, envisions the exclusion of
certain periods of time. See id. § 3161(h).
Within that paradigm, the general rule is that when two
or more defendants are properly joined for trial, time excludable
from the Speedy Trial Act calculation for one defendant is also
-41-
excludable for the other defendant(s). See id. § 3161(h)(7)
(directing the exclusion from the calculation of "[a] reasonable
period of delay when the defendant is joined for trial with a
codefendant"); see also United States v. Barnes, 251 F.3d 251, 257
(1st Cir. 2001). The purpose of this rule is to prevent the Speedy
Trial Act from becoming a sword that can be used to shred the
joinder rules. Only in that way can the federal courts maintain
the efficiency advantages of joint trials.
As with many general rules, this general rule is subject
to a reasonableness limitation. See United States v. Brown, 736
F.2d 807, 809 (1st Cir. 1984). We already have held that the
district court did not abuse its discretion in denying Rodríguez-
Matos's motion to separate her trial from Zuñiga's. See supra Part
III(D)(3). Thus, the question reduces to whether it was reasonable
for the district court to exclude from Rodríguez-Matos's speedy
trial calculation those days attributable to the unavailability of
Zuñiga's counsel.
We are not unsympathetic to the appellant's position;
eighteen months is a considerable period of delay. But that delay
is not, in and of itself, sufficient to establish a Speedy Trial
Act transgression. See United States v. Muñoz-Amado, 182 F.3d 57,
62 (1st Cir. 1999) (holding that a nineteen-month delay, standing
alone, was not sufficient to constitute a speedy trial violation).
And here, the delay was not unreasonable.
-42-
This was a complicated case involving a variety of
charges, a multiplicity of defendants, witnesses, and lawyers, and
a protracted trial. The case called for experienced counsel, and
lawyers who fit that bill often have busy trial schedules. We
review the trial court's excludability determination for abuse of
discretion. Barnes, 251 F.3d at 256. Given this generous standard
of review and the strong presumption that jointly indicted
defendants should be tried together — a presumption that rests in
no small part on the public interest in the efficient
administration of justice, see Peña-Lora, 225 F.3d at 33 — the
trial court's decision seems well within the realm of
reasonableness.
To cinch matters, Rodríguez-Matos has not demonstrated
(or even attempted to demonstrate) any prejudice to her ability to
present a defense stemming from the delay. That is a critically
important datum. See Muñoz-Amado, 182 F.3d at 63.
For these reasons, we conclude that the district court
did not abuse its discretion in excluding from the speedy trial
calculus the period of delay attributable to the unavailability of
Zuñiga's trial counsel. Consequently, we reject Rodríguez-Matos's
Speedy Trial Act claim.
Apart from any perceived statutory transgression,
Rodríguez-Matos suggests that the delay in the commencement of her
trial violated her speedy trial rights under the Sixth Amendment.
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We evaluate such claims by means of a quadripartite balancing test
encompassing" (1) the length of the delay; (2) the reasons for the
delay; (3) the defendant's posture vis-à-vis the delay, especially
in respect to assertions of the speedy trial right; and (4) the
prejudice stemming from the delay." Mala, 7 F.3d at 1061 (citing
Barker v. Wingo, 407 U.S. 514, 530 (1972)). In the instant case,
this balance does not favor Rodríguez-Matos.
It cannot be gainsayed that Rodríguez-Matos waited a long
time for her trial to begin, nor can she be faulted for not
asserting her speedy trial rights. Thus factors one and three tip
in her direction. See United States v. Santiago-Bercerril, 130
F.3d 11, 21-22 (1st Cir. 1997). But as we already have discussed,
the second and fourth factors weigh heavily in favor of finding no
speedy trial violation. There were excellent reasons for delaying
the trial. Moreover, those reasons were largely due to the needs
of codefendants, rather than any slothfulness on the government's
part. That is an important integer in the speedy trial calculus.
Id. at 22. To top things off, Rodríguez-Matos has shown no
prejudice to her ability to present her defense. We therefore hold
that her Sixth Amendment speedy trial rights were not abridged.
E. Sentencing.
The appellants broach a series of challenges to their
sentences. As we must remand the case for resentencing on count 4,
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see supra Part III(B), we do not address any sentencing arguments
specific to that count.
1. Booker. The appellants' most pervasive sentencing
theme posits that resentencing is required in light of the Supreme
Court's decision in United States v. Booker, 125 S. Ct. 738, 756
(2005) (holding unconstitutional the mandatory application of the
federal sentencing guidelines). As none of the appellants
preserved the issue below, our review is for plain error. United
States v. González-Mercado, 402 F.3d 294, 302 (1st Cir. 2005);
United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005).
In Antonakopoulos, 399 F.3d at 77, we held that, post-
Booker, the first two prongs of the plain error standard are
satisfied whenever a defendant's sentence was imposed by reference
to a mandatory system of federal sentencing guidelines. That
holding applies in this case. It remains the appellants' burden,
however, to negotiate the third and fourth prongs of the plain
error pavane. Id. at 79-80. To satisfy the third prong, a
defendant must demonstrate that the Booker error affected his or
her substantial rights. González-Mercado, 402 F.3d at 303. That
means that the defendant must show a reasonable probability that,
but for the then-mandatory nature of the guidelines, the district
court would have given a more lenient sentence. Antonakopoulos,
399 F.3d at 78. Because it often will be difficult to produce
convincing evidence as to the trial court's predilections under an
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advisory guidelines regime, we only require that a defendant show,
"either in the existing record or by plausible proffer," that
"there is reasonable indication that the district judge might well
have reached a different result under advisory guidelines." United
States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).
Of the three remaining defendants — Vega, as we have
said, is entitled to a new trial on the only counts of conviction
pertaining to him, see supra Part III(A) — only Rodríguez-Matos
attempts to make this showing.7 She suggests that the district
court indicated at the disposition hearing that it would be
inclined to impose a lesser sentence but felt constrained by the
7
We consider the point waived with respect to Villega and
Zuñiga because neither defendant, though afforded ample opportunity
to do so, adequately developed any Booker arguments. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The record is
bereft of anything remotely suggesting a basis for leniency vis-à-
vis Zuñiga. Pertinently, however, Villega's brief includes
excerpts from a revealing exchange in which the district court
stated that it could not grant a diminished capacity departure on
count 2 because it lacked the legal authority to do so. But that
material was proffered in support of Villega's ineffective
assistance of counsel claim, not in support of his Booker claim.
Although we are cognizant that courts should not "be overly
demanding as to proof of probability where, either in the existing
record or by plausible proffer, there is reasonable indication that
the district judge might well have reached a different result under
advisory guidelines," Heldeman, 402 F.3d at 224, and that "in
certain circumstances [courts] have the discretion to overlook
waiver by inadequate argument," Rodriguez-Marrero, 390 F.3d at 18,
we believe that courts should be reluctant to act affirmatively in
identifying and supporting arguments that could have been, but were
not, made by a party. At a bare minimum, such an action should be
reserved for circumstances in which there is some likelihood that
the ultimate outcome would change in the assisted party's favor.
Since Villega's conviction and life sentence on count 5 must in all
events be affirmed, this is not such a case.
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mandatory nature of the guidelines. If the district court made
such statements, that would be the sort of indication that might
persuade us of the existence of a reasonable probability that a
defendant's sentence was infected by Booker error. See
Antonakopoulos, 399 F.3d at 81; see also Heldeman, 402 F.3d at 224
(noting that statements by the district judge at sentencing are a
key source of information in assessing whether the trial court
would likely be more lenient under an advisory system). Here,
however, a careful review of the sentencing transcript fails to
reveal any such comments.
It is true that the district court stated at certain
points that it felt bound to impose the statutory maximum sentence
of twenty years on count 1. That was because the guidelines called
for life imprisonment rather than because of any dissatisfaction
with a twenty-year sentence. At no time did the district court
voice any reluctance about imposing such a sentence. Indeed, it
rejected several arguments for a downward departure and expressed
in no uncertain terms its views on Rodríguez-Matos's culpability.
To cite one example, the court characterized her conduct as
"definitely instrumental in the [murders]."
In fine, we have no reason to believe that the district
court would have imposed a more lenient sentence under an advisory
guidelines regime. On that basis, Rodríguez-Matos's assignment of
Booker error fails to survive plain error review.
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2. Refusal of a Continuance. Zuñiga challenges the
district court's refusal to postpone his sentencing so that he
could investigate whether the government acted arbitrarily in
refusing to enter into a plea agreement. This is sheer persiflage:
the record reflects that the district court granted a continuance
of almost two months for Zuñiga to substantiate his claim. Given
that generous extension, Zuñiga cannot make out a plausible showing
of prejudice, much less reversible error. The district court did
not abuse its wide discretion in denying a further continuance.8
3. Role in the Offense. Rodríguez-Matos argues that the
district court erred by imposing a four-level leadership
enhancement in calculating her sentence on count 1.9 See USSG
§3B1.2(b). We need not consider this argument in any detail. When
sentencing Rodríguez-Matos on count 1, the district court applied
the cross-reference for murder specified in USSG §2B3.1(c) because
Morales's slaying was a direct result of the robbery. By virtue of
this cross-reference, Rodríguez-Matos's base offense level skied to
43, mandating a sentence of life imprisonment. See USSG §2A1.1.
8
This is especially true in light of our holding in United
States v. Davis, 247 F.3d 322, 327-28 (1st Cir. 2001), that the
government has no general duty to plea bargain.
9
The district court only administered a leadership enhancement
with respect to the robbery count. We therefore have no occasion
to address this argument in connection with any count other than
count 1.
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The court sentenced her to a lesser term — twenty years — because
that is the statutory maximum for violation of the Hobbs Act.
That ends this aspect of the matter. Given the murder
cross-reference, the leadership enhancement had no practical
effect. We therefore decline to review it. Cf. United States v.
Roselli, 366 F.3d 58, 63-64 (1st Cir. 2004) ("A district court does
not have to determine the exact offense level where such a
determination would not affect the court's sentencing decision
under the Guidelines."); United States v. Ventura, 353 F.3d 84, 90-
92 (1st Cir. 2003) (holding that when a defendant qualifies as a
career felon, it is not necessary to ascertain the defendant's
criminal history category because the Sentencing Guidelines mandate
a criminal history category of VI).
4. Absence of Findings. Finally, Rodríguez-Matos claims
that the district court sentenced her beyond the applicable
guidelines range without making appropriate findings of fact. As
just discussed, however, the court specifically found that the
murder cross-reference applied and appropriately employed that
cross-reference to reach an offense level of 43. That finding
mandated a sentence of life imprisonment (which was reduced only
because it exceeded the statutory ceiling). No more was exigible.
IV. CONCLUSION
We need go no further. To recapitulate, we affirm the
convictions and sentences on counts 1, 2, 3, and 5 as to all
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defendants except Vega. As to him, we reverse the convictions on
counts 4 and 5 and order a new trial. With respect to the
judgments on count 4 vis-à-vis the other three appellants, we
affirm their convictions on that count; vacate their sentences on
that count; and remand for resentencing (subject to the statutory
maximum set forth in 18 U.S.C. § 371).
Affirmed in part, reversed in part, vacated in part, and
remanded for further proceedings consistent with this opinion.
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United States v. Vega-Molina
Court: Court of Appeals for the First Circuit
Date filed: 2005-05-19
Citations: 407 F.3d 511, 407 F.3d 511, 407 F.3d 511
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