United States v. Vega-Molina

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."

-23-
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.

-25-
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

-31-
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.

-35-
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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