87 F.4th 38
1st Cir.2023Background
- Defendant Wally Irizarry-Sisco was a family friend who frequently transported Minor Y (11) on errands; two alleged sexual assaults occurred in March 2015 at motel rooms after he drove her there.
- Minor Y described sexual touching and ejaculation; motel records corroborated a vehicle with Irizarry's plate at one motel (El Eden) during the relevant time.
- Shortly after the second incident, Minor Y, upon hearing a truck she associated with Irizarry, became distraught and told neighbor Wanda Pagan that "yes" he had put "what he has between his legs" in her "woo-woo." Pagan testified to those statements at trial.
- Minor Y's aunt, Sarah Mercado-Alicea, testified she interpreted Minor Y's sad smile, shrug, and facial gesture to mean Irizarry had hurt the child; the defense objected to this as improper opinion/credibility testimony.
- A jury convicted Irizarry on one count (transportation with intent to engage in sexual activity, 18 U.S.C. § 2423(a)) and acquitted on a second count; sentencing PSR applied a 5-level "pattern of activity" enhancement (including one count on which he was acquitted), yielding an advisory life range, but the judge imposed a downward variance to 235 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Minor Y's out-of-court statements to Pagan (excited utterance) | Statements admissible under Rule 803(2): hearing Irizarry's truck re-excited Minor Y and statements were made under stress related to that event | Statements were elicited by Pagan's questioning and concerned past events, so not spontaneous; therefore inadmissible hearsay | Affirmed: district court did not abuse discretion; hearing the truck re-excited Minor Y and statements met Rule 803(2) factors |
| Admission of aunt Mercado's interpretation of Minor Y's nonverbal reaction (lay opinion) | Lay opinion admissible under Rule 701 as rationally based on perception and helpful to jury | Testimony improperly opined on ultimate issue and on victim credibility (impermissible under Rules 701/704) | Affirmed: testimony admissible under Rule 701, helpful to jury, not barred by Rule 704 |
| Use of acquitted conduct to apply 5-level "pattern of activity" sentencing enhancement | Sentencing court may consider acquitted conduct proven by preponderance when imposing enhancements | Acquittal on Count Two precludes finding a pattern of activity for enhancement | Affirmed: judge may consider acquitted conduct by preponderance; court's factual findings were not clearly erroneous |
| Substantive reasonableness of 235-month below-guideline sentence | Variance was justified; court considered §3553(a) factors, defendant's age/health, and imposed a sufficient, not greater-than-necessary sentence | Sentence effectively a life term; court did not sufficiently weigh age/health | Affirmed: sentence procedurally and substantively reasonable with a plausible sentencing rationale and substantial downward variance |
Key Cases Cited
- United States v. Velazquez-Fontanez, 6 F.4th 205 (1st Cir. 2021) (standard for balanced review of evidentiary rulings)
- United States v. Collins, 60 F.3d 4 (1st Cir. 1995) (outlining excited utterance requirements)
- United States v. Bailey, 834 F.2d 218 (1st Cir. 1987) (excited utterance admissibility review)
- Napier v. United States, 518 F.2d 316 (9th Cir. 1975) (re-excitation principle for hearsay exception)
- Murphy Auto Parts Co. v. Ball, 249 F.2d 508 (D.C. Cir. 1957) (scrutiny when statements recount past facts)
- United States v. Magnan, 863 F.3d 1284 (10th Cir. 2017) (factors for assessing whether statement reflects excitement or reflection)
- United States v. Belanger, 890 F.3d 13 (1st Cir. 2018) (district court discretion on lay opinion admissibility)
- United States v. Alejandro-Montañez, 778 F.3d 352 (1st Cir. 2015) (acquitted conduct may be considered at sentencing)
- United States v. Gobbi, 471 F.3d 302 (1st Cir. 2006) (same on acquitted conduct at sentencing)
- United States v. Floyd, 740 F.3d 22 (1st Cir. 2014) (substantial downward variance supports substantive reasonableness)