United States v. Torres-Colon, 790 F.3d 26

Background

In March 2012, police pursued a vehicle for speeding; during the chase officers observed the front passenger (Torres-Colón) lean out and throw two solid black objects from the passenger-side window.
The vehicle was stopped; officers recovered a .40 caliber Glock pistol, a fanny pack with ammunition, and multiple magazines near where the items were thrown.
Torres-Colón, a felon, was charged under 18 U.S.C. § 922(g) for unlawful possession of a firearm; the jury convicted and the district court sentenced him to 60 months.
The government called the driver, Vázquez, who had pled guilty in a related case but initially invoked the Fifth Amendment; the court compelled limited testimony and the prosecutor read stipulated plea facts into the record over objection.
On rebuttal the prosecutor told jurors to consider whether they would want the defendant driving beside them, an argument Torres-Colón later challenged as improper but failed to contemporaneously object to at trial.
The First Circuit found (1) inadmissible substantive use of Vázquez’s plea agreement but harmless given duplicative evidence and overwhelming proof of possession, and (2) an improper but non-prejudicial prosecutorial remark under plain-error review; it affirmed conviction and sentence.

Issues

Issue	Plaintiff's Argument (Gov.)	Defendant's Argument (Torres-Colón)	Held
Admissibility of codefendant's plea-stipulated facts	Government treated plea facts as admissible evidence to corroborate witness testimony and impeach anticipated silence	Reading plea facts into the record was substantive use of a codefendant’s guilty plea and impermissible guilt-by-association	Court: Admission was improper (guilty plea not admissible substantively) but harmless because the plea facts duplicated live testimony and overwhelming evidence supported guilt
Use of Vázquez’s spontaneous statement admitting ownership	Gov. relied on witness’s on-the-stand voluntary admission that the gun was his	Admission bolstered government narrative and was not elicited by prosecutor; defendant argued it prejudiced the jury	Court noted the statement favored defendant on ownership and did not justify substantive use of the plea; admission of plea remained improper
Prosecutor’s rebuttal urging jurors to imagine defendant driving beside them	Gov. responded to defense closing and argued jurors should remember their decision when driving by Salinas	Defendant argued the remark inflamed passion, appealed to jurors’ fears, and affected verdict	Court: Remark was improper and inflammatory but defendant waived contemporaneous objection; on plain-error review the remark did not affect outcome given strong evidence of possession
Sufficiency/challenges at sentencing (semiautomatic finding)	Gov. offered expert testimony and a dry-fire test showing the Glock was semiautomatic	Defendant argued evidence insufficient to establish the firearm was semiautomatic for guideline calculation	Court: District court’s finding was not clearly erroneous; evidence supported semiautomatic classification

Key Cases Cited

United States v. Dworken, 855 F.2d 12 (1st Cir. 1988) (guilty plea of a witness cannot be used as substantive evidence against a defendant charged with similar crimes)
United States v. Woods, 764 F.3d 1242 (10th Cir. 2014) (prohibition on borrowing proof from another person’s conviction)
United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657 (3d Cir. 2000) (criticizing bald introduction of a witness’s guilty plea about similar facts)
United States v. Robinson, 473 F.3d 387 (1st Cir. 2007) (actual and constructive possession explained; ownership not required)
United States v. DeCologero, 530 F.3d 36 (1st Cir. 2008) (brief possession is sufficient for conviction)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause framework assessing testimonial statements)
Davis v. Washington, 547 U.S. 813 (2006) (distinguishing testimonial from nontestimonial statements for confrontation analysis)