*1 reinstated, ADEA claim must be Vélez’s summary judgment on must vacate the
we Rico law claims as well.
the Puerto vacated, judgment is and the case is proceedings further consis-
remanded for this decision. Costs are awarded
tent with
to Jóse Vélez. ordered.
So America,
UNITED STATES
Appellee,
v.
Lorenzo CATALÁN-ROMAN and Medina-Villegas,
Hernaldo
Defendants-Appellants. 06-1182,
Nos. 06-1183. Appeals, States Court of
First Circuit.
Heard Dec. 2008.
Decided Oct. discriminatory age compensation remedy animus.” for individuals termi- Alvarez-Fonse Co., Pepsi Bottling just Otero-Burgos ca v. Cola 152 F.3d nated without cause. of P.R. Cir.1998). Univ., (1st Cir.2009). provides Law Inter Am. 27-28
LIPEZ, Judge. Circuit Lorenzo Appellants Catalán-Roman (“Catalán”) Medina-Villegas and Hernaldo (“Medina”) jury after a tri- were convicted relating conspira- al of to a several counts cy to rob armored vehicles and the shoot- guard, an ing death of armored vehicle (“Rodrí- Rodríguez-Cabrera Gilberto guez”), during which occurred *4 conspira- in furtherance of the committed cy- appeal requires
This us to consider Ca- rights talán’s claim that constitutional his pre- were violated when the district court introducing vented him from extrinsic evi- key government dence a wit- impeach 1) addition, challenges: ness. In request the court’s denial of his to sever 2) Medina, his trial from restric- 3) cross-examination, tions on and its de- a quash subpoena cision to for the tax of the car records victimized armored company chal- and its owner. He also two, lenges his convictions on counts eight, jeopardy and nine on double grounds. 1)
Medina challenges: sufficiency supporting the evidence the convictions on (the carjacking counts five and six (the 2) charges) eight and murder charge), Potolsky M. appellant Steven for Cata- the court’s failure him oppor- to allow lán-Roman. tunity for allocution him sentencing before appellant David Abraham Silva for Med- imprisonment to life charge, on the murder ina-Villegas. 3) guide- the court’s calculation of the line sentencing range on the murder Dominguez-Victoriano Maria A. charge. Klumper, Thomas Assistant United States
Attorneys, with whom Rosa Emilia Rodri- concedes that the con- guez-Velez, Attorney, United States eight victions on counts and nine violated Pérez-Sosa, Nelson Assistant United jeopardy. double It also concedes that brief, Attorney, appel- States were on for Medina must be re-sentenced on count lee. eight op- because he allowed
portunity to alloeute for count. After BOUDIN, STAHL, LIPEZ, consideration, reject appellants’ Before careful we Judges. Circuit other claims. identified Medina as the first assail- Cruz
I. ant. facts in the pertinent We recount jury’s verdict. most favorable to the
light Cruz-Diaz, United States Attempted The March Armed B. Rob- (1st Cir.2008). bery 6, 2002, attempt- On March several men Robbery Armed A. The November 30 Ranger guards. ed to rob two Torres was 30, 2001, James Cruz- On November day, acting again working that this time as (“Cruz”), guard truck Matias an armored messenger his partner, while Rodri- American Armored working Ranger guez, the truck. As drove Torres carried gun- robbed at (“Ranger”), Services $300,000 bag containing from the ar- delivery of cash for point making while truck to the mored door Valenciano D. employer Rodriguez to the Saulo Juncos, Rico, Puerto Credit Union Gurabo, Puerto Rico. That Credit Union man him in appeared and walked towards messenger in a day, Cruz worked as parking gesture lot. The man made a *5 such, carry two-man team. As he had waist, revealing toward his a firearm the cash from the truck to the bank. His tucked in his waistband. and Rod- Torres co-worker, Torres-Alejandro Eluber riguez pulled weapons both out their own (“Torres”), the driver and remained was man, pointed and them the towards who delivery. As during inside the truck the pulled pistol managed had out the and $180,000 containing bag carried a Cruz point Apparently realizing it at Torres. union, a man toward the door of the credit outnumbered, that he was the man turned waiting who had been the credit union’s away. ran a and Torres saw two-toned him, pointed gun a at his approached ATM motorcycle and a blue Chevrolet Lumina face, money. the Two oth- and demanded trial, depart parking from the lot.1 At appeared, pointing er assailants then also Torres identified Catalán as the man who gave head. them guns toward Cruz’s Cruz him in parking had walked toward the lot money. leaving, Before one of the weapon fleeing. and flashed a before from hol- pistol assailants took Cruz’s its ster, it, it at pointed cocked Cruz’s pulling trigger,
face. Instead of Carjacking The March 26 C. gun assailants left with the and the 26, 2002, parked On March while in his $180,000, fleeing parking gray lot in a green Explorer daugh- Ford outside his af- Jeep or blue Cherokee Laredo. Soon her, talking ter’s house and with Armando robbery, municipal police ter the Gurabo (“Julia”) approached by Jula-Diaz two nearby recovered a burned-out blue Cher- assailants, pointed one of whom a nickel- carjacked from okee Laredo had been at him plated pistol and demanded he turn robbery. days its owner two before the over the. vehicle.2 The two assailants stole fingerprints matching Medina’s were Six black, Explorer, along with a 9mm newspaper retrieved from a left near the ATM, pistol kept where the first assailant had been Glock that Julia had trial, waiting just robbery. glove compartment. before the At (“Morales”), According ex-girlfriend, an in- to Morales's who 1. David Morales-Machuca co-conspirator, Chevy trial, dicted drove blue Lu- always carried a testified at Morales mina, and Medina drove two-toned motor- nickel-plated pistol. cycle. (the Robbery gun Armed from Medina’s 9mm Glock D. The March 27 before), day Murder had been from Jula the stolen while the other two came from Catalán’s 27, 2002, Rang- day, The next on March scene, Beretta. At the the FBI obtained Rodriguez guards er Torres and were as- casings, fragments, bullet and bullets shell $100,000 to the Saulo D. signed to deliver Beretta and Medi- matched Catalán’s Torres, Rodriguez credit union Gurabo. union, na’s Glock. Not far from the credit driver, truck while remained green Ford police recovered Jula’s stolen Rodriguez, messenger, exited with the Explorer open, engine with its doors un- money and walked towards the credit running, gasoline and a small tank of near- Rodriguez approached ion. As the en- vehicle, by. they Inside the recovered the trance, pointed appeared an assailant pistol stolen 9mm used Medina black, Glock pistol 9mm Glock at his face and during robbery. appeared A then chest. second assailant carrying a Beretta semi-automatic firearm. Shortly robbery, after Morales trial, At first assail- Torres identified the picked up girlfriend, Jocelyn Serrano- ant as Medina and the second as Catalán. (“Serrano”), Castro in his blue Chevrolet Rodríguez raised his hands above his head him, day spent Lumina. She with in an act of surrender. As Catalán at- during which time he car switched the tempted Rodriguez’s to remove firearm driving, pistol retrieved a hidden be- holster, from its Medina fired two shots at marker, highway hind a mile and con- Rodriguez. then opened Torres the door co-conspirator, versed with a fifth Pablo truck began firing of the armored at (“Sanchez”), Sanehez-Rodriguez about *6 Catalán, who hit was and fell to the “getting rid” of the blue Lumina. At six ground. Torres was shot in the left hand o’clock that evening, Serrano observed co-conspirator, Ques- a fourth indicted Morales a retrieve sack of cash from San- Sterling-Suarez (“Sterling”). ter Torres buy phones chez and new cell with some of fell back into the truck and closed its days robbery, the cash. Several after the doors. appellant she went with Morales to visit money Medina took the and fled the Medina at his home. Medina and his wife green Explorer, scene in a Ford leaving bought had all new furniture. Medina told injured Rodriguez Catalán behind. robbery Serrano that he had “scored a and was point. According still alive at this to they everything had to take out and Torres, Rodriguez pleaded just for his life in bring everything new.” Catalán, before seated ground on the 2, FBI April arrested Medina on nearby, picked up his Beretta firearm and 2002. The vehicle Medina at driving was fired it several times into him. Sterling newspaper the time of his arrest had three Catalán, then arrived and tried to help but robbery articles about the March 27 in the fled the scene police alone when arrived.3 arrest, glove compartment. After his he scene, was apprehended Catalán at the in prison was housed the same cell seriously holding wounded and still (“Alamo”). trial, thereafter, Miguel Rodriguez Beretta. died Alamo-Castro At soon having they received a total Alamo testified that while were cell- eight gunshot wounds, proven three of which would have mates Medina had revealed several incrim- independent inating conspiracy fatal even details about the other rob wounds. One of the fatal Ranger example, wounds came vehicles. For Medina Sterling quickly apprehended. carjacked green Alamo that he had an armored vehicle in violation told of 18 1951(a) 2, (count three), §§ daugh- aiding a man and his U.S.C. Explorer Ford from abetting and the use aof firearm to com- robbery, the March 27 night ter the before mit the in robbery, November 30 violation process. mm in the He stealing a 9 Glock 924(c)(3) (count 2, four), §§ of 18 U.S.C. in shoot- participated said that he had aiding abetting the March during robbery the March 27 and that out carjacking, §§ in violation of 18 U.S.C. gun FBI had recovered the he had 2119(1) (count five), aiding and abet- Explorer from the seat of the stolen used ting the use of a firearm to commit the robbery. Medina Alamo after the also told carjacking, March 26 in violation of 18 going that he was to use the mon- 924(c)(3) (count six). §§ U.S.C. There home, buy ey furniture and remodel his charges were no based on attempted among things. other 6, 2002, robbery of March nor E. The Indictment and Trial attempted robbery cited as an overt act in furtherance of the conspiracy. later,
Approximately year one on March 14, 2003, Jury grand jury began January returned a ten-count selection days. 2005 and lasted superseding days indictment thirteen Three charging second trial, Catalán, Medina, Morales, before Sterling, moved exclude evi- dence that was in involved the March conspiracy with Sanchez rob armored or, attempted robbery alternatively, vehicles and a number of substantive of for the severance of his trial from Medi- conspiracy. Specifi fenses related to the na’s. He claimed that if the trials were cally, both Catalán and Medina were severed, testify Medina would that Catalán conspiracy with: to commit rob had not in been involved the March 6 vehicle, bery of an armored in violation of attempt. After an in camera conference 1951(b)(3) (count one), aiding 18 U.S.C. lawyer during with Medina’s which the abetting the use of firearm rela lawyer a proffer made of his client’s ex- one, conspiracy tion to the count pected testimony, the court denied the mo- 2, 924(c)(1)(A)(iii) §§ violation of 18 U.S.C. *7 tion. (count two),4 aiding abetting and the vehicle, robbery
March 27 of an armored began Trial on March At the 2, 1951(a) §§ in violation of 18 U.S.C. case, of government’s conclusion the both (count seven), aiding abetting and the use appellants judgment moved for of acquittal of a firearm to commit a crime of violence pursuant to Federal of Rule Criminal Pro- (the robbery) March 27 that resulted in cedure 29. The district court denied their killing Rodriguez, the unlawful of in viola case, motions. At the appellants’ start of 2, 924(j) §§ of tion 18 U.S.C. and 18 U.S.C. the government moved to exclude the tes- (count §§ eight), aiding and and timony of several witnesses whom the de- abetting the use of a firearm to commit a fendants intended to call to impeach the (the robbery), crime of violence March 27 Torres, testimony of the armored car §§ violation of 18 U.S.C. guard who was shot in during the hand (count 924(e)(1)(A)(iii) nine). addition, In 27 robbery. hearing argu- March After matter, aiding Medina was also with and ment on granted the court abetting government’s the November of motion in part, excluding the aiding § 4. 18 U.S.C. included in all of the and abet the commission a federal of offense. abetting charges, illegal and makes it to aid impose the court to a life sentence testimony of five law en- instruct impeachment Instead, jury for Medina.6 left Medi- forcement officers. judge indicated na’s sentence to the but 16, government March witness Juan On judge would it understood that (“Bravo”) moved to Bravo-Hernandez life impose imprisonment a sentence of that had quash subpoena for tax records parole. eight, For count the mur- without request been at the of defendants. issued charge, imposed court der district Bravo, Ranger of president and owner imprison- each defendant a sentence of life Services, had been American Armored possibility parole; without it later ment subpoenaed produce Ranger’s corporate to imposed also sentences for each of the personal tax well tax returns as other convictions. granted returns. The trial court the mo- quash, determining tion to the tax II. to the documents could not be relevant which al- inquiry,5 interstate nexus had challenges We first confront to Catalán’s ready been established Bravo’s Again, his convictions and sentence. possibly could not be affect- 1) challenges the trial court’s denial of his by any ed information contained in either request to sever his trial from that of company’s or Bravo’s own tax returns. 2) Medina, rulings trial court’s restrict- Torres, ing impeachment including evidence, completing appel-
After
their
court’s decision to exclude extrinsic evi-
again
judgment
lants
moved for a
of ac-
allegedly impeach
dence that would
Tor-
quittal,
trial
again
and the
court
denied
3)
testimony,
res’s
trial
court’s decision
jury
appel-
their motions. The
found each
records,
quash
subpoena
for tax
every
lant guilty
charged against
count
4)
two, eight,
the convictions on counts
him. Because the
had
defendants
been
jeopardy grounds.
nine on double
previously
eligible
certified as
for the
penalty,
proceeded
death
the trial then
A. Severance
penalty phase,
the death
which lasted fif-
days.
selection,
teen
jury
During jury
The same
that decided
the defendants
appellants’ guilt decided whether to im-
learned for the
govern-
first time that the
pose the
penalty.
planned
death
At the conclusion ment
introduce
from
evidence,
penalty
phase
jury
identifying
did Torres
having
Catalán as
been
not agree
impose
penalty
the death
involved in the
6 attempted
March
rob-
later,
upon
bery.
either defendant.
Two-and-a-half
U.S.C.A.
weeks
3593(e)(3).
forms,
commence,
In special
days
verdict
four
before trial was to
*8
evidence,
asked the court to impose a sentence of life Catalán moved to exclude the
or
imprisonment
parole
alternatively,
without
for Catalán
to sever his trial from that of
and
agree
argued
indicated that
it could not
to Medina. He
that
if severance
1951,
§
appellants
imprisonment
possibility
5. 18 U.S.C.
under which
life
without
of re-
charged,
lease,
only
were
criminalizes
those robber-
the court shall sentence the defendant
”obstruct[], delay[],
ies which
Otherwise,
affect[]”
accordingly.
the court shall im-
1951(b)(3).
§
interstate commerce.
18 U.S.C.
pose any
lesser sentence that is authorized
11(B).
See
Part
3594;
infra
§
law.”
18 U.S.C.
see also Jones v.
States,
373, 377-79,
United
527 U.S.
119 S.Ct.
6.
Penalty
Under
the Federal Death
Act of
2090,
(1999) (describing
461 Cir.1984). To meet the testify that F.2d 19 Medina would granted, were test, had not been involved first tier of that a defendant must Catalán However, “(1) attempt. if severance March demonstrate: a bona fide need for the unfair for granted (2) would be were testimony; of the substance testi- testi- present Torres’s (3) mony; exculpatory its nature and ef- involvement, as Ca- mony about Catalán’s (4) fect; and that the co-defendant will in ac- not be able to rebut that talán would if testify fact the cases are severed.” testimony. In a count Medina’s Smith, v. United States F.3d motion, lawyer on the Medina’s hearing (1st Cir.1995). If the defendant can make testify that his client would for confirmed showing, the court should move on to if severed. Fol- Catalán the trials were Drougas analysis the second tier of the judge an in lowing hearing, held “(1) significance examine the lawyer, conference with Medina’s camera testimony in relation to the defendant’s proffer expected of his client’s who made (2) defense; theory of consider whether testimony. The court then denied the mo- testimony subject would be to substan- the evidence and the alter- tion to exclude (3) tial, damaging impeachment; assess now native motion for severance. Catalán judicial arguments economy; the counter of the denial of his motion sev- challenges (4) give weight timeliness of the erance. Smith, motion.” at F.3d denial of a review the court’s We factor,
motion for severance for manifest abuse Focusing on a first tier discretion, DeCologero, States v. emphasized district court that Catalán had (1st Cir.2008), 36, 52 and affirm 530 F.3d proffer “failed to make a detailed for this unless the defen the lower court’s decision exculpatory court to evaluate the nature of convincing show strong dant makes a testimony.” Given that Catalán [Medina’s] ing prejudice resulted from the denial was not with the March 6 at Richardson, severance, v. United States tempted robbery, proffer about the evi (1st Cir.2008). Defendants 515 F.3d “exculpatory nature” would have dence’s must challenging the denial of severance especially important been to the district because, appeal high meet this barrier on analysis. particularly court’s This is so explained, as we have the normal course government’s because the focus of the case to “[pjersons of events who are indicted Catalán, naturally, against was on the gether together, should be tried since this him in charged against overt act the indict practice helps prevent both to inconsistent robbery and murder ment: the March 27 (judicial and to conserve resources verdicts Rodríguez. government’s strong prosecutorial).” United States evidence of Catalán’s involvement (1st Cir.2000) Peña-Lora, general conspiracy and the rob omitted). (quotation damning included guards armored truck physical linking evidence and
In deciding the motion for sever Rodriguez’s mur Catalán to the scene of alleged for the ance based on the need der, co-defendant, where had assisted the rob *9 of a district courts holding analysis bery apprehended and was employ are to the two-tiered set prof- a detailed Drougas, weapon.7 in v. 748 murder Without forth United States testimony participation conspira- in the Beyond asserting meditation and that Torres's argument cy,” develop an "highly bene- Catalán does not about the March 6 incident that, jury government pre- if the were to disbelieve Torres that on the issues of ficial to 462 testimony company pay high nature of was forced to deduct- exculpatory
fer of the
robbery,
$75,000,
attempted
robbery,
the March 6
totaling
about
ibles after each
court was well within its discretion
district
explained
that its insurer raised both
a
to conclude that Catalán had not shown
premium
its
and deductible as a result of
testimony.”
need for
“bona fide
the robberies.
Smith,
the substantial evidence of his Because this is not devel- mention,” "beyond oped cursory March would have been insuf- Cao v. (count Rico, conspiracy ficient to convict him of the Puerto 114 n. 2 one) Cir.2008), aiding abetting use of fire- we deem it to be waived. *10 testimony, company’s testimony even if the eluded vo’s bot- was “crucial to the de- or, unchanged tom line was for that theory” fense because he “wished argue to from— matter, improved even if it over—that of Alejandro ... that unworthy Torres was See, years past. e.g., Capozzi, reasons) 347 F.3d at of belief (among because other he (de minimis effect established when dramatically changed his version of events $4,000 defendant had threatened to extort trial, very shortly adding before new and in in- participated from a car dealer who highly aggravating details.” jury terstate commerce and a could have Catalán names FBI agents five whom he reasonably if concluded that the defendant should have been allowed to call at trial. had successful the business’s been assets Agents Angel Marrero and María Cruz purchasing power would have been at shortly interviewed Torres after the March $4,000). temporarily depleted least robbery, while he in hospital. Therefore, there was no abuse of discre- Marrero and Cruz took notes of their in tion in the court’s district exercise its in an terview official FBI FD-302 Form power quash subpoenas.8 to unreasonable (“302”), a form for reporting and summar an izing such interview. United States v. Impeachment9 C. Restrictions on Gonzalez-Melendez, Cir. Background 1. 2009) curiam). (per The 302 of their inter view, which purports record Torres’s that Catalán claims his Sixth Amend- robbery, account of the does not mention right ment to confront the witnesses certain details which Torres in gave his him against rights and his Due Process testimony trial and which Catalán claims unconstitutionally impeded by were the tri- directly govern “were relevant to the al him to court’s refusal allow introduce theory premeditation ment’s and death extrinsic evidence would have contra- penalty.”10 example, For the 302 does not government’s dicted the Rodriguez pleaded mention that for key eyewitness, his life Specifically, Torres. he up and held his arms to shield argues permitted should have been himself him FBI before Catalán shot several times at to introduce the of several “point range,” blank agents impeached who would have Torres’s Catalán glanced defiantly taking trial account of the robberies and the mur- at Torres before agents’ der. Catalán claims that the ex- that action.11 argued below and document, complains original 8. Catalán Spanish, also the district case. The in its quashing subpoena clearly possession parties court’s order in Bravo courtroom, right extensively denied him his Sixth and was Amendment "to discussed Thus, compulsory process English. obtaining have for them in much of its con- wit apparent nesses in tent is from the record. Neverthe- his favor.” U.S. Const. Amend. less, properly fully VI. trial, translated version of This constitutional claim was not raised at report placed was never in the plain and we record. therefore review it for oversight. That awas serious In the usual Rodríguez-Lozada, error. United States v. situation, (1st. Cir.2009). it would not be overlooked. See F.3d Given our view 30(e) ("The First Circuit L.R. court will not about the minimal relevance of the tax rec English receive documents ... not in the lan- ords to the interstate commerce element of furnished.”). guage unless translations are charges, the Hobbs Act there was no denial of However, objected has not right compul have Catalán’s constitutional arguments Catalán’s on the basis that a trans- process obtaining sory witnesses lated of the 302 not in version the record favor. and, fact, disputed any it has not of Cata- 9. The discussion from section C.l lán's account of what the document said. writing Therefore, section C.5 reflects the views of the given this somewhat unusual situa- judge only. My colleagues express sepa- tion, their we will in this address case merits of rate views in concurrence that arguments despite pro- follows this Catalán’s the serious opinion. handling cedural error in the of the 302. brief, 10. This which is central to Catalán’s In his Catalán also claims that arguments improper Agents about restrictions on Marrero and Cruz would have been impeachment, history impeach has a curious in this able to Torres’s trial account of the *11 trial ac- certain details Torres’s agents’ heard appeal argues again count, for Rodriguez pleaded March 27 incident as that testimony about such undermined Torres’s credibili- pistol would have unloaded his life before Catalán his omission, by be- ty through impeachment him, testified at trial. into until Torres would not have left out such cause Torres testimony of trial court excluded the The if first interview details his important it constituted agents, ruling all five See, e.g., Jenkins they were true. by inconsistent state- prior impeachment 231, 239, Anderson, 447 100 S.Ct. U.S. of a col- through extrinsic evidence ment (“Common (1980) law L.Ed.2d 86 prior matter and that state- lateral witnesses to be traditionally has allowed through agents Cruz and ments offered failure to previous their impeached were not in fact inconsistent with Marrero a fact in circumstances which state However, testimony. Cata- Torres’s trial asserted.”). naturally have been fact would Torres’s permitted impeach lán was Agents to call FBI also wished Catalán of incon- credibility extrinsic evidence Alvarado, in- Félix who Ng Francisco wit- sistent statements two other the November 30 terviewed Torres after permitted He was to call Carlos nesses. report. a 302 He robbery and also filed Bonilla-Rivera, security investigator for testimony would have argues that their a state- Ranger American who recorded trial account of the impeached Torres’s ment from Torres after the November 30 Torres robbery. Whereas November In robbery signed by that was Torres. trial that he had not observed testified at statement, contrary trial to his testi- robbery, Alvarado and the November 30 saw, mony, that he and was Torres said of their interview recounts Ng’s report describe, one of the assailants. able robbery but had that Torres had seen Agent called Ríos- The defendants also help. to call for “frozen” and was unable Calzada, who interviewed Torres after the Contrary testimony, report to his trial assailants, took a state- states that Torres did see the March 6 written that he said he although also states him that was inconsistent with ment from good description provide could testimony. The statement his trial written them. pro- was entered into evidence. The court explanation why no for these wit- vided
Finally, claims that he should Catalán impeachment be called for nesses could Mar- Agent have been able to call Carlos others, except that Torres had and not the chand, agent, impeach the FBI’s case two signed the statements he made to the robbery. Torres’s account of the March 27 “adopted” and therefore he had witnesses Agent claims that Marchand that he had never the statements.12 would have testified Yet, attempt attempted robbery. time the March 6 and that Torres's March 6 at no ter during attempt was different account of the argu- during the discussions and extensive at trial. Nonethe- that interview than it was less, during trial —not even ments over this matter permitted were to call the defendants proffer when the defendants made a about and, purposes for of im- him to the stand Agent suggested that Cruz’s it—was report peachment, they entered the 302 Marrero or Cruz had ever discussed the interview into evidence. See discussion infra. attempt March 6 with Torres. Without some claim, support evidence in the record in the rules of 12. That distinction has no basis does we cannot assess its merits. record impeachment. or the common law of evidence indicate, however, agent acceptable’’ that FBI José Rios "Any form statement impeachment by prior inconsistent statement. af- Calzada conducted an interview of Torres *12 2006) (“The (unpublished) the court’s appeal, Supreme On Catalán contests Court recognized not sweep to exclude the of has of the decision Con- Alvaredo, Cruz, Marrero, Agents Ng, beyond and frontation Clause to extend guar- anteeing Marchand.13 the criminal right[] defendant’s physically
to confront and cross-examine encompass right adverse witnesses to 2. Constitutional Claims Catalán’s impeach to an putting adverse witness Clause of the The Confrontation Sixth witness.”) third-party on a (quotation protects Amendment criminal defen omitted). Appellant marks and citation right dant’s “to be confronted with the no attempt makes to address White or against witnesses him.” U.S. Const. explain why otherwise specifically the Con- Although ability pursue to Amend. VI. requires frontation Clause the introduction impeaching inquiry an line of with the of the extrinsic impeachment evidence for support introduction of extrinsic evidence purposes, and has therefore waived his ing inquiry might part be viewed as conclusory argu- Confrontation Clause parcel right to cross-examina Zannino, ment. United States v. 895 F.2d tion, yet this circuit has to decide whether (1st Cir.1990). 1, 17 provides Clause defen Confrontation However, out, appellant points right impeach dants a to witnesses acknowledges, “[w]hether Coplan, extrinsic evidence. In White v. directly rooted in the Due Process Clause (1st Cir.2005), example, 26 Amendment, of the Fourteenth or in the a criminal defendant was found to have the Compulsory Process or Confrontation right under the Confrontation Clause to Amendment, clauses of the Sixth the Con- cross-examine his accusers about false alle guarantees stitution criminal defendants ‘a they gations past, had made but the meaningful opportunity present to a com- did not reach the panel question whether ” plete defense.’ v. Kentucky, Crane 476 a right had to introduce extrinsic evi 683, 690, U.S. 106 S.Ct. 90 L.Ed.2d allegations. spe dence about those It was (1986). In Mississippi, 636 Chambers v. cifically that “cross-examination and noted 284, 302, 410 U.S. 93 S.Ct. proof extrinsic are two different issues.” (1973) (also L.Ed.2d 297 appellant cited panel Id. at 25. The wrote that “we are brief), Supreme recog- Court endorsing any open-ended constitution right al to nized constitutional dimension of a de- offer extrinsic evidence [for right impeachment purposes]. present an excur fendant’s witnesses in his Such defense, requires noting rights sion more witnesses and are “[f]ew docu more ments, Chambers, greater and so risk of fundamental.” In confusion the excluded 26; delay....” Id. at Farley implicated person see also witnesses could have (6th Lafler, defendant, Fed.Appx. Cir. other than the and their testi- (6th government argues 1 McCormick on Evidence 34 at n. 5 ed. 13. The that two of the five 2006). 613(b) possibly presented witnesses "would have cu only Federal Rule of Evidence testimony.” mulative Cruz and Marrero requires impeached that the be "af- witness presumably given would have similar testimo explain opportunity deny forded an or ny, Ng as would and Alvarado. See Fed. [prior opposite party statement] and the [be] (relevant may R.Evid. 403 ed, evidence be exclud opportunity interrogate afforded the reasons, among other if it constitutes thereon,” requirement
witness
and has no
presentation
“needless
of cumulative evi
adopted
prior
that the witness have
state-
below,
dence.”). For reasons discussed
it is
ment.
not crucial that this contention be resolved.
inadmissible under
impeached
privileged,
have
that other
otherwise
mony would
evidence.”).
in the
person’s denial of
involvement
standard rules of
Constitu-
292, 93 S.Ct.
Id. at
crime.
tional
reviewed for
errors are
harmless-
infringed
those witnesses
exclusion of
Bem-
beyond
doubt.
ness
a reasonable
process right
“present
defendant’s due
Butler,
bury v.
F.2d
*13
in
own defense”
contrib-
witnesses
Cir.1992).15
constitutionally
of a
fair
uted to the denial
302-03,
Id.
trial.
at
ject
injured
of Torres’s
condition at the
of
time
Scheffer, 303, 308,
States v.
U.S.
interview,
the fact that he had taken
(1998);14
see
1261,
has Fisher v. United his arms raised in a submissive prior mode U.S. 469 n. being shot. He did not at S.Ct. (1946)). that, any time L.Ed. 1382 The victim prior crying indicate to Mr. Rod- out shot, riguez being for his life position with before he was shot raised, his arms say, government’s did he hear him defendant was some of the no, no, no, please, please, please, most persuasive and he evidence that Catalán had any way prior did not indicate in premeditation to acted with in shooting Rodr that, raised, iguez.18 the mode with his hands shooter, Catalán, Although proffer,
17.
presumably
is not included in the
ond
did not in-
among
parties
later
appellant.
discussions
make
clude the
details
concern to
clear that the 302 also recorded that Torres
who,
described a second shooter
while
18. The
could have secured a first
ground,
wounded
degree
fired several shots at
specifically
murder conviction without
However,
the victim.
charging
premeditation,
this account of the sec-
see 18 U.S.C.
uncertainty about Torres’s mental
was
Second,
was inconsis-
impeachment
because
at the time of the inter-
important
physical
in an
sense
condition
tent
govern-
to the
way
that were essential
and the
in which
hospital,
details
view in the
left out of
case were
penalty
ment’s death
these
interview was conducted. Under
jury
The same
Torres’s first interview.
circumstances, it was an abuse of discre-
later
guilt phase
that decided
court to determine that
tion for the
pen-
whether the death
to determine
asked
in Marrero and
crucial omissions
Cruz’s
doing so was
and in
alty
appropriate,
interview with Torres
report of their
it could “consid-
instructed that
specifically
with
“natural” and not inconsistent
were
during
presented
that was
any
er
evidence
testimony.
significance
his trial
In the penal-
of the trial.”
guilt phase
jury
was a
issue.19
omissions
to consider
jury
was asked
ty phase,
“statutory aggravating
whether certain
Fact Rul-
4. The Trial Court’s Collateral
applied to the crime. See 18
factors”
ings
§§
These included
U.S.C.
law of evidence and
Under the common
in a
crime was committed
whether
circuit,
manner,”
impeachment
of this
“heinous,
and the law
depraved
cruel or
normally
vulnerable.
restricted to
whether the victim was
extrinsic evidence
*15
on matters that are not col-
impeachment
analysis,
jury
In
final
the
had to
Cruz-Rodriguez,
lateral.
States v.
United
Rodriguez
of
whether the murder
decide
(1st Cir.2008) (“
19,
‘It is well
541 F.3d
30
execution,
something
a
was cold-blooded
party may
present
that a
not
established
at trial
else. Torres added several details
impeach
to
a witness
extrinsic evidence
issue and formed a
that went to that core
”)
a collateral matter.’
contradiction on
aspect of his narrative of the
central
Beauchamp,
986
(quoting United States
he had not
events of March
but which
Cir.1993)).20
(1st
A matter is
in
account. There F.2d
3
mentioned
his earlier
1111(a),
degree
inconsistency
pre-
of
between the
§
[W]hat
but it nonetheless included
eight
previous state-
charge
an
witness's
and his
meditation in the
on count
as
ought
charged
judge
required? ... The
to be:
offense. The
ment is
test
element of
reasonably
jury
jury
mal-
find that a wit-
instructed the
that it must find both
Could the
premeditation
aforethought
well as
in
truth
the facts
ice
as
ness who believed the
of
Although
unlikely
order to convict the defendants.
to make a
testified to would be
"aiding
prior
were
with
and
...
defendants
statement of this tenor?
Instead
abetting”
restricting
prior
of the murder in
the commission
of
the use of
statements
eight,
charge
inconsistency,
lessen the
count
did not
a
of
in case
mechanical test
lean,
required
appellant of
mental state
to convict
toward re-
of doubt
courts should
aiding
charge.
ceiving
evaluating
Even under the
the murder
statements to aid in
such
all,
govern-
abetting theory
liability,
testimony.
pretrial
of
After
state-
required
prove
memory
to
that Catalán
ment was
were made when
was fresh-
ments
"consciously
principal's
intent.
shared”
er and when there was less time for
Thus,
Mangual-Corchado,
they
play
United States v.
139 F.3d
are often more
of bias.
(an
(1st Cir.1998)
aiding
abetting
trustworthy
testimony.
44
than the
"required proof beyond
murder conviction
a
(6th
Cirilo,
§
Evidence 49
20. But see 1 McCormick on
before the mur-
reasonable doubt
2006) ("Given
occurred,
provides
consciously
princi-
[which
ed.
Rule 402
[the
der
shared
admissible”],
Meijas
sought
that "all relevant evidence is
pal's]
intention to kill
argument
powerful
a
that tire collater-
there is
ensure the success of the criminal enter-
...").
impliedly repealed by enact-
al fact rule was
prise.
Under this read-
ment of the Federal Rules.
Rules,
(6th
rigid
ing
there is no
§
ed.
Federal
on Evidence 34
19. See McCormick
2006):
introducing
prohibition
extrinsic evidence
“if
considered collateral
‘the matter itself
admissible because it was “collateral.”
litigation
is not relevant in the
example,
establish For
in response to defendants’
i.e.,
a fact
consequence,
not relevant for
request
impeach
Torres’s claim that
a purpose other than mere contradiction
Rodriguez
pleaded
had
for his life before
”
shot,
said,
the in-court
being
witness.’
the court
“it’s collateral
Beauchamp,
(quoting
source,
time in hearing entailed extrinsic evi plainly helped the establish dence.” 1 McCormick on Evidence 49 premeditation the that was an (6th 2006). ed. aspect of eight. the murder in count Fur-
Over protestations thermore, defendants’ to the several of the details were cer- contrary, the trial court repeatedly tainly ruled jury’s relevant to the consideration prior evidence Torres’s penalty inconsistent of the death if the defendants were statements about Butterworth, the robberies was not convicted.21 See Kines v. matter; impeach evidence.”). a witness aon collateral tion 'collateral' This circuit con See, rather, apply tinues to the collateral fact rule. judge Rule under would make 30; e.g., Cruz-Rodriguez, at F.3d practical judgment impor- as to whether the Marino, (1st v. States 277 F.3d Cir. testimony tance of the witness's and the im- 2002).
peachment expenditure warrants the of the However, additional trial time. the collateral decision, necessary 21. Because it is not to this ingrained fact rule was so at common law significance, any, Agents if of the fact that many opinions federal Ng continue to men- and Alvarado would have testified about a Cir.1981). exposure (1st nally, argues Catalán Torres at F.2d have revealed Tor- would 27 mur- inconsistencies to the March only eyewitness “fixing up testify falsely: a witness res’s motive and was also partner, of his der case, maxim- robbery. government’s all holes in the November 30 victim of the to and Rico’s securing Puerto izing com- the chances that the crimes were had testified He in modern penalty verdict way, the defen- first death in a certain mitted that “a wit- This circuit has said by him introduc- times.” sought impeach dants falsely gen- testify ... inconsistent ness’s motive through prior ing evidence a non-collateral erally considered to be were not com- that the crimes statements F.2d at 4. Beauchamp, rob- way. His accounts of the issue.” mitted that unquestionably were and murder beries reasons, district all of For these against case government’s to the material testimony of excluding court erred Catalán, the death including request its that their because of its view agents of Torres impeachment even if the penalty, matter. a collateral dealt with may not have of those accounts on details from involvement exculpated Catalán Error 5. Harmless the crime. court’s rationales for Both of the district testimony of
Furthermore, excluding impeachment argued below and government agents some of trial court the five appeal argues —that not inconsistent and impeachment the statements were permitted have should proffered all of the brought out on that it went to matters because applications of erroneous government, collateral —were direct examination However, “[v]iola- defen the rules of evidence. cross-examination of evidence does not itself significant. The tion of rule dant. That distinction is Ev- to a constitutional violation.” that Torres’s ac amount government’s own belief Verdini, 141, 145 of the robberies and ans count of the details Cir.2006). necessary to decide It is not important supports were the murder of the extrinsic evi- whether the exclusion nature of inconsistencies non-collateral di- dence was an error constitutional by Catalán.22 United States identified Cf. *17 (1st circumstances of this mension. Under the Sotomayor-Vázquez, Cir.2001) case, if a of Rule even there was constitutional (despite prohibitions error, has, beyond a 404(b), on direct the error was harmless a defendant “[w]hen examination, against The evidence a of en reasonable doubt. general made denial case, overwhelming: he was found in material to the the Catalán was gaging conduct March 27 testimony at the scene of the may impeach that wounded prosecution murder, robbery holding one of the engage did by proving the defendant occasion”). weapons, and he was later a Fi- two murder prior in that conduct on was elicited on cross-exami- appellant was not be contradicted for which (the approach, a witness robbery) nation. Under this when is not addressed. November during direct examination she testifies to facts However, may impeached by even be extrinsic evidence suggest this is not to that testi 22. recent au- always those facts are collateral. More mony is or automati if elicited on direct See, ap- thority commentary rejects this impeachable. e.g., cally Charles Alan Gold, reasoning proach, that contradiction as to Wright 27 Fed. Prac. & & Victor James 2005) ("Some (2d matter wastes time and confuses ed. older trivial Proc. Evid. 6096 whether the contradiction authority suggests issues no matter that the collateral matter examination.”). on direct or cross applies only when the to occurs doctrine striding the perpetrator. directing in court as the course of identified defense inculpatory would not That evidence have counsel’s examination. Catalán claims impeached by the evidence that he been that these interruptions violated his Con- through any sought to introduce of the right frontation Clause to cross-examine Furthermore, per- Catalán was agents. against witnesses him. After reading the impeach credibility by Torres’s mitted excerpted portions the transcript in con- evidence of inconsistent state- extrinsic text, appellant’s objections it is clear that Rios, ments Bonilla whose groundless. many are places, In the dis- following interviews with Torres the No- trict court directed counsel on the proper 30 and March 6 incidents differed vember examination; way to others, conduct the at trial. from Torres’s accounts reprimanded the court trial counsel for ignoring rulings. its earlier The court also course, Of if had been sentenced Catalán interrupted government’s death, lawyers on necessary might it be to decide occasion, frequently sided with the exclusion of extrinsic evi- whether objections. defendants on “It is about the March incident23 well-es- dence was dimension, tablished that a judge not a mere um- an error of constitutional be- pire; he analysis governor is the of the trial might cause the harmless error for the noted, conduct, purpose its penalty assuring proper well be different. As trial, jury perfect and has a phase right right the same that had —albeit appellants’ guilt decided asked to de- should be exercised with partici- care—to pate impose pen- actively proper.” termine whether to death in the trial Logue v. Dore, alty, Cir.1997) expressly and was instructed that it F.3d omitted). (quotation could consider the evidence heard in After careful consid- guilt phase. expressed Defense counsel eration of transcript, the trial it is clear trial, arguing concern at that if overstepped this Tor- the trial court no bound- unimpeached, res’s went aries. de- lawyers
fendants’
would not later be able
“unring the
the reprehensi-
bell” about
Jeopardy
D. Double
ble details when it came time for the jury
claims that some of his
impose
to deliberate about whether
convic
tions
penalty.
argument
Jeopardy
violated the Double
apt,
death
That
Clause
but,
Amendment,
of the Fifth
analysis,
jury appar-
the final
which forbids
ently
punishing
person
did
twice for
unring the bell.24
the same
offense. U.S.
amend.
In
Const.
V.
Block
The Trial
Sua Sponte
Court’s
Com-
States,
burger
299, 304,
v. United
284 U.S.
ments
(1932),
52 S.Ct.
Catalán Court set forth the test transcript in the trial determining multiple tions where the for punish whether counsel, judge interrupted for defense re- ments related offenses violate the Dou- trial, impeachment through agents The though clearly desired even court took a 23. Ng and Alvarado not relevant to the different view of the relevance of the evidence 27 phase example, March murder. in that of the trial. For it present pre- allowed co-defendant Medina to Strangely, viously apparently did impeachment not seek excluded extrinsic 24. testify Agent any agents have during of the about Torres’s evidence Marchand (Catalán's penalty-phase pen- out-of-court account of the March 27 Medina's case. Medina's.) penalty phase alty-phase during preceded murder and of the case 472 judicial proceedings.” act United States v. “where the same Jeopardy Clause:
ble
Olano,
725, 732,
a
of two
constitutes violation
507 U.S.
113 S.Ct.
or transaction
(1993).
statutory
the test to be
provisions,
The firearm con
distinct
count United (1st Cir.2006) (a nez-Torres, III. 924(c)(1) can be a lesser included offense offense).25 § 924(j) of a offense 1) the Appellant challenges: Medina suf- ficiency supporting of the evidence hand, reject On other we (the eight conviction of count murder contention that his convictions on Catalán’s 2) count), sufficiency of the evidence eight counts two constitute violation supporting the conviction of counts five jeopardy. Because he of double did (the 3) counts), carjacking and six below, dis- claim for raise this we review it oppor- trict failure to him the Winter, court’s allow error. States v. plain (1st Cir.1995). tunity being Thus, for allocution before sen- F.3d Cata 1) eight, error, imprisonment tenced to life on count must show there was an lán that: 4) 2) 3) the district court’s calculation of the plain, it was it affected a substantial 4) “seriously guideline sentencing range on count right, and affect[ed] fairness, reputation integrity, public eight.26 brief, Oddly, pro supplemental has 26. counsel for Medina not also In his se Medina argues also ”conviction[s] sen- argued that Medina’s convictions on counts all counts vacated as tences on must be eight jeopardy. and nine violate double Al- However, legally evidence was insufficient.” though exceptional may circumstances we presents arguments while he detailed about counsel, arguments address not raised see insufficiency evidence counts Atkinson, 157, 160, U.S. United States five, six, eight, he does not even mention (1936), cir- 56 S.Ct. L.Ed. 555 those counts, explain why let *19 other alone the very present cumstances are rare and not affording evidence was insufficient. Even special $100 Other here. than assessment him lenient because he a more standard is nine, imposed for Medina’s conviction count claims, see, pro e.g., Johnson v. se on these 104, (1st Cir.1991), nine and cannot his count does not affect Rodriguez, F.2d 107 943 sentence, bring argumentation imprisonment. this is to which is life insufficient
473 Sufficiency Glock, A. of the Evidence along Explorer, stolen with the was found inside the had vehicle and been fired Medina’s discussing Before during robbery. several times Finally, sufficiency specific challenges to the of the tragically, unquestionable and is five, six, him against evidence on counts gunned was Rodriguez down on March 27 eight, general and a more chal we discuss performing while his as a Ranger duties lenge apparently make intends Torres, guard. The testimony of law en- for all him with charge of the counts forcement officers who arrived at abetting” in “aiding perpetration and scene, experts and forensics who examined of a crime. He contends that he could not the ballistics from the all scene consistent- aiding abetting have been convicted of and ly how explain Rodriguez was murdered “principal” because no was with of robbery. Simply put, course and Appellant’s convicted crimes. nothing there appellant’s is claim that claim on a is based mistaken understand that any principal evidence had actual- ing “One of our law. who aids and abets ly committed these too thin crimes was for crime as a punishable principal,” is United him to be convicted as an aider and abet- Cruz, 499, States v. Carlos 352 F.3d 507 tor the crimes. (1st 2, Cir.2003); § see also 18 and U.S.C. “an aider and abettor the commission of More specifically, Medina also convicted, may a federal offense be al challenges the sufficiency of evidence though principal had been of acquitted undergirding for carjacking convictions charged.” the offense United v. States (count five), use of during a firearm car Cir.1983) (cit 729, Cyr, 712 F.2d (count six), jacking murder of Rod States, v. ing 447 U.S. Standefer (count riguez eight). review sufficien We 10, 20, 100 S.Ct. L.Ed.2d cy challenges novo, of the evidence de (1980)). that an “[i]t While axiomatic whether, “evaluating viewing after the evi aiding abetting requires conviction light in the dence most favorable to the proof that has been the substantive crime prosecution, any of rational trier fact could committed,” Cyr, F.2d at there have found the essential elements of the overwhelming proof underly that the beyond crime a reasonable doubt.” Unit ing essentially use of robbery, crimes— Meléndez-Torres, ed States 420 F.3d firearms, carjacking, and murder —were (1st Cir.2005) (internal quotation 48-49 evidence, Among committed. other there omitted). marks Cruz, Torres, from which,
Bravo together, taken detailed how Conviction carjacking under 18 assailants, pointing armed stole weapons, requires U.S.C.
significant Ranger’s prove beyond sums cash from a reasonable doubt that a 1) guards on November March attempted defendant: took or to take Furthermore, 2) person another, Julia testified that from or presence him Explorer his Ford was stolen from vehicle “transported motor that had been him, men firearms at pointing shipped, and the or received in interstate or for 3) commerce,” Explorer eign same Ford was later found aban with “force and vio 4) engine intimidation”, doned running with the near the with lence or “intent robbery. bodily scene of the March 27 Julia’s cause death serious harm.” 18 sufficiency evidence for claims one at 17. Zannino, seven four and before us. *20 Shea, v. 211 F.3d ing United States 2119; § States García- United U.S.C. (1st. Cir.2008). (1st Cir.2000)). Therefore, Alvarez, A murder 541 F.3d robbery degree found of first jury could have each that results from is rational 1111(a) (“Every § beyond a reasonable doubt. U.S.C. those elements murder. See 18 green Explor perpetration that his Ford Julia testified murder ... committed the by him two men on the first taken from ... ... is in the er was of murder Nonetheless, that of the of March 2002 and one indictment night the degree.”). pistol at Ju nickel-plated pointed men a that defendants acted with charged also exit the car. demanding face he lia’s while “Premeditation” contem- premeditation. always a carried Co-conspirator Morales dimension, need temporal a which plates Ex The same Ford nickel-plated pistol. time; only “appreciable” an amount of be had stipulated parties which the plorer, deliberation, fact of of second “it is the commerce, was interstate traveled important.” Frappier, that is thought[,] the of the day found the next near scene Fisher, at (citing 328 U.S. 807 F.2d at firearm, had robbery. 1318). which Julia’s Glock judge in- 469 n. 66 S.Ct. glove of Ford compartment in the the been jury that: structed the stolen, when it was had been Explorer [Pjremeditation typically associated robbery to shoot and kill during used the require[s] in cold blood killing with as Rodriguez. Torres identified Medina period time in which the accused the of during person who had used Glock thinks matter over deliberates or witness, A Cas the shootout. specify The law acting. does before tro, a testified that while he was cellmate any period exact of time that require Medina, his recounted involve of Medina pass must between formation carjacking in the as well other ment as But killing intent to kill and itself. in the conspiracy. crimes killer long enough for the must be There was sufficient evidence also after to kill to be forming intent six, convict Medina on count the related fully intent. conscious] aiding abetting offense of use of a could all jury A have found reasonable carjacking. conjunction firearm with beyond of count a eight elements Again, Julia that the men who had testified First, identified reasonable doubt. Torres a pointed nickel-plated stolen the car had having Medina fired the first of several pistol at his face. Rodriguez, Rodriguez shots at while raised and ground there was on the with arms Finally, sufficient holding a Medina jury weapon. from a rational could was not evidence which cellmate, Alamo, that guilty bragged prison count to his conclude Medina was with a laser from that he and he had obtained Glock eight, which aided used in the during carjacking a firearm which later abetted use of experts Government unlawfully crime Rodri March 27 shootout. violent killed (as the Glock had been fired aforethought explained defined guez, with malice 1111) scene, that at § several times at the premedita in 18 U.S.C. “and with Rodríguez hit tion.” 1111 ‘was to least one of its bullets “18 U.S.C. intended rule, Rodriguez a would fatal even if adopt felony proven murder and for have felony had been wounded Catalan’s stated the ‘malice’ element is satis not also Finally, posses- Medina was fied the intent to commit unlawful Berretta. ” about newspaper sion of articles felony.’ States v. Morales-Ma several Cir.2008) chuca, robbery at time of his the March 27 (quot- *21 sentencing. sufficient arrest. There was evidence Because we remand for re- only that “aided and abetted” the sentencing, Medina we reach need not Medina’s felony brought violent that about the death argument alternative that the district of that he with Rodriguez, but also shared comply require- court failed to with for primary responsibility 3553(c).27 Catalán the that § ments of 18 U.S.C. death. evidence, jury a Based on this rational IY. that guilty could conclude Medina is of above, For reasons set forth we count eight as well counts five and six. vacate the conviction ap- and sentence of
Therefore,
all
we affirm of the convictions
pellant Catalán on count nine and further
against Medina.
direct
special
that the
on
assessment
count be removed.
further
We
vacate
Sentencing Challenges
B.
eight
Medina’s sentence on count
and re-
challenges
Medina
the district
mand for resentencing. All other convic-
allow him
court’s failure to
the opportunity
tions and sentences are affirmed.
sentencing
allocute before
him on count
eight,
felony
murder
Federal
charge.
So ordered.
32(i)(4)(A)
Rule of Criminal Procedure
re
quires that
a
imposing
before
sentence
STAHL,
Judges,
BOUDIN
Circuit
judge “address
defendant personally
concurring.
and ask the
if
defendant
the defendant
Although we concur in the result and in
wishes to make
statement
in the defen
what
written,
most of
our
has
colleague
any
dant’s own
and to
infor
present
behalf
our
reasons differ from
rejecting
one
mitigation
mation in
of punishment.”
principal
claims
error. Among
Medina
opportunity
was not afforded that
appeal,
other claims raised on
Lorenzo
being
before
on count eight.
sentenced
(“Catalán”)
Catalán-Roman
challenges the
government correctly
concedes
district court’s
exclusion of
from
pro
Medina
should be re-sentenced at
FBI
agents
he contends would have
ceeding
present
where he is
and afforded
impeached
Torres-Alejandro’s
Eluber
opportunity
address the
See
court.
(“Torres”) testimony, most
importantly,
United States
Burgos-Andújar,
robbery
Torres’
about the
Cir.2001) (due
F.3d
the im
murder March
Our colleague
2002.
portance
32(i)(4)(A),
of Rule
“re
which
believes there was
but that
error
it was
flects our long
giving
tradition of
all defen
harmless;
in our
error
view no
was com-
right
dants the
to directly address the
by the
judge.
mitted
district
plead
mercy,”
court and
for
“if a sentenc
ing
provide
court fails to
a defendant with
Torres testified
Gilberto
Rodrí-
court,
guez-Cabrera
chance to address the
the re
(“Rodríguez”) had his hands
viewing court must
fired,
remand the case for
in the air
any
before
shots were
resentencing, generally
needing
shot,
without
to that after Torres
first
heard the
Rod-
Therefore,
inquire
prejudice.”).
riguez
backward, leaning
into
we
fell
against the
vacate
eight
Medina’s sentence on count
front
union
window the credit
at which
occurred;
remand to
district court
re-
with his hands still
3553(c) requires
sentencing
imposition
particular
18 U.S.C.
its
sentence....”
open
court to "state in
court the reasons for
*22
824,
(1967),
in
17
705
life
L.Ed.2d
raised,
pleaded
then
for his
S.Ct.
Rodriguez
by
was
ease we think there
no error
by
Hernal-
this
co-defendant
being
before
shot
finding
(“Medina”);
judge
Rodri-
in
the omissions
the district
Medina-Villegas
do
wounded,
testimony.
Torres’
ground
the
not
inconsistent with
then fell to
guez
multiple
shot him
after which Catalán
the issue
inconsis
Starting with
of
times.28
testi-
allegedly inconsistent
The
earlier
tency,
ordinary
the
rule
that
introduce
mony
wanted to
that Catalán
same
reciting
story-
in
omissions
—al
agents,
FBI
expected testimony from
was
literally
not
contradictions of later
though
hospital,
Torres in the
who interviewed
impeach a wit
testimony
be used to
—can
Rodriguez’
not
that
did
mention
Torres
(on
inconsistency
ness for
cross examina
life.
raising
pleading
of
for his
hands
necessarily by
of the witness but not
tion
the omis-
judge
said that
district
evidence)
extrinsic
the omitted informa
if
Torres’
not inconsistent with
sions were
not
“in circum
tion was
stated earlier
(the
testimony
court
add-
court
naturally
in
that fact
stances which
would
hospi-
details
did not contradict the
ed
but
have
been
asserted.”
Jenkins
v.
statements) and,
addition,
hand
in
tal
239,
Anderson,
231,
447
100 S.Ct.
U.S.
occurred)
(if
raising
pleading
they
(1980);
2124,
Likely
judge
supposed
the district
raising
would
have
hand
and pleading could
prevented
from cross-examining
premeditation.
Catalán
bear on
But forensic evi-
why
Torres himself as to whether and
dence
established
Catalán shot Rodri-
details,
had previously
guez
omitted
latter
already
Cata-
after the
had
been
(as
eight
superseding
killing
29. Count
of the second
in-
is "murder
defined
section
dictment
Catalán
18 U.S.C.
1111),”
under
perpetrator
punished by
shall "be
§§
924(j)
aiding
abetting
with
the use
by imprisonment
any
death or
term of
person
of a
of a
firearm to cause
death
years
924(j)(1).
§
for life.”
U.S.C.
violence,
specifically,
crime of
course of
explicitly
indictment also
cross-referenced the
robbery.
924(j)(l)
Section
cross-references
definition of murder in
section
provides
18 U.S.C.
1111 and
if the
inconsistency,
the trial
Medina,
testify to
but
and Torres’ testimo
wounded
it
merely
judge ruled
a collateral issue.
unimpeached
regard,
in this
ny,
of events. Shoot
sequence
confirmed this
If Torres
make the earlier state-
did
ordinarily
already
man
ing an
wounded
ments,
certainly
they
inconsistent
were
premedita
requirements
meets the
(as
credibility,
went
to his
but
and so
required,
particular
interval
tion—no
noted)
already
permits impeachment
this
Brown,
States v.
and not
only
cross examination
(7th
denied,
Cir.),
U.S.
cert.
unless
contradiction
extrinsic evidence
(1975)
as to
46 L.Ed.2d
S.Ct.
—so
merits
the case.
is material
to the
Rodri
scarcely
mattered whether
guilt
Here,
contra-
it is hard to see how the
pleaded.
had
his hands and
guez
raised
any
is of
assistance to
diction
*24
par-
merits.
not
with
the
He was
raising and
The lurid
about hand
details
robbery,
in
and
the November 30
ticipation
is, not collat-
pleading were relevant —that
testimony'
neither version of Torres’
in the
—the
the
choice
jury’s
eral—to
further
at
one given
one offered
trial or the
earlier
to
phase
trial as to whether
second
of the
Catalán in that
agents
implicated
to the
imprisonment.
or life
—
recommend death
robbery.
in his
Nor does Catalán offer
Thus, if the
were
hospital-bed omissions
any explanation beyond saying that
brief
inconsistent,
extrinsic evidence
deemed
the two versions contradict one another—
at that
them would have to be allowed
not to
goes only
credibility
which
to
and
stage.
hard to
that at
imagine
second
It is
subject
of the
the
matter
case.
judge
have ex-
any penalty stage
would
that,
bearing on the circum-
testimony
cluded
im-
beyond
Catalán also claims
killing
even if it consisted
stances
the
in
peaching the
facts
Torres’ testi-
specific
any
merely of
failure to mention
mony,
agent testimony
Torres’
FBI
the excluded
in
In the
details
an
interview.30
earlier
would
in both instances also
have demon-
event, the
not
the
jury did
recommend
motive
improper
strated Torres’ bias
judge
clear his
penalty
death
made
testifying,
was
and so
not collateral.
imprison-
position
own default
life
But
is
and the
is not
this
not so
claim
ment.
testi-
persuasively explained;
excluded
not
mony did
what Torres’ bias
establish
contradiction,
A more
about which
direct
were,
improper
merely con-
motive
it
also complains,
concerns Torres’
tradicted certain details
version
Torres’
robbery
the earlier
about
bias
of events. Nor did Catalán make this
trial,
2001. At
Torres testi-
November
motive
in the
court:
argument
or
district
that he
observe
fied
did not
the November
argued only
that Torres’
earlier,
assailants;
robbery
inconsistent and Torres therefore not cred-
agents
two
FBI
had inter-
appears,
other
ible;
ground
only unsup-
the new
is not
robbery
him
and he told
viewed
about
103(a);
but
ported
forfeit. Fed.R.Evid.
notes)
agents (according
FBI
to their
Olano,
States
U.S.
that he saw the
but “froze”
(1993).
113 S.Ct.
trinsic evidence happens produce doctrine same
ror case, important but it
result in this governing evidence law
future cases that of such reaffirmed. Trials are full evi-
be pres- often under
dentiary rulings, made
sure, made within the and those here were trial judge.
province Santos, AWUAH, Nilton Ger-
Pius Dos *25 Correia, Cavalcante,
aldo Benecira Prem, Pineda, Aldivar
Denisse Jai
Brandao, Phillip Beitz, Richard Bar-
rientos, Lewis, Stanley Marian Stew- similarly situated,
art, and all others
Plaintiffs, Appellees, AMERICA,
COVERALL NORTH
INC., Defendant, Appellant.
No. 09-1284. Appeals, Court of
United States
First Circuit.
Heard Oct. 2009. Oct.
Decided Vhay Paul
Michael D. with whom S. Ham, Leon, M. F. Norman John Dienelt LLP on brief Piper and DLA were appellant.