UNITED STATES of America, Appellee, v. Victor LEBRON-CEPEDA, Defendant, Appellant. United States of America, Appellee, v. Jose R. Caraballo-Gonzalez, Defendant, Appellant.
Nos. 01-1650, 00-2293.
United States Court of Appeals, First Circuit.
Heard Nov. 3, 2002. Decided March 31, 2003.
In practice, that risk of bias could nonetheless materialize in specific instances. But JCI, which was put on notice of the risk when it signed the contract, chose not to inquire about the backgrounds of the Committee members either before or during the hearing. JCI needed to act before the Committee rendered its decision. It would undermine the arbitral process to permit an employer with an industry-represented panel to await the outcome of an arbitration before deciding to cry bias. See Early, 699 F.2d at 558 (“[W]e cannot accept that parties have a right to keep two strings to their bow—to seek victory before the tribunal and then, having lost, seek to overturn it for bias never before claimed.“). JCI has waived the claim.9
We affirm entry of summary judgment for Local 103 enforcing the arbitral award. Costs are awarded to Local 103.
I. Background
We start with an account of the facts of the crimes as the jury could have found them, e.g., United States v. Diaz, 285 F.3d 92, 94 (1st Cir. 2002), but defer providing certain additional information until we discuss the issues to which the information is relevant.
Marlene Aponte Cabrera, for appellant Victor Lebrón Cepeda.
Rachel Brill, for appellant Jose Ramon Caraballo-Gonzalez.
Thomas F. Klumper, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, Criminal Division, and Daniel Vaccaro, Assistant United States Attorney, were on brief for appellee.
Before LYNCH and HOWARD, Circuit Judges, and SHADUR,* Senior District Judge.
PER CURIAM.
At the conclusion of a twelve-day trial, a jury convicted defendants-appellants José Ramón Caraballo-Gonzalez and Victor Lebrón-Cepeda of committing and aiding and abetting each other and others in the commission of a carjacking resulting in a death, see
At about 11:40 p.m. on March 23, 1996, Iván Fontánez-Bruno, a Puerto Rico Police Department cadet, drove his 1994 Hyundai automobile into a parking lot in a park adjoining a beach in Figwort, Puerto Rico. Daisy Torres-Muñoz, a fellow cadet whom Fontánez was dating, was seated next to him in the front passenger seat. Fontánez and Torres had their police-issued firearms with them. Torres was carrying her weapon, but Fontánez had placed his in a black bag between the seats and next to the emergency brake.
As the automobile entered the lot, Torres noticed appellant Caraballo, co-defendant Harold Evans-Garcia (who was tried separately, see United States v. Evans-Garcia, 322 F.3d 110, 2003 WL 1240599 (1st Cir. 2003)), and a third man she never was able to identify (but whom other evidence showed to be appellant Lebrón) sitting on some nearby rocks. The three earlier had split from a larger group of individuals (all of whom were named as co-
Fontánez parked his car next to a light pole along the beach front and turned it off. The car‘s windows were down. Fontánez and Torres began to talk about the driver‘s licenses they would need in order to drive patrol cars for the police force. As they were talking, Torres opened her purse and, after placing her gun between her legs, set her purse down on top of it in order to retrieve her driver‘s license. Periodically, Torres looked out the Hyundai‘s rear window at the individuals on the rocks because the way they were studying the cars in the lot aroused her suspicion.
Eventually, Torres mentioned her concern about the individuals to Fontánez and suggested that they leave. Fontánez turned to start the ignition and drive off, but was unable to do so because the three men had surrounded the car. Caraballo and Lebrón approached on the driver‘s side window, while Evans-Garcia approached on the passenger‘s side. Caraballo thrust the revolver through the window and placed it against Fontánez‘s head. Fontánez removed his gun from his bag, but Caraballo warned Fontánez against using it, stating that his revolver was cocked. Fontánez dropped the gun.
Caraballo, Evans-Garcia, and Lebrón pulled open the car doors and ordered Fontánez and Torres, who was concealing her gun beneath her purse, to move into the car‘s backseat. Fontánez and Torres complied and took seats facing each other, with Fontánez in the middle and Torres on the driver‘s side. Caraballo handed his revolver to Lebrón and took the wheel; Evans-Garcia picked up Fontánez‘s weapon and sat in the front passenger seat; Lebrón seated himself in the rear on the passenger‘s side and placed the revolver against Fontánez‘s head. After warning Lebrón to be careful because the revolver was cocked, Caraballo drove away.
At some point, Evans-Garcia accused Fontánez of being a police officer because only an officer would have a weapon like the one Fontánez had dropped. Fontánez denied being a police officer and claimed that he worked for Wells Fargo. Fontánez and Torres begged to be released and offered to give the three assailants money and to drop them off wherever they wanted. One or more of the assailants replied to the effect that Fontánez and Torres would not be released and should know that they were “on [their] way to the cemetery.”1 The three also robbed Fontánez and Torres of money and jewelry but were dissatisfied with what they found. Lebrón returned Torres‘s jewelry to her.
Shortly thereafter, under the guise of putting on her sandals, Torres placed her gun under the seat in front of her in a place where she could grab it should the need arise and the opportunity present itself. After she sat back up, Torres placed one of her feet on top of the gun. But almost immediately, Caraballo drove the car into something that caused one of its bumpers to become detached and to be dragged along the ground. The impact
Following the shooting, Caraballo made a U-turn and stopped the car. He and Lebrón exited and pulled the rear bumper completely free from the chassis, removed Fontánez‘s body, and dumped it on the road next to the car. Evans-Garcia pulled Torres from the car by her hair and, after a brief argument among the carjackers about whether to kill her as well, Lebrón told her to run. Torres jumped over a barrier next to the road and watched as the car drove off. Torres then ran to a nearby business and persuaded a patron to call the police. A patrol car arrived almost immediately. Torres gave one of the responding officers a description of the Hyundai and a brief description of its occupants. She also made the officer aware of the direction in which the car had departed. The officer communicated this information to other police officers via his police radio.
At about 12:15 a.m. on March 24, 1996, Carlos Martinez-Rivera, a marshal in the Puerto Rico court system, observed a red car with a missing bumper come to an abrupt stop in front of him. He saw Caraballo, Evans-Garcia, and a third man whom he was not able to identify (but whom other evidence showed to be Lebrón) exit the vehicle and walk quickly in the direction of a nearby housing project. Regarding what he had seen as suspicious, Martinez went to his nearby residence and called the police. He learned about the carjacking and murder. Martinez returned to the red car and gave a police officer who arrived at the scene a description of its occupants. He also pointed out the housing project towards which they had been headed. The officer passed the information along to other officers. A short time later, the police arrested Caraballo and Evans-Garcia at the housing project. Lebrón escaped arrest that night and fled to New York, where he was apprehended on April 13, 1997.
II. Discussion
Caraballo and Lebrón together challenge the sufficiency of the evidence underlying their carjacking convictions and, by extension, the sufficiency of the evidence underlying their firearms convictions. Caraballo alternatively argues that his convictions were tainted by the district court‘s erroneous admission of out-of-court and in-court identifications of him by witnesses Torres and Martinez; by the court‘s plainly erroneous admission under
A. Sufficiency Arguments
Caraballo and Lebrón together assert that the evidence was insufficient to sup-
The evidence that Caraballo placed a loaded and cocked revolver against Fontánez‘s head at the inception of the carjacking and verbally threatened him permitted the jury to infer that Caraballo would have shot Fontánez had Fontánez failed to comply with Caraballo‘s demand that he turn over the car. See Evans-Garcia, slip op. at 8; cf., e.g., United States v. Adams, 265 F.3d 420, 424 (6th Cir. 2001) (evidence sufficient to support intent finding where the defendant threatened and then physically touched the victims with his gun); United States v. Lake, 150 F.3d 269, 272 (3d Cir. 1998) (evidence sufficient to support intent finding where defendant placed a gun near the head of the victim and asked for her keys). Moreover, the evidence that Lebrón willfully and knowingly participated in the initiation of the carjacking while fully cognizant of how Caraballo intended to (and did in fact) use the revolver permitted the jury to draw the same inference as to him. See Evans-Garcia, slip op. at 8. Because the evidence was sufficient to permit the jury to draw these inferences, it was adequate to ground its determination that appellants took the vehicle with the required mens rea. See id.; see also Holloway, 526 U.S. at 12, 119 S.Ct. 966.3
First, if Lebrón understands the trustworthiness requirement to apply where the issue is the credibility of witnesses’ testimony about an accused‘s confession—and not the credibility of the confession itself—he is mistaken. The trustworthiness requirement is imposed out of concern that people sometimes fabricate stories about their involvement in a crime, and accordingly requires the government to introduce evidence other than the confession which tends to prove that the confession was not such a fabrication. See id. at 736-37 & n. 3. But to the extent that the in-court testimony about an extra-judicial confession may be unreliable, that is a matter for cross examination. Second, this circuit has not decided whether the trustworthiness requirement constitutes grounds for launching a sufficiency challenge (as Lebrón has done) or acts merely as a rule governing the admissibility of evidence. See id. at 737-39 & nn. 4-6. Finally, and perhaps most importantly, Lebrón is wrong in stating that there was no evidence against him except that derived from what he told third parties about his role in the crime. Among other things, Torres‘s testimony about the tragic events that transpired in Fontánez‘s Hyundai constituted independent proof of the commission of the charged offense and was more than sufficient to establish the trustworthiness of Lebrón‘s confessions within the meaning of the rule he cites. See id. at 737 & n. 2.
B. Caraballo‘s Alternative Arguments
1. Identification Evidence
Martinez arrived at the scene of Caraballo‘s arrest within minutes of its occurrence and, without a request from the arresting officers, identified him as one of the three men about whom he had telephoned the police. Torres identified Caraballo in a photo spread of six photographs held on April 4, 1996, one and one-half weeks after the carjacking. Prior to trial, Caraballo moved both to suppress these out-of-court identifications (usually admissible under
Following a five-day hearing, the district court issued a written order denying Caraballo‘s motion. Applying the inquiry mandated by Simmons, the court first held that the procedures that the police employed were not impermissibly suggestive. With respect to Martinez, the court found that the police did not use suggestive procedures “because [Martinez‘s identification of Caraballo] was contemporaneous with the events that the witness had seen only a few minutes before and because it was precisely the information that he provided to the police that led to [Caraballo‘s] arrest.” As to Torres, the court implicitly credited Torres‘s testimony and found that she did not see Caraballo in a holding cell prior to identifying him in the photo spread.
On appeal, Caraballo asserts that “there can be no question” that the district court erred in concluding that the circumstances under which Martinez identified Caraballo were unduly suggestive. But this ipse dixit is neither elaborated nor bolstered by citation to applicable authority. Mindful that a court is to withhold identification evidence from the jury only in “extraordinary circumstances,” United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993) (citation and internal quotation marks omitted); see also United States v. Maguire, 918 F.2d 254, 263-64 (1st Cir. 1990) (emphasizing that the suggestiveness of an identification procedure is a proper subject of cross examination and that the jury is usually competent to weigh intelligently questionable identification testimony) (citing Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)), this assertion is inadequate to put the court‘s conclusion into issue, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.“). At any rate, our independent review of the matter satisfies us that the court permissibly allowed the jury to hear about Martinez‘s identification of Caraballo.
With respect to Torres, Caraballo essentially contends that the evidence that Torres saw Caraballo in a holding cell a few hours after the carjacking was so powerful that the district court erred in crediting the accuracy of Torres‘s contrary testimony. We uphold a denial of a motion to suppress if any reasonable view of the evidence supports the denial. See United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996). As an appellate court, we lack the competence and authority to second-guess the court‘s decision to credit Torres. See, e.g., United States v. Laine, 270 F.3d 71, 75 (1st Cir. 2001). And in any event, as with Martinez, our independent review of the issue leads us to conclude that the court reasonably allowed Torres‘s identification of Caraballo to go the jury.
2. Prejudicial Spillover from the Case against Lebrón
As set forth above, the jury heard several witnesses recount the details of admissions Lebrón made to them about his role in the carjacking. Caraballo did not seek a severance of his trial or a limiting instruction informing the jury that these admissions were not to be considered against him. Caraballo now contends that the admissions described facts so similar to those
While it would be most unusual for us to find that a district court erred in failing to give a limiting instruction that was never requested, we shall assume solely for the sake of argument that the court should have instructed the jury sua sponte that Lebrón‘s admissions were not to be considered against Caraballo. Even so, the hurdle set by
There never was any doubt that three men participated in the carjacking and killing at the heart of this case. The case against Caraballo thus did not turn on what happened; it largely turned on whether the government had proved beyond a reasonable doubt that Caraballo was one of the three men who committed these crimes. In the end, the jury almost certainly credited Torres‘s testimony that Caraballo was one of the three men, and Martinez‘s testimony that Caraballo was one of the three men whom he saw exit Fontánez‘s Hyundai shortly after the carjacking. Lebrón‘s admissions—which with the exception discussed below never identified Caraballo as one of Lebrón‘s co-perpetrators (which distinguishes Caraballo‘s situation from that of the defendant in Sauza-Martinez, see 217 F.3d at 761)—almost certainly had no bearing on the jury‘s decision to credit this testimony. The absence of a limiting instruction thus did not affect Caraballo‘s substantial rights. See Olano, 507 U.S. at 735, 113 S.Ct. 1770.
By contrast, the testimony that spurred Caraballo‘s motion for a mistrial did identify Caraballo as one of Lebrón‘s co-perpetrators. But as we have recently explained: “When a witness strays into forbidden territory, the usual remedy is to strike the wayward remark and instruct the jury to disregard it. . . . In all but the rare case, that remedy, if properly executed, will suffice to safeguard the aggrieved party‘s rights.” United States v. Lee, 317 F.3d 26, 35 (1st Cir. 2003). Here, as in Lee, the district court promptly struck the testimony and instructed the jury to ignore it. And here, as in Lee, the court‘s refusal to order a mistrial was within its discretion. See id. Factors similar to those mentioned by the Lee panel in support of its ruling guide our analysis.
First, the witness‘s reference to Caraballo was largely cumulative of Torres‘s far more direct and damning testimony that Caraballo was one of the carjackers and Martinez‘s testimony that Caraballo was one of the men who exited Fontánez‘s Hyundai. See id. True, Torres did not identify Caraballo as a shooter, as did the witness. But from the jury‘s perspective, the identities of the shooters were immaterial to whether they were guilty of the carjacking and weapons charges for which they were indicted. Second, the remark appears to have been entirely accidental
C. Lebrón‘s Alternative Arguments
Lebrón‘s alternative arguments do not require extended discussion. His first argument is that the district court erred in applying the first degree murder cross reference set forth at
At page 9 of his supplemental brief, Lebrón concedes that the success of his challenge to the application of the first degree murder cross reference depends on our finding that the killing of Fontánez did not occur during the carjacking. But the law of this circuit is that “the commission of a carjacking continues at least while the carjacker maintains control over the victim and [his or] her car.” Ramirez-Burgos v. United States, 313 F.3d 23, 30 n. 9 (1st Cir. 2002). Obviously, the killing of Fontánez took place prior to the completion of the carjacking under this rule. Accordingly, we reject Lebrón‘s assignment of error and affirm the district court‘s application of the first degree murder cross reference.
Lebrón also contends that the district court clearly erred, see United States v. Ortiz-Santiago, 211 F.3d 146, 148-49 (1st Cir. 2000), in declining to award him a two-level reduction in his base offense level for playing a minor role in the offenses for which he was convicted, see
Our review of a district court‘s decision not to award a role-in-the-offense reduction is deferential because the decision is extremely fact-sensitive. See Ortiz-Santiago, 211 F.3d at 148. Consequently, “absent a mistake of law, battles over a defendant‘s status will almost always be won or lost in the district court.” Id. Here, we see no mistake of law or clear error in the district court‘s judgment that, with respect to the offenses of conviction, Lebrón was not a minor participant. There was evidence that Lebrón was the one who proposed the carjacking, secured the revolver used to take the car, held the revolver to Fontánez‘s head after possession of the car was wrested from Fontánez, shot Fontánez in the head at point-blank range, and ultimately decided that Torres would be spared. In view of these facts, Lebrón‘s assertion of clear error borders on the specious.
Lebrón next asserts, with neither meaningful elaboration nor citation to authority, that the district court erred in counting certain juvenile offenses in his criminal record while calculating his crimi-
We do not address the merits of this dispute. Lebrón‘s notice of appeal neither specified the order rejecting his motion for reimbursement nor manifested an intention to challenge it. Accordingly, he may not now contest the propriety of that ruling. E.g., Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999); Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 395 (1st Cir. 1999); cf. Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 3-4 (1st Cir. 2002) (permitting an appeal of a judgment even though the notice of appeal specified only the order denying reconsideration of the judgment because the notice manifested appellant‘s intention to challenge the underlying judgment). That said, the record reflects that this dispute may be more a matter of miscommunication than substantive disagreement about Lebrón‘s counsel‘s entitlement to the amount she seeks. If so, we urge the responsible parties to resolve this matter expeditiously.
III. Conclusion
For the reasons set forth above, we affirm the convictions and sentences of José Ramón Caraballo-Gonzalez and Victor Lebrón-Cepeda.
HOWARD, Circuit Judge, concurring.
I join the panel‘s per curiam opinion in its entirety but write separately to share some additional thoughts about appellants’ primary sufficiency argument, see ante at 56-57, which raises what I perceive to be a recurring issue. I first summarize my analysis of the issue and then explain why I believe it warrants this separate opinion.
I.
Appellants argue that they did not violate the federal carjacking statute,
In so framing its response, the government does not contest the premise of appellants’ argument: that Holloway calls for an assessment of their mens rea at the inception of the carjacking. But I do not accept appellants’ premise. I do not believe that Holloway should be read to limit the jury‘s focus to the commencement of the carjacking in cases like this one which, under settled circuit precedent, involve “tak[ings]” that occur over some period of time, see Ramirez-Burgos v. United States, 313 F.3d 23, 30 n. 9 (1st Cir. 2002) (declining to specify “the temporal limits of a carjacking under § 2119” but “reaffirm[ing] that the commission of a carjacking continues at least while the carjacker maintains control over the victim and her car“). I backtrack a bit to explain.
As set forth ante at 57 n. 2, the federal carjacking statute states:
Whoever, with the intent to cause death or serious bodily harm[,] takes a motor vehicle that has been transported, shipped, or received in interstate or for-eign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury [defined in a different statute] results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.
Many of the attempted carjackings and carjackings outlawed by
But I do not find anything in Holloway to suggest that the majority in that case intended the phrase also to have prescriptive significance in those carjacking cases where the defendant kidnaps the vehicle‘s occupants and thus commits the actus reus not in a “moment” but rather over an extended period of time. See Ramirez-Burgos, 313 F.3d at 30 n. 9 (citing United States v. Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998));4 see also United States v. Hicks, 103 F.3d 837, 843-44 & nn. 4 & 5 (9th Cir. 1996) (similar); cf. Wayne R. LaFave, Criminal Law, § 8.5, at 817-18 (West 2000) (discussing the doctrine of “continuing trespass” within the law of larceny); Joshua Dressler, Understanding Criminal Law, § 32.07[B] (2d ed. Matthew Bender 1995) (similar). The only question presented in Holloway, as described by that case‘s majority, was “whether a person who points a gun at a driver, having decided to pull the trigger if the driver does not comply with a demand for the car keys, possesses the intent, at that moment, to seriously harm the driver.” 526 U.S. at 6, 119 S.Ct. 966. There was no issue as to when the assailant‘s intent is properly measured because only one possibility presented itself under the case facts: the “moment” at which the vehicle was commandeered (which was the moment at which the actus reus was concluded). Nor did the case address matters pertaining to what we have called “the temporal limits” of a carjacking. See Ramirez-Burgos, 313 F.3d at 30 n. 9. Nor, finally, does the language of the carjacking statute suggest that, in circumstances such as these, the defendant‘s mens rea must be measured at the moment that the taking is initiated. Cf. Vazquez-Rivera, 135 F.3d at 178 (“We begin by noting that there is no textual basis for asserting that the injury must be ‘necessary to’ or ‘intended to effectuate’ the taking of the vehicle itself.“). There is thus no reason to suppose that, in those cases where the carjacking occurs over a period of time, Holloway circumscribes the factfinder‘s entitlement to assess appellants’ mens rea at any point during the commission of the actus reus.
Of course, this reading of Holloway does not render it irrelevant to a case of this sort. Holloway clarifies that we may sustain appellants’ convictions if the jury rationally could have found beyond a reasonable doubt, e.g., United States v. Marrero-Ortíz, 160 F.3d 768, 772 (1st Cir. 1998), that appellants intended (even conditionally) to seriously harm or kill at the moment they first took control over the Hyundai, see 526 U.S.
But my reading of Holloway also permits us to sustain appellants’ convictions if the jury rationally could have found that, at some point in time, they engaged in conduct constituting part of the actus reus proscribed by
II.
Ordinarily, I would not write separately to point out a different, and less settled, route to a result with which I concur—especially where the route that the panel opinion travels is both entirely correct and based on established law. But there are situations where the potential costs of leaving matters unresolved exceed the costs that can be generated by attempting to resolve an open question. See Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L.Rev. 4, 15-20 (1995). I regard interpretation of the carjacking statute‘s mens rea requirement as such a situation, involving the possible inadvertent foreclosure of an important issue.
Defendants charged with a carjacking involving a kidnaping that results in serious bodily injury or death face extremely stiff penal sanctions. See
If appellants’ construction of Holloway is permitted to carry the day, it is not difficult to imagine a scenario where a carjacking defendant who has kidnaped and harmed (or killed) his victim escapes punishment under
It is a very small but logical step from Ramirez-Burgos to the construction of
James J. RODWELL, Petitioner, Appellant, v. Peter A. PEPE, Jr., etc., Respondent, Appellee.
No. 01-2411.
United States Court of Appeals, First Circuit.
Heard Feb. 4, 2003. Decided April 1, 2003.
Notes
Whoever, with the intent to cause death or serious bodily harm[,] takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury [defined in a different statute] results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.