UNITED STATES OF AMERICA, Plaintiff, Appellee, v. JOSE A. OTERO-MENDEZ, Defendant, Appellant.
No. 00-1990
United States Court of Appeals For the First Circuit
December 10, 2001
Before Torruella, Circuit Judge, Lipez, Circuit Judge, and Zobel,* District Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge]. Víctor P. Miranda-Corrada, on brief, for appellant. Thomas F. Klumper, Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant U.S. Attorney, Chief, Criminal Division, were on brief, for appellee.
I
In the late evening hours of April 4, 1996, Otero-Mendez, together with four companions, was driving his car in the San Juan metropolitan area. Next to him, in the passenger‘s seat, was Giovani Castro-Ayala (“Castro-Ayala“). In the rear seat, Jomary Aleman-Gonzalez (“Aleman-Gonzalez“) sat in the middle with Hanson Wilson-Millan (“Wilson-Millan“) to her left and Javier Betancourt (“Betancourt“) to her right.
As they were returning home, a white Nissan 300ZX (“the 300ZX“) automobile passed them. Previously, Otero-Mendez, Wilson-Millan, and Betancourt had discussed finding new wheel rims for Otero-Mendez‘s car. Upon seeing the 300ZX, they decided that they would
A few days after the incident, appellant, having dyed his hair and using eyeglasses and a fictitious name, left Puerto Rico through the Aguadilla Airport. He was subsequently apprehended in Connecticut and transferred to Puerto Rico where he was indicted. He was then convicted of aiding and abetting an attempted carjacking and aiding and abetting in the use of a firearm.
II
Appellant moved at the end of his trial for an acquittal, claiming that the government failed to prove its case beyond a reasonable doubt. In regard to the carjacking conviction, appellant contends the government did not meet its burden of proof in two ways: (1) the government did not prove that the 300ZX had been transported or shipped in interstate or foreign commerce (the “jurisdictional element” of
When addressing sufficiency of the evidence claims, we review the evidence in the light most favorable to the prosecution, and review de novo the district court‘s determination that the jury reasonably found each element of the crime to have been proven beyond a reasonable doubt. See United States v. Colon-Munoz, 192 F.3d 210, 219 (1st Cir. 1999), cert. denied, 529 U.S. 1055 (2000); see also United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998). Our role in this review is limited: “An appellate court plays a very circumscribed role in gauging the sufficiency of the evidentiary foundation upon which a criminal conviction rests.” United States v. Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir.), cert. denied, No. 01-6313, 2001 WL 1117904 (U.S. Oct. 15, 2001). We find that the prosecution did present sufficient evidence on all of the challenged points to allow a reasonable jury to find the defendant guilty.
A. Jurisdictional element of § 2119
Otero-Mendez argues that the government failed to prove that the car involved had been transported, shipped, or received in interstate or foreign commerce. The jurisdictional element of
Agent Oates testified that all automobiles arrive by ship into Puerto Rico and that he was unaware of any automobiles manufactured in Puerto Rico. This testimony went unchallenged. In United States v. Lake, a police officer testified that no motor vehicles are manufactured in the U.S. Virgin Islands and all cars must be shipped into the territory. 150 F.3d 269, 273 (3d Cir. 1998). The Third Circuit held this testimony to be sufficient to establish the jurisdictional element of
Appellant claims that the government failed to prove he shared any intent to cause death or serious bodily injury as required under
It is difficult to articulate a precise intent standard for an aider and abetter. See United States v. Spinney, 65 F.3d 231, 236-40 (1st Cir. 1995) (discussing the differing intent standards articulated, at various times, for aiders and abettors). For a specific intent crime, like aiding and abetting, the defendant must have consciously shared some knowledge of the principal‘s criminal intent. See United States v. Loder, 23 F.3d 586, 591 (1st Cir. 1994). A generalized suspicion is not enough. See id. at 591 (citing United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990)); see also Spinney, 65 F.3d at 237 (holding that if the defendant did not have actual knowledge of the principal‘s intent, there must be at least “enhanced constructive knowledge“). We have previously required evidence that the defendant was “on notice.” United States v. Rosario-Diaz, 202 F.3d 54, 63 (1st Cir. 2000). However, we have declined to decide whether the evidence must show the defendant knew to a “practical certainty.” Id. We need not decide this issue today, as a reasonable jury could have found that appellant knew to a practical certainty that Betancourt and Wilson-Millan intended death or serious bodily injury.
Appellant argues that the lack of any discussion or conversation regarding the use of guns or force to take the car or wheel rims demonstrates that any intent to cause death or serious bodily injury could not have been formed until after Betancourt and Wilson-Millan exited appellant‘s car. While no conversation took place about the use of force, Castro-Ayala testified that Betancourt and Wilson-Millan pulled out their guns as they exited appellant‘s car. Appellant himself testified that he knew that Betancourt and Wilson-Millan were carrying guns when they got into his car.2 Appellant also testified that shots were fired immediately after Betancourt and Wilson-Millan exited his car. This uncontradicted testimony provides sufficient grounds for a reasonable jury to find that appellant knew to a practical certainty that Betancourt and Wilson-Millan intended to use deadly force.
C. Weapons charge
Appellant argues that his conviction for aiding and abetting in the use or carrying of a firearm in connection with a carjacking,
Appellant‘s conviction for aiding and abetting in the use of a firearm during a crime of violence can be sustained under
III
Appellant contends that the district court made a series of erroneous evidentiary rulings which cumulatively denied appellant his right to a fair trial. We review each of the district court‘s evidentiary rulings for abuse of discretion. See United States v. Reeder, 170 F.3d 93, 107 (1st Cir. 1999); see also Williams v. Drake, 146 F.3d 44, 46 (1st Cir. 1998). We find the district court did not abuse its discretion.
A. Evidence of appellant‘s flight and disguise
Appellant argues that the district court should not have admitted evidence of appellant‘s flight and disguise during that flight. In regard to the flight itself, appellant concedes that flight can be evidence of a guilty conscience, but argues that evidence of flight in this case was unfairly prejudicial. In addition, appellant asserts that introducing evidence of his use of a false identity is equivalent to impeaching his credibility because it calls into question his honesty.
The law of this circuit clearly allows the district court to admit evidence of both flight and use of a false identity if probative of a guilty conscience: “Evidence of a defendant‘s flight and attempts to conceal or falsify identity may be presented at trial as probative of a guilty mind if there is an adequate factual predicate creating an inference of guilt of the crime charged.” United States v. Candelaria-Silva, 162 F.3d 698, 705 (1st Cir. 1998). Here, the uncontradicted
As to appellant‘s argument that the evidence of flight was unfairly prejudicial, the district court found the probative value substantially outweighed any significant prejudice. Rule 403 of the Federal Rules of Evidence allows relevant evidence to be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.” In reviewing Rule 403 challenges, we are extremely deferential to the district court‘s determination. See United States v. Hernandez, 218 F.3d 58, 70 (1st Cir. 2000), cert. denied, 531 U.S. 1103 (2001) (“district court‘s Rule 403 balancing stands unless it is an abuse of discretion.“); see also United States v. Rosario-Peralta, 199 F.3d 552, 561 (1st Cir. 1999). In assessing the probative value of the evidence, the district court specifically pointed to appellant‘s prior statement in which he explained his flight and disguise as an effort to avoid being connected to the attempted carjacking. In light of this statement, we agree with the district court‘s finding that evidence of appellant‘s flight and disguise is probative of a guilty conscience and not unfairly prejudicial.3 We certainly cannot find an abuse of discretion.
As for appellant‘s argument that the evidence relating to his disguise attacked his credibility and was an impermissible character attack, we find this argument to be without merit. The evidence was admitted as probative of appellant‘s guilty conscience, not as a character attack. The reasoning underlying appellant‘s challenge would convert all evidence relating to use of disguises and false names into impermissible character attacks. Given the absurdity of such a position, we decline to adopt it.
B. Appellant‘s prior testimony
Appellant contests the introduction into evidence of his prior testimony given at the severed trial of his co-defendant. He argues that this testimony was irrelevant and highly prejudicial and should have been barred under Rule 403 of the Federal Rules of Evidence. First, we note that appellant‘s prior statements are admissible as party admissions. See
C. Testimony of decedents’ relatives
Appellant argues that the testimony given by the decedents’ relatives4 should have been barred under Rule 403 of the Federal Rules of Evidence because it was both irrelevant and highly prejudicial. Specifically, he charges that this testimony was introduced only to inflame the jury since the identities of the deceased were not at issue. We agree with the district court that the identities of the deceased were relevant. See
D. Toxicology report for Betancourt
Appellant also contests the admission of a toxicology report showing various drugs in Betancourt‘s body at the time of death, claiming that this report had limited probative value and was unfairly prejudicial. First, the fact that Betancourt was under the influence of drugs when he and Wilson-Millan attempted to take the 300ZX bears on Betancourt‘s state of mind, as a principal in the crime. Second, the unfair prejudice created here, associating the appellant with a drug user, is not very substantial. Therefore, we find no abuse of discretion by the trial judge in admitting this evidence. Moreover, the admission of such evidence, even if erroneous, would not be sufficient to disturb appellant‘s conviction.
IV
Appellant contends that the district court erred when it refused to give the jury an accessory-after-the-fact instruction as requested by the appellant. We review challenges to jury instructions for abuse of discretion. See Beatty v. Michael Mach. Bus. Corp., 172 F.3d 117, 121 (1st Cir. 1999); see also Smith, 145 F.3d at 460. We find no abuse of discretion.
Appellant concedes that here an accessory-after-the-fact charge is not a lesser included offense. See United States v. Rivera-Figueroa, 149 F.3d 1, 6 n.5 (1st Cir. 1998) (holding “the accessory offense is not a lesser included offense because it requires proof that the principal offense does not, namely, that the defendant assisted after the principal crime was committed“) (emphasis in original). Therefore, appellant is not entitled to this instruction as a matter of law. See id. at 6.
However, appellant contends that the accessory-after-the-fact instruction was essential to his defense and sufficient evidence supported the instruction, and, therefore, the district court‘s denial of the instruction is reversible error. United States v. Rosario-Peralta, 199 F.3d 552, 567 (1st Cir. 1999), addressed a similar situation, a failure to give an accessory-after-the-fact instruction in a carjacking prosecution. There, we set out a four-part test to judge whether a defendant is entitled to a particular instruction:
. . . a trial court‘s failure to deliver a theory of defense instruction will result in reversal only if: (1) the requested instruction correctly describes the applicable law; (2) sufficient evidence is produced at trial to warrant the instruction; (3) the charge actually delivered does not fairly present the defense; and (4) the requested instruction was essential to the effective presentation of the particular defense.
Id. (citing United States v. Montanez, 105 F.3d 36, 39 (1st Cir. 1997)). Appellant argues that all four requirements are met here,5 but we disagree. The evidence presented was insufficient to warrant the requested instruction.
In support of his argument, appellant points to several facts: (1) the desired wheel rims would not actually fit on appellant‘s car; (2) the evidence as to appellant‘s interest in the wheel rims was contradictory; (3) one of the witnesses was surprised when she heard shots; (4) no one discussed how to dispose of the car; and (5) no one spoke of hurting the driver of the car. None of the evidence to which appellant points contradicts the facts that (1) appellant expressed a desire for new wheel rims; (2) appellant voluntarily turned his car around and followed the victim‘s car; (3) appellant voluntarily let Betancourt and Wilson-Millan out of the car so they could take the victim‘s car; (4) appellant knew that Betancourt and Wilson-Millan had guns; and (5) appellant waited for Betancourt and Wilson-Millan to return after they began firing at the driver of the 300ZX. Therefore, like in Rivera-Figueroa, the evidence here that appellant was only an accessory-after-the-fact is insufficient to warrant the requested instruction.
In addition, the requested instruction had the potential to confuse the jury. In Rivera-Figueroa, we determined that giving the accessory-after-the-fact instruction was likely to confuse the jury because it requires giving the jury an additional set of elements for an uncharged crime of which the defendant cannot be convicted. 149 F.3d at 7. That same risk of confusion exists here. Therefore, we cannot find that the district court abused its discretion in refusing appellant‘s requested instruction, much less that any such error was reversible error.
V
Finally, appellant argues that federal jurisdiction is lacking in this case. He alleges that Congress lacks authority to extend
VI
For the foregoing reasons, we affirm Otero-Mendez‘s convictions.