UNITED STATES of America, Plaintiff, Appellee, v. Luis Manuel PEÑA-LORA, Defendant, Appellant, United States of America, Plaintiff, Appellee, v. Jorge Lorenzo-Hernández, Defendant, Appellant, United States of America, Plaintiff, Appellee, v. Thomas Lorenzo-Pérez, Defendant, Appellant, United States of America, Plaintiff, Appellee, v. Lorenzo Peña-Morfe, Defendant, Appellant.
Nos. 99-1024, 99-1236, 99-1237, 99-1238
United States Court of Appeals, First Circuit
Decided Sept. 1, 2000
Heard May 10, 2000.
Finally, ample additional grounds preclude any “plain error” finding. See United States v. Diallo, 29 F.3d 23, 25 (1st Cir. 1994) (“[P]robable cause should be determined under a ‘totality-of-the-circumstances’ test ... [and] ‘is a fluid concept-turning on the assessment of probabilities in particular factual contexts.’ ... ‘The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction.’ “) (citations omitted).
The argument advanced by Bashorun on appeal rests entirely on the premise that the visual identifications of the passengers in the blue Caravan on two successive days was the critical evidence without which there could have been no probable cause for their arrests. As the district court aptly observed, however, and the record amply demonstrates, see supra Section I, Agent McGrath was in possession of a far broader web of inculpatory evidence having little to do with whether Bashorun (aka “Tony Johnson“) was the passenger in the blue Caravan on November 11 and 12. For instance, there was no dispute that the blue Caravan made highly suspicious movements on both days, traveling from 1019 Beacon Street to the Brookline post office, then making evasive maneuvers while followed by law enforcement officers. See United States v. Bashorun, No. 97-CR-10318, at 16-17 (D. Mass. Jan. 5, 1999) (noting “suspicious” movements of blue Caravan). Consequently, the very least that can be said is that a finding that the passenger in the blue Caravan on November 12 was “merely present” most certainly was not compelled. See, e.g., Meade, 110 F.3d at 198-99 (affirming finding of probable cause to arrest passenger in vehicle, occupied by attempted-robbery suspects, which made suspicious maneuvers; noting as well that “these facts reveal ‘substantially more than a momentary, random, or apparently innocent association’ “); United States v. Martinez-Molina, 64 F.3d 719, 729 (1st Cir. 1995) (affirming finding of probable cause to arrest defendants who were members of large group selling drugs in park).4
Accordingly, it simply cannot be seriously suggested that the probable-cause calculus indulged by the district court constituted plain error.
Affirmed.
Luz M. Ríos-Rosario, with whom Rafael F. Castro-Lang and Graham A. Castillo were on brief for appellant Peña-Morfe.
Graham A. Castillo, with whom Rafael F. Castro-Lang and Luz M. Ríos-Rosario were on brief for appellant Peña-Lora.
Michael J. Cruz for appellant Lorenzo-Hernández.
Michelle Morales, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief for appellee.
Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and STAHL, Circuit Judge.
CYR, Senior Circuit Judge.
Appellants challenge the convictions and sentences imposed for their respective roles in an armed hostage-taking which took place in the District of Puerto Rico in 1997. For the most part, but see infra Sections II.A.2.b & II.D, their appeals fail.
I
BACKGROUND
On August 17, 1997, appellant Peña-Morfe and a person called “Charlie” abducted Richardson Leo Mieses-Pimentel at gunpoint as he was leaving the Chris Café, a place of business owned by his
During the ensuing captivity, Acosta-Molina observed Peña-Morfe, Lorenzo-Pérez and Peña-Lora toting various weapons, including revolvers, while placing phone calls to Mieses-Pimentel‘s family. At one point, Lorenzo-Pérez threatened the newly recruited accomplice, Acosta-Molina, with an UZI submachine gun, which he referred to as “The Silencer” used “for the people who talk.” Throughout this period of captivity, the three defendants repeatedly assaulted Acosta-Molina with blows to the face and chest.
Three days later, at Acosta-Molina‘s insistence, the original captors relocated Mieses-Pimentel to a residence in Barrio Obrero, informing him that he was being taken to the place where he would be killed. Upon arrival at this third residence, Mieses-Pimentel was handcuffed, blindfolded, and chained to a bed in a rear bedroom.
At about the same time, an INS agent recognized Peña-Morfe‘s voice from an FBI tape of a ransom call to the victim‘s family. After arranging a meeting with Peña-Morfe, the INS agent placed him under arrest. Peña-Morfe admitted his participation in the abduction and led the FBI to the third residence, where Mieses-Pimentel was being held hostage.
An FBI SWAT team surrounded the residence, demanding that its occupants surrender. At this point in time-having been relieved of the blindfold and handcuffs by his captors-Mieses-Pimentel saw someone running toward the rear of the residence carrying firearms (including a machinegun). Then he was escorted to a different room at the rear of the residence, where he remained in the custody of appellant Lorenzo-Hernández, Raimary Lavandier (who was carrying a baby), and a male youth whose identity was not disclosed at trial.
Ultimately, Raimary Lavandier and the unidentified male youth abandoned Mieses-Pimentel, exited the residence, and submitted to arrest by the FBI. A subsequent search disclosed two revolvers and an UZI machinegun secreted in the backyard of the residence.
The four appellants, as well as Acosta-Molina and Lavandier, were indicted for conspiring to commit a hostage-taking for ransom (Count 1), see
A superseding indictment modified the firearm counts as follows: Count 4 charged Peña-Lora with using or carrying a firearm; Count 5 charged Lorenzo-Hernández and Lorenzo-Pérez with using or carrying firearms, “specifically a fully-automatic 9 millimeter UZI, serial number UP00514, as defined in
After Acosta-Molina and Mieses-Pimentel testified for the government at trial, guilty verdicts were returned against each defendant on every count charged in the superseding indictment. Following sentencing, Peña-Morfe, Lorenzo-Pérez, Lorenzo-Hernández, and Peña-Lora filed timely notices of appeal from their respective convictions and sentences.
II
DISCUSSION
A. Sufficiency of the Evidence
Appellants claim the government failed to present sufficient evidence to establish either the hostage-taking or firearms counts. See
1. Peña-Morfe, Lorenzo-Pérez and Peña-Lora
Peña-Morfe, Lorenzo-Pérez and Peña-Lora acknowledge that cooperating defendant Acosta-Molina presented graphic eyewitness testimony unambiguously identifying and implicating each of them in the hostage-taking. Moreover, Acosta-Molina unambiguously linked each to the use or carrying of the various firearms. Accordingly, these three defendants are limited to the familiar appellate refrain that their trial jury rationally could not have credited the testimony given by Acosta-Molina since he had every incentive to prevaricate in order to gain favorable treatment from the government because he is a confessed hostage-taker himself.
With rare exceptions, it is the jury-rather than an appellate court-which must assess witness credibility. See United States v. Cruz, 156 F.3d 22, 27 (1st Cir. 1998), cert. denied, 526 U.S. 1124, 119 S. Ct. 1781, 143 L. Ed. 2d 809 (1999). “[A] conviction based solely upon the uncorroborated testimony of an accomplice can be upheld, as long as the jury is properly instructed and the testimony is not incredi-
Additionally, Acosta-Molina was subjected to vigorous cross-examination and the government acknowledged in its closing argument that he was a confessed hostage-taker, thus emphasizing that the jury must carefully weigh his credibility. See id. (“[A]n accomplice is qualified to testify as long as any agreements he has made with the government are presented to the jury and the judge gave complete and correct instructions detailing the special care the jury should take in assessing the testimony.“) (internal quotation marks and citations omitted).3
Moreover, the government also adduced independent evidence corroborating the Acosta-Molina testimony. For instance, an INS agent recognized Peña-Morfe‘s voice from the tapes made of the ransom calls, which were played for the jury at trial. See United States v. Flores-Rivera, 56 F.3d 319, 324 (1st Cir. 1995). The agent also took Peña-Morfe‘s post-arrest confession, after which Peña-Morfe led the FBI to the residence where Mieses-Pimentel was being held. On another tape, an abductor was referred to as “Luis“-the first name of defendant Peña-Lora. Similarly, Mieses-Pimentel testified that he overheard one of his captors become extremely upset when a cohort inadvertently referred to him as “Luis,” rather than by his alias.
Accordingly, the sufficiency challenges relating to the hostage-taking and firearms counts against these three appellants fail.
2. Lorenzo-Hernández
The sufficiency challenges asserted by Lorenzo-Hernández are more problematic for the government.4 Although he concedes that the government established that he was in the house on the morning the FBI rescued Mieses-Pimentel, he maintains that his actions proved nothing more than “mere presence” at the scene of the crime, rather than knowing participation in the abduction. See, e.g., United States v. de la Cruz-Paulino, 61 F.3d 986, 1001 (1st Cir. 1995) (noting that “mere presence” at crime scene normally is insufficient to establish knowing participation in offense). Accordingly, Lorenzo-Hernández contends that the jury rationally could not have inferred from the available evidence that he had the requisite specific intent to commit either the hostage-taking or the firearm offenses. See id.
A close review of the entire trial record discloses: (a) ample evidence that Lorenzo-Hernández intended to participate in the hostage-taking; and (b) insufficient evidence for the firearm conviction under Count 5.
a. The Evidence
The entire case against Lorenzo-Hernández rests on Mieses-Pimentel‘s eyewitness testimony concerning the events on the final morning of his captivity, after the FBI had surrounded the third residence at which he had been held hostage. Accordingly, we scrutinize the trial testimony provided by Mieses-Pimentel.
On the morning the FBI surrounded the house and called for its occupants to surrender, one of these two males (we shall refer to him as “Male A“) hurriedly entered the rear bedroom, told Mieses-Pimentel to be silent, removed his blindfold and handcuffs, then relocated him to another room at the rear of the house.
At trial, Mieses-Pimentel perfunctorily described Male A as “a younger guy with a dark complexion.” Government counsel then asked Mieses-Pimentel: “What else did [you] see?“-presumably, when Mieses-Pimentel reached the other room at the rear of the residence. To which Mieses-Pimentel responded: “the other person, he was a young guy” (Male B?), the female, and the baby. Government counsel then asked Mieses-Pimentel whether he could identify “any of these people in the courtroom today.” Whereupon Mieses-Pimentel pointed out Raimary Lavandier and “the person sitting next to her,” whom government counsel identified as Lorenzo-Hernández.
The ensuing testimony from Mieses-Pimentel exhibits a glaring inconsistency, however. When asked what “the other individual that you have identified sitting next to [Raimary Lavandier]“-viz., in the courtroom, i.e., Lorenzo-Hernández-had done once Mieses-Pimentel had been relieved of the blindfold and handcuffs, Mieses-Pimentel replied: “He was the one that took me to the back room and told me to sit down and to act like I was one of them.”
At first blush, the quoted testimony suggests that Lorenzo-Hernández was Male A, identified earlier by Mieses-Pimentel, see supra, as the only individual who had entered the rear bedroom after the FBI arrived. However, when government counsel asked Mieses-Pimentel whether the individual who had removed the blindfold was present in the courtroom, Mieses-Pimentel responded: “[n]o,” notwithstanding the fact that he had testified earlier that a single individual-i.e., Male A-had removed both his blindfold and the handcuffs, then escorted him from the rear bedroom to a different room in the rear of the residence.
Rather than resolving this testimonial discrepancy, however, government counsel asked Mieses-Pimentel to describe the scene he encountered upon arriving in the other room at the rear of the residence. Mieses-Pimentel responded that the four persons who were in the room with him were “real nervous,” and the “girl” (viz., Lavandier) started to cry. “The other person that is not here today ... got up and ran outside the room,” followed shortly thereafter by the woman carrying the baby. (Emphasis added.) “The other person who was sitting next to her [viz., in the rear room, i.e., Lorenzo-Hernández] ask[ed] [Mieses-Pimentel] not to move around too much in case the FBI came inside they would think he was looking for a gun and shoot us right there.” Lorenzo-Hernández then “got up and ran outside and ... left [Mieses-Pimentel] sitting there by [himself].”
When government counsel asked whether Mieses-Pimentel had seen any weapons “[a]fter the blindfold was removed[,]” he answered: “Yes, before they took me in the room [i.e., the rear room to which he was relocated] I saw the other person. He was running towards the back of the house and carrying some weapons in his hands.” (Emphasis added.) Mieses-Pimentel identified these weapons as “a small machine gun” and the two firearms used to abduct him from the Chris Café.
b. Count 5: Carrying Firearms
In relation to the Count 5 conviction for carrying firearms, see
Notwithstanding the highly deferential standard of review, the conviction against Lorenzo-Hernández under Count 5 must be set aside. The case against Lorenzo-Hernández under Count 5 depended entirely upon the identification Mieses-Pimentel made of the person he saw carrying weapons shortly after law enforcement officers arrived on the premises. Contrary to the government‘s contention, Mieses-Pimentel did not identify Lorenzo-Hernández as the person whom he saw carrying firearms on that occasion.6
We cannot reliably determine, within the context of the Mieses-Pimentel testimony, whether the term “the other person” adverted to Lorenzo-Hernández or to the second unidentified male youth who was in the house on the morning in question, but not in the courtroom during the trial testimony given by Mieses-Pimentel.7 Since Mieses-Pimentel, in his immediately preceding testimony, twice used the phrase “other person,” plainly referring to a different individual on each occasion, the following question-critical to the government‘s case-went unanswered: the person “[o]ther” than whom? We explain.
First, Mieses-Pimentel testified that “[t]he other person who is not here [in the courtroom] today“-i.e., plainly someone other than Lorenzo-Hernández-“had been the first to run out of the rear room and surrender to the FBI. ...” Second, he stated that “the other person who was sitting next to [the female and baby] ... [who] ask[ed] him not to move around too much” was the last to leave the room, leaving Mieses-Pimentel by himself. Therefore, the latter person had to have been Lorenzo-Hernández, because only he could have been present both at the time of the FBI raid and during the trial testimony given by Mieses-Pimentel.
Consequently, we can discern no rational means by which the trial jury could have determined, beyond a reasonable doubt, whether the “other person,” whom Mieses-Pimentel testified to having seen carrying the firearms toward the rear of the residence where Mieses-Pimentel was being held hostage, was Lorenzo-Hernández or the unidentified male minor.
The latent inconsistency in the Mieses-Pimentel testimony-as to whether one or two persons removed the blindfold and escorted him from the rear bedroom-undermines the jury verdict on Count 5 as well. If (as Mieses-Pimentel initially testified) Male A came into the rear bedroom, told Mieses-Pimentel to be quiet, took off the blindfold and handcuffs, and escorted Mieses-Pimentel to another room in the rear of the house, and if (as Mieses-Pimentel later testified) Lorenzo-Hernández was the person who escorted him from the rear bedroom to the other room in the rear of the residence, then it would appear highly implausible, if not physically impossible, that Lorenzo-Hernández was also the gun carrier described in the trial testimony given by Mieses-Pimentel. This is because Mieses-Pimentel saw the gun carrier just after his blindfold had been removed, but before Mieses-Pimentel was escorted to the other room in the rear of the residence.
Accordingly, the evidence strongly suggests that Male B-rather than Lorenzo-Hernández-was the “other person” whom Mieses-Pimentel observed carrying the weapons while Lorenzo-Hernández simultaneously relocated Mieses-Pimentel to another room in the rear of the residence. Moreover, the government invited these testimonial inconsistencies from Mieses-Pimentel, and absent any follow-up clarification by government counsel the jury plainly lacked a rational foundation for determining which version of these critical events was to be credited. See United States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998) (“If the evidence viewed in the light most favorable to the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, [we] must reverse the conviction. This is so because ... where an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence viewed in the light most favorable to the prosecution, a rea-
Although the trial participants assumed throughout that Mieses-Pimentel positively identified Lorenzo-Hernández as the gun-toter, the record is totally “devoid of evidence pointing to [Lorenzo-Hernández‘s] guilt [on Count 5],” and the government‘s ” evidence on [that] key element was so tenuous that a conviction would be shocking.” Todosijevic, 161 F.3d at 482 (citation omitted).8 Nor can these deficiencies in the government‘s “linchpin” evidence be considered inconsequential, since the
c. The Hostage-taking Counts
The sufficiency challenge under the hostage-taking counts poses a more formidable hurdle for Lorenzo-Hernández. Although there was insufficient evidence that he toted a weapon, the record clearly reflects that the jury acted well within its prerogative in finding that Lorenzo-Hernández was not “merely present” at the hostage-scene, but knowingly participated in the related conspiracy.
Mieses-Pimentel was held hostage for three days at the third residence, where he remained blindfolded and chained, which meant that two males had to bring his meals and respond to his “scream[s]” to use the bathroom.9 Yet more importantly, Mieses-Pimentel testified that the same two males attended him throughout his captivity at the third residence. Furthermore, he not only identified Lorenzo-Hernández as one of the two males remaining at the third residence on the final morning, but gave no indication whatsoever that any other male resided continually in the third residence.
The circumstantial evidence thus strongly supported a reasonable inference that Lorenzo-Hernández was not only a long-term resident, but one of the two males residing in the house throughout Mieses-Pimentel‘s captivity, and that he participated in the hostage-taking, at the very least as the victim‘s guard and attendant. See, e.g., United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993) (rejecting
Therefore, in light of all the record evidence, the verdicts against Lorenzo-Hernández on Counts 1 and 2 must be affirmed, while the conviction under Count 5 must be vacated.
B. Failure to Employ Special Verdict Form for Count 5
Lorenzo-Pérez contends that the district court erred in failing to provide a special verdict form in relation to Count 5-charging that he used and carried firearms (viz., a 9 mm UZI, Ruger .357 revolver, and Smith & Wesson .357 revolver) during the kidnaping-which would have required the jury to indicate precisely which of the three weapons he used or carried.10 The district court later sentenced Lorenzo-Pérez to a consecutive thirty-year prison term under Count 5, on the understanding that the jury must necessarily have been satisfied that he used or carried the UZI (i.e., a “machinegun“), whereas his use of the two revolvers (i.e., mere “firearm[s]“) would have resulted in only a five-year prison-term enhancement. See
As it was never raised below, we review the present claim for plain error, employing the four-step inquiry prescribed in Olano. See United States v. Hernandez-Albino, 177 F.3d 33, 37-38 (1st Cir. 1999) (citing Olano, 507 U.S. 725, 732-33 (1993)):
First, an error must have been committed. Second, the error must be plain or obvious. Third, the plain error must “affect[] substantial rights,” which generally means that it must have been prejudicial. Finally, because
Rule 52(b) is discretionary, we must be convinced that the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Id. (citations omitted).
Lorenzo-Pérez predicates the present claim on United States v. Melvin, 27 F.3d 710 (1st Cir. 1994), where the defendants were jointly charged under section 924(c)(1) with using or carrying six weapons, some of which were “firearms,” whereas others were “machineguns” implicating the thirty-year prison term. The defendants unsuccessfully sought a special verdict form which would have required the jury to specify which of the weapons the individual defendants used or carried. Instead, the district court instructed the jury that though the firearm count listed the six weapons conjunctively, rather than disjunctively, thereby apparently permitting the jury to convict only if it were to find that the defendants had used all six weapons, the jury should read the “and” as “or,” and could convict each defendant if it were to find that each had used or carried “any one firearm” listed. See id. at 713-14. The jury returned a general verdict finding defendants guilty under Count 5.
At sentencing, the government urged the district court to impose the enhanced thirty-year prison term. Acknowledging that it could not divine from the general verdict form whether the jury had found that any defendant had used a “machinegun,” the district court declined. We affirmed. See id. at 715 (“([T]he court‘s instruction explicitly permitted the jury [to] suspend[] their deliberations on the use of firearms once they concluded
Furthermore, unlike the district court in Melvin, the district court below did not instruct the jury to read “and” as “or.” Instead, the indictment in the present case emphatically phrased Count 5 in the conjunctive (i.e., “using and carrying firearms, specifically, a 9 mm UZI, ... a Ruger .357 revolver, ... and a Smith & Wesson .357 revolver“) (emphasis added). Accordingly, the district court correctly instructed the jury that there are two elements in
Lorenzo-Pérez nevertheless insists that the jury charge given below necessarily overrode the explicit conjunctive phrasing utilized in Count 5. We do not agree. Instead, the challenged instruction clearly informed the jury that it could not convict any defendant under Count 5 if it were to find that the defendant neither used nor carried any weapon. As the instruction accurately defined the applicable law, the present claim of error fails.
Lorenzo-Pérez suggests that other language in Melvin mandates special verdict forms in these cases; thus, the omission must be considered “obvious.” On the contrary, Melvin simply rejected the government‘s contention that our decisions severely circumscribe recourse to special verdict forms in criminal cases. Moreover, we noted that the district courts are vested with discretion to employ special verdict forms in these cases-i.e., where a
Furthermore, the evidence overwhelmingly demonstrated that Lorenzo-Pérez used or carried the UZI. For instance, Acosta-Molina testified that Lorenzo-Pérez threatened him with the UZI, calling it “The Silencer” for “people who talk.” The UZI was recovered after Mieses-Pimentel had been rescued. Since the jury-even assuming it had been provided with a special verdict form-undoubtedly would have found that Lorenzo-Pérez used or carried the UZI during the Mieses-Pimentel hostage-taking, any possible error in failing to provide a special verdict form on Count 5 would not have “seriously affect[ed] the fairness, integrity or public reputation of [these] judicial proceedings.” Hernandez-Albino, 177 F.3d at 38 (citations omitted); see, e.g., United States v. Edgar, 82 F.3d 499, 510 n. 15 (1st Cir. 1996) (finding no “plain error,” in view of “strong evidence of guilt,” even though an element of the crime was not made known to the jury).
Next, Lorenzo-Hernández raises the distinct, though related, claim that the district court erred in failing to define the term “machinegun,” as used in
In all events, Melvin explicitly left open the distinct question now raised by Lorenzo-Pérez, as to whether “the 30-year sentence could not be imposed because the jury had not been asked to decide whether those firearms were, in fact, automatic weapons.” Melvin, 27 F.3d at 715, n. 9. Thus, it cannot seriously be contended that it necessarily would have been futile for Lorenzo-Pérez to assert the same claim at trial.
Moreover, even if we were to assume, arguendo, that the failure to instruct the jury on the meaning of the term “machinegun” overcame the first two Olano criteria, the Castillo claim advanced by Lorenzo-Pérez nevertheless falters on the fourth Olano criterion. Absent a “miscarriage of justice,” criminal convictions are not reversed automatically even though the jury was never instructed on an essential element of the offense. See Randazzo, 80 F.3d at 631 (finding no “plain error,” even though intervening Supreme Court decision determined that “materiality” is element of offense to be determined by jury, normally an omission constituting “structural error” necessitating reversal of conviction).
The government adduced uncontradicted evidence that Lorenzo-Pérez threatened Acosta-Molina with the UZI. Moreover, neither Lorenzo-Pérez nor Lorenzo-Hernández explains why an UZI, as a specie of firearm, does not readily meet the statutory definition of “machinegun.” Cf. infra Section II.C (treating distinct argument that this UZI was inoperable; hence did not qualify as “machinegun“). For the foregoing reasons, Lorenzo-Pérez cannot demonstrate plain error.
C. Inoperable UZI as “Machinegun”
Lorenzo-Pérez claims that the UZI did not qualify as a “machinegun” under section 924(c), as a matter of law, since a weapons expert testified that it had been damaged and/or clogged at some time in the past, and could not be fired until repaired. We disagree.11
While appellant cites no authority for the present proposition, numerous decisions hold otherwise. See, e.g., United States v. Adams, 137 F.3d 1298, 1299-1300 (11th Cir. 1998); United States v. Hunter, 101 F.3d 82, 85 (9th Cir. 1996); United States v. Maddix, 96 F.3d 311, 316 (8th Cir. 1996); United States v. Yannott, 42 F.3d 999, 1006 (6th Cir. 1994); United States v. Willis, 992 F.2d 489, 491 n. 2 (4th Cir. 1993); United States v. Ruiz, 986 F.2d 905, 910 (5th Cir. 1993); United States v. Buggs, 904 F.2d 1070, 1075 (7th Cir. 1990). Nor have we found a reported decision to the contrary.
Although we have yet to decide the issue, but cf. United States v. Veilleux, 40 F.3d 9, 11 n. 1 (1st Cir. 1994) (questioning, in dictum, ill-advised government concession that
D. Consecutive Sentences
Lorenzo-Pérez next contends that the district court committed reversible error in directing that the thirty-year prison term imposed under Count 5 run consecutively to the five-year term imposed under Count 3, see supra note 2, since both counts alleged
The government acknowledges that there is no authority for imposing a consecutive thirty-year term. Moreover, though we have never addressed the issue, every circuit which has ruled to date agrees with the position urged by Lorenzo-Pérez. See, e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1085 (5th Cir. 1993); United States v. Martinez, 7 F.3d 146, 147-48 (9th Cir. 1993); United States v. Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992); United States v. Freisinger, 937 F.2d 383, 391-92 (8th Cir. 1991); United States v. Luskin, 926 F.2d 372, 376-77 (4th Cir. 1991); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir. 1990).
Congress enacted
Accordingly, we hold that the consecutive sentences imposed upon Lorenzo-Pérez for the two firearms convictions, involving but one hostage-taking, are to run concurrently.
E. The Severance Motions
Finally, all four appellants claim that it was error to deny their motions for severance, which were based on their contention that trial counsel for their co-defendant, Raimary Lavandier, unexpectedly interposed a totally antagonistic defense in mid-trial, thus essentially assuming the role of a “second prosecutor.” Appellants identify two specific claims of prejudice: (1) that in opening and closing arguments, as well as in cross-examining Acosta-Molina, Lavandier‘s counsel focused upon and vouched for Acosta-Molina‘s testimony that Peña-Morfe, Lorenzo-Pérez, and Peña-Lora were the hostage-takers who assaulted him violently, brandished various firearms, and repeatedly threatened his life and that of Mieses-Pimentel; and (2) that Lavandier‘s trial counsel ultimately utilized Acosta-Molina‘s testimony in forging a defense of duress, i.e., that the violent behavior of these appellants intimidated her into committing the offenses charged.
Appellants argue that such an antagonistic defense constituted a per se ground for severance, since it was inevitable that
We review severance rulings for any manifest abuse of discretion which deprived appellant of a fair trial and resulted in a miscarriage of justice. See United States v. Magana, 127 F.3d 1, 7 (1st Cir. 1997). As we have explained, however:
“[P]ersons who are indicted together should be tried together[,] since [t]his practice helps both to prevent inconsistent verdicts and to conserve resources (judicial and prosecutorial). Thus, when multiple defendants are named in a single indictment, a defendant who seeks a separate trial can ordinarily succeed in obtaining one only by making a strong showing of evident prejudice. The hurdle is intentionally high....”
United States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995) (emphasis added; citation omitted). Moreover, severance is especially disfavored in conspiracy cases. See United States v. DiMarzo, 80 F.3d 656, 659 (1st Cir. 1996).
In order to gain a severance based on antagonistic defenses, “the antagonism ... must be such that if the jury believes one defense, it is compelled to convict the other defendant.” United States v. Woods, 210 F.3d 70, 79 (1st Cir. 2000) (emphasis added; citation omitted). Thus, for example, mere fingerpointing among codefendants-i.e., the familiar “he did it, not I” defense-normally is not a sufficient ground for severance. See, e.g., Zafiro v. United States, 506 U.S. 534, 538-39 (1993) (declining to adopt “bright line rule” that conflicting defenses inevitably require severance); United States v. McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992) (“The fact that two defendants assert antagonistic defenses does not, per se, require severance, even if defendants are hostile or attempt to cast blame on each other.“).
The present record discloses nothing remotely approaching a manifest abuse of discretion by the district court. First, in her opening statement Raimary Lavandier‘s counsel expressly flagged, for all to hear, the substance of her anticipated defense,13 yet appellants’ counsel interposed no objection, let alone a motion to sever. See Woods, 210 F.3d at 78-79 (noting that defendant waives right to belated severance if previously placed on notice of nature of codefendant‘s anticipated entrapment defense); see also United States v. Gio, 7 F.3d 1279, 1284-85 (7th Cir. 1993);
Second, even if the severance claim were preserved, the record refutes the principal complaint advanced by appellants: that Lavandier‘s counsel somehow elicited ad-
Thus, the cross-examination by Lavandier‘s counsel, as the district court observed, was “basically a reaffirmation of the [government] witness‘s testimony [on direct],” neither adding to, nor subtracting from, the government‘s case. See United States v. Arias-Villanueva, 998 F.2d 1491, 1506-07 (9th Cir. 1993) (finding no abuse of discretion in denial of severance motion where evidence supporting defendant‘s duress defense would have been admissible against her codefendant at separate trial); see also United States v. Rose, 104 F.3d 1408, 1416 (1st Cir. 1997) (“[T]he level of antagonism in defenses is measured by the evidence actually introduced at trial; argument by counsel is not evidence.“).14
Finally, the Lavandier defense was not irreconcilable with appellants’ defenses. As the incompatibility of defenses is measured in degree, appellants must establish that any incompatibility was very substantial. “To obtain severance on the grounds of conflicting defenses, a defendant has to demonstrate that the defenses are so irreconcilable as to involve funda-
mental disagreement over core and basic facts.” United States v. Paradis, 802 F.2d 553, 561 (1st Cir. 1986) (emphasis added); United States v. Luciano Pacheco, 794 F.2d 7, 9 (1st Cir. 1986) (“[S]ince the need to believe one defendant over another will always occur in the face of antagonistic or fingerpointing defenses, this requisite credibility determination cannot be, and is not, the decisive factor. Rather, the need for severance turns on the degree of conflict, and the extent to which the antagonism goes beyond mere fingerpointing into the realm of fundamental disagreement over core and basic facts.“) (emphasis added).
Foremost, appellants incorrectly intimate that a codefendant‘s defense of duress necessitates a severance in every instance. See, e.g., United States v. Al-Muqsit, 191 F.3d 928, 941 (8th Cir. 1999) (finding that defendant had not shown that “legally cognizable prejudice” resulted from his interposition of duress defense); Arias-Villanueva, 998 F.2d at 1507; United States v. Villegas, 899 F.2d 1324, 1346 (2d Cir. 1990) (“Nor is it sufficient [for severance] that one defendant contends that another coerced him to engage in the unlawful conduct if the jury could believe both that contention and the codefendant‘s defense [of nonparticipation].“) (citation omitted); United States v. Almeida-Biffi, 825 F.2d 830, 833 (5th Cir. 1987) (finding that “jury‘s acceptance of [defendant‘s] duress defense did not require the jury to disbelieve her husband‘s defense [of nonparticipation]“).
In the cases cited by appellants, the defendants had intended to testify that they knowingly participated in the offenses, but not until after their codefendants had coerced or intimidated them.15
By contrast, while cross-examining Acosta-Molina and during closing argument, defense counsel never conceded that Lavandier had participated in the hostage-taking, let alone that she had been coerced to do so by any appellant. Instead, she focused her argument on a single defense; namely, that Lavandier was “merely present” at the third residence (“[N]or did she participate in any significant way in this offense, other than being present and doing what she normally did ... in that house.“)
In recounting the government‘s evidence that the hostage-takers had intimidated Acosta-Molina, defense counsel did not suggest that the jury necessarily should believe Acosta-Molina‘s identification of appellants as the hostage-takers. Rather, in the main she suggested that Acosta-Molina‘s description of the hostage-takers’ violent behavior (whatever their identity) was totally at odds with Lavandier‘s passivity and benign presence at the scene of the crime (“[S]he didn‘t participate with these kinds of [violent] people.“). Defense counsel likewise emphasized that Acosta-Molina had to muster all his courage in order to request that his cohorts remove Mieses-Pimentel from his house, and suggested that it was implausible that a small female in Lavandier‘s position could have withstood such violent hostage-takers when they relocated the victim to her residence. Finally, defense counsel noted that Lavandier, unlike the other hostage-takers, neither attended nor instructed Mieses-Pimentel. (“[She] never came into his room, [she] never held a gun to his head, [she] never engaged in any kind of intimidation that he was receiving from his captors.“)
On the other hand, the primary defense advanced by appellants was that they never participated in the crime charged; i.e., that Acosta-Molina falsely identified and implicated them in the hostage-taking. Thus, the “mere presence” defense advanced by Raimary Lavandier did not depend upon undermining the defenses presented by appellants. Lavandier neither testified, nor pointed to any evidence, for example, that Peña-Morfe, Lorenzo-Pérez or Peña-Lora threatened her. Cf. supra note 15. Instead, she argued that regardless whether Acosta-Molina and the other government witnesses were telling the truth,16 the jury should not convict her, since her conduct was inconsistent with the profile of these defendants. Accordingly, denial of the belated motions for severance did not constitute a manifest abuse of discretion.
The conviction and sentence of appellant Lorenzo-Hernández under Count 5 is hereby vacated, and the case is remanded for resentencing on the re-
SO ORDERED.
Raymond P. BOIVIN, Plaintiff, Appellee, v. Lt. Donald BLACK, Defendant, Appellant.
No. 99-2085
United States Court of Appeals, First Circuit
Decided Sept. 5, 2000
Heard Aug. 2, 2000.