United States v. Amador-Huggins , 799 F.3d 124 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2520
UNITED STATES OF AMERICA,
Appellee,
v.
ALEXIS AMADOR-HUGGINS, a/k/a/ Negro,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Arza Feldman and Feldman and Feldman were on brief, for
appellant.
Susan Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on
brief, for appellee.
August 26, 2015
KAYATTA, Circuit Judge. Alexis Amador-Huggins was
convicted of attempted carjacking resulting in death, 18 U.S.C.
§ 2119(3), aiding and abetting the same, id. § 2, and use of a
firearm resulting in death, id. § 924(j). The district court
sentenced him to life imprisonment and also imposed restitution in
the amount of $13,332.86. He now appeals his conviction and the
order of restitution. Finding no reversible error, we affirm.
I. Background
Amador-Huggins's appeal trains on a number of the
district court's evidentiary rulings. We therefore recite the
facts in a "balanced" manner in which we "objectively view the
evidence of record." United States v. Burgos-Montes, 786 F.3d 92,
99 (1st Cir. 2015) (internal quotation marks omitted).
In June 2012, seventeen-year-old Stefano Steenbakkers
Betancourt departed from his sister's birthday party driving his
grandmother's white Lexus. His mother left with his sister and
other party guests a few minutes later. As she was driving,
Betancourt's mother received a call from Betancourt, who said that
another vehicle was hitting1 him from behind and that he was scared
1 At trial, Betancourt's mother used both the word "bumping"
and the word "hitting" to describe what the Jeep was doing to the
Lexus. Amador-Huggins presented testimony that when she first
spoke to the police, the Spanish word she used to relay what her
son had told her in English was "choca[n]do," which defense counsel
suggested should be translated as "crashing." Morales, who was in
the Jeep and observed the events first-hand, used the word "bump"
in his testimony.
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and didn't know what to do. His mother told him to read her the
license plate number, which he did, and she repeated it over and
over to the passengers in her vehicle. The phone then went dead.
A bit further on, Betancourt's mother found the Lexus on the side
of the road with her son inside, shot in the head. He died three
days later.
Law enforcement officers arrested Amador-Huggins and
John Anthony Morales Lopez ("Morales"), charging them with
attempted carjacking, 18 U.S.C. § 2119(3), use of a firearm, id.§ 924(c)(1)(A)(iii), use of a firearm resulting in death, id.
§ 924(j), and with aiding and abetting each other in furtherance
of those crimes, id. § 2.
At Amador-Huggins's trial, the key testimony came from
Morales, who pled guilty pursuant to a plea agreement, and who
admitted to shooting Betancourt as part of an attempted carjacking.
Morales testified to the following:
Amador-Huggins introduced the idea of the carjacking
while he and Morales were driving together in a white Jeep, saying
that friends of his would pay the two of them $1,500 to carjack an
SUV. They drove to a housing project in Catano and got a gun from
a man who introduced himself as "El Gordo." They left after about
20 minutes and drove toward Dorado, with Amador-Huggins driving
and Morales in the passenger seat. They saw the white Lexus driven
by Betancourt and decided to steal it.
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Amador-Huggins then explained the plan: he would give
the Lexus "a little bit of a bump" and the driver would pull over,
thinking it was an accident. At that point, they would pull a gun
on the driver. Amador-Huggins bumped the Lexus once; when
Betancourt didn't stop, Amador-Huggins bumped it again, this time
a little harder. However, Amador-Huggins told Morales he didn't
want to hit the Lexus too hard because he was driving his mother's
car and didn't want to damage it. Morales also estimated that the
traffic was moving at only about 10 to 15 miles per hour.
When Betancourt didn't pull over after a third bump,
Morales and Amador-Huggins got "ticked off." Amador-Huggins gave
Morales the gun and told Morales that he was going to cut off the
Lexus, at which point Morales should do "whatever it took" to get
the Lexus. The Jeep pulled in front of the Lexus and Morales got
out and shot into the vehicle five or six times. Morales got back
into the car, and Amador-Huggins calmly said, "Man. I think you
killed him." Amador-Huggins was smiling as he said it.
The two drove back to the housing project in Catano.
They found El Gordo with some associates in front of the basketball
court. After Amador-Huggins explained what had happened--that
they didn't manage to steal a car but they did manage to kill
someone--the group "congratulat[ed] [Morales] for what happened"
as they hung out, "celebrating."
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In addition to the foregoing testimony by Morales, the
government also presented: evidence that a white Jeep Compass
registered to Amador-Huggins but used by and paid for by his mother
bore the exact plate number read by the victim to his mother;
testimony by Amador-Huggins's mother that her son had borrowed the
Jeep the night of the shooting; highway toll booths records showing
the location of the Jeep at various times the night of the
attempted carjacking; testimony by an eyewitness to the shooting
describing an individual in the Jeep that matched Morales's
description; and testimony by a witness who knew them both and saw
them together in the Jeep the night of the attempted carjacking.
Presumably because of the overwhelming evidence that Amador-
Huggins was driving the Jeep that contacted and cut off the
victim's car, the defense focused on undermining Morales's
testimony that Amador-Huggins had deliberately bumped into the
Lexus and that he was a knowing participant in the carjacking.
II. Analysis
A. Prior Bad Acts
Amador-Huggins first challenges two comments by Morales
that suggested that Amador-Huggins used marijuana and Percocet in
the celebration with El Gordo after the attempted carjacking. He
argues that those statements are evidence of "prior bad acts" that
are inadmissible under Federal Rule of Evidence 404(b). The
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parties agree that our review is for abuse of discretion. See
United States v. Appolon, 715 F.3d 362, 371 (1st Cir. 2013).
The events that led to the challenged comments are as
follows: The government sought to introduce Morales's testimony
that he and Amador-Huggins had consumed Percocet when they first
arrived at El Gordo's apartment to get the gun before the attempted
carjacking. The defense objected and, after a sidebar, the
government agreed not to ask Morales about his and Amador-Huggins's
drug use unless the defendant inquired into it on cross. Morales's
testimony continued. When the government asked him to describe
the return to the housing project where they celebrated the murder
after the attempted carjacking, the following exchange occurred:
Q. And what happened when you and Amador
Huggins saw Gordo and four of his friends?
A. Well, at that point he gave him the gun
back. We bought illegal substances there,
marijuana, Perco[cet].
[Defense Counsel]: Same objection, Judge.
[Prosecution]:
Q. You bought illegal substances?2
A. Yes, I did.
The defense made no further objection at that time, and
the judge did not make a ruling. A few sentences later, as Morales
2 The government argues in its brief that the "you" in the
transcript was emphasized, meaning the sentence should be read as
an attempt to limit any damaging effects from the "we."
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was still describing the celebration, the following exchange
occurred:
Q. And then what happened?
A. At that moment, he with stayed there [sic],
and we bought the pills. I had my marijuana,
and my Perco[cet], and we bought some beer.
And we explained what happened there, and we
just continued like that.
The defense did not object to the second statement.
Rule 404(b) provides that "[e]vidence of a crime, wrong,
or other act is not admissible to prove a person's character in
order to show that on a particular occasion the person acted in
accordance with the character." Fed. R. Evid. 404(b)(1). However,
the Rule also provides that such evidence may be admissible for
other purposes, such as to prove motive, opportunity, or intent.
Fed. R. Evid. 404(b)(2). When a defendant challenges the
admissibility of prior bad acts evidence, this circuit usually
asks whether the evidence has "'special relevance,'" meaning it is
"relevant for any purpose apart from showing propensity to commit
a crime."3 United States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013)
(quoting United States v. Rodríguez-Berríos, 573 F.3d 55, 64 (1st
Cir. 2009)), cert. denied, 135 S. Ct. 168 (2014).
Even if it has special relevance, evidence may still be
3
excluded if the court concludes under Federal Rule of Evidence 403
that its probative value is substantially outweighed by the danger
of unfair prejudice. United States v. Habibi, 783 F.3d 1, 4 (1st
Cir. 2015). Amador-Huggins makes no Rule 403 argument, however.
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Here, we need not engage in this inquiry because it is
immediately clear that any possible error from Morales's two stray
uses of the word "we" was harmless, meaning it was "highly probable
that the error did not contribute to the verdict." United States
v. Varoudakis, 233 F.3d 113, 125-26 (1st Cir. 2000) (internal
quotation marks omitted). In the context of this case, it could
hardly have made any difference to the jury whether Amador-
Huggins's celebration of the death of a young man was accompanied
by Percocet rather than, for example, milk. In short, any material
prejudice flowed from the part of the story to which there was no
objection, with the Percocet serving at most like a small match
added to a raging conflagration. See United States v. Williams,
985 F.2d 634, 638 (1st Cir. 1993) (erroneous admission of Rule
404(b) evidence was harmless because, in light of the properly
admitted evidence, it was unlikely that the 404(b) evidence had
prejudicial impact). Any error, if it occurred, was therefore
harmless.
B. Expert Testimony on Bumpers
Amador-Huggins next challenges the district court's
denial of his mid-trial request for a continuance to call an expert
on bumper damage in response to what he characterized as expert
testimony of an FBI agent called by the government. The district
court's decision to admit or exclude expert testimony is reviewed
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for "manifest abuse of discretion." United States v. Montas, 41
F.3d 775, 783 (1st Cir. 1994).
At trial, Amador-Huggins tried to discredit Morales by
arguing that, as Amador-Huggins put it in his brief, Morales's
"claims that the Jeep struck the Lexus three times, at 10 to 15
miles per hour, could not possibly be true because, had that
occurred, the bumper would have been badly dented," when in fact,
the bumper of the Jeep was only scratched. To counter this
argument, the government called an FBI agent, Ruben Marchand, to
testify about the damage to the Jeep. When the government asked
Marchand what material bumpers are typically made of, the defense
objected on the grounds that Marchand was not qualified as an
expert, and that allowing the "unannounced expert testimony" would
be "trial by ambush." The district court overruled the objection,
and Marchand testified that late-model vehicles generally have
plastic bumpers that are "made to bounce back once [they have] an
impact." He also testified, based on his own experience
investigating carjackings that used the bumping technique, that it
was not unusual for bumpers to sustain little damage in carjackings
because the carjackers don't want to damage the car they are
stealing.
After Marchand had testified, defense counsel moved for
a continuance and for the court to appoint an expert in bumpers to
counter the "expert" testimony of Marchand. See Fed. R. Evid. 702
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(allowing for testimony by expert witnesses). The district court
denied this motion, ruling that Marchand had offered lay testimony
based on his on-the-job experience investigating bumpers. Amador-
Huggins now argues that the district court abused its discretion
in denying him a bumper expert to counter Marchand's "expert"
testimony.
As an initial matter, we are inclined to agree that the
district court did not abuse its discretion in finding that
Marchand presented only lay testimony. Marchand did not present
himself as an expert, and on cross-examination made it clear that
he had no knowledge of bumper resistance or the bumpers' technical
specifications. Rather, his knowledge of bumpers was "rationally
based on the witness's perception," Fed. R. Evid. 701(a), acquired
in the course of his work as an FBI agent. See United States v.
Habibi, 783 F.3d 1, 4-6 (1st Cir. 2015). Marchand was not offering
a research-backed opinion that under no conditions would a bumper
be damaged after being hit at 10-15 miles per hour by a vehicle
moving in the same direction. He was simply rebutting the argument
to the contrary--that Morales's testimony "could not possibly be
true"--because, in his experience, he had seen bumpers that had
been hit under circumstances similar to those Morales described
that were not "badly damaged." And if Marchand's testimony was
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not expert testimony under Rule 702, Amador-Huggins's argument
fails.4
Moreover, if the purpose of the expert testimony was to
convince the jury that the events described in Morales's testimony
were, according to the laws of physics and the crash-resistance of
Jeep Compass bumpers, impossible, the need for such testimony would
have been obvious even before trial began. Indeed, in his opening
statement to the jury, defense counsel told the jury they would
hear testimony that the Jeep was repeatedly hitting the Lexus, but
that they would "see that the front part of the Jeep shows no
evidence of being involved in a repeated hitting of two cars."
Counsel's claims of ambush, then, ring entirely hollow.
Finally, the evidence was overwhelming that, as Morales
testified, the white Jeep bumped the Lexus. Why else did
Betancourt call his mother to say he was "scared" and read the
plate numbers to her? Whether Morales's estimate of 10-15 miles
was accurate (and whether it was an estimate of the Lexus's speed
or the difference in speed between the vehicles) was simply not
4 Amador-Huggins's argument that the government agreed that
Amador-Huggins should be allowed to appoint an expert is also
unconvincing. The prosecution's statement that "if the Court is
inclined to grant him an expert, he is entitled to present his
defense" and similar statements were simply a preface to the
prosecution's request that if the court was inclined to allow the
expert, that the court should ensure that it should not unduly
delay the proceedings.
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something that could have made a difference in this case. The
district court therefore did not manifestly abuse its discretion.
C. Timing of the Curative Instruction on a Witness's Improper
Comment
Amador-Huggins next argues that the district court
abused its discretion when it denied his request for a curative
instruction to correct an improper comment by an FBI agent at the
time it was requested, and instead gave the instruction as part of
the jury charge.
The comment came on June 4, when defense counsel was
pressing an FBI agent on why she had never used a polygraph.5 The
agent said "I have never felt the need for [a polygraph]. I have
never lost a case either, but I have never used a polygraph."
Defense did not object at the time, and in fact responded by
saying, "There's a first time for everything, ma'am?"
On June 6, the next day of trial, defense counsel asked
the court to give a curative instruction to the jury "today" that
would instruct them to disregard the "never lost a case" comment.
The judge indicated that he would give the instruction at the end
of trial, and defense counsel said, "Okay." The next day, June 7,
the district court gave the instruction as part of the jury charge.
Amador-Huggins now argues that the district court erred by not
5 The line of questioning stemmed from evidence that Morales
had failed a polygraph.
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giving a curative instruction when it was first requested on
June 6.
Whether trial counsel's "okay" waived the issue, we need
not decide. Nor need we decide whether our standard of review is
for plain error, as the government argues, or for abuse of
discretion, as Amador-Huggins argues. The trial court handled
this issue well under any standard. The moment when the arguably
objectionable response from the witness was fresh was lost due to
defense counsel's lack of objection. Amador-Huggins offers no
support for the premise that a belated curative instruction need
randomly be given on such a minor evidentiary issue stemming from
an isolated comment, when the request for such an instruction comes
two days after the arguably objectionable testimony and shortly
before the end of the evidence. Indeed, bringing up the
instruction out of context may well have highlighted the objected-
to testimony as having more significance than it actually
possessed.
D. Admission of Amador-Huggins's "Star Witness" Statement
The district court admitted Morales's testimony that
Amador-Huggins told him, while they were both being detained before
trial, that Amador-Huggins hoped there would not be a "star
witness" against him. The parties agree that our review of how
the district court applied the hearsay rules to these facts is for
abuse of discretion. See United States v. Omar, 104 F.3d 519, 522
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(1st Cir. 1997). Although the parties debate whether this
statement is admissible as a statement against penal interest under
Federal Rule of Evidence 804(b)(3), this statement by Amador-
Huggins is clearly admissible as a statement of a party-opponent
under Rule 801(d)(2)(A). See United States v. Avilés-Colón, 536
F.3d 1, 23 (1st Cir. 2008) (stating that under Rule 801(d)(2)(A),
"an out-of-court statement is not hearsay if it is offered against
the party and it is the party's own statement"). While the
district court seemed to admit the statement under Rule 804(b)(3),
this court can affirm the admission "on any independent ground
made apparent by the record." United States v. Cabrera-Polo, 376
F.3d 29, 31 (1st Cir. 2004).
E. Questioning a Witness about Uncharged Criminal Activity
Amador-Huggins argues that the district court violated
his rights under the Confrontation Clause of the Sixth Amendment
of the United States Constitution when it prevented him from
questioning a witness about whether the witness had ever committed
a crime. We review Confrontation Clause challenges "de novo to
determine whether defense counsel was afforded a reasonable
opportunity to impeach adverse witnesses. But when that threshold
is reached, any constraints imposed by the trial court on the
extent and manner of cross-examination are reviewed only for abuse
of discretion." United States v. Villarman-Oviedo, 325 F.3d 1, 14
(1st Cir. 2003). Amador-Huggins concedes that our review should
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be for abuse of discretion, which in the context of the
Confrontation Clause requires us to find that the trial judge
afforded the defendant a fair opportunity to cross-examine
witnesses to establish "a reasonably complete picture of the
witness's veracity, bias, and motivation." Stephens v. Hall, 294
F.3d 210, 226 (1st Cir. 2002) (internal quotation marks omitted).
Amador-Huggins argues on appeal that the district court
did not allow him to probe into the potential bias of Juan
Rodriguez, a witness who testified that, as he was sitting outside
smoking marijuana at a housing project in Caguas the night of the
attempted carjacking, he saw Morales and Amador-Huggins arrive in
a Jeep. Rodriguez was an unwilling witness who testified under a
pseudonym and insisted on being brought to the courtroom in
shackles to make it clear that he was there involuntarily.
On cross-examination, defense counsel sought to question
Rodriguez about his involvement in drug dealing and burglary, but
the government objected on relevance grounds under Federal Rules
of Evidence 401 and 403, and because neither act was a "crime of
honesty" that fell under the purview of Rule 608(b). See Fed. R.
Evid. 608(b) (allowing for impeachment of witnesses based on their
character for truthfulness or untruthfulness). The district court
sustained the objection. On redirect examination, the government
asked Rodriguez if he had ever been convicted of a crime, to which
Rodriguez answered no. Immediately afterwards, on recross,
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defense counsel asked Rodriguez if he had ever "committed a crime."
The government objected and the district court sustained the
objection. Amador-Huggins now appeals that final ruling.
Amador-Huggins's argument on appeal that his
Confrontation Clause rights were violated is that he needed to be
able to probe Rodriguez's potential bias and prejudice. He alleges
that Rodriguez may have been prejudiced against Amador-Huggins
"based on their narcotics relationship," and that the fact that he
insisted on appearing shackled suggested bias. However, Amador-
Huggins points to nothing in the record to suggest he raised any
theory of bias below. See United States v. Figueroa, 818 F.2d
1020, 1025 (1st Cir. 1987) (noting that arguments raised for the
first time on appeal are waived). Moreover, the bias theory raised
on appeal is premised on something that is not in the record:
Amador-Huggins's drug dealings. Amador-Huggins--who objects to
evidence that he used Percocet--makes no claim that he wanted to
put in evidence of his drug dealings. Thus, his theory for why
the disallowed inquiry was necessary to establish a "reasonably
complete picture" is speculative, lacking in support for its
foundational premise, see United States v. Martínez-Vives, 475
F.3d 48, 53 (1st Cir. 2007), and likely waived. The trial court's
ruling was not an abuse of discretion.
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F. Restitution
Amador-Huggins's final argument is that the district
court erred in awarding $13,332.86 in restitution to Betancourt's
family. As defense counsel did not object below, our review is
for plain error. See United States v. Sánchez-Maldonado, 737 F.3d
826, 828 (1st Cir. 2013). "To show plain error, the appellant
must demonstrate: '(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'" Id.(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Amador-Huggins cannot so demonstrate.
Betancourt's father, who lives in the Netherlands,
claimed $26,665.72 in losses, including funeral expenses for
services in both the Netherlands and Puerto Rico, flights for eight
family members to attend the funeral in Puerto Rico, hotels for
the family, the cancellation fee for Betancourt's private school,
and payment to a traumatology institute.6 Without discussion, the
district court awarded the family $13,332.86. Amador-Huggins
makes two claims of error: that the amount was arbitrary because
none of the claimed expenses precisely added up to the amount
6 The government of the Netherlands reimbursed $3,000 of the
family's expenses, so the $26,665.72 represents the family's
claimed costs after the reimbursement.
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awarded, and that the district court was not authorized to award
restitution either for two funerals or for travel expenses under
the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A.7
We begin with the latter claim. The MVRA provides that
an order for restitution arising from a victim's death shall cover
"an amount equal to the cost of necessary funeral and related
services." Id. § 3663A(b)(3). The expenses for two funerals
totaled $11,057.97. The amount requested on top of that included
$15,005.70 in airline fares for eight people between Puerto Rico
and the Netherlands, as well as $2,576.56 in hotel fees. Neither
party cites any case that speaks one way or the other to the
question of whether travel expenses are "necessary . . . related
services." Id. § 3663A(b)(3). In the absence of any guidance, we
conclude that under these circumstances, where a minor victim's
immediate family members lived in a different country, some travel
expenses can without plain error be treated as necessary services
related to the funeral.
Amador-Huggins also argues that the amount--almost
exactly one-half of the expenses listed above that were not
reimbursed by the government--was arbitrary. To a certain extent,
any line drawing here would be arbitrary, but that does not make
7 The district court said that the restitution was being
awarded under 18 U.S.C. § 3663, which appears to be a misstatement,
but any discrepancy is irrelevant because the language Amador-
Huggins challenges is identical under both provisions.
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it inequitable or unsustainable. See Sánchez-Maldonado, 737 F.3d
at 828 ("A district court's calculation of restitution is not held
to standards of scientific precision. As long as the court's order
reasonably responds to some reliable evidence, no more is
exigible." (citation omitted)). Here, the expenses allowed were
sufficient to cover only a portion of the claimed expenses related
to the funeral that took place in Puerto Rico (thus likely
excluding some of the airfare for eight family members traveling
from the Netherlands), and none of the expenses for the Netherlands
funeral.
In any event, even if the district court's approach was
error, we cannot conclude it was plain error that affected Amador-
Huggins's substantial rights or seriously impaired the fairness,
integrity, or public reputation of judicial proceedings. Id.
III. Conclusion
For the foregoing reasons,8 we affirm.
8Because we found no error in the district court's rulings,
we also reject Amador-Huggins's claim of cumulative error.
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