United States v. Martinez-Mercado , 919 F.3d 91 ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 16-2116, 17-2121
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO MARTÍNEZ-MERCADO,
Defendant-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Victor J. Gonzalez-Bothwell, with whom Eric Alexander Vos,
Federal Public Defender, District of Puerto Rico, Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, and Andrew S. McCutcheon, Assistant Federal Public
Defender, were on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
March 25, 2019
KAYATTA, Circuit Judge. A jury found Francisco
Martínez-Mercado guilty of conspiracy to deprive a person of civil
rights in violation of 18 U.S.C. § 241. The district court then
sentenced him to eighty-seven months in prison. On appeal,
Martínez-Mercado challenges the sufficiency of the evidence
against him, the admission of evidence under Federal Rule of
Evidence 404(b), the exclusion of certain testimony, the denial of
his new-trial motion based on newly discovered evidence, and the
appropriateness of his sentence. For the following reasons, we
affirm.
I.
Although we review the facts relevant to Martínez-Mercado's
sufficiency challenge in the light most favorable to the government,
we also "provide a more or less neutral summary" of the facts relevant
to his remaining claims and reserve further exposition of those facts
for our later analysis. See United States v. Flores-Rivera, 787 F.3d
1, 9 (1st Cir. 2015).
The events underlying Martínez-Mercado's conviction took
place in September of 2010. At that time, Martínez-Mercado was
working as a Task Force Officer ("TFO") for the Bureau of Alcohol,
Tobacco, Firearms and Explosives ("ATF"). He had previously worked
in the Drugs Division of the Puerto Rico Police Department
("PRPD"), where Jorge Fernández had been his supervisor. The
alleged conspiracy included PRPD officers Pedro López-Torres and
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Luis Ramos-Figueroa, both of whom eventually cut a deal and
testified on behalf of the government.
At trial, López-Torres testified that on September 15,
2010, Fernández told López-Torres that Martínez-Mercado was "going
to do a job in the area[] of Carolina" and "need[ed] help in doing
that job." Fernández and López-Torres had worked illegal "jobs"
together in the past, and López-Torres was conveniently serving in
the Property Division of the Carolina Criminal Investigations Unit
at the time. Based on Fernández's assurances that Martínez-Mercado
was trustworthy, López-Torres eventually agreed to take a call
from Martínez-Mercado. Martínez-Mercado called López-Torres
almost immediately, and they arranged to meet in person to discuss
the job.
That same day, López-Torres contacted Ramos-Figueroa,
"[b]ecause he was the person that [López-Torres] trusted to do
. . . illegal jobs." The two met up to talk about the potential
job in Carolina. Ramos-Figueroa agreed to participate in whatever
scheme might unfold.
Days later, López-Torres and Martínez-Mercado met at a
gas station to go over the details of the plan. According to
López-Torres, Martínez-Mercado said he had hired "some thugs,
meaning street criminals," to break into an apartment to steal
"money, jewelry and controlled substances, drugs." Martínez-
Mercado explained that the apartment belonged to someone who had
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recently been arrested by ATF. López-Torres agreed to provide
"security" and "communication" using his police patrol car and
radio. López-Torres testified that he used his patrol car on jobs
so "that people would believe that a legal activity was being
conducted there by the police." Additionally, if he heard a
complaint come in over the radio, he would warn his co-conspirators
and attempt to divert any potential investigation.
On September 23, Martínez-Mercado called López-Torres to
tell him that they would execute the plan that evening. López-
Torres relayed the information to Ramos-Figueroa. While López-
Torres was on duty, he met up with Martínez-Mercado at around
7:00 p.m. in the parking lot of a local supermarket. Ramos-
Figueroa joined them shortly thereafter. Martínez-Mercado was
driving a mini-van, and both López-Torres and Ramos-Figueroa
testified that they could see the silhouettes of at least two other
people in the back of the van.
Following a signal from Martínez-Mercado, López-Torres
and Ramos-Figueroa drove out of the parking lot in López-Torres's
patrol car and trailed the van to the PlayaMar condominium complex.
López-Torres parked at the end of the street, while the van
remained in front of the building. They watched as two or three
people jumped out of the van and entered the complex. López-
Torres and Ramos-Figueroa kept their eyes on the van and listened
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to the police radio. After they saw the van's interior lights
turn on, they left the area.
When López-Torres and Martínez-Mercado reconvened as
planned, Martínez-Mercado handed López-Torres about $3,000 to
split with Ramos-Figueroa. Martínez-Mercado explained that "there
wasn't that much" in the apartment, just "about $6,000 to $7,000
and some jewelry."
López-Torres spoke with Martínez-Mercado over the phone
several times over the next week. During one of those
conversations, López-Torres informed Martínez-Mercado that a
complaint had been filed the day after the break-in. The morning
of September 24, another officer, Josue Cosme-Rosa, took
photographs of the "ransacked" PlayaMar apartment and concluded
that the balcony door had likely been forced open.
The district court allowed the government to introduce
so-called "bad acts" evidence under Federal Rule of
Evidence 404(b), over objection, through the testimony of two
other former PRPD officers, Rafael Ramos-Veléz and Miguel Pagán.
The government also presented telephone records and historical
cell-site data. This evidence confirmed that Martínez-Mercado,
Fernández, and López-Torres had been in contact by phone on
September 15 and showed nineteen calls between Martínez-Mercado
and López-Torres on the night of the Carolina job. The cell-site
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data also showed that Martínez-Mercado's and López-Torres's cell
phones were in the area of the PlayaMar that night.
Near the end of the case against him, Martínez-Mercado
alleged that the government delayed the production of an FBI
report, which detailed an interview with another PRPD officer,
Yaritza Cruz-Sánchez, who had investigated the PlayaMar complaint.
The district court determined that, although the report was not
disclosed until the day before trial, it was not exculpatory or
impeaching under Brady v. Maryland, 373 U.S. 83 (1963). The court
did not permit the introduction of the report and also denied
Martínez-Mercado's request to issue a material-witness warrant for
Cruz-Sánchez.
Martínez-Mercado takes issue with two further district
court actions during the presentation of his case. First, the
district court excluded the testimony of ATF Agents Jean Carlos
Rivera and Julio Torres about an ATF investigation that Martínez-
Mercado contends would have accounted for his communications with
Fernández and López-Torres. After hearing the agents' testimony
outside the presence of the jury, the court concluded that they
did not have any relevant information. Second, although the
district court allowed Fernández to testify, the court advised him
of his Fifth Amendment rights three times, and Fernández invoked
his right against self-incrimination in response to questioning on
cross-examination.
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On February 26, 2016, after a five-day trial, the jury
found Martínez-Mercado guilty of conspiring to violate civil
rights. The district court denied his renewed motion for acquittal
under Federal Rule of Criminal Procedure 29 and subsequently
denied each of his new-trial motions pursuant to Federal Rule of
Criminal Procedure 33.
II.
A.
Martínez-Mercado appeals the denial of his motions for
judgment of acquittal based on the insufficiency of the evidence.
See Fed. R. Crim. P. 29(a). We review a district court's denial
of a Rule 29 motion de novo, asking "whether, after assaying all
the evidence in the light most amiable to the government, and
taking all reasonable inferences in its favor, a rational
factfinder could find, beyond a reasonable doubt, that the
prosecution successfully proved the essential elements of the
crime." United States v. George, 841 F.3d 55, 61 (1st Cir. 2016)
(quoting United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir.
2012)).
A section 241 conspiracy exists when "two or more
persons conspire to injure, oppress, threaten, or intimidate any
person . . . in the free exercise or enjoyment of any right or
privilege secured to him by the Constitution or laws of the United
States." 18 U.S.C. § 241. In this case, the federal right at
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issue is the right to be free from unreasonable searches and
seizures under the Fourth Amendment. Accordingly, to convict
Martínez-Mercado, the government needed to prove beyond a
reasonable doubt that he "1) conspired to injure, oppress,
threaten, or intimidate [the victim], 2) with the intent to
interfere with the victim's [Fourth Amendment] rights, 3) under
color of [Commonwealth] law." United States v. Cortés-Cabán, 691
F.3d 1, 13 (1st Cir. 2012) (quoting United States v. Guidry, 456
F.3d 493, 507 (5th Cir. 2006)); see also United States v. Lebron-
Gonzalez, 816 F.2d 823, 829 (1st Cir. 1987) ("Although section 241
does not specify a 'color of law' requirement, the Fourteenth
Amendment requires it." (citing United States v. Price, 383 U.S.
787, 799 (1966))).
Martínez-Mercado argues that the conspirators did not
act under color of law. He also argues that, even if they did act
under color of law, there could be no Fourth Amendment violation
without more evidence from an identifiable victim. We address
these two arguments in turn.
1.
Martínez-Mercado's primary argument is that the
government failed to prove that he conspired to commit a
constitutional violation "under color of law." In truth, Martínez-
Mercado's complaint seems to be that the alleged conspiracy was
never to orchestrate an illegal seizure under color of law; rather,
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the plan was for a band of hired "thugs" -- unmistakably private
actors -- to break into the condominium and steal valuables inside.
To be sure, Martínez-Mercado does not suggest that the mere
involvement of private individuals precludes prosecution under
section 241, as any such argument would inevitably prove futile.
See Price, 383 U.S. at 794 ("Private persons, jointly engaged with
state officials in the prohibited action, are acting 'under color'
of law for purposes of [section 241]."); United States v. Aponte-
Sobrado, 847 F. Supp. 2d 316, 319–20 (D.P.R. 2012). Nor can he
successfully argue that his failure to conceive of the heist in
constitutional terms provides any defense. Screws v. United
States, 325 U.S. 91, 106 (1945) (making clear that "[t]he fact
that the defendants may not have been thinking in constitutional
terms is not material where their aim was . . . to deprive a
citizen of a right and that right was protected by the
Constitution").
Still, the "acts of officers in the ambit of their
personal pursuits are plainly excluded" from liability under
section 241. Id. at 111. "[P]rivate conduct, outside the line of
duty and unaided by any indicia of actual or ostensible state
authority, is not conduct occurring under color of state law."
Martinez v. Colon, 54 F.3d 980, 986–87 (1st Cir. 1995). Although
courts have had frequent occasion to interpret section 1983's
"color of law" requirement, "there is no bright line test for
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distinguishing 'personal pursuits' from activities taken under
color of law." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.
1994); see also Price, 383 U.S. at 794 n.7 (noting that, in section
1983 cases, "'under color' of law has consistently been treated as
the same thing as the 'state action' required under the Fourteenth
Amendment"). We have previously instructed that a state actor
does not act under color of law unless his "conduct occurs in the
course of performing an actual or apparent duty of his office, or
unless the conduct is such that the actor could not have behaved
in that way but for the authority of his office." Martinez, 54
F.3d at 986; see also United States v. Classic, 313 U.S. 299, 326
(1941) ("Misuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law, is action taken 'under color of' state
law.").
More specifically, this court trains its attention "on
the nature and circumstances of the officer's conduct and the
relationship of that conduct to the performance of his official
duties." Martinez, 54 F.3d at 986. "The key determinant is
whether the actor . . . purposes to act in an official capacity or
to exercise official responsibilities pursuant to state law." Id.;
see also Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st
Cir. 1999) ("While certain factors will clearly be relevant -- for
example, a police officer's garb, an officer's duty status, the
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officer's use of a service revolver, and the location of the
incident -- these factors must not be assessed mechanically.");
Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 449 (1st Cir.
1997) (listing the same factors). Martínez-Mercado argues,
therefore, that the conspiracy at issue here did not involve
conduct committed in the performance of any actual or pretended
official duty.
The facts show otherwise. The conspirators literally
employed the colors of the law in the form of a marked on-duty
police vehicle to do what no private individual could do -- divert
private and police interlopers by creating the appearance of
legitimate police involvement. The plan also addressed the risk
of a citizen call to the police by exploiting López-Torres's
official capacity to forestall any investigation at the scene.
López-Torres and Ramos-Figueroa were part of the conspiracy and
present at the scene of the heist precisely because they possessed
the official authority to ensure that it would proceed
uninterrupted. This was surely enough to support a jury finding
that the conspirators acted under color of law. See United States
v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) (noting that in deciding
a sufficiency challenge courts "must only satisfy [themselves]
that the guilty verdict finds support in a plausible rendition of
the record").
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2.
Martínez-Mercado also argues that the government failed
to prove a Fourth Amendment violation because it did not identify
any actual victim who had a "reasonable expectation of privacy" in
the PlayaMar condominium. See Katz v. United States, 389 U.S.
347, 360 (1967) (Harlan, J., concurring). Certainly, the
government needed to show that the conspirators tried to violate
some person's right to be free from an unlawful search and seizure.
But the government did this. It presented evidence that the
condominium was a home, and a locked one at that. It also put in
evidence that Martínez-Mercado knew that the home belonged to a
recently arrested person. As the U.S. Supreme Court has explained,
"[w]ithout question, the home is accorded the full range of Fourth
Amendment protections." Lewis v. United States, 385 U.S. 206, 211
(1966). There is simply no blanket requirement that the victim
testify. See Cortés-Cabán, 691 F.3d at 13 (noting that
"circumstantial evidence will suffice" to establish the elements
of a conspiracy). The government presented sufficient evidence
for the jury to reasonably infer that Martínez-Mercado conspired
to violate the Fourth Amendment rights of whoever lived in the
targeted apartment.
B.
Martínez-Mercado next argues that the district court
misinterpreted the scope of Federal Rule of Evidence 404 and then
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improperly admitted the testimony of two government witnesses
under that rule. Although we review the district court's
application of Rule 404 for abuse of discretion, when there is an
allegation that "the district court misapprehended the scope of
the Rules it was applying," we review its legal interpretations de
novo. United States v. Gilbert, 229 F.3d 15, 20–21 (1st Cir.
2000); Olsen v. Correiro, 189 F.3d 52, 58 (1st Cir. 1999) ("The
proper interpretation of the Federal Rules of Evidence is a
question of law and is reviewed de novo.").
Rule 404 dictates 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). But
Rule 404 also specifies that evidence of prior acts may be
admissible to prove "motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident." Fed. R. Evid. 404(b)(2). We have formulated a two-
part test for determining the admissibility of Rule 404(b)
evidence. First, a court must determine whether the evidence has
some "special relevance" independent of its tendency to show
criminal propensity. United States v. Rodriguez-Barrios, 573 F.3d
55, 64 (1st Cir. 2009) (citing United States v. Aguilar-Aranceta,
58 F.3d 796, 798 (1st Cir. 1995)). Second, if the evidence has
some such relevance, the court must then decide whether its
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probative value is substantially outweighed by the danger of unfair
prejudice. Id. And probative value "must be considered in light
of the remoteness in time of the other act and the degree of
resemblance to the crime charged." United States v. Frankhauser,
80 F.3d 641, 648 (1st Cir. 1996) (quoting United States v. Fields,
871 F.2d 188, 197 (1st Cir. 1989)).
The district court allowed two government witnesses --
PRPD officers Pagán and Ramos-Veléz -- to testify, over repeated
defense objections, about two prior uncompleted conspiracies that
allegedly involved Martínez-Mercado. The government summarized
that evidence as follows in its pretrial notice of intent to
introduce evidence of other bad acts:
1. In or about December of 2010, [while
defendant was employed as a TFO for ATF],
defendant, along with other Puerto Rico police
officers entered a conspiracy to steal money
and/or drugs from a house located in Santurce,
San Juan, Puerto Rico, under color of
law. . . . The plan included staying outside
the location while other individuals entered
the house dressed as police officers to
conduct the robbery. Their contingency plan
included identifying themselves as [PRPD
officers] from the Criminal Investigations
Division . . . .
2. On a date unknown, but while defendant
was employed as a TFO for ATF, defendant
entered a conspiracy with at least one known
Puerto Rico police officer to steal money
and/or drugs from a house in Carolina, Puerto
Rico, under color of law.
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Both plots were ultimately abandoned. At trial, Pagán
testified that the first plot involved the execution of an "illegal
warrant" and that he was charged with staying "in front of the
house with the police patrol car." Ramos-Veléz confirmed that the
first plot also contemplated the presence of a "marked patrol car."
The only relevant testimony as to the second plot was that Ramos-
Veléz and Martínez-Mercado called it off after they noticed that
the house in Carolina was armed with security cameras.
The government argued to the district court that its
evidence of the two prior conspiracies was admissible "to show
that the Defendant had a common scheme or plan" that "involved
conducting robberies of homes . . . and that he hired other police
officers to . . . assist him in their marked patrol units or, as
a contingency plan, should they be detected either by an owner of
the apartment or by somebody in the vicinity of the area, to secure
the success of the operation." Accordingly, the district court
admitted that evidence as proof of a "common scheme or plan."
But the proffered bad acts did not reveal "a continuing
or connected scheme" linking the prior alleged conspiracies to the
instant conspiracy. United States v. Lynn, 856 F.2d 430, 435 (1st
Cir. 1988); see also United States v. Varoudakis, 233 F.3d 113,
119 (1st Cir. 2000). Rather, Pagán's and Ramos-Veléz's testimony
showed several such plans, rather than a single common scheme or
plan.
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The government alternatively argues that the evidence
was "specially relevant" to prove Martínez-Mercado's intent. The
government, though, does not articulate how Martínez-Mercado's
alleged participation in arranging the two uncharged conspiracies
is relevant to whether he had the requisite intent to conspire to
interfere with a known federal right in this case. See United
States v. Guest, 383 U.S. 745, 760 (1966) (noting that the
conspiracy charge requires proof of "specific intent"). Although
this court has maintained that when bad acts evidence "is
introduced to show knowledge, motive, or intent, the Rule 404(b)
exceptions . . . have been construed broadly," United States v.
Flores Perez, 849 F.2d 1, 4 (1st Cir. 1988), we need be cautioned
that "the relevance of a prior conviction admitted to prove
'intent' . . . may rest on little more than propensity," United
States v. Henry, 848 F.3d 1, 15 (1st Cir. 2017) (Kayatta, J.,
concurring). In this case, it is difficult to escape such
propensity-based reasoning. As Martínez-Mercado avers, the
government's evidence of bad acts broadly highlighted his alleged
past corrupt associations with fellow police officers, inviting
the jury to generalize this bad behavior into "bad character and
[to] tak[e] that as raising the odds that he did the later bad act
now charged." Old Chief v. United States, 519 U.S. 172, 180
(1997). This is precisely what the rule seeks to avoid.
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The government also arguably suggests that the evidence
established Martínez-Mercado's "identity" or "modus operandi" by
highlighting the similarity between the prior acts and the
September 2010 Carolina job. For Rule 404(b) evidence to be
admitted to prove modus operandi, the government must show "a high
degree of similarity between the other act and the charged crime."
United States v. Trenkler, 61 F.3d 45, 52 (1st Cir. 1995) (citing
United States v. Ingraham, 832 F.2d 229, 231–33 (1987)). The
government "must demonstrate that the two acts exhibit a
commonality of distinguishing features sufficient to earmark them
as the handiwork of the same individual." Id. at 53 (citing
Ingraham, 832 F.2d at 231). Moreover, under Federal Rule of
Evidence 104(b), district courts must condition the admission of
modus operandi evidence "on a showing that the shared
characteristics of the other act and the charged offense are
sufficiently idiosyncratic that a reasonable jury could find it
more likely than not that the same person performed them both."
Id. In resolving whether the evidence supports an inference that
the incidents are "sufficiently idiosyncratic," the inquiry "must
focus on the 'totality of the comparison,' demanding not a
'facsimile or exact replica' but rather the 'conjunction of several
identifying characteristics or the presence of some highly
distinctive quality.'" Id. at 54 (quoting Ingraham, 832 F.2d at232–33).
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The government points to the use of a marked patrol car
parked outside the location of the planned heist as such a "highly
distinctive quality." Of course, that identifying feature was
said to be present in only one of the two prior conspiracies. As
to that conspiracy, the testimony did indeed describe a plan to
park a patrol vehicle outside the location to be robbed. But the
plan as described otherwise markedly differed from the heist that
gave rise to this prosecution, most notably because it involved
the use of "an illegal warrant." Nor was there any participation
of private individuals or even a break-in. As Pagán explained:
"We were just going to appear there and knock that door down, go
inside the house and arrest the woman, take . . . whatever she had
there." Given the differences, it is as if the government were
pointing to the use of a ball in both a cricket match and a baseball
game as proof of modus operandi for a particular player. There is
a common factor but not one that is so unusual and distinctive as
to make two otherwise quite different methods of operation appear
to be the mark of a single person. See Ingraham, 832 F.2d at 233;
see also United States v. Pisari, 636 F.2d 855, 859 (1st Cir. 1981)
("The single fact that in committing a robbery, one invokes the
threat of using a knife falls far short of a sufficient signature
or trademark upon which to posit an inference of identity."). We
cannot say, therefore, that the prior bad acts were "specially
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relevant" as evidence of modus operandi. For these reasons, the
admission of the prior bad acts was erroneous.
Nevertheless, we hold that the district court's
erroneous admission of the bad acts evidence was harmless. While
we once again underscore "the folly of bad act overkill," United
States v. Arias-Montoya, 967 F.2d 708, 714 (1st Cir. 1992), in
this case we can determine "with fair assurance . . . that the
judgment was not substantially swayed" by the district court's
error, Kotteakos v. United States, 328 U.S. 750, 765 (1946); see
also United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009)
("We review non-constitutional evidentiary errors for
harmlessness; an error is harmless if it is 'highly probable that
the error did not influence the verdict.'" (quoting United States
v. Roberson, 459 F.3d 39, 49 (1st Cir. 2006))). The cell phone
records and location information corroborated the central gist of
the cooperators' testimony. It confirmed the initial contacts
between the conspirators, and it solidly placed Martínez-Mercado
in the neighborhood of the home invasion in repeated communications
with López-Torres without any conceivable innocent explanation.
We therefore decline to hold that the admission of the Rule 404(b)
evidence was prejudicial error.
C.
Martínez-Mercado further claims that the district court
violated his rights under the Sixth Amendment's Compulsory Process
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Clause and the Fourteenth Amendment's Due Process Clause in three
ways. First, he argues that the district court undermined his
right to present a meaningful and complete defense by excluding
the testimony of two ATF agents. Second, he contends that the
court erroneously ruled that the government's production of an FBI
302 Report on the eve of trial detailing an interview with Officer
Yaritza Cruz-Sánchez was not a Brady violation. The court then
compounded that error, Martínez-Mercado claims, by refusing to
authorize a material-witness warrant for Officer Cruz-Sánchez and
by excluding the 302 Report itself. Lastly, Martínez-Mercado
asserts that the court intimidated Jorge Fernández by repeatedly
advising him of his Fifth Amendment rights.
1.
Martínez-Mercado first complains that the district court
excluded the proffered testimony of two ATF agents. In support of
his proffer, Martínez-Mercado represented that the agents would
testify that Martínez-Mercado was tasked with investigating an ATF
cooperating witness in an unrelated matter. That task, he argued,
gave him a perfectly legitimate reason to be communicating with
Fernández and López-Torres on September 15 because they might have
"worked with this confidential informant before." But one of
Martínez-Mercado's proffered witnesses indicated that the
investigation of the cooperator did not commence until after the
cooperator's arrest on September 20. And the other witness offered
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no alternative chronology. In light of that chronological mismatch
between the asserted theory or relevance and the actual testimony,
the district court sensibly concluded that the testimony was not
reasonably capable of establishing the relevant point Martínez-
Mercado hoped to establish. We see no reason to upset that
determination. See Pike v. Guarino, 492 F.3d 61, 78 (1st Cir.
2007) ("Although the right to present a defense is of
constitutional dimension, it is not absolute." (citing Nix v.
Whiteside, 475 U.S. 157, 173 (1986))); United States v. Brandon,
17 F.3d 409, 444 (1st Cir. 1994) (noting that the district court
has "broad discretion in making relevancy determinations").1
2.
Martínez-Mercado advances several related arguments
concerning the trial court's treatment of a so-called 302 Report
summarizing an FBI interview with PRPD officer Cruz-Sánchez.
During the interview, Cruz-Sánchez stated that (1) a person other
than the owner of the condominium first called in the burglary;
and (2) López-Torres told Cruz-Sánchez that "they had taken
material (referring to drugs) and money" from the apartment.
Martínez-Mercado argues on appeal that the late production of this
1Martínez-Mercado argues on appeal that even with the September 20
arrest date, he might have started investigating the witness before
his arrest. But he did not make this argument at trial, so plain
error review applies, see United States v. Sánchez-Berríos, 424
F.3d 65, 78 (1st Cir. 2005), and there is no clear error because
his proffered testimony does not clearly back up this theory.
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report (on the eve of trial) was a Brady violation and that the
court should have admitted the report into evidence or compelled
Officer Cruz-Sánchez to testify.
The district court viewed the report as largely
irrelevant and at best marginally impeaching on collateral
matters. We see no unreasonableness in that determination.
Martínez-Mercado does not attempt to explain how who reported the
burglary is even relevant to his defense. He claims only that it
"refuted the testimony of Josue Cosme-Rosa," who did testify that
"the complainant himself . . . gave [the PRPD] access [to the
parking lot]." Cosme-Rosa's testimony, however, had nothing to do
with who reported the break-in. It is not clear that the identity
of the initial complainant is at all material to Martínez-Mercado's
defense.
The district court also aptly explained away any
superficial inconsistency between the 302 Report and López-
Torres's trial testimony. That is, although López-Torres
testified that Martínez-Mercado told him that only money and
jewelry were taken from the apartment, López-Torres never
testified as to his own knowledge of what was stolen. Besides,
the fact that López-Torres told Officer Cruz-Sánchez that drugs
were taken from the apartment does not suggest, as Martínez-Mercado
claims, that López-Torres "planned or executed the crime."
Moreover, as the district court observed, evidence as to how the
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robbery was carried out would have been irrelevant to Martínez-
Mercado's defense because he was charged with a conspiracy offense
that does not require an overt act by him. See United States v.
Crochiere, 129 F.3d 233, 234, 238–39 (1st Cir. 1997) (holding that
18 U.S.C. § 241 does not require an overt act in furtherance of
the conspiracy).
Our conclusion that the district court reasonably
assessed the proffered evidence as at best marginally and
collaterally relevant dooms Martínez-Mercado's trio of arguments.
We review the denial of a new-trial motion on the basis of an
alleged Brady violation for manifest abuse of discretion. United
States v. Morales-Rodriguez, 467 F.3d 1, 14 (1st Cir. 2006). And
there is no Brady violation compelling a new trial when the
belatedly supplied evidence is merely cumulative or impeaching on
a collateral issue. Conley v. United States, 415 F.3d 183, 189
(1st Cir. 2005). Similarly, we review for abuse of discretion a
decision to exclude evidence as cumulative or insufficiently
relevant. Brandon, 17 F.3d at 444. And there is no such abuse
when the evidence is at once both cumulative and relevant only
arguably to contradict other evidence on peripheral issues. Id.2
2 From our conclusion that these evidentiary rulings were not an
abuse of discretion, it follows that the district court's exclusion
of Sánchez-Cruz's testimony and the 302 Report was not
constitutional error.
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3.
Martínez-Mercado's witness-intimidation claim also
fails.3 The district court properly advised Fernández of his Fifth
Amendment rights. See United States v. Santiago-Becerril, 130
F.3d 11, 26 (1st Cir. 1997) ("A judge is entitled to make sure a
witness understands [his] Fifth Amendment rights."). The district
court rightly noted that it did not "actively encourage[] a witness
not to testify or badger[] a witness into remaining silent."
United States v. Arthur, 949 F.2d 211, 216 (6th Cir. 1991).
Martínez-Mercado takes particular issue with the fact that,
although the court first read the witness his rights outside the
presence of the jury, the judge subsequently "informed Fernández
of his ability to invoke his 'rights' on no less than three
occasions." It is obvious from the trial transcript, however,
that the witness became confused and needed clarification of the
judge's proper warning. The court had little choice but to
instruct him further. What's more, as the district court found,
Fernández "testified fully" for Martínez-Mercado on direct and
only invoked his right to remain silent during parts of the
government's cross-examination. United States v. Martínez-
Mercado, No. CR 15-576 (FAB), 2016 WL 8674489, at *11 (D.P.R.
June 17, 2016). The district court did not inhibit Martínez-
3 In his post-trial motions, Martínez-Mercado framed this issue as
a judicial-bias claim.
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Mercado's right to present a meaningful defense.
D.
Martínez-Mercado next argues that the district court
abused its discretion by denying his second new-trial motion based
on newly discovered evidence. See Fed. R. Crim. P. 33. We review
the denial of a new-trial motion for "manifest abuse of
discretion." United States v. Carpenter, 781 F.3d 599, 608 (1st
Cir. 2015) (citing United States v. Wright, 625 F.2d 1017, 1019
(1st Cir. 1980)). A court may grant a motion for a new trial based
on newly discovered evidence if
(1) the evidence was unknown or unavailable to
the defendant at the time of trial;
(2) failure to learn of it was not because of
lack of due diligence; (3) the evidence is
material, and not merely cumulative or
impeaching; and (4) it will probably result in
acquittal upon retrial.
Carpenter, 781 F.3d at 621 (citing Wright, 625 F.2d at 1019); see
also United States v. Hernández-Rodríguez, 443 F.3d 138, 143 (1st
Cir. 2006) ("[W]e have no discretion to grant a motion for a new
trial if any one of the four factors is lacking."). Since both
sides agree that the first two prongs of the so-called Wright test
are satisfied, we address only the latter two.
On December 16, 2016, the government disclosed two
additional FBI 302 Reports summarizing information provided by
Metropolitan Detention Center inmates Arnaldo López-Ortiz and
Osvaldo Vasquez-Ruiz. Martínez-Mercado argues in his brief that
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these reports, as well as a subsequent telephone interview with
Nadab Arroyo-Rosa (another federal inmate), suggest that López-
Torres and Ramos-Figueroa "(1) coordinated fraudulent testimony
designed to secure the conviction of Mr. Martínez-Mercado;
(2) testified falsely and fraudulently at [trial]; and
(3) deliberately misled prosecutors during debriefings." The
district court concluded that Martínez-Mercado failed to establish
that the newly discovered evidence was material as required by the
third prong. United States v. Martínez-Mercado, 261 F. Supp. 3d
293, 306 (D.P.R. 2017).
New evidence is "material" when "it has the potential
'to alter the outcome of the lawsuit under applicable legal
tenets.'" United States v. Hernández-Rodríguez, 443 F.3d 138, 145
(1st Cir. 2006) (quoting Roche v. John Hancock Mut. Life Ins. Co.,
81 F.3d 249, 253 (1st Cir. 1996)). Newly discovered evidence that
is merely impeaching, however, "normally cannot form the basis for
a new trial." United States v. Colón-Muñoz, 318 F.3d 348, 361
(1st Cir. 2003) (quoting United States v. Bonadonna, 775 F.2d 949,
957 (8th Cir. 1985)). Martínez-Mercado counters that "[t]he value
of the evidence was not simply to show that López-Torres and Ramos-
Figueroa were generally liars and perjured themselves in the past,"
but that "[i]t demonstrated they were actively fabricating
testimony in this case in order to receive a sentence reduction."
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The reports summarize the inmates' claim that they
overheard the two cooperating conspirators in this case (López-
Torres and Ramos-Figueroa) talking about coordinating testimony.
According to the inmates, López-Torres and Ramos-Figueroa
discussed "getting a story straight" having to do with a firearm
and the possibility that cameras might show them to be someplace
on some occasion other than where they claimed to be. One inmate
allegedly mentioned that if the prosecutors found out that López-
Torres and Ramos-Figueroa were concocting a false story, the "other
guy" (presumably, thought the FBI agents, the person against whom
López-Torres and Ramos-Figueroa were going to testify) would walk.
The government was unable to provide any further information about
the context in which these broad statements were made or when the
conversation took place. Martínez-Mercado further argues that one
of the inmates "specifically confirmed that López-Torres and
Ramos-Figueroa discussed concocting false and fraudulent testimony
on one or more occasions."
The materiality of the newly discovered evidence depends
on whether a jury would probably presume that López-Torres and
Ramos-Figueroa were discussing Martínez-Mercado's case in a manner
that suggests perhaps a frame. The district court answered in the
negative, and we find no abuse of discretion in that determination.
Although, as Martínez-Mercado notes, the district court conceded
that "[t]he information in the 302 reports suggest[s] that López-
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Torres and Ramos-Figueroa concocted testimony," Martínez-Mercado,
261 F. Supp. 3d at 305, the court never stated that the "concocted
testimony" related to this case. On this point, Martínez-Mercado
asserts that, "López-Torres and Ramos-Figueroa did not testify at
any other trials or in-court legal proceedings." But nothing in
the reports suggests that the reference to "testimony" was limited
to trial testimony in this case, as opposed to statements provided
to FBI agents and prosecutors in other cases. Further, the reports
describe the conversation as covering a withheld firearm and
cameras at various locations, significant details that have
nothing at all to do with this case.
For purposes of this appeal, we can nevertheless assume
without deciding that the proffered evidence was "material," and
not irrelevant or merely impeaching. That assumption brings us to
the fourth prong: Would the evidence "probably" have altered the
result? We think not. As we have already explained, the
government's case against Martínez-Mercado was not reasonably
vulnerable to an enhanced credibility attack on the cooperating
witnesses. It is undisputed that the break-in occurred and that
the cell phone evidence placed Martínez-Mercado both in timely
repeated communication with López-Torres and in the area of the
crime without any suggestion in the record that either of them had
any legitimate reason to be there (much less talking to one
another) at that time. There was no testimony at trial about any
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camera or firearm. And, had there been, we see no reasonable
likelihood that any such evidence could be viewed as exculpatory.
The evidence contained in the 302 reports and corroborated by
Arroyo-Rosa's interview was not "sufficiently compelling that it
would probably result in an acquittal." United States v. Alicea,
205 F.3d 480, 487 (1st Cir. 2000).
E.
Finally, Martínez-Mercado argues that his sentence was
procedurally unreasonable. The court below calculated a total
offense level of twenty-seven and a criminal history category of
I, resulting in a guidelines range of seventy to eighty-seven
months, and sentenced Martínez-Mercado to eighty-seven months in
federal prison. We review sentencing decisions for abuse of
discretion, examining findings of fact for clear error and
interpretations of the sentencing guidelines de novo. United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
The district court correctly calculated a base offense
level of seventeen by referencing U.S.S.G. § 2B2.1 pursuant to
U.S.S.G § 2H1.1(a)(1), which instructs the court to apply the
offense guideline applicable to any underlying offense. Here, the
conduct underlying Martínez-Mercado's conviction for conspiring to
violate civil rights was burglary of a residence, so U.S.S.G.
§ 2B2.1(a)(1) dictated a base level of seventeen.
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The district court increased the base level by six levels
under U.S.S.G. § 2H1.1(b)(1), which applies when the defendant
"was a public official at the time of the offense" or "the offense
was committed under color of law." For the reasons we have already
explained, there was no error in finding the terms of that
enhancement satisfied.
Under U.S.S.G. § 3B1.1(a), the district court increased
the base level by an additional four levels because "the defendant
was an organizer or leader of a criminal activity that involved
five or more participants." The government presented evidence at
trial demonstrating that the alleged conspiracy involved Martínez-
Mercado, Fernández, López-Torres, Ramos-Figueroa, and at least two
"thugs." And, contrary to Martínez-Mercado's assertions on
appeal, the amended presentence report reflected as much. The
district court did not abuse its discretion at sentencing.
III.
Finding the evidence sufficient to sustain Martínez-
Mercado's conviction, and finding no other reversible error, we
affirm the conviction and sentence.
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